EXHIBIT 1
$40,000,000
First Republic Preferred Capital Corporation
1,600,000 Shares
8.875% Noncumulative Perpetual Series B Preferred Stock
UNDERWRITING AGREEMENT
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January 17, 2002
Xxxxx Fargo Securities, LLC
Xxxx, Xxxx & Co., LLC
Xxxxx, Xxxxxxxx & Xxxxx, Inc.
Xxxxxxx, X'Xxxxx & Partners, L.P.
c/o Wells Fargo Securities, LLC
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Ladies and Gentlemen:
First Republic Preferred Capital Corporation, a Nevada corporation (the
"Company") and First Republic Bank (the "Bank"), a Nevada banking corporation,
confirm their agreement (this "Agreement") with Xxxxx Fargo Securities, LLC
("Xxxxx Fargo"); Xxxx, Xxxx & Co., LLC ("Xxxx, Xxxx"); Xxxxx, Xxxxxxxx & Xxxxx,
Inc. ("Xxxxx, Xxxxxxxx"); and Sandler, X'Xxxxx & Partners, L.P. ("Sandler,
X'Xxxxx" and together with Xxxxx Fargo; Xxxx, Xxxx; and Keefe, Bruyette, the
"Underwriters," which term shall also include any underwriter substituted as
provided in Section 10 hereof), with respect to the issue and sale by the
Company and the purchase by the Underwriters, acting severally and not jointly,
of the respective number of shares set forth in Schedule A of the Company's
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8.875% Noncumulative Perpetual Series B Preferred Stock (the "Series B Preferred
Stock"), and with respect to the grant by the Company to the Underwriters,
acting severally and not jointly, of the option described in Section 2(b) hereof
to purchase all or any part of 240,000 additional Shares of Series B Preferred
Stock to cover over-allotments, if any. The aforesaid 240,000 shares of Series B
Preferred Stock to be purchased by the Underwriters (the "Initial Securities")
and any part of the 240,000 shares of Series B Preferred Stock subject to the
option described in Section 2(b) hereof (the "Option Securities") are
hereinafter called, collectively, the "Securities." Each of the Securities is
exchangeable, on the terms set forth in the Certificate of Designations of the
Company for the Series B Preferred Stock (the "Certificate of Designations"),
for 1/40 of a share of the Bank's 8.875% Noncumulative Perpetual Series B
Preferred Stock (the "Bank Preferred Stock"), which Bank Preferred Stock is
described in and subject to the conditions set forth in the Certificate of
Designations of the Bank with respect thereto (the "Bank Certificate of
Designations"). The Securities will be issued in book-entry form to Cede & Co.
as nominee of The Depository Trust Company ("DTC") pursuant to an additional or
supplemental letter agreement, to be dated on or prior to the Closing Time (as
defined in Section 2(c) below), between the Company and DTC.
The Company and the Bank understand that the Underwriters propose to
make a public offering of the Securities as soon as the Underwriters deem
advisable after this Agreement has been executed and delivered.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-11 (No. 333-72510) covering the
registration of the Securities under the Securities Act of 1933, as amended (the
"1933 Act"), including the related preliminary prospectus or prospectuses.
Promptly after the execution and delivery of this Agreement, the Company will
either (i) prepare and file a prospectus in accordance with the provisions of
Rule 430A ("Rule 430A") of the rules and regulations of the Commission under the
1933 Act (the "1933 Act Regulations") and paragraph (b) of Rule 424 ("Rule
424(b)") of the 1933 Act Regulations or (ii) if the Company has elected to rely
upon Rule 434 ("Rule 434") of the 1933 Act Regulations, prepare and file a term
sheet (a "Term Sheet") in accordance with the provisions of Rule 434 and Rule
424(b). The information included in such prospectus or in such Term Sheet, as
the case may be, that was omitted from such registration statement at the time
it became effective but that is deemed to be part of such registration statement
at the time it became effective (i) pursuant to paragraph (b) of Rule 430A is
referred to as "Rule 430A Information" or (ii) pursuant to paragraph (d) of Rule
434 is referred to as "Rule 434 Information." Each prospectus used before such
registration statement became effective, and any prospectus that omitted, as
applicable, the Rule 430A Information or the Rule 434 Information, that was used
after such effectiveness and prior to the execution and delivery of this
Agreement, is herein called a "preliminary prospectus." Such registration
statement, including the exhibits and schedules thereto at the time it became
effective and including the Rule 430A Information and the Rule 434 Information,
as applicable, is herein called the "Registration Statement." Any registration
statement filed pursuant to Rule 462(b) of the 1933 Act Regulations is herein
referred to as the "Rule 462(b) Registration Statement," and after such filing
the term "Registration Statement" shall include the Rule 462(b) Registration
Statement. The final prospectus in the form first furnished to the Underwriters
for use in connection with the offering of the Securities is herein called the
"Prospectus." If Rule 434 is relied on, the term "Prospectus" shall refer to the
preliminary prospectus dated December 28, 2001 together with the Term Sheet and
all references in this Agreement to the date of the Prospectus shall mean the
date of the Term Sheet. For purposes of this Agreement, all references to the
Registration Statement, any preliminary prospectus, the Prospectus or any Term
Sheet or any amendment or supplement to any of the foregoing shall be deemed to
include the copy filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval system ("XXXXX").
All references in this Agreement to financial statements and schedules
and other information that is "contained," "included," "disclosed" or "stated"
in the Prospectus (or other references of like import) shall be deemed to mean
and include all such financial statements and schedules and other information
that are incorporated by reference in the Prospectus.
SECTION 1. Representations and Warranties. Each of the Company and the
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Bank, jointly and severally, represents and warrants to each of the Underwriters
as of the date hereof and as of the Closing Time, and agree with each of the
Underwriters, as follows:
(a) Each of the Registration Statement and any Rule 462(b)
Registration Statement has become effective under the 1933 Act and no stop order
suspending the effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement has been issued under the 1933 Act and no proceedings for
that purpose have been instituted or are pending or, to the knowledge of the
Company, are contemplated by the Commission, and the Company has complied with
any request on the part of the Commission for additional information.
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At the respective times the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendments thereto became
effective and at the Closing Time (and, if any Option Securities are purchased,
at the Date of Delivery), the Registration Statement, the Rule 462(b)
Registration Statement and any amendments and supplements thereto complied and
will comply, in all material respects, with the requirements of the 1933 Act and
the 1933 Act Regulations and did not and will not contain an untrue statement of
a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading. Neither the
Prospectus nor any amendments or supplements thereto, at the time the Prospectus
or any such amendment or supplement was issued and at the Closing Time (as
defined in Section 2(c)) (and, if any Option Securities are purchased, at the
Date of Delivery (as defined in Section 2b)), included or will include an untrue
statement of a material fact or omitted or will omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. If Rule 434 is used,
the Company will comply with the requirements of Rule 434 and the Prospectus
shall not be "materially different," as such term is used in Rule 434, from the
prospectus included in the Registration Statement at the time it became
effective. The representations and warranties in this subsection shall not apply
to statements in or omissions from the Registration Statement or Prospectus made
in reliance upon and in conformity with information furnished to the Company in
writing by any Underwriter through Xxxxx Fargo or Xxxx, Xxxx expressly for use
in the Registration Statement or Prospectus.
(b) The Company and the Bank have not distributed and, prior to the later
to occur of (i) the Closing Time and (ii) completion of the distribution of the
Securities by the Underwriters, they will not distribute any offering materials
in connection with the offering and sale of the Securities other than the
Registration Statement, the Preliminary Prospectus, the Prospectus or other
materials, if any, permitted by the 1933 Act and the 1933 Act Regulations.
(c) The financial statements of the Bank included in the Prospectus and
the Registration Statement present fairly in all material respects the financial
position of the Bank and its consolidated subsidiaries as of the dates indicated
and the consolidated results of operations and consolidated changes in financial
position of such entities for the periods specified; such financial statements
comply as to form with the applicable accounting requirements of the 1933 Act
and the 1933 Act Regulations and have been prepared in conformity with generally
accepted accounting principles ("GAAP") applied on a consistent basis. The
balance sheet of the Company included in the Prospectus and the Registration
Statement presents fairly in all material respects the financial position of the
Company as of the date indicated; such balance sheet complies as to form with
the applicable accounting requirements of the 1933 Act and the 1933 Act
Regulations and has been prepared in conformity with GAAP applied on a
consistent basis. The selected financial data included in the Prospectus and
Registration Statement present fairly in all material respects the information
shown therein and have been compiled on a basis consistent with that of the
audited financial statements included therein.
(d) To the knowledge of the Company and the Bank, the accountants who
certified the financial statements and supporting schedules of the Company and
the Bank and its consolidated subsidiaries included or incorporated by reference
in the Prospectus and the Registration Statement are independent public
accountants as required by the 1933 Act and the 1933 Act Regulations.
(e) Since the respective dates as of which information is given in the
Prospectus and the Registration Statement, except as may otherwise be stated in
or referred to therein: (A) there has not been any material adverse change in
the condition, financial or otherwise, or in the earnings, business affairs,
business prospects or operations of (i) the Company, whether or not arising in
the ordinary course of business (a "Company Material Adverse Effect") or (ii)
the Bank and its subsidiaries (other than the Company), whether or not arising
in the ordinary course of business (a "Bank Material Adverse Effect" and,
together with a Company Material Adverse Effect, a "Material Adverse Effect"),
(B) there have been
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no transactions entered into by: (i) the Company or (ii) the Bank or any of its
subsidiaries, in either case other than those in the ordinary course of
business, which are material with respect to the Company or the Bank and its
subsidiaries, as the case may be, and (C) except as disclosed in the Prospectus
and the Registration Statement, there has been no dividend or distribution of
any kind declared, paid or made by the Company on any class of its capital
stock.
(f) The Company has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Nevada and has full
power and authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and the Registration Statement and to
enter into and perform its obligations under this Agreement; and the Company is
duly qualified as a foreign corporation to transact business and is in good
standing in each other jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify or to be in good standing would
not result in a Company Material Adverse Effect.
(g) The Bank has been duly organized and is validly existing as a Nevada
banking corporation with full power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus and the
Registration Statement and to enter into its obligations under this Agreement;
the Bank is duly qualified as a foreign corporation to transact business and is
in good standing in each other jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify or be in good
standing would not result in a Bank Material Adverse Effect. The Bank's deposit
accounts are insured by the FDIC to the fullest extent provided under applicable
law, and no proceedings for the termination or revocation of such insurance are
pending or, to the knowledge of the Bank, threatened.
(h) The Company has no subsidiaries.
(i) Each subsidiary of the Bank (other than the Company) has been duly
incorporated and is validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, has full power and authority to
own, lease and operate its properties and conduct its business as described in
the Prospectus and the Registration Statement (or, if not so described, as
presently conducted), and is duly qualified as a foreign corporation to transact
business and is in good standing in each other jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property of the conduct of business, except where the failure to so qualify or
to be in good standing would not result in a Bank Material Adverse Effect; all
of the issued and outstanding capital stock of each subsidiary of the Bank
(other than the Company) has been duly authorized and validly issued and is
fully paid and nonassessable and is owned, directly or through other
subsidiaries of the Bank, by the Bank; and all of the capital stock of each
subsidiary of the Bank that is owned by the Bank, directly or through other
subsidiaries of the Bank, is owned free and clear of any pledge, lien,
encumbrance, claim or equity.
(j) The Company and the Bank and its subsidiaries have good and marketable
title to all properties (real and personal) owned by the Company and the Bank
and its subsidiaries, free and clear of all mortgages, pledges, liens, security
interests, claims, restrictions or encumbrances of any kind except such as (i)
are described in the Prospectus and the Registration Statement or (ii) do not,
singly or in the aggregate, result in a Material Adverse Effect.
(k) The authorized, issued and outstanding capital stock of the Company is
as set forth in the Prospectus and the Registration Statement in the column
entitled "Actual" under the caption "Capitalization" (except for (i) subsequent
issuances, if any, pursuant to this Agreement, (ii) the issuance of shares of
the Company's common stock to the Bank as contemplated in the Prospectus and the
Registration Statement). The shares of issued and outstanding capital stock of
the Company have been
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duly authorized and validly issued and are fully paid and nonassessable. None of
the outstanding shares of capital stock of the Company was issued in violation
of the preemptive or other similar rights of any security holder of the Company.
(l) All of the outstanding shares of common stock of the Bank have been
duly authorized and validly issued, are fully paid and nonassessable. The
authorized, issued and outstanding capital stock and any outstanding short-term
debt, long-term debt and capital lease obligations of the Bank at September 30,
2001 are as set forth in the consolidated financial statements of the Bank
included in the Prospectus and the Registration Statement, and any subsequent
borrowings and issuances have been made in the ordinary course of business.
(m) This Agreement has been duly authorized, executed and delivered by
each of the Company and the Bank.
(n) The Securities have been duly authorized for issuance and sale to the
Underwriters and, when issued and delivered by the Company pursuant to this
Agreement against payment of the consideration set forth herein, will be validly
issued, fully paid and nonassessable; the Securities conform in all material
respects to the statements relating thereto contained in the Prospectus and the
Registration Statement and such description conforms in all material respects to
the provisions of the Certificate of Designations; the relative rights,
preferences, interests and powers of the Securities are as set forth in the
Certificate of Designations relating thereto; and the issuance of the Securities
is not subject to the preemptive or other similar rights of any security holder
of the Company.
(o) The Bank Preferred Stock has been duly authorized and, when issued
upon an automatic exchange (as described in the Prospectus and the Registration
Statement), will have been validly issued, fully paid and nonassessable; the
Bank Preferred Stock conforms in all material respects to the statements
relating thereto contained in the Prospectus and the Registration Statement and
such description conforms in all material respects to the provisions of the Bank
Certificate of Designations; the relative rights, preferences, interests and
powers of the Bank Preferred Stock are as set forth in the Bank Certificate of
Designations; and the issuance of shares of the Bank Preferred Stock is not
subject to the preemptive or other similar rights of any security holder of the
Bank.
(p) None of the Bank, the Company or any of the Bank's subsidiaries is in
violation of its charter or by-laws or, to the knowledge of the Bank and the
Company, in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract, indenture, mortgage,
deed of trust, loan or credit agreement, note, lease or other agreement or
instrument to which the Bank, the Company or any of the Bank's subsidiaries is a
party or by which it or any of them may be bound, or to which any of the
property or assets of the Bank, the Company or any of the Bank's subsidiaries is
subject, except for such defaults as would not result in a Material Adverse
Effect. The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated herein and in the Prospectus and
the Registration Statement, (including the issuance and sale of the Securities
and the use of the proceeds from the sale of the Securities as described in the
Prospectus and the Registration Statement under the caption "Use of Proceeds")
and compliance by the Company and the Bank with their respective obligations
hereunder have been duly authorized by all necessary corporate action and do not
and will not, whether with or without the giving of notice or passage of time or
both, conflict with or result in a breach of, or default or Repayment Event (as
defined below) under, or result in the creation or imposition of any lien,
charge or encumbrance upon any of their respective property or assets pursuant
to their respective articles of incorporation, charter or by-laws or any
obligation, agreement, covenant or condition contained in any indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or other
agreement or instrument to which it is a party or by which it may be bound, or
to which any of its property or assets is subject (except for such conflicts,
breaches or
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defaults or liens, charges or encumbrances as would not result in a Material
Adverse Effect), nor will such action result in any violation of the provisions
of their respective articles of incorporation, charter or by-laws or any
applicable law, statute, rule, regulation, judgment, order, writ or decree of
any government, government instrumentality or court, domestic or foreign, having
jurisdiction over them or any of their assets, properties or operations. As used
herein, a "Repayment Event" means any event or condition which gives the holder
of any note, debenture or other evidence of indebtedness (or any person acting
on such holder's behalf) the right to require the repurchase, redemption or
repayment of all or a portion of such indebtedness by the Company or the Bank,
as applicable.
(q) Except as disclosed in the Prospectus and the Registration Statement,
the Company and the Bank and its subsidiaries are conducting their respective
businesses in compliance in all material respects with all laws, rules,
regulations, decisions, directives and orders (including, without limitation,
all regulations and orders of, or agreements with, the FDIC and the
Commissioner, Department of Business and Industry, Financial Institutions
Division, State of Nevada) applicable to them. There is no action, suit,
investigation or proceeding before or by any government, governmental
instrumentality or court, domestic or foreign, now pending or, to the knowledge
of the Company or the Bank, threatened against or affecting the Company, the
Bank or any of its subsidiaries (i) that is required to be disclosed in the
Prospectus and the Registration Statement but that is not disclosed therein,
(ii) that reasonably could be expected to result in a Company Material Adverse
Effect or a Bank Material Adverse Effect or (iii) that reasonably could be
expected to adversely affect the consummation of the transactions contemplated
in this Agreement.
(r) At the Closing Time, the Bank will be the beneficial owner of at least
90% of the outstanding common stock of the Company.
(s) There are no contracts or documents which are required to be described
in the Prospectus and the Registration Statement or to be filed as exhibits
thereto which have not been so described or filed, as required by the 1933 Act.
(t) The Company is organized and carries on its business so as to qualify
as a "real estate investment trust" (a "REIT") under Sections 856 through 860 of
the Internal Revenue Code of 1986, as amended (the "Code"), and no transaction
or other event has occurred which would cause the Company to fail to qualify as
a REIT under the Code for its current taxable year or for future taxable years.
(u) The Company and the Bank and its subsidiaries own or possess, or can
acquire on reasonable terms, adequate patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and other unpatented
and/or unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks, trade names or other intellectual
property (collectively, "Intellectual Property") necessary to carry on the
business now operated by them, and none of the Bank, the Company or any of the
Bank's subsidiaries has received any notice or is otherwise aware of any
infringement of or conflict with asserted rights of others with respect to any
Intellectual Property or of any facts or circumstances which would render any
Intellectual Property invalid or inadequate to protect the interest of the Bank,
the Company or any of the Bank's subsidiaries therein, and which infringement or
conflict (if the subject of any unfavorable decision, ruling or finding) or
invalidity or inadequacy, singly or in the aggregate, would result in a Material
Adverse Effect.
(v) Neither the Company nor the Bank is, and upon the issuance and sale of
the Securities as herein contemplated and the application of the net proceeds
therefrom as described in the Prospectus and the Registration Statement, neither
the Company nor the Bank will be, an "investment company" or an entity
"controlled" by an "investment company" as such terms are defined in the
Investment Company Act of 1940, as amended.
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(w) Except as disclosed in the Prospectus, the Company (i) is the sole
owner of the mortgage loans as set forth in the Prospectus and such ownership is
free and clear of any lien, security interest or other encumbrances, (ii) has
not granted, and will not grant, any participation or other interest or
assignment, other option or rights to such loans and (iii) has not pledged
collaterally, assigned or otherwise hypothecated any interest therein.
(x) No filing with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any court or governmental authority or
agency is necessary or required for the performance by the Company or the Bank
of their respective obligations hereunder, in connection with the offering,
issuance or sale of the Securities hereunder or the consummation of the
transactions contemplated by this Agreement, except (i) such as have been or
will be obtained, (ii) as may be required under the 1933 Act or the 1933 Act
Regulations or state securities laws, (iii) the filing of the Certificate of
Designations and the Bank Certificate of Designations with the appropriate
authority in the State of Nevada and (iv) where the failure to comply would not
result in a Material Adverse Effect.
(y) The Company and the Bank and its subsidiaries have filed all federal,
state, local and foreign tax returns that are required to be filed or have duly
requested extensions thereof and have paid all taxes required to be paid by any
of them and any related assessments, fines or penalties, except for any such
tax, assessment, fine or penalty that is being contested in good faith by
appropriate proceedings, except where the failure to do so would not result in a
Material Adverse Effect; and adequate charges, accruals and reserves have been
provided for in the financial statements referred to in Section 1(d) above in
respect of all federal, state, local and foreign taxes for all periods as to
which the tax liability of the Company or the Bank or its subsidiaries has not
been finally determined or remains open to examination by applicable taxing
authorities, except where the failure to do so would not result in a Material
Adverse Effect.
(z) The Company and the Bank and its subsidiaries carry or are entitled
to the benefits of insurance in such amounts and covering such risks as is
generally maintained by companies of established repute engaged in the same or
similar business and of the same or similar size and complexity, and all such
insurance is in full force and effect.
(aa) The Company and the Bank and its subsidiaries possess all material
permits, licenses, approvals, consents and other authorizations (collectively,
"Governmental Licenses") issued by the appropriate federal, state, local or
foreign regulatory agencies or bodies necessary to conduct the business now
operated by each of them or proposed to be operated by them as described in the
Prospectus and the Registration Statement; the Company and the Bank and its
subsidiaries are in compliance with the terms and conditions of all such
Governmental Licenses, except where the failure to so comply would not, singly
or in the aggregate, result in a Material Adverse Effect; all of the
Governmental Licenses are valid and in full force and effect, except where the
invalidity of such Governmental Licenses or the failure of such Governmental
Licenses to be in full force and effect would not result in a Material Adverse
Effect; and neither the Company nor the Bank has received any notice of
proceedings relating to the revocation or modification of any such Governmental
Licenses which, singly or in the aggregate would result in a Material Adverse
Effect.
(bb) Neither the Company nor the Bank has taken, directly or indirectly,
any action designed to, or that has constituted or might reasonably be expected
to cause or result in, stabilization or manipulation of the price of the
Securities.
(cc) Shares of the Bank Preferred Stock are exempt securities under
Section 3(a)(2) of the 1933 Act, and registration under the 1933 Act is not
required in connection with the offer and sale of the Bank Preferred Stock as
contemplated herein.
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(dd) Prior to the Closing Time, the Bank shall have filed a dated copy of
the Bank Certificate of Designations, duly authorized and adopted by the Bank,
with the Secretary of State of the State of Nevada.
(ee) Except as described in the Registration Statement and except as would
not, singly or in the aggregate, result in a Material Adverse Effect, to the
knowledge of the Company, (A) neither the Company nor any of its subsidiaries is
in violation of any federal, state, local or foreign statute, law, rule,
regulation, ordinance, code, policy or rule of common law or any judicial or
administrative interpretation thereof, including any judicial or administrative
order, consent, decree or judgment, relating to pollution or protection of human
health, the environment (including, without limitation, ambient air, surface
water, groundwater, land surface or subsurface strata) or wildlife, including,
without limitation, laws and regulations relating to the release or threatened
release of chemicals, pollutants, regulations relating to the release or
threatened release of chemicals, pollutants, contaminants, wastes, toxic
substances, hazardous substances, petroleum or petroleum products (collectively,
"Hazardous Materials") or to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of Hazardous Materials
(collectively, "Environmental Laws"), (B) the Company and its subsidiaries have
all permits, authorization and approvals required under any applicable
Environmental Laws and are each in compliance with their requirements, (C) there
are no pending or threatened administrative, regulatory or judicial actions,
suits, demands, demand letters, claims, liens, notices of noncompliance or
violations, investigation or proceedings relating to any Environmental Law
against the Company or any of its subsidiaries and (D) there are no events or
circumstances that might reasonably be expected to form the basis of an order
for clean up or remediation, or an action, suit or proceeding by any private
party or governmental body or agency, against or affecting the Company or any of
its subsidiaries relating to Hazardous Materials or any Environmental Laws.
(ff) Except as described in the Registration Statement and the Prospectus,
there are no persons with registration rights or other similar rights to have
any securities registered pursuant to the Registration Statement or otherwise
registered by the Company under the 1933 Act.
SECTION 2. Sale and Delivery to Each Underwriter; Closing.
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(a) Initial Securities. On the basis of the representations and
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warranties herein contained and subject to the terms and conditions herein set
forth, the Company agrees to sell to each Underwriter, severally and not
jointly, and each Underwriter, severally and not jointly, agrees to purchase
from the Company, at a price of $24.03125 per Initial Security, the number of
Initial Securities set forth in Schedule A opposite the name of such
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Underwriter, plus any additional number of Initial Securities which such
Underwriter may become obligated to purchase pursuant to the provisions of
Section 10 hereof.
(b) Option Securities. In addition to the purchase and sale of the
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Initial Securities set forth in Section 2(a), on the basis of the
representations and warranties herein contained and subject to the terms and
conditions herein set forth, the Company hereby grants an option to the
Underwriters, severally and not jointly, to purchase up to an additional 240,000
Option Securities at a price of $24.03125 per Option Security. The option hereby
granted will expire 30 days after the date hereof and may be exercised in whole
or in part from time to time, only for the purpose of covering over-allotments
which may be made in connection with the offering and distribution of the
Initial Securities, upon written notice by the Underwriters to the Company
setting forth the number of Option Securities as to which the Underwriters are
then exercising such option and the time and date of payment and delivery for
such Option Securities. Any such time and date of payment and delivery (a "Date
of Delivery") shall be determined by the Underwriters, but shall not be later
than seven business days nor earlier than three business days after the exercise
of said option, nor in any event prior to the Closing Time. If the option is
exercised as to all or any portion of the Option Securities, each of the
Underwriters, acting severally and not jointly, will
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purchase that proportion of the total number of Option Securities then being
purchased which the number of Initial Securities set forth in Schedule A
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opposite the name of such Underwriter bears to the total number of Initial
Securities, subject in each case to such adjustments as the Underwriters in
their discretion shall make to eliminate any sales or purchases of fractional
shares.
(c) The Company shall deliver the Initial Securities at the office of
Sidley Xxxxxx Xxxxx & Xxxx LLP at the address specified below, and payment of
the purchase price for the Initial Securities shall be made by Xxxxx Fargo on
behalf of the Underwriters to the Company contemporaneous with the closing at
the offices of Sidley Xxxxxx Xxxxx & Xxxx LLP, 000 Xxxxxxxxxx Xxxxxx, Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000, at 7:00 A.M. (PST) on January 24, 2002, or such
other time as may be agreed upon by Xxxxx Fargo and the Company (such time and
date of payment and delivery being herein called the "Closing Time"). Payment
for the Initial Securities purchased by the Underwriters shall be made to the
Company by wire transfer of immediately available funds, to an account
identified in writing by the Company to Xxxxx Fargo at least one business day
prior to the Closing Time, against delivery for the account of the Underwriters
of the Initial Securities.
In addition, in the event that any or all of the Option Securities are
purchased by the Underwriters, payment of the purchase price for, and book-entry
transfer of such Option Securities shall be made at the above-mentioned offices
and in the above-mentioned manner, or at such other place or in such other
manner as shall be agreed upon by Xxxxx Fargo and the Company, on each Date of
Delivery as specified in the exercise of option notice from the Underwriters to
the Company as described in Section 2(b).
It is understood that each of the Underwriters has authorized Xxxxx Fargo
for its account to accept delivery of, receipt for and make payment of the
purchase price for the Securities which it has agreed to purchase. Xxxxx Fargo,
individually and not as representative of the Underwriters, may (but shall not
be obligated to) make payment of the purchase price for the Securities to be
purchased by any Underwriter whose funds have not been received by the Closing
Time or the relevant Date of Delivery, as the case may be, but such payment
shall not relieve such Underwriter from its obligations hereunder.
SECTION 3. Covenants of the Company and the Bank. The Company and the
-------------------------------------
Bank, jointly and severally, covenant with each of the Underwriters as follows:
(a) The Company, subject to Section 3(b), will comply with the
requirements of Rule 430A or Rule 434, as applicable, and will notify the
Underwriters immediately (i) when any post-effective amendment to the
Registration Statement shall become effective, or any supplement to the
Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt
of any comments from the Commission, (iii) of any request by the Commission for
any amendment to the Registration Statement or any amendment or supplement to
the Prospectus or for additional information and (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or of any order preventing or suspending the use of any preliminary
prospectus, or of the suspension of the qualification of the Securities for
offering or sale in any jurisdiction, or of the initiation or threatening of any
proceedings for any of such purposes. The Company will promptly effect the
filings necessary pursuant to Rule 424(b) and will take such steps as it deems
necessary to ascertain promptly whether the form of prospectus transmitted for
filing under Rule 424(b) was received for filing by the Commission and, if it
was not, the Company will promptly refile such prospectus. The Company will use
reasonable efforts to prevent the issuance of any stop order and, if any stop
order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) The Company will (i) give the Underwriters notice of its intention to
file or prepare any amendment to the Registration Statement (including any
filing under Rule 462(b)), any Term Sheet or any
9
amendment, supplement or revision to either the prospectus included in the
Registration Statement at the time it became effective or to the Prospectus,
(ii) furnish the Underwriters with copies of any such documents a reasonable
amount of time prior to such proposed filing or use of such documents, as the
case may be, and (iii) not file or use any such document to which the
Underwriters or counsel for the Underwriters shall reasonably object.
(c) The Company has furnished or will deliver to the Underwriters and
counsel for the Underwriters, without charge, signed copies of the Registration
Statement as originally filed and of each amendment thereto (including exhibits
filed therewith or incorporated by reference therein) and signed copies of all
consents and certificates of experts, and will also deliver to the Underwriters,
without charge, a conformed copy of the Registration Statement as originally
filed and of each amendment thereto (without exhibits) for each of the
Underwriters. The copies of the Registration Statement and each amendment
thereto furnished to the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to XXXXX, except
to the extent permitted by Regulation S-T.
(d) The Company has delivered to each Underwriter, without charge, as many
copies of each preliminary prospectus as such Underwriter reasonably requested,
and the Company hereby consents to the use of such copies for purposes permitted
by the 1933 Act. The Company will furnish to each Underwriter, without charge,
during the period when the Prospectus is required to be delivered under the 1933
Act or the Securities Exchange Act of 1934 (the "1934 Act"), such number of
copies of the Prospectus (as amended or supplemented) as such Underwriter may
reasonably request. The Prospectus and any amendments or supplements thereto
furnished to the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to XXXXX, except
to the extent permitted by Regulation S-T.
(e) The Company will comply with the 1933 Act and the 1933 Act Regulations
so as to permit the completion of the distribution of the Securities as
contemplated in this Agreement and in the Prospectus. If at any time when a
prospectus is required by the 1933 Act to be delivered in connection with sales
of the Securities, any event shall occur or condition shall exist as a result of
which it is necessary, in the opinion of counsel for the Underwriters or for the
Company, to amend the Registration Statement or amend or supplement the
Prospectus in order that the Prospectus will not include any untrue statements
of a material fact or omit to state a material fact necessary in order to make
the statements therein not misleading in the light of the circumstances existing
at the time it is delivered to a purchaser, or if it shall be necessary, in the
opinion of such counsel, at any such time to amend the Registration Statement or
amend or supplement the Prospectus in order to comply with the requirements of
the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and
file with the Commission, subject to Section 3(b), such amendment or supplement
as may be necessary to correct such statement or omission or to make the
Registration Statement or the Prospectus comply with such requirements, and the
Company will furnish to the Underwriters such number of copies of such amendment
or supplement as the Underwriters may reasonably request.
(f) The Company will use reasonable efforts, in cooperation with the
Underwriters, to qualify the Securities for offering and sale under the
applicable securities laws of such states and other jurisdictions as the
Underwriters may designate and to maintain such qualifications in effect for a
period of not less than one year from the later of the effective date of the
Registration Statement and any Rule 462(b) Registration Statement; provided,
--------
however, that the Company shall not be obligated to file any general consent to
-------
service of process or to qualify as a foreign corporation or as a dealer in
securities in any jurisdiction in which it is not so qualified or to subject
itself to taxation in respect of doing business in any jurisdiction in which it
is not otherwise so subject. In each jurisdiction in which the Securities have
been so qualified, the Company will file such statements and reports as may be
required by the laws of
10
such jurisdiction to continue such qualification in effect for a period of not
less than one year from the later of the effective date of the Registration
Statement and any Rule 462(b) Registration Statement.
(g) The Company will timely file such reports pursuant to the 1934 Act as
are necessary in order to make generally available to its securityholders as
soon as practicable an earnings statement for the purposes of, and to provide
the benefits contemplated by, the last paragraph of Section 11(a) of the 1933
Act.
(h) The Company will use reasonable efforts to effect and maintain the
quotation of the Securities on the Nasdaq National Market and will file with the
Nasdaq National Market all documents and notices required by the Nasdaq National
Market.
(i) The Company will not without the prior written consent of Xxxxx Fargo,
(i) offer, sell, contract to sell, pledge, or otherwise dispose of (or enter
into any transaction which is designed to, or might reasonably be expected to,
result in the disposition (whether by actual disposition or effective economic
disposition due to cash settlement or otherwise) by the Company or any affiliate
of the Company or any person in privity with the Company or any affiliate of the
Company), directly or indirectly, including the filing (or participation in the
filing) of a registration statement with the Commission in respect of, or
establishing or increasing a put equivalent position or liquidating or
decreasing a call equivalent position within the meaning of Section 16 of the
Exchange Act with respect to, any securities with characteristics and terms
similar to or convertible into, or exercisable or exchangeable for, the
Securities or Bank Preferred Stock; or (ii) publicly announce an intention to
effect any such transaction, for a period of 30 days after the date of this
Agreement.
(j) The Company, during the period when the Prospectus is required to be
delivered under the 1933 Act or the 1934 Act, will file all documents required
to be filed with the Commission pursuant to the 1934 Act within the time periods
required by the 1934 Act and the rules and regulations of the Commission
thereunder.
(k) The Company will advise the Underwriters promptly, and if requested by
the Underwriters, will confirm such advice in writing, so long as delivery of a
prospectus relating to the Securities by an underwriter or dealer may be
required under the 1933 Act or the 1933 Act Regulations, of (i) any material
change in the Company's or the Bank's condition (financial or otherwise),
prospects, earnings, business or properties or (ii) any new material information
relating to the Company or the Bank or relating to any matter stated in the
Prospectus or the Registration Statement which comes to the attention of the
Company.
(l) The Company will cooperate with the Underwriters and use its
reasonable best efforts to permit the Securities to be eligible for clearance
and settlement through the facilities of DTC.
(m) The Company will use the proceeds received by it from the sale of the
Securities in the manner specified in the Prospectus under "Use of Proceeds."
(n) The Company and the Bank will each continue to use their respective
commercially reasonable best efforts to cause the Company to continue to qualify
as a REIT under the Code.
SECTION 4. Payment of Expenses.
-------------------
(a) Expenses. The Company or the Bank will pay all expenses incident to
--------
the performance of its obligations under this Agreement, including (i) the
preparation, printing and filing of the Registration Statement (including
financial statements and exhibits) as originally filed and of each
11
amendment thereto, (ii) the preparation, printing and delivery to the
Underwriters of this Agreement and such other documents as may be required in
connection with the offering, purchase, sale, issuance or delivery of the
Securities, (iii) the preparation, issuance and delivery of the Securities to
the Underwriters, including any stock or other transfer taxes and any stamp or
other duties payable upon the sale, issuance or delivery of the Securities to
the Underwriters, (iv) the fees and disbursements of the Company's counsel,
accountants and other advisors, (v) the qualification of the Securities under
securities laws in accordance with the provisions of Section 3(f) hereof,
including filing fees and the reasonable fees and disbursements of counsel for
the Underwriters in connection therewith and in connection with the preparation
of the Blue Sky Survey and any supplement thereto, (vi) the printing and
delivery to the Underwriters of copies of each preliminary prospectus, any Term
Sheets and of the Prospectus and any amendments or supplements thereto, (vii)
the fees and expenses of any transfer agent or registrar for the Securities,
(viii) any fees charged by securities rating services for rating the Securities
and (ix) the filing fees incident to, and the reasonable fees and disbursements
of counsel to the Underwriters in connection with, the review by the National
Association of Securities Dealers, Inc. (the "NASD") of the terms of the sale of
the Securities and the fees and expenses incurred in connection with the
inclusion for quotation of the Securities on the Nasdaq National Market.
(b) Termination of Agreement. If this Agreement is terminated by the
------------------------
Underwriters in accordance with the provisions of Section 5 or Section 9(a)(i),
the Company shall reimburse the Underwriters for all of their out-of-pocket
expenses, including the reasonable fees and disbursements of Sidley Xxxxxx Xxxxx
& Xxxx LLP, counsel for the Underwriters. It is understood, however, that except
as provided in this Section 4, the Underwriters will pay all of their costs and
expenses, including fees and disbursements of their counsel and any advertising
expenses connected with any resales.
SECTION 5. Conditions of the Underwriters' Obligations. The obligations
-------------------------------------------
of the Underwriters hereunder are subject to the accuracy of the representations
and warranties of the Company and the Bank contained in Section 1 hereof and in
the officer's certificates of the Company and the Bank delivered pursuant to the
provisions hereof, to the performance by the Company and the Bank of their
obligations hereunder and to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration Statement,
---------------------------------------
including any Rule 462(b) Registration Statement, has become effective and at
Closing Time no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to the
reasonable satisfaction of counsel to the Underwriters. A prospectus containing
the Rule 430A Information shall have been filed with the Commission in
accordance with Rule 424(b) (or a post-effective amendment providing such
information shall have been filed and declared effective in accordance with the
requirements of Rule 430A) or, if the Company has elected to rely upon Rule 434,
a Term Sheet shall have been filed with the Commission in accordance with Rule
424(b).
(b) Opinions of Counsel for the Company and the Bank. At the Closing Time,
------------------------------------------------
the Underwriters shall have received favorable opinions in form and substance
satisfactory to counsel for the Underwriters, dated as of the Closing Time, of
each of Xxxxxxxx Chance Xxxxxx & Xxxxx LLP, special counsel to the Company and
the Bank, Lionel, Xxxxxx & Xxxxxxx, special Nevada counsel to the Company and
the Bank, and Xxxxxx X. Xxxxxxxxx, Senior Vice President and General Counsel of
the Bank, each of which shall be substantially in the form attached hereto as
Exhibits A, B, C and D, respectively.
---------- - - -
(c) Opinion of Counsel for Underwriters. At the Closing Time, the
-----------------------------------
Underwriters shall have received the favorable opinion, dated as of the Closing
Time, of Sidley Xxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, with
respect to the incorporation and legal existence of the Company, the
12
Securities, this Agreement, the Registration Statement and the Prospectus and
other related matters as the Underwriters may require. Such counsel may also
state that, insofar as such opinion involves factual matters, they have relied,
to the extent they deem proper, upon certificates of officers of the Company and
the Bank and its subsidiaries and certificates of public officials. In giving
such opinion, such counsel may rely, as to all matters governed by the laws of
jurisdictions other than the law of the State of California, the State of New
York and the federal law of the United States, upon the opinion by counsel
satisfactory to the Underwriters.
(d) Certificates. At the Closing Time, there shall not have been, since
------------
the date hereof or since the respective dates as of which information is given
in the Prospectus, any Material Adverse Effect, and the Underwriters shall have
received a certificate of the Chief Executive Officer, the President or any
Executive Vice President or Senior Vice President of each of the Company and the
Bank and of the Chief Financial Officer or the Chief Accounting Officer of each
of the Company and the Bank, dated as of the Closing Time, to the effect that,
to his or her knowledge, (i) there has been no such Material Adverse Effect,
(ii) the representations and warranties in Section 1 hereof were true and
correct when made and are true and correct in all material respects with the
same force and effect as though expressly made at and as of the Closing Time,
(iii) the Company or Bank, as the case may be, have complied in all material
respects with all agreements and satisfied all conditions on their part to be
performed or satisfied at or prior to the Closing Time and (iv) no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been instituted or are pending or are
contemplated by the Commission.
(e) Accountant's Comfort Letter. At the time of execution of this
---------------------------
Agreement, the Underwriters shall have received from KPMG LLP a letter dated
such date, in form and substance satisfactory to the Underwriters, containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to Underwriters with respect to the financial statements and
certain financial information contained in the Registration Statement and
Prospectus.
(f) Bring-down Comfort Letter. At the Closing Time, the Underwriters shall
-------------------------
have received from KPMG LLP a letter, dated as of the Closing Time, to the
effect that they reaffirm the statements made in the letter furnished pursuant
to subsection (e) of this Section.
(g) Maintenance of Rating. At the Closing Time, the Securities shall be
---------------------
rated at least "BB" by Standard & Poor's Rating Services, a division of
XxXxxx-Xxxx, Inc., and "BBB-" by Fitch IBCA, Inc. and the Company shall have
delivered to the Underwriters a letter dated the Closing Time, from each such
rating agency, or other evidence satisfactory to the Underwriters, confirming
that the Securities have such ratings; and between the date of this Agreement
and the Closing Time, there shall not have occurred a downgrading in the rating
assigned to the Securities or any of the Company's other securities by any
nationally recognized statistical rating organization, and no such organization
shall have publicly announced that it has under surveillance or review, with
possible negative implications, or that it otherwise has a negative outlook with
respect to, its rating of any of the Securities or any of the Company's other
securities.
(h) No Objection. The NASD shall not have raised any objection with
------------
respect to the fairness and reasonableness of the underwriting terms and
arrangements.
(i) Approval of Listing. At the Closing Time, the Securities shall have
-------------------
been approved for quotation on the Nasdaq National Market, subject only to
official notice of issuance.
(j) Additional Documents. At the Closing Time, counsel for the
--------------------
Underwriters shall have been furnished with such documents as they may
reasonably require for the purpose of enabling them to
13
pass upon the issuance and sale of the Securities as herein contemplated, or in
order to evidence the accuracy of any of the representations or warranties of
the Company and the Bank, or the fulfillment of any of the conditions, herein
contained; and all proceedings taken by the Company and the Bank in connection
with the issuance and sale of the Securities as herein contemplated shall be
reasonably satisfactory in form and substance to the Underwriters and counsel
for the Underwriters.
(k) Conditions to Purchase of Option Securities. In the event that the
-------------------------------------------
Underwriters exercise their option provided in Section 2(b) hereof to purchase
all or any portion of the Option Securities, the representations and warranties
of the Company and the Bank contained herein and the statements in any
certificates furnished by the Company and the Bank hereunder shall be true and
correct as of each Date of Delivery and, at the relevant Date of Delivery, the
Underwriters shall have received:
(i) Certificates. A certificate, dated such Date of Delivery, of
------------
the Chief Executive Officer, the President or any Executive Vice President
or Senior Vice President of each of the Company and the Bank and of the
Chief Financial Officer or the Chief Accounting Officer of each of the
Company and the Bank confirming that the certificate delivered at the
Closing Time pursuant to Section 5(d) hereof remains true and correct as of
such Date of Delivery.
(ii) Opinion of Counsel for the Company and the Bank. The favorable
-----------------------------------------------
opinions of Xxxxxxxx Chance Xxxxxx & Xxxxx LLP, special counsel to the
Company and the Bank, Lionel, Xxxxxx & Xxxxxxx, special Nevada counsel to
the Company and the Bank and Xxxxxx X. Xxxxxxxxx, Senior Vice President and
General Counsel of the Bank, each in form and substance satisfactory to
counsel for the Underwriters, dated such Date of Delivery, relating to the
Option Securities to be purchased on such Date of Delivery and otherwise to
the same effect as the opinions required by Section 5(b) hereof.
(iii) Opinion of Counsel for the Underwriters. The favorable opinion
---------------------------------------
of Sidley Xxxxxx Xxxxx & Xxxx LLP, counsel for the Underwriters, dated such
Date of Delivery, relating to the Option Securities to be purchased on such
Date of Delivery and otherwise to the same effect as the opinion required
by Section 5(c) hereof.
(iv) Bring-down Comfort Letter. A letter from KPMG LLP, in form and
-------------------------
substance satisfactory to the Underwriters and dated such Date of Delivery,
substantially in the same form and substance as the letter furnished to the
Underwriters pursuant to Section 5(f) hereof, except that the "specified
date" in the letter furnished pursuant to this paragraph shall be a date
not more than five days prior to such Date of Delivery.
(v) No Downgrading. A letter from each rating agency set forth in
--------------
Section 5(g), or other evidence satisfactory to the Underwriters, dated the
relevant Date of Delivery, confirming that no downgrading has occurred in
the rating accorded the Securities or of any of the Company's other
securities by either of such rating agencies, and that neither of such
rating agencies has publicly announced that it has under surveillance or
review its ratings of any of the Company's other securities.
If any condition specified in this Section 5 shall not have been fulfilled
when and as required to be fulfilled, this Agreement may be terminated by the
Underwriters by written notice to the Company and the Bank at any time at or
prior to the Closing Time, and such termination shall be without liability of
any party to any other party except as provided in Section 4 and except that
Sections 6, 7 and 8 shall survive any such termination and remain in full force
and effect.
14
SECTION 6. Indemnification.
---------------
(a) Indemnification of the Underwriters. Each of the Company and the Bank
-----------------------------------
agrees to jointly and severally indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact included in the Registration Statement
and any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto) or the omission or alleged omission therefrom of a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided, however, that (subject to
-------- -------
Section 6(c) below) any such settlement is effected with the written
consent of the Company and the Bank; and
(iii) against any and all expense whatsoever (including, subject to
the third sentence of Section 6(c) hereof, the fees and disbursements of
counsel chosen by the Underwriters), as reasonably incurred in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced
or threatened, or any claim whatsoever based upon any such untrue statement
or omission, or any such alleged untrue statement or omission, to the
extent that any such expense is not paid under (i) or (ii) above; provided,
--------
however, that this subsection (iii) shall not apply to any loss, liability,
-------
claim, damage or expense to the extent arising out of any untrue statement
or omission or alleged untrue statement or omission made in reliance upon
and in conformity with written information furnished to the Company or the
Bank by any Underwriter through Xxxxx Fargo expressly for use in the
Prospectus (or any amendment thereto).
(b) Indemnification of the Company and the Bank, Directors and Officers.
-------------------------------------------------------------------
Each Underwriter agrees, severally, to indemnify and hold harmless the Company
and the Bank, their directors and officers, and each person, if any, who
controls the Company or the Bank within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act against any and all loss, liability, claim,
damage and expense described in the indemnity contained in subsection (a) of
this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with written information
furnished to the Company by such Underwriter expressly for use in the
Prospectus.
(c) Actions Against Parties; Notification. Each indemnified party shall
-------------------------------------
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this Section
6. An indemnifying party may participate at its own expense in the defense of
any such action; or, if it so elects within a reasonable time after receipt of
such notice, to assume the defense of any suit brought to enforce any such
claim; but if it so elects to assume the defense,
15
such defense shall be conducted by counsel chosen by it and approved by the
indemnified parties or any person or persons controlling the respective
indemnified parties, defendant or defendants in any suit so brought, which
approval shall not be unreasonably withheld or delayed. In the event that an
indemnifying party elects to assume the defense of any such suit and retain such
counsel, the indemnified party or parties or such controlling person or persons,
defendant or defendants in the suit, shall bear the fees and expenses of any
additional counsel thereafter retained by such indemnified party or parties or
controlling person; provided, however, that the indemnified party or parties
-------- -------
shall have the right to employ counsel (in addition to local counsel) to
represent the indemnified party or parties or any such controlling person who
may be subject to liability arising out of any action in respect of which
indemnity may be sought against the indemnifying party if, in the reasonable
judgment of counsel for the indemnified party or parties, there may be a
conflict of interest such that multiple representation would violate the Code of
Professional Responsibility or like governing rules, in which event the fees and
expenses of appropriate separate counsel shall be borne by the indemnifying
party. In no event shall the indemnifying parties be liable for fees and
expenses of more than one counsel (in addition to any local counsel) separate
from their own counsel for all indemnified parties in connection with any one
action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances. No indemnifying
party shall, without the prior written consent of the indemnified parties,
settle or compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification could be sought under this Section 6 (whether or not the
indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional release of each
indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
SECTION 7. Contribution. In order to provide for just and equitable
------------
contribution in circumstances under which the indemnification provided for in
Section 6 hereof is for any reason held to be unenforceable by an indemnified
party in respect of any losses, liabilities, claims, damages or expenses
referred to therein, then each indemnifying party shall contribute to the
aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Bank, on the one hand, and the Underwriters, on the other hand, from the
offering of the Securities pursuant to this Agreement or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company and the Bank, on the one
hand, and of the Underwriters, on the other hand, in connection with the
statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company and the Bank, on the one
hand, and the Underwriters, on the other hand, in connection with the offering
of the Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Securities pursuant to this Agreement (before deducting expenses) received by
the Company and the total discount or commission received by the Underwriters,
bear to the aggregate initial offering price of the Securities.
The relative fault of the Company and the Bank, on the one hand, and the
Underwriters, on the other hand, shall be determined by reference to, among
other things, whether any such untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to
information supplied by the Company and the Bank or by the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
16
The Company, the Bank and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account the
equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities purchased by it and distributed to the public were
offered to the public exceeds the amount of any damages which such Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each officer and director of the Company and the Bank, and each person, if any,
who controls the Company or the Bank within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as the Company and the Bank. The Underwriters' obligations to
contribute pursuant to this Section 8 are several in proportion to the number of
Securities set forth opposite their respective names in Schedule A hereto and
----------
not joint.
SECTION 8. Representations, Warranties and Agreements to Survive
-----------------------------------------------------
Delivery. All representations, warranties and agreements contained in this
--------
Agreement or in certificates of officers of the Company or the Bank submitted
pursuant hereto, shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of any Underwriter or controlling
person, or by or on behalf of the Company or the Bank, and shall survive
delivery of the Securities to the Underwriters.
SECTION 9. Termination of Agreement.
------------------------
(a) The Underwriters may terminate this Agreement, by written notice from
Xxxxx Fargo to the Company or the Bank, at any time at or prior to the Closing
Time if (i) there has been, since the time of execution of this Agreement or
since the respective dates as of which information is given in the Prospectus,
any Material Adverse Effect, or (ii) there has occurred, since the time of
execution of this Agreement, (A) any material adverse change in the financial
markets in the United States or elsewhere, or (B) any outbreak of hostilities or
escalation thereof or other calamity or crisis or any change or development
involving a prospective change in national or international political, financial
or economic conditions, in each case the effect of which is such as to make it,
in the reasonable judgment of the Underwriters, impracticable to market the
Securities or to enforce contracts for the sale of the Securities, or (iii)
since the time of execution of this Agreement, trading in any securities of the
Bank has been suspended or limited by the Commission, trading generally on the
American Stock Exchange or the New York Stock Exchange or in the
over-the-counter market has been suspended or limited, or minimum or maximum
prices for trading have been fixed, or maximum ranges for prices have been
required, by any of said exchanges or by such system or by order of the
Commission, the NASD or any other governmental authority or if a material
disruption in commercial banking or securities settlement, or clearance services
17
in the Untied States occurs, or (iv) a banking moratorium has been declared by
either federal, New York or Nevada authorities.
(b) If this Agreement is terminated pursuant to this Section 9, such
termination shall be without liability of any party to any other xxxxx except as
provided in Section 4 hereof, and provided further that Sections 1, 6 and 7
shall survive such termination and remain in full force and effect.
SECTION 10. Default by One or More of the Underwriters. If one or more of
------------------------------------------
the Underwriters shall fail at the Closing Time to purchase the Securities which
it or they are obligated to purchase under this Agreement (the "Defaulted
Securities"), the Underwriters shall have the right, within 24 hours thereafter,
to make arrangements for one or more of the nondefaulting Underwriters, or any
other Underwriters, to purchase all, but not less than all, of the Defaulted
Securities in such amounts as may be agreed upon and upon the terms herein set
forth; if, however, the Underwriters shall not have completed such arrangements
within such 24-hour period, then this Agreement shall terminate without
liability on the part of any nondefaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
If any such default does not result in a termination of this Agreement,
either the Underwriters or the Company shall have the right to postpone the
Closing Time for a period not exceeding seven days in order to effect any
required changes in the Prospectus or in any other documents or arrangements,
provided that in no event may the Closing Time be postponed after January 31,
2002. As used herein, the term "Underwriter" includes any person substituted for
an Underwriter under this Section 10.
SECTION 11. Notices. All notices and other communications hereunder shall
-------
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Underwriters c/o Wells Fargo Securities,
LLC at 000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxx: Xxx Xxxxxxxx, with a copy
to Sidley Xxxxxx Xxxxx & Xxxx LLP, Attention: Xxxxxx X. XxXxxxxx, Esq.; notices
to the Company and the Bank shall be directed to First Republic Bank, 000 Xxxx
Xxxxxx, Xxx Xxxxxxxxx, XX 00000, Attention: Xxxxxx X. Xxxxxx, Xx., Senior Vice
President and Chief Financial Officer; with a copy to Xxxxxxxx Chance Xxxxxx &
Xxxxx LLP, Xxx Xxxxxxx Xxxx Xxxxxx, Xxx Xxxx, XX 00000-0000, Attention: Xxxx X.
Xxxxx, Esq.
SECTION 12. Parties. This Agreement shall inure to the benefit of and be
-------
binding upon the Underwriters and the Company and the Bank and their respective
successors and assigns. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the Underwriters and the Company and the Bank and their respective
successors and the controlling persons and officers and directors referred to in
Sections 6 and 7 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. Except as provided in the last sentence of this
Section 12, this Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the Underwriters and the Company and
the Bank and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Securities from
any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY
----------------------
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
18
SECTION 14. Effect of Headings. The Article and Section headings herein
------------------
are for convenience only and shall not affect the construction hereof.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
19
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between each Underwriter and the Company and the Bank in accordance with its
terms. The execution and delivery of this Agreement by the Company and the Bank
and its acceptance, execution and delivery by or on behalf of the Underwriters
may be evidenced by an exchange of telecopied or other written communications.
Very truly yours,
FIRST REPUBLIC PREFERRED CAPITAL
CORPORATION
By: /s/ Xxxxxx X. Xxxxxx, Xx.
-----------------------------------
Name: Xxxxxx X. Xxxxxx, Xx.
Title: Vice President
FIRST REPUBLIC BANK
By: /s/ Xxxxx X. Xxxxxxx, XX
-----------------------------------
Name: Xxxxx X. Xxxxxxx, XX
Title: President and CEO
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXX FARGO SECURITIES, LLC
XXXX, XXXX & CO., LLC
XXXXX, XXXXXXXX & XXXXX, INC.
XXXXXXX, X'XXXXX & PARTNERS, L.P.
By: XXXXX FARGO SECURITIES, LLC
By: /s/ Xxxxxx Xxxxxxxx
-------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Managing Director
20
SCHEDULE A
----------
Underwriter Number of Initial Securities
----------- ----------------------------
Xxxxx Fargo Securities, LLC 800,000
Xxxx, Xxxx & Co., LLC 640,000
Xxxxx, Xxxxxxxx & Xxxxx, Inc. 80,000
Sandler, X'Xxxxx & Partners, L.P. 80,000
Schedule A-1
EXHIBIT A
---------
Opinion of Xxxxxxxx Chance Xxxxxx & Xxxxx LLP,
special counsel to the Company and the Bank
Exhibit A-1
EXHIBIT B
---------
Opinion of Xxxxxxxx Chance Xxxxxx & Xxxxx LLP,
special counsel to the Company and the Bank
Exhibit B-1
EXHIBIT C
---------
Opinion of Xxxxxx X. Xxxxxxxxx, Esq.,
Senior Vice President and General Counsel to the Bank
Exhibit C-1
EXHIBIT D
---------
Opinion of Lionel, Xxxxxx & Xxxxxxx,
special Nevada counsel to the Company and the Bank
Exhibit D-2
