EXHIBIT 1.1
Capital Securities
GBB Capital I
[ ]% Cumulative Capital Securities
(Liquidation Preference of $25 per Capital Security)
PURCHASE AGREEMENT
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, 1997
▇▇▇▇▇ ▇▇▇▇▇▇▇ INC.
▇▇▇▇▇ ▇▇▇▇▇▇▇ Tower
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Greater Bay Bancorp., a California corporation (the "Company"), and
its fiduciary subsidiary, GBB Capital I, a statutory business trust organized
under the Delaware Business Trust Act (the "Delaware Act") (the "Trust" and
together with the Company, the "Offerors"), propose that the Trust issue and
sell to ▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc. (the "Underwriter") an aggregate of __________ of the
Trust's ___% Cumulative Capital Securities, with a liquidation preference of
$25.00 per capital security (the "Capital Securities"), the terms of which are
more fully described in the Prospectus (as hereinafter defined). The Offerors
propose that the Trust issue the Capital Securities pursuant to an Amended and
Restated Trust Agreement among Wilmington Trust Company, as Property Trustee and
Indenture Trustee, the administrative trustees named therein (the
"Administrative Trustees") and the Company (the "Trust Agreement"). The Capital
Securities will be guaranteed by the Company with respect to distributions and
payments upon liquidation, redemption and otherwise (the "Guarantee") pursuant
to a Guarantee Agreement (the "Guarantee Agreement"), to be dated ________,
1997, between the Company and Wilmington Trust Company, as trustee (the
"Guarantee Trustee"), and entitled to the benefits of certain backup
undertakings described in the Prospectus (as defined herein) with respect to the
Company's agreement pursuant to the Expense Agreement (as defined herein) to pay
all expenses relating to administration of the Trust.
The proceeds of the sale of the Capital Securities will be used to
purchase junior subordinated deferrable interest debentures (the "Junior
Subordinated Debentures") issued by the Company pursuant to an Indenture, to be
dated _______,
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1997, between the Company and Wilmington Trust Company as trustee (the
"Indenture").
The Offerors hereby confirm their agreement with respect to the sale
of the Capital Securities to the Underwriter.
1. Registration Statement and Prospectus. A registration
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statement on Form S-1 (File No. 333-____) with respect to the Capital
Securities, the Guarantee and the Junior Subordinated Debentures, including a
preliminary form of prospectus, has been prepared by the Offerors in conformity
with the requirements of the Securities Act of 1933, as amended (the "Act"), and
the rules and regulations ("Rules and Regulations") of the Securities and
Exchange Commission (the "Commission") thereunder and the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act") and the rules and regulations
thereunder and has been filed with the Commission; and, if the Offerors have
elected to rely upon Rule 462(b) of the Rules and Regulations to increase the
size of the offering registered under the Act, the Offerors will prepare and
file with the Commission a registration statement with respect to such increase
pursuant to Rule 462(b). Copies of such registration statement(s) and
amendments and each related preliminary prospectus have been delivered to the
Underwriter.
If the Offerors have elected not to rely upon Rule 430A of the Rules
and Regulations, the Offerors have prepared and will promptly file an amendment
to the registration statement and an amended prospectus (including a term sheet
meeting the requirements of Rule 434 of the Rules and Regulations) if necessary
to complete the Prospectus. If the Offerors have elected to rely upon Rule 430A
of the Rules and Regulations, they will prepare and file a prospectus (or a term
sheet meeting the requirements of Rule 434) pursuant to Rule 424(b) that
discloses the information previously omitted from the prospectus in reliance
upon Rule 430A. Such registration statement, as amended at the time it is or was
declared effective by the Commission, and, in the event of any amendment thereto
after the effective date and prior to the Closing Date (as hereinafter defined),
such registration statement as so amended (but only from and after the
effectiveness of such amendment), including a registration statement (if any)
filed pursuant to Rule 462(b) of the Rules and Regulations increasing the size
of the offering registered under the Act and information (if any) deemed to be
part of the registration statement at the time of effectiveness pursuant to
Rules 430A(b) and 434(d) of the Rules and Regulations, is hereinafter called the
"Registration Statement". The prospectus included in the Registration Statement
at the time it is or was declared effective by the Commission is hereinafter
called the "Prospectus", except that if any prospectus (including any term sheet
meeting the requirements of Rule 434 of the Rules and Regulations provided by
the Offerors for use with a prospectus subject to completion within the meaning
of Rule 434 in order to meet the requirements of Section 10(a) of the Rules and
Regulations) filed by the Offerors with the Commission pursuant to Rule 424(b)
(and Rule 434, if applicable) of the Rules and Regulations or any
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other such prospectus provided to the Underwriter by the Offeror for use in
connection with the offering of the Capital Securities (whether or not required
to be filed by the Offeror with the Commission pursuant to Rule 424(b) of the
Rules and Regulations) differs from the prospectus on file at the time the
Registration Statement is or was declared effective by the Commission, the term
"Prospectus" shall refer to such differing prospectus (including any term sheet
within the meaning of Rule 434 of the Rules and Regulations) from and after the
time such prospectus is filed with the Commission or transmitted to the
Commission for filing pursuant to such Rule 424(b) (and Rule 434, if applicable)
or from and after the time it is first provided to the Underwriter by the
Offeror for such use. The term "Preliminary Prospectus" as used herein means the
preliminary prospectus included in any Registration Statement prior to the time
it becomes or became effective under the Act and any prospectus subject to
completion as described in Rule 430A or 434 of the Rules and Regulations.
In connection with the offer and sale of the Capital Securities, the
Underwriter will comply with Rule 2810 under the NASD Conduct Rules.
2. Representations and Warranties of the Company.
---------------------------------------------
(a) The Offerors represent and warrant to, and agree with, the
Underwriter as follows:
(i) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and the Preliminary Prospectus, at
the time of filing thereof, did 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, in the light of the circumstances under which
they were made, not misleading; except that the foregoing shall not apply to
statements in or omissions from the Preliminary Prospectus in reliance upon, and
in conformity with, written information furnished to the Company by or on behalf
of the Underwriter for use in the preparation thereof.
(ii) As of the time the Registration Statement (or any post-effective
amendment thereto, including a registration statement (if any) filed pursuant to
Rule 462(b) of the Rules and Regulations increasing the size of the offering
registered under the Act) is or was declared effective by the Commission, upon
the filing or first delivery to the Underwriter of the Prospectus (or any
supplement to the Prospectus (including any term sheet meeting the requirements
of Rule 434 of the Rules and Regulations)) and at the Closing Date (as
hereinafter defined), (A) the Registration Statement and Prospectus (in each
case, as so amended and/or supplemented) conformed or will conform in all
material respects to the requirements of the Act and the Rules and Regulations
and the Registration Statement and Prospectus (in each case as so amended
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and/or supplemented) conformed or will conform in all material respects to the
requirements of the Trust Indenture Act and the rules and regulations
thereunder, (B) the Registration Statement (as so amended) did not or will not
include 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, and (C) the Prospectus (as so supplemented) did not or will not
include an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances in which they are or were made, not misleading;
except that the foregoing shall not apply to (i) statements in or omissions from
any such document in reliance upon, and in conformity with, written information
furnished to the Offerors by or on behalf of the Underwriter specifically for
use in the preparation thereof and (ii) that part of the Registration Statement
which constitutes the Statement of Eligibility and Qualification ("Form T-1")
under the Trust Indenture Act. If the Registration Statement has been declared
effective by the Commission, no stop order suspending the effectiveness of the
Registration Statement has been issued, and no proceeding for that purpose has
been initiated or, to the Offeror's knowledge, threatened by the Commission.
(iii) The documents of the Company incorporated by reference in the
Registration Statement and the Prospectus, when they were filed with the
Commission conformed in all material respects to the requirements of the
Exchange Act and the rules and regulations of the Commission thereunder, and
none of such documents contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; and any further documents so filed
and incorporated by reference in the Registration Statement and the Prospectus
or any further amendment or supplement thereto, when such documents are filed
with the Commission will conform in all material respects to the requirements of
the Exchange Act and the rules and regulations of the Commission thereunder, and
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.
(iv) The consolidated financial statements of the Company, together with
the notes thereto, contained in or incorporated by reference in the Registration
Statement, Preliminary Prospectus and Prospectus comply in all material respects
with the requirements of the Act and the Exchange Act and fairly present the
consolidated financial condition of the Company and its consolidated
subsidiaries as of the dates indicated and the results of operations and changes
in cash flows for the periods therein specified in conformity with generally
accepted accounting principles consistently applied throughout the periods
involved (except as otherwise stated in the Registration Statement and
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Prospectus) and the independent public accountants whose reports are contained
therein are independent public accountants as required by the Act and the Rules
and Regulations. The summary financial information included in the Preliminary
Prospectus and Prospectus under the caption "Summary Consolidated Financial
Data" present fairly the information required to be stated therein.
(v) The Company has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of California and is
duly registered as a bank holding company under the Bank Holding Company Act of
1956, as amended (the "BHC Act"), supervised by the Board of Governors of the
Federal Reserve System (the "FRB"). Other than the Trust, Mid-Peninsula Bank, a
state bank chartered under the banking laws of the State of California, and
Cupertino National Bank and Trust, a national banking association chartered
under the federal laws of the United States (each a "Subsidiary" and
collectively the "Subsidiaries"), constitute the only subsidiaries of the
Company. Each Subsidiary has been duly organized and is validly existing and in
good standing under the laws of its jurisdiction of incorporation or
organization, as the case may be. Each of the Company and its Subsidiaries has
full corporate power and authority to own its properties and conduct its
business as currently being carried on and as described in the Registration
Statement and Prospectus, and is duly qualified to do business as a foreign
corporation in good standing under the corporation and financial services laws
of each jurisdiction in which the conduct of its business or ownership or lease
of its properties requires such qualification and where the failure to be so
qualified would, individually or in the aggregate, have a material adverse
effect on the condition (financial or otherwise), earnings, business, prospects,
assets, results of operations or properties of the Company and its Subsidiaries,
taken as a whole. Other than the foregoing Subsidiaries and the Trust, the
Company owns no capital stock or other equity, ownership or proprietary interest
in any company, partnership, association, trust or other entity. The accounts
of each Subsidiary are insured by the Bank Insurance Fund of the Federal Deposit
Insurance Corporation (the "FDIC") up to the maximum applicable amount in
accordance with the rules and regulations of the FDIC, and no proceedings for
the termination or revocation of such membership or insurance are pending, or,
to the knowledge of the Company, threatened.
(vi) The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Act with full trust power and
authority to own property and to conduct its business as described in the
Registration Statement and Prospectus and to enter into and perform its
obligations under this Agreement, the Capital Securities, the Common Securities
and the Trust Agreement and is authorized to do business in each jurisdiction in
which such qualification is required, except where the failure to so qualify
would
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not have a material adverse effect on the Company's condition (financial or
otherwise), earnings, business, prospects, assets, results of operations or
properties taken as a whole; the Trust has conducted and will conduct no
business other than the transactions contemplated by the Trust Agreement and
described in the Prospectus; the Trust is not a party to or otherwise bound by
any agreement other than those described in the Prospectus; the Trust is and
will be classified for United States federal income tax purposes as a grantor
trust and not as an association taxable as a corporation; and the Trust is and
will be treated as a consolidated subsidiary of the Company pursuant to
generally accepted accounting principles.
(vii) Except as contemplated in the Prospectus, subsequent to the
respective dates as of which information is given in the Registration Statement
and the Prospectus, none of the Trust, the Company or the Subsidiaries has
incurred any material liabilities or obligations, direct or contingent, or
entered into any material transactions, or declared or paid any dividends or
made any distribution of any kind with respect to its capital stock (other than
dividends paid in the ordinary course with respect to shares of the Company's
Common Stock, no par value (the "Common Stock") or the common stock of the
Subsidiaries as described in the Registration Statement or the Prospectus); and
there has not been any change in the capital stock (other than a change in the
number of outstanding shares of Common Stock due to the issuance of shares upon
the exercise of options, warrants or rights under an employee stock purchase
plan disclosed in the Registration Statement or the Prospectus), or any material
change in the short-term or long-term debt, or any issuance of options,
warrants, convertible securities or other rights to purchase the capital stock,
of the Trust, the Company or any Subsidiary, or any material adverse change, or
any development involving a prospective material adverse change, in the general
affairs, condition (financial or otherwise), business, key personnel, property,
prospects, net worth or results of operations of the Trust or the Company and
its Subsidiaries, taken as a whole.
(viii) Except as set forth in the Registration Statement and the Prospectus
or in the documents incorporated therein by reference, there is not pending or,
to the knowledge of the Trust or the Company, threatened or contemplated, any
action, suit or proceeding to which the Trust, the Company or any Subsidiary is
a party or to which either of their assets may be subject, before or by any
court or governmental agency, authority or body, or any arbitrator, which might
result in any material adverse change in the condition (financial or otherwise),
business, prospects, net worth or results of operations of the Trust or the
Company and its Subsidiaries, taken as a whole.
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(ix) There are no contracts or documents of the Trust, the Company or any
Subsidiary that are required to be filed or incorporated by reference as
exhibits to the Registration Statement by the Act or by the Rules and
Regulations which contracts or documents have not been so filed or incorporated
by reference as required.
(x) Each of this Agreement, the Indenture, the Trust Agreement, the
Guarantee and the Agreement as to Expenses and Liabilities (the "Expense
Agreement") has been duly authorized, executed and delivered by the Company
and/or the Trust, as the case may be, and constitutes a valid, legal and binding
obligation of the Company and/or the Trust, as the case may be, enforceable in
accordance with its terms, except as rights to indemnity hereunder may be
limited by federal or state securities laws and except as such enforceability
may be limited by bankruptcy, insolvency, reorganization or similar laws
affecting the rights of creditors generally and subject to general principles of
equity. The execution, delivery and performance of this Agreement, the
Indenture, the Trust Agreement, the Guarantee Agreement and the Expense
Agreement and the consummation of the transactions herein or therein
contemplated will not result in a breach or violation of any of the terms and
provisions of, or constitute a default under, any statute, any agreement or
instrument to which the Company or the Trust is a party or by which it is bound
or to which any of its property is subject, the Company's charter or bylaws, the
Trust's Trust Agreement or its certificate of trust filed with the State of
Delaware on ________, 1997 (the "Certificate of Trust") or any order, rule,
regulation or decree of any court or governmental agency or body having
jurisdiction over the Company or the Trust or any of the properties of either
the Company or the Trust; no consent, approval, authorization or order of, or
filing with, any court or governmental agency or body is required for the
execution, delivery and performance of this Agreement, the Indenture, the Trust
Agreement, the Guarantee and the Expense Agreement or for the consummation of
the transactions contemplated hereby or thereby, including the issuance or sale
of the Junior Subordinated Debentures by the Company and the Capital Securities
by the Trust, except such as may be required under the Act or state securities
or blue sky laws; each of the Company and the Trust has full power and authority
to enter into this Agreement, the Indenture, the Trust Agreement, the Guarantee
and the Expense Agreement, and to authorize, issue and sell the Capital
Securities as contemplated by this Agreement; and each of the Indenture, the
Trust Agreement and the Guarantee Agreement has been duly qualified under the
Trust Indenture Act and will conform in all material respects to the statements
relating thereto in the Registration Statement and the Prospectus.
(xi) All of the issued and outstanding shares of capital stock of the
Company are duly authorized and are validly issued, fully paid and
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nonassessable, have been issued, in compliance with all federal and state
securities laws, were not issued in violation of or subject to any preemptive
rights or other rights to subscribe for or purchase securities, and the holders
thereof are not subject to personal liability by reason of being such holders;
and the capital stock of the Company conforms to the description thereof in the
Registration Statement and Prospectus. Except as otherwise stated in the
Registration Statement and Prospectus, there are no preemptive rights or other
rights to subscribe for or to purchase, or any restriction upon the voting or
transfer of, any shares of Common Stock pursuant to the Company's charter,
bylaws or any agreement or other instrument to which the Company is a party or
by which the Company is bound. Neither the filing of the Registration Statement
nor the offering or sale of the Junior Subordinated Debentures or Capital
Securities as contemplated by this Agreement gives rise to any rights for or
relating to the registration of any shares of Common Stock or other capital
stock of the Company. All of the issued and outstanding shares of capital stock
of each Subsidiary have been duly and validly authorized and issued and are
fully paid and nonassessable, and, except for any directors' qualifying shares,
the Company owns of record and beneficially, free and clear of any security
interests, claims, liens, proxies, equities or other encumbrances, all of the
issued and outstanding shares of such stock. Except as described in the
Registration Statement and the Prospectus, there are no options, warrants,
agreements, contracts or other rights in existence to purchase or acquire from
the Company or any Subsidiary of the Company any shares of the capital stock of
the Company or any Subsidiary. The Company has an authorized and outstanding
capitalization as set forth in the Registration Statement and the Prospectus
under the caption "Capitalization".
(xii) The Junior Subordinated Debentures have been duly authorized by the
Company and at the Closing Date will have been duly executed by the Company and,
when authenticated in the manner provided for in the Indenture and delivered
against payment therefor as described in the Prospectus, will constitute valid
and binding obligations of the Company, enforceable against the Company in
accordance with their terms except to the extent that enforcement thereof may be
limited by bankruptcy, insolvency, reorganization or similar laws affecting the
rights of creditors generally and subject to general principles of equity, will
be in the form contemplated by, and entitled to the benefits of, the Indenture
and will conform in all material respects to the statements relating thereto in
the Prospectus.
(xiii) The Common Securities have been duly authorized by the Trust
Agreement and, when issued and delivered by the Trust to the Company against
payment therefor as described in the Registration Statement and Prospectus, will
be validly issued and (subject to the terms of the Trust Agreement) fully paid
and
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nonassessable undivided beneficial interests in the assets of the Trust and will
conform to all statements relating thereto contained in the Prospectus; the
issuance of the Common Securities is not subject to preemptive or other similar
rights; and at the Closing Date all of the issued and outstanding Common
Securities of the Trust will be directly owned by the Company free and clear of
any security interest, mortgage, pledge, lien, encumbrance, claim or equity.
(xiv) The Capital Securities have been duly authorized by the Trust
Agreement and, when issued and delivered pursuant to this Agreement against
payment of the consideration set forth herein, will be validly issued and fully
paid and non-assessable undivided beneficial interests in the Trust, will be
entitled to the benefits of the Trust Agreement and will in all material
respects conform to the statements relating thereto contained in the Prospectus;
the issuance of the Capital Securities is not subject to preemptive or other
similar rights; and holders of Capital Securities will be entitled to the same
limitation of personal liability under Delaware law as extended to stockholders
of private corporations for profit.
(xv) The Indenture, the Trust Agreement, the Guarantee Agreement and the
Expense Agreement are in substantially the respective forms filed as exhibits to
the Registration Statement.
(xvi) The Company's obligations under the Guarantee are subordinated and
junior in right of payment to all "Senior and Subordinated Debt" (as defined in
the Indenture) of the Company.
(xvii) The Junior Subordinated Debentures are subordinate and
junior in right of payment to all "Senior and Subordinated Debt" of the Company.
(xviii) Each of the Administrative Trustees of the Trust is an employee of
the Company and has been duly authorized by the Company to execute and deliver
the Trust Agreement.
(xix) The Trust, the Company and each Subsidiary holds, and is operating
in compliance in all material respects with, all franchises, grants,
authorizations, licenses, permits, easements, consents, certificates and orders
of any governmental or self-regulatory body required for the conduct of its
business and all such franchises, grants, authorizations, licenses, permits,
easements, consents, certifications and orders are valid and in full force and
effect, and the Trust, the Company and each Subsidiary is and has been in
compliance in all material respects with all applicable federal, state, local
and foreign laws, regulations, orders and decrees, except to the extent that the
failure to comply would not have a material adverse effect on the condition
(financial or
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otherwise), earnings, business, prospects, assets, results of operations or
properties of the Company and its Subsidiaries, taken as a whole.
(xx) Each of the Company and its Subsidiaries has good title to all
property (and good and marketable title to all real property) described in the
Registration Statement and Prospectus as being owned by them, in each case free
and clear of all liens, claims, security interests or other encumbrances except
such as are described in the Registration Statement and the Prospectus or which
do not interfere in any material respect with the use of the property on the
conduct of the business of the Company and its Subsidiaries; the property held
under lease by the Company and its Subsidiaries is held by them under valid,
subsisting and enforceable leases with only such exceptions with respect to any
particular lease as do not interfere in any material respect with the conduct of
the business of the Company or any Subsidiary; each of Company and its
Subsidiaries owns or possesses all patents, patent applications, trademarks,
service marks, tradenames, trademark registrations, service ▇▇▇▇ registrations,
copyrights, licenses, inventions, trade secrets and rights necessary for the
conduct of the business of the Company and its Subsidiaries as currently carried
on and as described in the Registration Statement and Prospectus; except as
stated in the Registration Statement and Prospectus, to the best of the
Company's knowledge, no name which the Company or any Subsidiary uses and no
other aspect of the business of the Company or any Subsidiary will involve or
give rise to any infringement of, or license or similar fees for, any patents,
patent applications, trademarks, service marks, tradenames, trademark
registrations, service ▇▇▇▇ registrations, copyrights, licenses, inventions,
trade secrets or other similar rights of others material to the business or
prospects of the Company and its Subsidiaries, taken as a whole, and neither the
Company nor any Subsidiary has received any notice alleging any such
infringement or fee.
(xxi) Neither the Company nor any Subsidiary is in violation of its
respective charter or bylaws; the Trust is not in violation of the Trust
Agreement or its Certificate of Trust; none of the Trust, the Company or any
Subsidiary is in breach of or otherwise in default in the performance of any
material obligation, agreement or condition contained in any bond, debenture,
note, indenture, loan agreement or any other material contract, lease or other
instrument to which it is subject or by which any of them may be bound, or to
which any of the material property or assets of the Trust, the Company or any
Subsidiary is subject.
(xxii) Each of the Trust, the Company and each Subsidiary has filed all
federal, state, local and foreign income and franchise tax returns required to
be filed and are not in default in the payment of any taxes which were payable
pursuant to said returns or any assessments with respect thereto, other than any
which the Company or any Subsidiary is contesting in good faith.
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(xxiii) The Offerors have not distributed and will not distribute any
prospectus or other offering material in connection with the offering and sale
of the Capital Securities and the Common Stock other than any Preliminary
Prospectus or the Prospectus or other materials permitted by the Act to be
distributed by the Company.
(xxiv) Each of the Company and its Subsidiaries maintains a system of
internal accounting controls sufficient to provide reasonable assurances that
(i) transactions are executed in accordance with management's general or
specific authorization; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets; (iii) access to
assets is permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is compared with
existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(xxv) Other than as contemplated by this Agreement or described in the
Registration Statement, the Company has not incurred any liability for any
finder's or broker's fee or agent's commission in connection with the execution
and delivery of this Agreement or the consummation of the transactions
contemplated hereby.
(xxvi) None of the Trust, the Company or any Subsidiary is an "investment
company" or a company "controlled" by an "investment company" within the meaning
of the Investment Company Act of 1940, as amended, or an "investment adviser"
within the meaning of the Investment Advisers Act of 1940, as amended.
(xxvii) No report or application filed by the Company or any Subsidiary
with the FRB, the OCC, the California Superintendent of State Banks (the
"Superintendent"), the FDIC or other regulatory authority having jurisdiction
over it (each such report of application, together with all exhibits thereto, a
"Regulatory Report"), as of the date it was filed, contained an untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading when made or
failed to comply with the applicable requirements of the FRB, the OCC, the
Superintendent, the FDIC or such other regulatory authority (the "Banking
Regulators"), as the case may be. The Company and each Subsidiary has filed each
Regulatory Report that it was required to file with any Banking Regulator.
(xxviii) The proceeds from the sale of the Capital Securities will
constitute "tier 1" capital (as defined in 12 C.F.R. Part 325).
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(xxix) Neither of the Offerors nor any of their affiliates is presently
doing business with the government of Cuba or with any person or affiliate
located in Cuba.
(xxx) Each of the Subsidiaries has properly administered, in all respects
material and which could reasonably be expected to be material to the business,
operations or financial condition of the Company and its Subsidiaries, taken as
a whole, all accounts for which it acts as a fiduciary, including but not
limited to accounts for which it serves as a trustee, agent, custodian, personal
representative, guardian, conservator or investment advisor, in accordance with
the terms of the governing documents and applicable state and federal law and
regulation and common law. Neither of the Subsidiaries nor any director, officer
or employee of either Subsidiary has committed any breach of trust with respect
to any such fiduciary account which is material to or could reasonably be
expected to be material to the general affairs, condition (financial or
otherwise), business, key personnel, property, prospects, net worth or results
of operations of the Company and its Subsidiaries, taken as a whole, and the
accountings for each such fiduciary account are true and correct in all material
respects and accurately reflect the assets of such fiduciary account in all
material respects.
(xxxi) The conditions for use of Form S-1, as set forth in the
General Instructions thereto, have been satisfied.
(xxxii) Each of the Company and its Subsidiaries is in compliance in all
material respects with all presently applicable provisions of the Employee
Retirement Income Security Act of 1974, as amended, including the regulations
and published interpretations thereunder ("ERISA"); no "reportable event" (as
defined in ERISA) has occurred with respect to any "pension plan" (as defined in
ERISA) which could have a material adverse effect on the general affairs,
management, financial position, stockholders' equity or results of operations of
the Company and its Subsidiaries for which the Company or any Subsidiary would
have any liability; neither the Company nor any Subsidiary has incurred or
expects to incur liability under (i) Title IV of ERISA with respect to
termination of, or withdrawal from, any "pension plan" or (ii) Sections 412 or
4971 of the Internal Revenue Code of 1986, as amended, including the regulations
and published interpretations thereunder (the "Code"), in each case which could
have a material adverse effect on the general affairs, management, financial
position, stockholders' equity or results of operations of the Company and its
Subsidiaries, taken as a whole; and each "pension plan" for which the Company or
any Subsidiary would have any liability that is intended to be qualified under
Section 501(a) of the Code is so qualified in all material respects and nothing
has occurred, whether by action or by failure to act, which would
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cause the loss of such qualification, except for such loss as would not
have a material adverse effect on the general affairs, management,
financial position, stockholders' equity or results of operations of the
Company and its Subsidiaries, taken as a whole.
(xxxiii) No hazardous substances, hazardous wastes, pollutants or
contaminants have been deposited or disposed of in, on or under the
properties of the Company or any Subsidiary (including properties owned,
managed or controlled by a Subsidiary in connection with its lending
operations) during the period in which the Company or any Subsidiary has
owned, occupied, managed, controlled or operated such properties in
violation of any applicable law, ordinance, rule, regulation, order,
judgment, decree or permit or which would require remedial action under any
applicable law, ordinance, rule, regulation, order, judgment, decree or
permit, except for any violation or remedial action which would not have,
or could not be reasonably likely to have, singularly or in the aggregate
with all such violations or remedial actions, a material adverse effect on
the general affairs, condition (financial or otherwise), business, key
personnel, property, prospects, net worth or results of operations of the
Company and its Subsidiaries, taken as a whole.
(b) Any certificate signed by any officer of the Company or a trustee
of the Trust and delivered to the Underwriter or to counsel for the Underwriter
shall be deemed a representation and warranty by the Company to the Underwriter
as to the matters covered thereby.
3. Purchase, Sale and Delivery of Capital Securities; Advisory Fee.
---------------------------------------------------------------
On the basis of the representations, warranties and agreements herein
contained, but subject to the terms and conditions herein set forth, the Trust
agrees to issue and sell ________ Capital Securities to the Underwriter, and the
Underwriter agrees to purchase the Capital Securities from the Trust at a
purchase price per Capital Security of $25.00 per share. As compensation to the
Underwriter for its commitments hereunder and in view of the fact that the
proceeds of the sale of the Capital Securities (together with the entire
proceeds from the sale by the Trust to the Company of the Common Securities)
will be used to purchase the Junior Subordinated Debentures, the Company hereby
agrees to pay at the Closing Date to the Underwriter, a commission per Capital
Security equal in amount to _________ percent (___%) of the gross proceeds from
the sale of the Capital Securities to be delivered by the Trust hereunder at the
Closing Date.
The Capital Securities will be delivered by the Company to the
Underwriter against payment of the purchase price therefor by certified or
official bank check or wire transfer of same day funds payable to the Company at
the offices of Piper
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Jaffray Inc., ▇▇▇▇▇ ▇▇▇▇▇▇▇ Tower, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, or such other location as may be mutually acceptable, at 9:00 a.m.
Central time on the third (or if the Capital Securities are priced, as
contemplated by Rule 15c6-1(c) under the Exchange Act, after 4:30 p.m. Eastern
time, on the fourth) full business day following the date hereof, or at such
other time and date as the Underwriter and the Company determine pursuant to
Rule 15c6-1(a) under the Exchange Act, such time and date of delivery being
herein referred to as the "Closing Date." Delivery of the Capital Securities may
be made by credit through full fast transfer to the accounts at The Depository
Trust Company designated by the Underwriter. Certificates representing the
Capital Securities, in definitive form and in such denominations and registered
in such names as the Underwriter may request upon at least two business days'
prior notice to the Company shall be prepared and will be made available for
checking and packaging, not later than 10:30 a.m., Central time, on the business
day next preceding the Closing Date at the offices of ▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc., ▇▇▇▇▇
▇▇▇▇▇▇▇ Tower, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, or such other
location as may be mutually acceptable.
Nothing herein contained shall constitute the Underwriter an
unincorporated association or partner with either or both Offerors.
4. Covenants.
---------
(a) The Offerors jointly and severally covenant and agree with the
Underwriter as follows:
(i) If the Registration Statement has not already been declared
effective by the Commission, the Company will use its best efforts to cause the
Registration Statement and any post-effective amendments thereto to become
effective as promptly as possible; the Company will notify the Underwriter
promptly of the time when the Registration Statement or any post-effective
amendment to the Registration Statement has become effective or any supplement
to the Prospectus (including any term sheet within the meaning of Rule 434 of
the Rules and Regulations) has been filed and of any request by the Commission
for any amendment or supplement to the Registration Statement or Prospectus or
additional information; if the Company has elected to rely on Rule 430A of the
Rules and Regulations, the Company will prepare and file a Prospectus (or term
sheet within the meaning of Rule 434 of the Rules and Regulations) containing
the information omitted therefrom pursuant to Rule 430A of the Rules and
Regulations with the Commission within the time period required by, and
otherwise in accordance with the provisions of, Rules 424(b), 430A and 434, if
applicable, of the Rules and Regulations; if the Company has elected to rely
upon Rule 462(b) of the Rules and Regulations to increase the size of the
offering registered under the Act, the Company will prepare and file a
registration statement with respect to such increase with the Commission within
-14-
the time period required by, and otherwise in accordance with the provisions of,
Rule 462(b); the Offerors will prepare and file with the Commission, promptly
upon the Underwriter's request, any amendments or supplements to the
Registration Statement or Prospectus (including any term sheet within the
meaning of Rule 434 of the Rules and Regulations) that, in the Underwriter's
opinion, may be necessary or advisable in connection with the Underwriter's
distribution of the Capital Securities; and the Offerors will not file any
amendment or supplement to the Registration Statement or Prospectus (including
any term sheet within the meaning of Rule 434 of the Rules and Regulations) to
which the Underwriter shall reasonably object by notice to the Company after
having been furnished a copy a reasonable time prior to the filing.
(ii) The Offerors will advise the Underwriter, promptly after they shall
receive notice or obtain knowledge thereof, of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement, of
the suspension of the qualification of the Capital Securities for offering or
sale in any jurisdiction, or of the initiation or threatening of any proceeding
for any such purpose; and the Offerors will promptly use their best efforts to
prevent the issuance of any stop order or to obtain its withdrawal if such a
stop order should be issued.
(iii) Within the time during which a prospectus (including any term sheet
within the meaning of Rule 434 of the Rules and Regulations) relating to the
Capital Securities is required to be delivered under the Act, the Offerors will
comply as far as it is able with all requirements imposed upon it by the Act, as
now and hereafter amended, and by the Rules and Regulations, as from time to
time in force, so far as necessary to permit the continuance of sales of or
dealings in the Capital Securities as contemplated by the provisions hereof and
the Prospectus. If during such period any event occurs as a result of which the
Prospectus would include an 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 then existing, not misleading, or if during such period it is
necessary to amend the Registration Statement or supplement the Prospectus to
comply with the Act, the Offerors will promptly notify the Underwriter and will
amend the Registration Statement or supplement the Prospectus (at the expense of
the Company) so as to correct such statement or omission or effect such
compliance.
(iv) The Offerors will use their best efforts to qualify the Capital
Securities, the Junior Subordinated Debentures and the Guarantee for sale under
the securities laws of such jurisdictions as the Underwriter may reasonably
designate and to continue such qualifications in effect so long as required for
the
-15-
distribution of the Capital Securities, except that the Offerors shall not
be required in connection therewith to qualify as a foreign corporation or to
execute a general consent to service of process in any state.
(v) The Offerors will furnish to the Underwriter copies of the
Registration Statement (three of which will be signed and will include all
exhibits), each of the Preliminary Prospectuses, the Prospectus, and all
amendments and supplements (including any term sheet within the meaning of Rule
434 of the Rules and Regulations) to such documents, in each case as soon as
available and in such quantities as the Underwriter may from time to time
reasonably request.
(vi) During a period of five years commencing with the date hereof the
Company will furnish to the Underwriter copies of all periodic and special
reports furnished to the stockholders of the Company and all information,
documents and reports filed with the Commission.
(vii) The Company will make generally available to its
security holders and holders of the Capital Securities as soon as practicable,
but in any event not later than 15 months after the end of the Company's current
fiscal quarter, an earnings statement (which need not be audited) covering a 12-
month period beginning after the effective date of the Registration Statement
that shall satisfy the provisions of Section 11(a) of the Act and Rule 158 of
the Rules and Regulations.
(viii) The Company, whether or not the transactions contemplated hereunder
are consummated or this Agreement is prevented from becoming effective under the
provisions of Section 8(a) hereof or is terminated, will pay or cause to be paid
(A) all expenses (including transfer taxes allocated to the respective
transferees) incident to the performance of the obligations of each Offeror
under this agreement, (B) all expenses and fees (including, without limitation,
fees and expenses of each Offeror's accountants and counsel but, except as
otherwise provided below, not including fees of the Underwriter's counsel) in
connection with the preparation printing, filing, delivery, and shipping of the
Registration Statement (including the financial statements therein and all
amendments, schedules, and exhibits thereto), the Capital Securities, each
Preliminary Prospectus, the Prospectus, and any amendment thereof or supplement
thereto, and the printing, delivery, and shipping of this Agreement and other
underwriting documents, including Blue Sky Memoranda, (C) all filing fees and
fees and disbursements of the Underwriter's counsel incurred in connection with
the qualification of the Capital Securities for offering and sale by the
Underwriter or by dealers under the securities or blue sky laws of the states
and other jurisdictions which the Underwriter shall designate, (D) the fees and
-16-
expenses of any transfer agent or registrar, (E) the filing fees incident to any
required review by the National Association of Capital Securities Dealers, Inc.
("NASD") of the terms of the sale of the Capital Securities, (E) listing fees,
if any, (G) the fees and expenses of the Indenture Trustee, including the fees
and disbursements of counsel for the Indenture Trustee in connection with the
Indenture and Junior Subordinated Debentures, (H) the fees and expenses of the
Property Trustee, including the fees and disbursements of counsel for the
Property Trustee in connection with the Trust Agreement and the Certificate of
Trust, and (I) all other costs and expenses incident to the performance of the
Offerors' obligations hereunder that are not otherwise specifically provided for
herein. If the sale of the Capital Securities provided for herein is not
consummated by reason of action by either Offeror pursuant to Section 8(a)
hereof which prevents this Agreement from becoming effective, or by reason of
any failure, refusal or inability on the part of either Offeror to perform any
agreement on its part to be performed, or because any other condition of the
Underwriter's obligations hereunder required to be fulfilled by either Offeror
is not fulfilled, the Company will reimburse the Underwriter for all out-of-
pocket disbursements (including fees and disbursements of counsel) incurred by
the Underwriter in connection with its investigation, preparing to market and
marketing the Capital Securities or in contemplation of performing their
obligations hereunder. Neither Offeror shall in any event be liable to the
Underwriter for loss of anticipated profits from the transactions covered by
this Agreement.
(ix) The Offerors will apply the net proceeds from the sale of the Capital
Securities to be sold by the Trust hereunder for the purposes set forth in the
Prospectus and will file such reports with the Commission with respect to the
sale of the Capital Securities and the application of the proceeds therefrom as
may be required in accordance with Rule 463 of the Rules and Regulations.
(x) The Offerors have not taken and will not take, directly or indirectly,
any action designed to or which might reasonably be expected to cause or result
in, or which has constituted, the stabilization or manipulation of the price of
any security of either Offeror to facilitate the sale or resale of the Capital
Securities, and has not effected any sales of Common Stock which are required to
be disclosed in response to Item 701 of Regulation S-K under the Act which have
not been so disclosed in the Registration Statement.
(xi) Neither Offeror will incur any liability for any finder's or broker's
fee or agent's commission in connection with the execution and delivery of this
Agreement or the consummation of the transactions contemplated hereby.
-17-
(xii) The Offerors will inform the Florida Department of Banking and
Finance at any time prior to the consummation of the distribution of the Capital
Securities by the Underwriter if it commences engaging in business with the
government of Cuba or with any person or affiliate located in Cuba. Such
information will be provided within 90 days after the commencement thereof or
after a change occurs with respect to previously reported information.
5. Conditions of Underwriter's Obligations. The obligations of the
---------------------------------------
Underwriter hereunder are subject to the accuracy, as of the date hereof and at
the Closing Date (as if made at the Closing Date), of and compliance with all
representations, warranties and agreements of the Offerors contained herein, to
the performance by each Offeror of its obligations hereunder and to the
following additional conditions:
(a) The Registration Statement shall have become effective not later
than 5:00 p.m., Central time, on the date of this Agreement, or such later time
and date as the Underwriter shall approve and all filings required by Rules 424,
430A and 434 of the Rules and Regulations shall have been timely made; no stop
order suspending the effectiveness of the Registration Statement or any
amendment thereof shall have been issued and no proceedings for the issuance of
such an order shall have been initiated or threatened; and any request of the
Commission for additional information (to be included in the Registration
Statement or the Prospectus or otherwise) shall have been complied with to the
Underwriter's satisfaction.
(b) The Underwriter shall not have advised the Company or the Trust
that the Registration Statement or the Prospectus, or any amendment thereof or
supplement thereto (including any term sheet within the meaning of Rule 434 of
the Rules and Regulations), contains an untrue statement of fact which, in the
Underwriter's opinion, is material, or omits to state a fact which, in the
Underwriter's opinion, is material and is required to be stated therein or
necessary to make the statements therein not misleading.
(c) Except as contemplated in the Prospectus, subsequent to the
respective dates as of which information is given in the Registration Statement
and the Prospectus, none of the Trust, the Company nor any Subsidiary shall have
incurred any material liabilities or obligations, direct or contingent, or
entered into any material transactions, or declared or paid any dividends or
made any distribution of any kind with respect to its capital stock; and there
shall not have been any change in the capital stock (other than a change in the
number of outstanding shares of Common Stock due to the issuance of shares upon
the exercise of options, warrants or rights under any employee stock purchase
plan disclosed in the Registration Statement or the Prospectus), or any material
change in the short-term or long-term debt of the Company, or any issuance of
options, warrants, convertible securities or other rights to
-18-
purchase the capital stock of the Company or any of its subsidiaries, or any
material adverse change or any development involving a prospective material
adverse change (whether or not arising in the ordinary course of business), in
the general affairs, condition (financial or otherwise), business, key
personnel, property, prospects, net worth or results of operations of the Trust
or the Company and its Subsidiaries, taken as a whole, that, in the
Underwriter's judgment, makes it impractical or inadvisable to offer or deliver
the Capital Securities on the terms and in the manner contemplated in the
Prospectus.
(d) On the Closing Date, there shall have been furnished to the
Underwriter the opinion of Manatt, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, counsel for the
Company, dated the Closing Date and addressed to the Underwriter, to the effect
that:
(i) Each of the Company and its Subsidiaries has been duly organized
and is validly existing as a corporation in good standing under the laws of its
jurisdiction of incorporation or organization. The Company has been duly
organized and is validly existing as a corporation in good standing under the
laws of the State of California and is duly registered as a bank holding company
under the BHC Act. Mid-Peninsula Bank has been duly organized and is validly
existing as a state bank in good standing under the banking laws of the State of
California. Cupertino National Bank and Trust has been duly organized and is
validly existing as a national banking association in good standing under the
federal laws of the United States. Each of the Company and its Subsidiaries has
the corporate power and authority to own its properties and conduct its business
as currently being carried on and as described in the Registration Statement and
Prospectus, and is duly qualified to do business as a foreign corporation and is
in good standing in each jurisdiction in which its ownership or lease of real
property or the conduct of its business makes such qualification necessary and
in which the failure to so qualify would have a material adverse effect upon the
business, condition (financial or otherwise) or properties of the Company and
its Subsidiaries, taken as a whole.
(ii) The statements in the Prospectus under the caption "Description
of the Trust Preferred", "Description of Junior Subordinated Debentures",
"Description of Guarantee", and "Relationship among the Trust Preferred
Securities, the Junior Subordinated Debentures and the Guarantee", insofar as
such statements constitute matters of law applicable to the Offerors or
summaries of documents, fairly present the information required to be included
therein in all material respects. All of the issued and outstanding shares of
the capital stock of the Company have been duly authorized and validly issued
and are fully paid and nonassessable, and the holders thereof are not subject to
personal liability by reason of being such holders. Except as otherwise stated
in the Registration Statement and Prospectus, there are no preemptive or other
similar rights or
-19-
options, warrants, agreements, contracts or other rights in existence to
purchase or acquire from the Company any shares of the capital stock of the
Company pursuant to the Company's charter, bylaws or any agreement or other
instrument known to such counsel to which the Company is a party or by which the
Company is bound. To the best of such counsel's knowledge, neither the filing of
the Registration Statement nor the offering or sale of the Junior Subordinated
Debentures or Capital Securities as contemplated by this Agreement gives rise to
any rights for or relating to the registration of any shares of Common Stock or
other securities of the Company.
(iii) All of the issued and outstanding shares of capital stock of each
Subsidiary have been duly and validly authorized and issued and are fully paid
and nonassessable, and, to the best of such counsel's knowledge, except as
otherwise described in the Registration Statement and Prospectus and except for
directors' qualifying shares, the Company owns of record and beneficially, free
and clear of any security interests, claims, liens, proxies, equities or other
encumbrances all of the issued and outstanding shares of capital stock of each
Subsidiary. To the best of such counsel's knowledge, except as described in the
Registration Statement and Prospectus, there are no options, warrants,
agreements, contracts or other rights in existence to purchase or acquire from
the Company or any Subsidiary any shares of the capital stock of any Subsidiary.
(iv) All of the issued and outstanding Common Securities of the Trust are
owned by the Company, free and clear of any security interest, mortgage, pledge,
lien, encumbrance, claim or equitable right.
(v) The Trust Agreement has been duly qualified under the Trust Indenture
Act.
(vi) The Junior Subordinated Debentures are in the form contemplated by
the Indenture, have been duly authorized, executed and delivered by the Company
and, when authenticated by the Indenture Trustee in the manner provided for in
the Indenture and delivered against payment therefor, will constitute valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms, except to the extent that enforcement thereof may
be limited by bankruptcy, insolvency, reorganization or similar laws affecting
the rights of creditors generally and subject to general principles of equity.
(vii) The Junior Subordinated Debentures are subordinate and junior in
right of payment to all Senior and Subordinated Debts (as defined in the
Indenture) of the Company.
-20-
(viii) Neither the Company nor the Trust is an "investment company" or a
company "controlled" by an "investment company" within the meaning of the 1940
Act.
(ix) The statements set forth in the Prospectus under the caption
"Certain Federal Income Tax Consequences" constitute a fair and accurate summary
of the matters addressed therein, based upon current law and the assumptions
stated or referred to therein.
(x) Under current law, the Trust will be classified for United States
federal income tax purposes as a grantor trust and not as an association taxable
as a corporation; accordingly, for United States federal income tax purposes
each beneficial owner of Capital Securities will be treated as owning an
undivided beneficial interest in the Junior Subordinated Debentures, and stated
interest on the Junior Subordinated Debentures generally will be included in
income by a holder of Capital Securities at the time such interest income is
paid or accrued in accordance with such holder's regular method of tax
accounting.
(xi) For federal income tax purposes, (a) the Junior Subordinated
Debentures will constitute indebtedness of the Company and (b) the interest on
the Junior Subordinated Debentures will be deductible by the Company on an
economic accrual basis in accordance with Section 163(e) of the Internal Revenue
Code of 1986, as amended, and Treasury Regulation Section 1.163-7.
(xii) To the best of such counsel's knowledge and information after due
inquiry, the Trust is not required to be authorized to do business in any other
jurisdiction and the Trust is not a party to or otherwise bound by any agreement
other than those described in the Prospectus.
(xiii) The Trust Agreement has been duly authorized, executed and delivered
by the Company and the Administrative Trustees.
(xiv) The Registration Statement has become effective under the Act and,
to the best of such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceeding
for that purpose has been instituted or, to the knowledge of such counsel,
threatened by the Commission.
(xv) The descriptions in the Registration Statement and Prospectus of
statutes, legal and governmental proceedings or rulings, contracts and other
documents are accurate in all material respects and fairly present the
information required to be shown; and such counsel does not know of any statutes
or legal or governmental proceedings required to be described in the
Prospectuses that are
-21-
not described as required, or of any contracts or documents of a character
required to be described in the Registration Statement or Prospectus or included
as exhibits to the Registration Statement that are not described or included as
required.
(xvi) The reports of the Company incorporated by reference in the
Registration Statement and the Prospectus or any further amendment or supplement
thereto made by the Company (other than the financial statements, other
financial data and related schedules therein, as to which such counsel need
express no opinion), when they were filed with the Commission, complied as to
form in all material respects with the requirements of the Exchange Act and the
rules and regulations of the Commission thereunder.
(xvii) The Company has full corporate power and authority and the Trust has
full trust power and authority to enter into this Agreement, the Indenture, the
Trust Agreement, the Guarantee Agreement and the Expense Agreement to which it
is a party and to issue the Junior Subordinated Debentures and Capital
Securities, as the case may be, and to effect the transactions contemplated by
this Agreement, the Indenture, the Trust Agreement, the Guarantee Agreement and
the Expense Agreement to which it is a party. This Agreement has been duly
authorized, executed and delivered by the Company, and each of the Indenture,
the Trust Agreement, the Guarantee Agreement and the Expense Agreement has been
duly authorized, executed and delivered by the Company and constitutes a valid,
legal and binding obligation of the Company enforceable in accordance with its
terms (except as rights to indemnity hereunder may be limited by federal or
state securities laws and except as such enforceability may be limited by
bankruptcy, insolvency, reorganization or similar laws affecting the rights of
creditors generally and subject to general principles of equity). The execution,
delivery and performance of this Agreement, the Indenture, the Trust Agreement,
the Guarantee Agreement, the Capital Securities, the Common Securities, the
Junior Subordinated Debentures and the Guarantee and the consummation of the
transactions herein or therein contemplated will not result in a breach or
violation of any of the terms and provisions of, or constitute a default under,
(A) any statute, rule or regulation of the United States or the State of
California, or any rule or regulation of any Banking Regulator, or (B) any
agreement or instrument know to such counsel to which the Company or the Trust
is a party or by which either is bound or to which any of their property is
subject which agreement or instrument is material to the Company and its
Subsidiaries, taken as a whole, or (C) the charter or bylaws of the Company or
any Subsidiary, or the Trust's Certificate, or (D) any order or decree known to
such counsel of any court, governmental agency or body or Banking Regulator
having jurisdiction over the Company, any Subsidiary or the Trust or any of its
respective properties, except for any breach, violation or default which would
-22-
not have a material adverse effect on the Company and its Subsidiaries,
taken as a whole, or the ability of the Company or the Trust to perform its
obligations hereunder; and no consent, approval, authorization or order of,
or filing with, any court or governmental agency or body is required for
the execution, delivery and performance of this Agreement, the Indenture,
the Trust Agreement, the Guarantee Agreement, the Expense Agreement, the
Capital Securities, the Junior Subordinated Debentures, or the Guarantee or
for the consummation of the transactions contemplated hereby or thereby,
including the issuance or sale of the Junior Subordinated Debentures by the
Company and the Common Securities and Capital Securities by the Trust,
except (a) such as may be required under the Act, which has been obtained,
or under state securities or blue sky laws, and (b) the qualification of
the Trust Agreement, the Guarantee Agreement and the Indenture under the
Trust Indenture Act and the rules and regulations thereunder.
(xviii) The Registration Statement and the Prospectus, and any
amendment thereof or supplement thereto (including any term sheet within
the meaning of Rule 434 of the Rules and Regulations), comply as to form in
all material respects with the requirements of the Act and the Rules and
Regulations; and on the basis of conferences with officers of the Company,
examination of documents referred to in the Registration Statement and
Prospectus and such other procedures as such counsel deemed appropriate,
nothing has come to the attention of such counsel that causes such counsel
to believe that the Registration Statement or any amendment thereof, at the
time such Registration Statement became effective and as of the Closing
Date (including any Registration Statement filed under Rule 462(b) of the
Rules and Regulations), contained any untrue statement of a material fact
or omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or that the
Prospectus (as of their respective dates and as of the Closing Date), as
amended or supplemented, includes any untrue statement of material fact or
omits to state a material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading; it
being understood that such counsel need express no opinion as to the
financial statements or other financial data included in any of the
documents mentioned in this clause.
In rendering such opinion such counsel may rely (i) as to matters of
law other than California and federal law, upon the opinion or opinions of local
counsel provided that the extent of such reliance is specified in such opinion
and that such counsel shall state that such opinion or opinions of local counsel
are satisfactory to them and that they believe they and the Underwriter are
justified in relying thereon and (ii) as to matters of fact, to the extent such
counsel deems reasonable upon certificates of
-23-
officers of the Company and its subsidiaries and of public officials provided
that the extent of such reliance is specified in such opinion.
(e) The favorable opinion, dated as of Closing Date, of ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ & Finger, counsel to Wilmington Trust Company, as Property Trustee under
the Trust Agreement, Indenture Trustee under the Indenture, and Guarantee
Trustee under the Guarantee Agreement, in form and substance satisfactory to
counsel for the Underwriter, to the effect that:
(i) Wilmington Trust Company is duly incorporated and is validly
existing in good standing as a banking corporation under the laws of the
State of Delaware.
(ii) Wilmington Trust Company has the power and authority to execute,
deliver and perform its obligations under the Trust Agreement, the
Indenture and the Guarantee Agreement.
(iii) Each of the Trust Agreement, the Indenture and the Guarantee
Agreement have been duly authorized, executed and delivered by Wilmington
Trust Company and constitutes a legal, valid and binding obligation of
Wilmington Trust Company, enforceable against Wilmington Trust Company, in
accordance with its terms.
(iv) The execution, delivery and performance by Wilmington Trust
Company of the Trust Agreement, the Indenture and the Guarantee Agreement
do not conflict with or constitute a breach of the charter or by-laws of
Wilmington Trust Company.
(v) No consent, approval or authorization of, or registration with
or notice to, any governmental authority or agency of the State of Delaware
or the United States of America governing the banking or trust powers of
Wilmington Trust Company is required for the execution, delivery or
performance by the Wilmington Trust Company of the Trust Agreement, the
Indenture and the Guarantee Agreement.
(f) The favorable opinion, dated as of Closing Date, of ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ & Finger, P.A. as special Delaware counsel for the Offerors, in form and
substance satisfactory to counsel for the Underwriter, to the effect that:
(i) The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Act, and all filings
required as of the date hereof under the Delaware Act with respect to the
creation and valid existence of the Trust as a business trust have been
made.
-24-
(ii) Under the Trust Agreement and the Delaware Act, the Trust has
the trust power and authority to own property and to conduct its business,
all as described in the Prospectus.
(iii) The Trust Agreement constitutes a valid and binding obligation
of the Company and each of the Property Trustee and the Administrative
Trustees, and is enforceable against the Company and each of the Property
Trustee and the Administrative Trustees, in accordance with its terms.
(iv) Under the Trust Agreement and the Delaware Act, the Trust has
the trust power and authority (i) to execute and deliver, and to perform
its obligations under, this Agreement, and (ii) to issue, and to perform
its obligations under, the Capital Securities and the Common Securities.
(v) Under the Trust Agreement and the Delaware Act, the execution
and delivery by the Trust of this Agreement, and the performance by the
Trust of its obligations under this Agreement, have been duly authorized by
all necessary trust action on the part of the Trust.
(vi) Under the Delaware Act, the certificate attached to the Trust
Agreement as Exhibit E is an appropriate form of certificate to evidence
ownership of the Capital Securities. The Capital Securities and the Common
Securities have been duly authorized by the Trust Agreement and are duly
and validly issued and, subject to the qualifications hereinafter expressed
in this paragraph (vi), fully paid and non-assessable undivided beneficial
interests in the assets of the Trust. The respective holders of the Capital
Securities and the Common Securities, as beneficial owners of the Trust,
will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the respective
holders of the Capital Securities and the Common Securities may be
obligated, pursuant to the Trust Agreement, to make certain payments under
the Trust Agreement.
(vii) Under the Trust Agreement and the Delaware Act, the issuance of
the Capital Securities and the Common Securities is not subject to
preemptive or similar rights.
(viii) The issuance and sale by the Trust of the Capital Securities
and the Common Securities, the purchase by the Trust of the Junior
Subordinated Debentures, the execution, delivery and performance by the
Trust of this Agreement and the Guarantee Agreement, the consummation by
the Trust of the transactions contemplated by this Agreement and compliance
by the Trust with
-25-
its obligations under this Agreement do not violate (a) any of the
provisions of the Certificate of Trust or the Trust Agreement, or (b) any
applicable Delaware law or Delaware administrative regulation.
(g) On the Closing Date, there shall have been furnished such opinion
or opinions from ▇▇▇▇▇▇ & Whitney LLP, counsel for the Underwriter, dated the
Closing Date and addressed to the Underwriter, with respect to the formation of
the Company, the validity of the Capital Securities, the Indenture, the
Guarantee Agreement, this Agreement, the Registration Statement, the Prospectus
and other related matters as the Underwriter reasonably may request, and such
counsel shall have received such papers and information as they request to
enable them to pass upon such matters.
(h) On the Closing Date the Underwriter shall have received a letter
from Coopers & ▇▇▇▇▇▇▇ L.L.P., dated the Closing Date and addressed to the
Underwriter, confirming that they are independent public accountants within the
meaning of the Act and are in compliance with the applicable requirements
relating to the qualifications of accountants under Rule 241 of Regulation S-X
of the Commission, that the Trust is and will be treated as a consolidated
Subsidiary of the Company pursuant to generally accepted accounting principles,
and stating, as of the date of such letter (or, with respect to matters
involving changes or developments since the respective dates as of which
specified financial information is given in the Prospectus, as of a date not
more than five days prior to the date of such letter), the conclusions and
findings of each said firm with respect to the financial information and other
matters covered by its letter delivered to the Underwriter concurrently with the
execution of this Agreement, and the effect of the letter so to be delivered on
the Closing Date shall be to confirm the conclusions and findings set forth in
such prior letter.
(i) On the Closing Date, there shall have been furnished to the
Underwriter, a certificate, dated the Closing Date and addressed to the
Underwriter, signed by the chief executive officer and by the chief financial
officer of the Company, to the effect that:
(i) The representations and warranties of the Company in this
Agreement are true and correct, in all material respects, as if made at and
as of the Closing Date, and the Offerors have complied with all the
agreements and satisfied all the conditions on its part to be performed or
satisfied at or prior to the Closing Date;
(ii) No stop order or other order suspending the effectiveness of the
Registration Statement or any amendment thereof or the qualification of the
Capital Securities for offering or sale has been issued, and no proceeding
for that
-26-
purpose has been instituted or, to the best of their knowledge, is
contemplated by the Commission or any state or regulatory body; and
(iii) The signers of said certificate have carefully examined
the Registration Statement and the Prospectus, and any amendments thereof
or supplements thereto (including any term sheet within the meaning of Rule
434 of the Rules and Regulations), and (A) such documents contain all
statements and information required to be included therein, the
Registration Statement, or any amendment thereof, does 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 Prospectus, as amended or supplemented, does not
include any untrue statement of 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, (B) since the
effective date of the Registration Statement, there has occurred no event
required to be set forth in an amended or supplemented prospectus which has
not been so set forth, (C) subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus,
neither the Trust, the Company nor any of its Subsidiaries has incurred any
material liabilities or obligations, direct or contingent, or entered into
any material transactions, not in the ordinary course of business, or
declared or paid any dividends or made any distribution of any kind with
respect to its capital stock (other than dividends paid in the ordinary
course as disclosed in the Registration Statement or the Prospectus with
respect to shares of the Company's Common Stock or any of its Subsidiaries'
common stock), and except as disclosed in the Prospectus, there has not
been any change in the capital stock (other than a change in the number of
outstanding shares of Common Stock due to the issuance of shares upon the
exercise of outstanding options, warrants or rights under any employee
stock purchase plan disclosed in the Registration Statement or the
Prospectus), or any material change in the short-term or long-term debt, or
any issuance of options, warrants, convertible securities or other rights
to purchase the capital stock, of the Company, or any of its Subsidiaries,
or any material adverse change or any development involving a prospective
material adverse change (whether or not arising in the ordinary course of
business), in the general affairs, condition (financial or otherwise),
business, key personnel, property, prospects, net worth or results of
operations of the Trust or the Company and its Subsidiaries, taken as a
whole, and (D) except as stated in the Registration Statement and the
Prospectus, there is not pending, or, to the knowledge of the Company or
the Trust, threatened or contemplated, any action, suit or proceeding to
which the Trust, the Company or any of its Subsidiaries is a party before
or by any court or governmental agency, authority or body, or any
arbitrator, which might result in any material adverse change in the
condition (financial or otherwise), business,
-27-
prospects or results of operations of the Company and its subsidiaries,
taken as a whole.
(j) On the Closing Date, there shall have been furnished to the
Underwriter, a certificate, dated the Closing Date and addressed to the
Underwriter, signed by the Administrative Trustees, to the effect that:
(i) The representations and warranties of the Trust in this Agreement
are true and correct, in all material respects, as if made at and as of the
Closing Date, and the Trust has complied with all the agreements and
satisfied all the conditions on its part to be performed or satisfied at or
prior to the Closing Date;
(ii) No stop order or other order suspending the effectiveness of the
Registration Statement or any amendment thereof or the qualification of the
Capital Securities for offering or sale has been issued, and no proceeding
for that purpose has been instituted or, to the best of their knowledge, is
contemplated by the Commission or any state or regulatory body; and
(iii) The signers of said certificate have carefully examined
the Registration Statement and the Prospectus, and any amendments thereof
or supplements thereto (including any term sheet within the meaning of Rule
434 of the Rules and Regulations), and (a) such documents contain all
statements and information required to be included therein, the
Registration Statement, or any amendment thereof, does 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 Prospectus, as amended or supplemented, does not
include any untrue statement of 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, (B) since the
effective date of the Registration Statement, there has occurred no event
required to be set forth in an amended or supplemented prospectus which has
not been so set forth, (C) subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus, the
Trust has not incurred any material liabilities or obligations, direct or
contingent, or entered into any material transactions, not in the ordinary
course of business, or declared or paid any dividends or made any
distribution of any kind with respect to its capital securities, and except
as disclosed in the Prospectus, there has not been any change in the
capital securities, or any material change in the short-term or long-term
debt, or any issuance of options, warrants, convertible securities or other
rights to purchase the capital securities, of the Trust or any material
adverse change or any development involving a prospective material adverse
change (whether or not arising in the ordinary course of business), in the
general affairs, condition (financial or otherwise), business, key
personnel, property, prospects,
-28-
net worth or results of operations of the Trust, and (D) except as stated
in the Registration Statement and the Prospectus, there is not pending, or,
to the knowledge of the Trust, threatened or contemplated, any action, suit
or proceeding to which the Trust is a party before or by any court or
governmental agency, authority or body, or any arbitrator, which might
result in any material adverse change in the condition (financial or
otherwise), business, prospects or results of operations of the Trust.
(k) The Company shall have furnished to the Underwriter and to the
Underwriter's counsel such additional documents, certificates and evidence as
the Underwriter or they may have reasonably requested.
All such opinions, certificates, letters and other documents will be
in compliance with the provisions hereof only if they are satisfactory in form
and substance to the Underwriter and the Underwriter's counsel.
6. Indemnification and Contribution.
--------------------------------
(a) The Offerors agree to indemnify and hold harmless the Underwriter
against any losses, claims, damages or liabilities to which the Underwriter may
become subject, under the Act or otherwise (including in settlement of any
litigation if such settlement is effected with the written consent of the
Company), insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement,
including the information deemed to be a part of the Registration Statement at
the time of effectiveness pursuant to Rules 430A and 434(d) of the Rules and
Regulations, if applicable, any Preliminary Prospectus, the Prospectus, or any
amendment or supplement thereto (including any term sheet within the meaning of
Rule 434 of the Rules and Regulations), or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
will reimburse the Underwriter for any legal or other expenses reasonably
incurred by it in connection with investigating or defending against such loss,
claim, damage, liability or action; provided, however, that the Offerors shall
not be liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in the
Registration Statement, any Preliminary Prospectus, the Prospectus, or any such
amendment or supplement, in reliance upon and in conformity with written
information furnished to the Offerors by or on behalf of the Underwriter
specifically for use in the preparation thereof.
In addition to its other obligations under this Section 6(a), each of
the Company and the Trust agree that, as an intern measure during the pendency
of any
-29-
claim, action, investigation, inquiry or other proceeding arising out of or
based upon any statement or omission, or any alleged statement or omission,
described in this Section 6(a), it will reimburse the Underwriter on a monthly
basis for all reasonable legal tees or other expenses incurred in connection
with investigating or defending any such claim, action, investigation, inquiry
or other proceeding, notwithstanding the absence of a judicial determination as
to the propriety and enforceability of the Offerors' obligation to reimburse the
Underwriter for such expenses and the possibility that such payments might later
be held to have been improper by a court of competent jurisdiction. To the
extent that any such interim reimbursement payment is so held to have been
improper, the Underwriter shall promptly return it to the party or parties that
made such payment, together with interest, compounded daily, determined on the
basis of the prime rate (or other commercial lending rate for borrowers of the
highest credit standing) announced from time to time by Norwest Bank Minnesota,
N.A. (the "Prime Rate"). Any such interim reimbursement payments which are not
made to the Underwriter within 30 days of a request for reimbursement shall bear
interest at the Prime Rate from the date of such request. This indemnity
agreement shall be in addition to any liabilities which the Company may
otherwise have.
(b) The Underwriter will indemnify and hold harmless the Company and
the Trust against any losses, claims, damages or liabilities to which the
Company and the Trust may become subject, under the Act or otherwise (including
in settlement of any litigation, if such settlement is effected with the
Underwriter's written consent), insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement, any Preliminary Prospectus, the Prospectus, or any
amendment or supplement thereto (including any term sheet within the meaning of
Rule 434 of the Rules and Regulations), or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in the
Registration Statement, any Preliminary Prospectus, the Prospectus, or any such
amendment or supplement, in reliance upon and in conformity with written
information furnished to the Company by or on behalf of the Underwriter for use
in the preparation thereof, and will reimburse the Company and the Trust for any
legal or other expenses reasonably incurred by the Company and the Trust in
connection with investigating or defending against any such loss, claim, damage,
liability or action.
(c) The Company agrees to indemnify the Trust against all loss,
liability, claim damage and expense whatsoever, which may become due from the
Trust under subsection (a).
-30-
(d) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve the indemnifying party from any liability
that it may have to any indemnified party. In case any such action shall be
brought against any indemnified party, and it shall notify the indemnifying
party of the commencement thereof, the indemnifying party shall be entitled to
participate in, and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party, and after notice from the
indemnifying party to such indemnified party of the indemnifying party's
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation; provided, however,
that if, in the sole judgment of the Underwriter, it is advisable for it to be
represented by separate counsel, the Underwriter shall have the right to employ
a single counsel to represent all persons who may be subject to a liability
arising from any claim in respect of which indemnity may be sought by the
Underwriter under this Section 6, in which event the reasonable fees and
expenses of such separate counsel shall be borne by the indemnifying party or
parties and remitted to the Underwriter for payment to such counsel as such fees
and expenses are incurred (in accordance with the provisions of the second
paragraph in subsection (a) above). An indemnifying party shall not be
obligated under any settlement agreement relating to any action under this
Section 6 to which it has not agreed in writing.
(e) If the indemnification provided for in this Section 6 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above, (i)
in such proportion as is appropriate to reflect the relative benefits received
by the Company or the Trust on the one hand and the Underwriter on the other
from the offering of the Capital Securities or (ii) if the allocation provided
by clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company and the Trust on the one hand
and the Underwriter on the other in connection with the statements or omissions
that resulted in such losses, claims, damages or liabilities, as well as any
other relevant equitable considerations. The relative benefits received by the
Company and the Trust on the one hand and the Underwriter on the other shall be
deemed to be in the same proportion as the total net proceeds from the offering
(before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by the Underwriter, in each case
as set forth in the table on the cover page of the Prospectus. The relative
fault
-31-
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company, the
Trust or the Underwriter and the parties' relevant intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. The Company and the Trust and the Underwriter agree that it would not
be just and equitable if contributions pursuant to this subsection (e) were to
be determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to in the first
sentence of this subsection (e). The amount paid by an indemnified party as a
result of the losses, claims, damages or liabilities referred to in the first
sentence of this subsection (e) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending against any action or claim which is the subject of
this subsection (e). Notwithstanding the provisions of this subsection (e), the
Underwriter shall not be required to contribute any amount in excess of the
amount by which the total price at which the Capital Securities underwritten by
it and distributed to the public were offered to the public exceeds the amount
of any damages that such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11 (f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
(f) The obligations of the Company under this Section 6 shall be in
addition to any liability which the Company and the Trust may otherwise have and
shall extend, upon the same terms and conditions, to each person, if any, who
controls the Underwriter within the meaning of the Act; and the obligations of
the Underwriter under this Section 6 shall be in addition to any liability that
the Underwriter may otherwise have and shall extend, upon the same terms and
conditions, to each director of the Company (including any person who, with his
or her consent, is named in the Registration Statement as about to become a
director of the Company), to each officer of the Company who has signed the
Registration Statement and to each person, if any, who controls the Company or
the Trust within the meaning of the Act.
7. Representations and Agreements to Survive Delivery. All
--------------------------------------------------
representations, warranties, and agreements of the Offerors herein or in
certificates delivered pursuant hereto, and the agreements of the Offerors and
the Underwriter contained in Section 6 hereof shall remain operative and in full
force and effect regardless of any investigation made by the Underwriter or on
the Underwriter's behalf or any controlling person thereof, or the Company or
any of its officers, directors, or controlling persons or the Trust or any if
its trustees, or controlling persons and shall survive delivery of, and payment
for, the Capital Securities to and by the Underwriter hereunder.
-32-
8. Effective Date of this Agreement and Termination.
------------------------------------------------
(a) This Agreement shall become effective at 10:00 a.m., Central time,
on the first full business day following the effective date of the Registration
Statement, or at such earlier time after the effective time of the Registration
Statement as the Underwriter in its discretion shall first release the Capital
Securities for sale to the public; provided, that if the Registration Statement
is effective at the time this Agreement is executed, this Agreement shall become
effective at such time as the Underwriter in its discretion shall first release
the Capital Securities for sale to the public. For the purpose of this Section,
the Capital Securities shall be deemed to have been released for sale to the
public upon release by the Underwriter of the publication of a newspaper
advertisement relating thereto or upon release by the Underwriter of telexes
offering the Capital Securities for sale to securities dealers, whichever shall
first occur. By giving notice as hereinafter specified before the time this
Agreement becomes effective, the Underwriter, the Trust or the Company may
prevent this Agreement from becoming effective without liability of any party to
any other party, except that the provisions of Section 4(a)(viii) and Section 6
hereof shall at all times be effective.
(b) The Underwriter shall have the right to terminate this Agreement
by giving notice as hereinafter specified at any time at or prior to the Closing
Date, if (i) either Offeror shall have failed, refused or been unable, at or
prior to the Closing Date, to perform any agreement on its part to be performed
hereunder, (ii) any other condition of the Underwriter's obligations hereunder
is not fulfilled, (iii) trading in securities on the New York Stock Exchange or
the Nasdaq Stock Market shall have been suspended or limited or minimum prices
shall have been established on such Exchange or System, (iv) a banking
moratorium shall have been declared by Federal, California, Minnesota or New
York authorities, or (v) there has occurred any material adverse change in the
financial markets in the United States or an outbreak of major hostilities (or
an escalation thereof) in which the United States is involved, a declaration of
war by Congress, any other substantial national or international calamity or any
other event or occurrence of a similar character shall have occurred since the
execution of this Agreement that, in the Underwriter's judgment, makes it
impractical or inadvisable to proceed with the completion of the sale of and
payment for the Capital Securities. Any such termination shall be without
liability of any party to any other party except that the provisions of Section
4(a)(viii) and Section 6 hereof shall at all times be effective.
(c) If the Underwriter elect to prevent this Agreement from becoming
effective or to terminate this Agreement as provided in this Section, the
Company shall be notified promptly by the Underwriter by telephone or telegram,
confirmed by letter. If the Trust or the Company elects to prevent this
Agreement from becoming effective, the Underwriter shall be notified by the
Trust or the Company by telephone or telegram, confirmed by letter.
-33-
9. Default by the Company. If the Trust shall fail at the Closing Date to
----------------------
sell and deliver the number of Capital Securities which it is obligated to sell
hereunder or the Company fails to deliver the number of Junior Subordinated
Debentures required to be delivered pursuant to the Trust Agreement, then this
Agreement shall terminate without any liability on the part of any non-
defaulting party. No action taken pursuant to this Section shall relieve the
Trust or the Company so defaulting from liability, if any, in respect of such
default.
10. Information Furnished by Underwriter. The statements set forth in the
------------------------------------
last paragraph of the cover page and in the [list relevant paragraphs] under the
caption "Underwriting" in any Preliminary Prospectus and in the Prospectus
constitute the written information furnished by the Underwriter or on its behalf
referred to in Section 2 and Section 6 hereof.
11. Notices. Except as otherwise provided herein, all communications
-------
hereunder shall be in writing or by telegraph and, if to the Underwriter, shall
be mailed, telegraphed or delivered to ▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc., ▇▇▇▇▇ ▇▇▇▇▇▇▇ Tower,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇; if to the Company, shall
be mailed, telegraphed or delivered to it at, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇; if to the Trust, shall be
mailed, telegraphed or delivered to it at ▇▇▇▇▇▇ Square North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ 0001, Attention: Corporate Trust
Administration. All notices given by telegram shall be promptly confirmed by
letter. Any notice to the Trust shall also be copied to the Company at the
address previously stated, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇. Any party to this
Agreement may change such address for notices by sending to the parties to this
Agreement written notice of a new address for such purpose.
12. Persons Entitled to Benefit of Agreement. This Agreement shall inure
----------------------------------------
to the benefit of and be binding upon the parties hereto and their respective
successors and assigns and the controlling persons, officers and directors
referred to in Section 6. Nothing in this Agreement is intended or shall be
construed to give to any other person, firm or corporation any legal or
equitable remedy or claim under or in respect of this Agreement or any provision
herein contained. The term "successors and assigns" as herein used shall not
include any purchaser, as such purchaser, of any of the Capital Securities from
the Underwriter.
13. Governing Law. This Agreement shall be governed by and construed in
-------------
accordance with the laws of the State of Minnesota.
[Signature Page Follows]
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Please sign and return to the Company the enclosed duplicates of this
letter whereupon this letter will become a binding agreement between the Company
and the Underwriter in accordance with its terms.
Very truly yours,
GREATER BAY BANCORP.
By____________________________
Its_________________________
GBB CAPITAL I
By____________________________
Its_________________________
Confirmed as of the date first
above mentioned.
▇▇▇▇▇ ▇▇▇▇▇▇▇ INC.
By____________________________
Managing Director
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