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Exhibit 8
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
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(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
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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
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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
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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
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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
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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.
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(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
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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.
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(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
10
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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
11
<PAGE>
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.
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<PAGE>
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.
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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
Chief Financial Officer
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
