EXHIBIT 10.8
AGENCY AGREEMENT
BY AND AMONG
SJAMSUL NURSALIM AND ITJIH SJAMSUL NURSALIM,
EAST-WEST BANK
AND
FRIEDMAN, BILLINGS, XXXXXX & CO., INC.
DATED AS OF JUNE 1, 1998
TABLE OF CONTENTS
Page
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ARTICLE I. DEFINITIONS
Section 1.1 Definitions................................. 1
ARTICLE II. PURCHASE AND SALE OF SHARES OF COMMON STOCK
Section 2.1 Appointment of Placement Agent.............. 5
Section 2.2 Costs, Expenses and Fees.................... 5
Section 2.3 Closing..................................... 6
ARTICLE III. REPRESENTATIONS AND WARRANTIES
Section 3.1 Representations and Warranties of the
Selling Shareholders....................... 6
Section 3.2 Representations and Warranties of the Bank.. 9
Section 3.3 Representations and Warranties of the
Placement Agent............................ 16
ARTICLE IV. CONDITIONS PRECEDENT TO THE CLOSING
Section 4.1 Conditions to the Obligations of the Parties 17
Section 4.2 Conditions to the Obligations of the
Selling Shareholders....................... 18
Section 4.3 Conditions to the Obligations of the Bank... 18
Section 4.4 Conditions to the Obligations of the
Placement Agent............................ 18
ARTICLE V. COVENANTS
Section 5.1 Information................................. 20
Section 5.2 Blue Sky.................................... 21
Section 5.3 Issuance.................................... 21
Section 5.4 Press Releases.............................. 21
Section 5.5 No Solicitation............................. 21
Section 5.6 Post Offering Engagement.................... 21
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ARTICLE VI. INDEMNIFICATION
Section 6.1 Bank Indemnification........................ 22
Section 6.2 Placement Agent Indemnification............. 24
Section 6.3 Selling Shareholder Indemnification......... 24
Section 6.4 Notice...................................... 25
ARTICLE VII. CONTRIBUTION
Section 7.1 Contribution................................ 26
Section 7.2 Reimbursement............................... 27
ARTICLE VIII. MISCELLANEOUS
Section 8.1 Survival of Provisions...................... 27
Section 8.2 Termination................................. 27
Section 8.3 Waiver; Amendments.......................... 28
Section 8.4 Communications.............................. 29
Section 8.5 Entire Agreement; Amendment................. 29
Section 8.6 Governing Law and Time...................... 29
Section 8.7 Consent to Jurisdiction..................... 30
Section 8.8 Severability................................ 30
Section 8.9 Headings and Gender......................... 30
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AGENCY AGREEMENT
Agreement, dated as of June 1, 1998 (the "Agreement") by and among Mr.
Sjamsul Nursalim and Mrs. Itjih Sjamsul Nursalim (collectively, the "Selling
Shareholders"), East-West Bank, a California banking corporation (the "Bank"),
and Friedman, Billings, Xxxxxx & Co., Inc. (the "Placement Agent"), with respect
to the offering and sale of the shares of Common Stock to each of the purchasers
listed on the investor signature pages to the Purchase and Sale Agreement
(collectively, the "Transaction").
ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINITIONS. As used in this Agreement, and unless the
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context requires a different meaning, the following terms have the meanings
indicated:
"Affiliate" means, with respect to any Person, any Person that, directly or
indirectly, controls, is controlled by or is under common control with such
Person. For the purposes of this definition, "control" (including, with
correlative meanings, the terms "controlled by" and "under common control with")
shall mean the possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of such Person, whether
through the ownership of voting securities, by contract or otherwise.
"Agreement" means this Agency Agreement by and between the Selling
Shareholders, the Bank and the Placement Agent with respect to the offering of
the shares of Common Stock, as amended, supplemented or modified from time to
time.
"Bank" means East-West Bank, a California banking corporation, together
with its successors.
"Business Day" means any day except a Saturday, Sunday or other day on
which commercial banks and savings institutions in the State of California are
authorized or obligated by law to close.
"Capital Securities" of any Person means Capital Stock of the Person and
Stock Equivalents of the Person.
"Capital Stock" of any Person means any and all shares or other equity
interest of such Person.
"Closing" has the meaning set forth in Section 2.3.
"Closing Date" has the meaning set forth in Section 2.3.
"Code" means the Internal Revenue Code of 1986, as amended (or any
successor statute in effect from time to time), and the rules and regulations
promulgated thereunder.
"Commission" means the Securities and Exchange Commission and any successor
thereto.
"Common Stock" means the Common Stock, stated value $1.00 per share, of the
Bank.
"Custody Agreement" means the Custody Agreement to be entered into among
the Selling Shareholders and Manatt Xxxxxx Xxxxxxxx LLP, as the Custodian.
"Department" means the California Department of Financial Institutions.
"Environmental Claim" means any written notice from any governmental
authority or third party alleging potential liability (including without
limitation potential liability for investigating costs, cleanup costs,
governmental response costs, natural resource damages, property damages,
personal injuries or penalties) arising out of, based on, or resulting from the
presence, or release into the environment of any Materials of Environmental
Concern.
"Environmental Laws" means any law, statute, rule or regulation of any
governmental, judicial, legislative, executive, administrative or regulatory
authority of the United States, or of any state, local or foreign government or
any subdivision thereof or of any governmental body or other regulatory or
administrative agency or commission, domestic or foreign (a "Law"), relating to
pollution or protection of the environment (including ambient air, surface
water, groundwater, land surface or subsurface strata), including without
limitation the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended, the Resource Conservation and Recovery Act of 1976, as
amended, and other Laws relating to (i) emissions, discharges or releases of
pollutants, contaminants, chemicals, or industrial toxic or hazardous substances
or wastes (collectively known as "Polluting Substances") or (ii) the handling,
storage, disposal, reclamation, recycling or transportation of Polluting
Substances.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended (or any successor statute in effect from time to time).
"Exchange Act" means the Securities Exchange Act of 1934, as amended and in
effect from time to time (or any successor statute in effect from time to time),
and the rules and regulations of the Commission promulgated thereunder.
"FDIA" means the Federal Deposit Insurance Act, as amended (or any
successor statute in effect from time to time).
"FDIC" means the Federal Deposit Insurance Corporation and any successor
thereto.
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"Lien" means, with respect to any asset, any mortgage, lien, pledge,
encumbrance, charge or security interest of any kind in respect of such asset.
"Management" means the following members of the senior management of the
Bank: President, Chief Executive Officer, Chief Financial Officer and any
Executive Vice President.
"Material Adverse Effect" means a material adverse effect on the financial
condition, business or results of operations of the Bank and the Bank
Subsidiaries, taken as a whole; provided, however, that Material Adverse Effect
shall not be deemed to include the impact of the transactions contemplated by
this Agreement or any Related Agreement, including the fees and expenses to be
paid in connection with the consummation of the transactions contemplated by
this Agreement and the Related Agreements or any impact or effect on the Bank
resulting from actions taken by the Bank after the Closing.
"Materials of Environmental Concern" means pollutants, contaminants,
wastes, toxic substances, petroleum and petroleum products and any other
materials regulated under Environmental Laws.
"Non-performing Assets" means the following consolidated assets of the
Bank: (i) loans, securities or other assets with respect to which the Bank has
ceased recognizing interest under generally accepted accounting principles or as
to which any payments of principal or interest are past due 90 days or more as
of the applicable date and (ii) Real Estate Owned; and references herein to the
amounts of Non-performing Assets shall mean and refer to the aggregate carrying
value of such assets as stated in the books and financial statements of the Bank
under generally accepted accounting principles.
"Person" means an individual, a corporation, a partnership, an association,
a trust or any other entity or organization, including a government or a
political subdivision or an agency or instrumentality thereof.
"Placement Agent" means Friedman, Billings, Xxxxxx & Co., Inc. in its
capacity as private placement agent pursuant to the Agency Agreement with
respect to the offering of the shares of Common Stock of the Bank to the
Purchasers, as described in the Private Offering Memorandum.
"Previously Disclosed" means disclosed either (i) in a letter dated the
date hereof delivered from the Selling Shareholders to the Placement Agent or
from the Bank to the Placement Agent, as applicable, specifically referring to
the appropriate section of this Agreement and describing in reasonable detail
the matters contained therein, or (ii) in the Private Offering Memorandum.
"Purchase and Sale Agreement" means the Purchase and Sale Agreement, by and
between the Selling Shareholders, the Bank and each Purchaser, as amended,
supplemented or modified from time to time.
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"Private Offering Memorandum" means the Private Offering Memorandum, dated
May 26, 1998, as amended or supplemented by the Bank at any time prior to the
Closing.
"Purchaser" means each Person (other than the Bank) listed on the investor
signature pages to the Purchase and Sale Agreement, and its permitted successors
and assigns as provided therein, including any Person who becomes a party
thereto by executing and delivering an investor signature page thereto after the
date of such agreement.
"Real Estate Owned" means the consolidated properties of the Bank acquired
by foreclosure on a loan or deed-in-lieu thereof or otherwise included in the
Bank's real estate owned for purposes of reporting asset quality of the Bank in
its reports filed with the FDIC and the Department.
"Registration Rights Agreement" means the Registration Rights Agreement to
be entered into among the Bank and the Purchasers, as amended, supplemented or
otherwise modified from time to time, which provides for the reorganization of
the Bank into the holding company form of organization, the registration of the
shares of such holding company's common stock with the Commission, and the
exchange of the holding company's common stock for the then outstanding Common
Stock of the Bank.
"Related Agreements" means the Purchase and Sale Agreement, the
Registration Rights Agreement, the Custody Agreement and the Power of Attorney.
"SAIF" means the Savings Association Insurance Fund administered by the
FDIC, and any successor thereto.
"Securities Act" means the Securities Act of 1933, as amended (or any
successor statute thereto as in effect from time to time), and the rules and
regulations of the Commission promulgated thereunder.
"Selling Shareholders" shall mean Sjamsul Nursalim and Itjih Sjamsul
Nursalim.
"State" means each of the states of the United States, the District of
Columbia and the Commonwealth of Puerto Rico.
"Stock Equivalents" means, with respect to any Person, options, warrants,
calls, contracts or other rights entered into or issued by such Person which
confer upon the holder thereof the right (whether or not contingent) to acquire
any Capital Stock, voting securities or securities convertible into or
exchangeable for Capital Stock or voting securities of such Person.
"Subsidiary" of any Person means any entity of which securities or other
ownership interests having ordinary voting power to elect a majority of the
board of directors or other persons performing similar functions are owned
directly or indirectly by such Person.
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"Taxes" means all taxes, charges, fees, levies or other governmental
assessments, including, without limitation, all net income, gross income, gross
receipts, sales, use, ad valorem, transfer, franchise, profits, license,
withholding, payroll, employment, excise, estimated, severance, stamp,
occupation, property or other taxes, customs, dues, fees, assessments or charges
of any kind whatsoever, together with any interest and any penalties, additions
to tax or additional amounts imposed by any taxing authority (domestic or
foreign).
"Tax Returns" means all federal, State and local returns relating to Taxes.
ARTICLE II
PURCHASE AND SALE OF SHARES OF COMMON STOCK
SECTION 2.1 APPOINTMENT OF PLACEMENT AGENT. On the basis of the
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representations and warranties herein contained and subject to the terms and
conditions herein set forth, the Selling Shareholders hereby appoint Friedman,
Billings, Xxxxxx & Co., Inc. as their Placement Agent to consult with and advise
the Selling Shareholders, and to assist the Selling Shareholders and the Bank
with the solicitation of purchase orders for the shares of Common Stock of the
Bank owned by the Selling Shareholders which are to be sold to the Purchasers.
On the basis of the representations and warranties herein contained, and subject
to the terms and conditions herein set forth, Friedman, Billings, Xxxxxx & Co.,
Inc. hereby accepts such appointment and agrees to use its best efforts to
assist the Selling Shareholders and the Bank with the solicitation of purchase
orders for the shares of Common Stock of the Bank in accordance with this
Agreement; provided, however, that the Placement Agent shall not be obligated to
take any action which is inconsistent with any applicable laws, regulations,
decisions or orders.
SECTION 2.2 COSTS, EXPENSES AND FEES.
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(i) The costs and expenses (calculated as of the Closing) and the fees of
the transactions contemplated by this Agreement and the Purchase and Sale
Agreement shall be paid at the Closing out of the proceeds from the sale of the
shares of Common Stock. The costs and expenses for such transaction includes,
without limitation, (i) the reasonable out-of-pocket expenses of the Placement
Agent incurred in connection with its engagement hereunder, including, without
limitation, the reasonable legal fees and expenses and disbursements of the
Placement Agent's legal counsel, and marketing promotional and travel expenses,
(ii) the cost of obtaining all securities approvals (if any); (iii) the cost of
printing and distributing the offering materials; (iv) the costs of blue sky
qualification (including fees and reasonable expenses (including any requisite
filing fees) of the Placement Agent's counsel) of the Common Stock in the
various states (if any); and (v) all fees and disbursements of the Bank's
counsel, accountants, agents and other advisors. In addition, the Selling
Shareholders shall be responsible for any federal and state taxes or withholding
obligations associated with the sale of the shares of Common Stock pursuant
thereto. The provisions of this paragraph are not intended to apply to or in
any way impair the indemnification provisions of Article VI.
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(ii) The Placement Agent will be paid a placement fee of 7% of the gross
proceeds raised from the sale of the Common Stock in immediately available funds
at the Closing Date out of the proceeds raised from the sale of shares of Common
Stock pursuant to this Agreement and the Purchase and Sale Agreement. The
placement fee to be paid to the Placement Agent hereunder is referred to as the
"Fee."
(iii) In connection with the Closing, the Bank shall issue to the Placement
Agent a warrant to purchase Common Stock of the Bank in the form attached hereto
as Appendix A.
SECTION 2.3 CLOSING. The purchase and sale of the shares of Common
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Stock will take place at a closing (the "Closing") to be held at the offices of
the Placement Agent, Arlington, Virginia, on such date as all of the conditions
to the parties' obligations hereunder specified in Article IV of this Agreement
(other than the delivery of certificates, opinions and other instruments and
documents to be delivered at the Closing) have been satisfied or waived, or at
such other location, and on such other Business Day and time as the parties
hereto shall mutually agree. The date on which the Closing is to occur is
referred to herein as the "Closing Date."
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1 REPRESENTATIONS AND WARRANTIES OF THE SELLING SHAREHOLDERS.
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The Selling Shareholders represent and warrant to, and covenant and agree with,
the Placement Agent as follows:
(a) Capital Structure. As of the date hereof, the authorized capital
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stock of the Bank consists of 200,000,000 shares of Common Stock and no shares
of Preferred Stock. As of the date hereof, there were 110,000,000 shares of
Common Stock issued and outstanding. Immediately prior to the Closing, the Bank
shall effect a reverse stock split which will result in 23,775,000 shares of
Common Stock being issued and outstanding. Immediately prior to the Closing on
the Closing Date, the Bank's outstanding Capital Stock will be as set forth in
the preceding sentence. As of the date hereof, all outstanding shares of Common
Stock have been duly authorized and validly issued and are fully paid and
nonassessable and none of the outstanding shares of Common Stock has been issued
in violation of the preemptive rights of any Person. The outstanding shares of
Capital Stock of the Bank Subsidiaries are directly or indirectly owned by the
Bank free and clear of all Liens resulting from any direct or indirect action on
the part of the Selling Shareholders. There are no Stock Equivalents authorized,
issued or outstanding with respect to the Capital Stock of the Bank as of the
date hereof.
(b) Good Title and Other Matters.
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(i) The Selling Shareholders have, and immediately prior
to the Closing such Shareholders will have, good and valid title
to the shares of Common Stock free and clear of all Liens; and,
upon delivery of such shares
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of Common Stock and payment therefor pursuant hereto, good and
valid title to such shares of Common Stock, free and clear of all
Liens, will pass to the Purchasers.
(ii) Certificates in negotiable form representing all of
the shares of Common Stock have been placed in custody under the
Custody Agreement, duly executed and delivered by such Selling
Shareholder to Manatt Xxxxxx Xxxxxxxx LLP, as custodian (the
"Custodian"), and such Selling Shareholders have duly executed
and delivered the Power of Attorney, appointing the Selling
Shareholders' attorneys-in-fact (the "Attorneys-in-Fact") with
authority to execute and deliver this Agreement and the Related
Agreements to which the Selling Shareholders are or will become a
party on behalf of such Selling Shareholders, to authorize the
delivery of the shares of Common Stock to be sold by such Selling
Shareholders hereunder and otherwise to act on behalf of such
Selling Shareholders in connection with the transactions
contemplated by this Agreement and the Related Agreements to
which the Selling Shareholders are or will become a party.
(iii) The shares of Common Stock represented by the
certificates held in custody for such Selling Shareholders under
the Custody Agreement are subject to the interests of the
Purchasers hereunder; the obligations of the Selling Shareholders
hereunder are not intended to be terminated by operation of law,
whether by the death or incapacity of any individual Selling
Shareholder or by the occurrence of any other event; if any
individual Selling Shareholder should die or become
incapacitated, or if any other such event should occur, before
the delivery of the shares of Common Stock hereunder, it is the
intention of the Selling Shareholders that certificates
representing the shares of Common Stock shall be delivered by or
on behalf of the Selling Shareholders in accordance with the
terms and conditions of this Agreement and of the Related
Agreements to which the Selling Shareholders are or will become a
party; and it is the intention of the Selling Shareholders that
actions taken by the Attorneys-in-Fact pursuant to the Powers of
Attorney shall be as valid as if such death, incapacity or other
event had not occurred, regardless of whether or not the
Custodian, the Attorneys-in-Fact, or any of them, shall have
received notice of such death, incapacity or other event.
(c) Authority. The Selling Shareholders have full power and authority to
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perform their obligations under this Agreement and the Related Agreements to
which the Selling Shareholders are or will become a party.
(d) Due Execution. This Agreement and the Related Agreements to which the
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Selling Shareholders are or will become a party constitute valid and binding
obligations of the Selling Shareholders enforceable against the Selling
Shareholders in accordance with their respective terms,
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except as (A) enforceability may be limited by bankruptcy, insolvency,
moratorium and similar laws affecting creditors' rights generally and (B) rights
of acceleration and the availability of equitable remedies may be limited by
equitable principles of general applicability.
(e) No Conflict. The execution, delivery and performance of this Agreement
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and the Related Agreements to which the Selling Shareholders are or will become
a party by the Selling Shareholders will not conflict with or constitute a
breach of, or a default under (i) any obligation, agreement, indenture, bond,
debenture, note, instrument or any other evidence of indebtedness to which the
Selling Shareholders are a party or as to which any of their respective assets
are subject, or (ii) any law, ordinance, order, license, rule or other
regulation or demand of any court or governmental agency, arbitration panel or
authority applicable to the Selling Shareholders except, in the case of clauses
(i) and (ii) above, for such conflicts, breaches or defaults which would not,
individually or in the aggregate, have a Material Adverse Effect.
(f) Material Adverse Change. To the knowledge of the Selling Shareholders,
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since March 31, 1998, no events or developments involving the Bank or the Bank
Subsidiaries have occurred which, individually or in the aggregate, materially
impair the ability of the Selling Shareholders to perform their obligations
under this Agreement or the Related Agreements to which the Selling Shareholders
are or will become a party.
(g) Litigation. There are no actions, suits, investigations or legal
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proceedings pending against, or to the knowledge of the Selling Shareholders,
threatened against, or affecting the Selling Shareholders before any court or
governmental body or agency which would reasonably be expected to in any manner
challenge the legality, validity or enforceability of this Agreement, any of the
Related Agreements to which the Selling Shareholders are or will become a party
or the Common Stock to be sold to the Purchasers, or which would reasonably be
expected to materially impair the ability or obligation of the Selling
Shareholders to perform fully on a timely basis their obligations under this
Agreement or any Related Agreement to which the Selling Shareholders are or will
become a party.
(h) Certain Fees. Except for fees and expenses payable by the Selling
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Shareholders to Chase Securities, Inc. and except for the fees, commissions and
expenses payable to the Placement Agent pursuant to this Agreement, no fees or
commissions will be payable to brokers, finders, investment bankers or banks
pursuant to any agreement entered into by the Selling Shareholders with respect
to the sale of the Common Stock by the Selling Shareholders or the purchase of
such shares of Common Stock by the Purchasers or any of the other transactions
contemplated by this Agreement or the Related Agreements to which the Selling
Shareholders are or will become a party. The Selling Shareholders represent,
warrant and agree that to the extent any fees or commissions shall be payable by
the Selling Shareholders to brokers, finders, investment bankers or banks
pursuant to any other agreement entered into by the Selling Shareholders with
respect to the transactions contemplated by this Agreement or the Related
Agreements to which the Selling Shareholders are or will become a party, the
Selling Shareholders shall be jointly and severally responsible for the payment
of such fees and commissions.
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(i) Private Offering. Neither the Selling Shareholders nor any Person
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authorized to act on their behalf, has taken or will take any action which might
subject the sale of the shares of Common Stock to the registration requirements
of the Securities Act or comparable provisions of any applicable State
securities laws.
(j) Financial Statements.
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(i) To the actual knowledge of the Selling Shareholders, (x)
the statements of financial condition of the Bank as of December
31, 1997 and 1996 and consolidated statements of operations,
stockholders' equity and cash flows of the Bank for each of the
years ended December 31, 1997, 1996 and 1995, accompanied by the
related audit report of Deloitte & Touche LLP and (y) the
unaudited consolidated statement of financial condition of the
Bank as of March 31, 1998 and the unaudited consolidated
statements of operations, stockholders' equity and cash flows of
the Bank for the three months ended March 31, 1998 (the foregoing
financial statements, including the related notes where
applicable, are collectively referred to as the "Bank Financial
Statements"), fairly present the consolidated financial condition
of the Bank as of the respective dates set forth therein, and the
consolidated results of operations, stockholders' equity and cash
flows of the Bank for the respective periods or as of the
respective dates set forth therein.
(ii) To the actual knowledge of the Selling Shareholders,
except to the extent (x) reflected, disclosed or provided for in
the consolidated statement of financial condition of the Bank as
of March 31, 1998 (including related notes) and (y) of
liabilities incurred since such date in the ordinary course of
business, neither the Bank nor any of the Bank Subsidiaries has
any liabilities, whether absolute, accrued, contingent or
otherwise, which would have a Material Adverse Effect.
The representations and warranties set forth in Sections 3.1(f) and (g)
based on the knowledge or best knowledge of the Selling Shareholders are made in
reliance on the representations and warranties of the Purchasers contained in
Section 3.3(a) of this Agreement.
SECTION 3.2 REPRESENTATIONS AND WARRANTIES OF THE BANK. The Bank
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represents and warrants to, and covenants and agrees with, the Placement Agent
as follows:
(a) Capital Structure. As of the date hereof, the authorized capital
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stock of the Bank consists of 200,000,000 shares of Common Stock and no shares
of Preferred Stock. As of the date hereof, there were 110,000,000 shares of
Common Stock issued and outstanding. Immediately prior to the Closing, the Bank
shall effect a reverse stock split which will result in 23,775,000 shares of
Common Stock being issued and outstanding. Immediately prior to the Closing on
the Closing Date, the Bank's outstanding Capital Stock will be as set forth in
the preceding sentence. As of the date
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hereof, all outstanding shares of Common Stock have been duly authorized and
validly issued and are fully paid and nonassessable and none of the outstanding
shares of Common Stock has been issued in violation of the preemptive rights of
any Person. Except as Previously Disclosed, there are no Stock Equivalents
authorized, issued or outstanding with respect to the Capital Stock of the Bank
as of the date hereof.
(b) Organization, Standing and Authority of the Bank. The Bank is a
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California banking corporation validly existing and in good standing under the
laws of the State of California with full corporate power and authority to own
or lease all of its properties and assets and to carry on its business as now
conducted and is duly licensed or qualified to do business and is in good
standing in each jurisdiction in which its ownership or leasing of property or
the conduct of its business requires such licensing or qualification, except
where the failure to be so licensed, qualified or in good standing would not
have a Material Adverse Effect. The deposit accounts of the Bank are insured to
the maximum extent permitted by the FDIA, and the Bank has paid all premiums and
assessments charged by the FDIC under the FDIA and the regulations thereunder.
(c) Ownership of the Bank Subsidiaries. The only direct or indirect
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Subsidiaries of the Bank consist of E-W Services, Inc. and East-West Investment,
Inc. Except as Previously Disclosed and except for (i) Capital Stock of the
Bank Subsidiaries, (ii) stock in the Federal Home Loan Bank of San Francisco,
(iii) stock in the Greater San Xxxxxxx Valley Community Development Corporation,
(iv) equity interests in entities owning low-income housing projects, and (v)
securities and other interests taken in consideration of debts previously
contracted, the Bank does not own or have the right to acquire, directly or
indirectly, any outstanding Capital Stock or other voting securities or
ownership interests of any corporation, bank, savings association, partnership,
joint venture or other organization. The outstanding shares of Capital Stock of
the Bank Subsidiaries have been duly authorized and validly issued, are fully
paid and nonassessable, and are directly or indirectly owned by the Bank free
and clear of all Liens. No Stock Equivalents are authorized, issued or
outstanding with respect to the Capital Stock of the Bank Subsidiaries and there
are no agreements, understandings or commitments relating to the right of the
Bank to vote or to dispose of such Capital Stock.
(d) Organization, Standing and Authority of the Bank Subsidiaries. The
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Bank Subsidiaries are corporations validly existing and in good standing under
the laws of their respective jurisdictions of incorporation. Each of the Bank
Subsidiaries has full power and authority to own or lease all of its respective
properties and assets and to carry on its respective business as now conducted
and is duly licensed or qualified to do business and is in good standing in each
jurisdiction in which its ownership or leasing of property or the conduct of its
business requires such qualification, except where the failure to be so
licensed, qualified or in good standing would not have a Material Adverse
Effect.
(e) Authority. The Bank has full corporate power and authority to perform
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its obligations under this Agreement and each of the Related Agreements to which
it will become a party, and the execution, delivery and performance by the Bank
of this Agreement and each Related Agreement
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to which it will become a party has been duly authorized by all necessary
corporate action on the part of the Bank.
(f) Due Execution. This Agreement and each of the Related Agreements to
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which the Bank will become a party, when duly authorized, executed and delivered
by the Bank, will constitute valid and binding obligations of the Bank
enforceable against the Bank in accordance with their terms, except as (A)
enforceability may be limited by bankruptcy, insolvency, moratorium and similar
laws affecting creditors' rights generally and (B) rights of acceleration and
the availability of equitable remedies may be limited by equitable principles of
general applicability.
(g) No Conflict. The execution, delivery and performance of this
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Agreement and each of the Related Agreements by the Bank will not conflict with
or constitute a breach of, or a default under (i) the Articles of Incorporation
or the Bylaws of the Bank or any of the Bank Subsidiaries, (ii) any obligation,
agreement, indenture, bond, debenture, note, instrument or any other evidence of
indebtedness to which the Bank or any of the Bank Subsidiaries is a party or as
to which any of their respective assets are subject, or (iii) any law,
ordinance, order, license, rule or other regulation or demand of any court or
governmental agency, arbitration panel or authority applicable to the Bank or
any of the Bank Subsidiaries, except, in the case of clauses (ii) and (iii)
above, for such conflicts, breaches or defaults which would not, individually or
in the aggregate, have a Material Adverse Effect. Except for compliance with
applicable federal and State securities laws in connection with this Agreement
and the performance by the Bank of its obligations under the Registration Rights
Agreement, no consent, approval, order or other authorization of any
governmental, administrative or regulatory body or agency is legally required by
or on behalf of the Bank or the Bank Subsidiaries in connection with the
execution, delivery and performance by the Bank of this Agreement and each of
the Related Agreements to which the Bank is or will become a party. The
representations and warranties set forth in clause (iii) of the second preceding
sentence and in the preceding sentence, insofar as it relates to federal and
State securities law requirements are made in reliance on the representations
and warranties of the Purchasers contained in the Purchase and Sale Agreement.
(h) Regulatory Reports. The Bank has filed with the Department and the
------------------
FDIC the reports required to be filed under applicable laws and regulations and
such reports fairly presented in all material respects the information contained
therein and such reports were in material compliance with the requirements of
applicable laws and regulations, provided that information as of a later date
shall be deemed to modify information as of an earlier date. In connection with
the most recent examinations of the Bank by the Department and the FDIC, the
Bank was not required to correct or change any action, procedure or proceeding
which the Bank believes has not been corrected or changed as requested.
(i) Financial Statements.
--------------------
(i) The Private Offering Memorandum includes the Bank
Financial Statements, which fairly present the consolidated
financial condition of the Bank as of the respective dates set
forth therein, and the
11
consolidated results of operations, stockholders' equity and cash
flows of the Bank for the respective periods or as of the
respective dates set forth therein.
(ii) The Bank Financial Statements have been prepared in
accordance with generally accepted accounting principles
consistently applied during the periods involved, except as
stated therein. The books and records of the Bank and the Bank
Subsidiaries are being maintained in material compliance with
applicable legal and accounting requirements, and such books and
records accurately reflect in all material respects all dealings
and transactions in respect of the business, assets, liabilities
and affairs of the Bank and the Bank Subsidiaries.
(iii) Except to the extent (x) reflected, disclosed or
provided for in the consolidated statement of financial condition
of the Bank as of March 31, 1998 (including related notes) and
(y) of liabilities incurred since such date in the ordinary
course of business, neither the Bank nor any of the Bank
Subsidiaries has any liabilities, whether absolute, accrued,
contingent or otherwise, which would have a Material Adverse
Effect.
(iv) The accountants who certified the audited Bank
Financial Statements included in the Private Offering Memorandum
are independent public accountants within the meaning of the
Securities Act.
(j) Material Adverse Change. Since March 31, 1998, (i) neither the Bank
-----------------------
nor any of the Bank Subsidiaries has incurred any material liability (on a
consolidated basis), except in the ordinary course of business consistent with
past practice (excluding the incurrence of expenses or obligations in connection
with this Agreement, any Related Agreement or any of the transactions
contemplated hereby or thereby) and except for such liability or liabilities as
would not, individually or in the aggregate, have a Material Adverse Effect, and
(ii) no events or developments involving the Bank or the Bank Subsidiaries have
occurred which, individually or in the aggregate, (A) have had a Material
Adverse Effect, or (B) materially impair the ability of the Bank to perform its
obligations under this Agreement or any Related Agreement to which it will
become a party.
(k) Environmental Matters.
---------------------
(i) To the knowledge of the Bank, the Bank and the Bank
Subsidiaries are in compliance with all Environmental Laws,
except for any violations of any Environmental Law which would
not, individually or in the aggregate, have a Material Adverse
Effect. Neither the Bank nor any Bank Subsidiary has received any
communication alleging that the Bank or any Bank Subsidiary is
not in such compliance and, to the knowledge of the Bank, there
are no present circumstances that would prevent or interfere with
the continuation of such compliance.
12
(ii) To the knowledge of the Bank, none of the properties
owned, leased or operated by the Bank or the Bank Subsidiaries
has been or is in violation of or liable under any Environmental
Law, except for any such violations or liabilities which would
not individually or in the aggregate have a Material Adverse
Effect.
(iii) To the knowledge of the Bank, there are no past or
present actions, activities, circumstances, conditions, events or
incidents that would reasonably form the basis of any
Environmental Claim or other claim or action or governmental
investigation that would result in the imposition of any
liability arising under any Environmental Law against the Bank or
any Bank Subsidiary or against any Person whose liability for any
Environmental Claim the Bank or any Bank Subsidiary has or may
have retained or assumed either contractually or by operation of
law, except such as would not have a Material Adverse Effect.
(l) Allowance for Loan Losses. The allowance for loan losses reflected in
-------------------------
the consolidated statement of financial condition included in the Bank Financial
Statements as of March 31, 1998 is adequate in all material respects as of such
date under the requirements of generally accepted accounting principles to
provide for reasonably anticipated losses on outstanding loans net of
recoveries. The Real Estate Owned reflected in the consolidated statement of
financial condition included in the Bank Financial Statements as of March 31,
1998 is carried at the lower of cost or fair value, less estimated costs to
sell, as required by generally accepted accounting principles.
(m) Tax Matters. The Bank and the Bank Subsidiaries have timely filed all
-----------
Tax Returns required by applicable law to be filed by them (including, without
limitation, estimated tax returns, income tax returns, information returns and
withholding and employment tax returns) and have paid, or where payment is not
required to have been made, have set up an adequate reserve or accrual for the
payment of, all Taxes required to be paid pursuant to such Tax Returns, except
in all cases where the failure to have timely filed such Tax Returns or have
paid or have set up an adequate reserve or accrual for the payment of all such
Taxes would not have a Material Adverse Effect. As of the date hereof, there is
no audit examination, assessed deficiency, deficiency litigation or refund
litigation with respect to any Taxes of the Bank or any of the Bank
Subsidiaries. All Taxes due with respect to completed and settled examinations
or concluded litigation relating to the Bank have been paid in full or adequate
provision has been made for any such Taxes on the Bank's consolidated statement
of financial condition in accordance with generally accepted accounting
principles. The Bank has not executed an extension or waiver of any statute of
limitations on the assessment or collection of any material tax due that is
currently in effect.
(n) ERISA. Each "employee benefit plan" (as defined in Section 3(3) of
-----
the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), other
than any "multiemployer plan" (as defined in Section 3(37) or Section 4001(a)(3)
of ERISA)) that is sponsored, maintained or contributed to by the Bank (a "Bank
Plan") is in compliance in all material respects with all
13
presently applicable provisions of ERISA, except where any such noncompliance
would not reasonably be expected to have a Material Adverse Effect; no
"reportable event" (as defined in Section 4043 of ERISA or the regulations
thereunder), other than an event as to which the 30- day statutory notice period
is waived by regulation, has occurred with respect to any Bank Plan that is a
"pension plan" (as defined in Section 3(2) of ERISA (each such Bank Plan, a
"Bank Pension Plan"); the Bank has not incurred and does not expect to incur any
material liability with respect to any Bank Pension Plan under (i) Title IV of
ERISA (with respect to the termination of, or withdrawal from, any such plan) or
(ii) Sections 412 or 4971 of the Code; and each Bank Pension Plan has received a
determination letter from the Internal Revenue Service regarding the
qualification of such plan under Section 401(a) of the Code, and to the
knowledge of the Bank, nothing has occurred, whether by action or by failure to
act, that would cause the loss of such qualification.
(o) Litigation. There are no actions, suits, investigations or legal
----------
proceedings pending against, or to the knowledge of the Bank, threatened
against, or affecting the Bank or any of the Bank Subsidiaries or their
respective properties before any court or governmental body or agency which
would reasonably be expected to have a Material Adverse Effect or which in any
manner challenge the legality, validity or enforceability of this Agreement, any
of the Related Agreements or the Commons Stock, or which would reasonably be
expected to materially impair the ability or obligation of the Bank to perform
fully on a timely basis its obligations under this Agreement or under any
Related Agreement to which it will become a party.
(p) Licenses and Permits. Each of the Bank and the Bank Subsidiaries has
--------------------
all permits, licenses, certificates of authority, orders and approvals of, and
has made all filings, applications and registrations with, federal, State, local
and foreign governmental or regulatory bodies that are necessary in order to
permit it to carry on its business as it is presently being conducted and the
absence of which would have a Material Adverse Effect; all such permits,
licenses, certificates of authority, orders and approvals are in full force and
effect; and to the knowledge of the Bank, no suspension or cancellation of any
of the same is threatened.
(q) No Default or Violation. Neither the Bank nor any of the Bank
-----------------------
Subsidiaries currently is in violation of its Articles of Incorporation or its
Bylaws, and, except as Previously Disclosed, neither the Bank nor any of the
Bank Subsidiaries is in violation of any applicable federal, state or local law
or ordinance or any order, rule or regulation of any federal, State, local or
other governmental agency or body (including, without limitation, all banking,
securities, safety, health, environmental, zoning, anti-discrimination,
antitrust, and wage and hour laws, ordinances, orders, rules and regulations),
or in default with respect to any order, writ, injunction or decree of any
court, or in default under any order, license, regulation or demand of any
governmental agency, where any of such violations or defaults would,
individually or in the aggregate, reasonably be expected (i) to have a Material
Adverse Effect or (ii) materially adversely impair the ability of the Bank to
perform on a timely basis any obligation which it has under this Agreement, or
under any Related Agreement, and none of the Bank, nor any Bank Subsidiary has
received any notice or communication from any federal, State or local
governmental authority asserting that the Bank or such Bank Subsidiary is in
14
violation of any of the foregoing which would reasonably be expected to have any
effect set forth in clauses (i) or (ii) above. Except as Previously Disclosed,
neither the Bank nor any of the Bank Subsidiaries is subject to any regulatory
or supervisory cease and desist order, agreement, written directive, memorandum
of understanding or written commitment, and none of them has received any
written communication requesting that they enter into any of the foregoing.
(r) Certain Contracts. Neither the Bank nor any Bank Subsidiary is in
-----------------
default or in non-compliance, which default or non-compliance would reasonably
be expected to have a Material Adverse Effect, under any contract, agreement,
commitment, arrangement, lease, insurance policy or other instrument to which it
is a party or by which its assets, business or operations may be bound or
affected, whether entered into in the ordinary course of business or otherwise
and whether written or oral, and there has not occurred any event that with the
lapse of time or the giving of notice, or both, would constitute such a default
or non-compliance.
(s) Insurance. The Bank and each Bank Subsidiary is insured for such
---------
amounts which the Bank believes reasonable with insurance companies which the
Bank believes are financially sound and reputable against such risks as the Bank
considers to be necessary or appropriate and has maintained all insurance
required by applicable laws and regulations, except where the failure to be so
insured would not have a Material Adverse Effect. Neither the Bank nor any Bank
Subsidiary has received any notice of cancellation or notice of a material
amendment of any such insurance policy or bond or is in default under such
policy or bond, no coverage thereunder is being disputed and all material claims
thereunder have been filed in a timely fashion, except where any such
cancellation, default or dispute would not, individually or in the aggregate,
have a Material Adverse Effect.
(t) Properties. All real and personal property owned by the Bank or any
----------
Bank Subsidiary or presently used by any of them in their respective business is
in an adequate condition (ordinary wear and tear excepted) and is sufficient to
carry on the business of the Bank and the Bank Subsidiaries in the ordinary
course of business consistent with their past practices. The Bank and the Bank
Subsidiaries have good and marketable title free and clear of all Liens to all
of the material properties and assets, real and personal, reflected on the
consolidated statement of financial condition of the Bank as of March 31, 1998
included in the Bank Financial Statements or acquired after such date, except
(i) for Liens for current taxes not yet due or payable, (ii) for pledges to
secure deposits and other Liens incurred in the ordinary course of its banking
business, (iii) for such Liens, if any, which would not, individually or in the
aggregate, have a Material Adverse Effect and (iv) as reflected on the
consolidated statement of financial condition of the Bank as of March 31, 1998
included in the Bank Financial Statements. All real and personal property which
is material to the Bank's business on a consolidated basis and leased or
licensed by the Bank or any Bank Subsidiary is held pursuant to leases or
licenses which are valid and enforceable in accordance with their respective
terms and such leases will not terminate or lapse prior to the Closing Date,
except where such invalidity, unenforceability, termination or lapse would not,
individually or in the aggregate, have a Material Adverse Effect.
15
(u) Certain Fees. No fees or commissions will be payable by the Bank or
------------
any Bank Subsidiary to brokers, finders, investment bankers or banks pursuant to
any agreement entered into by the Bank or any Bank Subsidiary with respect to
the transactions contemplated by this Agreement and the Related Agreements.
(v) Similar Offerings. The Bank has not, directly or indirectly, solicited
-----------------
any offer to buy or offered to sell, and will not, directly or indirectly,
solicit any offer to buy or offer to sell, in the United States or to any United
States citizen or resident, any security which is or would be integrated with
the sale of the shares of Common Stock of the Bank to the Purchasers in a manner
that would require such Common Stock to be registered under the Securities Act.
(w) Regulation M. The Bank has not taken and will not 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 shares of
Common Stock which are to be sold to the Purchasers pursuant to the Purchase and
Sale Agreement and this Agreement.
(x) No Registration. It is not necessary in connection with the sale and
---------------
delivery to the Purchasers of the shares of Common Stock in the manner
contemplated by this Agreement and the Private Offering Memorandum to register
the shares of Common Stock under the Securities Act.
(y) Memorandum. The Private Offering Memorandum does not, and at the
----------
Closing Date will not, include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading. Other
than as set forth above, the Bank makes no representation or warranty as to
compliance by the Bank with any federal or state securities disclosure
requirements.
(z) Disclosure. None of the representations and warranties of the Bank, or
----------
any of the information or documents which have been Previously Disclosed
pursuant hereto to the extent they pertain to the Bank, are false or misleading
in any material respect or contain any untrue statement of a material fact, or
omit to state any material fact required to be stated or necessary to make any
such information or document, at the time and in light of the circumstances, not
misleading. The foregoing representation is qualified by the Bank's best
knowledge to the extent such Previously Disclosed documents or information
pertain to third parties.
The representations and warranties set forth in Sections 3.2(h) and (p) are
made in reliance on the representations and warranties of the Purchasers
contained in Section 3.3(a) of this Agreement.
SECTION 3.3 REPRESENTATIONS AND WARRANTIES OF PLACEMENT AGENT.
--------------------------------------------------
(a) The Placement Agent has offered the shares of Common Stock for sale,
solicited offers to buy the shares of Common Stock, and otherwise negotiated in
respect of the shares of
16
Common Stock only in a manner that conformed to the offering procedures set
forth in the Private Offering Memorandum.
(b) The Placement Agent has delivered to each offeree a copy of the Private
Offering Memorandum.
(c) Each offeree will be given the opportunity to ask questions of
representatives of the Bank concerning the shares of Common Stock and the
transactions relating to their purchase, and immediately prior to making the
offer to each offeree, the Placement Agent will have reasonable grounds to
believe and will believe that each such offeree was an "accredited investor" as
such term is defined in Rule 501 of the General Rules and Regulations of the
Commission under the Securities Act. The representations and warranties
contained in this Section 3.3(c), insofar as they relate to federal and State
securities laws requirements, are made in reliance on the representations and
warranties of the Purchasers contained in Section 3.3 of the Purchase and Sale
Agreement.
(d) The Placement Agent will not, directly or through any agent, offer the
shares of Common Stock for sale, or solicit any offers to buy the shares of
Common Stock, or otherwise negotiate with any person with respect to the shares
of Common Stock on the basis of general solicitation or general advertising,
including without limitation, any advertisement, article, notice or other
communication published in any newspaper, magazine or similar medium or
broadcast over television or radio; or, distribute any letters, circulars,
notices, memoranda, or other written communications of a general nature to
customers announcing or describing, or inviting inquiries concerning the
offering of the shares of Common Stock.
ARTICLE IV
CONDITIONS PRECEDENT TO THE CLOSING
SECTION 4.1 CONDITIONS TO THE OBLIGATIONS OF THE PARTIES. The
--------------------------------------------
respective obligations of each of the parties hereto to fulfill their
obligations hereunder at the Closing shall be subject to the satisfaction or
waiver prior to the Closing of the following conditions:
(a) All requirements prescribed by law which are necessary to
the consummation of the transactions contemplated by this Agreement and the
Related Agreements shall have been satisfied.
(b) No party to this Agreement or the Related Agreements shall
be subject to any order, decree or injunction of a court or agency of
competent jurisdiction which enjoins or prohibits the consummation of any
of the transactions contemplated by this Agreement or the Related
Agreements.
(c) No statute, rule or regulation shall have been enacted,
entered, promulgated, interpreted, applied or enforced by any governmental
authority which prohibits, restricts or
17
makes illegal consummation of any of the transactions contemplated by this
Agreement or the Related and Sale Agreements.
(d) The Selling Shareholders shall have completed the sale of
the shares of Common Stock as contemplated by the Purchase and Sale
Agreement and this Agreement and the aggregate consideration paid for all
or the Common Stock shall be U.S. $237,775,000, of which U.S. $220,000,000
shall have been paid to the Selling Shareholders in immediately available
funds at the Closing. The remaining U.S. $17,775,000 shall have been used
to pay the costs, fees and expenses of the Transaction, other than the fees
and expenses of Chase Securities, Inc., the Attorneys-in-Fact and O'Melveny
& Xxxxx, LLP. The Selling Shareholders shall not be responsible for the
payment of any of the costs or expenses of the Transaction other than for
the payment of the fees and expenses of Chase Securities, Inc., the
Attorneys-in-Fact and O'Melveny & Xxxxx, LLP.
(e) No party to this Agreement shall be in material breach of
this Agreement unless such breach shall have been waived in writing by the
other party hereto.
SECTION 4.2 CONDITIONS TO OBLIGATIONS OF THE SELLING SHAREHOLDERS. The
------------------------------------------------------
obligations of the Selling Shareholders to fulfill their obligations under this
Agreement shall be subject to the satisfaction or waiver prior to the Closing of
the following conditions:
(a) Each of the representations and warranties of the Placement Agent
contained in this Agreement shall be true and correct in all material respects
as of the date of this Agreement and as of the Closing Date as if made on the
Closing Date.
(b) Each Purchaser shall have delivered the applicable consideration for
each of the shares of Common Stock to be purchased by it pursuant to the
Purchase and Sale Agreement, such amount to be payable by wire transfer of
immediately available funds to an account with a bank designated by the
Placement Agent, by notice to each Purchaser to be provided no later than two
Business Days prior to the Closing Date.
SECTION 4.3 CONDITIONS TO OBLIGATIONS OF THE BANK. The obligations of
--------------------------------------
the Bank to fulfill its obligations hereunder, shall be subject to the
satisfaction, or waiver prior to the Closing, of the following condition: No
party to this Agreement (other than the Bank) shall be in material breach of
this Agreement unless such breach shall have been waived in writing by each of
the other parties to this Agreement.
SECTION 4.4 CONDITIONS TO THE OBLIGATIONS OF THE PLACEMENT AGENT. The
----------------------------------------------------
obligations of the Placement Agent to fulfill its obligations hereunder shall be
subject to the satisfaction or waiver prior to the Closing of the following
conditions:
(a) Each of the representations and warranties of the Bank
contained in this Agreement shall be true and correct in all material
respects as of the date of this Agreement
18
and as of the Closing Date as if made on the Closing Date (or on the date
when made in the case of any representation or warranty which specifically
relates to an earlier date); the Bank shall have performed, in all material
respects, each of its covenants and agreements contained in this Agreement
to be performed prior to the Closing; and the Placement Agent and the
Selling Shareholders shall have received a certificate signed by the Chief
Executive Officer and the Chief Financial Officer of the Bank, dated the
Closing Date, to the foregoing effect.
(b) Each of the representations and warranties of the Selling
Shareholders contained in this Agreement shall be true and correct in all
material respects as of the date of such agreement and as of the Closing
Date as if made on the Closing Date (or on the date when made in the case
of any representation or warranty which specifically relates to an earlier
date); the Selling Shareholders shall have performed, in all material
respects, each of their covenants and agreements contained in this
Agreement to be performed prior to the Closing; and the Bank and the
Placement Agent shall have received a certificate signed by the Selling
Shareholders, dated the Closing Date, to the foregoing effect.
(c) Messrs. Wah, Chavy, Chow, Chu and Nursalim shall have resigned as
directors of the Bank or shall have been removed by the Selling
Shareholders and Messrs. Xxx, Xx, and Xxxxxxx shall have been elected
directors of the Bank.
(d) At the Closing Date, the Placement Agent and the Selling
Shareholders shall have received the favorable opinion, dated as of the
Closing Date, of Manatt Xxxxxx Xxxxxxxx LLP, counsel for the Bank, and the
Placement Agent shall have received the favorable opinion, dated the
Closing Date, of O'Melveny & Xxxxx LLP, counsel for the Selling
Shareholders, in each case, in form and substance reasonably satisfactory
to counsel for the Placement Agent. Each counsel may state that, insofar
as such opinion involves factual matters, they have relied, to the extent
they deem proper, upon certificates of officers of the Bank or the Selling
Shareholders, as the case may be, and certificates of public officials.
(e) At the Closing Date, the Placement Agent shall have received an
opinion from Deloitte & Touche LLP substantially to the effect that the
sale of the shares of Common Stock as contemplated by this Agreement and
the Related Agreements will be accounted for as a pooling of interests.
(f) At the Closing Date, there shall not have been, since the date
hereof or since the respective dates as of which information is given in
the Private Offering Memorandum, any material adverse change in the
financial condition, results of operations or business affairs of the Bank
and the Bank Subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, and the Placement Agent and the
Selling Shareholders shall have received a certificate of the President and
Chief Executive Officer of the Bank and the chief financial or chief
accounting officer of the Bank, dated as of Closing Date, to the effect
that, except as Previously Disclosed, (i) there has been no such material
adverse change, (ii) there shall have been no material transaction entered
into by the
19
Bank from the latest date as of which the financial condition of the Bank
as set forth in the Private Offering Memorandum other than transactions
referred to or contemplated therein and transactions in the ordinary cause
of business, and (iii) the Bank shall not have received from the FDIC or
the Department any direction (oral or written) to make any material change
in the method of conducting its business with which it has not complied
(which direction, if any, shall have been disclosed to the Placement Agent)
or which materially and adversely would affect the business, financial
condition or results of operations of the Bank.
(g) As of the Closing Date, the Placement Agent and the Selling
Shareholders shall have received from Deloitte & Touche LLP a letter dated
such date, in form and substance satisfactory to the Placement Agent, to
the effect that (i) they are independent public accountants with respect to
the Bank within the meaning of the Code of Ethics of the AICPA and the
Securities Act; (ii) based upon limited procedures set forth in detail in
such letter, nothing has come to their attention which causes them to
believe that (A) as of a date not more than five days prior to the Closing
Date, except as stated in such letter, there has been any change in the
Bank's capital stock, any decrease in consolidated total assets, total
deposits or stockholders' equity or increases in nonperforming assets of
the Bank, in each case, as compared with the amounts shown in the Bank
Financial Statements included in the Private Offering Memorandum or, (B)
during the period from March 31, 1998 to a date not more than five days
prior to the Closing Date, there were any decreases, as compared with the
corresponding period in the preceding year, in consolidated, net interest
income or net income of the Bank, except in all instances for increases or
decreases which the Private Offering Memorandum disclose have occurred or
may occur; and (iii) in addition to the examination referred to in their
opinion and the limited procedures referred to in clause (ii) above, they
have carried out certain specified procedures, not constituting an audit,
with respect to certain amounts, percentages and financial information
which are included in the Private Offering Memorandum and which are
specified by the Placement Agent, and have found such amounts, percentages
and financial information to be in agreement with the relevant accounting,
financial and other records of the Bank identified in such letter.
(h) The Placement Agent and the Selling Shareholders shall have
received such other certificates, opinions, documents and instruments
related to the transactions contemplated hereby as may have been reasonably
required by the Placement Agent and are customary for transactions of this
type, and all documents, instruments and other legal matters in connection
with the transactions contemplated by this Agreement shall be reasonably
satisfactory in form and substance to it and its counsel.
ARTICLE V
COVENANTS
SECTION 5.1 INFORMATION. If any event or circumstance shall occur as a
-----------
result of which it is necessary, in the reasonable opinion of counsel for the
Placement Agent, to amend or
20
supplement the Private Offering Memorandum in order to make the Private Offering
Memorandum not misleading in the light of the circumstances existing at the time
it is delivered to a Purchaser, the Bank will forthwith amend or supplement the
Private Offering Memorandum (in form and substance satisfactory to counsel for
the Placement Agent) so that, as so amended or supplemented, the Private
Offering Memorandum will not include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances existing at the time it is delivered to a
Purchaser, not misleading, and the Bank will furnish to the Placement Agent a
reasonable number of copies of such amendment or supplement. For the purpose of
this subsection, the Bank will furnish such information with respect to itself
as the Placement Agent may from time to time reasonably request.
SECTION 5.2 BLUE SKY. The Bank will take all reasonably necessary
--------
action, in cooperation with the Placement Agent, to qualify, to the extent
required, the shares of Common Stock for offering and sale under the applicable
securities laws of such states of the United States and other jurisdictions as
the Placement Agent and the Bank have agreed; provided, however, that the Bank
shall not be obligated to file any general consent to service of process or to
qualify as a foreign corporation in any jurisdiction in which it is not so
qualified.
SECTION 5.3 ISSUANCE. The Bank will not, without the prior written
--------
consent of the Placement Agent, sell or issue, contract to sell or otherwise
dispose of, any shares of Common Stock or other securities convertible into
shares of Common Stock (other than the Warrant issued to the Placement Agent
hereunder or stock options to employees) for a period of 180 days following the
Closing Date.
SECTION 5.4 PRESS RELEASES. The Bank, the Selling Shareholders, and the
--------------
Placement Agent shall agree with each other as to the form and substance of any
press release related to this Agreement, the Related Agreements or the
transactions contemplated hereby or thereby, and consult with each other as to
the form and substance of other public disclosures which may relate to the
transactions contemplated by this Agreement or the Related Agreements, provided,
however, that nothing contained herein shall prohibit any party, following
notification to such other party, from making any disclosure which it determines
in good faith is required by law or regulation, provided further, however, that
other than in the Private Placement Memorandum and the Purchase and Sale
Agreement attached as an Exhibit thereto, the names of the Selling Shareholders
shall not be used in any announcement or publicity.
SECTION 5.5 NO SOLICITATION. Between the time of execution of this
---------------
Agreement and the earlier of (i) the Closing or (ii) termination of this
Agreement in accordance with Section 8.2 hereof, neither the Selling
Shareholders, the Bank or any of the Bank's directors, officers or employees,
nor any representatives or agents of the Selling Shareholders (including,
without limitation, Chase Securities, Inc.) or the Bank shall (i) execute any
agreement, letter or undertaking of any kind whatsoever with respect to any
acquisition, lease or purchase of all or a substantial portion of the assets of,
or any equity interest in (including, without limitation, any sale of all or a
portion of the Selling Shareholders' shares of Common Stock), the Bank or any
business combination with the
21
Bank (an "Acquisition Transaction"), other than as contemplated by this
Agreement, or (ii) solicit or encourage inquiries or proposals with respect to,
furnish any information relating to, or participate in any negotiations or
discussions concerning, an Acquisition Transaction; provided, however, that with
respect to this Section 5.5(ii), the Selling Shareholders and the Bank may
continue discussions concerning an Acquisition Transaction with Development Bank
of Singapore. Other than as set forth herein, the Selling Shareholders and/or
the Bank will immediately notify the Placement Agent orally and in writing if
any such inquiries or proposals are received by, and such information is
required from, or any such negotiations or discussions are sought to be
initiated with, the Bank.
SECTION 5.6 POST OFFERING ENGAGEMENT. Upon completion of the
------------------------
transactions contemplated by this Agreement and the Related Agreements, the Bank
shall retain the Placement Agent as exclusive financial advisor in connection
with the transactions specified below (the "Post Offering Engagement"). The
term of the Placement Agent's Post Offering Engagement shall continue for 18
months from completion of the transaction contemplated by this Agreement and the
Related Agreements. During the term of the Post Offering Engagement, the
Placement Agent shall be appointed exclusive financial advisor in connection
with: (i) any sale of stock or substantial assets of the Bank outside of the
ordinary course of its business, merger, acquisition or other strategic
transaction entered into or completed by the Bank; or (ii) exclusive underwriter
or placement agent in connection with any offering of equity or debt securities
entered into or completed by the Bank (any of (i) or (ii) above a "Bank
Transaction"); provided, however, that with respect to a Bank Transaction
involving the Bank's acquisition or proposed acquisition of another entity, the
Placement Agent agrees that if it is not actively analyzing or pursuing such
acquisition on behalf of the Bank at the specific request of the Bank and the
Bank determines it to be in the best interests of its stockholders to retain a
financial advisor other than the Placement Agent to provide advice on such Bank
Transactions, the provisions of Section 5.6 shall not apply to the Bank
Transaction in question; and further provided that a sale or purchase of a
branch where the Bank does not engage an outside financial advisor shall not be
considered a Bank Transaction. Fees and expenses to be paid by the Bank to the
Placement Agent in connection with any Bank Transaction under this Section 5.6
shall be subject to mutual agreement by the Bank and the Placement Agent and
shall be consistent with customary fees paid in similar transactions.
ARTICLE VI
INDEMNIFICATION
SECTION 6.1 BANK INDEMNIFICATION. The Bank agrees to indemnify and hold
--------------------
harmless the Placement Agent, each person, if any, who controls the Placement
Agent, within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act, and its respective partners, directors, officers, employees
and agents (including counsel for the Placement Agent) as follows:
(i) from and against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, related to or arising
out of the offer, purchase and sale of the Common Stock or any
action taken by the Placement
22
Agent where acting as described in Article II hereof, except to
the extent that any loss, liability, claim, damage or expense is
found in a final judgment by a court of competent jurisdiction to
have resulted primarily from the Placement Agent's gross
negligence or willful misconduct, and except to the extent that
any loss, liability, claim, damage or expense is found in a final
judgment by a court of competent jurisdiction to have resulted
primarily from the actions or conduct of the Selling Shareholders
or any person other than the Bank involved in the Transaction;
(ii) from and against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, based upon or arising
out of any untrue statement or alleged untrue statement of a
material fact contained in the Private Offering Memorandum with
respect to the Bank (or any amendment or supplement thereto) or
the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading,
provided, however, that the Bank shall not be liable in any such
case to the extent that any such loss, liability, claim, damage
or expense arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in
the Private Offering Memorandum (or any amendment or supplement
thereto) in reliance upon and in conformity with written
information furnished by the Selling Shareholders or the
Placement Agent expressly for use therein;
(iii) from and against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, to the extent of the
aggregate amount paid in settlement of any litigation involving
or affecting the Bank, or any investigation or proceeding by any
governmental agency or body, commenced or threatened involving or
affecting the Bank, or of any claim whatsoever described in
clauses (i) or (ii) above, if such settlement is effected with
the written consent of the Bank, which consent shall not be
unreasonably withheld; and
(iv) from and against any and all expense whatsoever, as
incurred (including, subject to Section 6.2 hereof, the fees and
disbursements of counsel chosen by the Placement Agent),
reasonably incurred in investigating, preparing for or defending
against any litigation, or any investigation, proceeding or
inquiry by any governmental agency or body, commenced or
threatened, or any claim whatsoever described in clauses (i) or
(ii) above, to the extent that any such expense is not paid under
(i), (ii) or (iii) above whether or not the purchase and sale of
the shares of Common Stock is consummated;
23
(v) In addition to, and without limiting, the provisions of
Section 6.1 hereof, in the event that the Placement Agent, any
person, if any, who controls the Placement Agent within the
meaning of Section 15 of the Securities Act or Section 20 of the
Securities Act or any of its partners, directors, officers,
employees and agents is requested or required to appear as a
witness or otherwise gives testimony in any action, proceeding,
investigation or inquiry involving or affecting the Bank, which
is brought by or on behalf of or against the Bank, the Placement
Agent or any of their respective affiliates in which the
Placement Agent or such person or agent is not named as a
defendant, the Bank agrees to reimburse the Placement Agent for
all reasonable and necessary out-of-pocket expenses incurred by
it in connection with preparing or appearing as a witness or
otherwise giving testimony.
Notwithstanding the foregoing, the indemnification provided for in Section
6.1(i) above shall not apply to the Bank to the extent that any loss, liability,
claim, damage or expense thereunder is found in a final judgment by a court of
competent jurisdiction to have resulted from the actions or conduct of any
person other than the Bank and such indemnification is found in a final judgment
by a court of competent jurisdiction to constitute a covered transaction under
Section 23A of the Federal Reserve Act or an unsafe or unsound banking practice.
To the extent that the Bank determines that it is in the best interests of
the Bank to reorganize into the holding company form of organization, the Bank
shall cause the holding company so formed to assume and agree to be bound by the
terms of this Section 6.1, which shall constitute a joint and several obligation
of the Bank and such holding company.
SECTION 6.2 PLACEMENT AGENT INDEMNIFICATION. The Placement Agent agrees
-------------------------------
to indemnify and hold harmless the Bank and each of its directors, officers and
each person, if any, who controls the Bank, within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act, against any loss,
liability, claim, damage and expense to which the Bank or any such director,
officer, or controlling person may become subject under any applicable federal
or state law or otherwise, insofar as such loss, liability, claim, damage and
expense arises out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Private Offering Memorandum with
respect to information furnished to the Bank by or through the Placement Agent
expressly for use therein (or any amendment or supplement thereto) or the
omission or alleged omission therefrom of a material fact necessary in order to
make the statements therein, in light of the circumstances under which they were
made, not misleading, and will reimburse any legal or other expenses reasonably
incurred by the Bank or any such director, officer or controlling person in
connection with investigating or defending any such loss, liability, claim,
damage, action or proceeding; provided, however, that the Placement Agent will
be liable in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in the Private Offering Memorandum (or any amendment
24
or supplement thereto) in reliance upon and in conformity with written
information furnished to the Bank by or through the Placement Agent expressly
for use therein.
SECTION 6.3 SELLING SHAREHOLDERS INDEMNIFICATION. The Selling
------------------------------------
Shareholders, jointly and severally, agree to indemnify and hold harmless the
Placement Agent, each person, if any, who controls the Placement Agent, within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act, and its respective partners, directors, officers, employees and agents
(including counsel for the Placement Agent) as follows:
(i) from and against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, related to or arising
out of the breach by the Selling Shareholders of their
representations, warranties or covenants set forth in this
Agreement or the Purchase and Sale Agreement;
(ii) from and against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, based upon or arising
out of any untrue statement or alleged untrue statement of a
material fact contained in the Private Offering Memorandum with
respect to information furnished by the Selling Shareholders
expressly for use therein (or any amendment or supplement
thereto) or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading, provided, however, that the Selling Shareholders
shall not be liable in any such case to the extent that any such
loss, liability, claim, damage or expense arises out of or is
based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in the Private Offering
Memorandum (or any amendment or supplement thereto) in reliance
upon and in conformity with information furnished by the Bank or
written information furnished by the Placement Agent expressly
for use therein;
(iii) from and against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, to the extent of the
aggregate amount paid in settlement of any litigation involving
or affecting the Selling Shareholders, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, involving or affecting the Selling Shareholders, or
of any claim whatsoever described in clauses (i) or (ii) above,
if such settlement is effected with the written consent of the
Selling Shareholders which consent shall not be unreasonable
withheld;
(iv) from and against any and all expense whatsoever, as
incurred (including, subject to Section 6.2 hereof, the fees and
disbursements of counsel chosen by the Placement Agent),
reasonably incurred in investigating, preparing for or defending
against any litigation, or any
25
investigation, proceeding or inquiry by any governmental agency
or body, commenced or threatened, or any claim whatsoever
described in clauses (i) or (ii) above, to the extent that any
such expense is not paid under (i), (ii) or (iii) above whether
or not the purchase and sale of the shares of Common Stock is
consummated; and
(v) In addition to, and without limiting, the provisions of
Section 6.3 hereof, in the event that the Placement Agent, any
person, if any, who controls the Placement Agent within the
meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act or any of its partners, directors, officers,
employees and agents is requested or required to appear as a
witness or otherwise gives testimony in any action, proceeding,
investigation or inquiry involving or affecting the Selling
Shareholders, which is brought by or on behalf of or against the
Selling Shareholders, the Placement Agent or any of their
respective affiliates in which the Placement Agent or such person
or agent is not named as a defendant, the Selling Shareholders
agree to reimburse the Placement Agent for all reasonable and
necessary out-of-pocket expenses incurred by it in connection
with preparing or appearing as a witness or otherwise giving
testimony.
SECTION 6.4 NOTICE. The Placement Agent shall give notice as promptly as
------
reasonably practicable to the Selling Shareholders and the Bank of any action
commenced against it, but failure to so notify the Selling Shareholders and the
Bank shall not relieve Selling Shareholders and the Bank from any liability
which it may have otherwise than on account of this indemnity agreement.
ARTICLE VII
CONTRIBUTION
SECTION 7.1 CONTRIBUTION. In order to provide for just and equitable
------------
contribution in circumstances in which the indemnity agreement provided for in
Article VI hereof is for any reason held to be unenforceable by the indemnified
parties although applicable in accordance with its terms, the Selling
Shareholders, the Bank and the Placement Agent shall contribute to the aggregate
losses, liabilities, claims, damages and expenses of the nature contemplated by
said indemnity agreement incurred by the Selling Shareholders, the Bank and the
Placement Agent, as incurred, in such proportions (i) that the Placement Agent
is responsible for that portion represented by the percentage that the total
fees received by the Placement Agent pursuant to this Agreement (before
deducting expenses) bears to the maximum aggregate gross proceeds from the
purchase and sale of the shares of Common Stock pursuant to this Agreement and
the Purchase and Sale Agreement and the Selling Shareholders and the Bank
severally but not jointly responsible for the balance or (ii) if, but only if,
the allocation provided for in clause (i) is for any reason held unenforceable,
in such proportion as is appropriate to reflect not only the relative benefits
to the Selling Shareholders and the Bank on the one hand and the Placement Agent
on the other, as reflected in clause (i), but also the relative
26
fault of the Selling Shareholders and the Bank on the one hand and the Placement
Agent on the other, as well as any other relevant equitable considerations. The
relative fault 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
Bank or the Selling Stockholders on the one hand or the Placement Agent on the
other and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or 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. For purposes of this Article VII,
each person, if any, who controls the Placement Agent within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act shall have
the same rights to contribution as the Placement Agent, and each director of the
Bank shall have the same rights to contribution as the Bank. Notwithstanding
anything to the contrary set forth herein, to the extent permitted by applicable
law, in no event shall the Placement Agent be required to contribute an
aggregate amount in excess of the total fees received by the Placement Agent
pursuant to this Agreement (before deducting expenses), and in no event shall
the Selling Shareholders be required to contribute an amount in excess of the
gross proceeds received by them pursuant to the Purchase and Sale Agreement and
this Agreement.
Notwithstanding the foregoing, the contribution provided for in this
Article VII shall not apply to the Bank to the extent that such contribution by
the Bank is found in a final judgment by a court of competent jurisdiction to
constitute a covered transaction under Section 23A of the Federal Reserve Act.
To the extent that the Bank determines that it is in the best interests of
the Bank to reorganize into the holding company form of organization, the Bank
shall cause the holding company so formed to assume and agree to be bound by the
terms of this Article VII, which shall constitute a joint and several obligation
of the Bank and such holding company.
SECTION 7.2 REIMBURSEMENT. Its is acknowledged that (a) the Selling
-------------
Shareholders have not been actively involved in the business and management of
the Bank, (b) neither the Selling Shareholders nor their representatives have
been involved in the preparation of the Private Offering Memorandum, and (c) the
Selling Shareholders have relied solely on the Bank and its officers with
respect to information about the Bank included in the Private Offering
Memorandum. Accordingly, the Bank hereby agrees to reimburse the Selling
Shareholders for any amounts which the Selling Shareholders may be required to
pay pursuant to Section 7.1 to the Placement Agent to the extent based upon or
arising out of any untrue statement or alleged untrue statement of a material
fact contained in the Private Offering Memorandum with respect to the Bank (or
any amendment or supplement thereto) or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements therein,
in light of the circumstances under which they were made, not misleading.
Notwithstanding the foregoing, the reimbursement provided herein shall not apply
to the extent that any loss, liability, claim, damage or expense thereunder is
found in a final judgment by a court of competent jurisdiction to have resulted
from the actions or conduct of any person other than the Bank and such
indemnification is found in a final judgment by a court of competent
27
jurisdiction to constitute a covered transaction under Section 23A of the
Federal Reserve Act or an unsafe or unsound banking practice.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1 SURVIVAL OF PROVISIONS. All representations, warranties and
----------------------
agreements contained in this Agreement by each of the parties hereto, or
contained in certificates of officers of the Selling Shareholders or the Bank
submitted pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of the Placement Agent or
controlling person, or by or on behalf of the Selling Shareholders or the Bank,
in each case, with respect to the other parties to this Agreement, and shall
survive delivery of the shares of Common Stock.
SECTION 8.2 TERMINATION.
-----------
(a) The Placement Agent may terminate this Agreement at any time at or
prior to the Closing Date (i) if there has been, since the date of this
Agreement or since the respective dates as of which information is given in the
Private Offering Memorandum, any material adverse change in the financial
condition, results of operations or business affairs of the Bank, or the Bank
and the Bank Subsidiaries considered as one enterprise, whether or not arising
in the ordinary course of business, (ii) if there has occurred any material
adverse change in the financial markets in the United States or any outbreak of
hostilities or escalation thereof or other calamity or crisis the effect of
which, in the reasonable judgment of the Placement Agent, are so material and
adverse as to make it impracticable to market the shares of Common Stock or to
enforce contracts for the sale of the shares of Common Stock, (iii) if trading
generally on either the American Stock Exchange or the New York Stock Exchange
has been suspended, or minimum or maximum prices for trading have been fixed, or
maximum ranges for prices for securities have been required, by either of said
exchanges or by order of the Commission or any other governmental authority, or
if a banking moratorium has been declared by either Federal or California
authorities, (iv) if any of the conditions specified in Article V shall not have
been met or waived by it pursuant to the terms of this Agreement by 5:00 p.m.
Eastern Time on June 14, 1998, or (v) if there shall have been such material
adverse change in the condition or prospects of the Bank and the Bank
Subsidiaries considered as one enterprise or the prospective market for the
Bank's securities as in the Placement Agent's good faith opinion would make it
inadvisable to proceed with the offering, sale or delivery of the shares of
Common Stock. The Placement Agent shall provide the Bank and the Selling
Shareholders with 5 days prior written notice of termination pursuant to this
Section 8.2(a).
(b) The Selling Shareholders may terminate this Agreement if any of the
conditions specified in Article V has not been met or waived by it pursuant to
the terms of this Agreement by 5:00 p.m., Eastern Time on June 14, 1998,
provided that the Selling Shareholders provide 5 days prior written notice at
any time after June 14, 1998. The termination date provided in this Section
8.2(b) shall be extended for an additional period of time which is equivalent to
that period during
28
which the transaction contemplated by this Agreement and the Purchase and Sale
Agreement is delayed due to (a) delays caused by the Selling Shareholders or (b)
delays at the request of the Selling Shareholders. The Selling Shareholders
shall provide the Placement Agent and the Bank with 5 days prior written notice
of termination pursuant to this Section 8.2(b).
(c) The Bank may terminate this Agreement if any of the conditions
specified in Article V of this Agreement has not been met or waived by it
pursuant to the terms of this Agreement by 5:00 p.m., Eastern Time on June 14,
1998. The termination date provided in this Section 8.2(c) shall be extended
for an additional period of time which is equivalent to that period during which
the transaction contemplated by this Agreement and the Purchase and Sale
Agreement is delayed due to (a) delays caused by the Selling Shareholders or (b)
delays at the request of the Selling Shareholders. The Bank shall provide the
Placement Agent and the Selling Shareholders with 5 days prior written notice of
any termination pursuant to this Section 8.2(c) hereof.
(d) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party except
that the provisions of Articles VI and VII hereof shall survive any termination
of this Agreement.
SECTION 8.3 WAIVER; AMENDMENTS. No failure or delay on the part of any
------------------
party hereto in exercising any right, power or remedy hereunder shall operate as
a waiver thereof, nor shall any single or partial exercise of any such right,
power or remedy preclude any other or further exercise thereof or the exercise
of any other right, power or remedy. The remedies provided for herein are
cumulative and are not exclusive of any remedies that may be available to the
parties hereto at law or in equity. No waiver of or consent to any departure by
the parties hereto from any provision of this Agreement shall be effective
unless signed in writing by the party entitled to the benefit thereof. Except as
otherwise provided herein, no amendment, modification or termination of any
provision of this Agreement shall be effective unless signed in writing by or on
behalf of the parties hereto. Any amendment, supplement or modification of this
Agreement, any waiver of any provision of this Agreement, and any consent to any
departure from the terms of any provision of this Agreement, shall be effective
only in the specific instance and for the specific purpose for which made or
given. Except where notice is specifically required by this Agreement, no notice
to or demand on any party hereto in any case shall entitle another party hereto
to any other or further notice or demand in similar or other circumstances.
SECTION 8.4 COMMUNICATIONS. All notices, demands and other
--------------
communications provided for or permitted hereunder shall be made in writing by
hand-delivery, registered first-class mail, telex, telecopier, or air courier
guaranteeing overnight delivery:
(i) if to the Selling Shareholders, to Xxxx-Xxxxxx Chavy, Seyen
Investments, Inc., 000 Xxxx Xxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxxxx,
Xxxxxxxxxx 00000 and to Xxxxxx X. Xxxx, 0000 X. Xxxxxxx Xxxxxx, Xxxxxxxx,
Xxxxxxxxxx 00000, and thereafter at such other address notice of which is
given in accordance with this Section 8.4;
29
(ii) if to the Bank, initially at 000 Xxxxxxxxxx Xxxxx, Xxx
Xxxxxx, Xxxxxxxxxx 00000, Attention: President; and thereafter at such
other address, notice of which is given in accordance with this Section
8.4.; and
(iii) if to the Placement Agent, initially at 0000 Xxxxxxxxxx
Xxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx 00000, Attention: Xxxxxx X. Xxxx; and
thereafter at such other address notice of which is given in accordance
with this Section 8.4.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being sent by certified mail, return receipt requested, if mailed;
when answered back, if telexed; when receipt is acknowledged, if telecopied; and
on the next Business Day if timely delivered to an air courier guaranteeing
overnight delivery.
SECTION 8.5 ENTIRE AGREEMENT; AMENDMENT. This Agreement represents
----------------------------
the entire understanding of the parties hereto with reference to the
transactions contemplated hereby and supersedes any and all other oral or
written agreements heretofore made. No waiver, amendment or other modification
of this Agreement shall be effective unless in writing and signed by the parties
hereto.
SECTION 8.6 GOVERNING LAW AND TIME. This Agreement shall be governed by
----------------------
and construed in accordance with the laws of the Commonwealth of Virginia
applicable to agreements made and to be performed in said State without regard
to the conflicts of laws provisions thereof. Unless otherwise noted, specified
times of day refer to Eastern time.
SECTION 8.7 CONSENT TO JURISDICTION. The parties to this Agreement each
-----------------------
irrevocably consent to the jurisdiction of the courts of the Commonwealth of
Virginia and of any federal court located in such state in connection with any
action or proceeding arising out of or related to this Agreement or any Related
Agreement, any document or instrument delivered pursuant to or in connection
with this Agreement or any Related Agreement, or a breach of this Agreement, any
Related Agreement or any document or instrument delivered with respect to this
Agreement or any Related Agreement.
SECTION 8.8 SEVERABILITY. Any term or provision of this Agreement which
------------
is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction,
be ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of
this Agreement is so broad as to be unenforceable, the provision shall be
interpreted to be only so broad as is enforceable.
SECTION 8.9 HEADINGS AND GENDER. The Article and Section headings and
-------------------
Table of Contents used or contained in this Agreement are for convenience of
reference only and shall not
30
affect the construction of this Agreement. Use of a particular gender herein
shall be considered to represent the masculine, feminine or neuter gender
whenever appropriate.
31
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
EAST-WEST BANK
By: /s/ Xxxxxxx Xx
--------------
Name: Xxxxxxx Xx
Title: President and Chief Executive
Officer
THE SELLING SHAREHOLDERS
SJAMSUL NURSALIM
By: /s/ Xxxx-Xxxxxx Chavy
---------------------
Name: Xxxx-Xxxxxx Chavy
Title: Attorney-in-fact
By: /s/ Xxxxxx X. Xxxx
------------------
Name: Xxxxxx X. Xxxx
Title: Attorney-in-fact
ITJIH SJAMSUL NURSALIM
By: /s/ Xxxx-Xxxxxx Chavy
---------------------
Name: Xxxx-Xxxxxx Chavy
Title: Attorney-in-fact
By: /s/ Xxxxxx X. Xxxx
------------------
Name: Xxxxxx X. Xxxx
Title: Attorney-in-fact
CONFIRMED AND ACCEPTED,
as of the date first above written:
FRIEDMAN, BILLINGS, XXXXXX & CO., INC.
By: /s/
-----------------------------
Name:
Title:
32
