EXHIBIT 1.1
GREENPOINT FINANCIAL CORP.
______ SHARES OF COMMON STOCK
Underwriting Agreement
July __, 1998
X.X. Xxxxxx Securities Inc.
Xxxxxxx, Sachs & Co.
Xxxxxx Brothers Inc.
Friedman, Billings, Xxxxxx & Co., Inc.
Xxxxx, Xxxxxxxx & Xxxxx, Inc.
NationsBanc Xxxxxxxxxx Securities LLC
As Representatives of the several
Underwriters listed in Schedule I hereto
c/o X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
GREENPOINT FINANCIAL CORP., a Delaware corporation (the "COMPANY"),
proposes to sell to the several Underwriters listed in Schedule I
hereto (the "UNDERWRITERS"), for whom you are acting as representatives (the
"REPRESENTATIVES"), an aggregate of __________ shares of Common Stock, par value
$.01 per share, of the Company (the "UNDERWRITTEN SHARES") and, for the sole
purpose of covering over-allotments in connection with the sale of the
Underwritten Shares, at the option of the Underwriters, to sell up
to an additional _________ shares of Common Stock of the Company (the "OPTION
SHARES"). The Underwritten Shares and the Option Shares are herein referred to
as the "SHARES". The shares of Common Stock of the Company to be outstanding
after giving effect to the sale of the Shares are herein referred to as the
"STOCK".
__________________________
/1/Confirm if only selling treasury shares.
The Company has prepared and filed with the Securities and Exchange
Commission (the "COMMISSION") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "SECURITIES ACT"), a registration
statement, including a prospectus, relating to the Shares. The registration
statement as amended at the time when it shall become effective, including
information (if any) deemed to be part of the registration statement at the time
of effectiveness pursuant to Rule 430A under the Securities Act, is referred to
in this Agreement as the "REGISTRATION STATEMENT", and the prospectus in the
form first used to confirm sales of Shares is referred to in this Agreement as
the "PROSPECTUS". If the Company has filed an abbreviated registration
statement pursuant to Rule 462(b) under the Securities Act (the "RULE 462
REGISTRATION STATEMENT"), then any reference herein to the term "Registration
Statement" shall be deemed to include such Rule 462 Registration Statement. Any
reference in this Agreement to the Registration Statement, any preliminary
prospectus or the Prospectus shall also be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the Securities Act, as of the effective date of the Registration Statement
or the date of such preliminary prospectus or the Prospectus, as the case may
be, and any reference to "amend", "amendment" or "supplement" with respect to
the Registration Statement, any preliminary prospectus or the Prospectus shall
be deemed to refer to and include any documents filed after such date under the
Securities Exchange Act of 1934, as amended, and the rules and regulations of
the Commission thereunder (collectively, the "EXCHANGE ACT") that are deemed to
be incorporated by reference therein.
The Company hereby agrees with the Underwriters as follows:
1. The Company agrees to sell the Underwritten Shares to the several
Underwriters as hereinafter provided, and each Underwriter, upon the basis of
the representations and warranties herein contained, but subject to the
conditions hereinafter stated, agrees to purchase, severally and not jointly,
from the Company the respective number of Underwritten Shares set forth opposite
such Underwriter's name in Schedule I hereto at a purchase price per share (the
"PURCHASE PRICE") of $______.
In addition, the Company agrees to sell the Option Shares to the several
Underwriters as hereinafter provided, and the Underwriters on the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, shall have the option to purchase, severally and not
jointly, from the Company up to an aggregate of _______ Option Shares at the
Purchase Price, for the sole purpose of covering over-allotments (if any) in the
sales of Underwritten Shares by the several Underwriters.
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If any Option Shares are to be purchased, the number of Option Shares to be
purchased by each Underwriter shall be the number of Option Shares which bears
the same ratio to the aggregate number of Option Shares being purchased as the
number of Underwritten Shares set forth opposite the name of such Under writer
in Schedule I hereto (or such number increased as set forth in Section 9 hereof)
bears to the aggregate number of Underwritten Shares being purchased from the
Company by the several Underwriters, subject, however, to such adjustments to
eliminate any fractional Shares as the Representatives in their sole discretion
shall make.
The Underwriters may exercise the option to purchase the Option Shares at
any time (but not more than once) on or before the thirtieth day following the
date of this Agreement, by written notice from the Representatives to the
Company. Such notice shall set forth the aggregate number of Option Shares as
to which the option is being exercised and the date and time when the Option
Shares are to be delivered and paid for, which may be the same date and time as
the Closing Date (as hereinafter defined) but shall not be earlier than the
Closing Date nor later than the tenth full Business Day (as hereinafter defined)
after the date of such notice (unless such time and date are postponed in
accordance with the provisions of Section 9 hereof). Any such notice shall be
given at least two Business Days prior to the date and time of delivery
specified therein.
2. The Company understands that the Underwriters intend (i) to make a
public offering of the Shares as soon after (A) the Registration Statement has
become effective and (B) the parties hereto have executed and delivered this
Agreement, as in the judgment of the Representatives is advisable and (ii) to
offer the Shares upon the terms set forth in the Prospectus.
3. Payment for the Shares shall be made by wire transfer in immediately
available funds to the account specified by the Company to the Representatives,
in the case of the Underwritten Shares, on July __, 1998, or at such other time
on the same or such other date, not later than the fifth Business Day
thereafter, as the Representatives and the Company may agree upon in writing or,
in the case of the Option Shares, on the date and time specified by the
Representatives in the written notice of the Underwriters' election to purchase
such Option Shares or such other time as the Representatives and the Company may
agree upon in writing. The time and date of such payment for the Underwritten
Shares is referred to herein as the "CLOSING DATE" and the time and date for
such payment for the Option Shares, if other than the Closing Date, is referred
to herein as the "ADDITIONAL CLOSING DATE". As used herein, the term "BUSINESS
DAY" means any day other than a day on which banks are permitted or required to
be closed in New York City.
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Payment for the Shares to be purchased on the Closing Date or the
Additional Closing Date, as the case may be, shall be made against delivery to
the Representatives for the respective accounts of the several Underwriters of
the Shares to be purchased on such date registered in such names and in such
denominations as the Representatives shall request in writing not later than two
full Business Days prior to the Closing Date or the Additional Closing Date, as
the case may be, with any transfer taxes payable in connection with the transfer
to the Underwriters of the Shares duly paid by the Company. The certificates
for the Shares will be made available for inspection and packaging by the
Representatives at the office of X.X. Xxxxxx Securities Inc. set forth above not
later than 1:00 P.M., New York City time, on the Business Day prior to the
Closing Date or the Additional Closing Date, as the case may be.
4. The Company represents and warrants to each Underwriter that:
(a) no order preventing or suspending the use of any preliminary
prospectus has been issued by the Commission, and each preliminary prospectus
filed as part of the Registration Statement as originally filed or as part of
any amendment thereto, or filed pursuant to Rule 424 under the Securities Act,
complied when so filed in all material respects with the Securities Act, and did
not contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
provided that this representation and warranty shall not apply to any statements
or omissions made in reliance upon and in conformity with information relating
to any Underwriter furnished to the Company in writing by such Underwriter
through the Representatives expressly for use therein;
(b) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceeding for that purpose has been instituted
or, to the knowledge of the Company, threatened by the Commission; and the
Registration Statement and Prospectus (as amended or supplemented if the Company
shall have furnished any amendments or supplements thereto) comply, or will
comply, as the case may be, in all material respects with the Securities Act and
do not and will not, as of the applicable effective date as to the Registration
Statement and any amendment thereto and as of the date of the Prospectus and any
amendment or supplement thereto, contain any
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untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not misleading,
and the Prospectus, as amended or supplemented, if applicable, at the Closing
Date or Additional Closing Date, as the case may be, will not contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading; provided that the foregoing representations and warranties
shall not apply to any statements or omissions in the Registration Statement or
the Prospectus made in reliance upon and in conformity with information relating
to any Underwriter furnished to the Company in writing by such Underwriter
through the Representatives expressly for use therein;
(c) the documents incorporated by reference in the Prospectus, when they
were filed with the Commission, conformed in all material respects to the
requirements of the Exchange Act and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading; and any further documents so filed and incorporated by
reference in the Prospectus, when such documents are filed with the Commission,
will conform in all material respects to the requirements of the Exchange Act,
and will not contain an untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
(d) the financial statements, and the related notes thereto, included or
incorporated by reference in the Registration Statement and the Prospectus
present fairly the consolidated financial position of the Company and its
consolidated subsidiaries as of the dates indicated and the results of their
operations and changes in their consolidated cash flows for the periods
specified; and said financial statements have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis, and the
supporting schedules included or incorporated by reference in the Registration
Statement present fairly the information required to be stated therein;
(e) since the respective dates as of which information is given in the
Registration Statement and the Prospectus, (i) none of the Company or any of its
subsidiaries has sustained any material loss or material interference with its
business from any action, notice, order or decree of a regulatory authority, and
(ii) there has not been any change in the capital stock (other than as a result
of Common Stock repurchases made by the Company on a basis consistent with past
practice) or long-term debt of the Company or any of its subsidiaries, or any
material adverse change, or any development involving a prospective material
adverse change, in or affecting the general affairs, business, prospects,
management, financial
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position, stockholders' equity or results of operations of the Company and its
subsidiaries, taken as a whole, otherwise than as set forth or contemplated in
the Prospectus; and except as set forth or contemplated in the Prospectus
neither the Company nor any of its subsidiaries has entered into any transaction
or agreement (whether or not in the ordinary course of business) material to the
Company and its subsidiaries taken as a whole;
(f) the Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with power
and authority (corporate and other) to own its properties and conduct its
business as described in the Prospectus, is duly registered as a bank holding
company under the Bank Holding Company Act of 1956, as amended (the "BHCA"), and
has been duly qualified as a foreign corporation for the transaction of business
and is in good standing under the laws of each other jurisdiction in which it
owns or leases proper ties, or conducts any business, so as to require such
qualification, other than where the failure to be so qualified or in good
standing would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole;
(g) GreenPoint Bank (the "BANK") has been duly organized as a New York-
chartered stock savings bank and is validly existing in good standing under the
laws of the State of New York, with power and authority (corporate and other) to
own its properties and conduct its business as described in the Prospectus, and
has been duly qualified as a foreign corporation for the transaction of business
and is in good standing under the laws of each other jurisdiction in which it
owns or leases proper ties, or conducts any business, so as to require such
qualification, other than where the failure to be so qualified or in good
standing would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole (except, with respect to the manufactured housing
lending business to be acquired from Bank of America, FSB, GreenPoint Credit
Corp., a wholly-owned subsidiary of the Bank, is seeking to acquire certain
necessary mortgage and consumer finance licenses (the "B of A Housing Licenses")
in the states in which it will operate such business); and all the outstanding
shares of capital stock of the Bank have been duly authorized and validly
issued, are fully-paid and non-assessable, and are directly owned by the Company
free and clear of all liens, encumbrances, security interests and claims;
(h) each of the Company's subsidiaries (other than the Bank) has been duly
incorporated and is validly existing as a corporation under the laws of its
jurisdiction of incorporation, with power and authority
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(corporate and other) to own its properties and conduct its business as
described in the Prospectus, and has been duly qualified as a foreign
corporation for the transaction of business and is in good standing under the
laws of each jurisdiction in which it owns or leases properties, or conducts any
business, so as to require such qualification, other than where the failure to
be so qualified or in good standing would not have a material adverse effect on
the Company and its subsidiaries taken as a whole; and all the outstanding
shares of capital stock of each subsidiary of the Company (other than the Bank)
have been duly authorized and validly issued, are fully-paid and non-assessable,
and are owned by the Company, directly or indirectly, free and clear of all
liens, encumbrances, security interests and claims;
(i) the Company, the Bank and each other subsidiary of the Company are in
compliance with all laws administered by, and all rules and regulations of, the
Board of Governors of the Federal Reserve System (the "BOARD"), the Federal
Deposit Insurance Company (the "FDIC") and any state bank regulatory authority
with jurisdiction over the Company, the Bank or such other subsidiary of the
Company, other than where the failure to be in compliance would not have a
material adverse effect on the Company and its subsidiaries, taken as a whole;
(j) this Agreement has been duly authorized, executed and delivered by the
Company;
(k) the Company has an authorized capitalization as set forth in the
Prospectus and such authorized capital stock conforms as to legal matters to the
description thereof set forth in the Prospectus, and all of the outstanding
shares of capital stock of the Company have been duly authorized and validly
issued, are fully-paid and non-assessable and are not subject to any pre-emptive
or similar rights; and, except as described in or expressly contemplated by the
Prospectus, there are no outstanding rights (including, without limitation, pre-
emptive rights), warrants or options to acquire, or instruments convertible into
or exchangeable for, any shares of capital stock or other equity interest in the
Company or any of its subsidiaries, or any contract, commitment, agreement,
understanding or arrangement of any kind relating to the issuance of any capital
stock of the Company or any such subsidiary, any such convertible or
exchangeable securities or any such rights, warrants or options;
(l) the Shares to be sold by the Company hereunder have been duly
authorized, validly issued, and, when delivered to and paid for by the
Underwriters in accordance with the terms
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of this Agreement, will be validly issued and will be fully paid and non-
assessable and will conform to the descriptions thereof in the Prospectus; and
the sale of the Shares is not subject to any preemptive or
similar rights;
(m) neither the Company nor any of its subsidiaries is, or with the giving
of notice or lapse of time or both would be, in violation of or in default
under, its Certificate of Incorporation or By-Laws or any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which it or any of them or
any of their respective properties is bound, except for violations and defaults
which individually and in the aggregate are not material to the Company and its
subsidiaries taken as a whole; the sale of the Shares and the performance by the
Company of its obligations under this Agreement and the consummation of the
transactions contemplated herein will not conflict with or result in a breach of
any of the terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by which the Company
or any of its subsidiaries is bound or to which any of the property or assets of
the Company or any of its subsidiaries is subject, nor will any such action
result in any violation of the provisions of the Certificate of Incorporation or
the By-Laws of the Company or any applicable law or statute or any order, rule
or regulation of any court or governmental agency or body having jurisdiction
over the Company, its subsidiaries or any of their respective properties; and no
consent, approval, authorization, order, license, registration or qualification
of or with any such court or governmental agency or body is required for the
sale of the Shares or the consummation by the Company of the transactions
contemplated by this Agreement, except such consents, approvals, authorizations,
orders, licenses, registrations or qualifications as have been obtained under
the Securities Act and as may be required under state securities or Blue Sky
Laws in connection with the purchase and distribution of the Shares by the
Underwriters;
(n) other than as set forth or contemplated in the Prospectus, there are
no legal or governmental investigations, 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 properties or to which the
Company or any of its subsidiaries is or may be a party or to which any property
of the Company or any of its subsidiaries is or may be the subject which, if
determined adversely to the Company or any of its subsidiaries, could
individually or in the aggregate
8
have a material adverse effect on the general affairs, business, prospects,
management, financial position, stockholders' equity or results of operations of
the Company and its subsidiaries, taken as a whole, and, to the best of the
Company's knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others; and there are no statutes,
regulations, contracts or other documents that are required to be described in
the Registration Statement or Prospectus or to be filed as exhibits to the
Registration Statement that are not described or filed as required;
(o) no person has the right to require the Company to register any
securities for offering and sale under the Securities Act by reason of the
filing of the Registration Statement with the Commission or the sale of the
Shares;
(p) the Company is not and, after giving effect to the offering and sale
of the Shares, will not be an "investment company", as such term is defined in
the Investment Company Act of 1940, as amended (the "INVESTMENT COMPANY ACT");
(q) Price Waterhouse LLP and KPMG Peat Marwick LLP who have certified
certain financial statements of the Company and its subsidiaries are each
independent public accountants as required by the Securities Act;
(r) the Company and its subsidiaries have filed all federal, state and
local tax returns which have been required to be filed and have paid all taxes
shown thereon and all assessments received by them or any of them to the extent
that such taxes have become due and are not being contested in good faith,
except where the failure to so file or pay would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole; and there is no
tax deficiency which has been or might reasonably be expected to be asserted or
threatened against the Company or any subsidiary, except for any such tax
deficiency which would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole, or except as otherwise disclosed in the
Registration Statement and the Prospectus;
(s) the Company has not taken nor will it take, directly or indirectly,
any action designed to, or that might be reasonably expected to, cause or result
in stabilization or manipulation of the price of the Common Stock;
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(t) each of the Company and its subsidiaries owns, possesses or has
obtained all licenses, permits, certificates, consents, orders, approvals and
other authorizations from, and has made all declarations and filings with, all
federal, state, local and other governmental authorities, all self-regulatory
organizations and all courts and other tribunals necessary to own or lease, as
the case may be, and to operate its properties and to carry on its business as
conducted as of the date hereof (other than with respect to the B of A Housing
Licenses), and except where the failure to so obtain such licenses, permits,
certificates, consents, orders, approvals and other authorizations or make such
declarations and filings would not have a material adverse effect on the Company
and its subsidiaries, taken as a whole; and neither the Company nor any such
subsidiary has received any actual notice of any proceeding relating to
revocation or modification of any such license, permit, certificate, consent,
order, approval or other authorization, except for such proceedings which would
not have a material adverse effect on the Company and its subsidiaries, taken as
a whole, or as described in the Registration Statement and the Prospectus; and
each of the Company and its subsidiaries is in compliance with all laws and
regulations relating to the conduct of its business as conducted as of the date
hereof, except where the failure to so comply would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole;
(u) there are no existing or, to the best knowledge of the Company,
threatened labor disputes with the employees of the Company or any of its
subsidiaries which are likely to have a material adverse effect on the Company
and its subsidiaries taken as a whole;
(v) the Company and its subsidiaries (i) are in compliance with any and
all applicable federal, state and local laws and regulations relating to the
protection of human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants ("ENVIRONMENTAL LAWS"), (ii)
have received all permits, licenses or other approvals required of them under
applicable Environmental Laws to conduct their respective businesses and (iii)
are in compliance with all terms and conditions of any such permit, license or
approval, except where such noncompliance with Environmental Laws, failure to
receive required permits, licenses or other approvals or failure to comply with
the terms and conditions of such permits, licenses or approvals would not,
singly or in the aggregate, have a material adverse effect on the Company and
its subsidiaries, taken as a whole; and
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(w) in the ordinary course of its business, the Company conducts a
periodic review of the effect of Environmental Laws on the business, operations
and properties of the Company and its subsidiaries, in the course of which it
identifies and evaluates associated costs and liabilities (including, without
limitation, any capital or operating expenditures required for clean-up, closure
of properties or compliance with Environmental Laws or any permit, license or
approval, any related constraints on operating activities and any potential
liabilities to third parties); on the basis of such review, the Company has
reasonably concluded that such associated costs and liabilities would not,
singly or in the aggregate, have a material adverse effect on the Company and
its subsidiaries, taken as a whole.
5. The Company covenants and agrees with each of the several Underwriters as
follows:
(a) to use its best efforts to cause the Registration Statement to become
effective at the earliest possible time and, if required, to file the final
Prospectus with the Commission within the time periods specified by Rule 424(b)
and Rule 430A under the Securities Act and to file promptly all reports and any
definitive proxy or information statements required to be filed by the Company
with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act subsequent to the date of the Prospectus and for so long as the
delivery of a prospectus is required in connection with the offering or sale of
the Shares; and to furnish copies of the Prospectus to the Underwriters in New
York City prior to 10:00 a.m., New York City time, on the Business Day next
succeeding the date of this Agreement in such quantities as the Representatives
may reasonably request;
(b) to deliver, at the expense of the Company, to the Representatives
seven signed copies of the Registration Statement (as originally filed) and each
amendment thereto, in each case including exhibits and documents incorporated by
reference therein, and to each other Underwriter a conformed copy of the
Registration Statement (as originally filed) and each amendment thereto, in each
case without exhibits but including the documents incorporated by reference
therein and, during the period mentioned in Section 5 below, to each of the
Underwriters as many copies of the Prospectus (including all amendments and
supplements thereto) and documents incorporated by reference therein as the
Representatives may reasonably request;
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(c) before filing any amendment or supplement to the Registration
Statement or the Prospectus, whether before or after the time the Registration
Statement becomes effective, to furnish to the Representatives a copy of the
proposed amendment or supplement for review and not to file any such proposed
amendment or supplement to which the Representatives reasonably object;
(d) to advise the Representatives promptly, and to confirm such advice in
writing (i) when the Registration Statement has become effective, (ii) when any
amendment to the Registration Statement has been filed or becomes effective,
(iii) when any supplement to the Prospectus or any amended Prospectus has been
filed and to furnish the Representatives with copies thereof, (iv) of any
request by the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for any additional information, (v)
of the issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or of any order preventing or suspending the use
of any preliminary prospectus or the Prospectus or the initiation or threatening
of any proceeding for that purpose, (vi) of the occurrence of any event, within
the period referenced in Section 5 below, as a result of which the Prospectus as
then amended or supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances when the Prospectus is
delivered to a purchaser, not misleading, and (vii) of the receipt by the
Company of any notification with respect to any suspension of the qualification
of the Shares for offer and sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; and to use its best efforts to
prevent the issuance of any such stop order, or of any order preventing or
suspending the use of any preliminary prospectus or the Prospectus, or of any
order suspending any such qualification of the shares, or notification of any
such order thereof and, if issued, to obtain as soon as possible the withdrawal
thereof;
(e) if, during such period of time after the first date of the public
offering of the Shares as in the opinion of counsel for the Underwriters a
prospectus relating to the Shares is required by law to be delivered in
connection with sales by the Underwriters or any dealer, any event shall occur
as a result of which it is necessary to amend or supplement the Prospectus in
order to make the statements therein, in the light of the circumstances when the
Prospectus is delivered to a purchaser, not misleading, or if it is necessary to
amend or supplement the Prospectus to comply with law, forthwith to prepare and
furnish, at the expense of the
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Company, to the Underwriters and to the dealers (whose names and addresses the
Representatives will furnish to the Company) to which Shares may have been sold
by the Representatives on behalf of the Underwriters and to any other dealers
upon request, such amendments or supplements to the Prospectus as may be
necessary so that the statements in the Prospectus as so amended or supplemented
will not, in the light of the circumstances when the Prospectus is delivered to
a purchaser, be misleading or so that the Prospectus will comply with law;
(f) to endeavor to qualify the Shares for offer and sale under the
securities or Blue Sky laws of such jurisdictions as the Representatives shall
reasonably request and to continue such qualification in effect so long as
reasonably required for distribution of the Shares; provided that the Company
shall not be required to file a general consent to service of process in any
jurisdiction;
(g) to make generally available to its security holders and to the
Representatives as soon as practicable an earnings statement covering a period
of at least twelve months beginning after the effective date of the Registration
Statement, which shall satisfy the provisions of Section 11(a) of the Securities
Act and, at the option of the Company, Rule 158 of the Commission promulgated
thereunder;
(h) for a period of two years after the effective date of the Registration
Statement, to furnish to the Representatives copies of all reports or other
communications (financial or other) furnished to holders of the Shares, and
copies of any reports and financial statements furnished to or filed with the
Commission or any national securities exchange;
(i) for a period of 90 days after the date of the final prospectus
relating to the initial public offering of the Shares not to (i) offer, pledge,
announce the intention to sell, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase or otherwise transfer or dispose of, directly or
indirectly, any shares of Stock or any securities convertible into or
exercisable or exchangeable for Stock or (ii) enter into any swap or other
agreement that transfers, in whole or in part, any of the economic consequences
of ownership of the Stock, whether any such transaction described in clause (i)
or (ii) above is to be settled by delivery of Stock or such other securities, in
cash or otherwise without the prior written consent of X.X. Xxxxxx Securities
Inc. on behalf of the Underwriters provided that the foregoing restrictions do
not apply to (i) the issuance by the Company of shares of Stock pursuant to
employee stock option and restricted stock plans existing on, or upon
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the conversion or exchange of convertible or exchangeable securities outstanding
as of, the effective date of the Prospectus, (ii) the issuance of the Shares to
be sold hereunder or (iii) any such action taken in connection with the
acquisition by the Company or any of its affiliates of the stock or assets of
one or more businesses or any division or portion of any such business;
(j) to use the net proceeds received by the Company from the sale of the
Shares pursuant to this Agreement in the manner specified in the Prospectus
under the caption "Use of Proceeds"; and
(k) whether or not the transactions contemplated in this Agreement are
consummated or this Agreement is terminated, to pay or cause to be paid all
costs and expenses incident to the performance of its obligations hereunder,
including without limiting the generality of the foregoing, all costs and
expenses (i) incident to the preparation, issuance, execution and delivery of
the Shares, (ii) incident to the preparation, printing and filing under the
Securities Act of the Registration Statement, the Prospectus and any preliminary
prospectus (including in each case all exhibits, amendments and supplements
thereto), (iii) incurred in connection with the registration or qualification of
the Shares under the laws of such jurisdictions as the Representatives may
designate (including fees of counsel for the Underwriters and its
disbursements), (iv) in connection with the listing of the Shares on the
Exchange, (v) related to the filing with, and clearance of the offering by, the
National Association of Securities Dealers, Inc., (vi) in connection with the
printing (including word processing and duplication costs) and delivery of this
Agreement, the Preliminary and Supplemental Blue Sky Memoranda and the
furnishing to the Underwriters and dealers of copies of the Registration
Statement and the Prospectus, including mailing and shipping, as herein
provided, (vii) any expenses incurred by the Company in connection with a "road
show" presentation to potential investors, (viii) the cost of preparing stock
certificates and (ix) the cost and charges of any transfer agent and any
registrar. Except as expressly set forth in this Agreement, the Underwriters
shall pay their own costs and expenses incident to the performance of their
obligations under this Agreement.
6. The several obligations of the Underwriters hereunder to purchase the
Shares on the Closing Date or the Additional Closing Date, as the case may be,
are subject to the performance by the Company of its obligations hereunder and
to the following additional conditions:
14
(a) the Registration Statement shall have become effective (or if a post-
effective amendment is required to be filed under the Securities Act, such post-
effective amendment shall have become effective) not later than 5:30 P.M., New
York City time, on the date hereof; and no stop order suspending the
effectiveness of the Registration Statement or any post-effective amendment
shall be in effect, and no proceedings for such purpose shall be pending before
or threatened by the Commission; the Prospectus shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time period prescribed
for such filing by the rules and regulations under the Securities Act and in
accordance with Section 5 hereof; and all requests for additional information
shall have been complied with to the satisfaction of the Representatives;
(b) the representations and warranties of the Company contained herein are
true and correct on and as of the Closing Date or the Additional Closing Date,
as the case may be, as if made on and as of the Closing Date or the Additional
Closing Date, as the case may be, and the Company shall have complied with all
agreements and all conditions on its part to be performed or satisfied hereunder
at or prior to the Closing Date or the Additional Closing Date, as the case may
be;
(c) subsequent to the execution and delivery of this Agreement and prior
to the Closing Date or the Additional Closing Date, as the case may be, there
shall not have occurred any downgrading, nor shall any notice have been given of
(i) any downgrading, (ii) any intended or potential downgrading or (iii) any
review or possible change that does not indicate an improvement, in the rating
accorded any securities of or guaranteed by the Company by any "nationally
recognized statistical rating organization", as such term is defined for
purposes of Rule 436(g)(2) under the Securities Act;
(d) since the respective dates as of which information is given in the
Prospectus there shall not have been any change in the capital stock (other than
as a result of Common Stock repurchases made by the Company on a basis
consistent with past practice) or long-term debt of the Company or any of its
subsidiaries or any material adverse change, or any development involving a
prospective material adverse change, in or affecting the general affairs,
business, prospects, management, financial position, stockholders' equity or
results of operations of the Company and its subsidiaries, taken as a whole,
other wise than as set forth or contemplated in the Prospectus, the effect of
which in the judgment of the Representatives makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the Shares on
the Closing Date or the Additional Closing Date, as the case
15
may be, on the terms and in the manner contemplated in the Prospectus; and
neither the Company nor any of its subsidiaries has sustained since the date of
the latest audited financial statements included or incorporated by reference in
the Prospectus any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus;
(e) the Representatives shall have received on and as of the Closing Date
or the Additional Closing Date, as the case may be, a certificate of an
executive officer of the Company, with specific knowledge about the Company's
financial matters, satisfactory to the Representatives to the effect set forth
in Sections 6, 6 and 6 and to the further effect that there has not occurred any
material adverse change, or any development involving a prospective material
adverse change, in or affecting the general affairs, business, prospects,
management, financial position, stockholders' equity or results of operations of
the Company and its subsidiaries taken as a whole from that set forth or
contemplated in the Registration Statement;
(f) Xxxxxx X. Xxxxxx, Senior Vice President and General Counsel, for the
Company, shall have furnished to the Representatives his written opinion, dated
the Closing Date or the Additional Closing Date, as the case may be, in form and
substance satisfactory to the Representatives, to the effect that:
(i) the Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with power
and authority (corporate and other) to own its properties and conduct its
business as described in the Prospectus, is duly registered as a bank holding
company under the BHCA, and has been duly qualified as a foreign corporation for
the transaction of business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties, or conducts any business, so
as to require such qualification, other than where the failure to be so
qualified or in good standing would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole;
(ii) the Bank has been duly organized as a New York-chartered stock savings
bank and is validly existing in good standing under the laws of the State of New
York, with power and
16
authority (corporate and other) to own its properties and conduct its business
as described in the Prospectus, and has been duly qualified as a foreign
corporation for the transaction of business and is in good standing under the
laws of each other jurisdiction in which it owns or leases properties, or
conducts any business, so as to require such qualification, other than with
respect to the B of A Housing Licenses and except where the failure to be so
qualified or in good standing would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole; and all the outstanding shares
of capital stock of the Bank have been duly authorized and validly issued, are
fully-paid and non-assessable, and are directly owned by the Company free and
clear of all liens, encumbrances, security interests and claims;
(iii) each of the Company's subsidiaries (other than the Bank) has been
duly incorporated and is validly existing as a corporation under the laws of its
jurisdiction of incorporation, with power and authority (corporate and other) to
own its properties and conduct its business as described in the Prospectus, and
has been duly qualified as a foreign corporation for the transaction of business
and is in good standing under the laws of each jurisdiction in which it owns or
leases properties, or conducts any business, so as to require such
qualification, other than where the failure to be so qualified or in good
standing would not have a material adverse effect on the Company and its
subsidiaries taken as a whole; and all the outstanding shares of capital stock
of each subsidiary of the Company (other than the Bank) have been duly
authorized and validly issued, are fully-paid and non-assessable, and are owned
by the Company, directly or indirectly, free and clear of all liens,
encumbrances, security interests and claims;
(iv) to the best of such counsel's knowledge, the Company, the Bank and
each other subsidiary of the Company are in compliance with all laws
administered by, and all rules and regulations of, the Board, the FDIC and any
state bank regulatory authority with jurisdiction over the Company, the Bank or
such other subsidiary of the Company, other than where the failure to be in
compliance would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole;
(v) other than as set forth or contemplated in the Prospectus, there are
no legal or governmental investigations, actions, suits or proceedings pending
or, to the best of such
17
counsel's knowledge, threatened against or affecting the Company or any of its
subsidiaries or any of their respective properties or to which the Company or
any of its subsidiaries is or may be a party or to which any property of the
Company or its subsidiaries is or may be the subject which, if determined
adversely to the Company or any of its subsidiaries, could individually or in
the aggregate have a material adverse effect on the general affairs, business,
prospects, management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries taken as a whole; to the best of
such counsel's knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others; and such counsel does not know
of any statutes, regulations, contracts or other documents that are required to
be described in the Registration Statement or Prospectus or to be filed as
exhibits to the Registration Statement that are not described or filed as
required;
(vi) the statements in the Prospectus under "Business--Supervision and
Regulation" and in the Prospectus incorporated by reference from Item 1 of Part
1 of the Company's Annual Report on Form 10-K for the year ended December 31,
1997 (the "COMPANY'S 1997 FORM 10-K") under the caption "Business--Bank
Regulation and Supervision" and "--Holding Company Regulation and Supervision"
and from Item 3 of Part 1 of the Company's 1997 Form 10-K, insofar as such
statements constitute a summary of the terms of the Stock, legal matters,
documents or proceedings referred to therein, fairly present the information
called for with respect to such terms, legal matters, documents or proceedings;
(vii) such counsel is of the opinion that the Registration Statement and
the Prospectus and any amendments and supplements thereto (other than the
financial statements and related schedules and other financial and statistical
data included or incorporated by reference therein, as to which such counsel
need express no opinion) comply as to form in all material respects with the
requirements of the Securities Act and has no reason to believe that (other than
the financial statements and related schedules and other financial and
statistical data included or incorporated by reference therein, as to which such
counsel need express no belief) the Registration Statement and the prospectus
included therein at the time the Registration Statement became effective
contained any untrue statement of a material fact or omitted to state a material
18
fact required to be stated therein or necessary to make the statements therein
not misleading, or that the Prospectus, as amended or supplemented, if
applicable, contains any untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
(viii) neither the Company nor any of its subsidiaries is, or with the
giving of notice or lapse of time or both would be, in violation of or in
default under, its Certificate of Incorporation or By-Laws or any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument known
to such counsel to which the Company or any of its subsidiaries is a party or by
which it or any of them or any of their respective properties is bound, except
for violations and defaults which individually and in the aggregate are not
material to the Company and its subsidiaries taken as a whole; the
sale of the Shares being delivered on the Closing Date or the Additional Closing
Date, as the case may be, and the performance by the Company of its obligations
under this Agreement and the consummation of the transactions contemplated
herein will not conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument known to such counsel to
which the Company or any of its subsidiaries is a party or by which the Company
or any of its subsidiaries is bound or to which any of the property or assets of
the Company or any of its subsidiaries is subject, nor will any such action
result in any violation of the provisions of the Certificate of Incorporation or
the By-Laws of the Company or any applicable law or statute or any order, rule
or regulation of any court or governmental agency or body having jurisdiction
over the Company, its subsidiaries or any of their respective properties;
(ix) the documents incorporated by reference in the Prospectus or any
further amendment or supplement thereto made by the Company prior to the Closing
Date or the Additional Closing Date, as the case may be (other than the
financial statements and related schedules and other financial or statistical
data included or incorporated by reference therein, as to which such counsel
need express no opinion), when they were filed with the Commission, complied as
to form in all material respects with the requirements of the Exchange Act and
the rules and regulations of the Commission thereunder; and such counsel has no
reason to
19
believe that any of such documents, when such documents were so filed, contained
an untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such documents were so filed, not
misleading; and
(x) each of the Company and its subsidiaries owns, possesses or has
obtained all licenses, permits, certificates, consents, orders, approvals and
other authorizations from, and has made all declarations and filings with, all
federal, state, local and other governmental authorities, all self-regulatory
organizations and all courts and other tribunals necessary to own or lease, as
the case may be, and to operate its properties and to carry on its business as
conducted as of the date hereof, other than with respect to the B of A Housing
Licenses and except where the failure to so obtain such licenses, permits,
certificates, consents, orders, approvals and other authorizations or make such
declarations and filings would not have a material adverse effect on the Company
and its subsidiaries, taken as a whole; and neither the Company nor any such
subsidiary has received any actual notice of any proceeding relating to
revocation or modification of any such license, permit, certificate, consent,
order, approval or other authorization, except for such proceedings which would
not have a material adverse effect on the Company and its subsidiaries, taken as
a whole, or as described in the Registration Statement and the Prospectus; and
each of the Company and its subsidiaries is in compliance with all laws and
regulations relating to the conduct of its business as conducted as of the date
hereof, except where the failure to so comply would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
(g) Wachtell, Lipton, Xxxxx & Xxxx, special counsel for the Company, shall
have furnished to the Representatives their written opinion, dated the Closing
Date or the Additional Closing Date, as the case may be, in form and substance
satisfactory to the Representatives, to the effect that:
(i) this Agreement has been duly authorized, executed and delivered by the
Company;
(ii) the authorized capital stock of the Company conforms as to legal
matters to the description thereof contained in the Prospectus;
20
(iii) the shares of capital stock of the Company outstanding prior to the
sale of the Shares to be sold by the Company have been duly
authorized and are validly issued, fully paid and non-assessable;
(iv) the Shares to be sold by the Company hereunder have been
duly authorized, validly issued, and when [issued and] delivered to and paid for
the Underwriters in accor dance with the terms of this Agreement, will be
validly issued, fully paid and non-assessable and the [issuance and] sale of the
Shares is not subject to any preemptive or similar rights;
(v) the statements in the Prospectus under "Description of Capital Stock"
and in the Registration Statement in Item 15, insofar as such statements
constitute a summary of the terms of the Stock, legal matters, documents or
proceedings referred to therein, fairly present the information called for with
respect to such terms, legal matters, documents or proceedings;
(vi) such counsel is of the opinion that the Registration Statement and the
Prospectus and any amendments and supplements thereto (other than the financial
statements and related schedules and other financial and statistical data
included or incorporated by reference therein, as to which such counsel need
express no opinion) comply as to form in all material respects with the
requirements of the Securities Act and has no reason to believe that (other than
the financial statements and related schedules and other financial and
statistical data included or incorporated by reference therein, as to which such
counsel need express no opinion) the Registration Statement and the prospectus
included therein at the time the Registration Statement became effective
contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading, or that the Prospectus, as amended or supplemented, if
applicable, contains any untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
(vii) no consent, approval, authorization, order, license, registration or
qualification of or with any court or governmental agency or body is required
for the sale of the Shares or
21
the consummation of the other transactions contemplated by this Agreement,
except such consents, approvals, authorizations, orders, licenses, registrations
or qualifications as have been obtained under the Securities Act and as may be
required under state securities or Blue Sky laws in connection with the purchase
and distribution of the Shares by the Underwriters; and
(viii) the Company is not and, after giving effect to the offering and sale
of the Shares, will not be an "investment company", as such term is defined in
the Investment Company Act.
In rendering the opinions set forth in paragraphs (f) and (g) of this
Section, (A) Xxxxxx X. Xxxxxx may rely, as to matters involving the
application of laws other than the laws of the United States and the States
of New York and the General Corporation Law of the State of Delaware, to
the extent he deems proper and to the extent specified in such opinion, if
at all, upon an opinion or opinions (in form and substance reasonably
satisfactory to Underwriters' counsel) of other counsel reasonably
acceptable to the Underwriters' counsel, familiar with the applicable laws
and (B) each of Xxxxxx X. Xxxxxx and Wachtell, Lipton, Xxxxx & Xxxx may
rely, as to matters of fact, to the extent such counsel deems proper, on
certificates of responsible officers of the Company and certificates or
other written statements of officials of jurisdictions having custody of
documents respecting the corporate existence or good standing of the
Company. The opinion of Xxxxxx X. Xxxxxx shall state that the opinions of
any such other counsel upon which he relied is in form satisfactory to him
and, in his opinion, the Underwriters and he is justified in relying
thereon. With respect to the matters to be covered in Section 6(f)(vii) or
6(g)(vi), above counsel may state their opinion and belief is based upon
their participation in the preparation of the Registration Statement and
the Prospectus and any amendment or supplement thereto (other than, in the
case of Wachtell, Lipton, Xxxxx & Xxxx, the documents incorporated by
reference therein) and review and discussion of the contents thereof
(including the documents incorporated by reference therein) but is without
independent check or verification except as specified.
The opinions of counsel described above shall be rendered to the
Underwriters at the request of the Company and shall so state therein.
(h) on the effective date of the Registration Statement and the effective
date of the most recently filed post-effective amendment to the Registration
Statement, if any, and also on the Closing Date or Additional Closing Date, as
the case may be, each of Price Waterhouse LLP and KPMG Peat Marwick LLP shall
have furnished to you letters, dated the respective dates of delivery thereof,
in form and substance satisfactory to
22
you, containing statements and information of the type customarily included in
accountants' "comfort letters" to underwriters with respect to the financial
statements and certain financial information contained in the Registration
Statement and the Prospectus;
(i) the Representatives shall have received on and as of the Closing Date
or Additional Closing Date, as the case may be, an opinion of Xxxxx Xxxx &
Xxxxxxxx, counsel to the Underwriters, with respect to the due authorization
of the Shares, the Registration Statement, the Prospectus
and other related matters as the Representatives may reasonably request, and
such counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters;
(j) on or prior to the Closing Date or Additional Closing Date, as the
case may be, the Company shall have furnished to the Representatives such
further certificates and documents as the Representatives shall reasonably
request; and
(k) the "lock-up" agreements, each substantially in the form of Exhibit A
hereto, between you and certain shareholders, executive officers and directors
of the Company relating to sales and certain other dispositions of shares of
Stock or certain other securities, delivered to you on or before the date
hereof, shall be in full force and effect on the Closing Date or Additional
Closing Date, as the case may be.
7. The Company agrees to indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages and liabilities (including, without
limitation, the legal fees and other expenses incurred in connection with any
suit, action or proceeding or any claim asserted) caused by any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement or the Prospectus (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto) or any preliminary
prospectus, or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any untrue
23
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with information relating to any Underwriter furnished to
the Company in writing by such Underwriter through the Representatives expressly
for use therein.
Each Underwriter agrees, severally and not jointly, to indemnify and hold
harmless the Company, its directors, its officers who sign the Registration
Statement and each person who controls the Company within the meaning of Section
15 of the Securities Act and Section 20 of the Exchange Act to the same extent
as the foregoing indemnity from the Company to each Underwriter, but only with
reference to information relating to such Underwriter furnished to the Company
in writing by such Underwriter through the Representatives expressly for use in
the Registration Statement, the Prospectus, any amendment or supple ment
thereto, or any preliminary prospectus.
If any suit, action, proceeding (including any governmental or regulatory
investigation), claim or demand shall be brought or asserted against any person
in respect of which indemnity may be sought pursuant to either of the two
preceding paragraphs, such person (the "INDEMNIFIED PERSON") shall promptly
notify the person against whom such indemnity may be sought (the "INDEMNIFYING
PERSON") in writing, and the Indemnifying Person, upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding and shall pay the fees and
expenses of such counsel related to such proceeding. In any such proceeding, any
Indemnified Person shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Person
unless (i) the Indemnifying Person and the Indemnified Person shall have mutual
ly agreed to the contrary, (ii) the Indemnifying Person has failed within a
reasonable time to retain counsel reasonably satisfactory to the Indemnified
Person or (iii) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is
understood that the Indemnifying Person shall not, in connection with any
proceeding or related proceeding in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such fees and expenses shall
be reimbursed as they are incurred. Any such separate firm for the Underwriters
and such control persons of Underwriters shall be designated in writing by X.X.
Xxxxxx Securities Inc. and any such separate firm for the Company, its
directors, its officers who sign the Registration Statement and such control
persons of the Company shall be designated in writing by the Company. The
Indemnifying Person shall not be liable for any settlement of any proceeding
effected without its written consent,
24
but if settled with such consent or if there be a final judgment for the
plaintiff, the Indemnifying Person agrees to indemnify any Indemnified Person
from and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an Indemnified Person
shall have requested an Indemnifying Person to reimburse the Indemnified Person
for fees and expenses of counsel as contemplated by the second and third
sentences of this paragraph, the Indemnifying Person agrees that it shall be
liable for any settlement of any proceeding effected without its written consent
if (i) such settlement is entered into more than 30 days after receipt by such
Indemnifying Person of the aforesaid request and (ii) such Indemnifying Person
shall not have reimbursed the Indemnified Person in accordance with such request
prior to the date of such settlement. No Indemnifying Person shall, without the
prior written consent of the Indemnified Person, effect any settlement of any
pending or threatened proceeding in respect of which any Indemnified Person is
or could have been a party and indemnity could have been sought hereunder by
such Indemnified Person, unless such settlement includes an unconditional
release of such Indemnified Person from all liability on claims that are the
subject matter of such proceeding.
If the indemnification provided for in the first and second paragraphs of
this Section 7 is unavailable to an Indemnified Person or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other hand from the offering of the Shares or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and the
Underwriters on the other hand in connection with the statements or omissions
that resulted in such losses, claims, damages or liabilities, as well as any
other relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriters on the other hand shall be deemed
to be in the same respective proportions as the net proceeds from the offering
(before deducting expenses) received by the Company and the total underwriting
discounts and the commissions received by the Underwriters, in each case as set
forth in the table on the cover of the Prospectus, bear to the aggregate public
offering price of the Shares. The relative fault of the Company on the one hand
and the Underwriters on the other hand shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company or by the
25
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purposes) or by any other method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an Indemnified Person as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses incurred by such Indemnified Person in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, in no event shall an
Underwriter be required to contribute any amount in excess of the amount by
which the total price at which the Shares underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages that
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations to
contribute pursuant to this Section 7 are several in proportion to the
respective number of Shares set forth opposite their names in Schedule I hereto,
and not joint.
The remedies provided for in this Section 7 are not exclusive and shall not
limit any rights or remedies which may otherwise be available to any indemnified
party at law or in equity.
The indemnity and contribution agreements contained in this Section 7 and
the representations and warranties of the Company set forth in this Agreement
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
any Underwriter or any person controlling any Underwriter or by or on behalf of
the Company, its officers or directors or any other person controlling the
Company and (iii) acceptance of and payment for any of the Shares.
8. Notwithstanding anything herein contained, this Agreement (or the
obligations of the several Underwriters with respect to the Option Shares) may
be terminated in the absolute discretion of the Representatives, by notice given
to the Company, if after the execution and delivery of this Agreement and prior
to the Closing Date (or, in the case of the Option Shares, prior to the
Additional Closing Date) (i) trading generally shall have been suspended or
materially limited on or
26
by, as the case may be, any of the New York Stock Exchange or the American Stock
Exchange or the National Association of Securities Dealers, Inc., (ii) trading
of any securities of or guaranteed by the Company shall have been suspended on
any exchange or in any over-the-counter market, (iii) a general moratorium on
commercial banking activities in New York shall have been declared by either
Federal or New York State authorities, or (iv) there shall have occurred any
outbreak or escalation of hostilities or any change in financial markets or any
calamity or crisis that, in the judgment of the Representatives, is material and
adverse and which, in the judgment of the Representatives, makes it
impracticable to market the Shares being delivered at the Closing Date or the
Additional Closing Date, as the case may be, on the terms and in the manner
contemplated in the Prospectus.
9. This Agreement shall become effective upon the later of (x) execution
and delivery hereof by the parties hereto and (y) release of notification of the
effectiveness of the Registration Statement (or, if applicable, any post-
effective amendment) by the Commission.
If on the Closing Date or the Additional Closing Date, as the case may be,
any one or more of the Underwriters shall fail or refuse to purchase Shares
which it or they have agreed to purchase hereunder on such date, and the
aggregate number of Shares which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase is not more than one-tenth of the
aggregate number of Shares to be purchased on such date, the other Underwriters
shall be obligated severally in the proportions that the number of Shares set
forth opposite their respective names in Schedule I bears to the aggregate
number of Underwritten Shares set forth opposite the names of all such non-
defaulting Underwriters, or in such other proportions as the Representatives may
specify, to purchase the Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided
that in no event shall the number of Shares that any Underwriter has agreed to
purchase pursuant to Section 1 be increased pursuant to this Section 9 by an
amount in excess of one-tenth of such number of Shares without the written
consent of such Underwriter. If on the Closing Date or the Additional Closing
Date, as the case may be, any Underwriter or Underwriters shall fail or refuse
to purchase Shares which it or they have agreed to purchase hereunder on such
date, and the aggregate number of Shares with respect to which such default
occurs is more than one-tenth of the aggregate number of Shares to be purchased
on such date, and arrangements satisfactory to the Representatives and the
Company for the purchase of such Shares are not made within 36 hours after such
default, this Agreement (or the obligations of the several Underwriters to
purchase the Option Shares, as the case may be) shall terminate without
liability on the part of any non-defaulting Underwriter or the Company. In any
such case either you or the Company shall have the right to postpone the Closing
27
Date (or, in the case of the Option Shares, the Additional 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 under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
10. If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement or any condition to the Underwriters' obligations cannot be fulfilled,
the Company agrees to reimburse the Underwriters or such Underwriters as have so
terminated this Agreement with respect to themselves, severally, for all out-of-
pocket expenses (including the fees and expenses of its counsel) reasonably
incurred by the Underwriter in connection with this Agreement or the offering
contemplated hereunder.
11. This Agreement shall inure to the benefit of and be binding upon the
Company, the Underwriters, any controlling persons referred to herein and their
respective successors and assigns. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any other person, firm or
corporation any legal or equitable right, remedy or claim under or in respect of
this Agreement or any provision herein contained. No purchaser of Shares from
any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
12. Any action by the Underwriters hereunder may be taken by X.X. Xxxxxx
Securities Inc. alone on behalf of the Representatives and the Underwriters, and
any such action taken by X.X. Xxxxxx Securities Inc. alone shall be binding
upon the Representatives and the Underwriters. All notices and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if mailed or transmitted by any standard form of telecommunication.
Notices to the Underwriters shall be given to the Representatives, c/o X.X.
Xxxxxx Securities Inc., 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (telefax: 212-
648-5705); Attention: Syndicate Department. Notices to the Company shall be
given to it at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, (telefax: 212-834-
1404); Attention: Xxxxxx X. Xxxxxx.
13. This Agreement may be signed in counterparts, each of which shall be
an original and all of which together shall constitute one and the same
instrument.
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14. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE CONFLICTS OF
LAWS PROVISIONS THEREOF.
29
If the foregoing is in accordance with your understanding, please sign and
return four counterparts hereof.
Very truly yours,
GreenPoint Financial Corp.
By: _____________________________
Title:
Accepted: July __, 1998
X.X. Xxxxxx Securities Inc.
Xxxxxxx, Sachs & Co.
Xxxxxx Brothers Inc.
Friedman, Billings, Xxxxxx & Co., Inc.
Xxxxx, Xxxxxxxx & Xxxxx, Inc.
NationsBanc Xxxxxxxxxx Securities LLC
Acting severally on behalf of themselves
and the several Underwriters listed in
Schedule I hereto.
By: X.X. Xxxxxx Securities Inc.
By:_________________________________
Title:
30
SCHEDULE I
NUMBER OF SHARES
UNDERWRITER TO BE PURCHASED
----------- ----------------
X.X. Xxxxxx Securities Inc. ..........................
Xxxxxxx, Xxxxx & Co. .................................
Xxxxxx Brothers Inc. .................................
Friedman, Billings, Xxxxxx & Co., Inc. ...............
Xxxxx, Xxxxxxxx & Xxxxx, Inc. ........................
NationsBanc Xxxxxxxxxx Securities LLC. ...............
[List Others] ........................................
Total
