Execution Copy
6,000,000 SHARES
GOLDEN STATE BANCORP INC.
COMMON STOCK PAR VALUE $1.00 PER SHARE
REGISTRATION AGREEMENT
December 13, 2000
CREDIT SUISSE FIRST BOSTON CORPORATION
Eleven Madison Avenue
New York, NY 10010-3629
CREDIT SUISSE FIRST BOSTON INTERNATIONAL
C/O CREDIT SUISSE FIRST BOSTON CORPORATION
Eleven Madison Avenue
New York, NY 10010-3629
Dear Sirs and Mesdames:
1. Introductory. (a) Underlying SAILS Transactions. GSB
Investments Corp. (the "STOCKHOLDER"), a wholly-owned subsidiary of Mafco
Holdings Inc. ("MAFCO"), Mafco, Credit Suisse First Boston International,
as purchaser, and Credit Suisse First Boston Corporation, as agent, (1)
have executed an agreement entitled "Terms and Conditions for Private
SAILS" (the "FIRST TERM Sheet") dated December 13, 2000, relating to
forward sales by the Stockholder of up to 3,000,000 shares of Common Stock,
par value $1.00 per share, (the "COMMON STOCK") of Golden State Bancorp
Inc. (the "COMPANY") to Credit Suisse First Boston International and (2)
plan to execute an agreement entitled "Terms and Conditions for Private
SAILS" (the "SECOND TERM SHEET") in the future, relating to forward sales
by the Stockholder of up to 3,000,000 shares of Common Stock of the Company
to Credit Suisse First Boston International (the transactions in clause (1)
and (2) together, the "SAILS TRANSACTIONS"). As used herein, the term
"EXECUTED TERM SHEETS" shall mean, initially, the First Term Sheet and,
after the Second Term Sheet is executed, the First and Second Term Sheets
together. In connection with hedging its exposure under the SAILS
Transactions, Credit Suisse First Boston Corporation and Credit Suisse
First Boston International may execute, from time to time, sales (the
"SALES") of up to 6,000,000 shares of Common Stock (the "SECURITIES")
pursuant to two registration statements each on Form S-3 under the
Securities Act of 1933, as amended (the "ACT"). Credit Suisse First Boston
Corporation and Credit Suisse First Boston International are herein
referred to as the "CSFB ENTITIES". In connection with the SAILS
Transactions and the Sales, the Stockholder, Mafco, the Company and the
CSFB Entities agree with each other as follows:
(b) Registration Statement and Prospectus. The Company has
prepared and filed with the Securities and Exchange Commission (the
"COMMISSION") in accordance with the Act, a registration statement on Form
S-3 (File Number 333-37322) relating to shares of Common Stock, 1,356,323
shares (the "FIRST SHELF SECURITIES") of which remain available for sale
under such registration statement and a registration statement on Form S-3
(File Number 333-50756) including a prospectus, relating to 6,000,000
shares of Common Stock (the "SECOND SHELF SECURITIES" and, together with
the First Shelf Securities, the "SHELF SECURITIES"). The Company proposes
to file with the Commission pursuant to Rule 429 under the Act a prospectus
supplement (the "PROSPECTUS SUPPLEMENT") specifically relating to the
Sales. The registration statements as amended to the date of this Agreement
are hereinafter referred to as the "REGISTRATION STATEMENTS". The related
prospectus covering the Shelf Securities in the form first used to confirm
sales of the Securities is hereinafter referred to as the "BASIC
PROSPECTUS". The Basic Prospectus as supplemented by the Prospectus
Supplement in the form first used to confirm sales of the Securities is
hereinafter referred to as the "PROSPECTUS". Any reference in this
Agreement to the Registration Statements, the Basic Prospectus or the
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the
Act which were filed under the Securities Exchange Act of 1934, as amended,
and the rule and regulations of the Commission thereunder (collectively,
the "EXCHANGE ACT") on or before the date of this Agreement or the date of
the Basic Prospectus or the Prospectus, as the case may be; and any
reference to "amend", "amendment" or "supplement" with respect to the
Registration Statements, the Basic Prospectus or the Prospectus shall be
deemed to refer to and include the filing of any documents under the
Exchange Act after the date of this Agreement, or the date of the Basic
Prospectus or the Prospectus, as the case may be, which are deemed to be
incorporated by reference therein.
2. Representations and Warranties of the Company, the Stockholder
and Mafco. (a) The Company represents and warrants to, and agrees with, the
CSFB Entities that:
(i) The Registration Statements have been declared
effective by the Commission under the Act; no stop order
suspending the effectiveness of either of the Registration
Statements has been issued and no proceeding for that purpose has
been instituted or, to the knowledge of the Company, threatened by
the Commission; and the Registration Statements and Prospectus (as
amended or supplemented if the Company shall have furnished any
amendments or supplements thereto) comply, or will comply, as the
case may be, in all material respects with the Act and do not and
will not, as of the applicable effective date as to each of the
Registration Statements and any amendment thereto and as of the
date of the Prospectus and any amendment or supplement thereto,
contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances
under which they were made, not misleading, and the Prospectus, as
amended or supplemented on each date until the final Closing Date
(as defined in the Executed Term Sheets), will not contain any
untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; except
that the foregoing representations and warranties shall not apply
to statements or omissions in the Registration Statements or the
Prospectus made in reliance upon and in conformity with
information relating to the CSFB Entities furnished to the Company
in writing by the CSFB Entities expressly for use therein.
(ii) The documents incorporated by reference in the
Prospectus, when they were filed with the Commission, conformed in
all material respects to the requirements of the Exchange Act, and
none of such documents contained an untrue statement of a material
fact or omitted to state a material fact necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading; and any further documents so filed
and incorporated by reference in the Prospectus, when such
documents are filed with the Commission, will conform in all
material respects to the requirements of the Exchange Act, as
applicable, and will not contain 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 under which
they were made, not misleading.
(iii) The Company has been duly incorporated and is an
existing corporation in good standing under the laws of the State
of Delaware, with power and authority (corporate and other) to own
its properties and conduct its business as described in the
Prospectus; and the Company is duly qualified to do business as a
foreign corporation in good standing in all other jurisdictions in
which its ownership or lease of property or the conduct of its
business requires such qualification, except where the failure to
so qualify would not be reasonably likely to have a material
adverse effect on the condition (financial or other), business,
properties or results of operations of the Company and its
subsidiaries, taken as a whole(a "MATERIAL ADVERSE EFFECT").
(iv) Each subsidiary of the Company that is a significant
subsidiary (as defined in Section 1-02(w) of Regulation S-X
("REGULATION S-X") of the Commission) of the Company (each of such
corporations or other legal entities being hereinafter referred to
as a "Subsidiary" and all such corporations or other legal
entities being, collectively, the "SUBSIDIARIES") has been duly
incorporated and is an existing corporation in good standing under
the laws of the jurisdiction of its incorporation, with power and
authority (corporate and other) to own its properties and conduct
its business as described in the Prospectus; and each Subsidiary
of the Company is duly qualified to do business as a foreign
corporation in good standing in all other jurisdictions in which
its ownership or lease of property or the conduct of its business
requires such qualification except where the failure to so qualify
would not be reasonably likely to have a Material Adverse Effect;
all of the issued and outstanding capital stock of each Subsidiary
of the Company has been duly authorized and validly issued and is
fully paid and nonassessable; and the capital stock of each
Subsidiary owned by the Company, directly or through subsidiaries,
is owned free from liens, encumbrances and defects.
(v) All outstanding shares of capital stock of the
Company have been duly authorized and validly issued, fully paid
and nonassessable and conform in all material respects to the
description thereof contained in the Prospectus.
(vi) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and
any person that would give rise to a valid claim against the
Company or any CSFB Entity for a brokerage commission, finder's
fee or other like payment.
(vii) No consent, approval, authorization, or order of,
or filing with, any governmental agency or body or any court is
required to be obtained or made by the Company for the performance
by the Company of its obligations hereunder except such as have
been obtained and made under the Act and such as may be required
under state securities laws.
(viii) The execution, delivery and performance by the
Company of this Agreement, and the consummation of the
transactions herein contemplated by the Company will not result in
a breach or violation of any of the terms and provisions of, or
constitute a default under, (a) any statute, any rule, regulation
or order of any governmental agency or body or any court, domestic
or foreign, having jurisdiction over the Company or any Subsidiary
of the Company or any of their properties, or (b) any agreement or
instrument to which the Company or any such Subsidiary is a party
or by which the Company or any such Subsidiary is bound or to
which any of the properties of the Company or any such Subsidiary
is subject, or (c) the charter or by-laws of the Company or any
such Subsidiary, except in the case of clauses (a) or (b), for
such breaches, violations, defaults that would not be reasonably
likely to have a Material Adverse Effect.
(ix) This Agreement has been duly authorized, executed
and delivered by the Company.
(x) Except as disclosed in the Prospectus and except as
would not be reasonably likely to have a Material Adverse Effect,
the Company and its subsidiaries have good and marketable title to
all real properties and all other properties and assets owned by
them, in each case free from liens, encumbrances and defects that
would materially affect the value thereof or materially interfere
with the use made or to be made thereof by them; and except as
disclosed in the Prospectus, the Company and its subsidiaries hold
any leased real or personal property under valid and enforceable
leases with no exceptions that would materially interfere with the
use made or to be made thereof by them.
(xi) The Company and its Subsidiaries possess adequate
certificates, authorities or permits issued by appropriate
governmental agencies or bodies necessary to conduct the business
now operated by them and have not received any notice of
proceedings relating to the revocation or modification of any such
certificate, authority or permit that are reasonably likely to
have a Material Adverse Effect.
(xii) The Company and its Subsidiaries own, possess or
can acquire on reasonable terms, adequate trademarks, trade names
and other rights to inventions, know-how, patents, copyrights,
confidential information and other intellectual property
(collectively, "INTELLECTUAL PROPERTY RIGHTS") necessary to
conduct the business now operated by them, or presently employed
by them, and have not received any notice of infringement of or
conflict with asserted rights of others with respect to any
intellectual property rights that is reasonably likely to have a
Material Adverse Effect.
(xiii) Except as disclosed in the Prospectus, neither the
Company nor any of its subsidiaries is in violation of any
statute, any rule, regulation, decision or order of any
governmental agency or body or any court, domestic or foreign,
relating to the use, disposal or release of hazardous or toxic
substances or relating to the protection or restoration of the
environment or human exposure to hazardous or toxic substances
(collectively, "ENVIRONMENTAL LAWS"), owns or operates any real
property contaminated with any substance that is subject to any
environmental laws, is liable for any off-site disposal or
contamination pursuant to any environmental laws, or is subject to
any claim relating to any environmental laws, which violation,
contamination, liability or claim is reasonably likely to have a
Material Adverse Effect; and the Company is not aware of any
pending investigation which might lead to such a claim.
(xiv) Except as disclosed in the Prospectus, there are no
pending actions, suits or proceedings against or affecting the
Company, any of its subsidiaries or any of their respective
properties that are reasonably likely to have a Material Adverse
Effect, or would materially and adversely affect the ability of
the Company to perform its obligations under this Agreement, or
which are otherwise material in the context of the sale of the
Securities as described in the Prospectus; and no such actions,
suits or proceedings are threatened or, to the Company's
knowledge, contemplated.
(xv) KPMG LLP ("KPMG") are independent public accountants
with respect to the Company as required by the Act.
(xvi) The financial statements included in the
Registration Statements and the Prospectus present fairly the
financial position of the Company and its consolidated
subsidiaries as of the dates shown and their results of operations
and cash flows for the periods shown, and such financial
statements have been prepared in conformity with the generally
accepted accounting principles in the United States applied on a
consistent basis; and the schedules included in the Registration
Statements present fairly the information required to be stated
therein.
(xvii) Except as disclosed in the Prospectus, since the
date of the latest audited financial statements included in the
Prospectus there has been no material adverse change, nor any
development or event involving a prospective material adverse
change, in the condition (financial or other), business,
properties or results of operations of the Company and its
subsidiaries taken as a whole, and, except as disclosed in or
contemplated by the Prospectus, there has been no dividend or
distribution of any kind declared, paid or made by the Company on
any class of its capital stock.
(xvii) The Company is not an "investment company" as
defined in the Investment Company Act of 1940.
(b) Each of the Stockholder and Mafco, severally represents and
warrants to, and agrees with, the CSFB Entities that:
(i) It has duly authorized, executed and delivered this
Agreement.
(ii) The Registration Statements and Prospectus (as
amended or supplemented if the Company shall have furnished any
amendments or supplements thereto) comply, or will comply, as the
case may be, in all material respects with the Act and do not and
will not, as of the applicable effective date as to each of the
Registration Statements and any amendment thereto and as of the
date of the Prospectus and any amendment or supplement thereto,
contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances
under which they were made, not misleading, and the Prospectus, as
amended or supplemented on each date until the final Closing Date
(as defined in the Executed Term Sheets), will not contain any
untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided
that the foregoing representations and warranties shall apply only
to statements or omissions in the Registration Statements or the
Prospectus made in reliance upon and in conformity with
information relating to the Stockholder or Mafco furnished to the
Company by the Stockholder or Mafco expressly for use therein.
(iii) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between it and any person
that would give rise to a valid claim against the Company or the
CSFB Entities for a brokerage commission, finder's fee or other
like payment.
3. Sales of Common Stock. It is understood that the CSFB Entities
propose to offer the Securities for sale to the public as set forth in the
Prospectus.
4. Certain Agreements of the Company, the Stockholder and Mafco.
The Company agrees with CSFB Entities, the Stockholder and Mafco that:
(a) The Company will file the Prospectus, the form of
which is consented to by the CSFB Entities (which consent shall
not be unreasonably withheld), with the Commission pursuant to and
in accordance with Rule 429 under the Act not later than the
second business day following the execution and delivery of this
Agreement. The Company will advise the CSFB Entities promptly of
any such filing pursuant to Rule 429.
(b) The Company will advise the CSFB Entities promptly of
any proposal to amend or supplement either of the Registration
Statements as filed or the Prospectus and will file such
amendments or supplements, the form of which is consented to by
the CSFB Entities (which consent shall not be unreasonably
withheld); and the Company will also advise the CSFB Entities
promptly of any amendment or supplementation of either of the
Registration Statements or the Prospectus and of the institution
by the Commission of any stop order proceedings in respect of
either of the Registration Statements and will use its reasonable
best efforts to prevent the issuance of any such stop order and to
obtain as soon as possible its lifting, if issued.
(c) If, at any time until the Final Closing Date or such
later date when a prospectus relating to the Securities is
required to be delivered under the Act in connection with sales by
a CSFB Entity or dealer, any event occurs as a result of which the
Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it
is necessary at any time to amend the Prospectus to comply with
the Act, the Company will promptly notify the CSFB Entities of
such event and will promptly prepare and file with the Commission,
at its own expense, an amendment or supplement which will correct
such statement or omission or an amendment which will effect such
compliance. Neither the CSFB Entities' consent to, nor the CSFB
Entities' delivery of, any such amendment or supplement shall
constitute a waiver of any of the additional agreements set forth
in Section 5.
(d) As soon as practicable, but not later than the
Availability Date (as defined below), the Company will make
generally available to its securityholders an earnings statement
covering a period of at least 12 months beginning after the
effective date (the "EFFECTIVE DATE") of the Registration
Statement which will satisfy the provisions of Section 11(a) of
the Act. For the purpose of the preceding sentence, "Availability
Date" means the 45th day after the end of the fourth fiscal
quarter following the fiscal quarter that includes such Effective
Date, except that, if such fourth fiscal quarter is the last
quarter of the Company's fiscal year, "Availability Date" means
the 90th day after the end of such fourth fiscal quarter.
(e) The Company will furnish to the CSFB Entities copies
of the Registration Statements (one of each of which will be
signed and will include all exhibits), and, so long as a
prospectus relating to the Securities is required to be delivered
under the Act in connection with sales by a CSFB Entity or dealer,
the Prospectus and all amendments and supplements to such
documents, in each case in such quantities as the CSFB Entities
request. The Prospectus shall be so furnished on or prior to 3:00
P.M., New York time, on the business day following the execution
and delivery of this Agreement. All other such documents shall be
so furnished as soon as available. The Company will pay the
expenses of printing and distributing to the CSFB Entities all
such documents.
(f) The Company will arrange for the qualification of the
Securities for sale under the laws of such jurisdictions as the
CSFB Entities designate and will continue such qualifications in
effect so long as required for the distribution; provided,
however, that the Company is not obliged to qualify as a foreign
corporation in any jurisdiction in which it is not so qualified or
take any action that would subject it to service of process in any
jurisdiction in which it is not presently subject.
(g) During the period of five years hereafter, the
Company will furnish to the CSFB Entities as soon as practicable
after the end of each fiscal year, a copy of its annual report to
stockholders for such year; and the Company will furnish to the
CSFB Entities from time to time, such other information concerning
the Company as the CSFB Entities may reasonably request.
(h) The Company will pay all expenses incident to the
performance of the obligations of the Stockholder and the
obligations of the Company under this Agreement, for any filing
fees and other expenses (including fees and disbursements of
counsel) incurred in connection with qualification of the
Securities for sale under the laws of such jurisdictions as the
CSFB Entities designates and the printing of memoranda relating
thereto, for any travel expenses of the Company's officers and
employees and any other expenses of the Company in connection with
attending or hosting meetings with prospective purchasers of the
Securities and for expenses incurred in distributing the
Prospectus (including any amendments and supplements thereto) to
the CSFB Entities.
(i) The Company, during the period when a prospectus
relating to the Securities is required to be delivered under the
Act, will file promptly all documents required to be filed with
the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act. The Company also will furnish the CSFB Entities
with copies of all investor relations news releases. The Company
will immediately notify the CSFB Entities of any downgrading in
the rating of any debt securities of the Company, or any proposal
to downgrade the rating of any debt securities of the Company, by
any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Act), as soon as the
Company learns of such downgrading or proposal to downgrade.
5. Additional Covenants of the Company. The Company and the
Stockholder, as applicable, agree that:
(a) On the first settlement date for a sale pursuant to
the Prospectus (the "FIRST REPRESENTATION DATE") and on each date
thereafter that is the earlier of the date on which the
Registration Statement or Prospectus is amended or supplemented
and the thirty-first day following the most recent Representation
Date (each such date, including the First Representation Date, a
"REPRESENTATION DATE") until the final Closing Date under the
Executed Term Sheets the Company agrees to cause KPMG to deliver
to the CSFB Entities a letter, dated such Representation Date
confirming that they are independent public accountants within the
meaning of the Act and the applicable published rules and
regulations thereunder (the "RULES AND REGULATIONS") and stating
to the effect that:
(i) in their opinion the financial statements
and schedules examined by them and included or
incorporated in the Registration Statements comply as to
form in all material respects with the applicable
accounting requirements of the Act and the related
published Rules and Regulations;
(ii) they have performed the procedures
specified by the American Institute of Certified Public
Accountants for a review of interim financial information
as described in Statement of Auditing Standards No. 71,
Interim Financial Information, on the unaudited financial
statements included or incorporated in the Registration
Statements;
(iii) on the basis of the review referred to in
clause (ii) above, a reading of the latest available
interim financial statements of the Company, inquiries of
officials of the Company who have responsibility for
financial and accounting matters and other specified
procedures, nothing came to their attention that caused
them to believe that:
(A) the unaudited financial statements
included or incorporated in the Registration
Statements do not comply as to form in all
material respects with the applicable accounting
requirements of the Act and the related
published Rules and Regulations or any material
modifications should be made to such unaudited
financial statements for them to be in
conformity with generally accepted accounting
principles;
(B) at the date of the latest available
balance sheet read by such accountants, or at a
subsequent specified date not more than three
business days prior to the date of such letter,
there was any increase in the consolidated
borrowings (defined as the sum of (i) borrowings
from the Federal Home Loan Bank, (ii) securities
sold under agreements to repurchase and (iii)
other borrowings) or decreases in the
stockholders' equity or total assets of the
Company, as compared with amounts shown on the
latest balance sheet included in the Prospectus;
or
(C) for the period from the closing
date of the latest income statement included or
incorporated in the Prospectus to the closing
date of the latest available income statement
read by such accountants there were any
decreases, as compared with the corresponding
period of the previous year in consolidated net
interest income, total non-interest income or
net income;
except in all cases set forth in clauses (B) and (C)
above for changes, increases or decreases which the
Prospectus discloses have occurred or may occur or which
are described in such letter; and
(iv) they have compared specified dollar amounts
(or percentages derived from such dollar amounts) and
other financial information contained in the Registration
Statements (in each case to the extent that such dollar
amounts, percentages and other financial information are
derived from the general accounting records of the
Company and its subsidiaries subject to the internal
controls of the Company's accounting system or are
derived directly from such records by analysis or
computation) with the results obtained from inquiries, a
reading of such general accounting records and other
procedures specified in such letter and have found such
dollar amounts, percentages and other financial
information to be in agreement with such results, except
as otherwise specified in such letter.
(b) On each Representation Date, the Company shall cause
to be delivered to the CSFB Entities an opinion, dated such
Representation Date, of Christie S. Flanagan, Esq., Executive Vice
President and General Counsel of the Company, to the effect that:
(i) The Company has been duly incorporated and
is an existing corporation in good standing under the
laws of the State of Delaware, with corporate power and
authority to own its properties and conduct its business
as described in the Prospectus;
(ii) All outstanding shares of the Common Stock
of the Company have been duly authorized and validly
issued, are fully paid and nonassessable and conform in
all material respects to the description thereof
contained in the Prospectus;
(iii) The Company is not an "investment company"
as defined in the Investment Company Act of 1940.
(iv) No consent, approval, authorization or
order of, or filing with, any governmental agency or body
or, to such counsel's knowledge, any court is required to
be obtained or made by the Company for the performance by
the Company of its obligations hereunder or the
consummation of the transactions contemplated by this
Agreement in connection with the sale of the Securities
as described in the Prospectus, except such as have been
obtained and made under the Act and such as may be
required under state securities laws or pursuant to the
rules of the National Association of Securities Dealers;
(v) The execution, delivery and performance of
this Agreement and the consummation of the transactions
herein 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 rule,
regulation or, to such counsel's knowledge, order of any
governmental agency or body or any court having
jurisdiction over the Company or any subsidiary of the
Company or any of their properties, or any agreement or
instrument known to such counsel to which the Company or
any such subsidiary is a party or by which the Company or
any such subsidiary is bound or to which any of the
properties of the Company or any such subsidiary is
subject, or the charter or by-laws of the Company or any
such subsidiary;
(vi) Each of the Registration Statements was
declared effective under the Act as of the date and time
specified in such opinion, the Prospectus was filed with
the Commission pursuant to the subparagraph of Rule 429
under the Act specified in such opinion on the date
specified therein, and, to the best of the knowledge of
such counsel, no stop order suspending the effectiveness
of either of the Registration Statements or any part
thereof has been issued and no proceedings for that
purpose have been instituted or are pending or
contemplated under the Act, and each of the Registration
Statements and the Prospectus, and each amendment or
supplement thereto, as of their respective effective or
issue dates, complied as to form in all material respects
with the requirements of the Act and the Rules and
Regulations; the descriptions in the Registration
Statements and Prospectus of statutes, legal and
governmental proceedings and contracts and other
documents are accurate and fairly present in all material
respects the information required to be shown; and such
counsel does not know of any legal or governmental
proceedings required to be described in the Registration
Statements or the Prospectus which are not described as
required or of any contracts or documents of a character
required to be described in the Registration Statements
or the Prospectus or to be filed as exhibits to either of
the Registration Statements which are not described and
filed as required; it being understood that such counsel
need express no opinion as to the financial statements or
other financial or statistical data contained or
incorporated by reference in the Registration Statements
or the Prospectus; and
(vii) In addition, such opinion shall also
contain a statement that such counsel has participated in
conferences with officers and representatives of the
Company and representatives of the independent public
accountants for the Company at which the contents of the
Prospectus (including the documents incorporated therein)
and related matters were discussed and, although such
counsel is not passing upon and does not assume
responsibility for the accuracy, completeness or fairness
of the statements contained in the Registration
Statements or the Prospectus and has not made any
independent check or verification thereof, on the basis
of the foregoing, no facts have come to the attention of
such counsel which have led such counsel to believe that
the Registration Statements or any amendment thereto, as
of its effective date, contained any untrue statement of
a material fact or omitted to state any material fact
required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus
or any amendment or supplement thereto, as of its issue
date or as of such Representation Date, contained any
untrue statement of a material fact or omitted to state
any material fact necessary in order to make the
statements therein, in the light of the circumstances
under which they were made, not misleading (it being
understood that such counsel need not express an opinion
as to the financial statements or other financial or
statistical data contained in or incorporated by
reference in the Registration Statements or the
Prospectus);
(viii) This Agreement has been duly authorized,
executed and delivered by the Company.
(c) On the Initial Representation Date, the Stockholder
and Mafco shall cause to be delivered to the CSFB Entities an
opinion, dated such Initial Representation Date, of Skadden, Arps,
Slate, Meagher & Flom LLP, counsel for the Stockholder, to the
effect that:
(i) No consent, approval, license, authorization
or validation of, or filing, qualification or
registration with, any court, regulatory body,
administrative agency or governmental body of the State
of Delaware, the State of New York or the United States
of America having jurisdiction over the Stockholder or
Mafco under Applicable Laws (as defined below), which has
not been obtained or taken and is not in full force and
effect, is required to authorize, or is required in
connection with, the execution, delivery or performance
of this Agreement;
(ii) The execution, delivery and performance of
this Agreement and the performance of its obligations
hereunder will not (i) constitute a violation of, or a
breach or default under, the terms of any of the
agreements or instruments identified on a schedule to
such counsel's opinion, (ii) violate or conflict with, or
result in any contravention of, any Applicable Law or any
judgments, orders or decrees identified on a schedule to
such counsel's opinion or (iii) constitute a violation of
the charter or by-laws of the Stockholder or Mafco. As
used herein "Applicable Laws" means the General
Corporation Law of the State of Delaware and those laws,
rules and regulations of the State of New York and the
United States of America, in each case, which, in such
counsel's experience, are normally applicable to
transactions of the type contemplated by this Agreement
(other than the United States federal securities laws,
state securities or blue sky laws, antifraud laws and the
rules and regulations of the National Association of
Securities Dealers, Inc.), without such counsel having
made any special investigation as to the applicability of
any specific law, rule or regulation. Such counsel need
not express any opinion, however, with respect to whether
the execution, delivery or performance by the Stockholder
or Mafco of this Agreement will constitute a violation
of, or a default under, any covenant, restriction or
provision with respect to financial ratios or tests or
any aspect of the financial condition or results of
operations of the Stockholder or Mafco or any of their
subsidiaries.
(iii) This Agreement has been duly authorized,
executed and delivered by each of the Stockholder and
Mafco.
(d) On each Representation Date the Company shall furnish
the CSFB Entities a certificate, dated such Representation Date,
of the President or any Vice President and a principal financial
or accounting officer of the Company in which such officers shall
state, to the best of their knowledge after reasonable
investigation, that: the representations and warranties of the
Company in this Agreement are true and correct as of and as if
made on such Representation Date; the Company has complied with
all agreements on its part to be performed hereunder at or prior
to such Delivery Date; no stop order suspending the effectiveness
of either of the Registration Statements has been issued and no
proceedings for that purpose have been instituted or are
contemplated by the Commission; and, subsequent to the date of the
most recent financial statements in the Prospectus, there has been
no material adverse change, nor any development or event involving
a prospective material adverse change, in the condition (financial
or other), business, properties or results of operations of the
Company and its subsidiaries taken as a whole except as set forth
in or contemplated by the Prospectus or as described in such
certificate.
(e) The Company agrees to cause the chief financial
officer and either the general counsel or a senior counsel of the
Company to participate in weekly telephonic due diligence sessions
with representatives of the CSFB Entities and their counsel until
the Final Closing Date.
(f) On the Initial Representation Date, the Stockholder
and Mafco shall cause to be delivered to the CSFB entities an
opinion, dated such Initial Representation Date, of Paul, Weiss,
Rifkind, Wharton & Garrison, special counsel for the Stockholder,
to the effect that:
(i) The execution, delivery and performance of
this Agreement and the performance of its obligations
hereunder by each of the Stockholder and Mafco will not
constitute a violation of, or a breach or default under,
the terms of any of the agreements or instruments
identified on the schedule to such counsel's opinion.
Such counsel need not express any opinion, however, with
respect to whether the execution, delivery or performance
by the Stockholder or Mafco of this Agreement will
constitute a violation of, or a default under, any
covenant, restriction or provision with respect to
financial ratios or tests or any aspect of the financial
condition or results of operations of the Stockholder or
Mafco or any of their subsidiaries.
The Stockholder and the Company will furnish the CSFB Entities with such
conformed copies of such opinions, certificates, letters and documents as
the CSFB Entities reasonably request. The CSFB Entities may in their sole
discretion waive compliance with any obligations of the Company hereunder.
6. Indemnification and Contribution. (a) The Company will
indemnify and hold harmless each CSFB Entity, its partners, directors and
officers and each person, if any, who controls such CSFB Entity within the
meaning of Section 15 of the Act, against any losses, claims, damages or
liabilities, joint or several, to which such CSFB Entity may become
subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of any material
fact contained in either of the Registration Statements, the Prospectus, or
any amendment or supplement thereto, 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 each CSFB Entity for any legal or other
expenses reasonably incurred by such CSFB Entity in connection with
investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred; provided, however, that the Company
will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement in or omission or alleged omission
from any of such documents in reliance upon and in conformity with written
information furnished to the Company by any CSFB Entity specifically for
use therein, it being understood and agreed that the only such information
furnished by any CSFB Entity consists of the information described as such
in subsection (c) below.
(b) Mafco and the Stockholder, jointly and severally, will
indemnify and hold harmless each CSFB Entity, its partners, directors and
officers and each person, if any, who controls such CSFB Entity within the
meaning of Section 15 of the Act, against any losses, claims, damages or
liabilities, joint or several, to which such CSFB Entity may become
subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of any material
fact contained in either of the Registration Statements, the Prospectus, or
any amendment or supplement thereto 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 each CSFB Entity for any legal or other
expenses reasonably incurred by such CSFB Entity in connection with
investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred, in each case to the extent, but only
to the extent, that any such loss, liability, claim, damage or expense
arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and
in conformity with information provided to the Company by the Stockholder
or Mafco expressly for use therein;
(c) Each CSFB Entity will jointly and severally, indemnify and
hold harmless the Company, its directors and officers and each person, if
any, who controls the Company within the meaning of Section 15 of the Act,
and each of Mafco and the Stockholder against any losses, claims, damages
or liabilities to which the Company, Mafco or the Stockholder may become
subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of any material
fact contained in either of the Registration Statements, the Prospectus, or
any amendment or supplement thereto or arise out of or are based upon the
omission or the alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements 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 reliance upon and in conformity with written
information furnished to the Company by such CSFB Entity specifically for
use therein, and will reimburse any legal or other expenses reasonably
incurred by the Company, Mafco and the Stockholder in connection with
investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred, it being understood and agreed that
the only such information furnished by any CSFB Entity consists of the
following information in the Prospectus furnished on behalf of the CSFB
Entities: the information contained in the second paragraph under the
caption "Supplemental Plan of Distribution".
(d) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against an indemnifying
party under subsection (a), (b) or (c) above, notify the indemnifying party
of the commencement thereof; but the omission so to notify the indemnifying
party will not relieve the indemnifying party from any liability which it
may have to any indemnified party otherwise than under subsection (a), (b)
or (c) above unless and to the extent the indemnifying party did not
otherwise learn of such action and such failure to notify results in the
forfeiture by the indemnifying party of substantial rights and defenses. In
case any such action is brought against any indemnified party and it
notifies an indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the
extent that it may wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party),
and after notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof, the indemnifying party will
not be liable to such indemnified party under this Section for any legal or
other expenses subsequently incurred by such indemnified party in
connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party unless such settlement (i) includes an unconditional
release of such indemnified party from all liability on any claims that are
the subject matter of such action and (ii) does not include a statement as
to, or an admission of, fault, culpability or a failure to act by or on
behalf of an indemnified party.
(e) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a), (b) or (c) 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), (b) or (c) above (i) in such proportion as is appropriate
to reflect the relative benefits received by the Company and the
Stockholder on the one hand and the CSFB Entities on the other from the
offering of the Securities or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company and the Stockholder on
the one hand and the CSFB Entities on the other in connection with the
statements or omissions which 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 Stockholder on the one
hand and the CSFB Entities on the other shall be deemed to be in the same
proportion as the total Aggregate Contract Price (as defined in the
Executed Term Sheets) under the Executed Term Sheets bears to the total
value to the CSFB Entities under the Executed Term Sheets on the date
thereof. The relative fault 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 Stockholder or the CSFB
Entities and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such untrue statement or omission.
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 any action or claim which is the subject of this subsection (e).
Notwithstanding the provisions of this subsection (e), no CSFB Entity shall
be required to contribute any amount in excess of the amount by which the
total price at which the Securities sold under the Prospectus by it and
distributed to the public were offered to the public exceeds the amount of
any damages which such CSFB Entity 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. The
CSFB Entities' obligations in this subsection (e) to contribute are several
in proportion to their respective underwriting obligations and not joint.
(f) The obligations of the Company, Mafco and the Stockholder
under this Section shall be in addition to any liability which the Company,
Mafco and the Stockholder may otherwise have and shall extend, upon the
same terms and conditions, to each person, if any, who controls any CSFB
Entity within the meaning of the Act; and the obligations of the CSFB
Entities under this Section shall be in addition to any liability which the
respective CSFB Entities may otherwise have and shall extend, upon the same
terms and conditions, to each director of the Company, to each officer of
the Company who has signed either of the Registration Statements and to
each person, if any, who controls the Company within the meaning of the
Act.
7. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of Mafco, the Stockholder, of the Company or its officers and of
the CSFB Entities set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation, or
statement as to the results thereof, made by or on behalf of any CSFB
Entity, the Stockholder, the Company, Mafco or any of their respective
representatives, officers or directors or any controlling person, and will
survive all Closing Dates under the Executed Term Sheets.
8. Notices. All communications hereunder will be in writing and,
if sent to the CSFB Entities, will be mailed, delivered or telegraphed and
confirmed to or care of Credit Suisse First Boston Corporation, Eleven
Madison Avenue, New York, NY 10010-3629, Attention: Transactions Advisory
Group, or, if sent to the Company, will be mailed, delivered or telegraphed
and confirmed to it at 135 Main Street, San Francisco, California 94105,
Attention: Christie S. Flanagan, or, if sent to the Stockholder or Mafco,
will be mailed, delivered or telegraphed and confirmed to it at 35 East
62nd Street, New York, New York 10021, Attention: General Counsel.
9. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 6,
and no other person will have any right or obligation hereunder.
10. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
11. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
The Company hereby submits to the non-exclusive jurisdiction of
the Federal and state courts in the Borough of Manhattan in The City of New
York in any suit or proceeding arising out of or relating to this Agreement
or the transactions contemplated hereby.
If the foregoing is in accordance with the CSFB Entities'
understanding of our agreement, kindly sign and return to the Company one
of the counterparts hereof, whereupon it will become a binding agreement
among the Stockholder, Mafco, the Company and the CSFB Entities in
accordance with its terms.
Very truly yours,
GSB INVESTMENTS CORP.
By: /s/ Todd J. Slotkin
-----------------------------------------
Name: Todd J. Slotkin
Title: Executive Vice President and
Chief Financial Officer
MAFCO HOLDINGS INC.
By: /s/ Todd J. Slotkin
-------------------------------------
Name: Todd J. Slotkin
Title: Executive Vice President and
Chief Financial Officer
GOLDEN STATE BANCORP INC.
By: /s/ Christie S. Flanagan
-------------------------------------
Name: Christie S. Flanagan
Title: Executive Vice President and
General Counsel
The foregoing Registration Agreement is
hereby confirmed and accepted as of
the date first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ Joseph D. Fashano
---------------------------------------
Name: Joseph D. Fashano
Title: Director
CREDIT SUISSE FIRST BOSTON INTERNATIONAL
By: /s/ Edmond Curtin
---------------------------------------
Name: Edmond Curtin
Title: Director - Legal and Compliance
Department
By: /s/ David Bonham
---------------------------------------
Name: David Bonham
Title: Director - Legal and Compliance
Department
