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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): March 17, 1999
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INVESTORS FINANCIAL SERVICES CORP.
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(Exact name of registrant as specified in its charter)
DELAWARE 0-26996 04-3279817
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(State or other jurisdiction
of incorporation or (Commission file (I.R.S. Employer
organization) number) Identification No.)
200 Clarendon Street, Boston, MA 02116
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number including area code: (617) 330-6700
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No change since last report
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(Former name or address, if changed since last report)
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Item 5. Other Events.
Stock Split
On February 16, 1999, the Board of Directors of Investors Financial
Services Corp. (the "Corporation") declared a two-for-one stock split in the
form of a 100% stock dividend (the "Stock Split") which was paid on March 17,
1999 to stockholders of record on March 1, 1999. As a result of the Stock Split,
on March 17, 1999 the total number of outstanding shares of the Corporation's
common stock increased by 100 percent.
On February 18, 1999, the Corporation issued a press release announcing
the Stock Split. A copy of this press release is attached as Exhibit 99.1 to
this Current Report on Form 8-K and is incorporated herein by reference.
Private Placement
On March 19, 1999, the Corporation entered into a stock purchase agreement
(the "Purchase Agreement") with Oakmont Corporation ("Oakmont") pursuant to
which the Corporation agreed, subject to customary closing conditions, to sell
to Oakmont or an assignee of Oakmont 900,000 shares of the Corporation's Common
Stock (the "Shares"), at a price of $29.00 per share, for an aggregate purchase
price of $26,100,000. On March 26, 1999, Oakmont assigned its rights and
liabilities under the Purchase Agreement to Hazlenut Partners, L.P. (the
"Investor"). On March 26, 1999, the transactions contemplated by the Purchase
Agreement were consummated, the Shares were issued to the Investor and the
Investor paid the Corporation $26,100,000.
The offer and sale of the Shares was exempt from registration under the
Securities Act of 1933, as amended (the "Securities Act"), pursuant to Section
4(2) and Rule 506 of Regulation D under the Securities Act in reliance upon
certain information available to the Corporation as of March 19, 1999 and March
26, 1999, including certain representations and warranties of Oakmont and the
Investor, each an "accredited investor" as such term is defined pursuant to Rule
501(b)(3) of Regulation D under the Securities Act.
On March 22, 1999, the Corporation issued a press release announcing the
signing of the Purchase Agreement. A copy of this press release is attached as
Exhibit 99.2 to this Current Report on Form 8-K and is incorporated herein by
reference.
On March 26, 1999, the Corporation issued a press release announcing the
consummation of the transactions contemplated by the Purchase Agreement. A copy
of this press release is attached as Exhibit 99.3 to this Current Report on Form
8-K and is incorporated herein by reference.
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Item 7. Financial Statements and Exhibits.
(a) Financial statements of business acquired.
Not applicable.
(b) Unaudited Pro Forma Combined Financial Information.
Not applicable.
(c) Exhibits.
2.1 Stock Purchase Agreement, dated as of March 19, 1999, by and
between Investors Financial Services Corp. and Oakmont
Corporation.
2.2 Assignment and Assumption Agreement dated as of March 26, 1999
by and among Investors Financial Services Corp., Oakmont
Corporation and Hazlenut Partners, L.P.
99.1 Press Release of the Registrant, dated February 18, 1999.
99.2 Press Release of the Registrant, dated March 22, 1999.
99.3 Press Release of the Registrant, dated March 26, 1999.
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SIGNATURE
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 thereunto duly authorized.
INVESTORS FINANCIAL SERVICES CORP.
By: /s/Kevin J. Sheehan
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Kevin J. Sheehan
President, Chief Executive Officer and
Chairman of the Board
Dated: March 29, 1999
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EXHIBIT INDEX
Exhibit No. Description
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2.1 Stock Purchase Agreement, dated as of March 19, 1999, by and
between Investors Financial Services Corp. and Oakmont
Corporation.
2.2 Assignment and Assumption Agreement dated as of March 26, 1999
by and among Investors Financial Services Corp., Oakmont
Corporation and Hazlenut Partners, L.P.
99.1 Press Release of the Registrant, dated as of February 18,
1999.
99.2 Press Release of the Registrant, dated as of March 22, 1999.
99.3 Press Release of the Registrant, dated as of March 26, 1999.
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Exhibit 2.1
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement is made as of the 19th day of March, 1999,
between Investors Financial Services Corp., a Delaware corporation with its
principal offices at 200 Clarendon Street, P.O. Box 9130, Boston, Massachusetts
02117-9130 (the "Company"), and Oakmont Corporation, a corporation with its
principal offices at 865 South Figueroa Street, Suite 700, Los Angeles,
California 90017 (the "Investor").
In consideration of the mutual covenants contained in this Agreement, the
Company and the Investor agree as follows:
1. Authorization of Sale of the Stock. Subject to the terms and conditions
of this Agreement, the Company has authorized the sale of up to 900,000 shares
of the Common Stock, $.01 par value (the "Stock"), of the Company to the
Investor.
2. Agreement to Sell and Purchase the Stock. Subject to the terms and
conditions of this Agreement, at the Closing (as defined in Section 3), the
Company will sell to the Investor, and the Investor will purchase from the
Company, upon the terms and conditions hereinafter set forth, 900,000 shares of
Stock at a purchase price per share of $29.00.
3. Delivery of the Stock at Closing. The completion of the purchase and
sale of the Stock (the "Closing") shall take place on March 26, 1999 at the
offices of Testa, Hurwitz & Thibeault, LLP, High Street Tower, 125 High Street,
Boston, MA 02110 or at such other time, date and place as the Company and the
Investor shall mutually agree. The date of the Closing is referred to herein as
the "Closing Date" At the Closing, the Company shall deliver to the Investor one
or more stock certificates representing the number of shares of Stock purchased
by the Investor hereunder, each such certificate to be registered in the name of
the Investor or, if so indicated on the signature page hereto, in the name of a
nominee designated by the Investor, or, if so directed by the Investor, the
Company shall arrange for the delivery of the Stock purchased hereunder to the
book-entry account of the Investor or its nominee.
The Company's obligation to close the transaction shall be subject to the
following conditions, any one or more of which may be waived by the Company: (a)
receipt by the Company of $26,100,000 in New York Clearinghouse funds; (b) the
accuracy as of the Closing Date of the representations and warranties made by
the Investor herein as though made as of the Closing Date; and (c) the
fulfillment of those undertakings of the Investor to be fulfilled prior to the
Closing as set forth herein.
The Investor's obligation to close the transaction shall be subject to the
following conditions, any one or more of which may be waived by the Investor:
(a) the accuracy in all material respects as of the Closing Date of the
representations and warranties made by the Company herein as though made as of
the Closing Date; and (b) the fulfillment of those undertakings of the Company
to be fulfilled prior to Closing as set forth herein.
4. Representations, Warranties and Covenants of the Company. The Company
hereby represents and warrants to, and covenants with, the Investor as follows:
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4.1 Organization and Qualification. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware. The Company has all requisite corporate power and authority to conduct
its business as currently conducted. The Company is duly qualified to do
business as a foreign corporation and is in good standing in each jurisdiction
where the character of the property owned or leased by it or the nature of its
activities makes such qualification necessary, except for those jurisdictions
where the failure to be so qualified would not have a material adverse effect
upon the financial condition, results of operations, business, properties or
assets of the Company and it subsidiaries, taken as a whole.
4.2 Authorized Capital Stock. As of March 18, 1999, the authorized capital
stock of the Company consisted of (i) 1,000,000 shares of Preferred Stock, of
which 100,000 shares have been designated Series A Junior Participating
Preferred Stock (the "Series A Preferred) and of which 900,000 shares were
undesignated, (ii) 650,000 shares of Class A Common Stock, and (iii) 20,000,000
shares of Common Stock, all with a par value of $.01 per share. As of March 18,
1999, there were no shares of Preferred Stock or Class A Common Stock
outstanding and there were 13,595,946 shares of Common Stock outstanding. As of
March 18, 1999, there were outstanding options to purchase 1,321,904 shares of
Common Stock and 780,534 shares available for grant under the Company's various
stock plans. Except as provided in the immediately preceding sentence of this
Section 4.2 and except pursuant to the Company's Rights Plan, as of March 18,
1999, there were no outstanding options, warrants, calls, rights, commitments or
agreements to which the Company is a party or by which the Company is bound
obligating the Company to (x) issue, deliver or sell, or cause to be issued,
delivered or sold, additional shares of capital stock of the Company or (y)
grant, execute or enter into any such option, warrant, call, right, commitment
or agreement. When issued and delivered to the Investor by the Company against
payment of the consideration set forth herein, the Stock will be validly issued,
fully paid and non-assessable.
4.3 Due Execution, Delivery and Performance of the Agreements. The
Company's execution, delivery and performance of this Agreement (a) has been
duly authorized by all necessary corporate action by the Company, (b) will not
violate (i) any provision of the Company's Certificate of Incorporation or
By-Laws, each as amended to date, or (ii) any provision of any material
indenture, mortgage, agreement, contract or other material instrument to which
the Company is a party or by which the Company or any of its properties or
assets is bound as of the date hereof, or result in a breach of or constitute
(upon notice or lapse of time or both) a default under any such material
indenture, mortgage, agreement, contract or other material instrument or result
in the creation or imposition of any lien, security interest, mortgage, pledge,
charge or other encumbrance of any material nature upon any properties or assets
of the Company and (c) will not require any authorization, consent, approval,
exemption or license from, or any registration with, any governmental authority
of the United States of America or the Commonwealth of Massachusetts, except for
Federal and state securities law filings. Upon its execution and delivery, and
assuming the valid execution thereof by the Investor, this Agreement will
constitute a valid and binding obligation of the Company, enforceable against
the Company in accordance with its terms, except as the enforceability thereof
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting creditors' and contracting parties' rights generally
and except as the enforceability thereof may be subject to the general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law) and except as the indemnification agreement of
the Company in this Agreement may be judicially determined to be legally
unenforceable as against public policy.
4.4 Additional Information. The Company has filed with the Securities and
Exchange Commission (the "Commission") all documents that the Company was
required to file with the
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Commission under the Securities Exchange Act of 1934, as amended (the "Exchange
Act") during the 24 months preceding the date of this Agreement. The Company's
Annual Report on Form 10-K for the fiscal year ended December 31, 1998 complied
in all material respects with the requirements of the Exchange Act as of its
filing date, and the information contained therein as of the date thereof did
not contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading. The Company has not made any filings with the Commission since
the filing of its Annual Report on Form 10-K for the fiscal year ended December
31, 1998. As of the date hereof, to the Company's knowledge (i) since the date
of filing of the Company's Annual Report on Form 10-K there has been no event
that would require the filing of a Current Report on Form 8-K, (ii) there is no
amendment required to be filed by the Company to its Annual Report on Form 10-K
for the fiscal year ended December 31, 1998 and (iii) there has not occurred any
event or series of events which is reasonably likely to constitute or result in
a Potential Material Event within the next thirty days.
4.5 Listing. Prior to the Closing, the Company shall comply in all
material respects with all requirements of the National Association of
Securities Dealers, Inc. with respect to the issuance of the Stock and the
listing thereof on the NASDAQ National Market.
4.6 Officer's Certificate. At the Closing, the Company shall deliver to
the Investor a certificate executed by each of the Chief Executive Officer and
Chief Financial Officer of the Company certifying that the representations and
warranties of the Company set forth herein are true and correct in all material
respects as of the Closing Date as if made on the Closing Date.
4.7 Legal Opinion. At the Closing, Testa, Hurwitz & Thibeault LLP, counsel
to the Company, will deliver its legal opinion to the Investor substantially to
the effect of the first sentence of Section 4.1, the first sentence and the last
sentence of Section 4.2, clauses (a) and (b)(i) of the first sentence of Section
4.3 and the last sentence of Section 4.3. At the Closing, the General Counsel of
the Company will deliver his legal opinion to the Investor substantially to the
effect of clause (c) of paragraph 4.3.
5. Representations, Warranties and Covenants of the Investor.
(a) The Investor represents and warrants to, and covenants with, the
Company that: (i) the Investor is an "accredited investor" as defined in
Regulation D under the Securities Act of 1933, as amended (the "Securities Act")
and the Investor is also knowledgeable, sophisticated and experienced in making
decisions with respect to investments in shares presenting an investment
decision like that involved in the purchase of the Stock, and has reviewed and
considered all information it deemed relevant in making an informed decision to
purchase the Stock; (ii) the Investor is acquiring the Stock in the ordinary
course of its business and for its own account for investment only and with no
present intention of distributing any of such shares of Stock or any arrangement
or understanding with any other persons regarding the distribution of such
shares of Stock, provided that the decision to sell the Stock remains in the
control of the Investor, notwithstanding the previous representation; (iii) the
Investor will not, directly or indirectly, offer, sell, pledge, transfer or
otherwise dispose of (or solicit any offers to buy, purchase or otherwise
acquire or take a pledge of) any of the shares of Stock except in compliance
with the Securities Act, applicable state securities laws and the respective
rules and regulations promulgated thereunder; (iv) the Investor has, in
connection with its decision to purchase the shares of Stock set forth herein,
relied only upon the representations and warranties of the Company contained
herein and the Company's filings with the Commission; and (v) the Investor
understands that the certificate representing the shares of Stock will bear a
legend to ensure compliance with the Securities Act and the Investor
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agrees to comply with the requirements of such legend until such shares of Stock
are eligible for sale under Rule 144(k) under the Securities Act or until such
shares of Stock have been sold under the Registration Statement.
(b) The Investor further represents and warrants to, and covenants
with, the Company that (i) the Investor has full right, power, authority and
capacity to enter into this Agreement and to consummate the transactions
contemplated hereby and has taken all necessary action to authorize the
execution, delivery and performance of this Agreement, and (ii) upon the
execution and delivery of this Agreement, this Agreement shall constitute a
valid and binding obligation of the Investor enforceable against the Investor in
accordance with its terms, except as the enforceability thereof may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' and contracting parties' rights generally and except as the
enforceability thereof may be subject to general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law) and except as the indemnification agreement of the Investor
herein may be judicially determined to be legally unenforceable as against
public policy.
6. Survival of Representations, Warranties and Agreements. Notwithstanding
any investigation made by any party to this Agreement, all covenants,
agreements, representations and warranties made by the Company and the Investor
herein shall survive the execution of this Agreement, the delivery to the
Investor of the shares of Stock being purchased and the payment therefor.
7. Restrictive Legend. Each certificate representing the Stock shall bear
substantially the following legend (in addition to any legends required under
the applicable state securities laws) until such shares of Stock are eligible
for sale under Rule 144(k) under the Securities Act or until such shares of
Stock have been sold under the Registration Statement:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED OR ANY STATE SECURITIES LAWS. SUCH SHARES MAY NOT
BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION, UNLESS
THE COMPANY RECEIVES AN OPINION OF COUNSEL SATISFACTORY TO THE
COMPANY STATING THAT SUCH SALE OR TRANSFER IS EXEMPT FROM SUCH
REGISTRATION.
8. Registration of the Registrable Shares.
8.1 Registration.
(a) The term "Potential Material Event" shall mean any of the
following: (i) the possession by the Company of material information not ripe
for disclosure in a registration statement, which shall be evidenced by
determinations in good faith by the President and Chief Executive Officer of the
Company that disclosure of such information would be detrimental to the business
and affairs of the Company and that the registration statement would be
materially misleading absent the inclusion of such information; or (ii) the
active pursuit of any extraordinary engagement or activity by the Company which
would, in the good faith determination of the President and Chief Executive
Officer of the Company, be adversely affected by disclosure in a registration
statement at such time, which determination shall be accompanied by a good faith
determination by the President and Chief Executive Officer of the Company that
the registration statement would be materially misleading absent the inclusion
of such information.
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(b) The term "Registrable Shares" means any shares of Stock
purchased by the Investor under the terms of this Agreement, and any additional
unregistered shares or other securities received by the Investor (i) as a stock
dividend on the Registrable Shares, (ii) pursuant to a stock split or similar
recapitalization of the Company's Common Stock or (iii) in exchange for
Registrable Shares whether pursuant to an exchange offer, reorganization or
otherwise, and held by the Investor; provided, however, that any such shares of
Stock that as of the date of the determination (i) have previously been sold,
transferred or assigned by the Investor or (ii) may be sold without limitation
pursuant to Rule 144(k) under the Securities Act, shall not be deemed
Registrable Shares or entitled to the benefits of the registration rights
granted hereunder.
(c) As soon as practicable after the Closing, but in any event
within thirty days after the Closing, the Company shall, subject to receipt of
necessary information from the Investor, prepare and file with the Commission a
Registration Statement on Form S-3 (the "Registration Statement") to enable the
sale of the Registrable Shares by the Investor from time to time through the
automated quotation system of the Nasdaq National Market or in
privately-negotiated transactions.
(d) If at any time prior to the effectiveness of the Registration
Statement (i) there is a Potential Material Event, then the Company may at its
option request that the Commission delay the effectiveness of the Registration
Statement for a reasonable period not in excess of 30 days from the time such
event, situation or activity is either publicly disclosed by the Company or no
longer exists, whichever first occurs.
(e) The Company shall use all reasonable efforts to maintain the
effectiveness of the registration of Registrable Shares pursuant to this Section
8.1 from its first date of effectiveness until March 26, 2001 (the "Effective
Period"); provided, however, that, notwithstanding anything to the contrary in
this Agreement, if at any time and from time to time after the first date of
effectiveness of the registration of Registrable Shares pursuant to this Section
8.1 the Company notifies the Investor in writing of the existence of a Potential
Material Event, the Investor shall not offer or sell any of their shares of
Stock from the time of the receipt of such notice to the earliest to occur of
(a) 48 hours after the public disclosure by the Company of the Potential
Material Event, (b) receipt of written notice from the Company that such
Potential Material Event no longer exists, or (c) the date 20 days after the
date of the notice of such Potential Material Event. The Company may exercise
its right to notify the Investor of the existence of a Potential Material Event
only twice.
8.2 Registration Procedures and Expenses. With respect to any registration
pursuant to Section 8.1, the Company shall:
(a) use all reasonable efforts, subject to receipt of necessary
information from the Investor, to cause the Registration Statement to become
effective as soon as practicable and in any event within 60 days after the
Registration Statement is filed by the Company with the Commission;
(b) prepare and file with the Commission such amendments and
supplements to the Registration Statement and the prospectus used in connection
therewith as may be reasonably necessary to keep the Registration Statement
effective without any misstatement of any material fact or any omission of any
fact necessary to make the statements therein (in light of the circumstances
under which they were made) not misleading until March 26, 2001 as is required
for the intended method of distribution, or such shorter period which will
terminate when all the Registrable Shares covered by such Registration Statement
have been sold or withdrawn;
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(c) furnish to the Investor with respect to the Registrable Shares
registered under the Registration Statement (and to each underwriter, if any, of
such Registrable Shares) such number of copies of prospectuses and preliminary
prospectuses in conformity with the requirements of the Securities Act and such
other documents as the Investor may reasonably request in order to facilitate
the public sale or other disposition of all or any of the Registrable Shares by
the Investor, provided, however, that the obligation of the Company to deliver
copies of prospectuses or preliminary prospectuses to the Investor shall be
subject to the receipt by the Company of reasonable assurances from the Investor
that the Investor will comply with the applicable provisions of the Securities
Act and of such other securities or blue sky laws as may be applicable in
connection with any use of such prospectuses or preliminary prospectuses;
(d) file documents required of the Company for normal blue sky
clearance in states specified in writing by the Investor, provided, however,
that the Company shall not be required to qualify to do business or consent to
service of process in any jurisdiction in which it is not now so qualified or
has not so consented; and
(e) bear all expenses in connection with the procedures in paragraph
(a) through (e) of this Section 8.1 and the registration of the Registrable
Shares pursuant to the Registration Statement, other than fees and expenses, if
any, of counsel or other advisers to the Investor and other than underwriters'
or brokers' discounts or commissions.
8.3 Transfer of Stock After Registration. The Investor agrees that it will
not effect any disposition of the Stock that would constitute a sale within the
meaning of the Securities Act except as contemplated in the Registration
Statement referred to in Section 8.2 and that it will promptly notify the
Company of any changes in the information set forth in the Registration
Statement regarding the Investor or its Plan of Distribution. Upon receipt of
such notification from the Investor, the Company shall promptly file and use its
reasonable efforts to have declared effective at the earliest date practicable,
an amendment or supplement reflecting such change of information regarding the
Investor or its Plan of Distribution.
8.4 Indemnification. For the purpose of this Section 8.4:
(a) the term "Selling Stockholder" shall include the Investor and
any affiliate of such Investor;
(b) the term "Registration Statement" shall include any final
prospectus, exhibit, supplement or amendment included in or relating to the
Registration Statement referred to in Section 8.2;
(c) the term "Untrue Statement" shall include any untrue statement
or alleged untrue statement of a material fact in the Registration Statement, or
any omission or alleged omission to state in the Registration Statement a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
The Company agrees to indemnify and hold harmless each Selling Stockholder
from and against any losses, claims, damages, liabilities, costs (including,
without limitation, costs of preparation and the fees and disbursements of
counsel to such Selling Stockholder) and expenses (including expenses of
investigation) (collectively "Losses") to which such Selling Stockholder may
become subject (under the Securities Act or otherwise), as incurred, insofar as
such Losses (or actions or proceedings in respect thereof) arise out of, or are
based upon any Untrue Statement or arise out of any failure by the Company
<PAGE>
to fulfill any undertaking included in the Registration Statement, provided,
however, that the Company shall not be liable in any such case to the extent
that such loss, claim, damage or liability arises out of, or is based upon, an
Untrue Statement made in such Registration Statement in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
such Selling Stockholder specifically for use in preparation of the Registration
Statement, or the failure of such Selling Stockholder to comply with the
covenants and agreements contained in Section 8.3 hereof respecting sale of the
Stock or any Untrue Statement or omission in any prospectus that is corrected in
any subsequent prospectus that was delivered to the Investor prior to the
pertinent sale or sales by such Selling Stockholder.
The Investor agrees to indemnify and hold harmless the Company (and each
person, if any, who controls the Company within the meaning of Section 15 of the
Securities Act, each officer of the Company who signs the Registration Statement
and each director of the Company) from and against any Losses to which the
Company (or any such officer, director or controlling person) may become subject
(under the Securities Act or otherwise), insofar as such Losses (or actions or
proceedings in respect thereof) arise out of, or are based upon, any failure to
comply with the covenants and agreements contained in Section 8.3 hereof
respecting sale of the Stock, or any Untrue Statement if such Untrue Statement
was made in reliance upon and in conformity with written information furnished
by or on behalf of the Investor specifically for use in preparation of the
Registration Statement (as such information may be amended or supplemented
pursuant to Section 8.3 hereof).
Promptly after receipt by any indemnified person of a notice of a claim or
the beginning of any action in respect of which indemnity is to be sought
against an indemnifying person pursuant to this Section 8.4, such indemnified
person shall notify the indemnifying person in writing of such claim or of the
commencement of such action, and, subject to the provisions hereinafter stated,
if any such action shall be brought against an indemnified person, such
indemnifying person shall be entitled to participate therein at its own expense,
and, to the extent it shall wish, to assume the defense thereof, with counsel
reasonably satisfactory to such indemnified person. After notice from the
indemnifying person to such indemnified person of its election to assume the
defense thereof, such indemnifying person shall not be liable to such
indemnified person for any legal expenses subsequently incurred by such
indemnified person in connection with the defense thereof, provided, however,
that if there exists or shall exist a conflict of interest or separate and
different defenses that would make it inappropriate, in the opinion of counsel
to the indemnified person, for the same counsel to represent both the
indemnified person and such indemnifying person or any affiliate or associate
thereof, the indemnified person shall be entitled to retain its own counsel at
the expense of such indemnifying person; provided, however, that no indemnifying
person shall be responsible for the fees and expenses of more than one separate
counsel for any indemnified parties. No indemnifying person, in the defense of
any such claim or action, shall, except with the consent of each indemnified
person, consent to entry of any judgment or enter into any settlement which does
not include as an unconditional term thereof the giving by the claimant or
plaintiff to such indemnified person of a release from all liability with
respect to such claim or litigation.
8.5 Information Available. So long as the Registration Statement is
effective covering the resale of Stock owned by the Investor, the Company will
furnish to the Investor:
(a) as soon as practicable after available one copy of (i) its
Annual Report to Stockholders (which Annual Report shall contain financial
statements audited in accordance with generally accepted accounting principles
by a national firm of certified public accountants), (ii) if not included in
substance in the Annual Report to Stockholders, its Annual Report on Form 10-K,
(iii) if not included in substance in its Quarterly Reports to Stockholders, its
Quarterly Reports on Form 10-Q and
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all reports on Form 8-K or any similar or successor form, and (iv) a full copy
of the particular Registration Statement covering the Stock and all amendments
or supplements thereto (the foregoing, in each case, excluding exhibits);
(b) upon the reasonable request of the Investor, all exhibits
excluded by the parenthetical to subparagraph (a)(iv) of this Section 8.5 and
all other information that is made available to stockholders; and
(c) upon the reasonable request of the Investor, an adequate number
of copies of the prospectuses to supply to any other party requiring such
prospectuses.
8.6 Nontransferability. Except as provided in Section 9 hereof, the
registration rights granted in this Agreement apply only to the Registrable
Shares owned by the Investor and may not be assigned or transferred in
connection with a sale or other transfer of Registrable Shares or otherwise.
9. Acknowledgment. The Company acknowledges the Investor's intent to
assign this Agreement pursuant to an assignment document reasonably acceptable
to the Company, prior to the Closing, to an affiliate of the Investor. The
Investor agrees that it shall cause all members or partners of such entity to
execute appropriate investor representations at or prior to the Closing. Upon
such assignment, such affiliate shall be the "Investor" for purposes of this
Agreement.
10. Notices. All notices, requests, consents and other communications
hereunder shall be in writing, shall be mailed by first-class registered or
certified airmail, or nationally recognized overnight express courier, postage
prepaid, and shall be deemed given when so mailed and shall be delivered as
addressed as follows:
(a) if to the Company, to:
Investors Financial Services Corp.
200 Clarendon Street
P.O. Box 9130
Boston, MA 02117-9130
Attn: John E. Henry, General Counsel
Telecopy: (617) 946-1929
(b) if to the Investor, to:
Oakmont Corporation
865 S. Figueroa Street
Suite 700
Los Angeles, CA 90017
Attn: Jonathan D. Jaffrey
Telecopy: (213) 452-2822
11. Changes. This Agreement may not be modified or amended except pursuant
to an instrument in writing signed by the Company and the Investor.
12. Headings. The headings of the various section of this Agreement have
been inserted for convenience of reference only and shall not be deemed to be
part of this Agreement.
<PAGE>
13. Severability. In case any provision contained in this Agreement should
be invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein shall not in any way
be affected or impaired thereby.
14. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware.
15. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original, but all of which, when
taken together, shall constitute but one instrument, and shall become effective
when one or more counterparts have been signed by each party hereto and
delivered to the other parties.
16. Successors and Assigns. Except as provided in Section 8.6 hereof, the
provisions of this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the day
and year first written above.
OAKMONT CORPORATION
By: /s/ Jonathan D. Jaffrey
-----------------------------------
Jonathan D. Jaffrey
Managing Director
INVESTORS FINANCIAL SERVICES CORP.
By: /s/ Kevin J. Sheehan
-----------------------------------
Kevin J. Sheehan
President and Chief Executive Officer
<PAGE>
Exhibit 2.2
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT is entered into this 26th
day of March , 1999 by and among Oakmont Corporation, a California corporation
("Oakmont"), Hazelnut Partners, L.P., a California limited partnership ("Buyer")
and Investors Financial Services Corp., a Delaware corporation (the "Company").
WHEREAS, Oakmont is a party that certain Stock Purchase Agreement
dated March 19, 1999 among Oakmont and the Company (the "Purchase Agreement");
WHEREAS, Oakmont desires to transfer and assign to Buyer all of its
rights under the Purchase Agreement and Buyer desires to assume all of Oakmont's
obligations under the Purchase Agreement;
NOW, THEREFORE, for and in consideration of the mutual covenants
contained herein and other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Oakmont hereby irrevocably transfers, conveys, assigns and
delivers to Buyer all of Oakmont's right, title and interest in, to and under
the Purchase Agreement (the "Assigned Rights") to have and to hold the same unto
Buyer, its successors and assigns, forever.
2. Buyer hereby accepts the transfer, conveyance, assignment and
delivery of the Assigned Rights and undertakes and agrees from and after the
date hereof to assume and to pay, perform and discharge when due all of the
obligations of Oakmont arising under or in connection with the Purchase
Agreement (the "Assumed Obligations"). Buyer hereby agrees to indemnify and hold
harmless Oakmont and its officers, directors, employees, agents and affiliates
from any and all losses, liabilities and expenses (including attorneys' fees)
caused by or arising out of any failure of Buyer to discharge any of the Assumed
Obligations.
3. At any time or from time to time after the date hereof, at the
request of either Oakmont or Buyer, as the case may be, and without further
consideration, Oakmont or Buyer, as the case may be, shall, at the request of
the other party, execute and deliver to the requesting party such other
instruments of sale, transfer, conveyance, assignment, confirmation and
assumption, provide such materials and information and take such other actions
as the requesting party may reasonably deem necessary or desirable in order more
effectively, as applicable, to give effect to the agreements set forth herein.
4. The Company hereby consents to the foregoing assignment and
assumption, agrees that Buyer shall be the Investor under the
Purchase Agreement and releases Oakmont from any liability
thereunder, except that Oakmont shall not be released from
liability for any breach by Oakmont of Section 5(a) of the
Purchase Agreement.
5. Buyer hereby represents and warrants to Oakmont and the
Company that it is an "accredited investor" as defined in
Regulation D under the Securities Act of 1933, as amended.
Each of Buyer and Oakmont, severally but not jointly and as
to itself alone, represents and warrants to the Company
that this Assignment and Assumption Agreement is a valid
and binding obligation of Buyer and Oakmont, as the case
may be, enforceable by the Company against Buyer and
Oakmont, as the case may be, in accordance with its terms,
except as the enforceability thereof may be limited by
applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' and
contracting parties' rights generally and except as the
enforceability thereof may be subject to general principles
of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
<PAGE>
6. No person or entity, other than Oakmont, Buyer and the Company
and their respective successors and assigns, shall have any rights under this
Assignment and Assumption Agreement or the provisions contained herein.
7. This Assignment and Assumption Agreement shall be governed by and
construed in accordance with the laws of the State of California applicable to a
contract executed and performed in such State without giving effect to the
conflicts of laws principles thereof.
8. This Assignment and Assumption Agreement may be executed in any
number of counterparts, each of which will be deemed an original, but all of
which together will constitute one and the same instrument.
<PAGE>
IN WITNESS WHEREOF, the undersigned have caused their duly
authorized officers to execute this Assignment and Assumption Agreement on the
day and year first above written.
OAKMONT CORPORATION
By: /s/Jonathan Jaffrey
--------------------------------------
Name: Jonathan Jaffrey
Title: Managing Director
HAZELNUT PARTNERS, L.P.
By: /s/Robert Day
--------------------------------------
Name: Robert Day
Title: General Partner
INVESTORS FINANCIAL SERVICES CORP.
By: /s/Kevin J. Sheehan
--------------------------------------
Name: Kevin J. Sheehan
Title: President and Chief Executive Officer
<PAGE>
Exhibit 99.1
INVESTORS FINANCIAL SERVICES CORP. ANNOUNCES TWO-FOR-ONE STOCK SPLIT
Contact: Karen C. Keenan
(617) 330-6001
[email protected]
BOSTON, MA, February 18, 1999 - Investors Financial Services Corp. (Nasdaq:
IFIN) today announced that its Board of Directors approved a two-for-one stock
split of the Company's common stock. Payable in the form of a 100 percent stock
dividend, all shareholders of record at the close of business on March 1, 1999
will receive one additional share for each share owned. The additional shares
will be distributed to shareholders on or about March 17, 1999. Upon completion
of the stock split, the Company will have approximately 13.5 million shares of
common stock outstanding.
"We believe that the stock-split will further improve trading liquidity
and broaden ownership of the Company's common stock," stated Kevin J.
Sheehan, President and Chief Executive Officer.
Investors Financial Services Corp. provides asset administration services
for the financial services industry through its wholly-owned subsidiaries,
Investors Bank & Trust Company(R) and Investors Capital Services, Inc. The
Company provides global custody, multicurrency accounting, institutional
transfer agency, performance measurement, foreign exchange, securities lending,
mutual fund administration and investment advisory services to financial asset
managers, including mutual fund complexes, investment advisors, banks and
insurance companies. Visit Investors Financial on the web at
http://www.ibtco.com.
<PAGE>
Exhibit 99.2
INVESTORS FINANCIAL SERVICES CORP. ANNOUNCES PRIVATE PLACEMENT
Contact: Karen C. Keenan
(617) 330-6001
[email protected]
BOSTON, MA, March 22, 1999 - Investors Financial Services Corp. (Nasdaq: IFIN)
today announced that it has agreed to sell 900,000 shares of its Common Stock,
at a price of $29.00 per share, in a private placement to one investor. The
Company expects to close the private placement on or about March 26, 1999,
subject to the satisfaction of customary closing conditions.
The offer and sale of these shares was exempt from registration under the
Securities Act of 1933 as amended (the "Securities Act"), pursuant to Section
4(2) and Rule 506 of Regulation D under the Securities Act in reliance upon
certain information available to the Company as of March 19, 1999, including
certain representations and warranties of the purchaser of the shares, Oakmont
Corporation, an "accredited investor" as such term is defined in Rule 501(b)(3)
of Regulation D under the Securities Act. The Company has agreed to file a
registration statement for the resale of all 900,000 shares upon closing of the
private placement.
Investors Financial Services Corp. provides asset administration services
for the financial services industry through its wholly-owned subsidiaries,
Investors Bank & Trust Company(R) and Investors Capital Services, Inc. The
Company provides global custody, multicurrency accounting, institutional
transfer agency, performance measurement, foreign exchange, securities lending,
mutual fund administration and investment advisory services to financial asset
managers, including mutual fund complexes, investment advisors, banks and
insurance companies. Visit Investors Financial on the web at
http://www.ibtco.com.
<PAGE>
Exhibit 99.3
INVESTORS FINANCIAL SERVICES CORP. COMPLETES PRIVATE PLACEMENT
Contact: Karen C. Keenan
(617) 330-6001
[email protected]
BOSTON, MA, March 26, 1999 - Investors Financial Services Corp. (Nasdaq: IFIN)
today announced that it completed the sale of 900,000 shares of its Common
Stock, at a price of $29.00 per share, in a private placement to one investor.
The Company has agreed to file a registration statement for the resale of all
900,000 shares within thirty days.
Investors Financial Services Corp. provides asset administration services
for the financial services industry through its wholly-owned subsidiaries,
Investors Bank & Trust Company(R) and Investors Capital Services, Inc. The
Company provides global custody, multicurrency accounting, institutional
transfer agency, performance measurement, foreign exchange, securities lending,
mutual fund administration and investment advisory services to financial asset
managers, including mutual fund complexes, investment advisors, banks and
insurance companies. Visit Investors Financial on the web at
http://www.ibtco.com.
