WASHINGTON MUTUAL, INC.
(a Washington corporation)
2,260,000 Shares of Common Stock
(No Par Value Per Share)
INTERNATIONAL PURCHASE AGREEMENT
January 22, 1997
▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc.
as Lead Managers of the several International Managers
c/o Merrill ▇▇▇▇▇ International
Ropemaker Place
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
Ladies and Gentlemen:
Washington Mutual, Inc., a Washington corporation (the "Company"), and the
persons listed in Schedule B hereto (the "Selling Stockholders"), confirm their
respective agreements with ▇▇▇▇▇▇▇ ▇▇▇▇▇ International ("▇▇▇▇▇▇▇ ▇▇▇▇▇") and
each of the other International Managers named in Schedule A hereto
(collectively, the "International Managers," which term shall also include any
underwriter substituted as hereinafter provided in Section 10 hereof), for whom
▇▇▇▇▇▇▇ ▇▇▇▇▇ and Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. ("▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇")
are acting as representatives (in such capacity, the "Lead Managers"), with
respect to the sale by the Selling Stockholders, acting severally and not
jointly, and the purchase by the International Managers, acting severally and
not jointly, of 2,260,000 shares (the "International Securities") of Common
Stock, no par value per share (the "Common Stock"), of the Company.
It is understood that the Company and the Selling Stockholders are
concurrently entering into an agreement dated the date hereof (the "U.S.
Purchase Agreement") providing for the offering by the Selling Stockholders of
an aggregate of 12,329,649 shares of Common Stock (the "U.S. Securities")
through arrangements with certain underwriters in the United States and Canada
(the "U.S. Underwriters"), for which ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce,
▇▇▇▇▇▇ &
▇▇▇▇▇ Incorporated and ▇▇▇▇▇▇▇▇ Billings are acting as representatives (the
"U.S. Representatives"). It is understood that the Selling Stockholders are not
obligated to sell, and the International Managers are not obligated to purchase,
any Interna- tional Securities unless all of the U.S. Securities are
contemporaneously purchased by the U.S. Underwriters.
The International Managers and the U.S. Underwriters are hereinafter
collectively called the "Underwriters," and the International Securities and the
U.S. Securities are hereinafter collectively called the "Securities."
The Underwriters will concurrently enter into an Intersyndicate Agreement
of even date herewith (the "Intersyndicate Agreement") providing for the
coordination of certain transactions among the Underwriters under the direction
of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated (in
such capacity, the "Global Coordinator").
The Company and the Selling Stockholders understand that the International
Managers propose to make a public offering of the International Securities as
soon as the Lead Managers deem advisable after this Agreement has been executed
and delivered.
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No.
333-17291) covering the registration of the Securities under the Securities Act
of 1933, as amended (the "1933 Act"), including the related preliminary
prospectus or prospectuses. Promptly after execution and delivery of this
Agreement, the Company will either (i) prepare and file a prospectus in
accordance with the provisions of Rule 430A ("Rule 430A") of the rules and
regulations of the Commission under the 1933 Act (the "1933 Act Regulations")
and paragraph (b) of Rule 424 ("Rule 424(b)") of the 1933 Act Regulations or
(ii) if the Company has elected to rely upon Rule 434 ("Rule 434") of the 1933
Act Regulations, prepare and file a term sheet (a "Term Sheet") in accordance
with the provisions of Rule 434 and Rule 424(b). Two forms of prospectus are to
be used in connection with the offering and sale of the Securities: one relating
to the International Securities (the "Form of International Prospectus") and one
relating to the U.S. Securities (the "Form of U.S. Prospectus"). The Form of
International Prospectus is identical to the Form of U.S. Prospectus, except for
the front cover and back cover page, page 2A included in the Form of
International Prospectus only and the information under the caption
"Underwriting." The information included in any such prospectus or in any such
Term Sheet, as the case may be, that was omitted from such registration
statement at the time it became
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effective but that is deemed to be part of such registration statement at the
time it became effective (a) pursuant to paragraph (b) of Rule 430A is referred
to as "Rule 430A Information" or (b) pursuant to paragraph (d) of Rule 434 is
referred to as "Rule 434 Information." Each Form of International Prospectus and
Form of U.S. Prospectus used before such registration statement became
effective, and any prospectus that omitted, as applicable, the Rule 430A
Information or the Rule 434 Information, that was used after such effectiveness
and prior to the execution and delivery of this Agreement, is herein called a
"preliminary prospectus." Such registration statement, including the exhibits
thereto, schedules thereto, if any, and the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the 1933 Act, at the time it
became effective and including the Rule 430A Information and the Rule 434
Information, as applicable, is herein called the "Registration Statement." Any
registration statement filed pursuant to Rule 462(b) of the 1933 Act Regulations
is herein referred to as the "Rule 462(b) Registration Statement," and after
such filing the term "Registration Statement" shall include the Rule 462(b)
Registration Statement. The final Form of International Prospectus and the final
Form of U.S. Prospectus, including the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the 1933 Act, in the forms first
furnished to the Underwriters for use in connection with the offering of the
Securities are herein called the "International Prospectus" and the "U.S.
Prospectus," respectively, and collectively, the "Prospectuses." If Rule 434 is
relied on, the terms "International Prospectus" and "U.S. Prospectus" shall
refer to the preliminary International Prospectus dated January 2, 1997 and
preliminary U.S. Prospectus dated January 2, 1997, respectively, each together
with the applicable Term Sheet and all references in this Agreement to the date
of such Prospectuses shall mean the date of the applicable Term Sheet. For
purposes of this Agreement, all references to the Registration Statement, any
preliminary prospectus, the International Prospectus, the U.S. Prospectus or any
Term Sheet or any amendment or supplement to any of the foregoing shall be
deemed to include the copy filed with the Commission pursuant to its Electronic
Data Gathering, Analysis and Retrieval system ("▇▇▇▇▇").
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus (including the Form of
International Prospectus and Form of U.S. Prospectus) or the Prospectuses (or
other references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any preliminary prospectus
(including the Form of International Prospectus and Form of U.S. Prospectus) or
the Prospectuses, as the
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case may be; and all references in this Agreement to amendments or supplements
to the Registration Statement, any preliminary prospectus or the Prospectuses
shall be deemed to mean and include the filing of any document under the
Securities Exchange Act of 1934 (the "1934 Act") which is incorporated by
reference in the Registration Statement, such preliminary prospectus or the
Prospectuses, as the case may be.
Section 1. Representations and Warranties.
(a) Representations and Warranties by the Company.
The Company represents and warrants to each International Manager and
Selling Stockholder as of the date hereof and as of the Closing Time referred to
in Section 2(b) hereof, as follows:
(i) Compliance with Registration Requirements.
The Company meets the requirements for use of Form S-3 under the 1933 Act.
Each of the Registration Statement and any Rule 462(b) Registration Statement
has become effective under the 1933 Act; no stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b) Registration
Statement has been issued under the 1933 Act and no proceedings for that purpose
have been instituted or are pending or, to the knowledge of the Company, are
contemplated by the Commission and any request on the part of the Commission for
additional information has been complied with.
At the respective times the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendments thereto became
effective and at the Closing Time, the Registration Statement, the Rule 462(b)
Registration Statement and any amendments and supplements thereto complied and
will comply in all material respects with the requirements of the 1933 Act and
the 1933 Act Regulations and did not and will not contain an untrue statement of
a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading. Neither of the
Prospectuses nor any amendments or supplements thereto, at the time any such
Prospectus or any such amendment or supplement was filed and at the Closing
Time, included or will include an untrue statement of a material fact or omitted
or will omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. If Rule 434 is used, the Company will comply with the requirements
of Rule 434. The representations and warran- ties in this subsection shall not
apply to statements in or omissions
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from the Registration Statement, any post-effective amendment to the
Registration Statement, the International Prospectus or any amendment or
supplement to the International Prospectus made in reliance upon and in
conformity with information furnished to the Company in writing by any
International Manager through the Lead Managers or by any Selling Stockholder
expressly for use in the Registration Statement, the International Prospectus or
any such amendment or supplement.
Each preliminary prospectus and the prospectuses filed as part of the
Registration Statement as originally filed or as part of any amendment thereto,
or filed pursuant to Rule 424 under the 1933 Act, complied when so filed in all
material respects with the 1933 Act and the 1933 Act Regulations and each
preliminary prospectus and the Prospectuses delivered to the Underwriters for
use in connection with this offering was identical to the electronically
transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except
to the extent permitted by Regulation S-T.
The Company has not distributed, and prior to the Closing Time will not
distribute, any offering material in connection with the offering and sale of
the Securities other than materials permitted by the Act.
(ii) Incorporated Documents.
The documents incorporated or deemed to be incorporated by reference in the
Registration Statement and the Prospectuses, at the time they were or hereafter
are filed with the Commission, complied and will comply in all material respects
with the requirements of the 1934 Act and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations"), and, when read together with
the other information in the Prospectuses, at the time the Registration
Statement became effective, at the time the Prospectuses were issued and at the
Closing Time, did not and will not contain an untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which such statements were made,
not misleading.
(iii) Independent Accountants.
The accountants who examined and certified the financial statements and
supporting schedules included in the Registration Statement are independent
public accountants as required by the 1933 Act and the 1933 Act Regulations.
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(iv) Financial Statements.
The consolidated statements of financial condition (supplemental and
otherwise), consolidated statements of income (supplemental and otherwise),
consolidated statements of changes in stockholders' equity (supplemental and
otherwise) and consolidated statements of cash flows (supplemental and
otherwise) included or incorporated in the Registration Statement and the
Prospectuses, together with the related schedules and notes (the "Financial
Statements"), present fairly in all material respects the consolidated (or
supplemental consolidated, as applicable) financial position, results of
operations, changes in stockholders' equity and cash flows of the Company and
its consolidated subsidiaries at the dates indicated and, for the periods
specified, as the case may be, subject in the case of unaudited balance sheets
and statements to normal year-end audit adjustments; said Financial Statements
have been prepared in conformity with generally accepted accounting principles
("GAAP") applied on a consistent basis throughout the periods involved, except
as may be noted therein, subject in the case of unaudited balance sheets and
statements to normal year-end audit adjustments and the limited scope of the
notes thereto, and comply in all material respects with the requirements of the
1933 Act and the 1933 Act Regulations.
(v) No Material Adverse Change in Business.
Since the respective dates as of which information is given in the
Registration Statement and the Prospectuses, except as otherwise stated therein,
(A) there has been no material adverse change, or development involving a
prospective material adverse change, in the financial condition, properties,
assets, results of operation, stockholders' equity or prospects of the Company
and its subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business (a "Material Adverse Effect"), (B) there have been
no transactions entered into by the Company or any of its subsidiaries, other
than those in the ordinary course of business, which are material with respect
to the Company and its subsidiaries considered as one enterprise, and (C) there
has been no dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock.
(vi) Good Standing of the Company.
The Company has been duly organized and is validly existing as a
corporation under the laws of the State of Washington and has corporate power
and authority to own, lease and operate its properties and to conduct its
business in all material respects as described in the Prospectuses and to enter
into and perform its obligations under, and execute and deliver, this Agreement
and the U.S. Purchase Agreement; and the Company is duly qualified as a foreign
corporation to transact business and is in good standing in each other
jurisdiction in which such qualification is required, whether by reason of the
ownership or leasing
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of property or the conduct of business, except where the failure so to qualify
or to be in good standing would not result in a Material Adverse Effect.
(vii) Good Standing of Subsidiaries.
Washington Mutual Bank fsb ("WMBfsb") has been duly organized and is
validly existing as a federally chartered stock savings bank and is a
stockholder and customer in good standing of the Federal Home Loan Bank of
Seattle ("FHLBS"); WMBfsb's deposit accounts are insured up to applicable limits
by the Federal Deposit Insurance Corporation ("FDIC"); and no proceeding for the
termination or revocation of such insurance is pending or, to the knowledge of
the Company or WMBfsb, threatened. Washington Mutual Bank ("WMB") has been duly
organized and is validly existing and in good standing under the laws of the
State of Washington and is a stockholder and customer in good standing of the
FHLBS; WMB's deposit accounts are insured up to applicable limits by the FDIC;
and no proceeding for the termination or revocation of such insurance is pending
or, to the knowledge of the Company or WMB, threatened. American Savings Bank,
F.A. ("ASB") has been duly organized and is validly existing as a federally
chartered stock savings association and is a stockholder and customer in good
standing of the Federal Home Loan Bank of San Francisco; ASB's deposit accounts
are insured up to applicable limits by the FDIC; and no proceeding for the
termination or revocation of such insurance is pending or, to the knowledge of
the Company or ASB, threatened. WMBfsb, WMB and ASB (collectively, the
"Subsidiaries") are the only "significant subsidiaries" (as such term is defined
in Rule 1-02 of Regulation S-X) of the Company (and all of the subsidiaries of
the Company other than the Subsidiaries, if considered in the aggregate as one
subsidiary, would not constitute a significant subsidiary) and each of the
Company's subsidiaries has the corporate power and authority to own, lease and
operate its properties and to conduct its business in all material respects as
described in the Prospectuses and is duly qualified to transact business and is
in good standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the conduct of
business, except where the failure so to qualify or to be in good standing would
not result in a Material Adverse Effect; except as otherwise disclosed in the
Registration Statement, all of the issued and outstanding capital stock of each
of WMBfsb, WMB and ASB has been duly authorized and validly issued, is fully
paid and nonassessable and is owned by the Company, directly or through
subsidiaries, free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity; none of the outstanding shares of capital stock of
any of WMBfsb, WMB or ASB was issued in violation of preemptive or similar
rights of any securityholder of such subsidiary.
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(viii) Capitalization.
The Company has an authorized capitalization as set forth in the
Prospectuses. All of the outstanding capital stock of the Company has been duly
authorized and validly issued and is fully paid and nonassessable; the
authorized capital stock of the Company conforms in all material respects to all
statements relating thereto in the Prospectuses. The Securities have been duly
authorized, validly issued and are fully paid and nonassessable; none of the
outstanding shares of Common Stock was issued in violation of the preemptive or
other similar rights of any securityholder of the Company.
(ix) Authorization of Agreement.
This Agreement and the U.S. Purchase Agreement have been duly authorized,
executed and delivered by the Company.
(x) Authorization and Description of Securities.
The Common Stock conforms to the description thereof under the heading
"Description of Capital Stock" contained in the Prospectuses and such
description, insofar as it purports to be a summary of the instruments defining
the rights of holders of the Common Stock, is accurate, complete and fair; no
holder of the Securities is subject to personal liability by reason of being
such a holder.
(xi) Absence of Defaults and Conflicts.
Neither the Company nor any of its subsidiaries is in violation of its
charter or by-laws or in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note, lease or
other agreement or instrument to which the Company or any of its subsidiaries is
a party or by which it or any of them may be bound, or to which any of the
property or assets of the Company or any subsidiary is subject (collectively,
"Agreements and Instruments") except for such defaults that would not result in
a Material Adverse Effect; and the execution, delivery and performance of this
Agreement and the U.S. Purchase Agreement and the consummation of the
transactions contemplated herein, therein and in the Registration Statement
(including the sale of the Securities) and compliance by the Company with its
obligations hereunder and under the U.S. Purchase Agreement have been duly
authorized by all necessary corporate action and do not and will not, whether
with or without the giving of notice or passage of time or both, conflict with
or constitute a breach of, default under or Repayment Event (as defined below)
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any subsidiary
pursuant to, the Agreements and Instruments (except for such conflicts, breaches
or defaults or liens, charges or encumbrances that would not result in a
Material Adverse Effect), nor will such action result in any violation of the
provisions of the charter or by-laws of the Company or any Subsidiary or any
8
applicable law, statute, rule, regulation, judgment, order, writ or decree of
any government, governmental instrumentality or court, domestic or foreign,
having jurisdiction over the Company or any subsidiary or any of their assets,
properties or operations. As used herein, a "Repayment Event" means any event or
condition which gives the holder of any note, debenture or other evidence of
indebtedness (or any person acting on such holder's behalf) the right to require
the repurchase, redemption or repayment of all or a portion of such indebtedness
by the Company or any subsidiary.
(xii) Absence of Labor Dispute.
No labor dispute with the employees of the Company or any subsidiary exists
or, to the knowledge of the Company, is imminent, and the Company is not aware
of any existing or imminent labor disturbance by the employees of any of its or
any subsidiary's principal suppliers, manufacturers, customers or contractors,
which, in either case, may reasonably be expected to result in a Material
Adverse Effect.
(xiii) Absence of Proceedings.
There is no action, suit, proceeding, inquiry or investigation before or
brought by any court or governmental agency or body, domestic or foreign, now
pending, or, to the knowledge of the Company, threatened, against or affecting
the Company or any subsidiary, which, individually or in the aggregate for all
such actions, suits, proceedings, inquiries or investigations, is required to be
disclosed in the Registration Statement (other than as disclosed therein), or
which might reasonably be expected to result in a Material Adverse Effect (other
than as disclosed in the Registration Statement), or which might reasonably be
expected to materially and adversely affect the properties or assets of the
Company or any Subsidiary (other than as disclosed in the Registration
Statement) or the consummation of the transactions contemplated in this
Agreement and the U.S. Purchase Agreement or the performance by the Company of
its obligations hereunder or thereunder; the aggregate of all pending legal or
governmental proceedings to which the Company or any subsidiary is a party or of
which any of their respective property or assets is the subject which are not
described in the Registration Statement, including ordinary routine litigation
incidental to their business, could not reasonably be expected to result in a
Material Adverse Effect.
(xiv) Exhibits.
There are no contracts or documents which are required to be described in
the Registration Statement, the Prospectuses or the documents incorporated by
reference therein, or to be filed as exhibits thereto, which have not been so
described or filed as required.
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(xv) Absence of Further Requirements.
No filing with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any court or governmental authority or
agency is necessary or required for the performance by the Company of its
obligations hereunder, in connection with the offering, issuance or sale of the
Securities hereunder or the consummation of the transactions contemplated by
this Agreement and the U.S. Purchase Agreement, except such as have been already
obtained or as may be required under the 1933 Act or the 1933 Act Regulations or
state securities laws.
(xvi) Possession of Licenses and Permits.
The Company and its Subsidiaries possess such permits, licenses, approvals,
consents and other authorizations (collectively, "Governmental Licenses") issued
by the appropriate federal, state, local or foreign regulatory agencies or
bodies necessary to conduct the business now operated by them, except where the
failure so to comply would not, singly or in the aggregate, have a Material
Adverse Effect; the Company and its subsidiaries are in compliance with the
terms and conditions of all Governmental Licenses, except where the failure so
to comply would not, singly or in the aggregate, have a Material Adverse Effect;
all of the Governmental Licenses are valid and in full force and effect, except
when the invalidity of such Governmental Licenses or the failure of such
Governmental Licenses to be in full force and effect would not have a Material
Adverse Effect; and neither the Company nor any of its subsidiaries has received
any notice of proceedings relating to the revocation or modification of any such
Governmental Licenses which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would result in a Material Adverse
Effect.
(xvii) Title to Property.
The Company and its Subsidiaries have good and marketable title to all real
property reflected in the most recent balance sheet included in the Prospectuses
as owned by the Company and its Subsidiaries and good title to all other
properties reflected in the most recent balance sheet included in the
Prospectuses as owned by them, in each case, free and clear of all mortgages,
pledges, liens, security interests, claims, restrictions or encumbrances of any
kind except such as (a) are described in the Prospectuses or (b) do not, singly
or in the aggregate, materially interfere with the use made and proposed to be
made of such property by the Company or any of its subsidiaries or, with respect
to any such real property, render title unmarketable as to a material part
thereof; and all of the leases and subleases material to the business of the
Company and its subsidiaries, considered as one enterprise, and under which the
Company or any of its subsidiaries holds properties described in the
Prospectuses, are in full force and effect, and neither the Company nor any
subsidiary has any notice of any material claim of any sort that has been
asserted by anyone adverse to the rights of the Company or any subsidiary
10
under any of the leases or subleases mentioned above, or affecting or
questioning the rights of the Company or such subsidiary to the continued
possession of the leased or subleased premises under any such lease or sublease.
(xviii) Possession of Intellectual Property.
The Company and its Subsidiaries own or possess, or can acquire on
reasonable terms, adequate patents, patent rights, licenses, inventions,
copyrights, know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or procedures),
trademarks, service marks, trade names or other intellectual property
(collectively, "Intellectual Property") necessary to carry on the business now
operated by them, and neither the Company nor any of its subsidiaries has
received any notice or is otherwise aware of any infringement or conflict (if
the subject of any unfavorable decision, ruling or finding) or invalidity or
inadequacy, that singly or in the aggregate, would result in a Material Adverse
Effect.
(xix) Environmental Laws.
Except as described in the Registration Statement or except as would not,
singly or in the aggregate, result in a Material Adverse Effect: (A) neither the
Company nor any of its subsidiaries is in violation of any federal, state, local
or foreign statute, law, rule, regulation, ordinance, code, policy or rule of
common law or any judicial or administrative interpretation thereof, including
any judicial or administrative order, consent, decree or judgment, relating to
pollution or protection of human health, the environment (including, without
limitation, ambient air, surface water, groundwater, land surface or subsurface
strata) or wildlife, including, without limitation, laws and regulations
relating to the release or threatened release of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances, petroleum or
petroleum products (collectively, "Hazardous Materials") or to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of Hazardous Materials (collectively, "Environmental Laws"), (B) the
Company and its subsidiaries have all permits, authorizations and approvals
required under any applicable Environmental Laws and are each in compliance with
their requirements, (C) there are no pending or threatened administrative,
regulatory or judicial actions, suits, demands, demand letters, claims, liens,
notices of noncompliance or violation, investigation or proceedings relating to
any Environmental Law against the Company or any of its subsidiaries and (D)
there are no events or circumstances that might reasonably be expected to form
the basis of an order for clean-up or redemption, or an action, suit or
proceeding by any private party or governmental body or agency, against or
affecting the Company or any of its subsidiaries relating to Hazardous Materials
or any Environmental Laws.
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(xx) Not an Investment Company.
The Company is not an "investment company" or a company "controlled by" an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
(xxi) Listing.
The Company has effected the inclusion of the Securities in the Nasdaq
National Market and has filed with the Nasdaq National Market all documents and
notices required by the Nasdaq National Market of companies that have securities
that are traded in the over-the-counter market and quotations for which are
reported by the Nasdaq National Market.
(xxii) Tax Matters.
The Company and each of its subsidiaries have filed all tax returns
required to be filed, which returns are complete and correct, and neither the
Company nor any subsidiary is in default in the payment of any taxes which were
payable pursuant to said returns or any assessments with respect thereto, other
than those taxes that are being contested in good faith and by appropriate
proceedings and for which adequate reserves have been established in accordance
with GAAP. The charges, accruals and reserves on the books of the Company and
its subsidiaries in respect of any income and corporate franchise tax liability
for any years not finally determined are adequate to meet the assessments or
re-assessments for additional income or corporate franchise tax for any years
not finally determined, except to the extent any inadequacy would not have a
Material Adverse Effect.
(b) Representations and Warranties by the Selling Stockholders other than
the FDIC Selling Stockholder.
Each Selling Stockholder, other than the FDIC in its capacity as manager of
the FSLIC Resolution Fund (the "FDIC Selling Stockholder"), severally represents
and warrants to each International Manager and the Company as of the date hereof
and as of the Closing Time as follows:
(i) Good and Marketable Title.
Such Selling Stockholder has good and valid title to the Securities being
sold pursuant to this Agreement, free and clear of all liens, encumbrances,
security interests and claims whatsoever; and upon sale and delivery of, and
payment for, such Securities, as provided herein, at the Closing Time, such
Selling Stockholder will convey to the International Managers good and valid
title to such Securities, free and clear of all liens, encumbrances, security
interests and claims whatsoever.
(ii) Authorization of Agreements.
Each of this Agreement, the U.S. Purchase Agreement and the Power of
Attorney and Custody Agreement has been duly authorized by such Selling
Stockholder.
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(iii) Absence of Violations.
None of the execution and delivery of this Agreement, the U.S. Purchase
Agreement and the Power of Attorney and Custody Agreement by or on behalf of
such Selling Stockholder, the sale of the Securities by such Selling
Stockholder, the consummation of any of the other transactions contemplated
herein or in the U.S. Purchase Agreement, and the fulfillment of the terms
hereof or thereof, has violated or will violate any provision of law to which
such Selling Stockholder is subject.
(iv) Accuracy of Information Regarding Selling Stockholders.
Such Selling Stockholder has reviewed the Registration Statement and the
Prospectuses, and such parts of the Registration Statement and the Prospectuses
comprising information under the caption "The Selling Stockholders" which
specifically relate to such Selling Stockholder will not, at the date the
Registration Statement becomes effective, contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading and at the date of the
Prospectuses and at the Closing Time will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they are made, not misleading.
(v) Absence of Proceedings.
No actions, suits or proceedings before or by any court or governmental
agency, body or authority, or arbitrator are pending or, to the best of such
Selling Stockholder's knowledge, threatened or contemplated, seeking to prevent
the sale of the Securities or the consummation of this Agreement or the U.S.
Purchase Agreement.
(vi) Absence of Manipulation.
Such Selling Stockholder has not taken and will not take, directly or
indirectly, any action designed to or which has constituted or which might
reasonably be expected to cause or result under the 1934 Act or otherwise, in
stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Securities.
(vii) Due Execution of Power of Attorney and Custody Agreement.
Such Selling Stockholder has duly executed and delivered, in the form
heretofore furnished to the Lead Managers, the Power of Attorney and Custody
Agreement with ▇▇▇▇ ▇. ▇▇▇▇▇▇ of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ as attorney-in-fact (the
"Attorney-in-Fact"); the Attorney-in-Fact is authorized to deliver or cause to
be delivered the Securities to be sold by such Selling Stockholder hereunder and
under the U.S. Purchase Agreement- and to accept or direct payment therefor, to
execute and deliver this Agreement and the U.S. Purchase Agreement and the
certificate referred to in Section 5(f) on behalf
13
of such Selling Stockholder), to sell, assign and transfer to the International
Managers the International Securities to be sold by such Selling Stockholder
hereunder, to determine the purchase price to be paid by the International
Managers to such Selling Stockholder (upon written instructions from such
Selling Stockholder) as provided in Section 2(a) hereof, and otherwise to act on
behalf of such Selling Stockholder in connection with this Agreement and the
U.S. Purchase Agreement. The representations and warranties of such Selling
Stockholder in the Power of Attorney and Custody Agreement are, and at the
Closing Time will be, true and correct. The parties hereto agree that the
Attorney-in-Fact shall have no liability as a result of any inaccuracy or breach
of a representation or warranty by any Selling Stockholder.
(viii) Certificates Suitable for Transfer.
Certificates for all of the Securities to be sold by such Selling
Stockholder pursuant to this Agreement, in suitable form for transfer by
delivery or accompanied by duly executed instruments of transfer or assignment
in blank with signatures guaranteed, have been placed in custody with the
Attorney- in-Fact.
(ix) No Association with NASD.
Except as disclosed by such Selling Stockholder or on its behalf in writing
to the Lead Managers, neither such Selling Stockholder nor any of his, her or
its affiliates directly, or indirectly through one or more intermediaries,
controls, or is controlled by, or is under common control with, or has any other
association with (within the meaning of Article I, (q) of the Bylaws of the
NASD), any member firm of the NASD.
(c) Representations and Warranties by the FDIC Selling Stockholder.
The FDIC Selling Stockholder represents and warrants (on behalf of itself
and not as to any other Selling Stockholder or person) to each International
Manager and the Company as of the date hereof and as of the Closing Time as
follows:
(i) Good and Marketable Title.
The FDIC Selling Stockholder has good and valid title to the Securities
being sold pursuant to this Agreement, free and clear of all liens,
encumbrances, security interests and claims whatsoever; and upon sale and
delivery of, and payment for, such Securities, as provided herein, at the
Closing Time, the FDIC Selling Stockholder will convey to the International
Managers good and valid title to such Securities, free and clear of all liens,
encumbrances, security interests and claims whatsoever.
14
(ii) Authorization of Agreements.
Each of this Agreement and the U.S. Purchase Agreement has been duly
authorized, executed and delivered on behalf of the FDIC Selling Stockholder.
(iii) Absence of Violations.
None of the execution and delivery of this Agreement and the U.S. Purchase
Agreement by the FDIC Selling Stockholder, the sale of the Securities by the
FDIC Selling Stockholder, the consummation of any of the other transactions
contemplated herein or in the U.S. Purchase Agreement, and the fulfillment of
the terms hereof or thereof, has violated or will violate any provision of
Federal law as administered by the FDIC or to which the FDIC Selling Stockholder
is subject.
(iv) Accuracy of Information Regarding the FDIC Selling Stockholder.
The FDIC Selling Stockholder has reviewed the Registration Statement and
the Prospectuses, and such parts of the Registration Statement and the
Prospectuses comprising information under the caption "The Selling Stockholders"
which specifically relate to the FDIC Selling Stockholder, will not, at the date
the Registration Statement becomes effective, contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading and at the date of the
Prospectuses and at the Closing Time will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they are made, not misleading.
(v) Authority to Execute Agreements.
The FDIC Selling Stockholder has statutory authority to execute this
Agreement and the U.S. Purchase Agreement pursuant to 12 U.S.C. ss. 1821a, to
sell, assign, transfer and deliver the Securities being sold by the FDIC Selling
Stockholder hereunder and thereunder in the manner provided herein and therein,
to perform its obligations hereunder and thereunder and to take all other
actions taken by it in connection herewith and therewith.
(vi) Absence of Proceedings.
No actions, suits or proceedings before or by any court or governmental
agency, body or authority, or arbitrator are pending or, to the best of the FDIC
Selling Stockholder's knowledge, threatened or contemplated, seeking to prevent
the sale of the Securities or the consummation of this Agreement or the U.S.
Purchase Agreement.
(vii) Absence of Manipulation.
The FDIC Selling Stockholder has not taken and will not take, directly or
indirectly, any action designed to or which has constituted or which might
reasonably be expected to cause or result under the 1934 Act or otherwise, in
15
stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Securities.
(viii) No Association with NASD.
Except as disclosed by the FDIC Selling Stockholder in writing to the Lead
Managers, neither the FDIC Selling Stockholder nor any of his, her or its
affiliates directly, or indirectly through one or more intermediaries, controls,
or is controlled by, or is under common control with, or has any other
association with (within the meaning of Article I, (q) of the Bylaws of the
NASD), any member firm of the NASD.
(d) Officer's Certificates.
Any certificate signed by any officer of the Company or any of its
subsidiaries delivered to the Global Coordinator, the Lead Managers or to
counsel for the International Managers shall be deemed a representation and
warranty by the Company to each International Manager and to each Selling
Stockholder as to the matters covered thereby, without personal liability for
the officer signing such certificate; and any certificate signed by or on behalf
of any Selling Stockholder as such and delivered to the Global Coordinator, the
Lead Managers or to counsel for the International Managers pursuant to the terms
of this Agreement shall be deemed a representation and warranty by such Selling
Stockholder to the Company and to the International Managers as to the matters
covered thereby without personal liability therefor except where such
certificate is executed by or on behalf of such Selling Stockholder in such
Selling Stockholder's individual capacity, provided, however, that the
Attorney-in-Fact shall have no liability as to the matters covered by any such
certificate.
Section 2. Sale and Delivery to the International Managers; Closing.
(a) Securities.
On the basis of the representations and warranties herein contained and
subject to the terms and conditions herein set forth, each Selling Stockholder,
severally and not jointly, agrees to sell to each International Manager, and
each International Manager, severally and not jointly, agrees to purchase from
each Selling Stockholder, at the price per share set forth in Schedule C, that
proportion of the number of International Securities set forth in Schedule B
opposite the name of such Selling Stockholder, which the number of International
Securities set forth in Schedule A opposite the name of such International
Manager, plus any additional number of Securities which such International
Manager may become obligated to purchase pursuant to the provisions of Section
10 hereof, bears to the total number of International Securities subject, in
each case, to such adjustments among the International Managers as the Lead
Managers in their sole discretion shall make to eliminate any sales or purchases
of fractional securities.
16
(b) Payment.
Payment of the purchase price for, and delivery of certificates for, the
Securities shall be made at the offices of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇
▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other place as shall be agreed
upon by the Global Coordinator, the Company and the Selling Stockholders, at
10:00 a.m. Eastern time on the third (fourth, if the pricing occurs after 4:30
p.m. (Eastern time) on any given day) business day after the date hereof (unless
postponed in accordance with the provisions of Section 10), or such other time
not later than ten business days after such date as shall be agreed upon by the
Global Coordinator, the Company and the Selling Stockholders (such time and date
of payment and delivery being herein called the "Closing Time").
At the Closing Time, payment shall be made by the Underwriters to the
Selling Stockholders by wire transfer of immediately available funds to bank
accounts designated by the Attorney-in-Fact pursuant to each Selling
Stockholder's Power of Attorney and Custody Agreement (or, in the case of the
FDIC Selling Stockholder, a bank account designated by the FDIC Selling
Stockholder) against delivery to the Lead Managers for the respective accounts
of the International Managers of certificates for the International Securities
to be purchased by them. It is understood that each International Manager has
authorized the Lead Managers, for its account, to accept delivery of, receipt
for, and make payment of the purchase price for, the International Securities
that it has agreed to purchase. ▇▇▇▇▇▇▇ ▇▇▇▇▇, individually and not as
representatives of the International Managers, may (but shall not be obligated
to) make payment of the purchase price for the International Securities to be
purchased by any International Manager whose funds have not been received by the
Closing Time but such payment shall not relieve such International Manager from
its obligations hereunder.
(c) Denominations; Registration.
Certificates for the International Securities shall be in such
denominations and registered in such names as the Lead Managers may request in
writing at least one full business day before the Closing Time. The certificates
for the International Securities will be made available for examination and
packaging by the Lead Managers in The City of New York not later than 10:00 a.m.
(Eastern time) on the business day prior to the Closing Time.
Section 3. Covenants of the Company.
The Company covenants with each International Manager and each Selling
Stockholder as follows:
(a) Compliance with Securities Regulations and Commission Requests.
The Company, subject to Section 3(b), will comply with the requirements of
Rule 430A or Rule 434, as applicable, and will notify the Global Coordinator and
each Selling
17
Stockholder promptly, and confirm the notice in writing, (i) of the
effectiveness of the Registration Statement and when any post-effective
amendment to the Registration Statement shall become effective, or any
supplement to the Prospectuses or any amended Prospectuses shall have been
filed, (ii) of the receipt of any comments from the Commission, (iii) of any
request by the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectuses or for additional information, and
(iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the suspension of the
qualification of the Securities for offering or sale in any jurisdiction, or of
the initiation or threatening of any proceedings for any of such purposes. The
Company will promptly effect the filings necessary pursuant to Rule 424(b) and
will take such steps as it deems necessary to ascertain promptly whether the
form of prospectus transmitted for filing under Rule 424(b) was received for
filing by the Commission and, in the event that it was not, it will promptly
file such prospectus. The Company will make every reasonable effort to prevent
the issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b) Filing of Amendments.
The Company will give the Global Coordinator and the Selling Stockholders
notice of its intention to file or prepare any amendment to the Registration
Statement (including any filing under Rule 462(b)), any Term Sheet or any
amendment, supplement or revision to either the prospectus included in the
Registration Statement at the time it became effective or to the Prospectuses,
whether pursuant to the 1933 Act, the 1934 Act or otherwise, will furnish the
Global Coordinator and the Selling Stockholders with copies of any such
documents a reasonable amount of time prior to such proposed filing or use, as
the case may be, and will not file or use any such document to which the Selling
Stockholders, the Global Coordinator or counsel for the International Managers
shall object.
(c) Delivery of Registration Statements.
The Company has furnished or will deliver to the Lead Managers and counsel
for the International Managers, and to the Selling Stockholders and counsel for
the Selling Stockholders, without charge, signed copies of the Registration
Statement as originally filed and of each amendment thereto (including exhibits
filed therewith or incorporated by reference therein and documents incorporated
or deemed to be incorporated by reference therein) and signed copies of all
consents and certificates of experts, and will also deliver to the Lead
Managers, without charge, a conformed copy of the Registration Statement as
originally filed and of each amendment thereto (without exhibits) for each of
the International Managers. The copies of the Registration Statement and each
18
amendment thereto furnished to the International Managers and the Selling
Stockholders will be identical to the electronically transmitted copies thereof
filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by
Regulation S-T.
(d) Delivery of Prospectuses.
The Company has delivered to each International Manager and each Selling
Stockholder, without charge, as many copies of each preliminary prospectus as
such International Manager or such Selling Stockholder reasonably requested, and
the Company hereby consents to the use of such copies for purposes permitted by
the 1933 Act. The Company will furnish to each International Manager, without
charge, during the period when the International Prospectus is required to be
delivered under the 1933 Act or the 1934 Act, such number of copies of the
International Prospectus (as amended or supplemented) as such International
Manager may reasonably request. The International Prospectus and any amendments
or supplements thereto furnished to the International Managers and the Selling
Stockholder will be identical to the electronically transmitted copies thereof
filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by
Regulation S-T.
(e) Continued Compliance with Securities Laws.
The Company will comply with the 1933 Act and the 1933 Act Regulations and
the 1934 Act and the 1934 Act Regulations to the extent necessary to permit the
completion of the distribution of the Securities as contemplated in this
Agreement, the U.S. Purchase Agreement and in the Prospectuses. If at any time
when a prospectus is required by the 1933 Act to be delivered in connection with
sales of the Securities, any event shall occur or condition shall exist as a
result of which it is necessary, in the opinion of the International Managers or
the Company, based upon advice of counsel, to amend the Registration Statement
or amend or supplement any Prospectuses in order that the Prospectuses will not
include any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus is delivered, not
misleading, or if it shall be necessary, in the opinion of such party, based
upon the advice of counsel, at any such time to amend the Registration Statement
or amend or supplement any Prospectus in order to comply with the requirements
of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare
and file with the Commission, subject to Section 3(b), such amendment or
supplement as may be necessary to correct such statement or omission or to make
the Registration Statement or the Prospectuses comply with such requirements,
and the Company will furnish to the International Managers and each Selling
Stockholder such number of
19
copies of such amendment or supplement as the International Managers may
reasonably request.
(f) Blue Sky Qualifications.
The Company will use its best efforts, in cooperation with the
International Managers, to qualify the Securities for offering and sale under
the applicable securities laws of such states and other jurisdictions as the
Global Coordinator may designate and to maintain such qualifications in effect
for a period of not less than one year from the later of the effective date of
the Registration Statement and any Rule 462(b) Registration Statement; provided,
however, that the Company shall not be obligated to file any general consent to
service of process or to qualify as a foreign corporation or as a dealer in
securities in any jurisdiction in which it is not so qualified or to subject
itself to taxation in respect of doing business in any jurisdiction in which it
is not otherwise so subject. In each jurisdiction in which the Securities have
been so qualified, the Company will file such statements and reports as may be
required by the laws of such jurisdiction to continue such qualification in
effect for a period of not less than one year from the effective date of the
Registration Statement and any Rule 462(b) Registration Statement.
(g) Rule 158.
The Company will timely file such reports pursuant to the 1934 Act as are
necessary in order to make generally available to its securityholders as soon as
practicable, but not later than 15 months after the effective date of the
Registration Statement, an earnings statement for the purposes of, and to
provide the benefits contemplated by, the last paragraph of Section 11(a) of the
1933 Act.
(h) Restriction on Sale of Securities.
During a period of 60 days from the date of the Prospectuses, the Company
will not, without the prior written consent of the Global Coordinator, (i)
directly or indirectly, offer, pledge, sell, contract to sell, sell any option
or contract to purchase, purchase any option or contract to sell, grant any
option, right or warrant to purchase or otherwise transfer or dispose of any
share of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock or file any registration statement under the 1933
Act with respect to any of the foregoing or (ii) enter into any swap or any
other agreement or any transaction that transfers, in whole or in part, directly
or indirectly, the economic consequence of ownership of the Common Stock,
whether any such swap or transaction described in clause (i) or (ii) above is to
be settled by delivery of Common Stock or such other securities, in cash or
otherwise. The foregoing sentence shall not apply to (A) the Securities to be
sold hereunder or under the U.S. Purchase Agreement, (B) any shares of Common
Stock issued by the Company upon the exercise of an option or warrant or the
conversion of a security outstanding on the date hereof and referred to in the
Prospectuses, (C) any shares of Common Stock
20
issued or options to purchase Common Stock granted pursuant to existing employee
benefit plans of the Company referred to in the Prospectuses, (D) any shares of
Common Stock issued pursuant to any non-employee director stock plan or dividend
reinvestment plan or (E) pursuant to acquisitions.
(i) Reporting Requirements.
The Company, during the period when the Prospectuses are required to be
delivered under the 1933 Act or the 1934 Act, will file all documents required
to be filed with the Commission pursuant to the 1934 Act within the time periods
required by the 1934 Act and the 1934 Act Regulations and the Company will cause
its subsidiaries to file all documents required to be filed with any
supervisory, regulatory, administrative or governmental agency, body or
authority, whether pursuant to the 1934 Act and the 1934 Act Regulations or
otherwise (except reports to any bank or thrift regulatory agencies prepared on
a confidential basis), except when the failure to file such documents could not
reasonably be expected to result, directly or indirectly, in a Material Adverse
Effect.
Section 4. Payment of Expenses.
(a) Expenses.
The Company and the Selling Stockholders covenant and agree with one
another and with the several Underwriters that (a) the Company will pay the
following expenses incident to this Agreement: (i) the preparation, printing and
filing of the Registration Statement (including financial statements and
exhibits) as originally filed and of each amendment thereto, (ii) the
preparation, printing and delivery to the Underwriters and the Selling
Stockholders of this Agreement, any Agreement among Underwriters and such other
documents as may be required in connection with the offering, purchase, sale,
issuance or delivery of the Securities, (iii) the preparation, issuance and
delivery of the certificates for the Securities to the Underwriters and the
transfer of the Securities from the Selling Stockholders to the International
Managers and between the International Managers and the U.S. Underwriters, (iv)
the fees and disbursements of the Company's counsel, accountants and other
advisors, (v) the qualification of the Securities under securities laws in
accordance with the provisions of Section 3(f) hereof, including filing fees and
the reasonable fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with the preparation of the Blue Sky
Survey and any supplement thereto, (vi) the printing and delivery to the
Underwriters and the Selling Stockholders of copies of each preliminary
prospectus, any Term Sheets and of the Prospectuses and any amendments or
supplements thereto, (vii) the preparation, printing and delivery to the
Underwriters and the Selling Stockholders of copies of the Blue Sky Survey and
any supplement thereto, (viii) the fees and expenses of any transfer agent or
registrar for the
21
Securities, (x) the fees and expenses incurred in connection with the inclusion
of the Securities in the Nasdaq National Market, (xi) the fees and disbursements
of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, special counsel for the Selling Stockholders and (xii) the
filing fees incident to, and the reasonable fees and disbursements of counsel to
the Underwriters in connection with, the review by the National Association of
Securities Dealers, Inc. of the terms of the sale of the Securities.
(b) Expenses of the Selling Stockholders.
The Underwriters shall not be responsible for, or liable for, any costs and
expenses of any of the Selling Stockholders incident to its obligations
hereunder that are not otherwise specifically provided for in this Section. The
Lead Managers agree to pay any state stock transfer tax and each of the Selling
Stockholders, severally and not jointly, agrees to reimburse the Lead Managers
for its pro rata share of associated carrying costs if such tax payment is not
rebated on the day of payment and for any portion of such tax payment not
rebated. It is understood, however, that, except as provided in this Section and
Sections 6, 7 and 9 hereof, the Underwriters will pay all of their own costs and
expenses, including the fees of their counsel, stamp duties, capital duties and
stock transfer taxes, if any, payable on resale of any of the Securities by
them, and any advertising expenses connected with any offers they may make.
(c) Termination of Agreement.
If this Agreement is terminated by the Lead Managers in accordance with the
provisions of Section 5, Section 9(a)(i) or Section 11 hereof, the Company shall
reimburse the International Managers for all of their reasonable out-of-pocket
expenses, including the reasonable fees and disbursements of counsel for the
International Managers.
(d) Effect on Registration Rights Agreement.
This Section 4 shall not alter the agreements between the Company and the
Selling Stockholders for payment of expenses contained in that certain
Registration Rights Agreement (the "Registration Rights Agreement"), dated as of
July 21, 1996, by and among the FDIC Selling Stockholder, the Company and
Keystone Holdings Partners L.P.
Section 5. Conditions of International Managers' Obligations.
The obligations of the several International Managers hereunder are subject
to the accuracy, as of the Closing Time, of the representations and warranties
of the Company and the Selling Stockholders contained in Section 1 hereof or in
certificates of any officer of the Company or any subsidiary of the Company or
on behalf of any Selling Stockholders delivered pursuant to the provisions
hereof, to the performance by the Company of its covenants and other obligations
hereunder to be performed at or prior to the Closing Time, and to the following
further conditions:
22
(a) Effectiveness of Registration Statement.
The Registration Statement, including any Rule 462(b) Registration
Statement, has become effective and at the Closing Time no stop order suspending
the effectiveness of the Registration Statement shall have been issued under the
1933 Act or proceedings therefor initiated or threatened by the Commission, and
any request on the part of the Commission for additional information shall have
been complied with to the reasonable satisfaction of counsel to the
International Managers. A prospectus containing the Rule 430A Information shall
have been filed with the Commission in accordance with Rule 424(b) (or a
post-effective amendment providing such information shall have been filed and
declared effective in accordance with the requirements of Rule 430A) or, if the
Company has elected to rely upon Rule 434, a Term Sheet shall have been filed
with the Commission in accordance with Rule 424(b).
(b) Opinion of Counsel for Company.
At Closing Time, the Lead Managers and the Selling Stockholders shall have
received the favorable opinion, dated as of Closing Time, of ▇▇▇▇▇▇, Pepper &
Shefelman, special counsel for the Company, in form and substance reasonably
satisfactory to counsel for the International Managers, together with signed or
reproduced copies of such opinion for each of the other International Managers,
to the effect set forth in Exhibit A hereto. Such counsel may also state that,
insofar as such opinion involves factual matters, they have relied, to the
extent they deem proper, upon certificates of officers of the Company and its
subsidiaries and certificates of public officials.
(c) Opinions of Counsel for the Selling Stockholders.
At Closing Time, the Lead Managers- shall have received the favorable
opinion, dated as of Closing Time, of (i) ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, counsel for the
Selling Stockholders, and (ii) the General Counsel or Deputy General Counsel of
the FDIC, in each case in form and substance reasonably satisfactory to counsel
for the International Managers, together with signed or reproduced copies of
such letters for each of the other International Managers, to the effect set
forth in Exhibits B-1 and B-2 hereto, respectively. Such counsel may also state
that, insofar as such opinions involve factual matters, they have relied, to the
extent they deem proper, upon certificates of the applicable Selling
Stockholders.
(d) Opinion of Counsel for the International Managers.
At Closing Time, the Lead Managers- shall have received the favorable
opinion, dated as of Closing Time, of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP,
counsel for the International Managers, together with signed or reproduced
copies of such letter for each of the other International Managers with respect
to such matters as they may reasonably request. In giving such opinion such
counsel may rely, as to all matters governed by the laws of jurisdictions other
than the law of the State of New York and the federal law of the
23
United States upon the opinions of counsel satisfactory to the Lead Managers.
Such counsel may also state that, insofar as such opinion involves factual
matters, they have relied, to the extent they deem proper, upon certificates of
officers of the Company and its subsidiaries and certificates of public
officials.
(e) Officers' Certificate.
At Closing Time, there shall not have been, since the date hereof or since
the respective dates as of which information is given in the Prospectuses, any
material adverse change, or development involving a prospective material adverse
change, in the financial condition, results of operations or stockholders'
equity of the Company and its subsidiaries considered as one enterprise, whether
or not arising in the ordinary course of business, and the Lead Managers and the
Selling Stockholders shall have received a certificate signed by the President
or an Executive Vice President of the Company and by the chief financial or
deputy chief financial officer of the Company, dated as of Closing Time, to the
effect that (i) there has been no such material adverse change, (ii) the
representations and warranties in Section 1(a) hereof are true and correct with
the same force and effect as though expressly made at and as of Closing Time,
(iii) the Company has complied with all agreements and satisfied all conditions
on its part to be performed or satisfied at or prior to Closing Time, and (iv)
no stop order suspending the effectiveness of the Registration Statement has
been issued and no proceedings for that purpose have been instituted or are
pending or are contemplated by the Commission.
(f) Certificate of Selling Stockholders.
Each of the Attorney-in-Fact and the FDIC shall have furnished to the Lead
Managers and the Company a certificate, dated the date of the Closing Time, to
the effect that the representations and warranties of (i) with respect to the
certificate furnished by the Attorney-in-Fact, the Selling Stockholders other
than the FDIC Selling Stockholder and (ii) with respect to the certificate
furnished by the FDIC, the FDIC Selling Stockholder and the FDIC, in this
Agreement are true and correct in all material respects on and as of the Closing
Time to the same effect as if made at the Closing Time and each applicable
Selling Stockholder has complied with all the agreements and satisfied all the
conditions on his or its part to be performed or satisfied prior to the Closing
Time.
(g) Accountant's Comfort Letter.
At the time of the execution of this Agreement, the Lead Managers shall
have received from each of Deloitte & Touche LLP and KPMG Peat Marwick LLP
letters dated such date, in form and substance satisfactory to the Lead
Managers, together with signed or reproduced copies of such letters for each of
the other International Managers, containing statements and information of the
type ordinarily included in accountants' "comfort letters" to underwriters with
24
respect to the financial statements and certain financial information contained
in the Registration Statement and the Prospectuses.
(h) Bring-down Comfort Letter.
At Closing Time, the Lead Managers shall have received from Deloitte &
Touche LLP and KPMG Peat Marwick LLP letters, dated as of Closing Time, to the
effect that it reaffirms the statements made in the letters furnished pursuant
to subsection (g) of this Section, except that the specified date referred to
shall be a date not more than three business days prior to Closing Time.
(i) Approval of Listing.
At the Closing Time, the Securities shall have been approved for inclusion
in the Nasdaq National Market.
(j) Additional Documents.
At the Closing Time, counsel for the International Managers shall have been
furnished with such documents and opinions as they may reasonably require for
the purpose of enabling them to pass upon the issuance and sale of the
Securities as herein contemplated, or in order to evidence the accuracy of any
of the representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company and the
Selling Stockholders in connection with the issuance and sale of the Securities
as herein contemplated shall be reasonably satisfactory in form and substance to
the Lead Managers and counsel for the International Managers.
(k) Termination of Agreement.
If any condition specified in this Section shall not have been fulfilled
when and as required to be fulfilled, this Agreement may be terminated by the
Lead Managers by notice to the Company and the Selling Stockholders at any time
at or prior to Closing Time, and such termination shall be without liability of
any party to any other party, except as provided in Section 4, and except that
Sections 1, 6, 7 and 8 shall survive any such termination and remain in full
force and effect.
Section 6. Indemnification.
(a) Indemnification by the Company.
The Company agrees to indemnify and hold harmless (i) each Selling
Stockholder, each person, if any, who controls such Selling Stockholder within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, and
each of their respective officers, directors, and employees in accordance with
the terms of the Registration Rights Agreement and (ii) each International
Manager and each person, if any, who controls any International Manager within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934
25
Act, and each of their respective officers, directors and employees to the
extent and in the manner as set forth below:
(1) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (or any
amendment thereto), including the Rule 430A Information and the Rule 434
Information, if applicable, or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the statements
therein not misleading or arising out of any untrue statement or alleged untrue
statement of a material fact contained in any preliminary prospectus or the
Prospectuses (or any amendment or supplement thereto), or the omission or
alleged omission therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading;
(2) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or omission, or any such alleged untrue
statement or omission; provided that (subject to Section 6(e) below) any such
settlement is effected with the written consent of the Company; and
(3) against any and all expense whatsoever, as incurred (including the fees
and disbursements of counsel chosen by ▇▇▇▇▇▇▇ ▇▇▇▇▇), reasonably incurred in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to the extent that
any such expense is not paid under (1) or (2) above;
provided, however, that the indemnity agreement provided in this Section
6(a)(ii) shall not apply to any loss, liability, claim, damage or expense to the
extent arising out of any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with written
information furnished to the Company (A) by any Selling Stockholder, or (B) by
any International Manager through the Lead Managers, expressly for use in the
Registration Statement (or any amendment thereto), including the Rule 430A
Information and the Rule 434 Information, if applicable, or any preliminary
prospectus or the International Prospectus (or any amendment or supplement
thereto); and provided further that the
26
foregoing indemnity with respect to any preliminary prospectus shall not inure
to the benefit of any International Manager (or to the benefit of any person
controlling such International Manager) from whom the person asserting any such
loss, liability, claim or damage purchased International Securities if such
untrue statement or omission or alleged untrue statement or omission made in
such preliminary prospectus is eliminated or remedied in the International
Prospectus (as amended or supplemented by the Company if the Company shall have
furnished any amendments or supplements thereto) and a copy of the International
Prospectus (as so amended or supplemented), which at such time had been provided
to the International Managers for their use, shall not have been furnished to
such person at or prior to the written confirmation of sale of such Securities
to such person.
(b) Indemnification by the Selling Stockholders.
Each Selling Stockholder severally agrees to indemnify and hold harmless
(i) the Company, its directors, each of its officers who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act, in accordance with
the terms of the Registration Rights Agreement, (ii) each other Selling
Stockholder and each person, if any, who controls such Selling Stockholder
within the meaning of Section 15 of the 1933 Act and Section 20 of the 1934 Act
and each of the respective officers, directors and employees of each of the
foregoing in accordance with the terms of the Registration Rights Agreement and
(iii) each International Manager and each person, if any, who controls any
International Manager within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act against any and all loss, liability, claim, damage
and expense to which any International Manager, or such aforementioned persons
may become subject under the 1933 Act, or otherwise, insofar as such loss,
liability, claim, damage, and expense arise out of, or is based upon, any untrue
statement or alleged untrue statement of any material fact made in the
Registration Statement (or any amendment thereto), including the Rule 430A
Information and the Rule 434 Information, if applicable, or any preliminary
prospectus or the International Prospectus (or any amendment or supplement
thereto) or arises out of, or is based upon the omission or alleged omission to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse such International Manager
or such aforementioned persons for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
liability, claim, damage or expense, in each instance to the extent, but only to
the extent, that any such loss, liability, claim, damage, and expense arises out
of, or is based upon, an untrue statement or alleged untrue statement of a
material fact or an omission or alleged omission to state a material fact in
27
said Registration Statement (or any amendment thereto) including the Rule 430A
Information and Rule 434 Information if applicable, or any preliminary
prospectus or International Prospectus (or any amendment or supplement thereto)
in reliance upon, and in conformity with, written information furnished to the
Company by or on behalf of such Selling Stockholder specifically for use
therein; provided, however, that (x) the liability of any Selling Stockholder
under this Section 6(b)(iii) shall be limited to an amount equal to the proceeds
of the sale of International Securities by such Selling Stockholder (net of all
costs and expenses (including underwriting commissions and disbursements) paid
or incurred by such Selling Stockholder in connection with the registration and
sale of the International Securities) and (y) the foregoing indemnity provided
under Section 6(b)(iii) with respect to any preliminary prospectus shall not
inure to the benefit of any International Manager (or to the benefit of any
person controlling such International Manager) from whom the person asserting
any such loss, liability, claim or damage purchased International Securities if
such untrue statement or omission or alleged untrue statement or omission made
in such preliminary prospectus is eliminated or remedied in the International
Prospectus (as amended or supplemented by the Company if the Company shall have
furnished any amendments or supplements thereto) and a copy of the International
Prospectus (as so amended or supplemented), which at such time had been provided
to the International Managers for their use, shall not have been furnished to
such person at or prior to the written confirmation of sale of such Securities
to such person.
(c) Indemnification by the International Managers.
Each International Manager severally agrees to indemnify and hold harmless
the Company, its directors, each of its officers who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act, and each Selling
Stockholder and each person, if any, who controls such Selling Stockholder
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act,
against any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto),
including the Rule 430A Information and the Rule 434 Information, if applicable,
or any preliminary prospectus or the International Prospectus (or any amendment
or supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by such International Manager through the
Lead Managers expressly for use in the Registration Statement (or any amendment
thereto) or such preliminary prospectus or the International Prospectus (or any
28
amendment or supplement thereto); provided, however, that the liability of each
International Manager under this Section 6(c) shall be limited to an amount
equal to the underwriting commissions applicable to the International Securities
purchased by such International Manager hereunder.
(d) Actions against Parties; Notification.
Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
hereunder to the extent it is not materially prejudiced as a result thereof and
in any event shall not relieve it from any liability which it may have otherwise
than on account of this indemnity agreement. In the case of parties indemnified
pursuant to Section 6(a)(ii) or 6(b)(iii) above, counsel to the indemnified
parties shall be selected by the Lead Managers (and shall be reasonably
satisfactory to the Company and/or the Selling Stockholders, as applicable), and
in the case of parties indemnified pursuant to Section 6(c) above, counsel to
the indemnified parties shall be selected by the Company or the Selling
Stockholders, as the case may be (and shall be reasonably satisfactory to the
Lead Managers). An indemnifying party may participate at its own expense in the
defense of any such action; provided, however, that counsel to the indemnifying
party shall not (except with the consent of the indemnified party) also be
counsel to the indemnified party. In no event shall the indemnifying parties be
liable for fees and expenses of more than one counsel (in addition to any local
counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances.
No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 6 or Section 7 hereof (whether or not the indemnified parties
are actual or potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or claim and
(ii) does not include a statement as to or an admission of fault, culpability or
a failure to act by or on behalf of any indemnified party. Anything to the
contrary notwithstanding, this Section 6(d) shall apply only with respect to
indemnification to be provided pursuant to, and "indemnifying party" and
"indemnified party" shall mean only such parties who are indemnifying parties
and indemnified parties, respectively, under, Section 6(a)(ii), Section
6(b)(iii) and
29
Section 6(c); the Registration Rights Agreement shall govern all matters
discussed therein with respect to the parties thereto.
(e) Other Agreements.
The provisions of this Section 6 shall not affect any other agreement
between the Company and the Selling Stockholders, or among the Selling
Stockholders, with respect to indemnification; provided, however, that the term
"Registration Statement" as used in the Registration Rights Agreement shall be
deemed to include the Rule 430A Information and the Rule 434 Information.
Section 7. Contribution.
If the indemnification provided for in Section 6 hereof is for any reason
unavailable to or insufficient to hold harmless an indemnified party (other than
pursuant to the terms thereof) in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims, damages
and expenses incurred by such indemnified party, as incurred, (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Selling Stockholders on the one hand and the International
Managers on the other hand from the offering of the International Securities
pursuant to this Agreement or (ii) if the allocation provided by clause (i) is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company and the Selling Stockholder on the one hand and of
the International Managers on the other hand in connection with the statements
or omissions that resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company and the Selling Stockholders
on the one hand and the International Managers on the other hand in connection
with the offering of the International Securities pursuant to this Agreement
shall be deemed to be in the same respective proportions as the total net
proceeds from the offering of the International Securities pursuant to this
Agreement (before deducting expenses) received by the Selling Stockholders
(which for purposes of this Agreement shall be treated as a benefit of both the
Company and the Selling Stockholders) and the total underwriting discount
received by the International Managers, in each case as set forth on the cover
of the Prospectus, or, if Rule 434 is used, the corresponding location on the
Term Sheet bear to the aggregate initial public offering price of the
International Securities as set forth on such cover.
The relative fault of the Company and the Selling Stockholders on the one
hand and the International Managers on the other hand shall be determined by
reference to, among other things, whether any such untrue or alleged untrue
30
statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Company or the Selling Stockholders
or by the International Managers and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The Company, the Selling Stockholders and the International Managers agree
that it would not be just and equitable if contribution pursuant to this Section
7 were determined by pro rata allocation (even if the International Managers
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 above in this Section 7. The aggregate amount of losses,
liabilities, claims, damages and expenses incurred by an indemnified party and
referred to above in this Section 7 shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in investigating,
preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue or alleged untrue statement or
omission or alleged omission.
Notwithstanding the provisions of this Section 7, no International Manager
shall be required to contribute any amount in excess of the amount by which the
total price at which the International Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such International Manager has otherwise been required to pay by
reason of any such untrue or alleged untrue statement or omission or alleged
omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls a
International Manager within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as such
International Manager, and each director of the Company, each officer of the
Company who signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act shall have the same rights to contribution as the Company and
each director of a Selling Stockholder, and each person, if any, who controls a
Selling Stockholder within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act shall have the same rights to contribution as a Selling
Stockholder. The
31
International Managers' respective obligations to contribute pursuant to this
Section 7 are several in proportion to the number of International Securities
set forth opposite their respective names in Schedule A hereto and not joint.
The provisions of this Section shall not affect any agreement among the
Company and the Selling Stockholders with respect to contribution.
Section 8. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement,
or in certificates of officers of the Company or the Selling Stockholders
submitted pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any International
Manager or controlling person, or by or on behalf of the Company or the Selling
Stockholders, and shall survive delivery of the International Securities to the
International Managers.
Section 9. Termination of Agreement.
(a) Termination; General.
The Lead Managers may terminate this Agreement, by notice to the Company
and the Selling Stockholders, at any time at or prior to Closing Time (i) if
there has been, since the time of execution of this Agreement or since the
respective dates as of which information is given in the International
Prospectus, any material adverse change, or development involving a prospective
material adverse change, in the financial condition, results of operations or
stockholders' equity of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, or (ii)
if there has occurred any material adverse change in the financial markets in
the United States, any outbreak of hostilities or escalation thereof or other
calamity or crisis or any change or development involving a prospective change
in national or international political, financial or economic conditions, in
each case the effect of which is such as to make it, in the judgment of the Lead
Managers, impracticable to market the Securities or to enforce contracts for the
sale of the Securities, or (iii) if trading in any securities of the Company has
been suspended or limited by the Commission or the Nasdaq National Market, or if
trading generally on the American Stock Exchange or the New York Stock Exchange
or in the Nasdaq National Market has been suspended or limited, or minimum or
maximum prices for trading have been fixed, or maximum ranges for prices have
been required, by any of said exchanges or by such system or by order of the
Commission, the National Association of Securities Dealers, Inc. or any other
governmental authority, or (iv) if a banking moratorium has been declared by
Federal, California, Washington, Oregon or New York authorities.
32
(b) Liabilities.
If this Agreement is terminated pursuant to this Section, such termination
shall be without liability of any party to any other party except as provided in
Section 4 hereof, and provided further that Sections 1, 6 and 7 shall survive
such termination and remain in full force and effect.
Section 10. Default by One or More of the International Managers.
If one or more of the International Managers shall fail at Closing Time to
purchase the Securities which it or they are obligated to purchase under this
Agreement (the "Defaulted Securities"), the Lead Managers shall have the right,
within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting International Managers, or any other underwriters, to purchase
all, but not less than all, of the Defaulted Securities in such amounts as may
be agreed upon and upon the terms herein set forth; if, however, the Lead
Managers shall not have completed such arrangements within such 24-hour period,
then: (a) if the number of Defaulted Securities does not exceed 10% of the
number of International Securities to be purchased on such date, each of the
non-defaulting International Managers shall be obligated, severally and not
jointly, to purchase the full amount thereof in the proportions that their
respective underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting International Managers, or (b) if the number
of Defaulted Securities exceeds 10% of the number of International Securities to
be purchased on such date, this Agreement shall terminate without liability on
the part of any non-defaulting International Manager.
No action taken pursuant to this Section shall relieve any defaulting
International Manager from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement, any of the Lead Managers, the Company or the Selling Stockholder
shall have the right to postpone Closing Time, for a period not exceeding seven
days, in order to effect any required changes in the Registration Statement or
Prospectuses or in any other documents or arrangements. As used herein, the term
"International Manager" includes any person substituted for a International
Manager under this Section 10.
Section 11. Default by the FDIC Selling Stockholder.
If the FDIC Selling Stockholder shall fail at Closing Time to sell and
deliver the number of International Securities which the FDIC Selling
Stockholder is obligated to sell hereunder, and the remaining Selling
Stockholders do not exercise the right hereby granted to increase, pro rata or
otherwise, the number of International Securities to be sold by them hereunder
to the total number to be sold by all Selling Stockholders as set forth in
Schedule B hereto,
33
then the International Managers may, at the option of the Lead Managers, by
notice from the Lead Managers to the Company and the Selling Stockholders,
terminate this Agreement without any liability on the fault of any
non-defaulting party except that the provisions of Sections 1, 4, 6 and 7 shall
remain in full force and effect.
No action taken pursuant to this Section 11 shall relieve the defaulting
party from liability, if any, in respect of such default.
Section 12. Notices.
All notices and other communications hereunder shall be in writing and
shall be deemed to have been duly given if mailed or transmitted by any standard
form of telecommunication. Notices to the International Managers shall be
directed to the Lead Managers at ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention of ▇▇▇▇▇ ▇▇▇▇▇▇▇, with a
copy to Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention of ▇▇▇▇▇ ▇. ▇▇▇▇; notices to the Company
shall be directed to it at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
attention of the Senior Vice President - Corporate Counsel; notices to the
non-FDIC Selling Stockholders shall be directed to ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇-▇▇▇▇, attention of ▇▇▇▇ ▇▇▇▇▇▇;
and notices to the FDIC Selling Stockholder shall be directed to the Federal
Deposit Insurance Corporation, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇,
attention of the General Counsel, with a copy to ▇▇▇▇▇ ▇▇▇▇▇▇, Senior Counsel.
Section 13. Parties.
This Agreement shall inure to the benefit of and be binding upon each of
the International Managers, the Company and the Selling Stockholders and their
respective successors and personal assigns. Nothing expressed or mentioned in
this Agreement is intended or shall be construed to give any person, firm or
corporation, other than the International Managers, the Company and the Selling
Stockholders and their respective successors and personal assigns and the
controlling persons and officers and directors referred to in Sections 6 and 7
and their heirs and legal representatives, any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the International Managers, the
Company and the Selling Stockholders and their respective successors, and said
controlling persons and officers and directors and their heirs and legal
representatives, and for the benefit of no other person, firm or corporation. No
purchaser of Securities from any International Manager shall be deemed to be a
successor by reason merely of such purchase, and neither the term "successor"
nor the term "successors and assigns" as used in this Agreement shall be deemed
to include such a purchaser.
34
Section 14. GOVERNING LAW AND TIME.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED
WITHIN THE STATE OF NEW YORK. EXCEPT AS OTHERWISE SET FORTH HEREIN, SPECIFIED
TIMES OF DAY REFER TO NEW YORK CITY TIME.
Section 15. Effect of Headings; Interpretation.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
The words "herein," "hereinafter," and "hereunder" and words of similar
import used in this Agreement shall refer to this Agreement as a whole and not
to any particular provision of this Agreement. The term "person" shall mean an
individual, partnership, corporation, limited liability company, joint stock
company, trust, unincorporated association, joint venture, government authority
or other entity of whatever nature. For purposes of this Agreement, a business
day means any day on which the New York Stock Exchange is open for trading.
Section 16. Counterparts.
This Agreement may be executed in counterparts, each of which shall be
deemed an original and all of which when taken together shall constitute one and
the same agreement. If signed in counterparts, this Agreement shall become
effective when at least one counterpart hereof shall have been executed and
delivered on behalf of each party hereto. The parties agree that they each shall
accept counterpart signatures from the other parties hereto by facsimile
transmission.
35
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company, the FDIC Selling Stockholder and the
Attorney-in-Fact a counterpart hereof, whereupon this Agreement, along with all
counterparts, will become a binding agreement among the International Managers,
the Company and the Selling Stockholders in accordance with its terms.
Very truly yours,
WASHINGTON MUTUAL, INC.
By: /s/ ▇▇▇▇▇ ▇. Tall
Name: ▇▇▇▇▇ ▇. Tall
Title: Executive Vice President
FEDERAL DEPOSIT INSURANCE CORPORATION,
AS MANAGER OF THE FSLIC RESOLUTION
FUND
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Director, Division of
Resolutions and Receiverships
▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
As attorney-in-fact on behalf of the
Non-FDIC Selling Stockholders named
in Schedule B hereto
36
CONFIRMED AND ACCEPTED, as of the date first above written.
▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
FRIEDMAN, BILLINGS, ▇▇▇▇▇▇ & CO., INC.
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
By: /s/ Alex Sun
Authorized Signatory
For themselves and as Lead Managers of the other International Managers named in
Schedule A hereto.
37
EXHIBIT A
OPINION OF THE COMPANY'S SPECIAL COUNSEL
TO BE DELIVERED PURSUANT TO SECTION 5(b)
The opinions of special counsel for the Company referred to in
Section 5(b) collectively shall be substantially to the following effect:
(i) The Company has been duly incorporated and is an existing
corporation under the laws of the State of Washington. The
Company has the requisite corporate power and authority to
conduct its business in all material respects as described in the
Prospectuses.
(ii) WMBfsb is validly existing as a federal savings bank under the
Federal laws of the United States. WMBfsb has the requisite
corporate power and authority to conduct its business in all
material respects as described in the Prospectuses.
(iii) WMB has been duly incorporated and is an existing corporation in
good standing under the laws of the State of Washington. WMB has
the requisite corporate power and authority to conduct its
business in all material respects as described in the
Prospectuses.
(iv) ASB is validly existing as a federal savings bank under the
Federal laws of the United States. ASB has the requisite
corporate power and authority to conduct its business in all
material respects as described in the Prospectuses.
(v) All of the issued and outstanding capital stock of WMBfsb, WMB
and ASB is directly or indirectly owned by the Company, free and
clear of any lien, encumbrance or security interest, other than
as described in the Prospectuses.
(vi) The shares of Common Stock of the Company currently issued and
outstanding have been duly authorized and validly issued and are
fully paid and nonassessable. The Securities have been duly
authorized and validly issued and are fully paid and
nonassessable. All of such shares are eligible for trading in the
over-the-counter market reported by the Nasdaq National Market.
38
(vii) The statements set forth under the heading "Description of
Capital Stock" in the Prospectuses, insofar as such statements
purport to summarize certain provisions of the Company's
certificate of incorporation and by-laws defining the rights of
holders of the Securities, provide a fair summary of such
provisions in all material respects. The current form of
certificate for the common stock, no par value per share, of the
Company complies as to form with the requirements of the
Washington Business Corporation Act.
(viii) All regulatory consents, authorizations, approvals and filings
required to be obtained or made by the Company under the Federal
laws of the United States and the laws of the State of Washington
for the issuance, sale and delivery of the Securities by the
Company to the Selling Stockholders have been obtained or made.
(ix) The issuance of the Securities by the Company to the Selling
Stockholders did not (a) violate the Company's certificate of
incorporation or by-laws, (b) result in a default under or breach
of any Agreements and Instruments or (c) violate any Federal law
of the United States or law of the State of Washington applicable
to the Company.
(x) Each of the International Purchase Agreement and the U.S.
Purchase Agreement has been duly authorized, executed and
delivered by the Company.
(xi) The Registration Statement has been declared effective under the
1933 Act; any required filing of the Prospectuses pursuant to
Rule 424(b) has been made in the manner and within the time
period required by Rule 424(b); and, to the best of our
knowledge, no stop order suspending the effectiveness of the
Registration Statement or any Rule 462(b) Registration Statement
has been issued under the 1933 Act and no proceedings for that
purpose have been instituted or are pending or threatened by the
Commission.
(xii) The Registration Statement, including the Rule 430A Information
and the Rule 434 Information, as applicable, the Prospectuses,
excluding the documents incorporated by reference therein, and
each amendment or supplement to the Registration Statement and
Prospectuses, excluding the documents incorporated by reference
therein, as of their respective effective or issue dates (other
than the financial statements and supporting
39
schedules included therein or omitted therefrom, as to which we
need to express no opinion) complied as to form in all material
aspects with the requirements of the 1933 Act and the 1933 Act
Regulations.
(xiii) The documents incorporated by reference in the Prospectuses
(other than the financial statements and supporting schedules
included therein or omitted therefrom, as to which we need
express no opinion), when they became effective or were filed
with the Commission, as the case may be, complied as to form in
all material respects with the requirements of the 1933 Act or
the 1934 Act, as applicable, and the rules and regulations of the
Commission thereunder.
(xiv) To the best of our knowledge, there is not pending or threatened
any action, suit, proceeding, inquiry or investigation, to which
the Company or any subsidiary is a party, or to which the
property of the Company or any subsidiary is subject, before or
brought by any court or governmental agency or body, domestic or
foreign, which might reasonably be expected to result in a
Material Adverse Effect, or which might reasonably be expected to
materially and adversely affect the consummation of the
transactions contemplated in the Purchase Agreement or the
performance by the Company of its obligations thereunder.
(xv) The information in the Prospectuses under "Description of
Washington Mutual Capital Stock," to the extent that it
constitutes matters of law, summaries of legal matters or the
Company's charter and bylaws, has been reviewed by us and is
correct in all material respects.
In addition, such counsel shall state that they have reviewed the
Registration Statement and the Prospectuses, participated in discussions with
the Lead Managers and the representatives of the Company and its accountants and
that, on the basis of the information gained in such discussions, the
Registration Statement, as of the date it became effective, and the
Prospectuses, as of the date of the Prospectuses, appeared on their face to be
appropriately responsive in all material respects to the requirements of the
1933 Act and the 1933 Act Regulations. Further, such counsel shall confirm that
nothing that came to their attention in the course of the aforementioned review
has caused them to believe that the Registration Statement, as of the date it
became effective, 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 Prospectuses, as of the date
of the
40
Prospectuses and as of the Closing Date, contained any untrue statement of a
material fact or omitted to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading.
The limitations inherent in the independent verification of factual matters
and the character of determinations involved in the registration process are
such, however, that such counsel shall not be required to assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectuses except for those
made under the captions "Description of Capital Stock" and "Underwriting" in the
Prospectuses insofar as they relate to provisions of documents therein
described. Also, such counsel need not express any opinion or belief as to the
financial statements or other financial data contained in the Registration
Statement or the Prospectuses.
41
EXHIBIT B-1
OPINION OF COUNSEL FOR THE NON-FDIC SELLING STOCKHOLDERS,
TO BE DELIVERED PURSUANT TO SECTION 5(c)
The opinion of special counsel for the non-FDIC Selling Stockholders
referred to in Section 5(c) shall be substantially to the following effect:
1. Each of the International Purchase Agreement and the U.S. Purchase
Agreement has been duly authorized (if applicable), executed and delivered by
each of the non-FDIC Selling Stockholders.
2. The Attorney-in-Fact and Custody Agreement has been duly authorized (if
applicable), executed and delivered by each of the non-FDIC Selling Stockholders
and the Attorney-in-Fact, and is the legal, valid and binding agreement of each
such person enforceable against such person in accordance with its terms.
3. Upon delivery by the non-FDIC Selling Stockholders to the Underwriters
of the Securities being sold by the non-FDIC Selling Stockholders pursuant to
each of the International Purchase Agreement and the U.S. Purchase Agreement
against payment therefor as provided in the International Purchase Agreement and
the U.S. Purchase Agreement, respectively, the Underwriters will own the
Securities free and clear of any adverse claim (within the meaning of Section
8-302 of the New York Uniform Commercial Code). In rendering the foregoing
opinion we have assumed that each Underwriter takes delivery of the Securities
in the State of New York in good faith and without notice of any adverse claim.
4. Neither the execution and delivery of the International Purchase
Agreement or the U.S. Purchase Agreement nor the sale of the Securities by any
non-FDIC Selling Stockholder, nor the consummation of the transactions
contemplated in the International Purchase Agreement or the U.S. Purchase
Agreement nor the fulfillment of the terms of the International Purchase
Agreement or the U.S. Purchase Agreement has violated or will violate any
provisions of law to which any non-FDIC Selling Stockholder is subject.
5. To the best of our knowledge, no actions, suits or proceedings before or
by any court or governmental agency, body or authority, or arbitrator are
pending or threatened or contemplated, seeking to prevent the sale of the
Securities being sold by any non-FDIC Selling Stockholder pursuant to the
International Purchase
42
Agreement or the U.S. Purchase Agreement or the consummation of the
International Purchase Agreement or the U.S. Purchase Agreement.
6. To the best of our knowledge such parts of the Registration Statement
and the Prospectuses comprising information under the caption "Selling
Stockholders" which specifically relate to the Selling Stockholders (i) did not
at the date the Registration Statement became effective, contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading, and
(ii) did not at the date of the Prospectuses and do not on the date hereof
contain any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.
In rendering our opinion, we have with your permission relied as to
factual matters upon certificates of the several Selling Stockholders and upon
the representation of the several Selling Stockholders contained in the
International Purchase Agreement, the U.S. Purchase Agreement and the power of
Attorney and Custody Agreement.
In rendering the opinion set forth in paragraph 1 above, we have with your
permission assumed that each of the International Purchase Agreement and the
U.S. Purchase Agreement has been duly authorized, executed and delivered by each
of the respective parties thereto (other than the Selling Stockholders).
In rendering the opinion set forth in paragraph 4 above, we have with your
permission assumed that:
(x) The Registration Statement has become effective under the
Act; any required filing of any Prospectus and any supplements thereto
pursuant to Rule 424(b) has been made in the manner and within the time
period required by Rule 424(b); no stop order suspending the
effectiveness of the Registration Statement or suspending the offering
of the Securities has been issued and no proceedings for such purposes
have been instituted or threatened.
(y) At the time the Registration Statement became effective,
the Registration Statement and the Prospectuses and each supplement
thereto complied as to form in all material respects with the
applicable requirements of the 1933 Act and the respective rules
thereunder; and (except as specifically addressed by the matters set
forth in paragraph 6 above) the Registration
43
Statement at the date of its effectiveness did not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading and the Prospectuses at their date and at the
Closing Date did not contain or do not contain any untrue statement of
a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading.
We express no opinion other than as to the Federal laws of the United
States of America.
We are furnishing this opinion letter to you solely for your benefit. This
opinion letter is not to be used, circulated, quoted or otherwise referred to
for any other purpose.
Very truly yours,
44
EXHIBIT B-2
OPINION OF COUNSEL FOR THE FDIC SELLING STOCKHOLDER,
TO BE DELIVERED PURSUANT TO SECTION 5(c)
The opinion of counsel for the FDIC Selling Stockholder referred to in
Section 5(c) shall be substantially to the following effect:
1. Each of the International Purchase Agreement and the U.S. Purchase
Agreement has been duly authorized, executed and delivered by the FDIC Selling
Stockholder.
2. The delivery by the FDIC Selling Stockholder to the Underwriters of the
Securities being sold by the FDIC Selling Stockholder pursuant to each of the
International Purchase Agreement and the U.S. Purchase Agreement against payment
therefor as provided in the International Purchase Agreement and the U.S.
Purchase Agreement, respectively, will convey good and valid title to the
Securities being sold to the Underwriters free and clear of all liens,
encumbrances, security interests, restrictions and claims whatsoever.
3. Neither the execution and delivery of the International Purchase
Agreement or the U.S. Purchase Agreement nor the sale of the Securities by the
FDIC Selling Stockholder, nor the consummation of the transactions contemplated
in the International Purchase Agreement or the U.S. Purchase Agreement nor the
fulfillment of the terms of the International Purchase Agreement or the U.S.
Purchase Agreement has violated or will violate any provisions of law as
administered by the FDIC to which the FDIC Selling Stockholder is subject.
4. The FDIC Selling Stockholder has the statutory authority to execute each
of the International Purchase Agreement and the U.S. Purchase Agreement pursuant
to 12 U.S.C. ss. 1821a, and to sell, assign, transfer and deliver the Securities
being sold by the FDIC Selling Stockholder pursuant to each of the International
Purchase Agreement and the U.S. Purchase Agreement in the manner provided for in
each of the International Purchase Agreement and the U.S. Purchase Agreement, to
perform its obligation under each of the International Purchase Agreement and
the U.S. Purchase Agreement and to take all other actions in connection
therewith.
5. No actions, suits or proceedings before or by any court or governmental
agency, body or authority, or arbitrator are pending or, to the best of our
knowledge, threatened or contemplated, seeking to prevent the sale of the
Securities being sold
45
by the FDIC Selling Stockholder pursuant to the International Purchase Agreement
or the U.S. Purchase Agreement or the consummation of the International Purchase
Agreement or the U.S. Purchase Agreement.
6. To the best of my knowledge such parts of the Registration Statement and
the Prospectuses comprising information under the caption "Selling Stockholders"
which specifically relate to the FDIC Selling Stockholder (i) did not at the
date the Registration Statement became effective, contain any untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, and (ii) did
not at the date of the Prospectuses and do not on the date hereof contain any
untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading.
In rendering the opinion set forth in paragraph 1 above, I have with your
permission assumed that each of the International Purchase Agreement and the
U.S. Purchase Agreement has been duly authorized, executed and delivered by each
of the respective parties thereto (other than the FDIC Selling Stockholder).
In rendering the opinion set forth in paragraph 4 above, I have with your
permission assumed that:
(x) The Registration Statement has become effective under the
Act; any required filing of any Prospectus and any supplements thereto
pursuant to Rule 424(b) has been made in the manner and within the time
period required by Rule 424(b); no stop order suspending the
effectiveness of the Registration Statement or suspending the offering
of the Securities has been issued and no proceedings for such purposes
have been instituted or threatened.
(y) At the time the Registration Statement became effective,
the Registration Statement and the Prospectuses and each supplement
thereto complied as to form in all material respects with the
applicable requirements of the 1933 Act and the respective rules
thereunder; and (except as specifically addressed by the matters set
forth in paragraph 6 above) the Registration Statement at the date of
its effectiveness did not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading and the
Prospectuses at their date and at the Closing Date did not contain or
do not contain any untrue statement of a material fact or omit to state
a material fact
46
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
I express no opinion other than as to the Federal laws of the United States
of America.
I am furnishing this opinion letter to you solely for your benefit. This
opinion letter is not to be used, circulated, quoted or otherwise referred to
for any other purpose.
Very truly yours,
47
SCHEDULE A
Number of International
Name of International Manager Securities to be Purchased
▇▇▇▇▇▇▇ ▇▇▇▇▇ International...........................1,017,500
Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc.................1,017,500
Bayerische Landesbank Girozentrale.......................75,000
▇▇▇-▇▇▇▇, ▇▇▇▇▇▇ N.V.....................................75,000
Union Bancaire Privee....................................75,000
Total ................................................2,260,000
Sch A-1
SCHEDULE B
Number of International
Selling Stockholder Securities to be Sold
FDIC Selling Stockholder
FSLIC Resolution Fund 2,168,661
Non-FDIC Selling Stockholders
President and Fellows of Harvard College 49,684
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 15,490
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 11,618
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. 6,007
KHI Associates, L.P. 5,611
26 Savings Associates, L.P. 2,929
------------------
Total 2,260,000
Sch B-1
SCHEDULE C
WASHINGTON MUTUAL, INC.
2,260,000 Shares of Common Stock
(No Par Value Per Share)
1. The initial public offering price per share for the
International Securities, determined as provided in Section 2 of the
International Purchase Agreement, shall be $47.50.
2. The purchase price per share for the International
Securities to be paid by the several International Managers shall be $46.55
being an amount equal to the initial public offering price set forth above less
an amount of $0.95 per share, representing the underwriting discount set forth
on page 1 of the International Prospectus.
Sch C-1
