1
$
GBB CAPITAL V
___% Trust Preferred Securities
as fully and unconditionally guaranteed by
GREATER BAY BANCORP
UNDERWRITING AGREEMENT
----------------------
August ___, 2001
▇▇▇▇ ▇▇▇▇▇▇▇▇ Incorporated
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Incorporated
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated
As Representatives of the several
Underwriters named in Schedule 1
c/o ▇▇▇▇ ▇▇▇▇▇▇▇▇ Incorporated
San Francisco Office
Two Embarcadero ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Greater Bay Bancorp, a California corporation (the "Company"),
proposes to sell an aggregate of $___ million liquidation amount of ___% Trust
Preferred Securities, liquidation amount $25 per Trust Preferred Security (the
"Firm Preferred Securities") of GBB Capital V, a statutory business trust formed
under the Business Trust Act of the State of Delaware (the "Trust"), guaranteed
(the "Guarantee" and, together with the Preferred Securities and the Junior
Subordinated Interest Debentures referred to below, the "Securities") by the
Company pursuant to the Guarantee Agreement (the "Guarantee Agreement") to be
entered into by and between the Company and Wilmington Trust Company, as
guarantee trustee (the "Guarantee Trustee"), the form of which has been filed as
an exhibit to the Registration Statement (as defined below). The Company will be
the owner of all of the undivided beneficial ownership interests represented by
the Common Securities (the "Common Securities") of the Trust. The Trust will
issue the Preferred Securities and the Common Securities to the Company in
exchange for ___% Junior Subordinated Interest Debentures due 2031 (the "Junior
Subordinated Debentures") issued by the Company. The Junior Subordinated
Debentures are to be issued pursuant to an Indenture (the "Indenture") to be
entered into between the Company and Wilmington Trust Company, as indenture
trustee (the "Indenture Trustee"), the form of which has been filed as an
exhibit to the Registration Statement. In addition, the Company proposes to
grant to the Underwriters an
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option (the "Option") to purchase up to an additional $_____________ liquidation
amount of its Preferred Securities (the "Optional Preferred Securities"; and,
together with the Firm Preferred Securities, the "Preferred Securities"). This
is to confirm the agreement concerning the purchase of the Securities from the
Trust and the Company by the Underwriters named in Schedule 1 hereto (the
"Underwriters"). This is also an acknowledgment that this Agreement applies only
to the Securities and to no other securities that may be offered or sold by the
Company or any of its statutory business trusts under the Registration Statement
and by means of the Preliminary Prospectus or the Prospectus.
1. Representations, Warranties and Agreements of the Company and the
Trust. The Company and the Trust, jointly and severally, represent, warrant and
agree that:
(a) The Company meets the requirements for the use of Form S-3 under
the Securities Act of 1933, as amended (the "Securities Act"), and the
rules and regulations promulgated thereunder (the "Rules and Regulations"),
and has prepared and filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (File No.
_____________), which has become effective, for the registration of the
Securities under the Securities Act. The Company proposes to file with the
Commission pursuant to Rule 424 under the Securities Act ("Rule 424") an
amendment to the form of prospectus included in the registration statement
that includes a final prospectus as part thereof. Copies of the
Registration Statement and the amendment or amendments to such Registration
Statement have been delivered by the Company and the Trust to you as the
representatives (the "Representatives") of the Underwriters. The term
"Registration Statement" means the registration statement, as amended at
the date of this Agreement, including the exhibits thereto, financial
statements, and all documents incorporated therein by reference pursuant to
Item 12 of Form S-3 under the Securities Act (the "Incorporated
Documents"); "Preliminary Prospectus" means each prospectus included in
such Registration Statement, or amendments thereof, before it becomes
effective under the Securities Act and any prospectus filed by the Company
with the consent of the Representatives pursuant to Rule 424(a) of the
Rules and Regulations; and "Prospectus" means such final prospectus, with
any changes thereto made by the Company with the consent of the
Representatives. Any reference herein to the Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the Incorporated
Documents which were filed under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), on or before the date of this Agreement or
the issue date of the Preliminary Prospectus or the Prospectus, as the case
may be; and any reference herein to the terms "amend", "amendment" or
"supplement" with respect to the Registration Statement, the Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include the
filing of any Incorporated Documents under the Exchange Act after the date
of this Agreement or the issue date of the Preliminary Prospectus or the
Prospectus, as the case may be, and deemed to be incorporated therein by
reference. The Commission has not issued any order preventing or suspending
the use of the Registration Statement and no proceeding for that purpose
has been initiated by the Commission.
(b) The Registration Statement conforms and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus, when they
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become effective or are filed with the Commission, as the case may be, will
conform in all material respects to the requirements of the Securities Act
and the Rules and Regulations and do not and will not, as of the applicable
effective date (as to the Registration Statement and any amendment thereto)
and as of the applicable filing date (as to the Prospectus and any
amendment or supplement thereto) contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading; provided that no representation
or warranty is made as to information contained in or omitted from the
Registration Statement or the Prospectus in reliance upon and in conformity
with written information furnished to the Company and the Trust through the
Representatives by or on behalf of any Underwriter specifically for
inclusion therein. The Indenture, the Declaration (as defined in Section
1(f) hereto) and the Guarantee Agreement conform in all material respects
to and have been qualified under the requirements of the Trust Indenture
Act of 1939, as amended (the "Trust Indenture Act") and the applicable
rules and regulations thereunder.
(c) The documents incorporated by reference in the Prospectus, when
they were filed with the Commission, conformed in all material respects to
the requirements of the Exchange Act and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading; and any
further documents so filed and incorporated by reference in the Prospectus,
when such documents are filed with the Commission, will conform in all
material respects to the requirements of the Exchange Act, and the rules
and regulations of the Commission thereunder, and none of such documents
will contain an untrue statement of material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading.
(d) The Company and each of its subsidiaries (as defined in Section 15
hereof) have been duly incorporated and are validly existing as trusts,
corporations or banking associations in good standing under the laws of
their respective jurisdictions of incorporation, are duly qualified to do
business and are in good standing as foreign corporations in each
jurisdiction in which their respective ownership or lease of property or
the conduct of their respective businesses requires such qualification
other than where the failure to be so qualified and in good standing could
not reasonably be expected to have a material adverse effect on the
consolidated financial position, stockholders' equity, results of
operations, business or prospects of the Company and its subsidiaries taken
as a whole, and each has all power and authority necessary to own or hold
their respective properties and to conduct the businesses in which they are
engaged.
(e) The Company has an authorized capitalization as set forth in the
Prospectus and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued and are fully paid and
non-assessable and conform to the description thereof incorporated by
reference in the Prospectus; and all of the issued shares of capital stock
of each subsidiary of the Company that is a corporation or a
4
banking association have been duly and validly authorized and issued and
are fully paid and non-assessable (except as set forth in 12 U.S.C. (S)55)
and are owned directly or indirectly by the Company (except for directors'
qualifying shares, if any), free and clear of all liens, encumbrances,
equities or claims, except that Cupertino National Bank has issued more
shares of its capital stock than are authorized by its Articles of
Association; and the capitalization of the Trust conforms to the
description thereof set forth in the Prospectus.
(f) The Trust has been duly created and is validly existing as a
statutory business trust in good standing under the Business Trust Act of
the State of Delaware (the "Delaware Business Trust Act") with the trust
power and authority to own property and conduct its business as described
in the Prospectus; the Trust has conducted and will conduct no business
other than the transactions contemplated by this Agreement as described in
the Prospectus; the Trust is not a party to or bound by any agreement or
instrument other than this Agreement, the Declaration of Trust dated as of
May 22, 2001 and, when executed, the Amended and Restated Declaration of
Trust (the "Declaration") among the Company, Wilmington Trust Company, as
property trustee (the "Property Trustee"), Wilmington Trust Company, as
Delaware trustee (the "Delaware Trustee") and the individuals named therein
as the regular trustees (the "Regular Trustees," and together with the
Property Trustee and the Delaware Trustees, the "Trustees"), and the
holders, from time to time, of undivided beneficial ownership interests in
the assets of the Trust, and the agreements and instruments contemplated by
the Declaration and described in the Prospectus; the Trust has no
liabilities or obligations other than those arising out of the transactions
contemplated by this Agreement and the agreements and instruments
contemplated by the Declaration and described in the Prospectus; and the
Trust is not a party or subject to any action, suit or proceeding of any
nature.
(g) The Declaration has been duly authorized by the Company and, when
duly executed and delivered by the Company, as Sponsor, and the Regular
Trustees, assuming due authorization, execution and delivery of the
Declaration by the Property Trustee and the Delaware Trustee, will be a
valid and legally binding obligation of the Company and the Trust,
enforceable against the Company and the Trust in accordance with its terms,
subject to the effects of bankruptcy, insolvency, fraudulent conveyance and
transfer, reorganization, moratorium and other similar laws relating to or
affecting the rights of creditors generally, general equitable principles
(whether considered in a proceeding in equity or at law) and an implied
covenant of good faith and fair dealing, and will conform in all material
respects to the description thereof contained in the Prospectus. Each of
the Regular Trustees is an employee of the Company and has been duly
authorized by the Company to serve in such capacity and to execute and
deliver the Declaration.
(h) The Preferred Securities and the Common Securities have been duly
and validly authorized and, when issued and delivered in exchange for the
Junior Subordinated Debentures as described above, will be duly and validly
issued and fully paid and the Preferred Securities will be non-assessable;
and the Preferred Securities and the Common Securities, when issued and
delivered, will conform in all material respects to the description thereof
contained in the Prospectus.
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(i) The Indenture has been duly authorized and, when duly executed and
delivered by the proper officers of the Company, and assuming due execution
and delivery by the Indenture Trustee, will constitute a valid and legally
binding agreement of the Company enforceable against the Company in
accordance with its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity or at
law) and an implied covenant of good faith and fair dealing; and the
Indenture, when executed and delivered, will conform in all material
respects to the description thereof contained in the Prospectus; the Junior
Subordinated Debentures have been duly authorized and, when duly executed,
authenticated and delivered as provided in the Indenture, will be duly and
validly issued and outstanding and will constitute valid and legally
binding obligations of the Company entitled to the benefits of the
Indenture and enforceable against the Company in accordance with their
terms, subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating to
or affecting creditors' rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) and an implied
covenant of good faith and fair dealing; and the Junior Subordinated
Debentures, when issued and delivered, will conform in all material
respects to the description thereof contained in the Prospectus.
(j) The Guarantee Agreement has been duly authorized and, when duly
executed and delivered by the proper officers of the Company, assuming due
execution and delivery by the Guarantee Trustee, will constitute a valid
and legally binding agreement of the Company, enforceable against the
Company in accordance with its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity or at
law) and an implied covenant of good faith and fair dealing; and the
Guarantee Agreement, when executed and delivered, will conform in all
material respects to the description thereof contained in the Prospectus.
(k) This Agreement (and the transactions contemplated hereby) has been
duly authorized, executed and delivered by each of the Company and the
Trust.
(l) The execution, delivery and performance of this Agreement, the
Declaration, the Guarantee Agreement, the Indenture, the Common Securities,
the Preferred Securities and the Junior Subordinated Debentures by the
Company and the Trust, as applicable, the issuance of the Common Securities
and the Preferred Securities by the Trust in exchange for the Junior
Subordinated Debentures, the issuance of the Junior Subordinated Debentures
by the Company in exchange for the Common Securities and the Preferred
Securities, the sale of the Preferred Securities by the Company and the
consummation of the other transactions contemplated herein and therein will
not conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the Company or
any of its subsidiaries is bound or to which any of the property or assets
of the Company or any of its subsidiaries is subject and will not violate
or conflict with any statute or any
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order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Company, any of its subsidiaries or the Trust
or any of their properties or assets, except for such conflicts, breaches,
violations or defaults as would not, either individually or in the
aggregate, have a material adverse effect on the consolidated financial
position, stockholders' equity, results of operations, business or
prospects of the Company and its subsidiaries taken as a whole; nor will
such actions result in any violation of the provisions of the charter or
by-laws of the Company or any of its subsidiaries; and except for such
consents, authorizations, registrations or qualifications as have already
been obtained or as may be required under the Exchange Act and applicable
state securities laws in connection with the purchase and distribution of
the Preferred Securities by the Underwriters, no consent, approval,
authorization or order of, or filing or registration with, any such court
or governmental agency or body is required for the execution, delivery and
performance of this Agreement, the Declaration, the Guarantee Agreement,
the Indenture or the Junior Subordinated Debentures, the issuance of the
Common Securities and the Preferred Securities by the Trust in exchange for
the Junior Subordinated Securities, the issuance of the Junior Subordinated
Debentures by the Company in exchange for the Common Securities and the
Preferred Securities, the sale of the Preferred Securities by the Company
or the consummation of the transactions contemplated herein and therein.
(m) There are no contracts, agreements or understandings between the
Company or any of its subsidiaries or the Trust and any person granting
such person the right to require the Company or the Trust to include any
other securities in the securities registered pursuant to the Registration
Statement.
(n) Neither the Company nor any of its subsidiaries has sustained,
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus, any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth
or contemplated in the Prospectus; and, since such date, there has not been
any material change in the capital stock or long-term debt of the Company
or any of its subsidiaries, or any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the general affairs, management, financial position or results of
operations of the Company and its subsidiaries taken as a whole, otherwise
than as set forth or contemplated in the Prospectus.
(o) The financial statements (including the related notes and
supporting schedules) filed as part of the Registration Statement or
included or incorporated by reference in the Prospectus present fairly in
all material respects the financial condition and results of operations of
the entities purported to be shown thereby, at the dates and for the
periods indicated, and have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis throughout the
periods involved; [the pro forma financial information included in the
Prospectus has been prepared in accordance with the requirements of
Regulation S-X promulgated by the Commission and contains all adjustments
necessary for a fair presentation of the information set forth therein;]
and the information contained in the Prospectus that constitutes "forward-
7
looking statements" within the meaning of Section 21E(i)(1) of the Exchange
Act has been prepared on the basis of the Company's best current judgments
and estimations as to future operating plans and results.
(p) PricewaterhouseCoopers LLP, who have certified certain financial
statements of the Company, whose report appears in the Prospectus or is
incorporated by reference therein and who have delivered the initial letter
referred to in Section 7(j) hereof, are independent public accountants as
required by the Securities Act and the Rules and Regulations.
(q) The Company and each of its subsidiaries have good and marketable
title in fee simple to all real property and good and marketable title to
all personal property owned by them, in each case free and clear of all
liens, encumbrances and defects except such as are described in the
Prospectus or such as do not materially affect the value of such property
and do not materially interfere with the use made and proposed to be made
of such property by the Company and its subsidiaries; and all real property
and buildings held under lease by the Company and its subsidiaries are held
by them under valid, subsisting and enforceable leases, with such
exceptions as are not material and do not interfere with the use made and
proposed to be made of such property and buildings by the Company and its
subsidiaries.
(r) The Company and each of its subsidiaries carry, or are covered by,
insurance in such amounts and covering such risks as is adequate for the
conduct of their respective businesses and the value of their respective
properties and as is customary for companies engaged in similar businesses
in similar industries.
(s) There are no legal or governmental proceedings pending to which
the Company or any of its subsidiaries is a party or of which any property
or assets of the Company or any of its subsidiaries is the subject which,
if determined adversely to the Company or any of its subsidiaries, could
reasonably be expected to have a material adverse effect on the
consolidated financial position, stockholders' equity, results of
operations, business or prospects of the Company and its subsidiaries taken
as a whole; and to the best of the Company's knowledge, no such proceedings
are threatened or contemplated by governmental authorities or threatened by
others.
(t) There are no contracts or other documents which are required to be
described in the Prospectus or filed as exhibits to the Registration
Statement by the Securities Act or by the Rules and Regulations which have
not been described in the Prospectus or filed as exhibits to the
Registration Statement or incorporated therein by reference as permitted by
the Rules and Regulations.
(u) No labor disturbance by the employees of the Company exists or, to
the knowledge of the Company, is imminent which might be expected to have a
material adverse effect on the consolidated financial position,
stockholders' equity, results of operations, business or prospects of the
Company and its subsidiaries.
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(v) The Company is in compliance in all material respects with all
presently applicable provisions of the Employee Retirement Income Security
Act of 1974, as amended, including the regulations and published
interpretations thereunder ("ERISA"); no "reportable event" (as defined in
ERISA) has occurred with respect to any "pension plan" (as defined in
ERISA) for which the Company would have any liability; the Company has not
incurred and does not expect to incur liability under (i) Title IV of ERISA
with respect to termination of, or withdrawal from, any "pension plan" or
(ii) Sections 412 or 4971 of the Internal Revenue Code of 1986, as amended,
including the regulations and published interpretations thereunder (the
"Code"); and each "pension plan" for which the Company would have any
liability that is intended to be qualified under Section 401(a) of the Code
is so qualified in all material respects and nothing has occurred, whether
by action or by failure to act, other than non-material matters previously
disclosed to the Underwriters that are in the process of being
administratively corrected and that the Company expects to be
administratively corrected without incurring a loss of such qualification,
which would cause the loss of such qualification.
(w) The Company has filed all federal, state and local income and
franchise tax returns required to be filed through the date hereof and has
paid all taxes due thereon, and no tax deficiency has been determined
adversely to the Company or any of its subsidiaries which has had (nor does
the Company have any knowledge of any tax deficiency which, if determined
adversely to the Company or any of its subsidiaries, might have) a material
adverse effect on the consolidated financial position, stockholders'
equity, results of operations, business or prospects of the Company and its
subsidiaries.
(x) The Company (i) makes and keeps accurate books and records and
(ii) maintains internal accounting controls which provide reasonable
assurance that (A) transactions are executed in accordance with
management's authorization and (B) transactions are recorded as necessary
to permit preparation of it financial statements and to maintain
accountability for its assets.
(y) Neither the Company nor any of its subsidiaries (i) is in
violation of its charter or by-laws (in the case of the Company and the
Trust) or is in material violation of its charter or by-laws (in the case
of the Company's subsidiaries other than the Trust), (ii) is in default in
any material respect, and no event has occurred which, with notice or lapse
of time or both, would constitute such a default, in the due performance or
observance of any term, covenant or condition contained in any material
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which it is a party or by which it is bound or to which any
of its property or assets is subject or (iii) is in violation in any
material respect of any law, ordinance, governmental rule, regulation or
court decree to which it or its property or assets may be subject or has
failed to obtain any material license, permit, certificate, franchise or
other governmental authorization or permit necessary to the ownership of
its properties or assets or to the conduct of its business, except that
(with respect to (i) above only) Cupertino National Bank has issued more
shares of its capital stock than are authorized by its Articles of
Association.
(z) None of the Trust, the Company or any of the Company's
subsidiaries is an "investment company" within the meaning of such term
under the Investment Company
9
Act of 1940, as amended (the "Investment Company Act"), and the rules and
regulations of the Commission thereunder.
(aa) Except as set forth or contemplated in the Prospectus, since the
date as of which information is given in the Registration Statement through
the date hereof, and except as may otherwise be disclosed in the
Registration Statement, as amended or supplemented, or involving the grant
of options or transactions effected in accordance with a registration
statement previously filed with the Commission by the Company under the
Securities Act or the Exchange Act, neither the Company nor the Trust has
(i) issued or granted any securities, (ii) incurred any liability or
obligation, direct or contingent, other than liabilities and obligations
which were incurred in the ordinary course of business, (iii) entered into
any transaction not in the ordinary course of business or (iv) in the case
of the Company, declared or paid any dividend on its capital stock not in
accordance with past practice.
(bb) To the best of the Company's knowledge, there has been no storage,
disposal, generation, manufacture, refinement, transportation, handling or
treatment of toxic wastes, medical wastes, hazardous wastes or hazardous
substances by the Company or any of its subsidiaries (or, to the knowledge
of the Company, any of their predecessors in interest) at, upon or from any
of the properties now or previously owned or leased by the Company or its
subsidiaries in violation of any applicable law, ordinance, rule,
regulation, order, judgment, decree or permit or which would require
remedial action under any applicable law, ordinance, rule, regulation,
order, judgment, decree or permit, except for any violation or remedial
action which would not have, or could not be reasonably likely to have,
singularly or in the aggregate with all such violations and remedial
actions, a material adverse effect on the consolidated financial position,
stockholders' equity, results of operations, business or prospects of the
Company and its subsidiaries; there has been no material spill, discharge,
leak, emission, injection, escape, dumping or release of any kind onto such
property or into the environment surrounding such property of any toxic
wastes, medical wastes, solid wastes, hazardous wastes or hazardous
substances due to or caused by the Company or any of its subsidiaries or
with respect to which the Company or any of its subsidiaries have
knowledge, except for any such spill, discharge, leak, emission, injection,
escape, dumping or release which would not have or would not be reasonably
likely to have, singularly or in the aggregate with all such spills,
discharges, leaks, emissions, injections, escapes, dumpings and releases, a
material adverse effect on the consolidated financial position,
stockholders' equity, results of operations, business or prospects of the
Company and its subsidiaries; and the terms "hazardous wastes," "toxic
wastes," "hazardous substances" and "medical wastes" shall have the
meanings specified in any applicable local, state, federal and foreign laws
or regulations with respect to environmental protection.
(cc) The Company is duly registered as a bank holding company under the
Bank Holding Company Act of 1956, as amended (the "BHC Act").
(dd) The deposit accounts of each of the Company's bank subsidiaries
are insured by the Federal Deposit Insurance Corporation (the "FDIC") to
the fullest extent
10
permitted by law and the rules and regulations of the FDIC; and no
proceedings for the termination of such insurance are pending or, to the
Company's knowledge, threatened.
(ee) The Company and each of its subsidiaries are in compliance in all
material respects, as required, with all laws administered by and
regulations of the Board of Governors of the Federal Reserve System, the
FDIC, the California Department of Financial Institutions and any other
federal or state bank regulatory authority with jurisdiction over the
Company or any of its subsidiaries (collectively, the "Bank Regulatory
Authorities"), other than where such failures to comply would not have a
material adverse effect on the consolidated financial position,
stockholders' equity, results of operations, business or prospects of the
Company and its subsidiaries, taken as a whole. Neither the Company nor any
of its subsidiaries is a party to any written agreement or memorandum of
understanding with, or a party to any commitment letter or similar
undertaking to, or is subject to any order or directive by, or is a
recipient of any extraordinary supervisory letter from, or has adopted any
board resolutions at the request of, any Bank Regulatory Authority which
materially restricts the conduct of its business, or in any manner relates
to its capital adequacy, its credit policies or its management, nor have
any of them been advised by any Bank Regulatory Authority that it is
contemplating issuing or requesting, or is considering the appropriateness
of issuing or requesting, any such order, decree, agreement, memorandum of
understanding, extraordinary supervisory letter, commitment letter or
similar submission or any such board resolutions.
(ff) Immediately prior to the closing of the transactions contemplated
hereby on each Closing Date, the Company will have good and valid title to
the Preferred Securities to be sold by it hereunder, free and clear of all
liens, encumbrances, equities or claims; and upon delivery of the Preferred
Securities and payment therefor pursuant hereto, good and valid title to
the Preferred Securities, free and clear of all liens, encumbrances,
equities or claims, will pass to the several Underwriters.
(gg) The Company has applied for the listing of the Preferred
Securities on the Nasdaq Stock Market, Inc.
2. Purchase of the Preferred Securities by the Underwriters. (a) The
Company hereby agrees to sell to the several Underwriters, and each Underwriter,
upon the basis of the representations, warranties and agreements herein
contained, but subject to the conditions hereinafter stated, agrees, severally
and not jointly, to purchase from the Company, the respective liquidation amount
of Firm Preferred Securities set forth in Schedule 1 hereto opposite their names
at a purchase price of 100% of the liquidation amount thereof.
(b) The Company hereby grants the Option to the Underwriters to
purchase the Optional Preferred Securities at the purchase price as the
Underwriters shall pay for the Firm Preferred Securities, plus accrued
distributions, from the Firm Closing Date (as defined below). The Option may be
exercised in whole or in part on one occasion no more than 30 days subsequent to
the date of this Agreement upon notice in writing or by facsimile to the
Underwriters by the Company setting forth the amount of Optional Preferred
Securities as to which the Underwriters are exercising the Option.
11
(c) As compensation to the Underwriters for their commitments
hereunder, the Company shall, on each Closing Date (as defined in Section 4
hereof) pay to the Representatives, for the accounts of the several
Underwriters, a commission equal to 3.15% of the liquidation amount of the
Preferred Securities to be delivered and purchased on such Closing Date.
(d) The Company and the Trust shall not be obligated to deliver any
of the Securities to be delivered on any Closing Date, except upon payment for
all the Securities to be purchased on such Delivery Date as provided herein.
3. Offering of Preferred Securities by the Underwriters. Upon
authorization by the Representatives of the release of the Preferred Securities,
the several Underwriters propose to offer the Preferred Securities for sale upon
the terms and conditions set forth in the Prospectus.
4. Delivery of and Payment. Delivery by the Company of the Firm
Preferred Securities to the Representatives for the respective accounts of the
several Underwriters and payment by the Underwriters therefor by wire transfer
in federal (same day) funds to such account as the Company shall specify, shall
take place at the offices of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, at 8:30 a.m. (Pacific Daylight
Time) on August ___, 2001 or such other date and time as agreed between the
Representatives and the Company or as provided in Section 9 hereof (such date
and time of delivery and payment for the Preferred Securities being herein
called the "Firm Closing Date"). The date for the delivery of the Optional
Preferred Securities, being herein referred to as the "Optional Closing Date",
which may be the Firm Closing Date (the Firm Closing Date and the Optional
Closing Date, if any, are herein referred to sometimes as the "Closing Date"),
shall be determined by the Underwriters. Unless otherwise agreed by the
Representatives and the Company, the place of delivery of the Optional Preferred
Securities shall be the same as that for the Firm Preferred Securities.
(a) The Preferred Securities will be in the form of one or more global
Preferred Securities registered in the name of Cede & Co., as nominee of
The Depository Trust Company ("DTC").
(b) On each Closing Date, the Company shall pay, or cause to be paid,
the commissions payable on such Closing Date to the Representatives for the
accounts of the Underwriters under Section 2 by wire transfer in federal
(same day) funds to such account as the Representatives shall specify.
5. Further Agreements of the Company and the Trust. Each of the Company
and the Trust, jointly and severally, agrees:
(a) To prepare the Prospectus in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b) under
the Securities Act not later than the Commission's close of business on the
second business day following the execution and delivery of this Agreement;
to advise the Representatives, promptly after it receives notice thereof,
of the time when any amendment to the Registration Statement has been filed
or becomes effective or any supplement to the Prospectus or any amended
Prospectus has been filed and to furnish the Representatives with copies
thereof; to file
12
promptly all reports and any definitive proxy or information statements
required to be filed by the Company with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the
Prospectus and for so long as the delivery of a prospectus is required in
connection with the offering or sale of the Securities; to advise the
Representatives, promptly after it receives notice thereof, of the issuance
by the Commission of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or the Prospectus, of the
suspension of the qualification of the Securities for offering or sale in
any jurisdiction, of the initiation or threatening of any proceeding for
any such purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or the Prospectus or for
additional information; and, in the event of the issuance of any stop order
or of any order preventing or suspending the use of any Preliminary
Prospectus or the Prospectus or suspending the use of any Preliminary
Prospectus or the Prospectus or suspending any such qualification, to use
promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to the Representatives and to counsel for
the Underwriters a copy of the signed Registration Statement as originally
filed with the Commission, and each amendment thereto filed with the
Commission, including all consents and exhibits filed therewith;
(c) To deliver promptly to the Representatives such number of the
following documents as the Representatives shall reasonably request: (i)
conformed copies of the Registration Statement as originally filed with the
Commission and each amendment thereto (in each case excluding exhibits
other than this Agreement, the Indenture, the Declaration, the Guarantee
Agreement and the computation of the ratio of earnings to fixed charges),
(ii) each Preliminary Prospectus, the Prospectus (not later than 10:00
A.M., New York City time, on the day following the execution and delivery
of this Agreement) and any amended or supplemented Prospectus (not later
than 10:00 A.M., New York City time, on the day following the date of such
amendment or supplement) and (iii) any document incorporated by reference
in any Preliminary Prospectus or the Prospectus (excluding exhibits
thereto); and, if the delivery of a prospectus is required at any time
after the effective time of the Registration Statement in connection with
the offering or sale of the Securities (or any other securities relating
thereto) and if, at such time, any events shall have occurred as a result
of which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus is delivered,
not misleading, or, if for any other reason it shall be necessary during
such same period to amend or supplement the Prospectus or to file under the
Exchange Act any document incorporated by reference in the Prospectus in
order to comply with the Securities Act or the Exchange Act, to notify the
Representatives and, upon their request, to file such document and to
prepare and furnish without charge to each Underwriter and to any dealer in
securities as many copies as the Representatives may from time to time
reasonably request of an amended or supplemented Prospectus which will
correct such statement or omission or effect such compliance;
13
(d) To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the
Prospectus that may, in the judgment of the Company or the Representatives,
be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the
Registration Statement or supplement to the Prospectus, any document
incorporated by reference in the Prospectus or any Prospectus pursuant to
Rule 424 of the Rules and Regulations, for so long as delivery of the
Prospectus is required, to furnish a copy thereof to the Representatives
and counsel for the Underwriters and obtain the consent of the
Representatives to the filing;
(f) To make generally available to the Company's security holders
and to deliver to the Representatives as soon as practicable an earnings
statement of the Company and its subsidiaries (which need not be audited)
complying with Section 11(a) of the Securities Act and the Rules and
Regulations (including, at the option of the Company, Rule 158);
(g) For a period of five years following the Firm Closing Date, to
furnish to the Representatives copies of all materials furnished by the
Company to its shareholders and all public reports and all reports and
financial statements furnished by the Company to the principal national
securities exchange upon which the Company's common stock may be listed or
quoted pursuant to requirements of, or agreements with, such exchange or to
the Commission pursuant to the Exchange Act or any rule or regulation of
the Commission thereunder; it being understood that the filing of material
on the electronic data gathering and retrieval system of the Commission
constitutes the furnishing of copies for purposes of this Section 5(g);
(h) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify the Securities for
offering and sale under the securities laws of such jurisdictions in the
United States as the Representatives may request and to comply with such
laws so as to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the distribution
of the Securities; provided that in connection therewith, neither the Trust
nor the Company shall be obligated to qualify as a foreign corporation or
to file a general consent to service of process;
(i) For a period of 60 days from the date of the Prospectus, not to,
directly or indirectly, (1) offer for sale, sell, pledge or otherwise
dispose of (or enter into any transaction or device which is designed to,
or could be expected to, result in the disposition by any person at any
time in the future of) any trust certificate or other securities of the
Trust other than the issuance of the Preferred Securities and Common
Securities to the Company in exchange for the Junior Subordinated
Debentures and the sale of the Preferred Securities by the Company to the
Underwriters, as contemplated by this Agreement and the Prospectus, any
securities that are substantially similar to the Securities, or any
securities that are convertible into, or exchangeable or exercisable for,
any of the foregoing, or (2) enter into any swap or other derivatives
transaction that
14
transfers to another, in whole or in part, any of the economic benefits or
risks of ownership of the Securities, whether any such transaction
described in clauses (1) and (2) of this paragraph is to be settled by
delivery of the Securities or other securities, in cash or otherwise, in
each case without the prior written consent of ▇▇▇▇ ▇▇▇▇▇▇▇▇ Incorporated.,
on behalf of the Representatives. Notwithstanding these restrictions, this
Section 5(i) shall not restrict the ability of the Company to offer or
issue any type of equity securities of the Company;
(j) To use its best efforts to complete the listing of the Preferred
Securities on The Nasdaq Stock Market, Inc., subject only to official
notice of issuance and evidence of satisfactory distribution, prior to the
Firm Closing Date;
(k) To apply the net proceeds from the sale of the Securities as set
forth in the Prospectus; and
(l) To use its best efforts to ensure that none of the Company, any
subsidiary of the Company or the Trust shall become an "investment company"
within the meaning of such term under the Investment Company Act and the
rules and regulations of the Commission thereunder.
6. Expenses. The Company and the Trust agree to pay (a) the costs
incident to the authorization, issuance, sale and delivery of the Securities and
any taxes payable in that connection; (b) the costs incident to the preparation,
printing and filing under the Securities Act of the Registration Statement, the
Preliminary Prospectus, the Prospectus and any amendments and exhibits thereto;
(c) the costs of distributing the Registration Statement as originally filed and
each amendment thereto and any post-effective amendments thereof (including, in
each case, exhibits thereto), the Preliminary Prospectus, the Prospectus and any
amendment or supplement to any such prospectus or any document incorporated by
reference therein, all as provided in this Agreement; (d) the costs of producing
and distributing this Agreement and any other related documents in connection
with the offering, purchase, sale and delivery of the Securities; (e) any
applicable listing or other fees; (f) the fees and expenses of qualifying the
Securities under the securities laws of the several jurisdictions as provided in
Section 5(h) hereof and of preparing, printing and distributing a Blue Sky
Memorandum (including related fees and expenses of counsel to the Underwriters);
(g) any fees charged by securities rating services for rating the Securities;
(h) the fees and expenses of the Property Trustee, the Guarantee Trustee and the
Indenture Trustee; and (i) all other costs and expenses incident to the
performance of the obligations of the Company and the Trust under this
Agreement, including payment of all roadshow related expenses of the Company and
the Underwriters; provided that, except as provided in this Section 6 and in
Section 11 hereof, the Underwriters shall pay their own costs and expenses,
including the costs and expenses of their counsel, any transfer taxes on the
Securities which they may sell and the expenses of advertising any offering of
the Preferred Securities made by the Underwriters.
7. Conditions of Underwriters' Obligations. The respective
obligations of the Underwriters hereunder are subject to the accuracy, when made
and on each Closing Date, of the representations and warranties of the Company
and the Trust contained herein, to the
15
performance by the Company and the Trust of their respective obligations
hereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission
in accordance with Section 5(a) hereof; no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall have
been issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission; and any request of the Commission for
inclusion of additional information in the Registration Statement or the
Prospectus or otherwise shall have been complied with.
(b) No Underwriter shall have discovered and disclosed to the
Company on or prior to any Closing Date that the Registration Statement or
the Prospectus or any amendment or supplement thereto contains an untrue
statement of a fact which, in the opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇,
counsel for the Underwriters, is material or omits to state a fact which,
in the opinion of such counsel, is material and is required to be stated
therein or is necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident to
the authorization, form and validity of this Agreement, the Indenture, the
Declaration, the Guarantee Agreement, the Securities, the Junior
Subordinated Debentures, the Registration Statement, the Preliminary
Prospectus, and the Prospectus, and all other legal matters relating to
this Agreement and the transactions contemplated hereby, shall be
reasonably satisfactory in all material respects to counsel for the
Underwriters; and the Company and the Trust shall have furnished to such
counsel all documents and information that they may reasonably request to
enable them to pass upon such matters.
(d) ▇▇▇▇▇ ▇▇▇▇▇▇▇, as general counsel to the Company, shall have
furnished to the Representatives her written opinion, addressed to the
Underwriters and dated such Closing Date, in form and substance
satisfactory to the Representatives, to the effect that:
(1) The Company and each of its Significant Subsidiaries
(as such term is defined in Rule 12b-2 of the Commission under
the Exchange Act) have been duly incorporated and are validly
existing as corporations or banking associations in good
standing under the laws of their respective jurisdictions of
incorporation, are duly qualified to do business and are in good
standing as foreign corporations in each jurisdiction in which
their respective ownership or lease of property or the conduct
of their respective businesses requires such qualification
(other than those jurisdictions in which the failure to so
qualify would not have a material adverse effect on the
consolidated financial position, stockholders' equity, results
of operations, business or prospects of the Company and its
subsidiaries taken as a whole), and have all power and authority
necessary to own or hold their respective properties and conduct
the businesses in which they are engaged.
16
(2) The Underwriting Agreement has been duly authorized,
executed and delivered by the Company and has been duly executed
and delivered by the Trust.
(3) The Indenture has been duly authorized, executed, and
delivered by the Company, has been duly qualified under the
Trust Indenture Act and, assuming due authorization, execution
and delivery thereof by the Indenture Trustee, constitutes a
valid and legally binding obligation of the Company, enforceable
against the Company in accordance with its terms, subject to the
effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at
law) and an implied covenant of good faith and fair dealing.
(4) The Junior Subordinated Debentures have been duly
authorized, executed and delivered by the Company, and, assuming
due authentification thereof by the Indenture Trustee and
payment and delivery as provided herein, constitute valid and
legally binding obligations of the Company enforceable against
the Company in accordance with their terms, subject to the
effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at
law) and entitled to the benefits of the Indenture.
(5) The Guarantee Agreement has been duly authorized,
executed and delivered by the Company, has been duly qualified
under the Trust Indenture Act and, assuming due authorization,
execution and delivery by the Guarantee Trustee, constitutes a
valid and legally binding obligation of the Company, enforceable
against the Company in accordance with its terms, subject to the
effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at
law) and an implied covenant of good faith and fair dealing.
(6) The Declaration has been duly authorized, executed and
delivered by the Company in its capacity as sponsor thereunder
and has been duly qualified under the Trust Indenture Act.
(7) The execution, delivery and performance of this
Agreement, the Declaration, the Indenture, the Junior
Subordinated Debentures, the Preferred Securities, the Common
Securities and the Guarantee Agreement by the Company and the
Trust, as applicable, and the consummation of the transactions
contemplated hereby and thereby, will not constitute a material
breach of, or constitute a default under, any
17
material indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the Company or any of its
Significant Subsidiaries is a party or by which the Company or
any of its Significant Subsidiaries is bound or to which any of
the property or assets of the Company or any of its Significant
Subsidiaries is subject, nor will such actions result in any
violation of the provisions of the charter or by-laws of the
Company or any of its Significant Subsidiaries or any statute or
any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company or any of
its Significant Subsidiaries or any of their respective
properties or assets, the effects of which breach, violation or
default would be material to the Company and its subsidiaries
taken as a whole.
(8) All of the outstanding shares of capital stock of each
Significant Subsidiary have been duly authorized and validly
issued and are fully paid and non-assessable; except as
disclosed in the Prospectus, all such shares are owned by the
Company (except for any directors' qualifying shares) free and
clear of any pledge, lien, security interest, charge, claim,
equitable right or encumbrance of any kind, except that
Cupertino National Bank has issued more shares of its capital
stock than are authorized by its Articles of Association.
(9) No consent, approval, authorization, order,
registration or qualification of or with any Federal or
California governmental agency or body or, to such counsel's
knowledge, any Federal or California court is required for the
issue by the Trust of the Preferred Securities and the Common
Securities in exchange for the Junior Subordinated Debentures,
the issuance by the Company of the Junior Subordinated
Debentures in exchange for the Common Securities and the
Preferred Securities, the sale by the Company of the Preferred
Securities, the issuance and sale of the Guarantee by the
Company and the compliance by the Company and the Trust with all
of the provisions of this Agreement and the consummation of the
transactions contemplated by this Agreement, except for such
consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue
Sky laws in connection with the purchase and distribution of the
Preferred Securities by the Underwriters.
(10) To such counsel's knowledge, there are no contracts
or other documents which are required to be described in the
Prospectus or filed as exhibits to the Registration Statement by
the Securities Act or by the Rules and Regulations which have
not been described or filed as exhibits to the Registration
Statements or incorporated therein by reference as permitted by
the Rules and Regulations.
(11) To such counsel's knowledge, no contracts, agreements
or understandings exist between the Company and any person
granting such person the right to require the Company to include
any securities of the
18
Company owned or to be owned by such person in the securities
registered pursuant to the Registration Statement.
(12) To such counsel's knowledge, there is no pending or
threatened legal or governmental proceeding which is required to
be described in the Prospectus which is not described as
required.
(13) To such counsel's knowledge, the Trust is not a party
to or otherwise bound by any agreement other than those
described in the Prospectus.
(14) Neither the Company nor the Trust is required to be
registered as an "investment company" under the Investment
Company Act.
(15) The Company is duly registered as a bank holding
company under the BHC Act; and the deposit accounts of the
Company's bank subsidiaries are insured by the FDIC to the
fullest extent permitted by law and the rules and regulations of
the FDIC, and to the knowledge of such counsel no proceedings
for the termination of such insurance are pending or threatened.
(16) The Company and each of its subsidiaries are in
compliance with all laws administered by and regulations of the
Bank Regulatory Authorities, other than where such failures to
comply would not have a material adverse effect on the
consolidated financial position, stockholders' equity, results
of operations, business or prospects of the Company and its
subsidiaries, taken as a whole.
(e) ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP shall have furnished to the
Representatives its written opinion, as counsel to the Company, addressed to the
Underwriters and dated such Closing Date, in form and substance satisfactory to
the Representatives, to the effect that:
(1) The Registration Statement has become effective under
the Securities Act, and no stop order suspending the
effectiveness of the Registration Statement has been issued and,
to the knowledge of such counsel, no proceeding for that purpose
is pending or threatened by the Commission.
(2) The Registration Statement, the Prospectus, the
documents incorporated by reference in the Prospectus and each
and any amendment or supplement to the Registration Statement,
the Prospectus or any such incorporated document made by the
Company or the Trust on or prior to such Closing Date (other
than the financial statements and related schedules contained
therein, as to which such counsel need express no
19
opinion), comply as to form in all material respects with the
requirements of the Securities Act or the Exchange Act, as
applicable, the Trust Indenture Act and the rules and
regulations of the Commission thereunder, when they became
effective or were filed with the Commission, as the case may be.
(3) The statements made in the Prospectus under the
captions "Description of the Guarantee," "Description of the
Capital Securities," "Description of the Junior Subordinated
Debentures," "GBB Capital V," and "Relationship among the
Capital Securities, the Junior Subordinated Debentures and the
Guarantee," insofar as they purport to constitute summaries of
the terms of the documents referred to therein, constitute
accurate summaries of the terms of such documents in all
material respects.
(4) Upon (i) payment for the Preferred Securities in
accordance with the terms of this Agreement, (ii) delivery of
the Preferred Securities to Wilmington Trust Company, as
property trustee under the Indenture, (iii) delivery of the
Preferred Securities to Depository Trust Company ("DTC"), and
registration of the Preferred Securities in the name of DTC upon
registration of transfer by the Company, (iv) registration by
book-entry of the credit to the Representatives' securities
accounts with DTC of the purchase of the Preferred Securities in
the records of DTC, and (v) registration by book-entry of the
credit to the other Underwriters' securities accounts of their
purchase of the Preferred Securities in the records of any other
"securities intermediary" (as defined in Section 8102(a)(14) of
the California Uniform Commercial Code (the "California UCC"))
which acts as a "clearing corporation" (as defined in Section
8102(a)(5) of the California UCC) or maintains "security
accounts" (as defined in Section 8501(a) of the California UCC)
with respect to the transfer of the Preferred Securities to the
Underwriters, then the Underwriters will become the "entitlement
holders" (as defined in Section 8102(a)(7) of the California
UCC) of the Preferred Securities, free, to the knowledge of such
counsel, of any "adverse claims" (as defined in Section
8102(a)(1) of the California UCC).
(f) In rendering the opinions under Sections 7(d) and (e), such counsel
may state that its opinion is limited to matters governed by the Federal laws of
the United States of America and the laws of the State of California and that
(i) as to matters concerning the Trust given in such opinion, such counsel
relied on special Delaware counsel to the Company and the Trust, and (ii) as to
matters governed by New York law, such counsel has relied upon the opinion of
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel to the Underwriters, delivered pursuant to
Section 7(i). ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP shall also have furnished to the
Representatives a written statement, addressed to the Underwriters and dated
such Closing Date, in form and substance satisfactory to the Representatives, to
the effect that (x) such counsel has acted as counsel to the Company in
connection with the preparation of the Registration Statement, the Prospectus
and the documents incorporated
20
by reference therein, and in the course of preparation of those documents
such counsel has participated in conferences with representatives of the
Company and its subsidiaries (at which conferences the business, affairs
and properties of the Company and its subsidiaries were discussed) and with
representatives of PricewaterhouseCoopers LLP and (y) based upon such
counsel's examination of the Registration Statement, the Prospectus and the
documents incorporated by reference therein, such counsel's investigations
made in connection with the preparation of the Registration Statement, the
Prospectus and the documents incorporated by reference therein and such
counsel's participation in the conferences referred to above, such counsel
has no reason to believe that, except as to financial statements, notes to
financial statements, financial tables and other financial and related
statistical data contained in the Registration Statement, the Prospectus
and the documents incorporated by reference therein with respect to which
counsel need express no belief, (I) the Registration Statement, as of its
effective date, contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, or that the
Prospectus contains 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, in the light of the circumstances under which they
were made, not misleading, or (II) any documents incorporated by reference
in the Prospectus, when they were filed with the Commission, contained an
untrue statement of a material fact or omitted 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.
(g) ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP shall have furnished to the
Company and the Representatives its written opinion, as special United
States federal income tax counsel to the Company and the Trust, addressed
to the Company and the Underwriters and dated such Closing Date to the
effect that:
(1) The Trust will be classified as a grantor trust for
United States federal income tax purposes and not as an
association taxable as a corporation;
(2) The Junior Subordinated Debentures will be classified
as indebtedness for United States federal income tax purposes;
and
(3) Subject to the qualifications and limitations set
forth therein, the statements set forth in the Prospectus under
the caption "United States Federal Income Tax Consequences,"
insofar as they purport to constitute summaries of matters of
United States federal tax law and regulations or legal
conclusions with respect thereto, constitute accurate summaries
of the matters described therein in all material respects.
(h) ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.A. shall have furnished to the
Representatives its written opinion, as special Delaware counsel to the
Company and the Trust, addressed to the Underwriters and dated such Closing
Date, in form and substance satisfactory to the Representatives, to the
effect that:
21
(1) The Trust has been duly created and is validly
existing in good standing as a business trust under the Delaware
Business Trust Act; and all filings required under the laws of
the State of Delaware with respect to the creation and valid
existence of the Trust as a business trust have been made; and
under the Declaration and the Delaware Business Trust Act, the
Trust has the trust power and authority to own property and to
conduct its business as described in the Prospectus and to enter
into and perform its obligations under each of this Agreement,
the Preferred Securities and the Common Securities.
(2) The Declaration constitutes a valid and legally
binding obligation of the Company and the Trustees, and is
enforceable against the Company and the Trustees, in accordance
with its terms, subject, as to enforcement, to the effect upon
the Declaration of (i) bankruptcy, insolvency, moratorium,
receivership, reorganization, liquidation, fraudulent transfer
and other similar laws relating to the rights and remedies of
creditors generally, (ii) principles of equity, including
applicable law relating to fiduciary duties (regardless of
whether considered and applied in a proceeding in equity or at
law), and (iii) the effect of applicable public policy on the
enforceability of provisions relating to indemnification or
contribution.
(3) Under the Delaware Business Trust Act and the
Declaration, the Trust has the trust power and authority (i) to
execute and deliver and to perform its obligations under, this
Agreement and (ii) to execute and deliver the Preferred
Securities and the Common Securities.
(4) The Common Securities have been duly authorized by the
Declaration and, when issued and delivered by the Trust to the
Company in exchange for the Junior Subordinated Debentures as
described in the Prospectus, will be validly issued and (subject
to the qualifications set forth in this paragraph) fully paid
undivided beneficial interests in the assets of the Trust (such
counsel may note that the holders of Common Securities will be
subject to the withholding provisions of Section 10.4 of the
Declaration, will be required to make payment or provide
indemnity or security as set forth in the Declaration and will
be liable for the debts and obligations of the Trust to the
extent provided in Section 9.1 of the Declaration); under the
Delaware Business Trust Act and the Declaration, the issuance
and sale of the Common Securities is not subject to preemptive
or other similar rights.
(5) The Preferred Securities have been duly authorized by
the Declaration and, when issued and delivered in exchange for
the Junior Subordinated Debentures as described in the
Prospectus, the Preferred Securities will be duly and validly
issued and (subject to the qualifications set forth in this
paragraph) fully paid and nonassessable undivided beneficial
interests in the assets of the Trust; the holders of the
Preferred
22
Securities will be entitled to the benefits of the Declaration
and, as beneficial owners of the Trust, will be entitled to the
same limitation of personal liability extended to stockholders
of private corporations for profit organized under the General
Corporation Law of the State of Delaware (such counsel may note
that the Holders of Preferred Securities will be subject to the
withholding provisions of Section 10.4 of the Declaration and
will be required to make payment or provide indemnity or
security in connection with taxes or governmental charges
arising from transfers or exchanges of certificates for
Preferred Securities and the issuance of replacement
certificates for Preferred Securities, and to provide security
or indemnity in connection with requests of or directions to the
Property Trustee to exercise its rights and powers under the
Declaration, all as set forth in the Declaration).
(6) Under the Delaware Business Trust Act and the
Declaration, all necessary trust action has been taken to duly
authorize the execution and delivery by the Trust of this
Agreement and the performance by the Trust of its obligations
thereunder.
(7) Under the Delaware Business Trust Act and the
Declaration, the issuance of the Preferred Securities is not
subject to preemptive rights.
(8) The issuance by the Trust of the Preferred Securities
and the Common Securities in exchange for the Junior
Subordinated Debentures, the sale by the Company of the
Preferred Securities, the execution, delivery and performance by
the Trust of this Agreement, the consummation by the Trust of
the transactions contemplated by this Agreement, the compliance
by the Trust with its obligations thereunder and the performance
by the Company, as sponsor, of its obligations under the
Declaration (A) do not violate (i) any of the provisions of the
Certificate of Trust or the Declaration or (ii) any applicable
Delaware law or administrative regulation and do not require any
consent, approval, license, authorization or validation of, or
filing or registration with, any Delaware legislative,
administrative or regulatory body under the laws or
administrative regulations of the State of Delaware (other that
as may be required under the securities or blue sky laws of the
state of Delaware, as to which such counsel need express no
opinion) and (B) do not require any consent, approval, license,
authorization or validation of, or filing or registration with,
any Delaware legislative, administrative or regulatory body
under the laws or administrative regulations of the State of
Delaware (except that such counsel need express no opinion with
respect to the securities laws of the State of Delaware).
(9) Assuming that the Trust is a grantor trust for federal
income tax purposes and assuming that the Trust derives no
income from or connected with services provided within the State
of Delaware and has no assets, activities (other than having a
Delaware Trustee as required by the
23
Delaware Business Trust Act and the filing of documents with the
Secretary of State of the State of Delaware) or employees in the
State of Delaware, the holders of the Preferred Securities (other
than those holders of Preferred Securities who reside or are
domiciled in the State of Delaware) will have no liability for
income taxes imposed by the State of Delaware solely as a result
of their participation in the Trust, and the Trust will not be
liable for any income tax imposed by the State of Delaware.
(i) The Representatives shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇, counsel for the Underwriters, such opinion or opinions, dated such
Closing Date, with respect to the issuance and sale of the Securities, the
Registration Statement, the Prospectus and other related matters as the
Representatives may reasonably require, and the Company shall have furnished to
such counsel such documents as they reasonably request for the purpose of
enabling them to pass upon such matters. In rendering such opinion, ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ may rely upon the opinion of ▇▇▇▇▇ ▇▇▇▇▇▇▇, as general
counsel for the Company, delivered pursuant to Section 7(d), as to matters
governed by California law.
(j) At the time of execution of this Agreement, the Representatives shall
have received from PricewaterhouseCoopers LLP a letter, in form and substance
satisfactory to the Representatives, addressed to the Underwriters and dated the
date hereof (i) confirming that they are independent public accountants within
the meaning of the Securities Act and are in compliance with the applicable
requirements relating to the qualification of accountants under Rule 2-01 of
Regulation S-X of the Commission, (ii) stating, as of the date hereof (or, with
respect to matters involving changes or developments since the respective dates
as of which specified financial information is given in the Prospectus, as of a
date not more than five days prior to the date hereof), the conclusions and
findings of such firm with respect to the financial information and other
matters ordinarily covered by accountants' "comfort letters" to underwriters in
connection with registered public offerings.
(k) With respect to the letter of PricewaterhouseCoopers LLP referred to
in the preceding paragraph and delivered to the Representatives concurrently
with the execution of this Agreement (the "initial letter"), the Company shall
have furnished to the Representatives a letter (the "bring-down letter") of such
accountants, addressed to the Underwriters and dated each Closing Date (i)
confirming that they are independent public accountants within the meaning of
the Securities Act and are in compliance with the applicable requirements
relating to the qualification of accountants under Rule 2-01 of Regulation S-X
of the Commission, (ii) stating, as of the date of such bring-down letter (or,
with respect to matters involving changes or developments since the respective
dates as of which specified financial information is given in the Prospectus, as
of a date not more than five days prior to the date of the bring-down letter),
the conclusions and findings of such firm with respect to the financial
information and other matters covered by the initial letter and (iii) confirming
in all material respects the conclusions and findings set forth in the initial
letter.
24
(l) The Company and the Trust shall each have furnished to the
Representatives a certificate, dated such Closing Date, of its Chairman of the
Board, its President or an Executive Vice President and its chief financial
officer or the Administrative Trustees, as the case may be, stating, with
respect to the appropriate entity, that:
(A) The representations, warranties and agreements of the
Company and the Trust in Section 1 hereof are true and correct as
of such Closing Date; the Company and the Trust have complied
with all their agreements contained herein and the conditions set
forth in paragraphs (a) and (k) of this Section 7 have been
fulfilled, and;
(B) They have carefully examined the Registration Statement
and the Prospectus and, in their opinion (i) the Registration
Statement, as of its effective date, and the Prospectus, as of
its date and as of such Closing Date, did not include any untrue
statement of a material fact and did not omit to state a material
fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances in which they
were made, not misleading, and (ii) since such dates, no event
has occurred which should have been set forth in a supplement or
amendment to the Registration Statement or the Prospectus.
(m) (i) Neither the Company nor any of its subsidiaries shall have
sustained, since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus, any loss or interference with its
business from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental action, order
or decree, otherwise than as set forth or contemplated in the Prospectus and
(ii) since such date there shall not have been any change in the capital stock
or long-term debt of the Company or any Significant Subsidiary or any change, or
any development involving a prospective change, in or affecting the general
affairs, management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries taken as a whole, otherwise than
as set forth or contemplated in the Prospectus, the effect of which, in any such
case described in clause (i) or (ii) of this paragraph, is, in the reasonable
judgment of the Representatives, so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Securities on the terms and in the manner contemplated in the Prospectus.
(n) Subsequent to the execution and delivery of this Agreement (i) no
downgrading shall have occurred in the rating accorded the Company's debt
securities or preferred stock by any "nationally recognized statistical rating
organization," as that term is defined by the Commission for purposes of Rule
436(g)(2) of the Rules and Regulations; and (ii) no such organization shall have
publicly announced that it has under surveillance or review, with possible
negative implications, its rating of any of the Company's debt securities or
preferred stock.
(o) Subsequent to the execution and delivery of this Agreement there shall
not have occurred any of the following: (i) trading in securities generally on
the New York
25
Stock Exchange or in the over-the-counter market, or trading in any securities
of the Company on any exchange or in the over-the-counter market, shall have
been suspended or minimum prices shall have been established on the New York
Stock Exchange or such market by the Commission, by such exchange or by any
other regulatory body or governmental authority having jurisdiction, (ii) a
banking moratorium shall have been declared by Federal or state authorities,
(iii) the United States shall have become engaged in hostilities, there shall
have been an escalation in hostilities involving the United States or there
shall have been a declaration of a national emergency or war by the United
States or (iv) there shall have occurred such a material adverse change in
general economic, political or financial conditions (or the effect of
international conditions on the financial markets in the United States shall be
such) as to make it, in the judgment of a majority in interest of the several
Underwriters, impracticable or inadvisable to proceed with the public offering
or delivery of the Securities on the terms and in the manner contemplated in the
Prospectus.
(p) The Nasdaq Stock Market, Inc. shall have approved the Preferred
Securities for listing, subject only to official notice of issuance and evidence
of satisfactory distribution.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriters.
8. Indemnification and Contribution.
(a) The Company and the Trust, jointly and severally, shall
indemnify and hold harmless each Underwriter, its officers and
employees and each person, if any, who controls any Underwriter within
the meaning of the Securities Act, from and against any loss, claim,
damage or liability, joint or several, or any action in respect
thereof (including, but not limited to, any loss, claim, damage,
liability or action relating to purchases and sales of the
Securities), to which that Underwriter, officer, employee or
controlling person may become subject, under the Securities Act or
otherwise, insofar as such loss, claim, damage, liability or action
arises out of, or is based upon, (i) any untrue statement or alleged
untrue statement of a material fact contained (A) in the Preliminary
Prospectus, the Registration Statement or the Prospectus, or in any
amendment or supplement thereto, or (B) in any blue sky application or
other document prepared or executed by the Company or the Trust (or
based upon any written information furnished by the Company or the
Trust) specifically for the purpose of qualifying any or all of the
Securities under the securities laws of any state or other
jurisdiction (any such application, document or information being
hereinafter called a "Blue Sky Application") or (C) in any materials
or information provided to investors by, or on behalf of, the Company
in connection with the marketing of the offering of the Securities,
including any roadshow or investor presentation made to investors by
the Company (whether in person or electronically) ("Roadshow
Materials"), or (ii) the omission or alleged omission to state in the
Preliminary Prospectus, the Registration Statement or the Prospectus,
or in any amendment or supplement
26
thereto, or in any Blue Sky Application any material fact required to
be stated therein or necessary to make the statements therein not
misleading or the offering contemplated hereby, and which is included
as part of or referred to in any loss, claim, damage, liability or
action arising out of or based upon matters covered by clause (i) or
(ii) above and shall reimburse each Underwriter and each such officer,
employee or controlling person promptly upon demand for any legal or
other expenses reasonably incurred by that Underwriter, officer,
employee or controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however,
that the Company and the Trust shall 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 the
Preliminary Prospectus, the Registration Statement or the Prospectus,
or in any such amendment or supplement, or in any Blue Sky Application
in reliance upon and in conformity with written information concerning
such Underwriter furnished to the Company through the Representatives
by or on behalf of such Underwriter specifically for inclusion therein
which information consists solely of the information specified in
Section 8(e) hereof. The foregoing indemnity agreement is in addition
to any liability which the Company or the Trust may otherwise have to
any Underwriter or to any officer, employee or controlling person of
that Underwriter.
(b) Each Underwriter, severally and not jointly, shall indemnify
and hold harmless the Company and the Trust, their officers and
employees, each of their directors and each person, if any, who
controls the Company within the meaning of the Securities Act, from
and against any loss, claim, damage or liability, joint or several, or
any action in respect thereof, to which the Company or the Trust or
any such director, officer or controlling person may become subject,
under the Securities Act or otherwise, insofar as such loss, claim,
damage, liability or action arises out of, or is based upon, (i) any
untrue statement or alleged untrue statement of a material fact
contained (A) in the Preliminary Prospectus, the Registration
Statement or the Prospectus, or in any amendment or supplement
thereto, or (B) in any Blue Sky Application or (ii) the omission or
alleged omission to state in the Preliminary Prospectus, the
Registration Statement or the Prospectus, or in any amendment or
supplement thereto, or in any Blue Sky Application any material fact
required to be stated therein or necessary to make the statements
therein not misleading, but in each case only to the extent that the
untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written
information concerning such Underwriter furnished to the Company and
the Trust through the Representatives by or on behalf of that
Underwriter specifically for inclusion therein (which information
consists solely of the information specified in Section 8(e) hereof),
and shall reimburse the Company and the Trust and any such director,
officer or controlling person for any legal or other expenses
reasonably incurred by the Company or the Trust or any such director,
officer or controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim, damage,
liability or action as such expenses are
27
incurred. The foregoing indemnity agreement is in addition to any
liability which any Underwriter may otherwise have to the Company and
the Trust or any such director, officer, employee or controlling
person.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of any claim or the commencement of any action,
the indemnified party shall, if a claim in respect thereof is to be
made against the indemnifying party under this Section 8, notify the
indemnifying party in writing of the claim or the commencement of that
action; provided, however, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may have under
this Section 8 except to the extent it has been materially prejudiced
by such failure and, provided further, that the failure to notify the
indemnifying party shall not relieve it from any liability which it
may have to an indemnified party otherwise than under this Section 8.
If any such claim or action shall be brought against an indemnified
party, and it shall notify the indemnifying party thereof, the
indemnifying party shall be entitled to participate therein and, to
the extent that it wishes, jointly with any other similarly notified
indemnifying party, to assume the defense thereof with counsel
satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume
the defense of such claim or action, the indemnifying party shall not
be liable to the indemnified party under this Section 8 for any legal
or other expenses subsequently incurred by the indemnified party in
connection with the defense thereof other than reasonable costs of
investigation; provided, however, that the Representatives shall have
the right to employ counsel to represent jointly the Representatives
and those other Underwriters and their respective officers, employees
and controlling persons who may be subject to liability arising out of
any claim in respect of which indemnity may be sought by the
Underwriters against the Company under this Section 8 if, in the
reasonable judgement of the Representatives, it is advisable for the
Representatives and those Underwriters, officers, employees and
controlling persons to be jointly represented by separate counsel, and
in that event the fees and expenses of one of such separate counsel
shall be paid by the Company. Each indemnified party, as a condition
of the indemnity agreements contained in Sections 8(a) and 8(b), shall
use its best efforts to cooperate with the indemnifying party in the
defense of any such action or claim. No indemnifying party shall (i)
without the prior written consent of the indemnified parties (which
consent shall not be unreasonably withheld), settle or compromise or
consent to the entry of any judgment with respect to any pending or
threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or
not the indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding, or
(ii) be liable for any settlement of any such action effected without
its written consent (which consent shall not be unreasonably
withheld), but if settled with the written consent of the indemnifying
party or if there be a final judgment of the plaintiff in any such
action, the indemnifying party agrees to indemnify and hold harmless
28
any indemnified party from and against any loss or liability by reason
of such settlement or judgment.
(d) If the indemnification provided for in this Section 8 shall
for any reason be unavailable to or insufficient to hold harmless an
indemnified party under Section 8(a) or 8(b) in respect of any loss,
claim, damage or liability, or any action in respect thereof, referred
to therein, then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid or
payable by such indemnified party as a result of such loss, claim,
damage or liability, or action in respect thereof, (i) in such
proportion as shall be appropriate to reflect the relative benefits
received by the Company and the Trust on the one hand and the
Underwriters on the other from the offering of the Securities or (ii)
if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also
the relative fault of the Company and the Trust on the one hand and
the Underwriters on the other with respect to the statements or
omissions which resulted in such loss, claim, damage or liability, or
action in respect thereof, as well as any other relevant equitable
considerations. The relative benefits received by the Company and the
Trust on the one hand and the Underwriters on the other with respect
to such offering shall be deemed to be in the same proportion as the
total net proceeds from the offering of the Securities purchased under
this Agreement (before deducting expenses) received by the Company and
the Trust, on the one hand, and the total underwriting discounts and
commissions received by the Underwriters with respect to the shares of
the Securities purchased under this Agreement, on the other hand, bear
to the total gross proceeds from the offering of the shares of the
Securities under this Agreement, in each case as set forth in the
table on the cover page of the Prospectus. The relative fault shall
be determined by reference to 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 and the
Trust or the Underwriters the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent
such statement or omission. For purposes of the preceding two
sentences, the net proceeds deemed to be received by the Company shall
be deemed to be also for the benefit of the Trust and information
supplied by the Company shall also be deemed to have been supplied by
the Trust. The Company, the Trust and the Underwriters agree that it
would not be just and equitable if contributions pursuant to this
Section 8(d) were to be determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any
other method of allocation which does not take into account the
equitable considerations referred to herein. The amount paid or
payable by an indemnified party as a result of the loss, claim, damage
or liability, or action in respect thereof, referred to above in this
Section 8(d) shall be deemed to include, for purposes of this Section
8(d), any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of this Section
8(d), no Underwriter shall be required to contribute any amount in
excess of the amount by which the
29
total price at which the Securities underwritten by it and distributed
to the public was offered to the public exceeds the amount of any
damages which such Underwriter has otherwise paid or become liable to
pay by reason of any untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to
contribute as provided in this Section 8(d) are several in proportion
to their respective underwriting obligations and not joint.
(e) The Underwriters severally confirm and the Company and the
Trust acknowledge that the statements with respect to the public
offering of the Securities by the Underwriters set forth on the cover
page of and the concession and reallowance figures and the information
in the first paragraph appearing under the caption "Underwriting--
Commission and Discounts," and the textual paragraphs appearing under
the caption "Underwriting -- Confirmation to Discretionary Accounts"
and " -- Price Stabilization and Short Positions" in the Prospectus
constitute the only information concerning such Underwriters furnished
in writing to the Company by or on behalf of the Underwriters
specifically for inclusion in the Registration Statement and the
Prospectus.
9. Defaulting Underwriters. If, on any Closing Date, any Underwriter
defaults in the performance of its obligations under this Agreement, the
remaining non-defaulting Underwriters shall be obligated to purchase the
Securities which the defaulting Underwriter agreed but failed to purchase on
such Closing Date in the respective proportions which the aggregate liquidation
amount of Preferred Securities set opposite the name of each remaining non-
defaulting Underwriter in Schedule 1 hereto bears to the total aggregate
liquidation amount of Preferred Securities set opposite the names of all the
remaining non-defaulting Underwriters in Schedule 1 hereto; provided, however,
that the remaining non-defaulting Underwriters shall not be obligated to
purchase any of the Securities on such Closing Date if the total Securities
which the defaulting Underwriter or Underwriters agreed but failed to purchase
on such date exceeds 9.09% of the total Securities to be purchased on such
Closing Date, and any remaining non-defaulting Underwriter shall not be
obligated to purchase more than 110% of the Securities which it agreed to
purchase on such Closing Date pursuant to the terms of Section 2. If the
foregoing maximums are exceeded, the remaining non-defaulting Underwriters, or
those other underwriters satisfactory to the Representatives who so agree, shall
have the right, but shall not be obligated, to purchase, in such proportion as
may be agreed upon among them, all the Securities to be purchased on such
Closing Date. If the remaining Underwriters or other underwriters satisfactory
to the Representatives do not elect to purchase the Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase on such
Closing Date, this Agreement shall terminate without liability on the part of
any non-defaulting Underwriter or the Company and the Trust, except that the
Company and the Trust will continue to be liable for the payment of expenses to
the extent set forth in Section 6 hereof. As used in this Agreement, the term
"Underwriter" includes, for all purposes of this Agreement unless the context
requires otherwise, any party not listed in Schedule 1 hereto who, pursuant to
this Section 9, purchases the Securities which a defaulting Underwriter agreed
but failed to purchase.
30
Nothing contained herein shall relieve a defaulting Underwriter of any
liability it may have to the Company or the Trust for damages caused by its
default. If other underwriters are obligated or agree to purchase the
Securities of a defaulting or withdrawing Underwriter, either the
Representatives, the Company or the Trust may postpone a Closing Date for up to
seven full business days in order to effect any changes that in the opinion of
counsel for the Company or counsel for the Underwriters may be necessary in the
Registration Statement, the Prospectus or in any other document or arrangement.
10. Termination. The obligations of the Underwriters hereunder may be
terminated by the Representatives by notice given to and received by the Company
and the Trust prior to delivery of and payment for the Preferred Securities if,
prior to that time, any of the events described in Sections 7(k), 7(l) or 7(m)
shall have occurred or if the Underwriters shall decline to purchase the
Securities for any reason permitted under this Agreement.
11. Reimbursement of Underwriters' Expenses. If (a) the Company shall
fail to tender the Securities for delivery to the Underwriters for any reason or
(b) the Underwriters shall decline to purchase the Securities as a result of the
failure of any of the conditions set forth in Section 7 hereof (other than the
condition set forth in Section 7(o) hereof), the Company and the Trust shall
reimburse the Underwriters for all out-of-pocket expenses (including fees and
disbursements of counsel) incurred by the Underwriters in connection with this
Agreement and the proposed purchase of the Securities, and upon demand the
Company and the Trust shall pay the full amount thereof to the Representatives.
12. Notices, etc. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or sent by mail, telex
or facsimile transmission to ▇▇▇▇ ▇▇▇▇▇▇▇▇ Incorporated, San Francisco
Office, San Francisco Office, Two Embarcadero Center, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Fixed Income
Capital Markets (Fax: ▇▇▇-▇▇▇-▇▇▇▇);
(b) if to the Company or to the Trust, shall be delivered or sent by
mail, telex or facsimile transmission to Greater Bay Bancorp, ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, Attention: General Counsel (Fax: 650-
▇▇▇-▇▇▇▇);
All notices to an Underwriter pursuant to Section 8(c) shall be
delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its acceptance telex to the
Representatives, which address will be supplied to any other party
hereto by the Representatives upon request. Any such statements,
requests, notices or agreements shall take effect at the time of
receipt thereof. The Company and the Trust shall be entitled to act
and rely upon any request, consent, notice or agreement given or made
on behalf of the Underwriters by ▇▇▇▇ ▇▇▇▇▇▇▇▇ Incorporated.
13. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the Underwriters, the Company and
the Trust and their respective successors. This Agreement and the terms and
provisions hereof are for the sole benefit of only
31
those persons, except that (a) the representations, warranties, indemnities and
agreements of the Company and the Trust contained in this Agreement shall also
be deemed to be for the benefit of the person or persons, if any, who control
any Underwriter within the meaning of Section 15 of the Securities Act and (b)
the indemnity agreement of the Underwriters contained in Section 8(b) of this
Agreement shall be deemed to be for the benefit of directors of the Company,
officers of the Company who have signed the Registration Statement and any
person controlling the Company within the meaning of Section 15 of the
Securities Act. Nothing in this Agreement is intended or shall be construed to
give any person, other than the persons referred to in this Section 13, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision contained herein.
14. Survival. The respective indemnities, representations, warranties and
agreements of the Company and the Trust and the Underwriters contained in this
Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall survive the delivery of and payment for the Securities and
shall remain in full force and effect, regardless of any investigation made by
or on behalf of any of them or any person controlling any of them.
15. Definition of the Terms "Business Day" and "Subsidiary". For purposes
of this Agreement, (a) "business day" means each Monday, Tuesday, Wednesday,
Thursday or Friday which is not a day on which banking institutions in New York,
California or Delaware are generally authorized or obligated by law or executive
order to close and (b) "subsidiary" has the meaning set forth in Rule 405 of the
Rules and Regulations.
16. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of New York.
17. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
18. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
[The remainder of page intentionally left blank; the signature page follows.]
32
If the foregoing correctly sets forth the agreement among the Company
and the Trust and the Underwriters, please indicate your acceptance in the space
provided for that purpose below.
Very truly yours,
GREATER BAY BANCORP
By: __________________________
Name:
Title:
GBB CAPITAL V
By: Greater Bay Bancorp, as Sponsor
By: __________________________
Name:
Title:
Accepted:
▇▇▇▇ ▇▇▇▇▇▇▇▇ INCORPORATED
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, INCORPORATED
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & COMPANY, INCORPORATED
For themselves and as Representatives
of the several Underwriters named
in Schedule 1 hereto
By ▇▇▇▇ ▇▇▇▇▇▇▇▇ INCORPORATED
By: __________________________
Authorized Representative
SCHEDULE 1
GBB CAPITAL V
$ ___% Trust
Preferred Securities due 20___ Liquidation Amount
--------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇ Incorporated............................... $
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Incorporated.....................
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated.................
====================
TOTAL................................................. $