EXHIBIT 1.1
3,400,000 SHARES
IMPERIAL CREDIT MORTGAGE HOLDINGS, INC.
COMMON STOCK
UNDERWRITING AGREEMENT
----------------------
September 22, 1997
PAINEWEBBER INCORPORATED
XXXXXXXXXXX & CO., INC.
XXXXXX, XXXXXXXX & COMPANY INCORPORATED
EVEREN SECURITIES, INC.
c/o PaineWebber Incorporated
1285 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Imperial Credit Mortgage Holdings, Inc., a Maryland corporation (the
"Company"), and the stockholders named in Schedule I (the "Selling
Shareholders") propose to sell an aggregate of 3,400,000 shares (the "Firm
Shares") of the Company's Common Stock, $.01 par value per share (the "Common
Stock"), to you (collectively, the "Underwriters"). Of the 3,400,000 Firm
Shares, 3,229,906 shares will be sold by the Company and an aggregate of 170,094
shares will be sold by the Selling Shareholders in the respective number of
shares set forth opposite their respective names in Schedule I. The Company has
also agreed to grant to you an option (the "Option") to purchase up to an
additional 510,000 shares of Common Stock (the "Option Shares") on the terms and
for the purposes set forth in Section 1(b). The Firm Shares and the Option
Shares are hereinafter collectively referred to as the "Shares."
The initial public offering price per share for the Shares and the
purchase price per share for the Shares to be paid by the several Underwriters
shall be agreed upon by the Company, the Selling Shareholders and the
Underwriters, and such agreement shall be set forth in a separate written
instrument substantially in the form of Exhibit A hereto (the "Price
Determination Agreement"). The Price Determination Agreement may take the form
of an exchange of any standard form of written telecommunication among the
Company, the Selling Shareholders and the Underwriters and shall specify such
applicable information as is indicated in Exhibit A hereto. The offering of the
Shares will be governed by this Agreement, as supplemented by the
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Price Determination Agreement. From and after the date of the execution and
delivery of the Price Determination Agreement, this Agreement shall be deemed to
incorporate, and, unless the context otherwise indicates, all references
contained herein to "this Agreement" and to the phrase "herein" shall be deemed
to include the Price Determination Agreement.
Each Selling Shareholder has executed and delivered a Custody
Agreement and a Power of Attorney in the form attached hereto as Exhibit B
(collectively, the "Agreement and Power of Attorney") pursuant to which each
Selling Shareholder has placed its Firm Shares in custody and appointed the
persons designated therein (each individually, an "Attorney-in-Fact") with
authority to execute and deliver this Agreement on behalf of such Selling
Shareholder and to take certain other actions with respect thereto and hereto.
The Company and the Selling Shareholders confirm as follows its
agreements with the Underwriters.
1. Agreement to Sell and Purchase.
------------------------------
(a) On the basis of the representations, warranties and agreements of
the Company and the Selling Shareholders herein contained and subject to all the
terms and conditions of this Agreement, each of the Company and the Selling
Shareholders, severally and not jointly, agrees to sell to the several
Underwriters, and each Underwriter, severally and not jointly, agrees to
purchase from the Company and the Selling Shareholders at the purchase price per
share for the Firm Shares to be agreed upon by the Underwriters, the Company and
the Selling Shareholders in accordance with Section 1(c) of this Agreement and
set forth in the Price Determination Agreement, the number of Firm Shares set
forth opposite the name of such Underwriter in Schedule II, plus such
additional number of Firm Shares which such Underwriter may become obligated
to purchase pursuant to Section 9 hereof. If the Company elects to rely on Rule
430A (as hereinafter defined), Schedule II may be attached to the Price
Determination Agreement.
(b) Subject to all the terms and conditions of this Agreement, the
Company grants the Option to the several Underwriters to purchase, severally and
not jointly, up to 510,000 Option Shares from the Company at the same price per
share as the Underwriters shall pay for the Firm Shares. The Option may be
exercised only to cover over-allotments in the sale of the Firm Shares by the
Underwriters and may be exercised in whole or in part at any time (but not more
than once) on or before the 30th day after the date of this Agreement (or, if
the Company has elected to rely on Rule 430A, on or before the 30th day after
the date of the Price Determination Agreement), upon written or telegraphic
notice (the "Option Shares Notice") by the
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Underwriters to the Company no later than 12:00 noon, New York City time, at
least two and no more than five business days before the date specified for
closing in the Option Shares Notice (the "Option Closing Date") setting forth
the aggregate number of Option Shares to be purchased and the time and date for
such purchase. On the Option Closing Date, the Company will issue and sell to
the Underwriters the number of Option Shares set forth in the Option Shares
Notice, and each Underwriter will purchase such percentage of the Option Shares
as is equal to the percentage of Firm Shares that such Underwriter is
purchasing, as adjusted by the Underwriters in such manner as they deem
advisable to avoid fractional shares.
(c) The initial public offering price per share for the Firm Shares
and the purchase price per share for the Firm Shares to be paid by the several
Underwriters shall be agreed upon and set forth in the Price Determination
Agreement. In the event such price has not been agreed upon and the Price
Determination Agreement has not been executed by the close of business on the
fourteenth business day following the date of this Agreement, this Agreement
shall terminate forthwith, without liability of any party to any other party
except that Sections 5(i) and 7 shall remain in effect.
2. Delivery and Payment.
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Delivery of the Firm Shares shall be made to the Underwriters against
payment of the purchase price by credit to the account of the Company and
Imperial Credit Industries, Inc. ("ICII"), on behalf of each of the Selling
Shareholders with the Depository Trust Company. Such payments shall be made at
10:00 a.m., New York City time, on September 26, 1997 at the offices of Xxxx,
Weiss, Rifkind, Xxxxxxx & Xxxxxxxx, counsel to the Underwriters, 0000 Xxxxxx xx
xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, or at such time on such other date
at such other place as may be agreed upon by the Company and the Underwriters,
but in no event later than 10 days after such date (such date is hereinafter
referred to as the "Closing Date").
To the extent the Option is exercised, delivery of the Option Shares
against payment by the Underwriters (in the manner specified above) will take
place at the offices specified above for the Closing Date at the time and date
(which may be the Closing Date) specified in the Option Shares Notice. The cost
of original issue tax stamps, if any, in connection with the issuance and
delivery of the Firm Shares and Option Shares by the Company to the respective
Underwriters shall be borne by the Company. The cost of tax stamps, if any, in
connection with the sale of the Firm Shares by the Selling Shareholders shall be
borne by the Selling Shareholders. The Company and the Selling Shareholders
will pay and save each Underwriter and any subsequent holder of the Shares
harmless from any and all liabilities with respect to or resulting from any
failure or delay in paying Federal and state stamp and other transfer
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taxes, if any, which may be payable or determined to be payable in connection
with the original issuance or sale to such Underwriter of the Firm Shares and
Option Shares.
3. Representations and Warranties of the Company.
---------------------------------------------
The Company represents, warrants and covenants to each Underwriter
that:
(a) The Company meets the requirements for use of Form S-3 and a
registration statement (Registration No. 333-34137) on Form S-3 relating to the
Shares, including a prospectus (the "Base Prospectus") and such amendments to
such Registration Statement as may have been required to the date of this
Agreement, has been prepared by the Company under the provisions of the
Securities Act of 1933, as amended (the "Act"), and the rules and regulations
(collectively referred to as the "Rules and Regulations") of the Securities and
Exchange Commission (the "Commission") thereunder, has been filed with the
Commission and has become effective. No stop order suspending the effectiveness
of the Registration Statement has been issued and no proceedings for that
purpose are pending or, to the knowledge of the Company, threatened by the
Commission. Copies of such Registration Statement and amendments and of the
Base Prospectus have been delivered to the Underwriters. The Company has
prepared and filed with the Commission pursuant to Rule 424(b) of the Rules and
Regulations ("Rule 424(b)") a preliminary prospectus supplement subject to
completion, dated September 9, 1997, for use in connection with the offering of
the Shares (the "Preliminary Prospectus Supplement"). A final prospectus
supplement pertaining to the Shares (the "Prospectus Supplement") containing
information permitted to be omitted from the Registration Statement at the time
of effectiveness by Rule 430A of the Rules and Regulations ("Rule 430A") will be
prepared and filed by the Company with the Commission in accordance with Rule
424(b) promptly after execution and delivery of the Price Determination
Agreement. The term "Registration Statement" means the registration statement
as amended at the time it became effective (the "Effective Date"), including
financial statements and all exhibits and any information deemed to be included
by Rule 430A or Rule 434 of the Rules and Regulations. The term "Prospectus"
means, collectively, the Prospectus included in the Registration Statement at
the Effective Date together with the Preliminary Prospectus Supplement and the
Prospectus Supplement, in each case as filed with the Commission. Any reference
herein to the Registration Statement, the Base Prospectus, the Preliminary
Prospectus Supplement or the Prospectus Supplement shall be deemed to refer to
and include the documents incorporated by reference therein pursuant to Item 12
of Form S-3 which were filed under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), on or before the Effective Date or the date of
such Preliminary Prospectus Supplement or the Prospectus Supplement, as the case
may be. Any reference herein to the terms "amend," "amendment" or "supplement"
with
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respect to the Registration Statement, the Base Prospectus any Preliminary
Prospectus Supplement or the Prospectus Supplement shall be deemed to refer to
and include the filing of any document under the Exchange Act after the
Effective Date, or the date of the Base Prospectus Supplement, the Preliminary
Prospectus Supplement or the Prospectus Supplement, as the case may be, and
deemed to be incorporated therein by reference.
(b) On the Effective Date, the date the Prospectus is first filed with
the Commission pursuant to Rule 424(b) (if required), at all times subsequent to
and including the Closing Date and, if later, the Option Closing Date, and when
any post-effective amendment to the Registration Statement becomes effective or
any amendment or supplement to the Prospectus is filed with the Commission, the
Registration Statement and the Prospectus (as amended or as supplemented if
the Company shall have filed with the Commission any amendment or supplement
thereto), including the financial statements included or incorporated by
reference in the Prospectus, did or will comply with all applicable provisions
of the Act, the Rules and Regulations, the Exchange Act and the rules and
regulations of the Commission thereunder (the "Exchange Act Rules and
Regulations") and will contain all statements required to be stated therein in
accordance with the Act, the Rules and Regulations, the Exchange Act and the
Exchange Act Rules and Regulations. On the Effective Date and when any post-
effective amendment to the Registration Statement becomes effective, no part of
the Registration Statement or any such amendment did or will contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein not
misleading. At the Effective Date, the date the Prospectus or any amendment or
supplement to the Prospectus is filed with the Commission and at the Closing
Date and, if later, the Option Closing Date, the Prospectus did not or will not
contain any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading. The foregoing representations and
warranties in this Section 3(b) do not apply to any statements or omissions made
in reliance on and in conformity with information relating to any Underwriter
furnished in writing to the Company by the Underwriters specifically for
inclusion in the Registration Statement or Prospectus or any amendment or
supplement thereto. For all purposes of this Agreement, the legend regarding
stabilization set forth on the inside front cover page of the Prospectus, the
names of the Underwriters and the amounts of the selling concession and
reallowance set forth in the Prospectus Supplement under the caption
"Underwriting" and the identification of counsel to the Underwriters in the
Prospectus Supplement under the caption "Legal Matters" constitute the only
information relating to any Underwriter furnished in writing to the Company by
the Underwriters specifically for inclusion in the Registration Statement, the
Base Prospectus, the Preliminary Prospectus Supplement or the Prospectus
Supplement. The Company has not distributed any offering material in connection
with
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the offering or sale of the Shares other than the Registration Statement, the
Prospectus or any other materials, if any, permitted by the Act.
(c) The documents which are incorporated by reference in the
Prospectus or from which information is so incorporated by reference, when they
become effective or were filed with the Commission, as the case may be, complied
in all material respects with the requirements of the Act or the Exchange Act,
as applicable, the Exchange Act Rules and Regulations and the Rules and
Regulations; and any documents so filed and incorporated by reference subsequent
to the Effective Date shall, when they are filed with the Commission, conform in
all material respects with the requirements of the Act and the Exchange Act, as
applicable, the Exchange Act Rules and Regulations and the Rules and
Regulations.
(d) The only subsidiaries (as defined in the Rules and Regulations) of
the Company are IMH Assets Corp. ("IMH Assets"), Imperial Warehouse Lending
Group, Inc. ("IWLG"), ICI Funding Corporation ("ICIFC") and ICIFC Secured Assets
Corp. ("SAC") (collectively, the "Subsidiaries"). The Company and each of its
Subsidiaries is, and at the Closing Date and, if later, the Option Closing Date,
will be, a corporation duly organized, validly existing and in good standing
under the laws of its jurisdiction of incorporation. The Company and each of
its Subsidiaries has, and at the Closing Date and, if later, the Option Closing
Date, will have, full power and authority to conduct all the activities
conducted by it, to own or lease all the assets owned or leased by it and to
conduct its business as described in the Registration Statement and the
Prospectus. The Company and each of its Subsidiaries is, and at the Closing
Date and, if later, the Option Closing Date, will be, duly licensed or qualified
to do business and in good standing as a foreign corporation in all
jurisdictions in which the nature of the activities conducted by it or the
character of the assets owned or leased by it makes such licensing or
qualification necessary, except where the failure to so qualify will not have a
material adverse effect on the Company or any of its Subsidiaries or their
respective business, properties, business prospects, condition (financial or
otherwise) or results of operations (a "Material Adverse Effect"). All of the
outstanding shares of the capital stock of the Subsidiaries have been duly
authorized and validly issued and are fully paid and non-assessable and are
owned by the Company or a Subsidiary (other than the outstanding common stock of
ICIFC, which is owned by Xxxxxx X. Xxxxxxxxx, Xxxxxxx X. Xxxxxxx and Xxxxxxx X.
Xxxxxxx), to the extent and as is described in the Prospectus, free and clear of
all liens, encumbrances and claims whatsoever. Except for the stock of the
Subsidiaries and as disclosed in the Registration Statement, the Company does
not own, and at the Closing Date and, if later, the Option Closing Date, will
not own, directly or indirectly, any shares of stock or any other equity or
long-term debt securities of any corporation or have any equity interest in any
firm, partnership, joint venture, association or other entity. The outstanding
shares of preferred stock of
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ICIFC have the rights and preferences described in the Prospectus. Complete and
correct copies of the charter and of the by-laws of the Company and its
Subsidiaries and all amendments thereto have been filed as exhibits to the
Registration Statement or delivered to the Underwriters, and no changes therein
will be made subsequent to the date hereof and prior to the Closing Date or, if
later, the Option Closing Date, except such as the Underwriters shall approve.
(e) All of the outstanding shares of Common Stock have been, and the
Shares to be issued and sold by the Company upon such issuance will be, duly
authorized, validly issued, fully paid and nonassessable and will not be subject
to any preemptive or similar right. The description of the Common Stock in the
Registration Statement and the Prospectus is, and at the Closing Date and, if
later, the Option Closing Date, will be, complete and accurate in all respects.
Except as set forth in the Prospectus, there are no, and at the Closing Date
and, if later, the Option Closing Date, will not be, any options to purchase, or
any rights or warrants to subscribe for, or any securities or obligations
convertible into, or any contracts, commitments, plans or arrangements to issue
or sell, any shares of capital stock of the Company, any shares of capital stock
of any Subsidiary or any such warrants, convertible securities or obligations.
The descriptions of the Company's stock option and other stock plans or
arrangements, and the options or other rights granted and exercised thereunder,
set forth in the Prospectus accurately present the information required to be
shown with respect to such plans, arrangements, options and rights.
(f) The financial statements and schedules included or incorporated by
reference in the Registration Statement or the Prospectus present the
consolidated financial condition of the Company and ICIFC as of the respective
dates thereof and the consolidated results of operations and cash flows of the
Company and ICIFC for the respective periods covered thereby, all in conformity
with generally accepted accounting principles applied on a consistent basis
throughout the entire period involved, except as otherwise disclosed in the
Prospectus. No other financial statements or schedules of the Company or ICIFC
are required by the Act, the Exchange Act, the Exchange Act Rules and
Regulations or the Rules and Regulations to be included in the Registration
Statement or the Prospectus. KPMG Peat Marwick, LLP (the "Accountants"), who
have reported on such financial statements and schedules, are independent
accountants with respect to the Company as required by the Act and the Rules and
Regulations. The statements included in the Registration Statement with respect
to the Accountants pursuant to Item 509 of Regulation S-K of the Rules and
Regulations are true and correct in all material respects. The selected
financial data set forth in the Prospectus under the captions "Capitalization"
and "Selected Financial Data" fairly present the information set forth therein
on the basis stated therein.
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(g) Each of the Company and its Subsidiaries maintains a system of
internal accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or specific
authorization; (ii) transactions are recorded as necessary to permit preparation
of financial statements in conformity with generally accepted accounting
principles and to maintain accountability for assets; (iii) access to assets is
permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability of assets is compared with
existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(h) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus and prior to the Closing
Date and, if later, the Option Closing Date, except as set forth in or
contemplated by the Registration Statement and the Prospectus, (i) there has not
been and will not have been any change in the capitalization of the Company or
any of its Subsidiaries, or in the business, properties, business prospects,
condition (financial or otherwise) or results of operations of the Company and
its Subsidiaries, arising for any reason whatsoever, (ii) neither the Company
nor any of its Subsidiaries has incurred nor will it incur any material
liabilities or obligations, direct or contingent, nor has it entered into nor
will it enter into any material transactions other than pursuant to this
Agreement and the transactions referred to herein and (iii) neither the Company
nor any of its Subsidiaries has and none of them will have paid or declared any
dividends or other distributions of any kind on any class of their respective
classes of capital stock.
(i) Neither of the Company nor any of its Subsidiaries is, and if
operated in the manner described in the Prospectus will not be, an "investment
company," an entity "controlled" by an "investment company" or an "affiliated
person" of, or "promoter" or "principal underwriter" for, an "investment
company," as such terms are defined in the Investment Company Act of 1940, as
amended (the "Investment Company Act").
(j) Except as set forth in the Registration Statement and the
Prospectus, there are no actions, suits or proceedings pending or, to the
knowledge of the Company, threatened against or affecting the Company or any of
its Subsidiaries or any of their respective officers in their capacity as such,
before or by any Federal or state court, commission, regulatory body,
administrative agency or other governmental body, domestic or foreign, wherein
an unfavorable ruling, decision or finding might result in a Material Adverse
Effect.
(k) The Company and each of its Subsidiaries has, and at the Closing
Date and, if later, the Option Closing Date, will have, (i) all governmental
licenses, permits, consents, orders, approvals and other authorizations
necessary to
9
carry on its business as contemplated in the Prospectus, (ii) complied in all
respects with all laws, regulations and orders applicable to it or its business
and (iii) performed all its obligations required to be performed by it, and is
not, and at the Closing Date and, if later, the Option Closing Date, will not
be, in default, under any indenture, mortgage, deed of trust, voting trust
agreement, loan agreement, bond, debenture, note agreement, lease, contract or
other agreement or instrument (collectively, a "contract or other agreement") to
which it is a party or by which its property is bound or affected, the effect of
any of which, individually or in the aggregate, might result in a Material
Adverse Effect. To the knowledge of the Company and each of its Subsidiaries, no
other party under any contract or other agreement to which it is a party is in
default in any respect thereunder. Neither the Company nor any of its
Subsidiaries is, nor at the Closing Date and, if later, the Option Closing Date,
will any of them be, in violation of any provision of its charter or by-laws.
(l) The Company has full corporate power and authority to enter into
this Agreement. This Agreement has been duly authorized, executed and delivered
by the Company and constitutes a valid and binding agreement of the Company and
is enforceable against the Company in accordance with its terms, except as the
enforceability hereof may be limited by applicable bankruptcy, insolvency,
reorganization and similar laws affecting creditors' rights generally and
moratorium laws in effect from time to time and by equitable principles
restricting the availability of equitable remedies. The execution and delivery
by the Company of, and the performance by the Company of its obligations
under, this Agreement, the consummation of the transactions contemplated hereby
and the application of the net proceeds from the offering and sale of the Shares
to be sold by the Company in the manner set forth in the Prospectus under the
caption "Use of Proceeds" will not result in the creation or imposition of any
lien, charge or encumbrance upon any of the assets of the Company or any of its
Subsidiaries pursuant to the terms or provisions of, or result in a breach or
violation of any of the terms or provisions of, or constitute a default under,
or give any other party a right to terminate any of its obligations under, or
result in the acceleration of any obligation under, the charter or by-laws of
the Company or any of its Subsidiaries, any contract or other agreement to
which the Company or any of its Subsidiaries is a party or by which the Company
or any of its Subsidiaries or any of its properties is bound or affected, or
violate or conflict with any judgment, ruling, decree, order, statute, rule or
regulation of any court or other governmental agency or body applicable to the
business or properties of the Company or any of its Subsidiaries the effect of
any of which, individually or in the aggregate, might have a Material Adverse
Effect.
(m) No consent, approval, authorization or order of, or any filing or
declaration with, any court or governmental agency or body is required in
connection with the authorization, issuance, transfer, sale or delivery of the
Shares by
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the Company, in connection with the execution, delivery and performance of this
Agreement by the Company or in connection with the taking by the Company of any
other action contemplated hereby, except such as have been obtained under the
Act or the Rules and Regulations and such as may be required under state
securities or Blue Sky laws or the by-laws and rules of the National Association
of Securities Dealers, Inc. (the "NASD") in connection with the purchase and
distribution by the Underwriters of the Shares.
(n) The Company and each of its Subsidiaries has good and marketable
title to all properties and assets described in the Prospectus as owned by it,
free and clear of all liens, charges, encumbrances, mortgages, security
interests, claims or restrictions, except such as are described in, or
contemplated by, the Prospectus. The Company and each of its Subsidiaries has
valid, subsisting and enforceable leases for the properties described in the
Prospectus as leased by it, with such exceptions as are not material and do not
materially interfere with the use made and proposed to be made of such
properties by the Company and such Subsidiaries.
(o) There is no document or contract of a character required to be
described in the Registration Statement or the Prospectus or to be filed as an
exhibit to the Registration Statement which is not described or filed as
required. All such contracts to which the Company or any Subsidiary is a party
have been duly authorized, executed and delivered by the Company or such
Subsidiary, constitute valid and binding agreements of the Company or such
Subsidiary and are enforceable against the Company or such Subsidiary in
accordance with the terms thereof.
(p) No statement, representation, warranty or covenant made by the
Company in this Agreement or made in any certificate or document required by
this Agreement to be delivered to the Underwriters was or will be, when made,
inaccurate, untrue or incorrect.
(q) Neither the Company nor any of its directors, officers or
controlling persons has taken, directly or indirectly, any action intended, or
which might reasonably be expected, to cause or result, under the Act or
otherwise, in, or which has constituted, stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of the
Shares.
(r) No holder of securities of the Company has rights to the
registration of any securities of the Company because of the filing of the
Registration Statement.
(s) The Shares are duly authorized for listing, subject to official
notice of issuance, on the American Stock Exchange.
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(t) Neither the Company nor any of its Subsidiaries is involved in any
material labor dispute nor, to the knowledge of the Company, is any such dispute
threatened.
(u) The Company and its Subsidiaries own, or are licensed or otherwise
have the full exclusive right to use, all material trademarks and trade names
which are used in or necessary for the conduct of their respective businesses as
described in the Prospectus. No claims have been asserted by any person to the
use of any such trademarks or trade names or challenging or questioning the
validity or effectiveness of any such trademark or trade name. The use, in
connection with the business and operations of the Company and its Subsidiaries,
of such trademarks and trade names does not, to the Company's knowledge,
infringe on the rights of any person.
(v) Neither the Company nor any of its Subsidiaries nor, to the
knowledge of the Company, any officer, director, employee or agent acting on
behalf of the Company or any of its Subsidiaries has at any time (i) made any
contributions to any candidate for political office in violation of law, or
failed to disclose fully any contributions to any candidate for political office
in accordance with any applicable statute, rule, regulation or ordinance
requiring such disclosure, (ii) made any payment to any local, state, federal or
foreign governmental officer or official, or other person charged with similar
public or quasi-public duties, other than payments required or allowed by
applicable law, (iii) made any payment outside the ordinary course of business
to any purchasing or selling agent or person charged with similar duties of any
entity to which the Company or any Subsidiary sells or from which the Company or
any Subsidiary buys products for the purpose of influencing such agent or person
to buy products from or sell products to the Company or such Subsidiary, or (iv)
except as described in the Prospectus, engaged in any transaction, maintained
any bank account or used any corporate funds except for transactions, bank
accounts and funds which have been and are reflected in the normally maintained
books and records of the Company or such Subsidiary.
(w) As of the Closing Date and, if later, the Option Closing Date, the
Company and its Subsidiaries shall be insured by insurers of recognized
financial responsibility against such losses and risks and in such amounts as
are prudent and customary in the business in which it engages as described in
the Prospectus; neither the Company nor any Subsidiary has been refused any
insurance coverage sought or applied for; and the Company has no reason to
believe that it or any Subsidiary will not be able to renew its existing
insurance coverage as and when such coverage expires or to obtain similar
coverage from similar insurers as may be necessary to continue its proposed
business at a cost that would not result in a Material Adverse Effect.
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(x) As of the Closing Date and, if later, the Option Closing Date, the
Company shall be, and if operated in the manner described in the Prospectus
shall remain, qualified as a real estate investment trust ("REIT") under
Sections 856 through 860 of the Internal Revenue Code of 1986, as amended (the
"Code"), and intends to operate in a manner so as to continue to remain so
qualified.
(y) The Company has complied, and until the completion of the
distribution of the Shares will comply, with all of the provisions of
(including, without limitation, filing all forms required by) Section 517.075 of
the Florida Securities and Investor Protection Act and regulation 3E-900.001
issued thereunder with respect to the offering and sale of the Shares.
(z) Neither the Company nor any of its Subsidiaries is, and if
operated in the manner described in the Prospectus will not be, a "broker"
within the meaning of Section 3(a)(4) of the Exchange Act or a "dealer" within
the meaning of Section 3(a)(5) of the Exchange Act or required to be registered
pursuant to Section 15(a) of the Exchange Act.
4. Representations and Warranties of the Selling Shareholders.
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Each Selling Shareholder, jointly and severally, represents, warrants
and covenants to each Underwriter that:
(a) Such Selling Shareholder has full power and authority to enter
into this Agreement and the Agreement and Power of Attorney. All authorizations
and consents necessary for the execution and delivery by such Selling
Shareholder of the Agreement and Power of Attorney, and for the execution of
this Agreement on behalf of such Selling Shareholder, have been given. Each of
the Agreement and Power of Attorney and this Agreement has been duly authorized,
executed and delivered by or on behalf of such Selling Shareholder and
constitutes a valid and binding agreement of such Selling Shareholder and is
enforceable against such Selling Shareholders in accordance with the terms
thereof and hereof.
(b) Such Selling Shareholder now has, and at the time of delivery
thereof hereunder will have, (i) good and marketable title to the Shares to be
sold by such Selling Shareholder hereunder, free and clear of all liens,
encumbrances and claims whatsoever (other than pursuant to the Agreement and
Power of Attorney), and (ii) full legal right and power, and all authorizations
and approvals required by law, to sell, transfer and deliver such Shares to the
Underwriters hereunder and to make the representations, warranties and
agreements made by such Selling Shareholder herein. Upon the delivery of and
payment for such Shares hereunder, such Selling
13
Shareholder will deliver good and marketable title thereto, free and clear of
all liens, encumbrances and claims whatsoever.
(c) On the Closing Date, all stock transfer or other taxes (other than
income taxes) which are required to be paid in connection with the sale and
transfer of the Shares to be sold by such Selling Shareholder to the several
Underwriters hereunder will have been fully paid or provided for by such Selling
Shareholder and all laws imposing such taxes will have been fully complied with.
(d) The performance of this Agreement and the consummation of the
transactions contemplated hereby will not result in the creation or imposition
of any lien, charge or encumbrance upon any of the assets of such Selling
Shareholder pursuant to the terms or provisions of, or result in a breach or
violation of any of the terms or provisions of, or constitute a default under,
or result in the acceleration of any obligation under the organizational
documents of such Selling Shareholder or any contract or other agreement to
which such Selling Shareholder is a party or by which such Selling Shareholder
or any of its property is bound or affected, or under any ruling, decree,
judgment, order, statute, rule or regulation of any court or other governmental
agency or body having jurisdiction over such Selling Shareholder or the property
of such Selling Shareholder.
(e) No consent, approval, authorization or order of, or any filing or
declaration with, any court or governmental agency or body is required for the
consummation by such Selling Shareholder of the transactions on its part
contemplated herein and in the Agreement and Power of Attorney, except such as
have been obtained under the Act or the Rules and Regulations and such as may be
required under state securities or Blue Sky laws or the by-laws and rules of the
NASD in connection with the purchase and distribution by the Underwriters of the
Shares to be sold by such Selling Shareholder.
(f) All information with respect to such Selling Shareholder contained
in the Registration Statement and the Prospectus (as amended or supplemented, if
the Company shall have filed with the Commission any amendment or supplement
thereto) complied and will comply with all applicable provisions of the Act and
the Rules and Regulations, contains and will contain all statements required to
be stated therein in accordance with the Act and the Rules and Regulations, and
does 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 in order to
make the statements therein not misleading.
(g) Other than as permitted by the Act and the Rules and Regulations,
such Selling Shareholder has not distributed and will not distribute any
14
preliminary prospectus, the Base Prospectus, the Preliminary Prospectus
Supplement, the Prospectus Supplement or any other offering material in
connection with the offering and sale of the Shares. Such Selling Shareholder
has not taken, directly or indirectly, any action intended, or which might
reasonably be expected, to cause or result in, under the Act or otherwise, or
which has caused or resulted in, stabilization or manipulation of the price of
any security of the Company to facilitate the sale or resale of the Shares.
(h) Certificates in negotiable form for the Firm Shares to be sold
hereunder by such Selling Shareholder have been placed in custody, for the
purpose of making delivery of such Firm Shares under this Agreement, under the
Agreement and Power of Attorney which appoints the Company as custodian for each
Selling Shareholder. Such Selling Shareholder agrees that the Shares
represented by the certificates held in custody for it under the Agreement and
Power of Attorney are for the benefit of and coupled with and subject to the
interest hereunder of the Company, the Attorneys-in-Fact, the Underwriters and
each other Selling Shareholder, that the arrangements made by such Selling
Shareholder for such custody and the appointment of the Company as custodian and
the Attorneys-in-Fact by such Selling Shareholder are irrevocable, and that the
obligations of such Selling Shareholder hereunder shall not be terminated by
operation of law, whether by the termination, winding-up or liquidation of any
Selling Shareholder or the occurrence of any other event. If any Selling
Shareholder should be terminated, wound-up or liquidated or if any other such
event should occur before the delivery of the Shares hereunder, certificates for
the Shares shall be delivered by the Company in accordance with the terms and
conditions of this Agreement and actions taken by any Attorney-in-Fact and the
Company pursuant to the Agreement and Power of Attorney shall be as valid as if
such termination, winding-up, liquidation or other event had not occurred,
regardless of whether or not the Company or any Attorney-in-Fact, or any of
them, shall have received notice thereof.
5. Agreements of the Company and the Selling Shareholders.
------------------------------------------------------
The Company and the Selling Shareholders (as to Sections 5(p), 5(q),
5(r) and 5(s)) agrees with the several Underwriters as follows:
(a) The Company will cause the Prospectus Supplement to be filed as
required by Section 3(a) hereof (but only if the Underwriters have not
reasonably objected thereto by notice to the Company after having been furnished
a copy within a reasonable time prior to filing). The Company will not, either
prior to the Effective Date or thereafter during such period as the Prospectus
is required by law to be delivered in connection with sales of the Shares by an
Underwriter or dealer, file any amendment or supplement to the Registration
Statement or the Prospectus, unless a
15
copy thereof shall first have been submitted to the Underwriters within a
reasonable period of time prior to the filing thereof and the Underwriters shall
not have objected thereto in good faith.
(b) The Company will notify the Underwriters promptly, and will
confirm such advice in writing, (1) when any post-effective amendment to the
Registration Statement becomes effective, (2) of any request by the Commission
for amendments or supplements to the Registration Statement or the Prospectus or
for additional information, (3) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose or the threat thereof, (4) of the
happening of any event during the period mentioned in the second sentence of
Section 5(e) that in the judgment of the Company makes any statement made in the
Registration Statement or the Prospectus untrue or that requires the making of
any changes in the Registration Statement or the Prospectus in order to make
the statements therein, in light of the circumstances in which they are made,
not misleading and (5) of receipt by the Company or any representative or
attorney of the Company of any other communication from the Commission relating
to the Company, the Registration Statement, any preliminary prospectus or the
Prospectus. If at any time the Commission shall issue any order suspending the
effectiveness of the Registration Statement, the Company will make every
reasonable effort to obtain the withdrawal of such order at the earliest
possible moment. The Company will prepare and file with the Commission,
promptly upon the Underwriters request, any amendments or supplements to the
Registration Statement or Prospectus that, in the Underwriters reasonable
opinion, may be necessary or advisable in connection with the distribution of
the Shares by the Underwriters.
(c) The Company will furnish to each of the Underwriters, without
charge, one signed copy of the Registration Statement and of any post-effective
amendment thereto (including any document filed under the Exchange Act and
deemed to be incorporated by reference into the Prospectus), including financial
statements and schedules, and all exhibits thereto.
(d) The Company will comply with all the provisions of any
undertakings contained in the Registration Statement.
(e) As soon as possible after the delivery and execution of this
Agreement and the Price Determination Agreement, and thereafter from time to
time, the Company will deliver to each of the Underwriters, without charge, as
many copies of the Prospectus or any amendment or supplement thereto as the
Underwriters may reasonably request. The Company consents to the use of the
Prospectus or any amendment or supplement thereto by the several Underwriters
and by all dealers to
16
whom the Shares may be sold, both in connection with the offering or sale of the
Shares and for any period of time thereafter during which the Prospectus is
required by law to be delivered in connection therewith. If during such period
of time any event shall occur which in the judgment of the Company or counsel to
the Underwriters should be set forth in the Prospectus in order to make any
statement therein, in the light of the circumstances under which it was made,
not misleading, or if it is necessary to supplement or amend the Prospectus to
comply with law, the Company will forthwith prepare and duly file with the
Commission an appropriate supplement or amendment thereto, and will deliver to
each of the Underwriters, without charge, such number of copies thereof as the
Underwriters may reasonably request. The Company shall not file any document
under the Exchange Act before the termination of the offering of the Shares by
the Underwriters if such document would be deemed to be incorporated by
reference into the Prospectus which is not approved by the Underwriters after
reasonable notice thereof.
(f) Prior to any public offering of the Shares by the Underwriters,
the Company will cooperate with the Underwriters and counsel to the Underwriters
in connection with the registration or qualification of the Shares for offer and
sale under the securities or Blue Sky laws of such jurisdictions as the
Underwriters may request; provided, that in no event shall the Company be
obligated to qualify to do business in any jurisdiction where it is not now so
qualified or to take any action which would subject it to general service of
process or taxation in any jurisdiction where it is not now so subject. The
Company will advise the Underwriters promptly of the suspension of the
qualification or registration of (or any such exemption relating to) the Common
Stock 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 the cooperation of the Underwriters, will make every reasonable
effort to obtain the withdrawal thereof.
(g) During the period of five years commencing on the Effective Date,
the Company will furnish to the Underwriters copies of such financial statements
and other periodic and special reports as the Company may from time to time
distribute generally to the holders of any class of its capital stock, and will
furnish to the Underwriters a copy of each annual or other report it shall be
required to file with the Commission.
(h) The Company will make generally available to holders of its
securities as soon as may be practicable but in no event later than the last day
of the fifteenth full calendar month following the calendar quarter in which the
effective date falls, an earnings statement (which need not be audited but shall
be in reasonable detail) for a period of 12 months ended commencing after the
effective date, and satisfying the
17
provisions of Section 11(a) of the Act (including Rule 158 of the Rules and
Regulations). For the purposes of this paragraph, the term "effective date"
shall have the meaning given such term in Rule 158 of the Rules and Regulations.
(i) Whether or not the transactions contemplated by this Agreement are
consummated or this Agreement is terminated, the Company will pay, or reimburse
if paid by the Underwriters, all costs and expenses incident to the performance
of the obligations of the Company and the Selling Shareholders under this
Agreement, including but not limited to costs and expenses of or relating to (1)
the preparation, printing and filing of the Registration Statement and exhibits
to it, the Prospectus and any amendment or supplement to the Registration
Statement or the Prospectus, (2) the preparation and delivery of certificates
representing the Shares, (3) the printing of this Agreement, the Agreement Among
Underwriters, any Dealer Agreements, any Underwriters' Questionnaire and the
Agreement and Power of Attorney, (4) furnishing (including costs of shipping,
mailing and courier) such copies of the Registration Statement, the Prospectus
and any preliminary prospectus, and all amendments and supplements thereto, as
may be requested for use in connection with the offering and sale of the Shares
by the Underwriters or by dealers to whom Shares may be sold, (5) the listing of
the Shares on the American Stock Exchange, (6) any filings required to be made
by the Underwriters with the NASD, and the fees, disbursements and other charges
of counsel for the Underwriters in connection therewith, (7) the registration
or qualification of the Shares for offer and sale under the securities or Blue
Sky laws of such jurisdictions designated pursuant to Section 5(f), including
the fees, disbursements and other charges of counsel to the Underwriters in
connection therewith, and the preparation and printing of preliminary,
supplemental and final Blue Sky memoranda, (8) counsel to the Company, (9) the
transfer agent for the Shares and (10) the Accountants.
(j) The Company will not use the proceeds of the sale of the Shares in
such a manner as to require the Company to be registered under the Investment
Company Act.
(k) The Company will not at any time, directly or indirectly, take any
action intended, or which might reasonably be expected, to cause or result in,
or which will constitute, stabilization of the price of the shares of Common
Stock to facilitate the sale or resale of any of the Shares.
(l) The Company will apply the net proceeds from the offering and sale
of the Shares to be sold by the Company in the manner set forth in the
Prospectus under the caption "Use of Proceeds" and shall make such statements or
reports to the Commission with respect to the sale of the Shares and the
application of
18
the proceeds therefrom as may be required in accordance with the Act, the
Exchange Act, the Exchange Act Rules and Regulations and the Rules and
Regulations.
(m) The Company will not for a period of 90 days after the
commencement of the public offering of the Shares, without the prior written
consent of PaineWebber Incorporated, sell, contract to sell, grant any option to
sell, or otherwise dispose of any shares of Common Stock or securities
convertible into or exchangeable for Common Stock or warrants or other rights to
acquire shares of Common Stock, other than pursuant to stock option plans or in
connection with other employee incentive compensation arrangements.
(n) The Company will not invest in futures contracts, options on
futures contracts or options on commodities unless the Company is exempt from
the registration requirements of the Commodity Exchange Act, as amended (the
"Commodity Act"), or otherwise complies with the Commodity Act. The Company
will not engage in any activities bearing on the Commodity Act, unless such
activities are exempt from the Commodity Act or otherwise comply with the
Commodity Act.
(o) If this Agreement shall be terminated by the Company or the
Selling Shareholders pursuant to any of the provisions hereof (otherwise than
pursuant to Section 9) or if for any reason the Company or any Selling
Shareholder shall be unable to perform its obligations hereunder, the Company
will reimburse the several Underwriters for all out-of-pocket expenses
(including the fees, disbursements and other charges of counsel to the
Underwriters) reasonably incurred by them in connection herewith.
(p) As soon as any Selling Shareholder is advised thereof, such
Selling Shareholder will advise the Underwriters and confirm such advice in
writing, (1) of receipt by such Selling Shareholder of any communication from
the Commission relating to the Selling Shareholders in connection with their
participation in the offering of the Shares hereunder and (2) of the happening
of any event during the period from and after the Effective Date that in the
judgment of such Selling Shareholder makes any statement relating to such
Selling Shareholder made in the Registration Statement or the Prospectus untrue
or that requires the making of any changes in the Registration Statement or the
Prospectus in order to make the statements relating to such Selling Shareholder
therein, in light of the circumstances in which they were made, not misleading.
(q) The Selling Shareholders will deliver to the Underwriters prior to
or on the Effective Date a properly completed and executed United States
Treasury Department Form W-9 (or other applicable form or statement specified by
Treasury Department regulations in lieu thereof).
19
6. Conditions of the Obligations of the Underwriters.
-------------------------------------------------
In addition to the execution and delivery of the Price Determination
Agreement, the obligations of each Underwriter hereunder are subject to the
following conditions:
(a) The Prospectus shall have been filed as required by Section 3(a)
hereof and (i) no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall be
pending or threatened by the Commission, (ii) no order suspending the
effectiveness of the Registration Statement shall be in effect and no proceeding
for such purpose shall be pending before or threatened or contemplated by the
Commission, (iii) any request for additional information on the part of the
staff of the Commission shall have been complied with to the satisfaction of the
staff of the Commission and (iv) after the date hereof no amendment or
supplement to the Registration Statement or the Prospectus shall have been
filed unless a copy thereof was first submitted to the Underwriters and the
Underwriters did not object thereto in good faith, and the Underwriters shall
have received certificates, dated the Closing Date and, if later, the Option
Closing Date, and signed by the Chief Executive Officer or the Chairman of the
Board of Directors of the Company and the Chief Financial Officer of the Company
(who may, as to proceedings threatened, rely upon the best of their information
and belief), to the effect of clauses (i), (ii) and (iii).
(b) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, (i) there shall not have been, and no
development shall have occurred which could reasonably be expected to result in,
a material adverse change in the general affairs, capital stock, indebtedness,
business, business prospects, properties, management, condition (financial or
otherwise) or results of operations of the Company and its Subsidiaries, taken
as a whole, whether or not arising from transactions in the ordinary course of
business, in each case other than as set forth in or contemplated by the
Registration Statement and the Prospectus and (ii) none of the Company or any of
its Subsidiaries shall have sustained any material loss or interference with its
business or properties from fire, explosion, flood or other casualty, whether or
not covered by insurance, or from any labor dispute or any court or legislative
or other governmental action, order or decree, which is not set forth in the
Registration Statement and the Prospectus, if in the judgment of the
Underwriters any such development makes it impracticable or inadvisable to
consummate the sale and delivery of the Shares by the Underwriters at the
initial public offering price.
(c) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there shall have been no litigation
or other proceeding instituted against the Company or any of its Subsidiaries or
any of
20
their respective officers or directors in their capacities as such, before or by
any Federal, state or local court, commission, regulatory body, administrative
agency or other governmental body, domestic or foreign, in which litigation or
proceeding an unfavorable ruling, decision or finding would materially and
adversely affect the business, properties, business prospects, condition
(financial or otherwise) or results of operations of the Company and its
Subsidiaries, taken as a whole.
(d) Each of the representations and warranties of the Company and the
Selling Shareholders contained herein shall be true and correct in all material
respects at the Closing Date and, with respect to the Option Shares, at the
Option Closing Date, as if made at the Closing Date and, with respect to the
Option Shares, at the Option Closing Date, and all covenants and agreements
herein contained to be performed on the part of the Company and the Selling
Shareholders and all conditions herein contained to be fulfilled or complied
with by the Company and the Selling Shareholders at or prior to the Closing Date
and, with respect to the Option Shares, at or prior to the Option Closing Date,
shall have been duly performed, fulfilled or complied with.
(e) The Underwriters shall have received an opinion, dated the Closing
Date and, with respect to the Option Shares, the Option Closing Date, and
satisfactory in form and substance to counsel for the Underwriters, from
Freshman, Marantz, Orlanski, Xxxxxx & Xxxxx, counsel to the Company and its
Subsidiaries, to the effect set forth in Exhibit C and from Xxxxx Xxxxxx,
General Counsel of ICII, to the effect set forth in Exhibit D.
(f) The Underwriters shall have received an opinion, dated the Closing
Date and, with respect to the Option Shares, the Option Closing Date, from Xxxx,
Weiss, Rifkind, Xxxxxxx & Xxxxxxxx, counsel to the Underwriters, with respect to
the Registration Statement, the Prospectus and this Agreement, which opinion
shall be satisfactory in all respects to the Underwriters.
(g) On the date of the Prospectus Supplement, the Accountants shall
have furnished to the Underwriters a letter, dated the date of its delivery,
addressed to the Underwriters and in form and substance satisfactory to the
Underwriters, confirming that they are independent accountants with respect to
the Company as required by the Act and the Rules and Regulations and with
respect to the financial and other statistical and numerical information
contained in the Registration Statement or incorporated by reference therein.
At the Closing Date and, as to the Option Shares, the Option Closing Date, the
Accountants shall have furnished to the Underwriters a letter, dated the date of
its delivery, which shall confirm, on the basis of a review in accordance with
the procedures set forth in the letter from the Accountants, that nothing has
come to their attention during the period from the date of the
21
letter referred to in the prior sentence to a date (specified in the letter) not
more than three days prior to the Closing Date and, as to the Option Shares, the
Option Closing Date, as the case may be, which would require any change in their
letter referred to in the prior sentence, if it were required to be dated and
delivered at the Closing Date and the Option Closing Date.
(h) At the Closing Date and, as to the Option Shares, the Option
Closing Date, there shall be furnished to the Underwriters an accurate
certificate, dated the date of its delivery, signed by each of the Chief
Executive Officer and the Chief Financial Officer of the Company, in form and
substance satisfactory to the Underwriters, to the effect that:
(i) Each signer of such certificate has carefully examined the
Registration Statement and the Prospectus (including any documents filed
under the Exchange Act and deemed to be incorporated by reference into the
Prospectus) and (A) as of the date of such certificate, such documents are
true and correct in all material respects and do not omit to state a
material fact required to be stated therein or necessary in order to make
the statements therein not untrue or misleading and (B) in the case of the
certificate delivered at the Closing Date and, as to any Option Shares, the
Option Closing Date, since the Effective Date no event has occurred as a
result of which it is necessary to amend or supplement the Prospectus in
order to make the statements therein not untrue or misleading in any
material respect and there has been no document required to be filed under
the Exchange Act and the Exchange Act Rules and Regulations that upon such
filing would be deemed to be incorporated by reference into the Prospectus
that has not been so filed.
(ii) Each of the representations and warranties of the
Company contained in this Agreement were, when originally made, and are, at
the time such certificate is delivered, true and correct in all material
respects.
(iii) Each of the covenants required herein to be performed by
the Company on or prior to the delivery of such certificate has been duly,
timely and fully performed and each condition herein required to be
complied with by the Company on or prior to the date of such certificate
has been duly, timely and fully complied with.
(i) At the Closing Date, there shall have been furnished to the
Underwriters an accurate certificate, dated the date of its delivery, signed by
an Attorney-in-Fact on behalf of each of the Selling Shareholders, in form and
substance satisfactory to the Underwriters, to the effect that the
representations and warranties of each of the Selling Shareholders contained
herein are true and correct in all material
22
respects on and as of the date of such certificate as if made on and as of the
date of such certificate, and each of the covenants and conditions required
herein to be performed or complied with by the Selling Shareholders on or prior
to the date of such certificate has been duly, timely and fully performed or
complied with.
(j) No proceeding by any state securities commission with respect to
the Company shall be in effect on the Closing Date or the Option Closing Date.
(k) Prior to the Closing Date, the Shares shall have been duly
authorized for listing by the American Stock Exchange upon official notice of
issuance.
(l) The Company and the Selling Shareholders shall have furnished to
the Underwriters such certificates, in addition to those specifically mentioned
herein, as the Underwriters may have reasonably requested as to the accuracy and
completeness at the Closing Date and the Option Closing Date of any statement in
the Registration Statement or the Prospectus or any documents filed under the
Exchange Act and deemed to be incorporated by reference into the Prospectus, as
to the accuracy at the Closing Date and, as to any Option Shares, the Option
Closing Date, of the representations and warranties of the Company and the
Selling Shareholders herein, as to the performance by the Company and the
Selling Shareholders of its and their obligations hereunder, or as to the
fulfillment of the conditions concurrent and precedent to the obligations
hereunder of the Underwriters.
7. Indemnification.
---------------
(a) (i) The Company will indemnify and hold harmless each Underwriter,
the directors, officers, employees and agents of each Underwriter and each
person, if any, who controls each Underwriter within the meaning of Section 15
of the Act or Section 20 of the Exchange Act, from and against any and all
losses, claims, liabilities, expenses and damages (including, without
limitation, any and all investigative, legal and other expenses reasonably
incurred in connection with, and any amount paid in settlement of, any action,
suit or proceeding between any of the indemnified parties and any indemnifying
parties or between any indemnified party and any third party, or otherwise, or
any claim asserted), as and when incurred, to which they, or any of them, may
become subject under the Act, the Exchange Act or other Federal or state
statutory law or regulation, at common law or otherwise, insofar as such losses,
claims, liabilities, expenses or damages arise out of or are based on (i) any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus or any amendment or supplement to the
Registration Statement or the Prospectus or in any documents filed under the
Exchange Act and deemed to be incorporated by reference into the Prospectus,
(ii) the omission
23
or alleged omission to state in such document a material fact required to be
stated in it or necessary to make the statements in it not misleading or (iii)
any act or failure to act or any alleged act or failure to act by an Underwriter
in connection with, or relating in any manner to, the Shares or the offering
contemplated hereby, and which is included as part of or referred to in any
loss, claim, liability, expense or damage arising out of or based upon matters
covered by clause (i) or (ii) above (provided that the Company shall not be
liable under this clause (iii) to the extent it is finally judicially determined
by a court of competent jurisdiction that such loss, claim, liability, expense
or damage resulted directly from any such acts or failures to act undertaken or
omitted to be taken by such underwriter through its gross negligence or willful
misconduct); provided that the Company will not be liable to the extent that
such loss, claim, liability, expense or damage arises from the sale of the
Shares in the public offering to any person by an Underwriter and is based on an
untrue statement or omission or alleged untrue statement or omission made in
reliance on and in conformity with information relating to any Underwriter
furnished in writing to the Company by the Underwriters expressly for inclusion
in the Registration Statement, any preliminary prospectus or the Prospectus; and
provided further that the Company will not be liable to any Underwriter, the
directors, officers, employees or agents of such Underwriter or any person
controlling such Underwriter with respect to any loss, claim, liability,
expense, charge or damage arising out of or based on any untrue statement or
alleged untrue statement or omission or alleged omission to state a material
fact in any Preliminary Prospectus Supplement which is corrected in the
Prospectus Supplement if the person asserting any such loss, claim, liability,
charge or damage purchased Shares from such Underwriter but was not sent or
given a copy of the Prospectus Supplement at or prior to the written
confirmation of the sale of such Shares to such Person. This indemnity agreement
will be in addition to any liability that the Company might otherwise have.
(ii) The Selling Shareholders agree, jointly and severally, to
indemnify and hold harmless each Underwriter, the directors, officers, employees
and agents of each Underwriter, each person, if any, who controls each
Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, the Company, each person, if any, who controls the Company within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act, each
director of the Company and each officer of the Company who signs the
Registration Statement to the same extent as the foregoing indemnity from the
Company to each Underwriter, but only insofar as losses, claims, liabilities,
expenses or damages arise out of or are based on any untrue statement or
omission or alleged untrue statement or omission made in reliance on and in
conformity with information relating to any Selling Shareholder furnished in
writing to the Company by the Selling Shareholder expressly for use in the
Registration Statement, any preliminary prospectus or the Prospectus. This
indemnity agreement will be in addition to any liability that the Selling
Shareholder might otherwise have. Notwithstanding the provisions of this
Section 7, the liability of each
24
Selling Shareholder under this Section 7(a)(ii) shall be limited to the net
proceeds received by such Selling Shareholder from the offering of the Shares
hereunder.
(b) Each Underwriter will indemnify and hold harmless the Company, the
Selling Shareholders, each person, if any, who controls the Company or the
Selling Shareholders within the meaning of Section 15 of the Act or Section 20
of the Exchange Act, each director of the Company and each officer of the
Company who signs the Registration Statement to the same extent as the foregoing
indemnity from the Company and the Selling Shareholders to each Underwriter, but
only insofar as losses, claims, liabilities, expenses or damages arise out of or
are based on any untrue statement or omission or alleged untrue statement or
omission made in reliance on and in conformity with information relating to any
Underwriter furnished in writing to the Company by the Underwriters expressly
for use in the Registration Statement, any preliminary prospectus or the
Prospectus. This indemnity will be in addition to any liability that each
Underwriter might otherwise have; provided, however, that in no case shall any
Underwriter be liable or responsible for any amount in excess of the
underwriting discounts and commissions received by such Underwriter.
(c) Any party that proposes to assert the right to be indemnified
under this Section 7 will, promptly after receipt of notice of commencement of
any action against such party in respect of which a claim is to be made against
an indemnifying party or parties under this Section 7, notify each such
indemnifying party of the commencement of such action, enclosing a copy of all
papers served, but the omission so to notify such indemnifying party will not
relieve it from any liability that it may have to any indemnified party under
the foregoing provisions of this Section 7 unless, and only to the extent that,
such omission results in the forfeiture of substantive rights or defenses by the
indemnifying party. If any such action is brought against any indemnified party
and it notifies the indemnifying party of its commencement, the indemnifying
party will be entitled to participate in and, to the extent that it elects by
delivering written notice to the indemnified party promptly after receiving
notice of the commencement of the action from the indemnified party, jointly
with any other indemnifying party similarly notified, to assume the defense of
the action, with counsel satisfactory to the indemnified party, and after notice
from the indemnifying party to the indemnified party of its election to assume
the defense, the indemnifying party will not be liable to the indemnified party
for any legal or other expenses except as provided below and except for the
reasonable costs of investigation subsequently incurred by the indemnified party
in connection with the defense. The indemnified party will have the right to
employ its own counsel (including local counsel) in any such action, but the
fees, expenses and other charges of such counsel will be at the expense of such
indemnified party unless (1) the employment of counsel by the indemnified party
has been authorized in writing by the indemnifying party, (2)
25
the indemnified party has reasonably concluded (based on advice of counsel) that
there may be legal defenses available to it or other indemnified parties that
are different from or in addition to those available to the indemnifying party,
(3) a conflict or potential conflict exists (based on advice of counsel to the
indemnified party) between the indemnified party and the indemnifying party (in
which case the indemnifying party will not have the right to direct the defense
of such action on behalf of the indemnified party) or (4) the indemnifying party
has not in fact employed counsel to assume the defense of such action within a
reasonable time after receiving notice of the commencement of the action, in
each of which cases the reasonable fees, disbursements and other charges of
counsel will be at the expense of the indemnifying party or parties. It is
understood that the indemnifying party or parties shall not, in connection with
any proceeding or related proceedings in the same jurisdiction, be liable for
the reasonable fees, disbursements and other charges of more than one separate
firm admitted to practice in such jurisdiction (and of more than one separate
firm admitted to practice in any other relevant jurisdiction) at any one time
for all such indemnified party or parties. All such fees, disbursements and
other charges will be reimbursed by the indemnifying party promptly as they are
incurred. An indemnifying party will not be liable for any settlement of any
action or claim effected without its written consent (which consent will not be
unreasonably withheld). No indemnifying party shall, without the prior written
consent of each indemnified party, settle or compromise or consent to the entry
of any judgment in any pending or threatened claim, action or proceeding
relating to the matters contemplated by this Section 7 (whether or not any
indemnified party is a party thereto), unless such settlement, compromise or
consent includes an unconditional release of each indemnified party from all
liability arising or that may arise out of such claim, action or proceeding.
Notwithstanding any other provision of this Section 7(c), if at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement effected without its written
consent if (i) such settlement is entered into more than 45 days after receipt
by such indemnifying party of the aforesaid request, (ii) such indemnifying
party shall have received notice of the terms of such settlement at least 30
days prior to such settlement being entered into and (iii) such indemnifying
party shall not have reimbursed such indemnified party in accordance with such
request prior to the date of such settlement.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in the foregoing
paragraphs of this Section 7 is applicable in accordance with its terms but for
any reason is held to be unavailable from the Company, the Selling Shareholders
or the Underwriters, the Company, the Selling Shareholders and the Underwriters
will contribute to the total losses, claims, liabilities, expenses and damages
(including any investigative, legal and other expenses reasonably incurred in
connection with, and any amount paid in settle-
26
ment of, any action, suit or proceeding or any claim asserted, but after
deducting any contribution received by the Company or the Selling Shareholders
from persons other than the Underwriters, such as persons who control the
Company or the Selling Shareholders within the meaning of the Act, officers of
the Company who signed the Registration Statement and directors of the Company,
who also may be liable for contribution) to which the Company or the Selling
Shareholders and any one or more of the Underwriters may be subject in such
proportion as shall be appropriate to reflect the relative benefits received by
the Company and the Selling Shareholders on the one hand and the Underwriters on
the other. The relative benefits received by the Company and the Selling
Shareholders on the one hand and the Underwriters on the other shall be deemed
to be in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company and the Selling Shareholders bear to
the total underwriting discounts and commissions received by the Underwriters,
in each case as set forth in the table on the cover page of the Prospectus
Supplement. If, but only if, the allocation provided by the foregoing sentence
is not permitted by applicable law, the allocation of contribution shall be made
in such proportion as is appropriate to reflect not only the relative benefits
referred to in the foregoing sentence but also the relative fault of the Company
and the Selling Shareholders, on the one hand, and the Underwriters, on the
other, with respect to the statements or omissions which resulted in such loss,
claim, liability, expense or damage, or action in respect thereof, as well as
any other relevant equitable considerations with respect to such offering. Such
relative fault shall be determined by reference to whether the untrue or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the Company or the
Underwriters, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company, the Selling Shareholders and the Underwriters agree that it would
not be just and equitable if contributions pursuant to this Section 7(d) were to
be 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 into account the equitable considerations referred to herein. The amount
paid or payable by an indemnified party as a result of the loss, claim,
liability, expense or damage, or action in respect thereof, referred to above in
this Section 7(d) shall be deemed to include, for purpose of this Section 7(d),
any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7(d), no Underwriter shall be
required to contribute any amount in excess of the underwriting discounts and
commissions received by it, and no person found guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) will be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute as provided in
this Section 7(d) are several in proportion to their respective underwriting
obligations and not joint. For purposes of
27
this Section 7(d), any person who controls a party to this Agreement within the
meaning of the Act will have the same rights to contribution as that party, and
each officer of the Company who signed the Registration Statement will have the
same rights to contribution as the Company, subject in each case to the
provisions hereof. Any party entitled to contribution, promptly after receipt of
notice of commencement of any action against such party in respect of which a
claim for contribution may be made under this Section 7(d), will notify any such
party or parties from whom contribution may be sought, but the omission so to
notify will not relieve the party or parties from whom contribution may be
sought from any other obligation it or they may have under this Section 7(d).
Except for a settlement entered into pursuant to the last sentence of Section
7(c) hereof, no party will be liable for contribution with respect to any action
or claim settled without its written consent (which consent will not be
unreasonably withheld).
(e) The indemnity and contribution agreements contained in this
Section 7 and the representations and warranties of the Company and the Selling
Shareholders contained in this Agreement, or in certificates or other
instruments delivered pursuant hereto, shall survive and remain operative and in
full force and effect regardless of (i) any investigation made by or on behalf
of the Underwriters or any of their controlling persons, (ii) acceptance of any
of the Shares and payment therefor or (iii) any termination of this Agreement.
8. Termination.
-----------
The obligations of the several Underwriters under this Agreement may
be terminated at any time on or prior to the Closing Date (or, with respect to
the Option Shares, on or prior to the Option Closing Date), by notice to the
Company from the Underwriters, without liability on the part of any Underwriter
to the Company or any Selling Shareholder, if, prior to delivery and payment for
the Shares (or the Option Shares, as the case may be), in the sole judgment of
the Underwriters, (i) trading in any of the equity securities of the Company
shall have been suspended by the Commission, by the NASD, by an exchange that
lists the Shares or by the Nasdaq Stock Market, Inc., (ii) trading in securities
generally on the New York Stock Exchange shall have been suspended or limited or
minimum or maximum prices shall have been generally established on such
exchange, or additional material governmental restrictions, not in force on the
date of this Agreement, shall have been imposed upon trading in securities
generally by such exchange or by order of the Commission, the NASD or any court
or other governmental authority, (iii) a general banking moratorium shall have
been declared by either Federal or New York State authorities or (iv) any
material adverse change in the financial or securities markets in the United
States or in political, financial or economic conditions in the United States or
any outbreak or material escalation of hostilities or declaration by the United
States of a
28
national emergency or war or other calamity or crisis shall have occurred, the
effect of any of which is such as to make it, in the sole judgment of the
Underwriters, impracticable or inadvisable to market the Shares on the terms and
in the manner contemplated by the Prospectus.
9. Substitution of Underwriters.
----------------------------
If any one or more of the Underwriters shall fail or refuse to
purchase any of the Firm Shares which it or they have agreed to purchase
hereunder, and the aggregate number of Firm Shares which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase is not more
than one-tenth of the aggregate number of Firm Shares, the other Underwriters
shall be obligated, severally, to purchase the Firm Shares which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase, in the
proportions which the number of Firm Shares which they have respectively agreed
to purchase pursuant to Section 1 bears to the aggregate number of Firm Shares
which all such non-defaulting Underwriters have so agreed to purchase, or in
such other proportions as the Underwriters may specify; provided that in no
event shall the maximum number of Firm Shares which any Underwriter has become
obligated to purchase pursuant to Section 1 be increased pursuant to this
Section 8 by more than one-ninth of the number of Firm Shares agreed to be
purchased by such Underwriter without the prior written consent of such
Underwriter. If any Underwriter or Underwriters shall fail or refuse to
purchase any Firm Shares and the aggregate number of Firm Shares which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
exceeds one-tenth of the aggregate number of the Firm Shares and arrangements
satisfactory to the Underwriters and the Company for the purchase of such Firm
Shares are not made within 48 hours after such default, this Agreement will
terminate without liability on the part of any non-defaulting Underwriter, or
the Company or any Selling Shareholder for the purchase or sale of any Shares
under this Agreement. In any such case either the Underwriters or the Company
and any Selling Shareholder shall have the right to postpone the Closing Date,
but in no event for longer than seven days, in order that the required changes,
if any, in the Registration Statement and in the Prospectus or in any other
documents or arrangements may be effected. Any action taken pursuant to this
Section 9 shall not relieve any defaulting Underwriter from liability in respect
of any default of such Underwriter under this Agreement.
10. Miscellaneous.
-------------
(a) Notice given pursuant to any of the provisions of this Agreement
shall be in writing and, unless otherwise specified, shall be mailed or
delivered (a) if to the Company, at the office of the Company, 00000 Xxxxxx
Xxxxxx, Xxxxx Xxx Xxxxxxx, XX 00000, Attention: Chief Financial Officer, (b) if
to the
29
Underwriters, to the Underwriters at the offices of PaineWebber Incorporated,
0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate
Finance Department, or (c) if to the Selling Shareholders, to Imperial Credit
Industries, Inc., 00000 Xxxxxxxxx Xxxxxxxxx, Xxxxxxxx 0, Xxxxx 000, Xxxxxxxx, XX
00000, Attention: General Counsel. Any such notice shall be effective only upon
receipt. Any notice under Section 8 or 9 may be made by telex or telephone, but
if so made shall be subsequently confirmed in writing.
(b) This Agreement has been and is made solely for the benefit of the
several Underwriters, the Company and the Selling Shareholders and of the
controlling persons, directors and officers referred to in Section 7, and their
respective successors and assigns, and no other person shall acquire or have any
right under or by virtue of this Agreement. The term "successors and assigns"
as used in this Agreement shall not include a purchaser, as such purchaser, of
Shares from any of the several Underwriters.
(c) Any action required or permitted to be taken by the Underwriters
under this Agreement may be taken by them jointly or by PaineWebber
Incorporated.
(d) With respect to any obligation of the Company and any of the
Selling Shareholders hereunder to make any payment, to indemnify for any
liability or to reimburse for any expense, notwithstanding the fact that such
obligation may be a joint and several obligation of the Selling Shareholders,
the Underwriters (or any other person to whom such payment, indemnification or
reimbursement is owed) may pursue the Company or any one of the Selling
Shareholders with respect thereto prior to pursuing any other party hereto.
(E) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAWS
--------
PRINCIPLES OF SUCH STATE.
(f) This Agreement may be signed in two or more counterparts with the
same effect as if the signatures thereto and hereto were upon the same
instrument.
(g) In case any provision in this Agreement shall be invalid, illegal
or unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
30
(h) This Agreement may not be amended or otherwise modified nor may
any provision hereof be waived except by an instrument in writing signed by the
Underwriters, the Company and the Selling Shareholders.
31
Please confirm that the foregoing correctly sets forth the agreement
among the Company, the Selling Shareholders and the several Underwriters.
Very truly yours,
IMPERIAL CREDIT MORTGAGE
HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Chief Executive Officer
THE SELLING SHAREHOLDERS:
IMPERIAL CREDIT INDUSTRIES, INC.
By: /s/ H. Xxxxx Xxxxxxx
--------------------------------------------
Name: H. Xxxxx Xxxxxxx
Title: Chief Executive Officer
President and Chairman
IMPERIAL CREDIT ADVISORS, INC.
By: /s/ H. Xxxxx Xxxxxxx
--------------------------------------------
Name: H. Xxxxx Xxxxxxx
Title: Chairman of the Board
and Director
SOUTHERN PACIFIC THRIFT AND LOAN ASSOCIATION
By: /s/ H. Xxxxx Xxxxxxx
--------------------------------------------
Name: H. Xxxxx Xxxxxxx
Title: Chairman of the Board
32
Confirmed as of the date first above mentioned:
PAINEWEBBER INCORPORATED
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
XXXXXXXXXXX & CO., INC.
By: /s/ Xxxxxxx X. XxXxxxxxxx
--------------------------------
Name: Xxxxxxx X. XxXxxxxxxx
Title: Managing Director
XXXXXX, XXXXXXXX & COMPANY INCORPORATED
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
EVEREN SECURITIES, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Senior Vice President
SCHEDULE I
SELLING SHAREHOLDERS
Name of
Selling Number of
Shareholder Firm Shares
----------- -----------
Imperial Credit Industries, Inc. 82,363
Southern Pacific Thrift and
Loan Association 50,000
Imperial Credit Advisors, Inc. 37,731
-------
Total 170,094
=======
SCHEDULE II
UNDERWRITERS
Number of
Underwriter Firm Shares
----------- -----------
PaineWebber Incorporated 1,190,000
Xxxxxxxxxxx & Co., Inc. 850,000
Xxxxxx, Xxxxxxxx & Company Incorporated 765,000
EVEREN Securities, Inc. 595,000
---------
3,170,094
=========
EXHIBIT A
FORM OF PRICE DETERMINATION AGREEMENT
-------------------------------------
[DATE]
PAINEWEBBER INCORPORATED
XXXXXXXXXXX & CO., INC.
XXXXXX, XXXXXXXX & COMPANY INCORPORATED
EVEREN SECURITIES, INC.
c/o PaineWebber Incorporated
1285 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Reference is made to the Underwriting Agreement, dated September __,
1997 (the "Underwriting Agreement"), among Imperial Credit Mortgage Holdings,
Inc., a Maryland corporation (the "Company"), the Selling Shareholders named in
Schedule I thereto (the "Selling Shareholders"), and PaineWebber Incorporated,
Xxxxxxxxxxx & Co., Inc., Xxxxxx, Xxxxxxxx & Company Incorporated and EVEREN
Securities, Inc. (the "Underwriters"). The Underwriting Agreement provides for
the purchase by the Underwriters from the Company and the Selling Shareholders,
subject to the terms and conditions set forth therein, of an aggregate of
3,400,000 shares (the "Firm Shares") of the Company's common stock, par value
$.01 per share. This Agreement is the Price Determination Agreement referred to
in the Underwriting Agreement.
Pursuant to Section 1 of the Underwriting Agreement, the Company and
the Selling Shareholders agree with the Underwriters as follows:
1. The initial public offering price per share for the Firm
Shares shall be $______.
2. The purchase price per share for the Firm Shares to be paid
by the several Underwriters shall be $_____ representing an amount equal to the
initial public offering price set forth above, less $____ per share.
3. Any Underwriter may allow, and any dealer may reallow, a
concession, not in excess of $__ per share, to any Underwriter or to certain
other dealers.
The Company represents and warrants to each of the Underwriters that
the representations and warranties of the Company set forth in Section 3 of the
Underwriting Agreement are accurate as though expressly made at and as of the
date hereof.
The Selling Shareholders represent and warrant to each of the
Underwriters that the representations and warranties of the Selling Shareholders
set forth in Section 4 of the Underwriting Agreement are accurate as though
expressly made at and as of the date hereof.
2
As contemplated by the Underwriting Agreement, attached as Schedule II
is a completed list of the several Underwriters, which shall be a part of this
Agreement and the Underwriting Agreement.
THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
-----------------
WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES OF SUCH STATE.
If the foregoing is in accordance with your understanding of the
agreement among the Underwriters, the Company and the Selling Shareholders,
please sign and return to the Company a counterpart hereof, whereupon this
instrument along with all counterparts and together with the Underwriting
Agreement shall be a binding agreement among the Underwriters, the Company and
the Selling Shareholders in accordance with its terms and the terms of the
Underwriting Agreement.
Very truly yours,
IMPERIAL CREDIT MORTGAGE
HOLDINGS, INC.
By: _______________________________
Name:
Title:
THE SELLING SHAREHOLDERS:
IMPERIAL CREDIT INDUSTRIES, INC.
By: _______________________________
Name:
Title: Attorney-in-fact
IMPERIAL CREDIT ADVISORS, INC.
By: _______________________________
Name:
Title: Attorney-in-fact
SOUTHERN PACIFIC THRIFT AND LOAN ASSOCIATION
By: _______________________________
Name:
Title: Attorney-in-fact
3
Confirmed as of the date
first above mentioned:
PAINEWEBBER INCORPORATED
By:______________________________
Name:
Title:
XXXXXXXXXXX & CO., INC.
By:______________________________
Name:
Title:
XXXXXX, XXXXXXXX & COMPANY INCORPORATED
By:______________________________
Name:
Title:
EVEREN SECURITIES, INC.
By:______________________________
Name:
Title:
EXHIBIT B
FORM OF POWER OF ATTORNEY
-------------------------
Common Stock
Xxxxxx X. Xxxxxxxxx
Xxxxxxx X. Xxxxxxx
c/o Imperial Credit Mortgage Holdings, Inc.
00000 Xxxxxx Xxxxxx
Xxxxx Xxx Xxxxxxx, XX 00000
Dear Ladies and Gentlemen:
The undersigned understands that Imperial Credit Mortgage Holdings,
Inc., a Maryland corporation (the "Company"), has filed a registration statement
(the "Registration Statement") under the Securities Act of 1933, as amended (the
"Act"), in connection with the proposed public offering and sale by the Company,
the undersigned (the "Selling Shareholder") and certain other Selling
Shareholders of the Company's Common Stock, par value $0.01 per share (the
"Common Stock").
The Selling Shareholder desires to sell certain shares of Common Stock
and to include such shares among the shares covered by the Registration
Statement. The number of shares of Common Stock which the undersigned desires to
sell (the "Shares") are set forth beneath the signature of the Selling
Shareholder below.
Concurrently with the execution and delivery of this Power of
Attorney, the undersigned is delivering to you, or requesting the Company to
deliver to you, certificates for the Shares, which you are authorized to deposit
with the Company, as custodian (the "Custodian"), pursuant to a custody
agreement in the form attached as Attachment A hereto (the "Custody Agreement").
1. In connection with the foregoing, the Selling Shareholder hereby
makes, constitutes and appoints you, individually (an "Attorney-in-Fact") and
each of your respective substitutes under Section 3, the true and lawful
attorneys-in-fact of the undersigned, with full power and authority, in the name
and on behalf of the Selling Shareholder:
(a) To enter into the Custody Agreement and deposit with the Custodian
pursuant thereto the certificates for the Shares delivered to any Attorney-in-
Fact concurrently herewith;
2
(b) For the purpose of effecting the sale of the Shares, to execute
and deliver (i) an Underwriting Agreement (the "Underwriting Agreement"), by and
among the Company, the other Selling Shareholders and the several Underwriters
(the "Underwriters") and (ii) a Price Determination Agreement (as defined in the
Underwriting Agreement), by and among the Company, the other Selling
Shareholders and the several Underwriters;
(c) To endorse, transfer and deliver certificates for the Shares to or
on the order of the Underwriters or to their nominee or nominees, and to give
such orders and instructions to the Custodian as any Attorney-in-Fact may in its
sole discretion determine with respect to (i) the transfer on the books of the
Company of the Shares in order to effect such sale (including the names in which
new certificates for such Shares are to be issued and the denominations
thereof); (ii) the delivery to or for the account of the Underwriters of the
certificates for the Shares against receipt by the Custodian of the full
purchase price to be paid therefor; (iii) the remittance to the Selling
Shareholder of the Selling Shareholder's share of the net proceeds, after
payment of underwriting discounts, commissions and expenses described in the
Underwriting Agreement, from any sale of Shares; and (iv) the return to the
Selling Shareholder of certificates representing the number of Shares (if any)
deposited with the Custodian but not sold by the Selling Shareholder under the
Registration Statement for any reason;
(d) To retain legal counsel for the Selling Shareholders in connection
with any and all matters referred to herein;
(e) To take for the Selling Shareholder all steps deemed necessary or
advisable by any Attorney-in-Fact in connection with the registration of the
Shares under the Act, including without limitation filing amendments to the
Registration Statement, requesting acceleration of effectiveness of the
Registration Statement, advising the Securities and Exchange Commission that the
reason the Selling Shareholder is offering the Shares for sale is to diversify
the Selling Shareholder's investments and to assist the Company in enlarging the
public market for the Common Stock, informing said Commission that the Selling
Shareholder has no knowledge of any material adverse information with regard to
the current and prospective operations of the Company which is not stated in the
Registration Statement, and such other steps as any Attorney-in-Fact may in its
absolute discretion deem necessary or advisable;
(f) To make, acknowledge, verify and file on behalf of the Selling
Shareholder applications, consents to service of process and such other
undertakings or reports as may be required by law with state commissioners or
officers administering state securities or Blue Sky laws and to take any other
action required to facilitate the qualification of the Shares under the
securities or Blue Sky laws of the jurisdictions in which the Shares are to be
offered;
3
(g) If necessary, to endorse (in blank or otherwise) on behalf of the
Selling Shareholder the certificate or certificates representing the Shares, or
a stock power or powers attached to such certificate or certificates; and
(h) To make, execute, acknowledge and deliver all such other
contracts, orders, receipts, notices, requests, instructions, certificates,
letters and other writings and, in general, to do all things and to take all
action which any Attorney-in-Fact in its sole discretion may consider necessary
or proper in connection with or to carry out the aforesaid sale of Shares, as
fully as could the Selling Shareholder if personally present and acting.
2. This Power of Attorney and all authority conferred hereby is
granted and conferred subject to and in consideration of the interests of the
Company, the Underwriters and the other Selling Shareholders and, for the
purpose of completing the transactions contemplated by this Power of Attorney,
this Power of Attorney and all authority conferred hereby shall be irrevocable
and shall not be terminated by any act of the Selling Shareholder or by
operation of law, whether by the termination, winding-up or liquidation of the
Selling Shareholder or by the occurrence of any other event or events, and if,
after the execution hereof, the Selling Shareholder is terminated, wound-up or
liquidated, or if any other such event or events shall occur before the
completion of the transactions contemplated by this Power of Attorney, the
Attorneys-in-Fact shall nevertheless be authorized and directed to complete all
such transactions as if such termination, winding-up, liquidation or other event
or events had not occurred and regardless of notice thereof.
3. Each Attorney-in-Fact shall have full power to make and
substitute any person in the place and stead of such Attorney-in-Fact, and the
Selling Shareholder hereby ratifies and confirms all that each Attorney-in-Fact
or substitute or substitutes shall do by virtue of these presents. All actions
hereunder may be taken by any one Attorney-in-Fact or his substitute. In the
event of the death, disability or incapacity of any Attorney-in-Fact, the
remaining Attorney-in-Fact or Attorneys-in-Fact shall appoint a substitute
therefor.
4. The Selling Shareholder hereby represents, warrants and covenants
that:
(a) All information furnished to the Company by or on behalf of the
Selling Shareholder for use in connection with the preparation of the
Registration Statement is and will be true and correct in all material respects
and does not and will not omit any material fact necessary to make such
information not misleading;
(b) The Selling Shareholder, having full right, power and authority to
do so, has duly executed and delivered this Power of Attorney;
4
(c) The Selling Shareholder has carefully reviewed the Registration
Statement and will carefully review each amendment thereto and any form of
prospectus or prospectus supplement (collectively, the "Prospectus") relating to
the sale of the Shares immediately upon receipt thereof from the Company and
will promptly advise the Company in writing if the Selling Shareholder has
reason to believe that any information furnished to the Company by or on behalf
of the Selling Shareholder for use in connection with the Registration Statement
or the Prospectus is not true and complete;
(d) In connection with the offering of the Shares, the Selling
Shareholder has not taken and will not take, directly or indirectly, any action
intended to, or which might reasonably be expected to, cause or result in
stabilization or manipulation of the price of the Shares to facilitate the sale
or resale of the Shares;
(e) The Selling Shareholder has not distributed and will not
distribute any prospectus or other offering material in connection with the
offering and sale of the Shares other than a Prospectus or other material
permitted by the Act;
(f) The Selling Shareholder will notify the Company in writing
immediately of any changes in the information relating to the Selling
Shareholder provided to the Company for use in the Registration Statement and
the Prospectus as a result of developments occurring after the date hereof and
prior to the Closing Date under the Underwriting Agreement, and the Attorneys-
in-Fact may consider that there has not been any such development unless advised
to the contrary;
(g) The Selling Shareholder has, and at the time of delivery of the
Shares to the Underwriters it will have, full power and authority to enter into
this Power of Attorney, to carry out the terms and provisions hereof and to make
all the representations, warranties and covenants contained herein; and
(h) This Power of Attorney is the valid and binding agreement of the
Selling Shareholder and is enforceable against the Selling Shareholder in
accordance with its terms.
5. The representations, warranties and covenants of the Selling
Shareholder in this Power of Attorney are made for the benefit of, and may be
relied upon by, the other Selling Shareholders, the Attorneys-in-Fact, the
Company and its counsel, and their representatives, agents and counsel, the
Custodian and the Underwriters.
6. The Attorneys-in-Fact shall be entitled to act and rely upon any
statement, request, notice or instructions respecting this Power of Attorney
given to it
5
by the Selling Shareholder, not only as to the authorization, validity and
effectiveness thereof, but also as to the truth and acceptability of any
information therein contained.
It is understood that the Attorneys-in-Fact assume no responsibility
or liability to any person other than to deal with the Shares deposited with it
and the proceeds from the sale of the Shares in accordance with the provisions
hereof. The Attorneys-in-Fact make no representations with respect to and shall
have no responsibility under this Power of Attorney for the Registration
Statement, the Prospectus or any Preliminary Prospectus nor, except as herein
expressly provided, for any aspect of the offering of Common Stock, and it shall
not be liable for any error of judgment or for any act done or omitted or for
any mistake of fact or law except for its own negligence or bad faith. The
Selling Shareholder agrees to indemnify the Attorneys-in-Fact for and to hold
the Attorneys-in-Fact harmless against any loss, claim, damage or liability
incurred on its part arising out of or in connection with it acting as an
Attorney-in-Fact under this Power of Attorney, as well as the cost and expense
of investigating and defending against any such loss, claim, damage or
liability, except to the extent such loss, claim, damage or liability is due to
the negligence or bad faith of the Attorney-in-Fact seeking indemnification.
The Selling Shareholder agrees that the Attorneys-in-Fact may consult with
counsel of its own choice (who may be counsel for the Company) and it shall have
full and complete authorization and protection for any action taken or suffered
by it hereunder in good faith and in accordance with the opinion of such
counsel.
It is understood that any Attorney-in-Fact may, without breaching any
express or implied obligation to the Selling Shareholder hereunder, release,
amend or modify any other Power of Attorney granted by any other Selling
Shareholder.
7. It is understood that the Attorneys-in-Fact shall serve entirely
without compensation.
8. This Power of Attorney shall be governed by the laws of the State
of New York without regard to the conflict of laws principles of such State.
This Power of Attorney may be signed in two or more counterparts with
the same effect as if the signature thereto and hereto were upon the same
instrument.
In case any provision in this Power of Attorney shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
6
This Power of Attorney shall be binding upon the Attorneys-in-Fact and
the Selling Shareholder and the heirs, legal representatives, distributees,
successors and assigns of the Selling Shareholder.
Dated: September ___, 1997
Very truly yours,
[NAME OF SELLING SHAREHOLDER]
By: _______________________________
Name:
Title:
ACKNOWLEDGED AND ACCEPTED BY
FOLLOWING AS ATTORNEY-IN-FACT:
______________________________
XXXXXX X. XXXXXXXXX
______________________________
XXXXXXX X. XXXXXXX
Attachment A to
Exhibit B
FORM OF CUSTODY AGREEMENT
-------------------------
CUSTODY AGREEMENT, dated September __, 1997, among Imperial Credit
Mortgage Holdings, Inc. (the "Company"), a Maryland corporation, as Custodian
(the "Custodian"), and the persons listed on Annex I hereto (each a "Selling
Shareholder" and collectively the "Selling Shareholders").
The Company has filed a Registration Statement (the "Registration
Statement") with the Securities and Exchange Commission to register for sale to
the public under the Securities Act of 1933, as amended (the "Act"), shares of
the Company's common stock, $0.01 par value per share (the "Common Stock").
The shares to be covered by the Registration Statement shall consist
of (a) up to 3,475,514 shares of Common Stock to be sold by the Company and (b)
up to 170,094 shares of Common Stock (the "Shares") to be sold by the Selling
Shareholders.
Each of the Selling Shareholders has executed and delivered a Power of
Attorney (the "Power of Attorney") naming Xxxxxx X. Xxxxxxxxx and Xxxxxxx X.
Xxxxxxx, and each of them, as his attorney-in-fact (each an "Attorney-in-Fact"),
for certain purposes, including the execution, delivery and performance of this
Agreement in his name, place and xxxxx, in connection with the proposed sale by
each Selling Shareholder of the number of Shares set forth opposite such Selling
Shareholder's name in Annex I.
1. A custody arrangement is hereby established by the Selling
Shareholders with the Custodian with respect to the Shares, and the Custodian is
hereby instructed to act in accordance with this Agreement and any amendments or
supplements hereto authorized by any Attorney-in-Fact.
2. There are herewith delivered to the Custodian, and the Custodian
hereby acknowledges receipt of, certificates representing the Shares, which
certificates have been endorsed in blank or are accompanied by duly executed
stock powers, in each case with all signatures guaranteed by a commercial bank
or trust company or by a member firm of the New York Stock Exchange, Inc., the
American Stock Exchange, Inc. or a member of the National Association of
Securities Dealers, Inc. Such certificates are to be held by the Custodian for
the account of the Selling Shareholders and are to be disposed of by the
Custodian in accordance with this Agreement.
2
3. The Custodian is authorized and directed by the Selling
Shareholders:
(a) To hold the certificates representing the Shares delivered by
the Selling Shareholders in its custody;
(b) On or immediately prior to the settlement date for any Shares
sold pursuant to the Registration Statement (the "Closing Date"), to cause such
Shares to be transferred on the books of the Company into such names as the
Company shall have been instructed by the several Underwriters (the
"Underwriters"); to cause to be issued, against surrender of the certificates
for the Shares, a new certificate or certificates for such Shares, free of any
restrictive legend, registered in such name or names; to deliver such new
certificates representing such Shares to the Underwriters, as instructed by the
Underwriters on the Closing Date for their account or accounts against full
payment therefor; and to give receipt for such payment;
(c) To disburse such payments in the following manner: (i) to
itself, as agent for the Selling Shareholders, a reserve amount to be designated
in writing by any Attorney-in-Fact from which amount the Custodian shall pay, as
soon as reasonably practicable, (A) the Selling Shareholders' proportionate
share of all expenses of the offering and sale of the Shares as provided in the
Underwriting Agreement by and among the Company, the Selling Shareholders and
the Underwriters, (B) its reasonable disbursements for acting hereunder with
respect to the sale of the Shares and (C) any applicable stock transfer taxes;
and (ii) to each Selling Shareholder, pursuant to the written instructions of
any Attorney-in-Fact, (A) on the Closing Date, a sum equal to the share of the
proceeds to which such Selling Shareholder is entitled, as determined by such
Attorney-in-Fact, less the reserve amount designated by such Attorney-in-Fact,
and (B) promptly after all proper charges, disbursements, costs and expenses
shall have been paid, any remaining balance of the amount reserved under clause
(i) above. Before making any payment from the amount reserved under clause (i)
above, except payments made pursuant to subclause (B) of clause (ii) above, the
Custodian shall request and receive the written approval of an Attorney-in-Fact.
To the extent the expenses referred to in subclause (A) of clause (i) above
exceed the amount reserved, the Selling Shareholders shall remain liable for
their proportionate share of such expenses.
4. Subject in each case to the indemnification obligations set forth
in Section 7 hereof, in the event Shares of any Selling Shareholder are not sold
prior to December 31, 1997, the Custodian shall deliver to such Selling
Shareholder as soon as practicable after such date termination of the offering
of the Shares, certificates representing such Shares deposited by such Selling
Shareholder. Certificates returned to any Selling Shareholder shall be returned
with any related stock powers, and any new
3
certificates issued to the Selling Shareholders with respect to such Shares
shall bear any appropriate legend reflecting the unregistered status thereof
under the Act.
5. This Agreement is for the express benefit of the Custodian and
the Selling Shareholders and the Underwriters. The obligations and
authorizations of the Selling Shareholders hereunder are irrevocable and shall
not be terminated by any act of any Selling Shareholder or by operation of law,
whether by the termination, winding-up or liquidation of any Selling Shareholder
or by the occurrence of any other event or events, and if after the execution
hereof any Selling Shareholder is terminated, wound-up or liquidated, or if any
other event or events shall occur before the delivery of such Selling
Shareholder's Shares hereunder to the Underwriters, such Shares shall be
delivered to the Underwriters in accordance with the terms and conditions of
this Agreement, as if such event had not occurred, regardless of whether or not
the Custodian shall have received notice of such event.
6. Until payment of the purchase price for the Shares has been made
to the Selling Shareholders or to the Custodian, the Selling Shareholders shall
remain the owner of (and shall retain the right to receive dividends and
distributions on, and to vote) the number of Shares delivered by each of them to
the Custodian hereunder. Until such payment in full has been made or until the
offering of Shares has been terminated, each Selling Shareholder agrees that it
will not give, sell, pledge, hypothecate, grant any lien on, transfer, deal with
or contract with respect to the Shares and any interests therein.
7. The Custodian shall assume no responsibility to any person other
than to deal with the certificates for the Shares and the proceeds from the sale
of the Shares represented thereby in accordance with the provisions hereof, and
the Selling Shareholders, severally and not jointly, hereby agree to indemnify
the Custodian for and to hold the Custodian harmless against any and all losses,
claims, damages or liabilities incurred on its part arising out of or in
connection with it acting as the Custodian pursuant hereto, as well as the cost
and expenses of investigating and defending any such losses, claims, damages or
liabilities, except to the extent such losses, claims, damages or liabilities
are due to the negligence or bad faith of the Custodian. The Selling
Shareholders agree that the Custodian may consult with counsel of its own choice
(who may be counsel for the Company), and the Custodian shall have full and
complete authorization and protection for any action taken or suffered by the
Custodian hereunder in good faith and in accordance with the opinion of such
counsel.
8. Each of the Selling Shareholders, jointly and not severally,
hereby represents and warrants that: (a) it has, and at the time of delivery of
its Shares to the Underwriters, full power and authority to enter into this
Agreement and the Power of Attorney, to carry out the terms and provisions
hereof and thereof and to
4
make all of the representations, warranties and agreements contained herein and
therein; and (b) this Agreement and the Power of Attorney are the valid and
binding agreements of such Selling Shareholder and are enforceable against such
Selling Shareholder in accordance with their respective terms.
9. The Custodian's acceptance of this Agreement by the execution
hereof shall constitute an acknowledgment by the Custodian of the authorization
herein conferred and shall evidence the Custodian's agreement to carry out and
perform this Agreement in accordance with its terms.
10. The Custodian shall be entitled to act and rely upon any
statement, request, notice or instruction with respect to this Agreement given
to it on behalf of each of the Selling Shareholders if the same shall be made or
given to the Company by any Attorney-in-Fact, not only as to the authorization,
validity and effectiveness thereof, but also as to the truth and acceptability
of any information therein contained.
11. This Agreement may be executed in two or more counterparts with
the same effect as if the signatures thereto and hereto were upon the same
instrument. Execution by the Custodian of one counterpart hereof and its
delivery thereof to the Attorneys-in-Fact shall constitute the valid execution
of this Agreement by the Custodian.
12. This Agreement shall be binding upon the Custodian, each of the
Selling Shareholders and the respective heirs, legal representatives,
distributees, successors and assigns of the Selling Shareholders.
13. This Agreement shall be governed by the laws of the State of New
York without regard to the conflict of laws principles of such State.
14. Any notice given pursuant to this Agreement shall be deemed given
if in writing and delivered in person, or if given by telephone or telegraph if
subsequently confirmed by letter: (i) if to a Selling Shareholder, to its
address set forth in Annex I; and (ii) if to the Custodian, to it at 00000
Xxxxxx Xxxxxx, Xxxxx Xxx Xxxxxxx, Xxxxxxxxxx 00000, Attention: Chief Financial
Officer.
5
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
IMPERIAL CREDIT MORTGAGE
HOLDINGS, INC., as custodian
By:____________________________
Name:
Title:
THE SELLING SHAREHOLDERS
LISTED IN ANNEX I HERETO:
By:_____________________________
Attorney-in-fact
Annex I
-------
Names and Addresses/1/ of
Selling Shareholders Shares to be Sold
--------------------------- -----------------
Imperial Credit Industries, Inc. 82,363
Southern Pacific Thrift and 50,000
Loan Association
Imperial Credit Advisors, Inc. 37,731
Total 170,094
=======
/1/ The address of each of the Selling Shareholders is:
Imperial Credit Industries, Inc.
00000 Xxxxxxxxx Xxxxxxxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxxxxx, XX 00000
Attention: General Counsel
EXHIBIT C
FORM OF OPINION OF COUNSEL TO
THE COMPANY AND THE SUBSIDIARIES
--------------------------------
1. The Company and each of its Subsidiaries is a corporation duly
organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation and has full power and authority to conduct all
the activities conducted by it, to own or lease all the assets owned or leased
by it and to conduct its business as described in the Registration Statement and
the Prospectus. The Company is, directly or indirectly, the sole record owner
and to our knowledge the sole beneficial owner of all of the capital stock of
IWLG, IMH Assets and SAC and all of the Preferred Stock of ICIFC to the extent
and as described in the Prospectus.
2. All of the outstanding shares of Common Stock and the shares of
capital stock of the Subsidiaries have been, and the Shares, when paid for by
the Underwriters in accordance with the terms of the Agreement will be, duly
authorized, validly issued, fully paid and nonassessable and will not be subject
to any preemptive or similar right under (i) the statutes, judicial and
administrative decisions and the rules and regulations of the governmental
agencies of the states of Maryland or California, (ii) the Company's or such
Subsidiaries' charter or by-laws or (iii) any instrument, document, contract or
other agreement referred to in the Registration Statement or any instrument,
document, contract or agreement filed as an exhibit to, or incorporated as an
exhibit by reference in, the Registration Statement. Except as described in the
Registration Statement or the Prospectus, to our knowledge, there is no
commitment or arrangement to issue, and there are no outstanding options,
warrants or other rights calling for the issuance of, any share of capital stock
of the Company or any Subsidiary to any person or any security or other
instrument that by its terms is convertible into, exercisable for or
exchangeable for capital stock of the Company.
3. The number of authorized, issued and outstanding capital stock of
the Company is as set forth in the Prospectus under the caption
"Capitalization." The description of the Common Stock and the preferred stock of
ICIFC contained in the Prospectus conforms to the terms thereof contained in the
charter of the Company and ICIFC, respectively, and is complete and accurate in
all material respects. The form of certificate used to represent the Common
Stock is in due and proper form and complies with all applicable statutory
requirements.
4. The Registration Statement and the Prospectus (including any
documents incorporated by reference into the Prospectus, at the time they were
filed) comply (or complied) in all material respects as to form with the
requirements of the Act, the Rules and Regulations, the Exchange Act and the
Exchange Act Rules and Regulations (except that we express no opinion as to
financial statements, schedules
2
and other financial and statistical data contained in the Registration Statement
or the Prospectus, or incorporated by reference therein).
5. To our knowledge, any instrument, document, lease, license,
contract or other agreement (collectively, "Documents") required to be described
or referred to in the Registration Statement or the Prospectus has been properly
described or referred to therein and any Document required to be filed as an
exhibit to the Registration Statement, or any document incorporated by reference
therein, has been filed as an exhibit thereto or has been incorporated as an
exhibit by reference therein; and no default exists in the due performance or
observance of any material obligation, agreement, covenant or condition
contained in any Document filed or required to be filed as an exhibit to the
Registration Statement, or any document incorporated by reference therein.
6. To our knowledge, except as disclosed in the Registration
Statement or the Prospectus, no person or entity has the right to require the
registration under the Act of shares of Common Stock or other securities of the
Company or ICIFC by reason of the filing or effectiveness of the Registration
Statement.
7. To our knowledge, none of the Company and any of its Subsidiaries
is in violation of its charter or by-laws or in violation of, or in default with
respect to, any law, rule, regulation, order, judgment or decree, except as may
be described in the Prospectus or such as in the aggregate do not have a
material adverse effect upon the operations, business or assets of the Company
and any of the Subsidiaries, taken as a whole.
8. All descriptions in the Prospectus, or incorporated by reference
therein, of statutes, regulations or legal or governmental proceedings are
accurate and present in all material respects the information required to be
shown, including those contained in the Prospectus under the captions "Certain
Provisions of Maryland Law and of the Company's Charter and By-laws," "Federal
Income Tax Considerations," "ERISA Investors" and "Risk Factors--Shares
Available for Future Sale."
9. The Company has full corporate power and authority to enter into
the Agreement, and the Agreement has been duly authorized, executed and
delivered by the Company, is a valid and binding agreement of the Company and is
enforceable against the Company in accordance with the terms thereof, except for
the indemnification and contribution provisions thereof, as to which we express
no opinion, and except as may be limited by applicable bankruptcy, insolvency,
reorganization and similar laws affecting creditors' rights generally and
moratorium laws in effect from time to time and by equitable principles
restricting the availability of equitable remedies.
3
10. The execution and delivery by the Company of, and the performance
by the Company of its agreements in, the Agreement do not and will not (i)
violate the charter or by-laws of the Company, (ii) breach or result in a
default under, cause the time for performance of any obligation to be
accelerated under, or result in the creation or imposition of any lien, charge
or encumbrance upon any of the assets of the Company or any of its Subsidiaries
pursuant to the terms or provisions of, (x) any indenture, mortgage, deed of
trust, voting trust agreement, loan agreement, bond, debenture, note agreement,
capital lease or other evidence of indebtedness of which we have knowledge, (y)
any voting trust arrangement or any contract or other agreement that restricts
the ability of the Company to issue securities and of which we have knowledge or
(z) any Document filed as an exhibit to, or incorporated as an exhibit by
reference in, the Registration Statement, (iii) breach or otherwise violate any
existing obligation of the Company under any court or administrative order,
judgment or decree of which we have knowledge or (iv) violate applicable
provisions of any statute or regulation in the states of California or Maryland
or the United States.
11. No consent, approval, authorization or order of, or any filing or
declaration with, any court or governmental agency or body is required in
connection with the authorization, issuance, transfer, sale or delivery of the
Shares by the Company, in connection with the execution, delivery and
performance of the Agreement by the Company or in connection with the taking by
the Company of any action contemplated thereby or, if so required, all such
consents, approvals, authorizations and orders, have been obtained and are in
full force and effect, except such as have been obtained under the Act and the
Rules and Regulations and such as may be required under state securities or Blue
Sky laws or by the by-laws and rules of the NASD in connection with the purchase
and distribution by the Underwriters of the Shares. All references in this
opinion to the Agreement shall include the Price Determination Agreement.
12. Delivery of certificates for the Shares will transfer valid and
marketable title thereto to each Underwriter that has purchased such Shares in
good faith and without any notice of any adverse claim with respect thereto,
except for any defects therein resulting solely from any action taken by an
Underwriter.
13. None of the Company and any of its Subsidiaries is, and if
operated in the manner described in the Prospectus will be, (i) an "investment
company" or an "affiliated person" of, or "promoter" or "principal underwriter"
for, an "investment company," as such terms are defined in the Investment
Company Act or (ii) a "broker" within the meaning of Section 3(a)(4) of the
Exchange Act or a "dealer" within the meaning of Section 3(a)(5) of the Exchange
Act or required to be registered pursuant to Section 15(a) of the Exchange Act.
4
14. The Shares have been duly authorized for listing by the American
Stock Exchange upon official notice of issuance.
We hereby confirm to you that we have been advised by the Commission
that the Registration Statement has become effective under the Act and that no
order suspending the effectiveness of the Registration Statement has been issued
and no proceeding for that purpose has been instituted or is threatened, pending
or contemplated.
We hereby further confirm to you that, to our knowledge, there are no
actions, suits, proceedings or investigations pending or overtly threatened in
writing against the Company or any of its Subsidiaries or any of their
respective officers or directors in their capacities as such, before or by any
court, governmental agency or arbitrator which (i) seek to challenge the
legality or enforceability of the Agreement, (ii) seek to challenge the legality
or enforceability of any of the Documents filed, or required to be filed, as
exhibits to the Registration Statement or any document incorporated by reference
therein, the illegality or unenforceability of which (iii) seek damages or other
remedies with respect to any of the Documents filed, or required to be filed, as
exhibits to the Registration Statement, (iv) except as set forth in or
contemplated by the Registration Statement and the Prospectus, seek money
damages from the Company or any of its Subsidiaries in excess of $1,000,000 or
seek to impose criminal penalties upon the Company, any of its Subsidiaries or
any of their respective officers or directors in their capacities as such and of
which we have knowledge or (v) seek to enjoin any of the business activities of
the Company or any of its Subsidiaries or the transactions described in the
Prospectus; except (in the case of clauses (ii), (iii) and (v) above) where such
------
illegality, unenforceability, damages, penalties or injunction would not,
individually or in the aggregate, reasonably be expected to have a material
adverse effect upon the operations, business or assets of the Company and any of
the Subsidiaries, taken as a whole.
We have participated in the preparation of the Registration Statement
and the Prospectus and, without assuming any responsibility for the accuracy,
completeness and fairness of the statements contained in the Registration
Statement or the Prospectus or any amendment or supplement thereto or in any
document incorporated by reference into the Prospectus, nothing has come to our
attention that causes us to believe that, both as of the Effective Date and as
of the Closing Date and the Option Closing Date, the Registration Statement, or
any amendment thereto, contained or contains any untrue statement of a material
fact or omitted or omits to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or that any
Prospectus or any amendment or supplement thereto, including any documents
incorporated by reference into the Prospectus, at the time such Prospectus was
issued, at the time any such amended or supplemented Prospectus was issued, at
the Closing Date and the Option Closing Date, contained or contains any untrue
statement of a
5
material fact or omitted or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances in which they
were made not misleading (except that we express no opinion as to financial
statements, schedules and other financial or statistical data contained in the
Registration Statement or the Prospectus or incorporated by reference therein).
In rendering the foregoing opinion, counsel may rely, to the extent
they deem such reliance proper, on the opinions (in form and substance
reasonably satisfactory to Underwriters' counsel) of other counsel reasonably
acceptable to Underwriters' counsel as to matters governed by the laws of
jurisdictions other than the United States and the State of California, and as
to matters of fact, upon certificates of officers of the Company and of
government officials; provided that such counsel shall state that the opinion of
any other counsel is in form satisfactory to such counsel and, in such counsel's
opinion, such counsel and the Underwriters are justified in relying on such
opinions of other counsel. Copies of all such opinions and certificates shall
be furnished to counsel to the Underwriters on the Closing Date and the Option
Closing Date.
EXHIBIT D
FORM OF OPINION
OF COUNSEL TO THE
SELLING SHAREHOLDERS
--------------------
1. Each of the Selling Shareholders has full power and authority to
enter into the Agreement and the Agreement and Power of Attorney and to sell,
transfer and deliver such Shares pursuant to the Agreement and the Agreement and
Power of Attorney. All authorizations and consents necessary for the execution
and delivery of the Agreement and the Agreement and Power of Attorney on behalf
of each of the Selling Shareholders has been given. The delivery of the Shares
on behalf of the Selling Shareholders pursuant to the terms of the Agreement and
payment therefor by the Underwriters will transfer good and marketable title to
the Shares to the several Underwriters purchasing the Shares, free and clear of
all liens, encumbrance and claims whatsoever.
2. Each of the Agreement and the Agreement and Power of Attorney
has been duly authorized, executed and delivered by or on behalf of each of the
Selling Shareholders, is a valid and binding agreement of each Selling
Shareholder and, except for the indemnification and contribution provisions of
the Agreement, the Agreement and the Agreement and Power of Attorney are
enforceable against the Selling Shareholders in accordance with the terms
thereof. All references in this opinion to the Agreement shall include the
Price Determination Agreement.
3. No consent, approval, authorization or order of, or any filing or
declaration with, any court or governmental agency or body is required in
connection with the authorization, issuance, transfer, sale or delivery of the
Shares by or on behalf of the Selling Shareholders, in connection with the
execution, delivery and performance of the Agreement and the Agreement and Power
of Attorney by or on behalf of the Selling Shareholders or in connection with
the taking by or on behalf of the Selling Shareholders of any action
contemplated thereby or, if so required, all such consents, approvals,
authorizations and orders specifying the same have been obtained and are in full
force and effect, except such as have been obtained under the Act or the Rules
and Regulations and such as may be required under state securities or "Blue Sky"
laws or by the by-laws and rules of the NASD in connection with the purchase and
distribution by the Underwriters of the Shares to be sold by the Selling
Shareholders.
4. The execution and delivery by the Selling Shareholders of, and
the performance by the Selling Shareholders of their agreements in, the
Agreement and the Agreement and Power of Attorney, do not and will not (i)
violate the certificate of incorporation or by-laws of any Selling Shareholder,
(ii) breach or result in a default under, cause the time for performance of any
obligation to be accelerated under, or result in the creation or imposition of
any lien, charge or encumbrance upon any of the assets of any Selling
Shareholder pursuant to the terms of, (x) any indenture, mortgage,
2
deed of trust, loan agreement, bond, debenture, note agreement, capital lease or
other evidence of indebtedness of which we have knowledge, (y) any voting trust
arrangement or any contract or other agreement to which any Selling Shareholder
is a party that restricts the ability of any such Selling Shareholder to issue
securities and of which we have knowledge or (2) any other contract or other
agreement of which we have knowledge, (iii) breach or otherwise violate any
existing obligation of any Selling Shareholder under any court or administrative
order, judgment or decree of which we have knowledge or (iv) violate applicable
provisions of any statute or regulation in the State of California or of the
United States.
5. There are no transfer or similar taxes payable in connection with
the sale and delivery of the Shares by the Selling Shareholders to the several
Underwriters, except as specified in such opinion.
The foregoing opinion is subject to the qualification that the
enforceability of the Agreement and the Agreement and Power of Attorney may be:
(i) subject to bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting creditors' rights generally; and (ii) subject to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding at law or in equity), including principles of commercial
reasonableness or conscionably and an implied covenant of good faith and fair
dealing.
This letter is furnished by us solely for your benefit in connection
with the transactions referred to in the Agreement and may not be circulated to,
or relied upon by, any other person, except that this letter may be relied upon
by your counsel in connection with the opinion letter to be delivered to you
pursuant to the Agreement.
