SUTRO & CO. INCORPORATED
___________________
UNDERWRITING AGREEMENT
_______________ SHARES
CAPITAL CORP OF THE WEST
Common Stock
(No Par Value)
UNDERWRITING AGREEMENT
[Insert Date]
Sutro & Co. Incorporated
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Attention: Equity Syndication Department
Dear Sirs:
1. INTRODUCTION. Capital Corp of the West, a bank holding company
organized under the laws of California (the "Company"), proposes to issue and
sell to the several Underwriters named in Schedule I hereto (the
"Underwriters"), for which Sutro & Co. Incorporated is acting as representative
(the "Representative"), an aggregate of _________ shares of the Company's Common
Stock, no par value (the "Common Stock"). The _______ shares of Common Stock to
be sold by the Company are referred to herein as the "Firm Shares." The Company
also proposes to issue and sell to the several Underwriters an aggregate of not
more than _____ additional shares of Common Stock (the "Additional Shares"), if
requested by the Underwriters in accordance with Section 9 hereof. The Firm
Shares and the Additional Shares are collectively referred to herein as the
"Shares." The words "you" and "your" refer to the Representative of the
Underwriters.
The Company hereby agrees with the several Underwriters as follows:
2. REPRESENTATIONS AND WARRANTIES.
(a) The Company represents, warrants and agrees with each of the
Underwriters that:
(i) A registration statement on Form S-2 (File No. 333-
31193) under the Securities Act of 1933 as amended (the "Act"), with
respect to the Shares, including a form of prospectus subject to
completion, has been prepared by the Company in conformity with the
requirements of the Act and the rules and regulations of the Securities and
Exchange Commission (the "Commission") thereunder (the "Rules and
Regulations"). Such registration statement has been filed with the
Commission under the Act, and one or more amendments to such registration
statement may also have been so filed. After the execution of this
Agreement, the Company shall file with the Commission either (A) if such
registration statement, as it may have been amended, has been declared by
the Commission to be effective under the Act, a prospectus in the form most
recently included in an amendment to such registration statement filed with
the Commission (or, if no such amendment shall have been filed, in such
registration
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statement), with such insertions and changes as are required by Rule 430A
under the Act or permitted by Rule 424(b) under the Act as shall have been
provided to and approved by the Representative prior to the filing thereof,
or (B) if such registration statement, as it may have been amended, has not
been declared by the Commission to be effective under the Act, an amendment
to such registration statement, including a form of prospectus, a copy of
which amendment has been furnished to and approved by the Representative
prior to the filing thereof. As used in this Agreement, the term
"Registration Statement" means such registration statement, as amended at
the time when it was or is declared effective, including all financial
schedules and exhibits thereto, and to documents incorporated therein by
reference; the Registration Statement shall be deemed to include any
information omitted therefrom pursuant to Rule 430A under the Act and
included in the Prospectus (as hereinafter defined); the term "Preliminary
Prospectus" means each prospectus subject to completion contained in such
registration statement or any amendment thereto (including the prospectus
subject to completion, if any, included in the Registration Statement or
any amendment thereto or filed pursuant to Rule 424(a) under the Act at the
time it was or is declared effective); and the term "Prospectus" means the
prospectus first filed with the Commission pursuant to Rule 424(b) under
the Act or, if no prospectus is required to be filed pursuant to said Rule
424(b), such term means the prospectus included in the Registration
Statement. References herein to any document or other information
incorporated by reference in the Registration Statement shall include
documents or other information incorporated by reference in the Prospectus
(or, if the Prospectus is not in existence, in the most recent Preliminary
Prospectus). Reference made herein to any Preliminary Prospectus or the
Prospectus shall be deemed to include all documents and information
incorporated by reference therein and shall be deemed to refer to and
include any documents and information filed after the date of such
Preliminary Prospectus or Prospectus, as the case may be, and so
incorporated by reference, under the Securities Exchange Act of 1934, as
amended (the "Exchange Act").
(ii) The Commission has not issued any order preventing or
suspending the use of any Preliminary Prospectus and has not instituted or
threatened to institute any proceedings with respect to such an order.
When any Preliminary Prospectus was filed with the Commission it (A)
contained all statements required to be stated therein in accordance with,
and complied in all material respects with the requirements of, the Act and
the Rules and Regulations and (B) did not include any untrue statement of a
material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances
under which they were made, not misleading. When the Registration
Statement or any amendment thereto was or is declared effective, it (A)
contained or will contain all statements required to be stated therein in
accordance with, and complied or will comply in all material respects with
the requirements of, the Act and the Rules and Regulations and (B) did not
or will not include any untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein not
misleading. When the Prospectus and when any amendment or supplement
thereto is filed with the Commission pursuant to Rule 424(b) (or, if the
Prospectus or such amendment or supplement is not required to be so filed,
when the Registration Statement and when any amendment thereto containing
such amendment or supplement to the Prospectus was or is declared
effective) and at all times subsequent thereto up to and including the
Closing Date (as defined in Section 3 hereof) and the Option Closing Date
(as defined in Section 9 hereof), the Prospectus, as amended or
supplemented at any such time, (A) contained or will contain all statements
required to be stated therein in accordance with, and complied or will
comply in all material respects with the requirements of, the Act and the
Rules and Regulations and (B) did not or will not include any untrue
statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances
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under which they were made, not misleading. The foregoing provisions of
this paragraph (ii) shall not apply to statements or omissions made in any
Preliminary Prospectus, the Registration Statement or any amendment thereto
or the Prospectus or any amendment or supplement thereto in reliance upon,
and in conformity with, information furnished in writing to the Company by
or on behalf of the Underwriters through the Representative expressly for
use therein. The documents which are incorporated by reference in any
Preliminary Prospectus or the Prospectus or from which information is so
incorporated by reference, when they became effective or were filed with
the Commission, as the case may be, complied in all material respects with
the requirements of the Act and the Rules and Regulations or the Exchange
Act and the rules and regulations thereunder, as applicable, and did not,
when such documents were so filed, contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading, and any
documents so filed and incorporated by reference subsequent to the
effective date of the Registration Statement shall, when they are filed
with the Commission, conform in all material respects with the requirements
of the Act and the Rules and Regulations and the Exchange Act and the rules
and regulations thereunder, as applicable.
(iii) The Company is a duly incorporated and validly existing
corporation in good standing under the laws of the state of California,
with full power and authority (corporate and other) to own or lease its
properties and to conduct its business as described in the Registration
Statement and the Prospectus (or, if the Prospectus is not in existence,
the most recent Preliminary Prospectus); and is duly qualified to do
business as a foreign corporation and is in good standing in each
jurisdiction (x) in which the conduct of its business requires such
qualification (except for those jurisdictions in which the failure so to
qualify has not had and will not have a Material Adverse Effect (as
hereinafter defined)) and (y) in which it owns or leases property. No
proceeding has been instituted in any such jurisdiction, revoking, limiting
or curtailing, or seeking to revoke, limit or curtail, such power and
authority or qualification. "Material Adverse Effect" means, when used in
connection with the Company or its subsidiaries (the "Subsidiaries"), any
development, change or effect that is materially adverse to the business,
properties, assets, net worth, condition (financial or other), results of
operations or prospects of the Company and the Subsidiaries taken as a
whole.
(iv) County Bank ("County Bank") is a wholly owned
Subsidiary of the Company and is a duly incorporated and validly existing
state banking corporation organized and in good standing under the laws of
California, with full power and authority (corporate and other) to own or
lease its properties and to conduct its business as described in the
Registration Statement and the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus); Town & Country Finance
and Thrift Company ("Town & Country") is a wholly owned Subsidiary of the
Company and a duly incorporated and validly existing industrial loan
company organized and in good standing under the laws of California, with
full power and authority (corporate and other) to own or lease its
properties and to conduct its business as described in the Registration
Statement and the Prospectus (or, if the Prospectus is not in existence,
the most recent Preliminary Prospectus); Capital West Group is a wholly
owned Subsidiary of the Company and is a duly incorporated and validly
existing corporation organized and in good standing under the laws of
California, with full power and authority (corporate and other) to own or
lease its properties and to conduct its business as described in the
Registration Statement and the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus); Merced Area Investment
and Development, Inc. ("MAID") is a
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wholly owned Subsidiary of County Bank and is a duly incorporated and
validly existing corporation organized and in good standing under the laws
of California, with full power and authority (corporate and other) to own
or lease its properties and to conduct its business as described in the
Registration Statement and the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus); there is no other
Subsidiary of the Company or of any Subsidiary of the Company engaged in
any business activity; each of County Bank, Town & Country, Capital West
Group and MAID is duly qualified to do business as a foreign corporation
and is in good standing in each jurisdiction (x) in which the conduct of
its business requires such qualification (except for those jurisdictions in
which the failure so to qualify has not had and will not have a Material
Adverse Effect (as hereinafter defined)) and (y) in which it owns or leases
property. No proceeding has been instituted in any such jurisdiction,
revoking, limiting or curtailing, or seeking to revoke, limit or curtail,
such power and authority or qualification.
(v) The Company has the duly authorized and validly issued
outstanding capitalization set forth under the caption "Capitalization" in
the Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) and will have the adjusted capitalization set forth
therein on the Closing Date and the Option Closing Date, based on the
assumptions set forth therein. The securities of the Company conform to
the descriptions thereof contained in the Prospectus (or, if the Prospectus
is not in existence, the most recent Preliminary Prospectus). The
outstanding shares of Common Stock have been duly authorized and validly
issued by the Company and are fully paid and nonassessable. Except as
created hereby or referred to in the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus), there are no
outstanding options, warrants, rights or other arrangements requiring the
Company or any Subsidiary at any time to issue any capital stock. No
holders of outstanding shares of capital stock of the Company are entitled
as such to any preemptive or other rights to subscribe for any of the
Shares and neither the filing of the Registration Statement nor the
offering or sale of the Shares as contemplated by this Agreement gives rise
to any rights, other than those which have been waived or satisfied, for or
relating to, the registration of any securities of the Company. The Shares
have been duly authorized; on the Closing Date or the Option Closing Date
(as the case may be), after payment therefor in accordance with the terms
of this Agreement, (A) the Firm Shares and the Additional Shares to be sold
by the Company hereunder will be validly issued, fully paid and
nonassessable, and (B) good and marketable title to the Shares will pass to
the Underwriters on the Closing Date or the Option Closing Date (as the
case may be) free and clear of any lien, encumbrance, security interest,
claim or other restriction whatsoever. All the outstanding shares of
capital stock of each Subsidiary have been duly authorized and validly
issued, are fully paid and, except as provided by applicable law,
nonassessable, and are owned directly by the Company, free and clear of any
lien, encumbrance, security interest, claim or other restriction
whatsoever. The Common Stock (including the Shares) is registered pursuant
to Section 12(g) of the Exchange Act and is listed on the Nasdaq National
Market, and the Company has taken no action designed to, or likely to have
the effect of, terminating the registration of the Common Stock under the
Exchange Act or delisting the Common Stock from the Nasdaq National Market,
nor has the Company received any notification that the Commission or the
National Association of Securities Dealers, Inc. (the "NASD") is
contemplating terminating such registration or listing.
(vi) The consolidated financial statements and the related
notes and schedules thereto included in the Registration Statement, or
incorporated therein by reference, and the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary
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Prospectus) fairly present the consolidated financial condition, results of
operations, stockholders' equity and cash flows of the Company and its
subsidiaries at the dates and for the periods specified therein. Such
financial statements and the related notes and schedules thereto have been
prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved (except as otherwise
noted therein), and such financial statements as are audited have been
examined by KPMG Peat Marwick LLP, who are independent public accountants
within the meaning of the Act and the Rules and Regulations, as indicated
in their reports filed therewith. The selected financial information and
statistical data set forth under the caption "Selected Financial
Information" in the Prospectus, or, if the Prospectus is not in existence,
the most recent Preliminary Prospectus) have been prepared on a basis
consistent with the financial statements of the Company and its
subsidiaries. The pro forma financial statements of the Company and its
subsidiaries, and the related notes thereto, set forth in the Registration
Statement and the Prospectus (or, if the Prospectus is not in existence the
most recent Preliminary Prospectus), have been prepared in conformity with
the requirements of the Act and the Rules and Regulations and present
fairly the information shown therein; and the pro forma adjustments on such
pro forma financial statements have been properly applied on the basis
described in the related notes thereto. The pro forma financial data set
forth in the Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus), under the captions "Selected Unaudited
Pro Forma Combined Financial Information," "Capitalization" and "Unaudited
Pro Forma Combined Financial Information" have been prepared on a basis
consistent with the pro forma consolidated financial statements of the
Company and its subsidiaries.
(vii) The Company and each of its Subsidiaries has filed all
necessary federal, state and local income, franchise and other material tax
returns and has paid all taxes shown as due thereunder, and the Company has
no knowledge of any tax deficiency which might be assessed against the
Company which, if so assessed, may have a Material Adverse Effect.
(viii) The Company and each of its Subsidiaries maintain
insurance of the types and in amounts which they reasonably believe to be
adequate for their business in such amounts and with such deductibles as is
customary for companies in the same or similar business, all of which
insurance is in full force and effect.
(ix) Except as disclosed in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus),
there is no action, suit, proceeding or investigation pending, or to the
Company's best knowledge, threatened against the Company or its
Subsidiaries action, suit, proceeding or investigation before or by any
court, regulatory body or administrative agency or any other governmental
agency or body, domestic or foreign, which (A) questions the validity of
the capital stock of the Company or this Agreement or of any action taken
or to be taken by the Company pursuant to or in connection with this
Agreement, (B) is required to be disclosed in the Registration Statement
which is not so disclosed (and such proceedings, if any, as are summarized
in the Registration Statement or incorporated therein by reference are
accurately summarized in all respects), or (C) may have a Material Adverse
Effect. The Company is not a party or subject to the provisions of any
material injunction, judgment, decree or order of any court, regulatory
body, administrative agency or other governmental body.
(x) The Company has full legal right, power and authority
to enter into this Agreement and to consummate the transactions provided
for herein. This Agreement has been duly authorized, executed and
delivered by the Company and, assuming it is a binding agreement
6
of yours, constitutes a legal, valid and binding agreement of the Company
enforceable against the Company in accordance with its terms (except as
such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other laws of general application relating to
or affecting the enforcement of creditors' rights and the application of
equitable principles relating to the availability of remedies and except as
rights to indemnity or contribution may be limited by federal or state
securities laws and the public policy underlying such laws), and none of
the Company's execution or delivery of this Agreement, its performance
hereunder, its consummation of the transactions contemplated herein, its
application of the net proceeds of the offering in the manner set forth
under the caption "Use of Proceeds" or the conduct of its business as
described in the Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus), conflicts or will conflict with or
results or will result in any breach or violation of any of the terms or
provisions of, or constitutes or will constitute a default under, causes or
will cause (or permits or will permit) the maturation or acceleration of
any liability or obligation or the termination of any right under, or
result in the creation or imposition of any lien, charge, or encumbrance
upon, any property or assets of the Company or any of its Subsidiaries
pursuant to the terms of (A) the articles of incorporation or by-laws of
the Company or any of its Subsidiaries, (B) any indenture, mortgage, deed
of trust, voting trust agreement, stockholders' agreement, note agreement
or other agreement or instrument to which the Company or any of its
Subsidiaries is a party or by which any of them are or may be bound or to
which any of their respective property is or may be subject or (C) any
statute, judgment, decree, order, rule or regulation applicable to the
Company or any of its Subsidiaries of any government, arbitrator, court,
regulatory body or administrative agency or other governmental agency or
body, domestic or foreign, having jurisdiction over the Company, any of its
Subsidiaries or any of their respective activities or properties.
(xi) All executed agreements or copies of executed
agreements filed or incorporated by reference as exhibits to the
Registration Statement to which the Company or any of its Subsidiaries is a
party or by which any of them are or may be bound or to which any of their
assets, properties or businesses is or may be subject have been duly and
validly authorized, executed and delivered by the Company or such
Subsidiary, as the case may be, and constitute the legal, valid and binding
agreements of the Company or such Subsidiary, as the case may be,
enforceable against each of them in accordance with their respective terms
(except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization or other similar laws relating to enforcement of
creditors' rights generally, and general equitable principles relating to
the availability of remedies, and except as rights to indemnity or
contribution may be limited by federal or state securities laws and the
public policy underlying such laws). The descriptions in the Registration
Statement or incorporated therein by reference of contracts and other
documents are accurate and fairly present the information required to be
shown with respect thereto by the Act and the Rules and Regulations, and
there are no contracts or other documents which are required by the Act or
the Rules and Regulations to be described in the Registration Statement or
filed as exhibits to the Registration Statement which are not described or
filed as required or incorporated therein by reference, and the exhibits
which have been filed are complete and correct copies of the documents of
which they purport to be copies.
(xii) Subsequent to the most recent respective dates as of
which information is given in the Prospectus (or, if the Prospectus is not
in existence, the most recent Preliminary Prospectus), and except as
expressly contemplated therein, neither the Company nor any of its
Subsidiaries has, other than in the ordinary course of its business, any
material liabilities or obligations, direct or contingent, purchased any of
its outstanding capital stock, paid or declared
7
any dividends or other distributions on its capital stock or entered into
any material transactions not in the ordinary course of business, and there
has been no material change in capital stock or debt or an material adverse
change in the business, properties, assets, net worth, condition (financial
or other), or results of operations or prospects of the Company and its
Subsidiaries taken as a whole. Neither the Company nor any of its
Subsidiaries (nor the manner in which any of them conducts its business) is
in breach or violation of, or in default under, any term or provision of
(A) its articles of incorporation or bylaws, (B) any indenture, mortgage,
deed of trust, voting trust agreement, stockholders' agreement, note
agreement or other agreement or instrument to which it is a party or by
which it is or may be bound or to which any of its property is or may be
subject, or any indebtedness, the effect of which breach or default singly
or in the aggregate may have a Material Adverse Effect, or (C) any statute,
judgment, decree, order, rule or regulation applicable to the Company or
any of its Subsidiaries or of any arbitrator, court, regulatory body,
administrative agency or any other governmental agency or body, domestic or
foreign, having jurisdiction over the Company or any of its Subsidiaries or
any of their respective activities or properties and the effect of which
breach or default singly or in the aggregate may have a Material Adverse
Effect.
(xiii) No labor disturbance by the employees of the Company or
any of its Subsidiaries exists or is imminent which may have a Material
Adverse Effect.
(xiv) Since its inception, the Company has not incurred any
material liability arising under or as a result of the application of the
provisions of the Act.
(xv) Each of the Company and its Subsidiaries owns, or is
licensed or otherwise has sufficient right to use, the proprietary
knowledge, inventions, patents, trademarks, service marks, trade names,
logo marks and copyrights used in or necessary for the conduct of its
business (collectively "Rights") as described in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus).
No claims have been asserted against the Company or any of its Subsidiaries
by any person with respect to the use of any such Rights or challenging or
questioning the validity or effectiveness of any such Rights. The use, in
connection with the business and operations of the Company of such Rights
does not, to the Company's best knowledge, infringe on the rights of any
person.
(xvi) No consent, approval, authorization or order of or
filing with any court, regulatory body, administrative agency or any other
governmental agency or body, domestic or foreign, is required for the
performance of this Agreement or the consummation of the transactions
contemplated hereby, except such as have been or may be obtained under the
Act or may be required under state securities or Blue Sky laws in
connection with the Underwriters' purchase and distribution of the Shares.
(xvii) There are no contracts, agreements or understandings
between the Company and any person granting such person the right to
require the Company to file a registration statement under the Act with
respect to any securities of the Company owned or to be owned by such
person or to require the Company to include such securities under the
Registration Statement (other than those that have been disclosed in the
Prospectus or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus), that have not been waived with respect to the
Registration Statement.
8
(xviii) Neither the Company nor any of its officers, directors
or affiliates (within the meaning of the Rules and Regulations) has taken,
directly or indirectly, any action designed to stabilize or manipulate the
price of any security of the Company, or which has constituted or which
might in the future reasonably be expected to cause or result in
stabilization or manipulation of the price of any security of the Company,
to facilitate the sale or resale of the Shares or otherwise.
(xix) Each of the Company and the Subsidiaries has good and
marketable title to, or valid and enforceable leasehold interests in, all
properties and assets owned or leased by it, free and clear of all liens,
encumbrances, security interests, claims, restrictions, equities, claims
and defects, except (A) such as are described in the Registration Statement
and Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus), or such as do not materially adversely affect the
value of any of such properties or assets taken as a whole and do not
materially interfere with the use made and proposed to be made of any of
such properties or assets, and (B) liens for taxes not yet due and payable
as to which appropriate reserves have been established and reflected in the
financial statements included or incorporated by reference in the
Registration Statement. The Company owns or leases all such properties as
are necessary to its operations as now conducted, and as proposed to be
conducted as set forth in the Registration Statement and the Prospectus
(or, if the Prospectus is not in existence, the most recent Preliminary
Prospectus); and the properties and business of the Company and its
Subsidiaries conform in all material respects to the descriptions thereof
contained in the Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus).
All the material leases and subleases of the Company and its Subsidiaries,
and under which the Company or any Subsidiary holds properties or assets as
lessee or sublessee, constitute valid leasehold interests of the Company or
such Subsidiary free and clear of any lien, encumbrance, security interest,
restriction, equity, claim or defect, are in full force and effect, and
neither the Company nor any Subsidiary is in default in respect of any of
the material terms or provisions of any such material leases or subleases,
and neither the Company nor any Subsidiary has notice of any claim which
has been asserted by anyone adverse to the Company's or any of its
Subsidiary's rights as lessee or sublessee under either the material lease
or sublease, or affecting or questioning the Company's or any Subsidiary's
right to the continued possession of the leased or subleased premises under
any such material lease or sublease, which may have a Material Adverse
Effect.
(xx) Neither the Company nor any Subsidiary has violated any
applicable environmental, safety, health or similar law applicable to the
business of the Company, nor any federal or state law relating to
discrimination in the hiring, promotion, or pay of employees, nor any
applicable federal or state wages and hours law, nor any provisions of the
Employee Retirement Income Security Act of 1974 ("ERISA") or the rules and
regulations promulgated thereunder, the consequences of which violation may
have a Material Adverse Effect.
(xxi) Each of the Company and its Subsidiaries holds all
franchises, licenses, permits, approvals, certificates and other
authorizations from federal, state and other governmental or regulatory
authorities necessary to the ownership, leasing and operation of its
properties or required for the present conduct of its business, and such
franchises, licenses, permits, approvals, certificates and other
governmental authorizations are in full force and effect and the Company
and its Subsidiaries are in compliance therewith in all material respects
except where the failure so to obtain, maintain or comply with would not
have a Material Adverse Effect. Without limitation of the foregoing, the
Company is duly registered as a Bank Holding
9
Company under the Bank Holding Company Act of 1956, as amended (the "BHCA")
and has due authorization under the BHCA to own and operate each of its
Subsidiaries and to conduct through such Subsidiaries the business of each,
as described in the Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus);
the deposit accounts of County Bank and Town & Country are insured by the
Bank Insurance Fund of the Federal Deposit Insurance Corporation in
accordance with applicable law; County Bank has due authorization under the
California Financial Code and the Federal Deposit Insurance Act to own and
operate MAID and to conduct its business as described in the Registration
Statement and the Prospectus (or, if the Prospectus is not in existence,
the most recent Preliminary Prospectus).
(xxii) No Subsidiary of the Company is currently prohibited,
directly or indirectly, from paying any dividends to the Company, from
making any other distribution on such Subsidiary's capital stock, from
repaying to the Company any loans or advances to such Subsidiary from the
Company or from transferring any of such Subsidiary's property or assets to
the Company or any other Subsidiary of the Company, except as described in
or contemplated by the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus).
(xxiii) The Company is not an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
(xxiv) The Company has not distributed and will not distribute
prior to the Closing Date (as defined below) any offering material in
connection with the offering and sale of the Common Shares other than the
Preliminary Prospectus, the Prospectus, the Registration Statement and the
other materials permitted by the Act.
(xxv) The Company meets the requirements for use of Form S-2
under the Rules and Regulations.
3. PURCHASE, SALE AND DELIVERY OF THE SHARES. On the basis of the
representations, warranties, covenants and agreements herein contained, but
subject to the terms and conditions herein set forth, the Company agrees to sell
to each Underwriter and each Underwriter, severally but not jointly, agrees to
purchase from the Company at a purchase price of $______ per Share, the number
of Firm Shares set forth opposite the name of such Underwriter in Column (1) of
Schedule I hereto.
Delivery of certificates and payment of the purchase price for the Firm
Shares shall be made at the offices of ________________________, or such other
location as shall be agreed upon by the Company and the Representative. Such
delivery and payment shall be made at [ask Sutro syndication] 10:00 a.m., [
] time, on _____________, 1997__ or at such other time and date
not more than ten business days thereafter as shall be agreed upon by the
Representative and the Company. The time and date of such delivery and payment
are herein called the "Closing Date." Delivery of the certificates for the Firm
Shares shall be made to the Representative for the respective accounts of the
several Underwriters against payment by the several Underwriters through the
Representative of the purchase price for the Firm Shares by same-day wire
transfer in immediately available United States funds payable to the order of
the Company. The certificates for the Shares to be so delivered will be in
definitive, fully registered form, will bear no restrictive legends and will be
in such denominations and registered in such names as the Representative shall
request not less than two full business days prior to the Closing Date. The
certificates for the Firm Shares will be made available to the Representative at
10
such office or such other place as the Representative may designate for
inspection, checking and packaging not later than 9:30 a.m., New York time on
the business day prior to the Closing Date.
4. PUBLIC OFFERING OF THE SHARES. It is understood that the Underwriters
propose to make a public offering of the Shares at the price and upon the other
terms set forth in the Prospectus.
5. COVENANTS OF THE COMPANY.
(a) The Company covenants and agrees with each of the Underwriters
that:
(i) The Company will use its best efforts to cause the
Registration Statement, if not effective at the time of execution of this
Agreement, and any amendments thereto to become effective as promptly as
practicable. If required, the Company will file the Prospectus and any
amendment or supplement thereto with the Commission in the manner and
within the time period required by Rule 424(b) under the Act. During any
time when a prospectus relating to the Shares is required to be delivered
under the Act, the Company (A) will comply with all requirements imposed
upon it by the Act and the Rules and Regulations to the extent necessary to
permit the continuance of sales of or dealings in the Shares in accordance
with the provisions hereof and of the Prospectus, as then amended or
supplemented, and (B) will not file with the Commission the prospectus or
the amendment referred to in the third sentence of Section 2 (a) (i)
hereof, any amendment or supplement to such prospectus or any amendment to
the Registration Statement of which the Representative shall not previously
have been advised and furnished with a copy a reasonable period of time
prior to the proposed filing and as to which filing the Representative
shall not have given its consent.
(ii) As soon as the Company is advised or obtains knowledge
thereof, the Company will advise the Representative (A) when the
Registration Statement, as amended, has become effective; if the provisions
of Rule 430A promulgated under the Act will be relied upon, when the
Prospectus has been filed in accordance with said Rule 430A and when any
post-effective amendment to the Registration Statement becomes effective;
(B) of any request made by the Commission for amending the Registration
Statement, for supplementing any Preliminary Prospectus or the Prospectus
or for additional information, or (C) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement
or any post-effective amendment thereto or any order preventing or
suspending the use of any Preliminary Prospectus or the Prospectus or any
amendment or supplement thereto or the institution or threat of any
investigation or proceeding for that purpose, and will use its best efforts
to prevent the issuance of any such order and, if issued, to obtain the
lifting thereof as soon as possible.
(iii) The Company will (A) use its best efforts to arrange
for the qualification of the Shares for offer and sale under the state
securities or blue sky laws of such jurisdictions as the Representative may
designate, (B) continue such qualifications in effect for as long as may be
necessary to complete the distribution of the Shares, and (C) make such
applications, file such documents and furnish such information as may be
required for the purposes set forth in clauses (A) and (B); PROVIDED,
HOWEVER, that the Company shall not be required to qualify as a foreign
corporation or file a general or unlimited consent to service of process in
any such jurisdiction.
(iv) The Company consents to the use of the Prospectus (and
any amendment or supplement thereto) by the Underwriters and all dealers to
whom the Shares may be sold, in
11
connection with the offering or sale of the Shares and for such period of
time thereafter as the Prospectus is required by law to be delivered in
connection therewith. If, at any time when a prospectus relating to the
Shares is required to be delivered under the Act, any event occurs as a
result of which the Prospectus, as then amended or supplemented, would
include any untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein not misleading, or if it
becomes necessary at any time to amend or supplement the Prospectus to
comply with the Act or the Rules and Regulations, the Company promptly will
so notify the Representative and, subject to section 5 (a) (i) hereof, will
prepare and file with the Commission an amendment to the Registration
Statement or an amendment or supplement to the Prospectus which will
correct such statement or omission or effect such compliance, each such
amendment or supplement to be reasonably satisfactory to counsel to the
Underwriters.
(v) As soon as practicable, but in any event not later than
45 days after the end of the 12-month period beginning on the day after the
end of the fiscal quarter of the Company during which the effective date of
the Registration Statement occurs (90 days in the event that the end of
such fiscal quarter is the end of the Company's fiscal year), the Company
will make generally available to its security holders, in the manner
specified in Rule 158(b) of the Rules and Regulations, and to the
Representative, an earnings statement which will be in the detail required
by, and will otherwise comply with, the provisions of Section 11(a) of the
Act and Rule 158(a) of the Rules and Regulations, which statement need not
be audited unless required by the Act or the Rules and Regulations,
covering a period of at least 12 consecutive months after the effective
date of the Registration Statement.
(vi) During a period of five years after the date hereof,
the Company will furnish to its stockholders, as soon as practicable,
annual reports (including financial statements audited by independent
public accountants) and unaudited quarterly reports of earnings, and will
deliver to the Representative:
(A) concurrently with furnishing such quarterly
reports to its stockholders, statements of income of the Company for
each quarter in the form furnished to the Company's stockholders and
certified by the Company's principal financial or accounting officer;
(B) concurrently with furnishing such annual reports
to its stockholders, a balance sheet of the Company as at the end of
the preceding fiscal year, together with statements of operations,
stockholders' equity, and cash flows of the Company for such fiscal
year, accompanied by a copy of the report thereon of independent
public accountants;
(C) as soon as they are available, copies of all
information (financial or other) mailed to stockholders;
(D) as soon as they are available, copies of all
reports and financial statements furnished to or filed with the
Commission, the National Association of Securities Dealers, Inc.
("NASD") or any securities exchange;
(E) every press release and every material news item
or article of interest to the financial community in respect of the
Company or its affairs which was released or prepared by the Company;
and
12
(F) any additional information of a public nature
concerning the Company or its business which the Representative may
reasonably request.
During such five-year period, if the Company has active
subsidiaries, the foregoing financial statements will be on a consolidated
basis to the extent that the accounts of the Company and its subsidiaries
are consolidated, and will be accompanied by similar financial statements
for any significant subsidiary which is not so consolidated.
(vii) The Company will maintain a Transfer Agent and, if
necessary under the jurisdiction of incorporation of the Company, a
Registrar (which may be the same entity as the Transfer Agent) for its
Common Stock.
(viii) The Company will furnish, without charge, to the
Representative or on the Representative's order, at such place as the
Representative may designate, copies of the Preliminary Prospectus, the
Registration Statement and any pre-effective or post-effective amendments
thereto (two of which copies will be signed and will include all financial
statements and exhibits) and the Prospectus, and all amendments and
supplements thereto, in each case as soon as available and in such
quantities as the Representative may reasonably request.
(ix) The Company will not, directly or indirectly, without
the prior written consent of the Representative, issue, offer, sell, grant
any option to purchase or otherwise dispose (or announce any issuance,
offer, sale, grant of any option to purchase or other disposition) of any
shares of Common Stock or any securities convertible into, or exchangeable
or exercisable for, shares of Common Stock for a period of 180 days after
the date hereof, except pursuant to this Agreement , except for issuances
pursuant to the exercise of stock options outstanding on or granted
subsequent to the date hereof, pursuant to a stock option or other employee
benefit plan in existence on the date hereof and except as contemplated by
the Prospectus.
(x) The Company will cause the Shares to be listed, subject
to official notice of issuance, on the Nasdaq National Market.
(xi) Neither the Company nor any of its officers or
directors, nor affiliates of any of them (within the meaning of the Rules
and Regulations) will take, directly or indirectly, any action designed to,
or which might in the future reasonably be expected to cause or result in,
stabilization or manipulation of the price of any securities of the
Company.
(xii) The Company will apply the net proceeds of the offering
received by it in the manner set forth under the caption "Use of Proceeds"
in the Prospectus. Without limitation of the foregoing, the Company shall
use its best efforts to cause County Bank to consummate the acquisition of
the three branches of Bank of America NT & SA and otherwise to fulfill its
obligations under and in accordance with the Branch Purchase and Assumption
Agreement dated June 25, 1997 between County Bank and Bank of America NT &
SA.
(xiii) The Company will timely file all such reports, forms or
other documents as may be required from time to time, under the Act, the
Rules and Regulations, the Exchange Act, and the rules and regulations
thereunder, and all such reports, forms and documents filed
13
will comply as to form and substance with the applicable requirements
under the Act, the Rules and Regulations, the Exchange Act and the rules
and regulations thereunder.
6. EXPENSES.
(a) Regardless of whether the transactions contemplated in this
Agreement are consummated, and regardless of whether for any reason this
Agreement is terminated, the Company will pay, and hereby agrees to indemnify
each Underwriter against, all fees and expenses incident to the performance of
the obligations of the Company under this Agreement, including, but not limited
to, (i) fees and expenses of accountants and counsel for the Company, (ii) all
costs and expenses incurred in connection with the preparation, duplication,
printing, filing, delivery and shipping of copies of the Registration Statement
and any pre-effective or post-effective amendments thereto, any Preliminary
Prospectus and the Prospectus and any amendments or supplements thereto
(including postage costs related to the delivery by the Underwriters of any
Preliminary Prospectus or Prospectus, or any amendment or supplement thereto),
this Agreement, the Agreement Among Underwriters, any Selected Dealer Agreement,
Underwriters' Questionnaire, Underwriters' Power of Attorney and all other
documents in connection with the transactions contemplated herein, including the
cost of all copies thereof, (iii) fees and expenses relating to qualification of
the Shares under state securities or blue sky laws, including the cost of
preparing and mailing the preliminary and final blue sky memoranda and filing
fees and disbursements and fees of counsel and other related expenses, if any,
in connection therewith, (iv) filing fees of the Commission and the NASD
relating to the Shares, (v) any fees and expenses in connection with the
quotation of the Shares on the National Association of Securities Dealers
Automated Quotations National Market System, (vi) costs and expenses incident to
the preparation, issuance and delivery to the Underwriters of any certificates
evidencing the Shares, including transfer agent's and registrar's fees and any
applicable transfer taxes incurred in connection with the delivery to the
Underwriters of the Shares to be sold by the Company pursuant to this Agreement,
(vii) costs and expenses incident to any meetings with prospective investors in
the Shares (other than as shall have been specifically approved by the
Representative to be paid for by the Underwriters) and (viii) costs and expenses
of advertising relating to the offering of the Shares (other than as shall have
been specifically approved by the Representative to be paid for by the
Underwriters).
(b) If the purchase of the Shares as herein contemplated is not
consummated for any reason other than the Underwriters' default under this
Agreement or other than by reason of Section 11(a), the Company shall reimburse
the several Underwriters for their out-of-pocket expenses (including reasonable
counsel fees and disbursements) in connection with any investigation made by
them, and any preparation made by them in respect of marketing of the Shares or
in contemplation of the performance by them of their obligations hereunder.
7. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS. The obligation of each
Underwriter to purchase and pay for the Shares set forth opposite the name of
such Underwriter in Schedule I is subject to the continuing accuracy of the
representations and warranties of the Company herein as of the date hereof and
as of the Closing Date as if they had been made on and as of the Closing Date;
the accuracy on and as of the Closing Date of the statements of officers of the
Company made pursuant to the provisions hereof; the performance by the Company
on and as of the Closing Date of its covenants and agreements hereunder; and the
following additional conditions:
(a) If the Company has elected to rely on Rule 430A under the Act,
the Registration Statement shall have been declared effective, and the
Prospectus (containing the information omitted pursuant to Rule 430A) shall have
been filed with the Commission not later than the Commission's close
14
of business on the second business day following the date hereof or such later
time and date to which the Representative shall have consented; if the Company
does not elect to rely on Rule 430A, the Registration Statement shall have been
declared effective not later than 11:00 a.m., New York time, on the date hereof
or such later time and date to which the Representative shall have consented; if
required, in the case of any changes in or amendments or supplements to the
Prospectus in addition to those contemplated above, the Company shall have filed
such Prospectus as amended or supplemented with the Commission in the manner and
within the time period required by Rule 424(b) under the Act; no stop order
suspending the effectiveness of the Registration Statement or any amendment
thereto shall have been issued, and no proceedings for that purpose shall have
been instituted or threatened or, to the knowledge of the Company or the
Representative, shall be contemplated by the Commission; and the Company shall
have complied with any request of the Commission for additional information (to
be included in the Registration Statement or the Prospectus or otherwise).
(b) The Representative shall not have advised the Company that the
Registration Statement, or any amendment thereto, contains an untrue statement
of fact which, in the Representative's opinion, is material, or omits to state a
fact which, in the Representative's opinion, is material and is required to be
stated therein or is necessary to make the statements therein not misleading, or
that the Prospectus, or any supplement thereto, contains an untrue statement of
fact which, in the Representative's opinion, is material, or omits to state a
fact which, in the Representative's opinion, is material and is required to be
stated therein or is necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(c) On or prior to the Closing Date, the Representative shall have
received from counsel to the Underwriters, such opinion or opinions with respect
to the issuance and sale of the Firm Shares, the Registration Statement and the
Prospectus and such other related matters as the Representative reasonably may
request and such counsel shall have received such documents and other
information as they request to enable them to pass upon such matters.
(d) On the Closing Date the Underwriters shall have received the
opinion, dated the Closing Date, of McCutchen, Doyle, ▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP,
counsel to the Company ("Company Counsel"), to the effect set forth below:
(i) The Company is a duly organized and validly existing
corporation in good standing under the laws of California, has the
corporate power and authority to own its properties, conduct its business
as described in the Registration Statement and the Prospectus (or if the
Prospectus is not in existence, the most recent Preliminary Prospectus),
perform its obligations under this Agreement; County Bank is a duly
incorporated and validly existing state banking corporation organized and
in good standing under the laws of California, with full power and
authority (corporate and other) to own or lease its properties and to
conduct its business as described in the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus); Town & Country is a duly incorporated and validly
existing industrial loan company organized and in good standing under the
laws of California, with full power and authority (corporate and other) to
own or lease its properties and to conduct its business as described in the
Registration Statement and the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus); Capital West
Group is a wholly owned Subsidiary of the Company and is a duly
incorporated and validly existing corporation organized and in good
standing under the laws of California, with full power and authority
(corporate and other) to own or lease its properties and to conduct its
business as described in the Registration Statement and the Prospectus (or,
if the Prospectus is
15
not in existence, the most recent Preliminary Prospectus); Merced Area
Investment and Development, Inc. ("MAID") is a wholly owned Subsidiary of
County Bank and is a duly incorporated and validly existing corporation
organized and in good standing under the laws of California, with full
power and authority (corporate and other) to own or lease its properties
and to conduct its business as described in the Registration Statement and
the Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus); there is no other Subsidiary of the Company or of
any Subsidiary of the Company engaged in any business activity; the
Company and each of its Subsidiaries is duly qualified to do business as a
foreign corporation and is in good standing in each jurisdiction (x) in
which the conduct of its business requires such qualification (except for
those jurisdictions in which the failure so to qualify can be cured without
having a Material Adverse Effect) and (y) in which it owns or leases
property.
(ii) The Company has authorized capital stock as set forth
in the Prospectus; the securities of the Company conform in all material
respects to the description thereof contained in the Prospectus; the
outstanding shares of Common Stock have been duly authorized and validly
issued by the Company, are fully paid and nonassessable, and are free of
any preemptive or other rights to subscribe for any of the Shares; the
Company has duly authorized the issuance and sale of the Shares to be sold
by it hereunder; such Shares, when issued by the Company and paid for in
accordance with the terms hereof, will be validly issued, fully paid and
nonassessable and will conform in all material respects to the description
thereof contained in the Prospectus and will not be subject to any
preemptive, subscription or other similar rights; and the Shares have been
duly authorized for listing on the Nasdaq National Market;
(iii) The Registration Statement is effective under the Act;
any required filing of the Prospectus pursuant to Rule 424(b) has been made
in the manner and within the time period required by Rule 424(b); and no
stop order suspending the effectiveness of the Registration Statement or
any amendment thereto has been issued, and no proceedings for that purpose
have been instituted or are pending or, to the best knowledge of such
counsel, are threatened or contemplated under the Act; the registration
statement originally filed with respect to the Shares and each amendment
thereto and the Prospectus and, if any, each amendment and supplement
thereto (except for the financial statements, schedules and other financial
data included therein, as to which such counsel need not express any
opinion), complied as to form in all material respects with the
requirements of the Act and the Rules and Regulations; the descriptions
contained and summarized in the Registration Statement and the Prospectus
of contracts and other documents, are accurate and fairly represent in all
material respects the information required to be shown by the Act and the
Rules and Regulations; to the best knowledge of such counsel, there are no
contracts or documents which are required by the Act to be described in the
Registration Statement or the Prospectus or to be filed as exhibits to the
Registration Statement which are not described or filed as required by the
Act and the Rules and Regulations; to the best knowledge of such counsel,
there is not pending or threatened against the Company or any Subsidiary of
the Company any action, suit, proceeding or investigation before or by any
court, regulatory body, or administrative agency or any other governmental
agency or body, domestic or foreign, of a character required to be
disclosed in the Registration Statement or the Prospectus which is not so
disclosed therein;
(iv) Such consel has reviewed the statements set forth in
the Registration Statement and the Prospectus under the captions "Risk
Factors--Government Regulation and Legislation"; "Risk Factors--
Antitakeover Effect of Certain Charter Provisions"; "Business of
16
Capital Corp of the West--Litigation"; "Regulation and Supervision"; and
"Description of Capital Stock" and such statements accurately summarize the
matters set forth therein;
(v) The Company has full legal right, power, and authority
to enter into this Agreement and to consummate the transactions provided
for herein; this Agreement has been duly authorized, executed and delivered
by the Company; and this Agreement, assuming due authorization, execution
and delivery by each other party hereto, is a valid and binding agreement
of the Company, enforceable in accordance with its terms, except as limited
by applicable bankruptcy, insolvency, reorganization, moratorium or other
laws now or hereafter in effect relating to or affecting creditors' rights
generally or by general principles of equity relating to the availability
of remedies and except as rights to indemnity and contribution may be
limited by federal or state securities laws or the public policy underlying
such laws. None of the Company's execution or delivery of this Agreement,
its performance hereof, its consummation of the transactions contemplated
herein or its application of the net proceeds of the offering in the manner
set forth under the caption "Use of Proceeds," conflicts or will conflict
with or results or will result in any breach or violation of any of the
terms or provisions of, or constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon, any
property or assets of the Company or any of its Subsidiaries pursuant to
the terms of the articles of incorporation or by-laws of the Company or any
of its Subsidiaries; the terms of any indenture, mortgage, deed of trust,
voting trust agreement, stockholder's agreement, note agreement or other
agreement or instrument known to such counsel after reasonable
investigation to which the Company or any of its Subsidiaries is a party or
by which it or any of its Subsidiaries is or may be bound or to which any
of their respective properties may be subject; any statute, rule or
regulation of any regulatory body or administrative agency or other
governmental agency or body, domestic or foreign, having jurisdiction over
the Company or any of its Subsidiaries or any of their respective
activities or properties; or any judgment, decree or order, known to such
counsel after reasonable investigation, of any government, arbitrator,
court, regulatory body or administrative agency or other governmental
agency or body, domestic or foreign, having such jurisdiction; and no
consent, approval, authorization or order of any court, regulatory body or
administrative agency or other governmental agency or body, domestic or
foreign, has been or is required for the Company's performance of this
Agreement or the consummation of the transactions contemplated hereby,
except such as have been obtained under the Act or may be required under
state securities or blue sky laws in connection with the purchase and
distribution by the Underwriters of the Shares;
(vi) To the best of such counsel's knowledge, the conduct of
the businesses of the Company and its Subsidiaries is not in violation of
any federal or state statute, administrative regulation or other law, which
violation is likely to have a Material Adverse Effect; and each of the
Company and its Subsidiaries has obtained all licenses, permits,
franchises, certificates and other authorizations from state, federal and
other regulatory authorities as are necessary or required for the
ownership, leasing and operation of its properties and the conduct of its
business as presently conducted and as contemplated in the Prospectus,
except where the failure to obtain such licenses, permits, franchises,
certificates and other authorizations would not have a Material Adverse
Effect; The Company is duly registered as a Bank Holding Company under the
Bank Holding Company Act of 1956, as amended (the "BHCA") and has due
authorization under the BHCA to own and operate each of its Subsidiaries
and to conduct through such Subsidiaries the business of each, as described
in the Registration Statement and the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus); County Bank is
duly licensed by the California Department of
17
Financial Institutions to engage in the business of banking; Town &
Country is duly licensed by the California Department of Financial
Institutions to engage in the business of an industrial loan company;
the deposit accounts of County Bank and Town & Country are insured by
the Bank Insurance Fund of the Federal Deposit Insurance Corporation in
accordance with by applicable law; County Bank has due authorization
under the California Financial Code and the Federal Deposit Insurance
Act to own and operate MAID and to conduct its business as described in
the Registration Statement and the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus); and
(vii) The issued shares of capital stock of each of the
Subsidiaries have been duly authorized and validly issued, are fully paid
and nonassessable and are owned by the Company or by County Bank in the
case of MAID free and clear of any perfected security interests or, to the
best knowledge of such counsel, any other liens, encumbrances, claims or
security interests; to the best of such counsel's knowledge, no Subsidiary
of the Company is currently prohibited, directly or indirectly, from paying
any dividends to the Company, from making any other distribution on such
Subsidiary's capital stock, from repaying to the Company any loans or
advances to such Subsidiary from the Company or from transferring any of
such Subsidiary's property or assets to the Company or any other Subsidiary
of the Company, except as described in or contemplated by the Prospectus;
(viii) Each of the Company and its Subsidiaries owns, or is
licensed or otherwise has sufficient rights to use, the Rights used in, or
necessary for, the conduct of its business as described in the Prospectus.
To the best of such counsel's knowledge, except as described in the
Prospectus, no claims have been asserted against the Company or any of its
Subsidiaries by any person to the use of any such rights or challenging or
questioning the validity or effectiveness of any such rights. The use, in
connection with the business and operations of the Company and its
Subsidiaries of such rights does not, to the best of such counsel's
knowledge, infringe on the rights of any person.
(ix) Except as disclosed in or specifically contemplated by
the Prospectus, to the best of such counsel's knowledge, there are no
outstanding options, warrants or other rights calling for the issuance of,
and no commitments, plans or arrangements to issue, any shares of capital
stock of the Company or any security convertible into or exchangeable for
capital stock of the Company; and
(x) To the best of such counsel's knowledge, no holders of
securities of the Company have rights which have not been waived to the
registration of shares of Common Stock or other securities, because of the
filing of the Registration Statement by the Company or the offering
contemplated hereby.
In addition, such counsel shall state that in the course of the
preparation of the Registration Statement and the Prospectus, such counsel
has participated in conferences with officers and representatives of the
Company and with the Company's independent public accountants, at which
conferences such counsel made inquiries of such officers, representatives
and accountants and discussed the contents of the Registration Statement
and the Prospectus and (without taking any further action to verify
independently the statements made in the Registration Statement and the
Prospectus and, except as stated in the foregoing opinion, without assuming
responsibility for the accuracy, completeness or fairness of such
statements) nothing has come to such counsel's attention that causes such
counsel to believe that either the
18
Registration Statement as of the date it is declared effective and as of
the Closing Date or the Prospectus as of the date thereof and as of the
Closing Date contained or contains any untrue statement of a material fact
or omitted or omits to state a material fact required to be stated therein
or necessary to make the statements therein not misleading (it being
understood that such counsel need not express any opinion with respect to
the financial statements, schedules and other financial data included in
the Registration Statement or the Prospectus).
In rendering any such opinion, such counsel may rely, as to matters of
fact, to the extent such counsel deems proper, on certificates of
responsible officers of the Company and public officials.
References to the Registration Statement and the Prospectus in this
paragraph (d) shall include any amendment or supplement thereto at the date
of such opinion.
(e) On or prior to the Closing Date, counsel to the Underwriters
shall have been furnished such documents, certificates and opinions as they may
reasonably require in order to evidence the accuracy, completeness or
satisfaction of any of the representations or warranties of the Company, or
conditions herein contained.
(f) At the time that this Agreement is executed by the Company, the
Underwriters shall have received from KPMG Peat Marwick LLP a letter as of the
date this Agreement is executed by the Company in form and substance
satisfactory to you (the "Original Letter"), and on the Closing Date the
Underwriters shall have received from such firm a letter dated the Closing Date
stating that, as of a specified date not earlier than five (5) days prior to the
Closing Date, nothing has come to the attention of such firm to suggest that the
statements made in the Original Letter are not true and correct.
(g) On the Closing Date, the Underwriters shall have received a
certificate, dated the Closing Date, of the principal executive officer and the
principal financial or accounting officer of the Company to the effect that each
of such persons has carefully examined the Registration Statement and the
Prospectus and any amendments or supplements thereto and this Agreement, and
that:
(i) The representations and warranties of the Company in
this Agreement are true and correct, as if made on and as of the Closing
Date, and the Company has complied with all agreements and covenants and
satisfied all conditions contained in this Agreement on its part to be
performed or satisfied at or prior to the Closing Date;
(ii) 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, to the best knowledge of each of
such persons are contemplated or threatened under the Act and any and all
filings required by Rule 424 and Rule 430A have been timely made;
(iii) The Registration Statement and Prospectus and, if any,
each amendment and each supplement thereto, contain all statements and
information required to be included therein, and neither the Registration
Statement nor any amendment thereto includes any untrue statement of a
material fact or omits to state any material fact required to be stated
therein or necessary to make the statements therein not misleading and
neither the Prospectus (or any supplement thereto) or any Preliminary
Prospectus includes or included any untrue statement of a material fact or
omits or omitted to state any material fact required to be stated
therein or
19
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading; and
(iv) Subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus up to
and including the Closing Date, neither the Company nor any of the
Subsidiaries has incurred, other than in the ordinary course of its
business, any material liabilities or obligations, direct or contingent;
neither the Company nor any of the Subsidiaries has purchased any of its
outstanding capital stock or paid or declared any dividends or other
distributions on its capital stock; neither the Company nor any of the
Subsidiaries has entered into any transactions not in the ordinary course
of business; and there has not been any change in the capital stock; any
increase in consolidated long-term debt or decreases in net assets or
shareholders' equity of the Company or any material adverse change to the
business properties, assets, net worth, condition (financial or other),
results of operations or prospects of the Company and its Subsidiaries
taken as a whole; neither the Company nor any of the Subsidiaries has
sustained any material loss or damage to its property or assets, whether or
not insured; there is no litigation which is pending or threatened against
the Company or any of its Subsidiaries which is required under the Act or
the Rules and Regulations to be set forth in an amended or supplemented
Prospectus which has not been set forth; and there has not occurred any
event required to be set forth in an amended or supplemented Prospectus
which has not been set forth.
References to the Registration Statement and the Prospectus in this
paragraph (g) are to such documents as amended and supplemented at the date
of the certificate.
(h) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus up to and including the
Closing Date there has not been (i) any change or decrease specified in the
letter or letters referred to in paragraph (f) of this Section 7 or (ii) any
change, or any development involving a prospective change, in the business or
properties of the Company or its Subsidiaries which change or decrease in the
case of clause (i) or change or development in the case of clause (ii) makes it
impractical or inadvisable in the Representative's judgment to proceed with the
public offering or the delivery of the Shares as contemplated by the Prospectus.
(i) No order suspending the sale of the Shares in any jurisdiction
designated by you pursuant to Section 5(a)(iii)(A) hereof has been issued on or
prior to the Closing Date and no proceedings for that purpose have been
instituted or, to your knowledge or that of the Company, have been or are
contemplated.
(j) The Representative shall have received from each person who is a
director or officer of the Company or who owns more than 5% of the outstanding
shares of Common Stock, except for 1867 Western Financial Corporation and its
affiliates, an agreement to the effect that such person will not, directly or
indirectly, without the prior written consent of the Representative, offer,
sell, grant any option to purchase or otherwise dispose (or announce any offer,
sale, grant of an option to purchase or other disposition) of any shares of
Common Stock or any securities convertible into, or exchangeable or exercisable
for, shares of Common Stock for a period of 180 days after the date of this
Agreement.
(k) The Company shall have furnished the Underwriters with such
further opinions, letters, certificates or documents as you or counsel for the
Underwriters may reasonably request. All opinions, certificates, letters and
documents to be furnished by the Company will comply with the provisions hereof
only if they are reasonably satisfactory in all material respects to the
Underwriters and
20
to counsel for the Underwriters. The Company shall furnish the Underwriters
with conformed copies of such opinions, certificates, letters and documents in
such quantities as you reasonably request. The certificates delivered under
this Section 7 shall constitute representations, warranties and agreements of
the Company as to all matters set forth therein as fully and effectively as if
such matters had been set forth in Section 2 of this Agreement.
(l) The Shares have been duly authorized for listing on the Nasdaq
National Market
8. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls such Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, against any
and all losses, claims, damages or liabilities, joint or several (and actions in
respect thereof), to which such Underwriter or such controlling person may
become subject, under the Act or other federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses, claims, damages,
liabilities or actions arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the Registration
Statement or the Prospectus or any Preliminary Prospectus, or any amendment or
supplement thereto, or any blue sky application or other document executed by
the Company specifically for the purpose of qualifying, or based upon written
information furnished by the Company filed in any state or other jurisdiction in
order to qualify, any or all of the Shares under the securities or blue sky laws
thereof (any such application, document or information being hereinafter called
a "Blue Sky Application"), or arise our of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements not misleading and will reimburse, as
incurred, such Underwriter or such controlling persons for any legal or other
expenses incurred by such Underwriter or such controlling persons in connection
with investigating, defending or appearing as a third party witness in
connection with any such loss, claim, damage, liability or action; PROVIDED,
HOWEVER, that the Company will not be liable in any such case to the extent that
any such loss, claim, damage, liability or action arises out of or is based upon
any untrue statement or alleged untrue statement or omission or alleged omission
made in any of such documents in reliance upon and in conformity with
information furnished in writing to the Company on behalf of such Underwriter
through the Representative expressly for use therein, and PROVIDED, FURTHER,
that such indemnity with respect to any Preliminary Prospectus shall not inure
to the benefit of any Underwriter (or to the benefit of any person controlling
such Underwriter) from whom the person asserting any such loss, claim, damage,
liability or action purchased Shares which are the subject thereof to the extent
that any such loss, claim, damage, liability or action (i) results from the fact
that such Underwriter failed to send or give a copy of the Prospectus (as
amended or supplemented) to such person at or prior to the confirmation of the
sale of such Shares to such person in any case where such delivery is required
by the Act and (ii) arises out of or is based upon an untrue statement or
omission of a material fact contained in such Preliminary Prospectus that was
corrected in the Prospectus (as amended and supplemented), unless such failure
resulted from non-compliance by the Company with Section 5 (a) (viii) hereof.
The indemnity agreement in this paragraph (a) shall be in addition to any
liability which the Company may otherwise have.
(b) Each of the Underwriters agrees severally, but not jointly, to
indemnify and hold harmless the Company, each of its directors, each of its
officers who has signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the Act or Section 20
of the Exchange Act against any and all losses, claims, damages or liabilities
(and
21
actions in respect thereof) to which the Company or any director, officer, or
controlling person may become subject, under the Act or other federal or state
statutory law or regulation, at common law or otherwise, insofar as such losses,
claims, damages, liabilities or actions arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement or the Prospectus or any Preliminary Prospectus, or
any amendment or supplement thereto or in any Blue Sky Application, or arise out
of or are based upon the omission or the alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
not misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission was
made in reliance upon and in conformity with information furnished in writing by
that Underwriter through the Representative to the Company expressly for use
therein; and will reimburse, as incurred, all legal or other expenses reasonably
incurred by the Company or any director, officer, controlling person in
connection with investigating or defending any such loss, claim, damage,
liability or action. The Company acknowledges that the statements with respect
to the public offering of the Shares set forth in the last paragraph of the
outside front cover, in the last paragraph of the inside front cover, and under
the heading "Underwriting" and the stabilization legend in the Prospectus have
been furnished by the Underwriters to the Company expressly for use therein and
constitute the only information furnished in writing by or on behalf of the
Underwriters for inclusion in the Prospectus. The indemnity agreement contained
in this subsection (b) shall be in addition to any liability which the
Underwriters may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section
8 of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against one or more indemnifying parties
under this Section 8, notify such indemnifying party or parties of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under subsection (a) or (b) of this Section 8 or to the extent
that the indemnifying party was not adversely affected by such omission. In
case any such action is brought against an indemnified party and it notifies an
indemnifying party or parties of the commencement thereof, the indemnifying
party or parties against which a claim is to be made will be entitled to
participate therein and, to the extent that it or they may wish, to assume the
defense thereof, with counsel reasonably satisfactory to such indemnified party;
PROVIDED HOWEVER, that if the defendants in any such action include both the
indemnified party and the indemnifying party has reasonably concluded that there
may be legal defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party, the
indemnified party or parties shall have the right to select separate counsel to
assume such legal defenses and otherwise to participate in the defense of such
action on behalf of such indemnified party or parties. Upon receipt of notice
from the indemnifying party to such indemnified party of its election so to
assume the defense of such action and approval by the indemnified party of
counsel, the indemnifying party will not be liable to such indemnified party
under this Section 8 for any legal or other expenses (other than the reasonable
costs of investigation) subsequently incurred by such indemnified party in
connection with the defense thereof unless (i) the indemnified party has
employed such counsel in connection with the assumption of such different or
additional legal defenses in accordance with the proviso to the immediately
preceding sentence, (ii) the indemnifying party has not employed counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of commencement of the action, or
(iii) the indemnifying party has authorized in writing the employment of counsel
for the indemnified party at the expense of the indemnifying party.
(d) If the indemnification provided for in this Section 8 is
unavailable or insufficient to hold harmless an indemnified party under
paragraph (a) or (b) above in respect of any losses, claims, damages, expenses
or liabilities (or actions in respect thereof) referred to therein, then each
indemnifying
22
party shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages or liabilities (or actions in
respect thereof) (i) in such proportion as is appropriate to reflect the
relative benefits received by each of the contributing parties, on the one hand,
and the party to be indemnified, on the other hand, from the offering of the
Shares or (ii) if the allocation provided by clause (i) above is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
each of the contributing parties, on the one hand, and the party to be
indemnified, 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. Relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or omission or alleged omission to state a material fact
relates to information supplied by the Company or by the Underwriters, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The amount paid or
payable by an indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in this paragraph
(d) shall be deemed to include 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 paragraph (d), the
Underwriters shall not be required to contribute any amount in excess of the
underwriting discount applicable to the Shares purchased by the Underwriters
hereunder. The Underwriters' obligations to contribute pursuant to this
paragraph (d) are several in proportion to their respective underwriting
obligations, and not joint. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this paragraph (d), (i) each person, if any,
who controls an Underwriter within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act shall have the same rights to contribution as
such Underwriter and (ii) each director of the Company, each officer of the
Company who has signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the Act or Section 20
of the Exchange Act shall have the same rights to contribution as the Company,
subject in each case to this paragraph (d). Any party entitled to contribution
will, promptly after receipt of notice of commencement of any action, suit or
proceeding against such party in respect to which a claim for contribution may
be made against another party or parties under this paragraph (d), notify such
party or parties from whom contribution may be sought, but the omission so to
notify such party or parties shall not relieve the party or parties from whom
contribution may be sought from any other obligation (x) it or they may have
hereunder or otherwise than under this paragraph (d) or (y) to the extent that
such party or parties were not adversely affected by such omission. The
contribution agreement set forth above shall be in addition to any liabilities
which any indemnifying party may otherwise have.
9. RIGHT TO INCREASE OFFERING. At anytime during a period of 30 days
from the date of the Prospectus, the Underwriters, by no less than two business
days' prior notice to the Company, may designate a closing (which may be
concurrent with, and part of, the closing on the Closing Date with respect to
the Firm Shares or may be a second closing held on a date subsequent to the
Closing Date, in either case such date shall be referred to herein as the
"Option Closing Date") at which the Underwriters may purchase all or less that
all of the Additional Shares in accordance with the provisions of this Section 9
at the purchase price per share to be paid for the Firm Shares. In no event
shall the Option Closing Date be later than 10 business days after written
notice of election to purchase Additional Shares is given.
The Company agrees to sell to the several Underwriters on the Option
Closing Date the number of Additional Shares specified in such notice and the
Underwriters agree severally but not jointly, to purchase such Additional Shares
on the Option Closing Date. Such Additional Shares shall be
23
purchased for the account of each Underwriter in the same proportion as the
number of Firm Shares set forth opposite the name of such Underwriter in Column
(3) of Schedule I bears to the total number of Firm Shares (subject to
adjustment by you to eliminate fractions) and may be purchased by the
Underwriters only for the purpose of covering over-allotments made in connection
with the sale of the Firm Shares.
No Additional Shares shall be sold or delivered unless the Firm Shares
previously have been, or simultaneously are, sold and delivered. The right to
purchase the Additional Shares or any portion thereof may be surrendered and
terminated at any time upon notice by you to the Company.
Except to the extent modified by this Section 9, all provisions of
this Agreement relating to the transactions contemplated to occur on the Closing
Date for the sale of the Firm Shares shall apply, MUTATIS MUTANDIS, to the
Option Closing Date for the sale of the Additional Shares.
10. REPRESENTATIONS, ETC. TO SURVIVE DELIVERY. The respective
representations, warranties, agreements, covenants, indemnities and statements
of, and on behalf of, the Company and its officers, and the Underwriters,
respectively, set forth in or made pursuant to this Agreement will remain in
full force and effect, regardless of any investigation made by or on behalf of
the Underwriters, and will survive delivery of and payment for the Shares. Any
successors to the Underwriters shall be entitled to the indemnity, contribution
and reimbursement agreements contained in this Agreement.
11. EFFECTIVE DATE AND TERMINATION.
(a) This Agreement shall become effective at 11:00 a.m., New York
time on the first business day following the date hereof, or at such earlier
time after the Registration Statement becomes effective as the Representative,
in its sole discretion, shall release the Shares for the sale to the public
unless prior to such time the Representative shall have received written notice
from the Company that it elects that this Agreement shall not become effective,
or the Representative on behalf of the Underwriters elects that this Agreement
shall not become effective; PROVIDED, HOWEVER, that the provisions of this
Section and of Section 6 and Section 8 hereof shall at all times be effective.
For purposes of this Section 11(a), the Shares to be purchased hereunder shall
be deemed to have been so released upon the earlier of notification by the
Representative to securities dealers releasing such Shares for offering or the
release by the Representative for publication of the first newspaper
advertisement which is subsequently published relating to the Shares.
(b) This Agreement (except for the provisions of Sections 6 and 8
hereof) may be terminated by the Representative by notice to the Company in the
event that the Company has failed to comply in any respect with any of the
provisions of this Agreement required on its part to be performed at or prior to
the Closing Date or the Option Closing Date, or if any of the representations or
warranties of the Company is not accurate in any respect or if the covenants,
agreements or conditions of, or applicable to the Company herein contained have
not been complied with in any respect or satisfied within the time specified on
the Closing Date or the Option Closing Date, respectively, or if prior to the
Closing Date or the Option Closing Date.
(i) the Company or any of its Subsidiaries shall have
sustained a loss by strike, fire, flood, earthquake, accident or other
calamity of such a character as to interfere materially with the conduct of
the business and operations of the Company and its Subsidiaries takes as a
whole regardless of whether or not such loss was insured;
24
(ii) trading in the Common Stock shall have been suspended
by the Commission or the NASD or trading in securities generally on the
Nasdaq National Market shall have been suspended or a material limitation
on such trading shall have been imposed or minimum or maximum prices shall
have been established on any such market system;
(iii) a banking moratorium shall have been declared by New
York, California or United States authorities;
(iv) there shall have been an outbreak or escalation of
hostilities between the United States and any foreign power or an outbreak
or escalation of any other insurrection or armed conflict involving the
United States; or
(v) there shall have been a material adverse change in (A)
general economic, political or financial conditions or (B) the present or
prospective business or condition (financial or other) of the Company and
its Subsidiaries taken as a whole that, in each case, in the
Representative's good faith judgment makes it impracticable or inadvisable
to make or consummate the public offering, sale or delivery of the
Company's Shares on the terms and in the manner contemplated in the
Prospectus and the Registration Statement.
(c) Termination of this Agreement under this Section 11 or Section 12
after the Firm Shares have been purchased by the Underwriters hereunder shall be
applicable only to the Additional Shares. Termination of this Agreement shall
be without liability of any party to any other party other than as provided in
Sections 6 and 8 hereof.
12. SUBSTITUTION OF UNDERWRITERS. If one or more of the Underwriters
shall fail or refuse (otherwise than for a reason sufficient to justify the
termination of this Agreement under the provisions of Section 7 or 11 hereof) to
purchase and pay for (a) in the case of the Closing Date, the number of Firm
Shares agreed to be purchased by such Underwriter or Underwriters upon tender to
you of such Firm Shares in accordance with the terms hereof or (b) in the case
of the Option Closing Date, the number of Additional Shares agreed to be
purchased by such Underwriter or Underwriters upon tender to you of such
Additional Shares in accordance with the terms hereof, and the number of such
Shares shall not exceed 10% of the Firm Shares or Additional Shares required to
be purchased on the Closing Date or the Option Closing Date, as the case may be,
then, each of the non-defaulting Underwriters shall purchase and pay for (in
addition to the number of such Shares which it has severally agreed to purchase
hereunder) that proportion of the number of Shares which the defaulting
Underwriter or Underwriters shall have so failed or refused to purchase on such
Closing Date or Option Closing Date, as the case may be, which the number of
Shares agreed to be purchased by such non-defaulting Underwriter bears to the
aggregate number of Shares so agreed to be purchased by all such non-defaulting
Underwriters on such Closing Date or Option Closing Date, as the case may be.
In such case, you shall have the right to postpone the Closing Date or the
Option Closing Date, as the case may be, to a date not exceeding seven full
business days after the date originally fixed as such Closing Date or the Option
Closing Date, as the case may be, pursuant to the terms hereof in order that any
necessary changes in the Registration Statement, the Prospectus or any other
documents or arrangements may be made.
If one or more of the Underwriters shall fail or refuse (otherwise than for
a reason sufficient to justify the termination of this Agreement under the
provisions of Section 7 or 11 hereof) to purchase and pay for (a) in the case of
the Closing Date, the number of Firm Shares agreed to be purchased by such
Underwriter or Underwriters upon tender to you of such Firm Shares in accordance
with the terms hereof or (b) in the case of the Option Closing Date, the number
of Additional Shares agreed to be purchased by
25
such Underwriter or Underwriters upon tender to you of such Additional Shares in
accordance with the terms hereof, and the number of such Shares shall exceed 10%
of the Firm Shares or Additional Shares required to be purchased by all the
Underwriters on the Closing Date or the Option Closing Date, as the case may be,
then (unless within 48 hours after such default arrangements to your
satisfaction shall have been made for the purchase of the defaulted Shares by an
Underwriter or Underwriters) and subject to the provisions of Section 11(b)
hereof, this Agreement will terminate without liability on the part of any non-
defaulting Underwriter or on the part of the Company except as otherwise
provided in Sections 6 and 8 hereof. As used in this Agreement, the term
"Underwriter" includes any person substituted for an Underwriter under this
paragraph. Nothing in this Section 12, and no action taken hereunder, shall
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
13. NOTICES. All communications hereunder shall be in writing and if sent
to the Representative shall be mailed or delivered or telegraphed and confirmed
by letter or telecopied and confirmed by letter to Sutro & Co. Incorporated,
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Equity
Syndication Department, or, if sent to the Company, shall be mailed or delivered
or telegraphed and confirmed by letter or telecopied and confirmed by letter to
Capital Corp of the West, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇.
14. SUCCESSORS. This Agreement shall inure to the benefit of and be
binding upon the Company and each Underwriter and the Company's and each
Underwriter's respective successors and legal representatives, and nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any other person any legal or equitable right, remedy or claim under or in
respect of this Agreement is intended or shall be construed to give any other
person any legal or equitable right, remedy or claim under or in respect of this
Agreement, or any provisions herein contained, this Agreement and all conditions
and provisions hereof being intended to be and being for the sole and exclusive
benefit of such persons and for the benefit of no other person, except that the
representations, warranties, indemnities and contribution agreements of the
Company contained in this Agreement shall also be for the benefit of any person
or persons, if any, who control any Underwriter within the meaning of Section 15
of the Act or Section 20 of the Exchange Act, and except that the Underwriters'
indemnity and contribution agreements shall also be for the benefit of the
directors of the Company, the officers of the Company who have signed the
Registration Statement, any person or persons, if any, who control the Company
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act.
No purchaser of Shares from the Underwriters will be deemed a successor because
of such purchase.
15. APPLICABLE LAW; JURISDICTION. This Agreement shall be governed by and
construed in accordance with the laws of the State of California, without giving
effect to the choice of law or conflict of law principles thereof. Each party
hereto consents to the jurisdiction of each court in which any action is
commenced seeking indemnity or contribution pursuant to Section 8 above and
agrees to accept, either directly or through an agent, service of process of
each such court.
16. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, and all of which
together shall be deemed to be one and the same instrument.
If the forgoing correctly sets forth our understanding, please indicate the
Underwriters' acceptance thereof in the space provided below for that purpose,
whereupon this letter shall constitute a binding agreement between us.
26
Very truly yours,
CAPITAL CORP OF THE WEST
By: ________________________________
Name:
Title:
27
Accepted as the date first above written:
SUTRO & CO. INCORPORATED
By: ____________________________
Acting on its own behalf and as the
Representative of the several
Underwriters referred to in the
foregoing Agreement
By: _______________________________
Title: ______________________________
28
SCHEDULE I
UNDERWRITERS
Underwriting Agreement dated _______ __, 1997
Number of
Firm Shares Option Amount
----------- -------------
Name and Address
----------------
Sutro & Co. Incorporated................. ................
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Attention: Equity Syndication Department
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
................. ................
______________ _________________
Total.................................... ................
29
