SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): November 5, 1999
BAY VIEW CAPITAL CORPORATION
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(Exact name of registrant as specified in its charter)
Delaware 001-14879 94-3078031
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(State or other (Commission File Number) (IRS Employer
jurisdiction of Identification
incorporation) No.)
1840 Gateway Drive, San Mateo, California 94404
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (650) 312-7200
N/A
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(Former name or former address, if changed since last report.)
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Item 5. Other Events.
On November 5, 1999, Bay View Capital Corporation (the "Company") entered
into the Placement Agency Agreement, dated November 5, 1999 (the "Agreement"),
among the Company, FMAX Holdings, L.L.C., as selling stockholder (the "Selling
Stockholder"), and Friedman, Billings, Ramsey & Co., Inc., as placement agent
(the "Placement Agent"). The Agreement relates to an offering of the Company's
common stock which was commenced on November 5, 1999 and which will be completed
on November 10, 1999. A copy of the Agreement is attached hereto as Exhibit 1.
Item 7. Financial Statements and Exhibits.
(c) Exhibits
1 Placement Agency Agreement, dated November 5, 1999, among the Company,
the Selling Stockholder and the Placement Agent.
2
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
BAY VIEW CAPITAL CORPORATION
Date: November 9, 1999 By: /s/ Robert J. Flax
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Robert J. Flax
Executive Vice President,
General Counsel and Secretary
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EXHIBIT INDEX
Exhibit No. Description
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(1) Placement Agency Agreement, dated as of
November 5, 1999, among Bay View Capital
Corporation, FMAX Holdings, L.L.C. and
Friedman, Billings, Ramsey & Co., Inc.
BAY VIEW CAPITAL CORPORATION
5,759,733 SHARES OF COMMON STOCK, PAR VALUE $0.01 PER SHARE
PLACEMENT AGENCY AGREEMENT
November 5, 1999
Friedman, Billings, Ramsey & Co., Inc.
1001 19th Street North
Arlington, Virginia 22209
Ladies and Gentlemen:
Bay View Capital Corporation, a Delaware corporation (the "Company"),
proposes to issue and sell up to 1,417,282 shares (the "Company Shares") of its
common stock, par value $0.01 per share (the "Common Stock""), and FMAX
Holdings, L.L.C. (the "Selling Stockholder"), proposes to sell up to 4,342,451
shares of Common Stock (the "Selling Stockholder Shares" and together with the
Company Shares, the "Shares") to certain investors (collectively, the
"Investors"). The Company and the Selling Stockholder desire to engage you as
placement agent (the "Placement Agent") in connection with such issuance and
sale. The Common Stock is more fully described in the Prospectus (as hereinafter
defined).
The Company and the Selling Stockholder hereby confirm their respective
agreements with the Placement Agent as follows:
1. Agreement to Act as Placement Agent.
(a) On the basis of the respective representations, warranties and
agreements of the Company and the Selling Stockholder herein contained and
subject to the terms and conditions of this Agreement, the Placement Agent
agrees to act, on a best efforts basis, as the Company's and the Selling
Stockholder's exclusive Placement Agent in connection with the issuance and sale
by the Company and the Selling Stockholder of the Company Shares and the Selling
Stockholder Shares to the Investors. Each of the Company and the Selling
Stockholder shall pay to the Placement Agent a fee (the "Placement Fee") of
$0.25 per share sold by the Company and the Selling Stockholder, respectively,
as set forth on the cover page of the Prospectus (as hereinafter defined). The
obligations of the Company and the Selling Stockholder to pay their
proportionate share of the Placement Fee shall be several and not joint. The
Company, the Selling Stockholder and the Placement Agent agree that payment of
the Placement Fee may be effected by the Placement Agent's retention of a
portion of the purchase price paid by the Investors for the Shares sold equal in
amount to the Placement Fee.
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(b) None of the Company Shares shall be placed by the Placement Agent to
Investors unless and until all of the Selling Stockholder Shares have been sold
in the manner contemplated by this Agreement.
(c) Notwithstanding anything to the contrary herein, the Company shall not
under any circumstances be obligated to sell any of the Company Shares.
2. Delivery and Payment. Delivery of and payment for the Shares shall be
made at the office of Friedman, Billings, Ramsey & Co., Inc., 1001 19th Street
North, Arlington, Virginia 22209, at 10:00 a.m. local time on November 10, 1999,
or at such other location, and time and date as shall be agreed upon, such time
and date being herein referred to as the "Closing Date," each of the Investors
purchasing Shares on such Closing Date will deposit, by wire transfer of
immediately available funds, an amount equal to the Public Offering Price per
Share as shown on the cover page of the Prospectus multiplied by the number of
Shares purchased by it into an account designated by the Selling Stockholder or
the Company, as applicable, and the Selling Stockholder and the Company shall
deliver the Shares sold to the Investors.
Certificates evidencing the Shares sold shall be in definitive form and
shall be registered in such names and in such denominations as the Placement
Agent shall request by written notice to each of the Company and the Selling
Stockholder. Notwithstanding the foregoing, as an alternative, the parties may
collectively agree that the Shares sold will be delivered in book-entry form
through the facilities of The Depository Trust Company.
3. Representations and Warranties of the Company. The Company represents
and warrants to and covenants with the Placement Agent and the Selling
Stockholder that:
(a) The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (File No. 333-83199) for the
registration of the Shares under the Securities Act of 1933, as amended (the
"Act"). The registration statement, as amended, at the time it was declared
effective, is herein referred to as the "Registration Statement." The prospectus
included in the Registration Statement at the time was declared effective by the
Commission is hereinafter called the "Prospectus," except that if any prospectus
filed by the Company with the Commission pursuant to Rule 424(b) under the Act
or any other such prospectus used in connection with the offering of the Shares
(whether or not required to be filed by the Company with the Commission pursuant
to Rule 424(b) under the Act) 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 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) or from and after the time it
is first used. References to the Registration Statement and the Prospectus
include all information incorporated therein by reference.
(b) The Registration Statement has been declared effective under the Act,
and no post-effective amendment to the Registration Statement has been filed
with the Commission as of the date of this Agreement. No stop order suspending
the effectiveness of the Registration
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Statement has been issued and no proceeding for that purpose has been instituted
or, to the Company's knowledge, threatened by the Commission.
(c) No order preventing or suspending the use of the Prospectus has been
issued by the Commission.
(d) The Registration Statement and the Prospectus conform in all material
respects to the requirements of the Act and the rules and regulations
thereunder. Neither the Registration Statement, as of its effective date and the
date of any amendment thereto, nor the Prospectus contains any untrue statement
of a material fact or omits or will omit to state any material fact required to
be stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided, however,
that the Company makes no representation or warranty as to information contained
in or omitted from the Registration Statement or 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 Placement Agent or
the Selling Stockholder, expressly for use in the preparation thereof. The
Company, the Placement Agent and the Selling Stockholder agree that the
information under the caption "Selling Stockholder," the first, fourth and fifth
paragraphs and the first line in the table immediately following the fifth
paragraph under the caption "Plan of Distribution" and the number of Selling
Stockholder Shares to be sold appearing elsewhere in the Prospectus constitute
the only information provided in writing by the Selling Stockholder and that the
information under the caption "Plan of Distribution" constitutes the only
information provided in writing by the Placement Agent.
(e) 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
Securities Exchange Act of 1934, as amended (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.
(f) The Company has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware and is duly
registered as a bank holding company under the Bank Holding Company Act of 1956,
supervised by the Board of Governors of the Federal Reserve System (the "FRB").
Each subsidiary ("Subsidiary") of the Company has been duly incorporated or
organized, is validly existing and in good standing under the laws of the
jurisdiction of its incorporation or organization, has the corporate power and
authority to own or lease its properties and conduct its business as described
in the Prospectus. All outstanding shares of capital stock of each of the
Subsidiaries have been duly authorized and validly issued, are fully paid and
non-assessable, and are owned, directly or indirectly, by the Company free and
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clear of all liens, encumbrances and security interests, except as disclosed in
the Registration Statement and Prospectus. No options, warrants or other rights
to purchase, agreements or other obligations to issue, or other rights to
convert any obligations into, shares of capital stock or ownership interests in
any of the Subsidiaries are outstanding.
(g) All of the issued and outstanding shares of capital stock of the
Company are duly authorized, validly issued, fully paid and nonassessable, were
offered and sold in compliance with all federal and state securities laws, and
were not issued in violation of or subject to any preemptive rights or other
rights to subscribe for or purchase securities. Neither the filing of the
Registration Statement nor the registration of the Shares gives rise to any
rights for or relating to the registration of any capital stock or other
securities of the Company. The Company has an authorized and outstanding
capitalization as set forth in the Company's financial statements incorporated
by reference into Registration Statement and the Prospectus.
(h) This 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 and, with respect to Section 8 hereof, by the public policy
underlying the federal or state securities laws. 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: (x) any statute, any indenture,
mortgage, deed of trust, loan agreement, lease, franchise, license or other
agreement or instrument to which the Company or any Subsidiary is a party or by
which the Company or any Subsidiary is bound or to which any property or assets
of the Company or any Subsidiary is subject or any order, rule, regulation,
order, agreement or decree of any court or governmental agency or body having
jurisdiction over the Company or any Subsidiary or any of the properties of the
Company or any Subsidiary, or (y) the Company's or any Subsidiary's charter or
bylaws. 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 or for the consummation of the transactions
contemplated hereby, including the issuance or sale of the Company Shares except
such as may be required under the Act, all of which have been obtained or made,
and under state securities or blue sky laws. The Company has full power and
authority to enter into this Agreement, and to authorize, issue and sell the
Company Shares, as contemplated by this Agreement.
(i) The financial statements, together with the related notes and
schedules, contained or incorporated by reference in the Registration Statement
and Prospectus present fairly the consolidated financial position, results of
operations, stockholders' equity and cash flows of the Company and its
consolidated Subsidiaries on the basis stated therein at the indicated dates and
for the indicated periods. Such financial statements have been prepared in
accordance with generally accepted accounting principles consistently applied
throughout the periods involved, except as expressly stated therein, and all
adjustments necessary for a fair presentation of results for such periods have
been made, except as otherwise stated therein. The selected financial and
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statistical data included in the Registration Statement present fairly the
information shown therein on the basis stated in the Registration Statement and
have been compiled on a basis consistent with the financial statements presented
therein.
(j) There is no action or proceeding pending or, to the knowledge of the
Company, threatened or contemplated against the Company or any Subsidiary before
any court or administrative or regulatory agency which, if determined adversely
to the Company or such Subsidiary would, individually or in the aggregate,
result in a material adverse change in the business or financial condition,
results of operations or stockholders' equity of the Company and its
Subsidiaries taken as a whole, except as set forth in the Registration Statement
or the Prospectus.
(k) There are no contracts or documents of the Company or any Subsidiary
that are required by the Act or by the rules and regulations thereunder to be
filed as exhibits to the Registration Statement or any document incorporated by
reference therein which contracts or documents have not been so filed.
(l) The Company and the Subsidiaries have good and marketable title to all
properties and assets reflected as owned in the financial statements hereinabove
described (or as described as owned in the Prospectus), in each case free and
clear of all liens, encumbrances and defects, except such as are described in
the Prospectus or do not substantially affect the value of such properties and
assets and do not materially interfere with the use made and proposed to be made
of such properties and assets by the Company and the Subsidiaries; and any real
property and buildings held under lease by the Company and the Subsidiaries are
held by them under valid, subsisting and enforceable leases with such exceptions
as are not material and do not interfere with the use made and proposed to be
made of such property and buildings by the Company and the Subsidiaries.
(m) Since the respective dates as of which information is given in the
Registration Statement, as it may be amended or supplemented, (A) there has not
been any material adverse change, or any development involving a prospective
material adverse change, in or affecting the financial condition of the Company
and the Subsidiaries taken as a whole, or the business affairs, management,
financial condition, stockholders' equity or results of operations of the
Company and the Subsidiaries taken as a whole, (B) there has not been any
transaction not in the ordinary course of business entered into by the Company
or any of the Subsidiaries which is material to the Company and the Subsidiaries
taken as a whole, other than transactions described or contemplated in the
Registration Statement and the Prospectus, (C) the Company and the Subsidiaries
have not incurred any material liabilities or obligations, which are not in the
ordinary course of business or which could result in a material reduction in the
future earnings of the Company and the Subsidiaries taken as a whole, other than
transactions described in the Registration Statement and the Prospectus (D) the
Company and the Subsidiaries have not sustained any material loss or
interference with their respective businesses or properties from fire, flood,
windstorm, accident or other calamity, whether or not covered by insurance, (E)
there has not been any change in the capital stock of the Company or the
Subsidiaries (other than the merger with Franchise Mortgage Acceptance Company
or upon the exercise of options and
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warrants described in the Registration Statement), or any material increase in
the short-term or long-term debt of the Company and the Subsidiaries taken as a
whole, and (F) there has not been any declaration or payment of any dividends or
any distributions of any kind with respect to the capital stock of the Company
or the Subsidiaries other than any dividends or distributions described or
contemplated in the Registration Statement and the Company's regular quarterly
common stock dividend.
(n) Neither the Company nor any of the Subsidiaries is in violation of its
respective charter or bylaws and neither the Company nor any of the Subsidiaries
is in violation of or otherwise in default under any statute, or any rule,
regulation, order, supervisory agreement, judgment, decree or authorization of
any court or governmental or administrative agency or body having jurisdiction
over the Company or any of the Subsidiaries or any of their properties, or any
indenture, mortgage, deed of trust, loan agreement, lease, franchise, license or
other agreement or instrument to which the Company or any of the Subsidiaries is
a party or by which any of them are bound or to which any property or assets of
the Company or any of the Subsidiaries is subject, which violation or default
would have a material adverse effect on the business, financial condition,
results of operations and stockholders' equity of the Company and the
Subsidiaries taken as a whole.
(o) The Company has all necessary federal or state approvals to own the
stock of the Subsidiaries. Neither the Company nor any Subsidiary has received
notice of any proceeding or action relating specifically to the Company or the
Subsidiaries for the revocation or suspension of any such consent,
authorization, approval, order, license, certificate or permit or any other
action or proposed action by any regulatory authority having jurisdiction over
the Company or the Subsidiaries that would have a material adverse effect on the
Company and the Subsidiaries taken as a whole.
(p) Deloitte & Touche LLP, who have certified certain of the financial
statements filed with the Commission as part of the Registration Statement, and
KPMG LLP are each independent public accountants with respect to the Company as
required by the Act and the rules and regulations thereunder.
(q) The Common Stock has been duly registered under Section 12(b) of the
Exchange Act, and the Common Stock is listed on the New York Stock Exchange (the
"NYSE") under the symbol "BVC."
(r) The Company has not distributed and will not distribute any prospectus
or other offering material in connection with the offering and sale of the
Shares other than the Prospectus or other materials permitted by the Act to be
distributed by the Company.
(s) The deposit accounts of the Bay View Bank, N.A. are insured by the
Federal Deposit Insurance Corporation (the "FDIC") to the fullest extent
provided by law. No proceeding for the termination of such insurance is pending
or, to the knowledge of the Company, is threatened. Neither the Company nor any
Subsidiary has received or is subject to any directive, order or supervisory
agreement or arrangement from the Office of the Comptroller
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of the Currency (the "OCC"), the FDIC, or any other regulatory authority, to
make any material change in the method of conducting their respective businesses
that has not been complied with in all material respects.
(t) The Company and the Subsidiaries have filed all federal, state, local
and foreign tax returns or reports required to be filed (including extensions),
and have paid all taxes indicated by said returns or reports and all assessments
received by it or any of them to the extent that such taxes have become due and
payable (including extensions), except where the Company and the Subsidiaries
are contesting in good faith such taxes and assessments.
(u) The Company and each of the Subsidiaries owns or licenses all patents,
patent applications, trademarks, service marks, tradenames, trademark
registrations, service mark registrations, copyrights, licenses, inventions,
trade secrets and other similar rights necessary for the conduct of their
businesses as described in the Prospectus, except where the failure to so own
would not have a material adverse effect on the Company and its Subsidiaries,
taken as a whole. The Company has no knowledge of any infringement by it or the
Subsidiaries of any patents, patent applications, trademarks, service marks,
tradenames, trademark registrations, service mark registrations, copyrights,
licenses, inventions, trade secrets or other similar rights of others, and
neither the Company nor any of the Subsidiaries has received any notice or claim
of conflict with the asserted rights of others with respect to any of the
foregoing.
(v) Neither the Company nor any of the Subsidiaries 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.
(w) Other than as contemplated by this Agreement and as disclosed 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.
(x) No report or application filed by the Company or any of its
Subsidiaries with the OCC, the FDIC, the FRB or any other regulatory authority,
as of the date it was filed or amended, 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 in all material respects with the applicable requirements of the OCC,
the FRB or any other regulatory authority, as the case may be.
(y) The Company meets all of the requirements for the use of Form S-3 to
register the Shares under the Act.
(z) The Company has not disclosed any material adverse information
concerning its business, operations, financial condition or business prospects
to the Selling Stockholder, which information the Company has not previously
made available to the public.
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4. Representations, Warranties and Covenants of the Selling Stockholder.
The Selling Stockholder represents, warrants and covenants to the Company and to
the Placement Agent that:
(a) The Selling Stockholder is, and at the Closing Date will be, duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization with corporate power and authority to own,
lease and operate its properties and to conduct its business.
(b) The Selling Stockholder has all corporate power and authority to enter
into this Agreement and to carry out all the terms and provisions hereof to be
carried out by it. All authorizations and consents necessary for the execution
and delivery by the Selling Stockholder of this Agreement have been given. This
Agreement has been duly authorized, executed and delivered by or on behalf of
the Selling Stockholder and constitutes a valid and binding agreement of the
Selling Stockholder, enforceable against the Selling Stockholder in accordance
with its terms, except as limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other laws now or hereafter in effect relating to
or affecting creditors' rights generally or by general principles of equity
relating to the availability of remedies and except as rights to indemnity or
contribution may be limited by federal or state securities laws and the public
policy underlying such laws.
(c) The Selling Stockholder now has, and at the time of delivery thereof
hereunder will have, good and marketable title to the Selling Stockholder Shares
to be sold by the Selling Stockholder hereunder, free and clear of all
encumbrances and adverse claims.
(d) 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: (x) any statute, any indenture, mortgage, deed of trust, loan agreement,
lease, franchise, license or other agreement or instrument to which the Selling
Stockholder is a party or by which the Selling Stockholder is bound or to which
any property or assets of the Selling Stockholder is subject or any order, rule,
regulation, order, agreement or decree of any court or governmental agency or
body having jurisdiction over the Selling Stockholder or any of the properties
of the Selling Stockholder, or (y) the Selling Stockholders' charter or bylaws
or equivalent thereof.
(e) No consent, approval, authorization or order of, or any filing or
declaration with any governmental body is required for the consummation by the
Selling Stockholder of the transactions on its part contemplated herein;
provided, however, that no representation or warranty is made with respect to
any state securities or Blue Sky laws or the rules of the National Association
of Securities Dealers, Inc. (the "NASD").
(f) On the effective date of the Registration Statement, the date of the
Prospectus and on the Closing Date, the information with respect to the Selling
Stockholder included in the Registration Statement and the Prospectus under the
caption "Selling Stockholder," in the first, fourth and fifth paragraphs and the
first line in the table immediately following the fifth paragraph under the
caption "Plan of Distribution" and elsewhere therein with respect
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to the number of Selling Stockholder Shares to be sold, did not and will not
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein not misleading; such information constitutes the only information in the
Registration Statement and the Prospectus provided by the Selling Stockholder.
(g) On the date that the Prospectus was filed with the Commission as part
of the Registration Statement or the date the Prospectus is filed with the
Commission pursuant to Rule 424(b) (if required), and at all times subsequent to
and including the Closing Date, all information with respect to the Selling
Stockholder included in the Registration Statement and the Prospectus (as
amended or as supplemented if the Company shall have filed with the Commission
any amendment or supplement thereto) under the caption "Selling Stockholder," in
the first, fourth and fifth paragraphs and the first line in the table
immediately following the fifth paragraph under the caption "Plan of
Distribution," and elsewhere therein with respect to the number of Selling
Stockholder Shares to be sold, did or will comply with all applicable provisions
of the Act and the rules and regulations thereunder and did or will contain all
statements required to be stated therein in accordance with the Act and the
rules and regulations thereunder.
5. Agreements of the Company and the Selling Stockholder. The Company (as
to Sections 5(a)-(i)) and the Selling Stockholder (only as to Sections 5(f) and
(h)) covenant and agree with the Placement Agent as follows:
(a) The Company will not, either prior to the effective date of the
Registration Statement or thereafter during such period as the Prospectus would
be required by law to be delivered in connection with sales of the Company
Shares or the Selling Stockholder Shares by an underwriter or dealer, file any
amendment or supplement to the Registration Statement or the Prospectus, unless
a copy thereof shall first have been submitted to the Placement Agent and the
Selling Stockholder within a reasonable period of time prior to the filing
thereof and neither the Placement Agent nor the Selling Stockholder shall not
have objected thereto in good faith.
(b) The Company will notify the Placement Agent and the Selling Stockholder
promptly, and will confirm such advice in writing, (1) when any post-effective
amendment to the Registration Statement becomes effective, (2) of any request by
the securities or other governmental authority (including, without limitation,
the Commission) of any jurisdiction for amendments or supplements to the
Registration Statement or the Prospectus or for additional or supplemental
information, (3) of the issuance by any securities or other governmental
authority (including, without limitation, the Commission) of any jurisdiction of
any stop order suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose or the threat thereof, (4) of the
happening of any event during the period mentioned in Section 5(a) that in the
judgment of the Company makes any statement made in the Registration Statement
or the Prospectus untrue or that requires the making of any changes in the
Registration Statement or the Prospectus in order to make the statements
therein, in light of the circumstances in which they are made, not misleading
and (5) of receipt by the Company or any representative or attorney of the
Company of any other communication from the securities or other governmental
authority (including, without limitation, the Commission) of any jurisdiction
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relating to either the Registration Statement or the Prospectus. If at any time
any securities or other governmental authority (including, without limitation,
the Commission) of any jurisdiction shall issue any order suspending the
effectiveness of the Registration Statement, the Company will make every
reasonable effort to obtain the withdrawal of such order at the earliest
possible moment.
(c) If, at any time when a Prospectus relating to the Shares is required to
be delivered under the Act, any event occurs as a result of which the
Prospectus, as then amended or supplemented, would, in the judgment of counsel
to the Company, counsel to the Placement Agent or counsel to the Selling
Stockholder, include any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, or the
Registration Statement, as then amended or supplemented, would, in the judgment
of counsel to the Company, counsel to the Placement Agent or counsel to the
Selling Stockholder, include any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein not misleading,
or if for any other reason it is necessary, in the judgment of counsel to the
Company, counsel to the Placement Agent or counsel to the Selling Stockholder,
at any time to amend or supplement the Prospectus or the Registration Statement
to comply with the Act or the rules and regulations thereunder, the Company will
promptly notify the Placement Agent and the Selling Stockholder and, subject to
Section 5(a) hereof, will promptly prepare and file with the Commission, at the
Company's expense, an amendment to the Registration Statement or an amendment or
supplement to the Prospectus that corrects such statement or omission or effects
such compliance and will deliver to the Placement Agent and the Selling
Stockholder, without charge, such number of copies thereof as each of the
Placement Agent and the Selling Stockholder may reasonably request. The Company
consents to the use of the Prospectus or any amendment or supplement thereto by
the Placement Agent and the Selling Stockholder.
(d) The Company will furnish to the Placement Agent and the Selling
Stockholder, without charge, (i) a copy of the registration statement described
in Section 3(a) hereof and each pre-effective amendment thereto, including all
exhibits thereto, and any registration statement filed pursuant to Rule 462(b)
and (ii) so long as a prospectus relating to the Shares is required to be
delivered under the Act, as many copies of the Prospectus or any amendment or
supplement thereto as the Placement Agent and the Selling Stockholder may
reasonably request.
(e) The Company will comply with all the undertakings contained in the
Registration Statement and shall file, on a timely basis, with the Commission,
the NYSE and any other securities exchange on which the securities of the
Company are then listed, all periodic and other reports and documents required
to be filed under the Exchange Act.
(f) Prior to the sale of the Company Shares and the Selling Stockholder
Shares to the Investors, the Company and the Selling Stockholder will cooperate
with the Company's counsel in connection with the registration or qualification
of the Company Shares and the Selling Stockholder Shares for offer and sale
under the state securities or Blue Sky laws of such jurisdictions as the
Placement Agent may request; provided, that in no event shall the Company be
obligated to qualify to do business in any jurisdiction where it is not now so
qualified or to
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take any action which would subject it to general service of process in any
jurisdiction where it is not now so subject. The Company will advise the
Placement Agent and the Selling Stockholder promptly of the suspension of the
qualification or registration of (or any exemption relating to) the Company
Shares or the Selling Stockholder Shares for offering, sale or trading in any
jurisdiction or any initiation or threat of any proceedings for such purpose,
and in the event of the issuance of any order suspending such qualification or
registration or exemption, the Company shall use its best efforts to obtain the
withdrawal thereof at the earliest possible time.
(g) As soon as practicable, but in any event not later than 45 days after
the end of the 12-month period beginning on the day after the end of the fiscal
quarter of the Company during which the effective date of the Registration
Statement occurs (90 days in the event that the end of such fiscal quarter is
the end of the Company's fiscal year), the Company will make generally available
to its security holders, in the manner specified in Rule 158(b) under the Act
and to the Placement Agent, an earnings statement which will be in the detail
required by, and will otherwise comply with, the provisions of Section 11(a) of
the Act and Rule 158(a) under the Act, which statement need not be audited
unless required by the Act or the rules and regulations thereunder, covering a
period of at least 12 consecutive months after the effective date of the
Registration Statement.
(h) Neither the Company nor the Selling Stockholder will, at any time,
directly or indirectly, take any action intended, or which might reasonably be
expected, to cause or result in, or which will constitute, stabilization or
manipulation of the price of the Common Stock to facilitate the sale or resale
of any of the Company Shares or the Selling Stockholder Shares.
(i) The Company will apply the net proceeds from the offering and sale of
the Company Shares substantially in the manner set forth in the Prospectus under
the caption "Use of Proceeds."
You may waive in writing the performance by the Company or the Selling
Stockholder of any one or more of the foregoing covenants or extend the time for
their performance.
6. Expenses. Whether or not the transactions contemplated by this Agreement
are consummated or this Agreement is terminated, the Company will pay all costs
and expenses incident to the performance of the obligations of the Company and
the Selling Stockholder under this Agreement, including but not limited to costs
and expenses of or relating to (1) the preparation, printing and filing of the
Registration Statement (including each pre- and post-effective amendment
thereto) and exhibits thereto, any registration statement filed pursuant to Rule
462(b) under the Act, the Prospectus and any amendment or supplement to the
Prospectus, including all fees, disbursements and other charges of counsel to
the Company, (2) the preparation and delivery of certificates representing the
Shares, (3) furnishing (including costs of shipping and mailing) such copies of
the Registration Statement (including all pre- and post-effective amendments
thereto) and the Prospectus, and all amendments and supplements to the
Prospectus, as may reasonably be requested for use in connection with the direct
placement of the Shares, (4) the listing of the Shares on the NYSE, (5) any
filings required to be made by the Placement Agent with the NASD and the
registration or qualification of the Shares for offer
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and sale under the state securities or Blue Sky laws of such jurisdictions
designated pursuant to Section 5(f), including the reasonable fees,
disbursements and other charges of counsel to the Company in connection
therewith and with the preparation and printing of preliminary, supplemental and
final Blue Sky memoranda, (6) fees, disbursements and other charges of counsel
to the Company and the Company's independent public or certified public
accountants and other advisors, (7) all expenses incident to the issuance and
delivery of the Shares (including all printing and engraving costs), (8) all
fees and expenses of the registrar and transfer agent of the Common Stock, (9)
all necessary issue, transfer and other stamp taxes in connection with the
delivery of the Shares and (10) all other fees, costs and expenses referred to
in Item 13 of Part II of the Registration Statement. Notwithstanding the
foregoing, whether or not the transactions contemplated by this Agreement are
consummated or this Agreement is terminated, the Company shall not be required
to pay for any of the Placement Agent's expenses other than those related to the
qualification of the Shares under state securities or Blue Sky laws and those
incident to securing any required review by the NASD of the terms of the sale of
the Shares, which shall be paid by the Company as provided above. In addition,
notwithstanding the foregoing, the Company shall not be required to pay for any
Placement Fee related to the Selling Stockholder Shares and disbursements of the
Selling Stockholder's outside counsel, outside accountants, investment bankers
and financial consultants, if any.
7. Conditions to the Obligations of the Placement Agent. The obligations of
the Placement Agent hereunder are subject to the following conditions:
(a) Notification that the Registration Statement has become effective shall
be received by the Placement Agent not later than 1:00 p.m., Eastern time, on
the date of this Agreement or at such later date and time as shall be consented
to by the Placement Agent and all filings required by Rules 424 and 430A under
the Act shall have been made.
(b) (i) No stop order suspending the effectiveness of the Registration
Statement shall have been issued, and no proceedings for that purpose shall be
pending or threatened by any securities or other governmental authority
(including, without limitation, the Commission), (ii) no order suspending the
effectiveness of the Registration Statement or the qualification or registration
of the Shares under the securities or Blue Sky laws of any jurisdiction shall be
in effect and no proceeding for such purpose shall be pending before or
threatened or contemplated by any securities or other governmental authority
(including, without limitation, the Commission), (iii) any request for
additional information on the part of the staff of any securities or other
governmental authority (including, without limitation, the Commission) shall
have been complied with to the satisfaction of the staff of the Commission or
such authorities and (iv) after the date hereof no amendment or supplement to
the Registration Statement or the Prospectus shall have been filed unless a copy
thereof was first submitted to the Placement Agent and the Selling Stockholder
and neither the Placement Agent nor the Selling Stockholder objected thereto in
good faith, and the Placement Agent and the Selling Stockholders shall have each
received certificates, dated the Closing Date and signed by the President and
Chief Executive Officer of the Company, and the Chief Financial Officer of the
Company (who may, as to proceedings threatened, rely upon the best of their
information and belief), to the effect of clauses (i), (ii) and (iii) above.
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<PAGE>
(c) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, (i) there shall not have been a
material adverse change in the financial condition or results of operations of
the Company and the Subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, in each case other than as set
forth in or contemplated by the Registration Statement and the Prospectus and
(ii) neither the Company nor any Subsidiary shall have sustained any material
loss or interference with its business or properties from fire, explosion, flood
or other casualty, whether or not covered by insurance, or from any labor
dispute or any court or legislative or other governmental action, order or
decree, which is not set forth in the Registration Statement and the Prospectus,
if in the judgment of the Placement Agent any such development makes it
impracticable or inadvisable to consummate the sale and delivery of the Shares
to Investors at the public offering price.
(d) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there shall have been no litigation
or other proceeding instituted against the Company or the Subsidiaries or any of
its officers or directors in their capacities as such, before or by any Federal,
state or local court, commission, regulatory body, administrative agency or
other governmental body, domestic or foreign, in which litigation or proceeding
an unfavorable ruling decision or finding would have a material adverse effect
on the Company or any Subsidiaries.
(e) Each of the representations and warranties of the Company contained
herein shall be true and correct at the Closing Date, as if made on such date,
and all covenants and agreements herein contained to be performed on the part of
the Company and all conditions herein contained to be fulfilled or complied with
by the Company at or prior to the Closing Date shall have been duly performed,
fulfilled or complied with.
(f) The Placement Agent shall have received:
(i) The opinions, dated as of the Closing Date, of Silver, Freedman &
Taff, L.L.P., counsel for the Company, addressed to the Placement Agent and
the Selling Stockholder, substantially in the form attached hereto as
Exhibit 1.
Such counsel shall also state that on the basis of such counsel's
review and participation in conferences in connection with the preparation
of the Registration Statement and the Prospectus, such counsel has no
reason to believe that, as of its effective date, the Registration
Statement or any further amendment thereto made by the Company prior to the
Closing Date, including any document incorporated by reference in the
Registration Statement, as the case may be (other than the financial
statements, pro forma financial data, other financial and statistical data
and related schedules therein, as to which such counsel need express no
statement) 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 or that, as of its date, the
Prospectus or any further amendment or supplement thereto made by the
Company prior to the Closing Date, including any document incorporated by
reference in the Prospectus (other than the financial statements, pro forma
financial data, other financial and statistical data and
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<PAGE>
related schedules therein, as to which such counsel need express no
statement) contained an untrue statement of a material fact or omitted to
state a material fact necessary to make the statements therein, in light of
the circumstances in which they were made, not misleading or that, as of
the Closing Date, either the Registration Statement or the Prospectus or
any further amendment or supplement thereto made by the Company prior to
the Closing Date (other than the financial statements, pro forma financial
data, other financial and statistical data and related schedules therein,
as to which such counsel need express no statement) contains an untrue
statement of a material fact or omits to state a material fact necessary to
make the statements therein, in light of the circumstances in which they
were made, not misleading.
In rendering the above opinions, counsel may rely (i) as to matters of
law other than 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 they believe they and the Underwriters
are justified in relying thereon and (ii) as to matters of fact, upon the
representations of the Company contained in this Agreement and upon
certificates of officers of the Company and of public officials.
(ii) The opinion, dated the Closing Date, of Irwin L. Gubman, general
counsel for the parent corporation of the Selling Stockholder, addressed to
the Placement Agent and the Company, to the effect that:
(A) The Selling Stockholder has full right, power and authority
to enter into this Agreement, the execution, delivery and performance
of this Agreement by the Selling Stockholder and the consummation by
the Selling Stockholder of the transactions contemplated hereby will
not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any statute,
any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel to which the Selling
Stockholder is a party or by which the Selling Stockholder is bound or
to which any of the property or assets of the Selling Stockholder is
subject, which breach, violation or default is reasonably likely to
have a material adverse effect on the performance of such Selling
Stockholder's obligations hereunder, nor will such actions result in
any violation of any statute or any order, rule or regulation known to
such counsel of any court or governmental agency or body having
jurisdiction over the Selling Stockholder or the property or assets of
the Selling Stockholder, and, except for the registration of the
Selling Stockholder Shares under the Act and such consents, approvals,
authorizations, registrations or qualifications as may be required
under the Exchange Act and applicable state securities laws in
connection with the purchase of the Selling Stockholder Shares by the
Investors and the placement of such shares by the Placement Agent, no
consent, approval, authorization or order of, or filing or
registration with, any such court or governmental agency or body
(except for those consents, approvals, authorizations, orders, filings
or registrations, which, if not secured, filed or registered, as
applicable, would not have a material adverse effect on the
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<PAGE>
performance of such Selling Stockholder's obligations hereunder) is
required for the execution, delivery and performance of this Agreement
by the Selling Stockholder and the consummation by the Selling
Stockholder of the transactions contemplated hereby;
(B) This Agreement has been duly executed and delivered by the
Selling Stockholder;
(C) This Agreement constitutes a valid and binding agreement of
the Selling Stockholder, enforceable in accordance with its terms
subject to the effect of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and similar laws relating to or
affecting creditor's rights generally;
(D) Immediately prior to the date of this Agreement, the Selling
Stockholder had full right, power and authority to sell, assign,
transfer and deliver the Selling Stockholder Shares; and
(E) When the Selling Stockholder Shares are delivered against
payment therefor in accordance with the terms of this Agreement, all
rights of the Selling Stockholder in the Selling Stockholder Shares
will be transferred to the Investors and, in addition, each Investor
will acquire its interest in the Selling Stockholder Shares to be
acquired by it free of any adverse claim.
Such counsel shall also state that on the basis of such counsel's
review and participation in conferences in connection with the preparation
of the information under the caption "Selling Stockholder" and the first,
fourth and fifth paragraphs and the first line in the table immediately
following the fifth paragraph under the caption "Plan of Distribution" in
the Registration Statement and the Prospectus, such counsel has no reason
to believe that, as of its effective date, the Registration Statement or
any further amendment thereto made by the Company prior to the Closing
Date, including any document incorporated by reference in the Registration
Statement, as the case may be (other than the financial statements, pro
forma financial data, other financial and statistical data and related
schedules therein, as to which such counsel need express no statement)
contained an untrue statement of a material fact relating to the Selling
Stockholder or omitted to state a material fact relating to the Selling
Stockholder required to be stated therein or necessary to make the
statements therein not misleading or that, as of its date, the Prospectus
or any further amendment or supplement thereto made by the Company prior to
the Closing Date, including any document incorporated by reference in the
Prospectus (other than the financial statements, pro forma financial data,
other financial and statistical data and related schedules therein, as to
which such counsel need express no statement) contained an untrue statement
of a material fact relating to the Selling Stockholder or omitted to state
a material fact relating to the Selling Stockholder necessary to make the
statements therein, in light of the circumstances in which they were made,
not misleading or that, as of the Closing Date, either the Registration
Statement or the Prospectus or any further amendment or supplement thereto
made by the Company prior to the Closing Date (other than the financial
statements, pro forma financial data, other financial and statistical data
and related schedules therein, as to which such counsel need express no
statement)
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<PAGE>
contains an untrue statement of a material fact relating to the Selling
Stockholder or omits to state a material fact relating to the Selling
Stockholder necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading.
(g) At the Closing Date, there shall be furnished to the Placement Agent
and the Selling Stockholder a certificate, dated the date of its delivery,
signed by each of the Chief Executive Officer and the Chief Financial Officer of
the Company, to the effect that:
(A) Each of the representations and warranties of the Company
contained in this Agreement were, when originally made, and are, at
the time such certificate is delivered, true and correct in all
material respects.
(B) Each of the covenants required herein to be performed by the
Company on or prior to the date of such certificate has been duly,
timely and fully performed and each condition herein required to be
complied with by the Company on or prior to the delivery of such
certificate has been duly, timely and fully complied with.
(C) No stop order suspending the effectiveness of the
Registration Statement or of any part thereof has been issued and no
proceedings for that purpose have been instituted or, to their
knowledge, are contemplated by the Commission.
(D) Subsequent to the date of the most recent financial
statements in the Prospectus, there has been no material adverse
change in the financial condition or results of operations of the
Company or the Subsidiaries, except as set forth in or contemplated by
the Prospectus.
(h) The Shares shall be qualified for sale in such states as the Placement
Agent may reasonably request, each such qualification shall be in effect and not
subject to any stop order or other proceeding on the Closing Date.
(i) The Shares shall have been approved for listing on the NYSE.
(j) At the Closing Date, there shall be furnished to the Placement Agent
and the Company a certificate, dated the date of its delivery, signed by each of
the Chief Executive Officer and the Chief Financial Officer of the Selling
Stockholder, to the effect that:
(A) Each of the representations and warranties of the Selling
Stockholder contained in this Agreement were, when originally made,
and are, at the time such certificate is delivered, true and correct
in all material respects.
(B) Each of the covenants required herein to be performed by the
Selling Stockholder on or prior to the date of such certificate has
been duly,
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timely and fully performed and each condition herein required to be
complied with by the Selling Stockholder on or prior to the delivery
of such certificate has been duly, timely and fully complied with.
(k) The NASD shall have raised no objection to the fairness and
reasonableness of the underwriting or placement agency terms and agreements if
such terms and agreements are subject to the review of NASD.
8. Indemnification.
(a) The Company agrees to indemnify and hold harmless the Placement Agent,
the Selling Stockholder, each officer and director of the Placement Agent and
the Selling Stockholder, and each other person, if any, who controls the
Placement Agent or the Selling Stockholder within the meaning of the Act,
against any losses, claims, damages or liabilities to which the Placement Agent
or the Selling Stockholder or such persons may become subject under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) arise out of or are based upon (i) any untrue
statement or alleged untrue statement of any material fact contained in the
Registration Statement or the Prospectus, including any amendments or
supplements thereto, (ii) 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 light of the circumstances under which they were made,
or (iii) any act or failure to act or any alleged act or failure to act by the
Placement Agent or the Selling Stockholder in connection with, or relating in
any manner to, the Shares or the offering contemplated hereby, and which is
included as part of or referred to in any losses, claims, damages or liabilities
(or actions or proceedings in respect thereof) arising out of or based upon
matters covered by clause (i) or (ii) above, and will reimburse the Placement
Agent or the Selling Stockholder and each such controlling person for any legal
or other expenses reasonably incurred by them in connection with investigating
or defending any such action or claim as such expenses are incurred; provided,
however, that the Company shall not be liable (1) 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, or omission or alleged omission,
made in the Registration Statement or the Prospectus, including any amendments
or supplements thereto, in reliance upon and in conformity with written
information furnished to the Company by the Placement Agent or the Selling
Stockholder specifically for use therein or (2) in the case of any matter
covered by clause (iii) above to the extent that it is determined in a final
judgment by a court of competent jurisdiction that such losses, claims, damages
or liabilities resulted directly from any such acts or failures to act
undertaken or omitted to be taken by the Placement Agent or the Selling
Stockholder through their gross negligence or willful misconduct. The Company,
the Placement Agent and the Selling Stockholder agree that the information under
the caption "Selling Stockholder," the first, fourth and fifth paragraphs and
the first line in the table immediately following the fifth paragraph under the
caption "Plan of Distribution" and the number of Selling Stockholder Shares to
be sold appearing elsewhere in the Prospectus constitute the only information
provided in writing by the Selling Stockholder and that the information under
the caption "Plan of Distribution" constitutes the only information provided in
writing by the Placement Agent.
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(b) The Selling Stockholder agrees to indemnify and hold harmless the
Company, the Placement Agent, each officer and director of the Company and the
Placement Agent, and each other person, if any, who controls the Company or the
Placement Agent within the meaning of the Act, against any losses, claims,
damages or liabilities to which the Company or any such person may become
subject under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement, 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 the light of the
circumstances under which they were made, and will reimburse any legal or other
expenses reasonably incurred by the Company, the Placement Agent or any such
control person in connection with investigating or defending any such action or
claim as such expenses are incurred; provided, however, that the Selling
Stockholder will be liable to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission has
been made in the Registration Statement, the Prospectus or any such amendment or
supplement in reliance upon and in conformity with written information furnished
to the Company by the Selling Stockholder specifically for use therein;
provided, further, that the aggregate amount of the Selling Stockholder's
liability under this section shall not exceed the gross proceeds received by it
from the sale of the Selling Stockholder Shares. The Company, the Placement
Agent and the Selling Stockholder agree that the information set forth under the
caption "Selling Stockholder," the first, fourth and fifth paragraphs and the
first line in the table immediately following the fifth paragraph under the
caption "Plan of Distribution" and the number of Selling Stockholders Shares to
be sold appearing elsewhere in the Prospectus constitute the only information
provided in writing by the Selling Stockholder.
(c) The Placement Agent agrees to indemnify and hold harmless the Company,
the Selling Stockholder and each officer and director of the Company and the
Selling Stockholder and each other person, if any, who controls the Company or
the Selling Stockholder within the meaning of the Act, against any losses,
claims, damages or liabilities to which the Company or the Selling Stockholder
may become subject under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions or proceedings in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, 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 the light
of the circumstances under which they were made, and will reimburse any legal or
other expenses reasonably incurred by the Company or the Selling Stockholder or
any such control person in connection with investigating or defending any such
action or claim as such expenses are incurred; provided, however, that the
Placement Agent will be liable to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission has
been made in the Registration Statement, the Prospectus or any such amendment or
supplement in reliance upon and in conformity with written information furnished
to the Company by Placement Agent specifically for use therein. The Company, the
Selling Stockholder and the Placement Agent agree that the information set forth
under the caption "Plan of Distribution" constitutes the only information
provided in writing by the Placement Agent.
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(d) In case any proceeding (including any governmental investigation) shall
be instituted involving any person in respect of which indemnity or contribution
may be sought pursuant to this Section 8, such person (the "indemnified party")
shall promptly notify the person against whom such indemnity may be sought (the
"indemnifying party") in writing. No indemnification provided for in Section
8(a), (b) or (c) or contribution provided for in Section 8(e) shall be available
with respect to a proceeding to any party who shall fail to give notice of such
proceeding as provided in this Section 8(d) if the party to whom notice was not
given was unaware of the proceeding to which such notice would have related and
was prejudiced by the failure to give such notice, but the failure to give such
notice shall not relieve the indemnifying party or parties from any liability
which it or they may have to the indemnified party otherwise than on account of
the provisions of Section 8(a), (b) or (c). In case any such proceeding 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 therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party and shall pay as
incurred the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel at its own expense. Notwithstanding the foregoing, the indemnifying
party shall pay promptly as incurred the reasonable fees and expenses of the
counsel retained by the indemnified party in the event (i) the indemnifying
party and the indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified party
and the indemnified party shall have reasonably concluded that there may be a
conflict between the positions of the indemnifying party and the indemnified
party in conducting the defense of any such action or that there may be legal
defenses available to it or other indemnified parties which are different from
or additional to those available to the indemnifying party. It is understood
that the indemnifying party shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm at any time for all such indemnified
parties. Such firm shall be designated in writing by the Placement Agent (if it
or any of its control persons are to be indemnified) or Selling Stockholder (if
it or any of its control persons are to be indemnified) and shall be reasonably
satisfactory to the Company in the case of parties indemnified pursuant to
Section 8(a), shall be designated in writing by the Company (if it or any of its
control persons are to be indemnified) or the Placement Agent (if it or any of
its control persons are to be indemnified) and shall be reasonably satisfactory
to the Selling Stockholder in the case of parties indemnified pursuant to
Section 8(b) and shall be designated in writing by the Company (if it or any of
its control persons are to be indemnified) or the Selling Stockholder (if it or
any of its control persons are to be indemnified) and shall be reasonably
satisfactory to the Placement Agent in the case of parties indemnified pursuant
to Section 8(c). The indemnifying party shall not be liable for any settlement
of any proceeding effected without its written consent but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment.
(e) If the indemnification provided for in this Section 8 is unavailable or
insufficient to hold harmless an indemnified party under Section 8(a), (b) or
(c) above in respect of any
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losses, claims, damages or liabilities (or actions or proceedings in respect
thereof) referred to therein, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions or proceedings in respect thereof) in
such proportion as is appropriate to reflect the relative benefits received by
the Company, the Selling Stockholder and the Placement Agent from the offering
contemplated hereby. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law, then each indemnifying
party shall contribute to such amount paid or payable by such indemnified party
in such proportion as is appropriate to reflect not only such relative benefits
but also the relative fault of the Company, the Selling Stockholder and the
Placement Agent in connection with the statements or omissions which resulted in
such losses, claims, damages or liabilities (or actions or proceedings in
respect thereof), as well as any other relevant equitable considerations. The
relative benefits received by the Company, the Selling Stockholder and the
Placement Agent shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by the Company
and the Selling Stockholder bears to the Placement Fee, in each case as set
forth on the cover page of the Prospectus. 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 Selling
Stockholder or the Placement Agent and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company, the Selling Stockholder and the Placement Agent agree
that it would not be just and equitable if contributions pursuant to this
Section 8(e) were determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations referred
to above in this Section 8(e). The amount paid or payable by an indemnified
party as a result of the losses, claims, damages or liabilities (or actions or
proceedings in respect thereto) referred to above in this Section 8(e) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Section 8(e), the Placement
Agent shall not be required to contribute any amount in excess of the Placement
Fee applicable to the Shares and the Selling Stockholder shall not be required
to contribute any amount in excess of the gross proceeds received by it from the
sale of the Selling Stockholder Shares; and 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, the Selling Stockholder and the
Placement Agent under this Section 8 shall be in addition to any liability which
they may otherwise have.
9. Termination.
(a) The obligations of the Placement Agent under this Agreement may be
terminated at any time prior to the Closing Date, by notice to the Company and
the Selling Stockholder from the Placement Agent, without liability on the part
of the Placement Agent to the Company if, prior to delivery and payment for the
Shares, in the sole judgment of the Placement Agent (i) trading in the Common
Stock of the Company shall have been suspended by the Commission or
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by the NYSE, (ii) trading in securities generally on the NYSE, the American
Stock Exchange, or the Nasdaq National Market shall have been suspended or
limited or minimum or maximum prices shall have been generally established on
any of such exchanges, or additional material governmental restrictions, not in
force on the date of this Agreement, shall have been imposed upon trading in
securities generally by any of such exchanges or by order of the Commission or
any court or other governmental authority, (iii) a general banking moratorium
shall have been declared by Federal or New York or California state authorities
or (iv) any material adverse change in the financial or securities markets in
the United States or declaration by the United States of a national emergency or
war shall have occurred, the effect of any of which is such as to make it, in
the sole judgment of the Placement Agent, impracticable or inadvisable to market
the Shares on the terms and in the manner contemplated by the Prospectus and
this Agreement.
(b) The obligations of the Company and the Selling Stockholder under this
Agreement (except those specified in Section 11 hereof) may be terminated at any
time after November 17, 1999, if the closing of the purchase of all of the
Shares has not occurred.
10. Notices. Notice given pursuant to any of the provisions of this
Agreement shall be in writing and, unless otherwise specified, shall be mailed
or delivered (a) if to the Company, at the office of the Company, 1840 Gateway
Drive, San Mateo, California 94404, Attention: David A. Heaberlin, Executive
Vice President and Chief Financial Officer or (b) if to the Placement Agent, at
the office of the Placement Agent, 1001 19th Street North, Arlington, Virginia
22209, Attention: William Ginivan or (c) if to the Selling Stockholder, at the
office of Imperial Credit Industries, Inc., 23550 Hawthorne Boulevard, Building
1, Suite 110, Torrance, California 90505, Attention: Irwin L. Gubman, Esq.,
General Counsel.
11. Survival. The respective representations, warranties, agreements,
covenants, indemnities and other statements of the Company and its officers, the
Selling Stockholder and the Placement Agent set forth in this Agreement or made
by or on behalf of them, respectively, pursuant to this Agreement shall remain
in full force and effect, regardless of (i) any investigation made by or on
behalf of the Company or any of its officers or directors, the Selling
Stockholder, the Placement Agent or any control person referred to in Section 8
hereof and (ii) delivery of and payment for any of the Shares. The respective
agreements, covenants, indemnities and other statements set forth in Sections 6
and 8 hereof shall remain in full force and effect, regardless of any
termination or cancellation of this Agreement.
12. Successors. This Agreement shall inure to the benefit of and shall be
binding upon the Placement Agent, the Selling Stockholder, the Company and their
respective successors and legal representatives, and nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any other
person any legal or equitable right, remedy or claim under or in respect of this
Agreement, or any provisions herein contained, this Agreement and all conditions
and provisions hereof being intended to be and being for the sole and exclusive
benefit of such persons and for the benefit of no other person except that (i)
the indemnification and contribution contained in Sections 8(a) and (d) of this
Agreement shall also be for the benefit any person or persons who control the
Placement Agent or the Selling Stockholder within the meaning of the Act, (ii)
the indemnification and contribution contained in Sections 8(b) and (d)
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of this Agreement shall also be for the benefit of any person or persons who
control the Company or the Placement Agent within the meaning of the Act, and
(iii) the indemnification and contribution contained in Sections 8(c) and (d) of
this Agreement shall also be for the benefit of any person or persons who
control the Company or the Selling Stockholder within the meaning of the Act. No
Investor shall be deemed a successor because of such purchase.
13. Headings. Section headings in this Agreement are for convenience of
reference only, do not constitute a part of this Agreement, and shall not affect
its interpretation.
14. Changes. This Agreement may not be modified or amended except pursuant
to an instrument in writing signed by the Company, the Selling Stockholder and
the Placement Agent.
15. Applicable Law. The validity and interpretations of this Agreement, and
the terms and conditions set forth herein, shall be governed by and construed in
accordance with the laws of the State of Delaware, without giving effect to any
provisions relating to conflicts of laws.
16. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
[SIGNATURES APPEAR ON FOLLOWING PAGE; REMAINDER OF THIS
PAGE LEFT INTENTIONALLY BLANK]
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If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return to us the enclosed duplicate hereof, whereupon it will
become a binding agreement between the Company, the Selling Stockholder and the
Placement Agent in accordance with its terms.
Very truly yours,
BAY VIEW CAPITAL CORPORATION
By: /s/ Edward H. Sondker
----------------------------------------
Name: Edward H. Sondker
Title: President and Chief
Executive Officer
FMAX HOLDINGS, L.L.C.
By: Imperial Credit Industries, Inc., Managing
Member
By: /s/ Irwin L. Gubman
----------------------------------------
Name: Irwin L. Gubman
Title: General Counsel
The foregoing Placement Agency Agreement is hereby confirmed and
accepted as of the date first above written.
FRIEDMAN, BILLINGS, RAMSEY & CO., INC.
By: /s/ Karen K. Edwards
---------------------------------
Name: Karen K. Edwards
Title: Managing Director
