EXHIBIT 1. UNDERWRITING AGREEMENT
UNDERWRITING AGREEMENT
November 27, 2001
UnionBanCal Corporation
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Dear Sirs and Mesdames:
We, as Underwriters (the "UNDERWRITERS"), understand that UnionBanCal
Corporation, a California corporation (the "COMPANY"), proposes to issue and
sell $200,000,000 aggregate principal amount of [--]% Senior Notes due 2006 (the
"OFFERED SECURITIES"). The Offered Securities will be issued pursuant to the
provisions of an Indenture dated as of February 19, 1999 between the Company and
Bank One Trust Company, National Association (successor to The First National
Bank of Chicago), as trustee (the "TRUSTEE"), including an officer's certificate
establishing the terms of the Offered Securities under Section 2.3 thereof
(collectively, the "INDENTURE").
Subject to the terms and conditions set forth or incorporated by reference
herein, the Company hereby agrees to sell to the several Underwriters, and each
Underwriter agrees, severally and not jointly, to purchase from the Company the
respective principal amounts of Debt Securities set forth below opposite their
names at a purchase price of -----% of the principal amount of Debt Securities:
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PRINCIPAL AMOUNT OF
NAME DEBT SECURITIES
---------------------------------------------- --------------------
Xxxxxxx Xxxxx Xxxxxx Inc.
Bear, Xxxxxxx & Co. Inc.
Xxxxxx Brothers Inc.
Xxxxxx Xxxxxxx & Co. Incorporated
--------------------
Total.......................................... $200,000,000
The Underwriters will pay for the Offered Securities upon delivery thereof
at the offices of Xxxxx Xxxx & Xxxxxxxx, 0000 Xx Xxxxxx Xxxx, Xxxxx Xxxx,
Xxxxxxxxxx at 7:00 a.m. (San Francisco time) on November 30, 2001, or at such
other time agreed to by the Company and the Underwriters. The time and date of
such payment and delivery are hereinafter referred to as the Closing Date.
The Offered Securities shall have the terms set forth in the Prospectus
dated November 21, 2001, and the Prospectus Supplement dated November 27, 2001,
including the following:
Terms of Debt Securities
Maturity Date: ------------- ---, 2006
Interest Rate: [----]%
Interest Payment Dates: ------------- --- and
------------- ---
commencing ------------
---, 2002
All provisions contained in the document entitled UnionBanCal Corporation
Underwriting Agreement Standard Provisions (Debt Securities) dated November 27,
2001, a copy of which is attached hereto, are herein incorporated by reference
in their entirety and shall be deemed to be a part of this Agreement to the same
extent as if such provisions had been set forth in full herein, except that if
any term defined in such document is otherwise defined herein, the definition
set forth herein shall control.
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Please confirm your agreement by having an authorized officer sign a copy
of this Agreement in the space set forth below.
Very truly yours,
XXXXXXX XXXXX BARNEY INC.
BEAR, XXXXXXX & CO. INC.
XXXXXX BROTHERS INC.
XXXXXX XXXXXXX & CO. INCORPORATED
By: XXXXXXX XXXXX BARNEY INC.
By:
-------------------------------------
Name:
Title:
Accepted:
UNIONBANCAL CORPORATION
By:
--------------------------------------
Name:
Title:
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UNIONBANCAL CORPORATION
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(DEBT SECURITIES)
NOVEMBER 27, 2001
From time to time, UnionBanCal Corporation, a California corporation (the
"COMPANY"), may enter into one or more underwriting agreements that provide for
the sale of designated securities to the several underwriters named therein. The
standard provisions set forth herein may be incorporated by reference in any
such underwriting agreement (an "UNDERWRITING AGREEMENT"). The Underwriting
Agreement, including the provisions incorporated therein by reference, is herein
sometimes referred to as this Agreement. Terms defined in the Underwriting
Agreement are used herein as therein defined.
The Company has filed with the Securities and Exchange Commission (the
"COMMISSION") a registration statement, including a prospectus, relating to the
Offered Securities and has filed with, or transmitted for filing to, or, after
the date of the Underwriting Agreement within the required time period, shall
file with or transmit for filing to, the Commission a prospectus supplement
dated the date of the Underwriting Agreement (the "PROSPECTUS SUPPLEMENT")
specifically relating to the Offered Securities pursuant to Rule 424(b) under
the Securities Act of 1933, as amended (the "SECURITIES ACT"). The term
"REGISTRATION STATEMENT" means the registration statement, including the
exhibits thereto, as amended to the date of this Agreement. The term "BASIC
PROSPECTUS" means the prospectus included in the Registration Statement, as such
prospectus shall have been amended or supplemented (but excluding any
supplements thereto relating solely to securities other than the Offered
Securities) as of the date of this Agreement. The term "PROSPECTUS" means the
Basic Prospectus together with the Prospectus Supplement. The term "PRELIMINARY
PROSPECTUS" means a preliminary prospectus supplement specifically relating to
the Offered Securities, together with the Basic Prospectus. As used herein, the
terms "Basic Prospectus," "Prospectus" and "preliminary prospectus" shall
include in each case the documents, if any, incorporated by reference therein as
of the respective dates of those documents. The terms "SUPPLEMENT," "AMENDMENT"
and "AMEND" as used herein shall include all documents deemed to be incorporated
by reference in the Prospectus that are filed subsequent to the date of the
Underwriting Agreement by the Company with the Commission pursuant to the
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT").
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1. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants to
and agrees with each of the Underwriters as of the date of the Underwriting
Agreement that:
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect, and no
proceedings for such purpose are pending before or, to the knowledge of the
Company, threatened by the Commission.
(b) (i) Each document filed or to be filed pursuant to the Exchange Act and
incorporated by reference in the Prospectus complied or will comply when so
filed in all material respects with the Exchange Act and the applicable rules
and regulations of the Commission thereunder, (ii) each part of the Registration
Statement, at the Effective Date, did not contain and each such part, as amended
or supplemented, at such date, if applicable, will not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, (iii)
the Registration Statement, at the Effective Date, complied, and the Prospectus,
at the time it is filed with the Commission pursuant to Rule 424(b) under the
Securities Act, and as amended or supplemented, if applicable, when so filed,
will comply in all material respects with the Securities Act and the applicable
rules and regulations of the Commission thereunder and (iv) the Prospectus, as
of its date, did not contain, and, as amended or supplemented, if applicable,
will not contain, any 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, except that the
representations and warranties set forth in this Section 1(b) do not apply (A)
to statements or omissions in the Registration Statement or the Prospectus based
upon information concerning any Underwriter furnished to the Company in writing
by or on behalf of such Underwriter expressly for use therein, it being
understood and agreed that the only such information is that described in
Section 6(b) hereof, or (B) to those parts of the Registration Statement that
constitute the Statements of Eligibility (Form T-1) under the Trust Indenture
Act of 1939, as amended (the "TRUST INDENTURE ACT"), of the trustees referred to
in the Registration Statement. As used herein, the term "Effective Date" means
the later of (x) the date the Registration Statement (or any post-effective
amendment) was declared effective by the Commission under the Securities Act and
(y) the date that the Company's most recent Annual Report on Form 10-K was filed
with the Commission under the Exchange Act.
(c) The Company is duly registered as a bank holding company under the Bank
Holding Company Act of 1956, as amended, has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the State of
California, and has the corporate power and authority to own its property and to
conduct its business as described in the Prospectus; and all of the issued
shares of capital stock of each subsidiary of the Company have been duly and
validly authorized and issued, are fully paid and non-
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assessable and are owned directly or indirectly by the Company, free and clear
of all liens, encumbrances, equities or claims.
(d) Union Bank of California, N.A. ("UBOC") has been duly incorporated, is
validly existing as a national banking association in good standing under the
laws of the United States, has the corporate power and authority to own its
property and to conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each jurisdiction in
which the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a Material Adverse Effect. For
purposes of this Agreement, "MATERIAL ADVERSE EFFECT" shall mean a material
adverse change in the condition, financial or otherwise, or in the earnings,
business or operations of the Company and its subsidiaries, taken as a whole.
(e) The Company and its subsidiaries are in compliance in all material
respects with all laws administered by and regulations of the Board of Governors
of the Federal Reserve System, the Office of the Comptroller of the Currency and
the Federal Deposit Insurance Corporation the failure to comply with which would
have a Material Adverse Effect.
(f) This Agreement has been duly authorized, executed and delivered by the
Company.
(g) The Indenture has been duly qualified under the Trust Indenture Act and
has been duly authorized, executed and delivered by the Company and is a valid
and binding agreement of the Company, enforceable against the Company in
accordance with its terms except as (A) may be limited by bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium or other similar
laws affecting the enforcement of creditors' rights generally, (B) rights of
acceleration and the availability of equitable remedies may be limited by
equitable principles of general applicability and (C) may be limited by an
implied covenant of reasonableness, good faith and fair dealing.
(h) The Offered Securities have been duly authorized by the Company and,
when executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters in accordance with
the terms of this Agreement, will be entitled to the benefits of the Indenture
and will be valid and binding obligations of the Company, enforceable against
the Company in accordance with their terms except as (A) may be limited by
bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or
other similar laws affecting the enforcement of creditors' rights generally, (B)
rights of acceleration and the availability of equitable remedies may be limited
by equitable principles of general applicability and (C) may be limited by an
implied covenant of reasonableness, good faith and fair dealing.
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(i) The execution and delivery by the Company of, and the performance by
the Company of its obligations under, this Agreement, the Indenture and the
Offered Securities will not contravene any provision of applicable law or the
articles of incorporation or by-laws of the Company or, except for violations
that individually or in the aggregate would not result in a Material Adverse
Effect, any agreement or other instrument binding upon the Company or any of its
subsidiaries that is material to the Company and its subsidiaries, taken as a
whole, or any judgment, order or decree of any governmental body, agency or
court having jurisdiction over the Company or any subsidiary, and no consent,
approval, authorization or order of, or qualification with, any governmental
body or agency is required for the performance by the Company of its obligations
under this Agreement, the Indenture or the Offered Securities, (i) except such
as have been obtained or may be required by the securities or Blue Sky laws of
the various states in connection with the offer and sale of the Offered
Securities or (ii) except to the extent that the failure to so obtain would not
individually or in the aggregate have a Material Adverse Effect.
(j) Since the date as of which information is given in the Prospectus,
there has not occurred any material adverse change, or any development involving
a prospective material adverse change, in the condition, financial or otherwise,
or in the earnings, business or operations of the Company and its subsidiaries,
taken as a whole, from that set forth in the Prospectus (exclusive of any
amendments or supplements thereto effected subsequent to the date of the
Underwriting Agreement).
(k) Each preliminary prospectus filed pursuant to Rule 424(b) under the
Securities Act complied when so filed in all material respects with the
Securities Act and the applicable rules and regulations of the Commission
thereunder.
(l) The Company is not, and after giving effect to the offering and sale of
the Offered Securities and the application of the proceeds thereof as described
in the Prospectus, will not be an "investment company" or an entity "controlled"
by an "investment company," as such terms are defined in the Investment Company
Act of 1940, as amended.
(m) There are no legal or governmental proceedings pending or, to the
knowledge of the Company, threatened to which the Company or any of its
subsidiaries is a party or to which any of the properties of the Company or any
of its subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described, or any
statutes, regulations, contracts or other documents that are required to be
described in the Registration Statement or the Prospectus or to be filed or
incorporated by reference as exhibits to the Registration Statement that are not
described, filed or incorporated as required.
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(n) The Company and each of its subsidiaries possess all material
certificates, authorizations and permits issued by the appropriate federal,
state or foreign regulatory authorities necessary to conduct their respective
businesses, and neither the Company nor any such subsidiary has received any
notice of proceedings relating to the revocation or modification of any such
certificate, authorization or permit which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would result in a
Material Adverse Effect, except as set forth in the Prospectus.
2. PUBLIC OFFERING. The Company is advised by the Underwriters that they
propose to make a public offering of their respective portions of the Offered
Securities as soon after this Agreement has been entered into as in their
judgment is advisable. The terms of the public offering of the Offered
Securities, including the initial public offering price thereof, will be set
forth in the Prospectus.
3. PURCHASE AND DELIVERY. Payment for the Offered Securities shall be made
to the Company by wire transfer of immediately available funds at the time and
place set forth in the Underwriting Agreement, upon delivery to the Underwriters
of the Offered Securities. The Offered Securities shall be delivered to the
Underwriters only in book- entry form through the facilities of The Depository
Trust Company in New York, New York. The certificate or certificates for the
Offered Securities shall be in the form of one or more typewritten global notes
in fully registered form, in the aggregate principal amount of the Offered
Securities, and registered in the name of Cede & Co., as nominee of The
Depository Trust Company. The Company agrees to make the Offered Securities
available to the Underwriters for checking not later than 9:00 a.m., New York
time, on the last business day preceding the Closing Date at such place as may
be agreed upon between the Underwriters and the Company, or at such other time
and/or date as may be agreed upon between the Underwriters and the Company.
4. CONDITIONS TO CLOSING. The several obligations of the Underwriters
hereunder are subject to the following conditions:
(a) Subsequent to the execution and delivery of the Underwriting Agreement
and prior to the Closing Date,
(i) there shall not have occurred any downgrading, nor shall any
notice have been given of any intended or potential downgrading or of any
review for a possible negative change or that does not indicate the
direction of the possible change, in the rating accorded any of the
Company's securities by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule 436(g)(2) under
the Securities Act;
(ii) since the date as of which information is given in the
Prospectus, there shall not have occurred any change, or any development
involving a
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prospective change, in the condition, financial or otherwise, or in the
earnings, business or operations of the Company and its subsidiaries, taken
as a whole, from that set forth in the Prospectus (exclusive of any
amendments or supplements thereto effected subsequent to the date of the
Underwriting Agreement), that, in the judgment of the Underwriters, is
material and adverse and that makes it, in the judgment of the
Underwriters, impracticable to market the Offered Securities on the terms
and in the manner contemplated by the Prospectus; and
(iii) the Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer of
the Company (an "EXECUTIVE OFFICER"),
(A) to the effect set forth in Section 4(a)(ii) hereof; and
(B) to the effect that the representations and warranties of the
Company contained in this Agreement are true and correct as of the
Closing Date and that the Company has complied with all of the
agreements and satisfied all of the conditions on its part to be
performed or satisfied on or before the Closing Date.
The Executive Officer signing and delivering such certificate may rely
upon the best of his or her knowledge as to proceedings threatened.
(b) The Underwriters shall have received on the Closing Date an opinion of
Pillsbury Winthrop LLP, outside counsel to the Company, dated the Closing Date,
substantially to the effect set forth in Exhibit A.
(c) The Underwriters shall have received on the Closing Date an opinion of
Xxxx X. XxXxxxxx, Xx., Executive Vice President and General Counsel of the
Company, dated the Closing Date, substantially to the effect set forth in
Exhibit B.
(d) The Underwriters shall have received on the Closing Date an opinion of
Xxxxx Xxxx & Xxxxxxxx, special counsel for the Underwriters, dated the Closing
Date, with respect to the issuance and sale of the Offered Securities, the
Indenture, the Registration Statement and the Prospectus and such other matters
as the Underwriters may reasonably request.
With respect to Sections 4(b) and 4(d) hereof, Pillsbury Winthrop LLP and
Xxxxx Xxxx & Xxxxxxxx, respectively, may state that their opinion and belief are
based upon their participation in the preparation of the Registration Statement
and the Prospectus and any amendments or supplements thereto (but not including
documents incorporated therein by reference) and review and discussion of the
contents thereof (including
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documents incorporated therein by reference), but are without independent check
or verification, except as specified.
With respect to Section 4(b) hereof, Pillsbury Winthrop LLP may rely, with
respect to factual matters and to the extent such counsel deems appropriate,
upon the representations of the Company contained herein and in other documents
and instruments.
The opinion of Pillsbury Winthrop LLP described in Section 4(b) hereof
shall be rendered to the Underwriters at the request of the Company and shall so
state therein.
(e) The Underwriters shall have received on the date of the Prospectus and
on the Closing Date letters, dated the date of the Prospectus and the Closing
Date, in form and substance satisfactory to the Underwriters, from Deloitte &
Touche LLP, independent public accountants, containing statements and
information of the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain financial
information contained in or incorporated by reference into the Prospectus.
5. COVENANTS OF THE COMPANY. In further consideration of the agreements of
the Underwriters contained herein, the Company covenants with each Underwriter
as follows:
(a) To furnish to each Underwriter, without charge, a conformed copy of the
Registration Statement (including exhibits thereto and, upon request, including
documents incorporated therein by reference) and, during the period mentioned in
Section 5(c) hereof, as many copies of the Prospectus and any supplements and
amendments thereto or to the Registration Statement as the Underwriters may
reasonably request.
(b) Before amending or supplementing the Registration Statement or the
Prospectus with respect to the Offered Securities, to furnish to the
Underwriters a copy of each such proposed amendment or supplement and not to
file any such proposed amendment or supplement to which the Underwriters
reasonably object promptly after reasonable notice thereof.
(c) If, during such period after the first date of the public offering of
the Offered Securities as in the opinion of counsel for the Underwriters (which
counsel shall be reasonably acceptable to the Company; PROVIDED that Xxxxx Xxxx
& Xxxxxxxx shall be deemed to be acceptable to the Company), the Prospectus is
required by law to be delivered in connection with sales by an Underwriter or
dealer, any event shall occur or condition exist as a result of which it is
necessary to amend or supplement the Prospectus in order to make the statements
therein, in the light of the circumstances existing when the Prospectus is
delivered to a purchaser, not misleading, or if it is necessary to amend or
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supplement the Prospectus to comply with law, forthwith to prepare and furnish,
at its own expense, to the Underwriters and to the dealers (whose names and
addresses the Underwriters will furnish to the Company) to which Offered
Securities may have been sold by the Underwriters and to any other dealers upon
request, either amendments or supplements to the Prospectus, so that the
statements in the Prospectus as so amended or supplemented will not, in the
light of the circumstances existing when the Prospectus is delivered to a
purchaser, be misleading or so that the Prospectus, as so amended or
supplemented, will comply with law and to cause such amendments or supplements
to be filed promptly with the Commission within the requisite time period
required by the Securities Act or the applicable rules and regulations
promulgated by the Commission thereunder.
(d) To endeavor to qualify the Offered Securities for offer and sale under
the securities or Blue Sky laws of such jurisdictions in the United States as
the Underwriters shall reasonably request; PROVIDED that in connection
therewith, the Company shall not be required to qualify as a foreign corporation
or as a dealer or to file a general consent to service of process in any
jurisdiction or to subject itself to taxation in respect of doing business in
any jurisdiction in which it is not otherwise so subject.
(e) To make generally available to the Company's security holders and to
the Underwriters as soon as practicable an earning statement covering a
twelve-month period beginning on the first day of the first full fiscal quarter
after the date of the Underwriting Agreement, which earning statement shall
satisfy the provisions of Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder. If such fiscal quarter is the last
fiscal quarter of the Company's fiscal year, such earning statement shall be
made available not later than 90 days after the close of the period covered
thereby and in all other cases shall be made available not later than 45 days
after the close of the period covered thereby.
(f) During the period beginning on the date of the Underwriting Agreement
and continuing to and including the Closing Date, not to offer, sell, contract
to sell or otherwise dispose of any debt securities of the Company or warrants
to purchase debt securities of the Company substantially similar to the Offered
Securities (other than (i) the Offered Securities and (ii) commercial paper),
without the prior written consent of the Underwriters.
(g) Whether or not any sale of Offered Securities is consummated, to pay or
cause to be paid all expenses incident to the performance of its obligations
under this Agreement, including: (i) the preparation and filing of the
Registration Statement and the Prospectus and all amendments and supplements
thereto, (ii) the preparation, issuance and delivery of the Offered Securities,
(iii) the fees and disbursements of the Company's counsel and accountants, (iv)
the qualification of the Offered Securities under state securities or Blue Sky
laws in accordance with the provisions of Section 5(d) hereof,
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including filing fees and the fees and disbursements of counsel for the
Underwriters in connection therewith and in connection with the printing or
producing and delivery of any Blue Sky memoranda, (v) the printing and delivery
to the Underwriters in quantities as hereinabove stated of copies of the
Registration Statement and all amendments thereto and of the Prospectus and any
amendments or supplements thereto, (vi) any fees charged by rating agencies for
the rating of the Offered Securities, (vii) the filing fees and expenses, if
any, incurred with respect to any filing with the National Association of
Securities Dealers, Inc. made in connection with the Offered Securities, and
(viii) any expenses incurred by the Company in connection with a "road show"
presentation to potential investors.
6. INDEMNIFICATION AND CONTRIBUTION. (a) The Company agrees to indemnify
and hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred in connection with defending or investigating any
such action or claim) caused by any untrue statement or allegedly untrue
statement of a material fact contained in the Registration Statement or any
amendment thereof, any preliminary prospectus or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any such untrue statement or omission or allegedly
untrue statement or omission based upon information concerning any Underwriter
furnished to the Company in writing by or on behalf of such Underwriter
expressly for use therein, it being understood and agreed that the only such
information is that described in Section 6(b) hereof; PROVIDED, HOWEVER, that
the foregoing indemnity agreement with respect to any preliminary prospectus
shall not inure to the benefit of any Underwriter from whom the person asserting
any such losses, claims, damages or liabilities purchased Offered Securities, or
any person controlling such Underwriter, if a copy of the Prospectus (as then
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto) was not sent or given by or on behalf of such Underwriter
to such person, if required by law so to have been delivered, at or prior to the
written confirmation of the sale of the Offered Securities to such person, and
if the Prospectus (as so amended or supplemented) would have cured the defect
giving rise to such loss, claim, damage or liability, unless such failure is the
result of non-compliance by the Company with Section 5(a) hereof.
(b) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the Registration
Statement and each person, if any, who controls the Company within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act to
the same extent as the foregoing
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indemnity from the Company to each Underwriter, but only with reference to
information concerning such Underwriter furnished to the Company by or on behalf
of such Underwriter in writing expressly for use in the Registration Statement,
any preliminary prospectus, the Prospectus or any amendments or supplements
thereto. The Company understands and agrees that the statements set forth in the
last paragraph of the cover page regarding delivery of the Offered Securities
and, under the heading "Underwriting", (i) the list of Underwriters and their
respective participation in the sale of the Offered Securities, (ii) the
statements related to concessions and reallowances, and (iii) the statements
relating to stabilization, syndicate covering transactions and penalty bids, in
the Registration Statement, any preliminary prospectus, the Prospectus or any
amendments or supplements thereto constitute the only information furnished in
writing by or on behalf of the Underwriters expressly for use therein.
(c) In case any proceeding (including any governmental investigation) shall
be instituted involving any person in respect of which indemnity may be sought
pursuant to either Section 6(a) or 6(b), such person (the "INDEMNIFIED PARTY")
shall promptly notify the person against whom such indemnity may be sought (the
"INDEMNIFYING PARTY") in writing and the indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified parties and that all such fees
and expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by the Underwriters, in the case of parties indemnified
pursuant to Section 6(a) above, and by the Company, in the case of parties
indemnified pursuant to Section 6(b) above. The indemnifying party shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by the third sentence of this
Section 6(c), the indemnifying party agrees that it shall be liable for any
settlement of any proceeding effected without its written consent if (i) such
settlement is entered into
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more than 30 days after receipt by such indemnifying party of the aforesaid
request, (ii) such indemnifying party shall have received notice of the terms of
such settlement at least 10 days prior to such settlement being entered into
(PROVIDED, HOWEVER, that the failure to notify the indemnifying party shall not
relieve it from any liability which it may have under this Section 6) and (iii)
such indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect
of which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all liability
on claims that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in Section 6(a) or 6(b)
is unavailable to an indemnified party or insufficient in respect of any losses,
claims, damages or liabilities referred to therein, then each indemnifying party
under such paragraph, in lieu of indemnifying such indemnified party thereunder,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other hand from the offering of the Offered
Securities or (ii) if the allocation provided by clause 6(d)(i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause 6(d)(i) above but also the
relative fault of the Company on the one hand and the Underwriters on the other
hand in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other hand in connection with the offering of the
Offered Securities shall be deemed to be in the same respective proportions as
the net proceeds from the offering of such Offered Securities (before deducting
expenses) received by the Company and the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in the table
on the cover of the Prospectus Supplement, bear to the aggregate public offering
price of the Offered Securities. The relative fault of the Company on the one
hand and of the Underwriters on the other hand shall be determined by reference
to, among other things, whether the untrue or allegedly untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or by the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
(e) The Company and the Underwriters agree that it would not be just or
equitable if contribution pursuant to this Section 6 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to
11
in the immediately preceding paragraph. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages and liabilities
referred to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 6, no Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Offered Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages that such Underwriter has otherwise been
required to pay by reason of such untrue or allegedly untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' respective obligations to contribute
pursuant to this Section 6 are several in proportion to the respective
underwriting discounts or commissions applicable to the Offered Securities
purchased by each of such Underwriters and not joint. The remedies provided for
in this Section 6 are not exclusive and shall not limit any rights or remedies
which may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 6
and the representations, warranties and other statements of the Company
contained in this Agreement shall remain operative and in full force and effect
regardless of (i) any termination of this Agreement, (ii) any investigation made
by or on behalf of any Underwriter or any person controlling any Underwriter or
the Company, its officers or directors or any person controlling the Company and
(iii) acceptance of and payment for any of the Offered Securities.
7. TERMINATION. This Agreement shall be subject to termination by notice
given by the Underwriters to the Company, if (a) after the execution and
delivery of the Underwriting Agreement and prior to the Closing Date (i) trading
generally shall have been suspended or materially limited on or by, as the case
may be, any of the New York Stock Exchange, the American Stock Exchange, the
National Association of Securities Dealers, Inc., the Chicago Board of Options
Exchange, the Chicago Mercantile Exchange or the Chicago Board of Trade, (ii)
trading of any securities of the Company shall have been suspended on any
exchange or in any over-the-counter market, (iii) a general moratorium on
commercial banking activities in New York or California shall have been declared
by Federal, New York State or California authorities, or (iv) there shall have
occurred any outbreak or escalation of hostilities or any change in financial
markets or any calamity or crisis that, in the judgment of the Underwriters, is
material and adverse and (b) in the case of any of the events specified in
clauses (i) through (iv), such event, singly or together with any other such
event, makes it, in the judgment of the Managers, impracticable to market the
Offered Securities on the terms and in the manner contemplated by the
Prospectus.
12
8. DEFAULTING UNDERWRITERS. If, on the Closing Date, any one or more of the
Underwriters shall fail or refuse to purchase Offered Securities that it has or
they have agreed to purchase hereunder on such date, and the aggregate number of
Offered Securities which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase is not more than one-tenth of the aggregate number
of the Offered Securities to be purchased on such date, the other Underwriters
shall be obligated severally in the proportions that the number of Offered
Securities set forth opposite their respective names herein bears to the
aggregate number of Offered Securities set forth opposite the names of all such
non-defaulting Underwriters, or in such other proportions as the non- defaulting
Underwriters may specify, to purchase the Offered Securities which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
on such date; PROVIDED that in no event shall the number of Offered Securities
that any Underwriter has agreed to purchase pursuant to this Agreement be
increased pursuant to this Section 8 by an amount in excess of one-ninth of such
number of Offered Securities without the written consent of such Underwriter.
If, on the Closing Date, any Underwriter or Underwriters shall fail or refuse to
purchase Offered Securities and the aggregate number of Offered Securities with
respect to which such default occurs is more than one-tenth of the aggregate
number of Offered Securities to be purchased, and arrangements satisfactory to
the Underwriters and the Company for the purchase of such Offered Securities are
not made within 36 hours after such default, this Agreement shall terminate
without liability on the part of any non-defaulting Underwriter or the Company.
In any such case that does not result in termination, either the non-defaulting
Underwriters or the Company shall have the right to postpone the Closing Date,
but in no event for longer than seven days, in order that the required changes,
if any, in the Registration Statement and in the Prospectus or in any other
documents or arrangements may be effected. Any action taken under this paragraph
shall not relieve any defaulting Underwriter from liability in respect of any
default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of them,
because of any failure or refusal on the part of the Company to comply with the
terms of this Agreement or to fulfill any of the conditions of this Agreement
set forth in Section 4 hereof, or if for any reason the Company shall be unable
to perform its obligations under this Agreement, the Company agrees to reimburse
the Underwriters or such Underwriters as have so terminated this Agreement with
respect to themselves, severally, for all out-of-pocket expenses (including the
fees and disbursements of their counsel) reasonably incurred by such
Underwriters in connection with this Agreement or the offering of the Offered
Securities.
9. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective indemnity and
contribution agreements and the representations, warranties and other statements
of the Company, its officers and the Underwriters set forth in this Agreement
will remain in full
13
force and effect, regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of any Underwriter or any person controlling
any Underwriter or by or on behalf of the Company, its officers or directors or
any person controlling the Company and (iii) acceptance of and payment for any
of the Offered Securities.
10. SUCCESSORS. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers,
directors and controlling persons referred to in Section 8 hereof, and no other
person will have any right or obligation hereunder.
11. COUNTERPARTS. The Underwriting Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto were upon the same instrument.
12. APPLICABLE LAW. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York.
13. HEADINGS. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
14
EXHIBIT A
OPINION OF COUNSEL TO THE COMPANY
---------------------------------
The opinion or opinions of Pillsbury Winthrop LLP, outside counsel to the
Company, to be delivered pursuant to Section 4(b) of the Underwriting Agreement,
shall be to the following effect (capitalized terms used herein and not defined
herein shall have the meanings set forth in the Underwriting Agreement):
1. The Company is duly registered as a bank holding company under the Bank
Holding Company Act of 1956, as amended, has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the jurisdiction of
its incorporation, and has the corporate power and authority to own its property
and to conduct its business as described in the Prospectus.
2. UBOC has been duly incorporated, is validly existing as a national
banking association in good standing under the laws of the United States, has
the corporate power and authority to own its property and to conduct its
business as described in the Prospectus and is duly qualified to transact
business and is in good standing in each jurisdiction in which the conduct of
its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be in
good standing would not have a Material Adverse Effect.
3. The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
4. The Indenture has been duly qualified under the Trust Indenture Act and
has been duly authorized, executed and delivered by the Company and, assuming
that it has been duly authorized, executed and delivered by the Trustee, is a
valid and binding agreement of the Company, enforceable against the Company in
accordance with its terms except as (A) may be limited by bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium or other similar
laws affecting the enforcement of creditors' rights generally, (B) rights of
acceleration and the availability of equitable remedies may be limited by
equitable principles of general applicability and (C) may be limited by an
implied covenant of reasonableness, good faith and fair dealing.
5. The Offered Securities have been duly authorized by the Company and,
when executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters in accordance with
the terms of the Underwriting Agreement, will be entitled to the benefits of the
Indenture and will be valid and binding obligations of the Company, enforceable
against the Company in accordance with their respective terms except as (A) may
be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or other similar laws affecting the
A-1
enforcement of creditors' rights generally, (B) rights of acceleration and the
availability of equitable remedies may be limited by equitable principles of
general applicability and (C) may be limited by an implied covenant of
reasonableness, good faith and fair dealing.
6. The execution and delivery by the Company of, and the performance by the
Company of its obligations under, the Underwriting Agreement, the Indenture and
the Offered Securities will not contravene any provision of applicable law
(except with respect to the Blue Sky laws of the various states) or the articles
of incorporation or by-laws of the Company, and no consent, approval,
authorization or order of, or qualification with, any governmental body or
agency is required for the performance by the Company of its obligations under
the Underwriting Agreement, the Indenture and the Offered Securities, (i) except
such as have been obtained or may be required by the securities or Blue Sky laws
of the various states in connection with the offer and sale of the Offered
Securities or (ii) except to the extent that the failure to so obtain would not
individually or in the aggregate have a Material Adverse Effect.
7. The Company is not an "investment company" or an entity "controlled" by
an "investment company," as such terms are defined in the Investment Company Act
of 1940, as amended.
8. Such counsel (A) is of the opinion that each document filed pursuant to
the Exchange Act and incorporated by reference in the Prospectus (except for
financial statements and schedules and other financial and statistical data
included or incorporated by reference therein as to which such counsel need not
express any opinion) complied when so filed as to form in all material respects
with the Exchange Act and the applicable rules and regulations of the Commission
thereunder, (B) has no reason to believe that (except for financial statements
and schedules and other financial and statistical data included or incorporated
by reference therein as to which such counsel need not express any belief and
except for that part of the Registration Statement that constitutes the Form T-1
heretofore referred to) the Registration Statement, at the Effective Date,
contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading, (C) is of the opinion that the Registration Statement, at the
Effective Date, and the Prospectus, at the time it was filed with the Commission
pursuant to Rule 424(b) under the Securities Act (in each case, except for
financial statements and schedules and other financial and statistical data
included or incorporated by reference therein as to which such counsel need not
express any opinion) complied as to form in all material respects with the
Securities Act and the applicable rules and regulations of the Commission
thereunder and (D) has no reason to believe that (except for financial
statements and schedules and other financial and statistical data included or
incorporated by reference therein as to which such counsel need not express any
belief) the Prospectus, as of its date and as of the date of such opinion,
contained or contains any untrue statement of a material fact or omitted
A-2
or omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
9. The statements (a) in the Base Prospectus under the captions
"Description of Securities--Description of Debt Securities," (b) in the
Prospectus Supplement under the captions "Description of the Notes," "Certain
U.S. Federal Tax Considerations," (c) in the Registration Statement in Item 15,
(d) in "Item 3 - Legal Proceedings" of the Company's most recent annual report
on Form 10-K incorporated by reference in the Prospectus and (e) in "Item 1 -
Legal Proceedings" of Part II of the Company's quarterly reports on Form 10-Q,
if any, filed since such annual report, in each case insofar as such statements
constitute summaries of the legal matters, documents or proceedings referred to
therein constitute accurate summaries in all material respects.
A-3
EXHIBIT B
OPINION OF XXXX X. XXXXXXXX, XX.
--------------------------------
The opinion or opinions of Xxxx X. XxXxxxxx, Xx., Executive Vice President
and General Counsel of the Company, to be delivered pursuant to Section 4(c) of
the Underwriting Agreement, shall be to the following effect (capitalized terms
used herein and not defined herein shall have the meanings set forth in the
Underwriting Agreement):
1. All of the issued shares of capital stock of UBOC have been duly and
validly authorized and issued, are fully paid and non-assessable and are owned
directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims.
2. To the best of his knowledge, the Company and its subsidiaries are in
compliance in all material respects with all laws administered by and
regulations of the Board of Governors of the Federal Reserve System, the Office
of the Comptroller of the Currency and the Federal Deposit Insurance Corporation
the failure to comply with which would have a Material Adverse Effect.
3. The execution and delivery by the Company of, and the performance by the
Company of its obligations under, the Underwriting Agreement, the Indenture and
the Offered Securities will not contravene, to the best of his knowledge, any
agreement or other instrument binding upon the Company or any of its
subsidiaries that is material to the Company and its subsidiaries, taken as a
whole, or, to the best of his knowledge, any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company or any
subsidiary, in each case, except for violations that individually or in the
aggregate would not result in a Material Adverse Effect.
4. To the best of his knowledge, there are no legal or governmental
proceedings pending or threatened to which the Company or any of its
subsidiaries is a party or to which any of the properties of the Company or any
of its subsidiaries is subject (i) which are required to be described in the
documents incorporated by reference in the Registration Statement or Prospectus
and are not so described or (ii) which could reasonably be expected to result in
a material adverse change in the condition, financial or otherwise, or in the
earnings, business or operations of the Company and its subsidiaries, taken as a
whole, or in the power or ability of the Company to perform its obligations
under the Underwriting Agreement or to consummate any of the transactions
contemplated by the Underwriting Agreement. To the best of his knowledge, there
are no statutes, regulations, contracts or other documents that are required to
be described in the Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement that are not described or filed as
required.
B-1
5. In addition, he or his staff have participated in conferences with
officers and other representatives of the Company, representatives of the
independent accountants of the Company, the Company's outside counsel and
representatives of the Underwriters and counsel to the Underwriters at which the
contents of the Registration Statement and the Prospectus and related matters
were discussed and, although he is not passing upon, and does not assume any
responsibility for, the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus and has made no
independent check or verification thereof, on the basis of the foregoing, no
facts have come to his attention that have led him to believe that the
Registration Statement, at the Effective Date, contained an untrue statement of
a material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading or that the
Prospectus, as of its date and as of the date of such opinion, contained or
contains an untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in the light of
the circum stances under which they were made, not misleading, except that he
expresses no belief with respect to the financial statements, schedules and
other financial and statistical data included therein, or incorporated, or
deemed to be incorporated, by reference therein or the exhibits to the
Registration Statement and that part of the Registration Statement that
constitutes the Form T-1 heretofore referred to.
B-2
