$40,000,000
GBC BANCORP
____ % SUBORDINATED NOTES DUE 2007
PURCHASE AGREEMENT
▇▇▇▇▇ ▇▇▇▇▇▇▇ INC. ______________, 1997
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, INC.
▇▇▇▇▇▇▇▇▇▇▇ & CO., INC.
c/o ▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇ Tower
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Pursuant to the terms of this Purchase Agreement (this "Agreement"),
GBC Bancorp, a California corporation (the "Company"), proposes to sell to the
underwriters named in Schedule I hereto (the "Underwriters"), an aggregate of
$40,000,000 in aggregate principal amount of its ____% Subordinated Notes due
2007 (the "Notes"). The Notes are to be sold to the Underwriters, acting
severally and not jointly in such amounts as are set forth in Schedule I hereto
opposite the name of such Underwriter. The Notes are to be issued pursuant to an
Indenture (the "Indenture"), to be dated as of __________, 1997, among the
Company and BNY Western Trust Company, as trustee (the "Trustee").
The Company hereby confirms its agreement with respect to the purchase
and sale of the Notes:
1. REGISTRATION STATEMENT AND PROSPECTUS. The Company has prepared and
-------------------------------------
filed with the Securities and Exchange Commission (the "Commission") in
conformity with the provisions of the Securities Act of 1933, as amended, and
the rules and regulations (the "Rules and Regulations") of the Commission
thereunder (collectively, the "Act"), a registration statement on Form S-3 (File
No. 333-30269), including a preliminary prospectus and a Statement of
Eligibility on Form T-1 with respect to the Trustee (File No. __________)
pursuant to the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act"), relating to the Notes; one or more amendments to such registration
statement have also been so prepared and have been, or will be, so filed; and,
if the Company has elected to rely upon Rule 462(b) under the Act to increase
the size of the offering registered under the Act, the Company will prepare and
file with the Commission a registration statement with respect to such increase
pursuant to Rule 462(b). Copies of such registration statement(s) and amendments
and each related preliminary prospectus have been delivered to you.
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If the Company has elected not to rely upon Rule 430A of the Rules and
Regulations, the Company has prepared and will promptly file an amendment to the
registration statement and an amended prospectus (including a term sheet meeting
the requirements of Rule 434 of the Rules and Regulations). If the Company has
elected to rely upon Rule 430A of the Rules and Regulations, it will prepare and
file a prospectus (or a term sheet meeting the requirements of Rule 434)
pursuant to Rule 424(b) that discloses the information previously omitted from
the prospectus in reliance upon Rule 430A. Such registration statement as
amended at the time it is or was declared effective by the Commission, and, in
the event of any amendment thereto after the effective date and prior to the
Closing Date (as hereinafter defined), such registration statement as so amended
(but only from and after the effectiveness of such amendment), including a
registration statement (if any) filed pursuant to Rule 462(b) of the Rules and
Regulations increasing the size of the offering registered under the Act and
information (if any) deemed to be part of the registration statement at the time
of effectiveness pursuant to Rules 430A(b) and 434(d) of the Rules and
Regulations, is hereinafter called the "Registration Statement." The prospectus
included in the Registration Statement at the time it is or was declared
effective by the Commission is hereinafter called the "Prospectus," except that
if any prospectus (including any term sheet meeting the requirements of Rule 434
of the Rules and Regulations provided by the Company for use with a prospectus
subject to completion within the meaning of Rule 434 in order to meet the
requirements of Section 10(a) of the Rules and Regulations) filed by the Company
with the Commission pursuant to Rule 424(b) (and Rule 434, if applicable) of the
Rules and Regulations or any other such prospectus provided to the Underwriters
by the Company for use in connection with the offering of the Notes (whether or
not required to be filed by the Company with the Commission pursuant to Rule
424(b) of the Rules and Regulations) differs from the prospectus on file at the
time the Registration Statement is or was declared effective by the Commission,
the term "Prospectus" shall refer to such differing prospectus (including any
term sheet within the meaning of Rule 434 of the Rules and Regulations) from and
after the time such prospectus is filed with the Commission or transmitted to
the Commission for filing pursuant to such Rule 424(b) (and Rule 434, if
applicable) or from and after the time it is first provided to the Underwriters
by the Company for such use. The term "Preliminary Prospectus" as used herein
means any preliminary prospectus included in the Registration Statement prior to
the time it becomes or became effective under the Act and any prospectus subject
to completion as described in Rule 430A or 434 of the Rules and Regulations. Any
reference herein to 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 as of the date of such Prospectus. Any reference to any amendment
or supplement to the Prospectus (including any supplement to the Prospectus)
shall be deemed to refer to and include any documents filed after the date of
such Prospectus under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and incorporated therein by reference.
2. AGREEMENT TO SELL AND PURCHASE. On the basis of the representations,
------------------------------
warranties and agreements of the Company herein contained and subject to the
terms and conditions set forth herein, the Company hereby agrees to issue and
sell to the Underwriters, and each Underwriter agrees, severally and not
jointly, to purchase from the Company, at the purchase price of $_____
2
per $1,000 principal amount, the aggregate principal amount of Notes set forth
opposite the name of such Underwriter in Schedule I hereto (or such aggregate
principal amount of Notes as such Underwriter shall be obligated to purchase
pursuant to the provisions of Section 10 hereof).
3. TERMS OF PUBLIC OFFERING. The Company is advised by the Underwriters
------------------------
that the Underwriters have agreed to make a public offering of their respective
portions of the Notes as soon after the Registration Statement has become
effective and this Agreement has been executed as in the judgment of the
Underwriters is advisable and to first offer the Notes upon the terms set forth
in the Prospectus.
4. DELIVERY OF THE NOTES AND PAYMENT THEREFOR. The Notes to be purchased
------------------------------------------
by each Underwriter in book-entry form and in authorized denominations and
registered in the name of the nominee of The Depository Trust Company, shall be
delivered by or on behalf of the Company through the facilities of The
Depository Trust Company for the account of such Underwriter, against payment by
such Underwriter or on its behalf of the purchase price therefor by certified or
official bank check or checks or wire transfer of same day funds payable to the
order of the Company at the offices of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, at 8:00 a.m., California time, on the third (or
if the Notes are priced, as contemplated by Rule 15c6-1(c) under the Exchange
Act, after 4:30 p.m. Eastern time on the date of this Agreement, the fourth)
business day following the date of this Agreement, (the "Closing Date"). The
place of the closing and the Closing Date may be varied by agreement among the
Underwriters and the Company. Delivery of the Notes may be made by credit
through full fast transfer to the accounts at The Depository Trust Company
designated by the Underwriters.
5. AGREEMENTS OF THE COMPANY. The Company agrees with the several
-------------------------
Underwriters as follows:
(i) If the Registration Statement has not already been declared
effective by the Commission, the Company will use its best efforts to cause the
Registration Statement and any post-effective amendments thereto to become
effective as promptly as possible; the Company will notify you promptly of the
time when the Registration Statement or any post-effective amendment to the
Registration Statement has become effective or any supplement to the Prospectus
(including any term sheet within the meaning of Rule 434 of the Rules and
Regulations) has been filed and of any request by the Commission for any
amendment or supplement to the Registration Statement or Prospectus or
additional information; if the Company has elected to rely on Rule 430A of the
Rules and Regulations, the Company will prepare and file a Prospectus (or term
sheet within the meaning of Rule 434 of the Rules and Regulations) containing
the information omitted therefrom pursuant to Rule 430A of the Rules and
Regulations with the Commission within the time period required by, and
otherwise in accordance with the provisions of, Rules 424(b), 430A and 434, if
applicable, of the Rules and Regulations; if the Company has elected to rely
upon Rule 462(b) of the Rules and Regulations to increase the size of the
offering registered under the Act, the Company will prepare and file a
registration statement with respect to such increase with the
3
Commission within the time period required by, and otherwise in accordance with
the provisions of, Rule 462(b); the Company will prepare and file with the
Commission, promptly upon your request, any amendments or supplements to the
Registration Statement or Prospectus (including any term sheet within the
meaning of Rule 434 of the Rules and Regulations) that, in your opinion, may be
necessary or advisable in connection with the distribution of the Notes by the
Underwriters; and the Company will not file any amendment or supplement to the
Registration Statement or Prospectus (including any term sheet within the
meaning of Rule 434 of the Rules and Regulations), other than filings made under
the Exchange Act with the exception of the Company's quarterly report on Form
10-Q for the quarter ended June 30, 1997, to which you shall reasonably object
by notice to the Company after having been furnished a copy a reasonable time
prior to the filing.
(ii) The Company will advise you, promptly after it shall receive
notice or obtain knowledge thereof, of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement, of the
suspension of the qualification of the Notes for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceeding for any such
purpose; and the Company will promptly use its best efforts to prevent the
issuance of any stop order or to obtain its withdrawal if such a stop order
should be issued.
(iii) Within the time during which a prospectus (including any term
sheet within the meaning of Rule 434 of the Rules and Regulations) relating to
the Notes is required to be delivered under the Act, the Company will comply as
far as it is able with all requirements imposed upon it by the Act, as now and
hereafter amended, and by the Rules and Regulations, as from time to time in
force, so far as is necessary to permit the continuance of sales of or dealings
in the Notes as contemplated by the provisions hereof and the Prospectus. If
during such period any event occurs as a result of which the Prospectus would
include an untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances then
existing, not misleading, or if during such period it is necessary to amend the
Registration Statement or supplement the Prospectus to comply with the Act, the
Company will promptly notify you and will amend the Registration Statement or
supplement the Prospectus (at the expense of the Company) so as to correct such
statement or omission or effect such compliance.
(iv) The Company will furnish to each of the Underwriters and their
counsel, without charge, one signed copy of the Registration Statement and of
each amendment thereto, including all exhibits thereto and documents
incorporated therein by reference, and will also furnish to each of the
Underwriters, without charge, such number of conformed copies of the
Registration Statement and of each amendment thereto as each of the Underwriters
may reasonably request.
(v) The Company will not file any amendment to the Registration
Statement or make any amendment or supplement to the Prospectus, other than
filings made under the Exchange Act with the exception of the Company's
quarterly report on Form 10-Q for the quarter
4
ended June 30, 1997, of which the Underwriters shall not previously have been
advised or to which any of the Underwriters promptly after being so advised
shall reasonably have objected in writing.
(vi) Prior to the effective date of the Registration Statement, the
Company will have delivered or will deliver to each Underwriter, without charge,
copies of each form of preliminary prospectus in such quantities as such
Underwriter has reasonably requested or may hereafter reasonably request for the
purposes contemplated by the Act.
(vii) On the effective date of the Registration Statement and
thereafter from time to time during such period as in the opinion of counsel for
the Underwriters a prospectus is required by law to be delivered in connection
with offers or sales of the Notes by an Underwriter or a dealer, the Company
will deliver to each Underwriter and dealer, without charge, as many copies of
the Prospectus (and of any amendment or supplement thereto) as they may
reasonably request. During such period, if any event occurs which in the
judgment of the Company, or in the opinion of counsel for the Underwriters,
should be set forth in the Prospectus in order to ensure that no part of the
Prospectus includes an untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances at the time the Prospectus is delivered to a purchaser, not
misleading, the Company will forthwith prepare, submit to the Underwriters, file
with the Commission and deliver, without charge to the several Underwriters and
dealers (whose names and addresses will be furnished by the Underwriters to the
Company) to whom Notes have been sold by the Underwriters or to other dealers
upon request, an amendment or supplement, as appropriate, to the Prospectus so
that the statements in the Prospectus, as so amended or supplemented, will
comply with the standards set forth in this sentence. The Company consents to
the use of such Prospectus (and of any amendments or supplements thereto) in
accordance with the provisions of the Act and with the securities or Blue Sky
laws of the jurisdictions described in the preliminary Blue Sky memorandum in
which the Notes are lawfully offered by the several Underwriters and by all
dealers to whom Notes may be sold, both in connection with the offering or sale
of the Notes and for such period of time thereafter as the Prospectus is
required by law to be delivered in connection therewith. In case any
Underwriter is required to deliver a Prospectus (and any amendment or supplement
thereto) more than nine months after the first date upon which the Notes are
offered to the public, the Company will, upon the request of the Underwriters
but at the expense of such Underwriter, furnish such Underwriter with reasonable
quantities of a Prospectus complying with Section 10(a)(3) of the Act.
(viii) The Company will cooperate with the Underwriters and counsel
for the Underwriters in connection with the registration or qualification of the
Notes for offer and sale by the several Underwriters and by dealers under the
securities or Blue Sky laws of such jurisdictions as the Underwriters may
designate and will file such consents to service of process or other documents
as may be necessary in order to effect such registration or qualification;
provided that in no event shall the Company be obligated (w) to qualify to do
business in any jurisdiction where it is not now so qualified, (x) to file any
general consent to service of process, (y) take any action
5
that would subject it to income taxation in any jurisdiction where it is not so
qualified or (z) to take any action to amend its Articles of Incorporation in
order to make the Company's securities eligible for registration or
qualification in any state.
(ix The Company will make generally available to the holders of Notes
an earnings statement of the Company and its subsidiaries, which need not be
audited, as soon as practicable but not later than 18 months after the effective
date of the Registration Statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Act and the rules and regulations of the
Commission thereunder (including Rule 158).
(x) For a period of five years after the date of this Agreement:
(A) the Company will furnish to the Underwriters (1) as soon as
available, a copy of each report of the Company of general interest mailed to
any class of its security holders, (2) copies of all annual, quarterly reports
and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K and
any amendment thereto or such other similar forms as may be designated by the
Commission or required to be filed by the Company pursuant to Sections 13, 14
and 15 of the Exchange Act, which the Company agrees to timely file with the
Commission for so long as may be required, (3) a copy of each report furnished
to or filed with any securities exchange or the National Market of the National
Association of Securities Dealers Automated Quotation System ("Nasdaq National
Market") and (4) from time to time, such other information concerning the
Company as the Underwriters may reasonably request; and
(B) if at any time during such five-year period, the Company shall
cease filing with the Commission the annual, quarterly reports and current
reports on Forms 10-K, 10-Q and 8-K or other similar forms referred to in clause
(A) above, the Company will forward to the Underwriters (1) as soon as
practicable after the end of each fiscal year, copies of a balance sheet and
statements of income and retained earnings of the Company as of the end of and
for such fiscal year, audited by independent public accountants, and (2) as soon
as practicable after the end of each quarterly fiscal period, except for the
last quarterly fiscal period in each fiscal year, a summary statement (which
need not be audited) of income and retained earnings of the Company for such
period, which shall also be made publicly available.
If and so long as the Company shall have any subsidiaries, the financial
statements referred to above shall be consolidated to the extent the accounts of
the Company and such subsidiaries are consolidated, and separate financial
statements shall be furnished for each significant subsidiary, as defined in
Regulation S-X of the Commission, whose accounts are not so consolidated.
(xi) Prior to the Closing Date, the Company will issue no press
release or other public communication directly or indirectly and hold no press
conference with respect to the Company or any subsidiary or this offering,
without the Underwriters' prior written consent.
6
(xii) Company will pay, or reimburse if paid by the Underwriters,
whether or not the transactions contemplated hereby are consummated or this
Agreement is prevented from becoming effective under the provisions of Section
11 hereof or is terminated, all costs and expenses incident to the performance
by it of its obligations under this Agreement including, without limiting the
generality of the foregoing, (1) typesetting, printing, duplicating, and filing
(and all preparation therefor) and distribution (including, without limitation,
postage, air freight charges and charges for counting and packaging) of the
original registration statement, the Registration Statement, each Preliminary
Prospectus, the Prospectus, each amendment and/or supplement to any of the
foregoing, and this Agreement and other underwriting documents and the
Indenture, (2) all costs of furnishing to the several Underwriters and dealers
copies of the foregoing materials, (3) the registrations or qualifications
referred to in paragraph (viii) above (including reasonable fees and
disbursements of counsel in connection therewith) and expenses of printing and
delivering to the several Underwriters copies of the preliminary and final Blue
Sky memorandum, (4) the review of the terms of the public offering of the Notes
by the National Association of Securities Dealers, Inc. (the "NASD") (including
the filing fees paid to the NASD in connection therewith) and the reasonable
fees and disbursements of counsel for the Underwriters in connection therewith,
(5) the performance by the Company of its other obligations under this
Agreement, including the fees of the Company's counsel and accountants, (6) the
issuance of the Notes and the preparation and printing of the certificates
representing the Notes, (7) the fees and expenses of the Trustee and any agent
of the Trustee and any transfer or paying agent for the Company, (8) all travel,
lodging and reasonable living expenses incurred by the Company in connection
with marketing, dealer and other meetings attended by the Company and the
Underwriters in marketing the Notes, (9) listing fees, if any, (10) any fees
charged by security rating services for rating the Notes and (11) furnishing to
the several Underwriters copies of all reports and information required by
paragraph (x) above, including costs of shipping and mailing.
(xiii) If the sale of the Notes provided for herein is not
consummated by reason of action by the Company pursuant to Section 11 hereof
which prevents this Agreement from becoming effective, or by reason of any
failure, refusal or inability on the part of the Company to perform any
agreement on its part to be performed, or because any other condition of the
Underwriters' obligations hereunder required to be fulfilled by the Company is
not fulfilled, the Company will reimburse the several Underwriters for all out-
of-pocket disbursements (including fees and disbursements of counsel) incurred
by the Underwriters in connection with their investigation, preparing to market
and marketing the Notes or in contemplation of performing their obligations
hereunder. The Company shall not in any event be liable to any of the
Underwriters for loss of anticipated profits from the transactions covered by
this Agreement.
(xiv) The Company will apply the net proceeds from the sale of the
Notes to be sold by it under this Agreement for the purposes set forth in the
Prospectus under the caption "Use of Proceeds."
7
(xv) The Company will comply (1) with all registration, filing and
reporting requirements of the Exchange Act which may from time to time be
applicable to the Company and (2) all provisions of all undertakings contained
in the Registration Statement.
(xvi) The Company will not incur any liability for any finder's or
broker's fee or agent's commission in connection with the execution and delivery
of this Agreement or the consummation of the transactions contemplated hereby.
(xvii) The Company has not taken and will not take, directly or
indirectly, any action designed to or which might reasonably be expected to
cause or result in, or which has constituted, the stabilization or manipulation
of the price of any security of the Company to facilitate the sale or resale of
the Notes.
6. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents
---------------------------------------------
and warrants to each Underwriter that:
(i) Each Preliminary Prospectus, at the time of filing thereof, did
not contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
except that the foregoing shall not apply to statements in or omissions from any
Preliminary Prospectus in reliance upon, and in conformity with, information
furnished in writing to the Company by any Underwriter expressly for use in the
Prospectus.
(ii) As of the time the Registration Statement (or any post-effective
amendment thereto) is or was declared effective by the Commission, upon the
filing or first delivery to the Underwriters of the Prospectus (or any
supplement to the Prospectus (including any term sheet meeting the requirements
of Rule 434)) and at the Closing Date, (A) the Registration Statement and
Prospectus (in each case, as so amended or supplemented) conformed or will
conform in all material respects to the requirements of the Act and Regulations,
(B) the Registration Statement (as so amended) did not or will not include an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading,
and (C) the Prospectus (as so supplemented) did not or will not include an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in the light of
the circumstances in which they are or were made, not misleading; provided,
however, that this representation and warranty shall not apply to the Statement
of Eligibility of the Trustee on Form T-1 filed as an Exhibit to the
Registration Statement or to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Company by any
Underwriter specifically for use in the preparation of the Registration
Statement or the Prospectus (in each case, as amended or supplemented). The
Registration Statement has been declared effective by the Commission; no stop
order suspending the effectiveness of the Registration Statement has been
issued; and no proceeding for that purpose has been initiated or to the
Company's knowledge, threatened by the Commission.
8
(iii) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder, and none of such documents contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein, 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, or any amendment or supplement
thereto, when such documents become effective or are filed with the Commission,
as the case may be, will conform in all material respects to the requirements of
the Act or the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder and will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances in which they
are made not misleading; provided, however, that this representation and
warranty shall not apply to the Statement of Eligibility of the Trustee on Form
T-1 filed as an Exhibit to the Registration Statement or to any statements or
omissions made in reliance upon and in conformity with information furnished in
writing to the Company by any Underwriter expressly for use in the Prospectus as
supplemented to relate to the Notes.
(iv) The Registration Statement and Prospectus conform, and any
amendments or supplements thereto will conform, in all material respects to the
requirements of the Trust Indenture Act, and the rules and regulations of the
Commission thereunder and do not and will not, as of the applicable effective
date in the case of the Registration Statement and any amendment thereto and as
of the applicable filing date as to the Prospectus and any amendment or
supplement thereto, 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, provided, however, that this representation
and warranty shall not apply to the Statement of Eligibility of the Trustee on
Form T-1 filed as an Exhibit to the Registration Statement or to any statements
or omissions made in reliance upon and in conformity with information furnished
in writing to the Company by any Underwriter expressly for use in the Prospectus
as supplemented to relate to the Securities.
(v) Any contract, agreement, instrument, lease, or license required to
be described in the Registration Statement or Prospectus has been properly
described therein. Any contract, agreement, instrument, lease, or license
required to be filed as an exhibit to the Registration Statement has been filed
with the Commission as an exhibit to the Registration Statement.
(vi) KPMG Peat Marwick LLP, the Company's auditors, are independent
public accountants with respect to the Company as required by the Act.
(vii) The consolidated financial statements and schedules of the
Company and its consolidated subsidiaries and the financial information with
respect to the subsidiaries of the Company included or incorporated by reference
in the Registration Statement and the Prospectus
9
present fairly the financial position of the Company and its consolidated
subsidiaries (including, without limitation, the reserves for credit losses) as
of the dates indicated, and the results of operations, cash flows and changes in
financial position of the Company and its consolidated subsidiaries for the
periods specified. Such financial statements and schedules have been prepared in
conformity with generally accepted accounting principles applied on a consistent
basis throughout the entire period involved, except to the extent disclosed
therein. No other financial statements are required to be included in the
Registration Statement or Prospectus.
(viii) The Company has been duly organized and is validly existing as
a corporation in good standing under the laws of the State of California and is
duly registered as a bank holding company under the Bank Holding Company Act of
1956, as amended, supervised by the Board of Governors of the Federal Reserve
System (the "FRB"). The Company has all requisite corporate power and corporate
authority to own or lease its property and conduct its business as described in
the Registration Statement and the Prospectus and is qualified to do business as
a foreign corporation in each jurisdiction in which the ownership or lease of
its properties, or the conduct of its business, requires such qualification and
in which the failure to be so qualified or in good standing would have a
material adverse effect on the financial condition, affairs, business or
prospects of the Company and the Subsidiaries (defined below) considered as a
whole. The Company does not own or lease property or transact business in any
other jurisdiction where the ownership of such property or the transaction of
such business would require it to qualify as a foreign corporation under the
laws of such jurisdiction.
(ix) The Company has an authorized and outstanding capitalization as
set forth in the Prospectus and the Notes conform in all material respects to
the description thereof contained in the Prospectus. All of the issued and
outstanding shares of capital stock of the Company and all of the issued and
outstanding shares of capital stock of each Subsidiary have been duly
authorized, validly issued and are fully paid and non-assessable and, in the
case of the Subsidiaries, are owned of record and beneficially by the Company,
and, except as set forth in the Registration Statement, are free and clear of
any liens, claims, security interests, pledges, charges, encumbrances,
shareholders' agreements, and voting trusts or rights of others. Except as set
forth in the Prospectus and other than shares of common stock issuable upon
exercise of options under the Company's stock option plans, there are no
options, agreements, contracts, preemptive rights, or other rights in existence
(i) to acquire from the Company any shares of capital stock or (ii) to acquire
from the Company or any Subsidiary any of the capital stock of any Subsidiary.
(x) The Company has no direct or indirect significant subsidiaries (as
such term is defined in Regulation S-X of the Commission) except for General
Bank, a state bank chartered under the banking laws of the State of California
(the "Bank" or a "Subsidiary"). Other than GBC Venture Capital, Inc., a
California corporation, GBC Investment and Consulting Company, Inc., a
California corporation, GBC Insurance Services, Inc., a California corporation,
Southern Counties Escrow , a California corporation, and GBC Leasing Company,
Inc., a California corporation, (each a "Subsidiary" and, together with the
Bank, the "Subsidiaries"), the Company
10
owns no capital stock or other equity or ownership or proprietary interest in
any corporation, partnership, association, trust or other entity.
(xi) Each of the Subsidiaries has been duly organized and is validly
existing as a corporation and is in good standing under the laws of its
jurisdiction of incorporation or charter, has all requisite corporate power and
corporate authority to own, lease and operate its properties and conduct its
business as described in the Registration Statement and Prospectus. Each of the
Subsidiaries is duly qualified to do business as a foreign corporation and is in
good standing in each jurisdiction in which the ownership or lease of its
properties, or the conduct of its business, requires such qualification and in
which the failure to be so qualified or in good standing would have a material
adverse effect on the financial condition, affairs, business or prospects of the
Company and the Subsidiaries considered as a whole. The accounts of the Bank
are insured by the Bank Insurance Fund of the Federal Deposit Insurance
Corporation (the "FDIC") up to the maximum applicable amount in accordance with
the rules and regulations of the FDIC, and no proceedings for the termination or
revocation of such membership or insurance are pending, or, to the knowledge of
the Company, threatened.
(xii) Each of the Company and each Subsidiary has all necessary and
material authorizations, approvals, licenses, certificates, permits and orders
(collectively, "Permits") of and from all governmental regulatory officials and
bodies to own its properties and to conduct its business as presently conducted;
except in any case where the failure to possess any such Permit would not have a
material adverse effect on the financial condition, affairs, business or
prospects of the Company and the Subsidiaries considered as a whole.
(xiii) The Indenture, which will be substantially in the form filed
as an exhibit to the Registration Statement, has been duly authorized and duly
qualified under the Trust Indenture Act and when executed and delivered by the
Company and the Trustee, the Indenture will have been duly authorized, executed
and delivered by the Company and will constitute a valid and legally binding
agreement of the Company, enforceable against the Company in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization,
moratorium and other laws affecting creditors' rights generally and to general
principles of equity; and the Indenture conforms in all material respects to the
description thereof in the Prospectus.
(xiv) The Notes have been duly authorized and, when executed and
authenticated in accordance with the terms of the Indenture and issued and
delivered in accordance with the terms of this Agreement against payment
therefor, will have been duly authorized, executed, authenticated and delivered
by the Company and will constitute valid and binding obligations of the Company
entitled to the benefits of the Indenture, enforceable against the Company in
accordance with their terms, subject, as to such benefit and enforcement, to
bankruptcy, insolvency, reorganization, moratorium and other laws affecting
creditors' rights generally and to general principles of equity; the Notes
conform in all material respects to the description thereof contained in the
Prospectus and will be substantially in the form filed as an exhibit to the
Registration Statement.
11
(xv) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, except as otherwise stated or
contemplated therein, there has not been (A) any material adverse change in the
condition (financial or otherwise), affairs, business or key personnel,
property, prospects, net worth or results of operations of the Company and its
Subsidiaries considered as a whole, whether or not arising in the ordinary
course of business, (B) any material transaction entered into, or any material
liability or obligation incurred, direct or contingent, by the Company or any
Subsidiary, other than in the ordinary course of business, (C) any change in the
capital stock (other than the issuance of shares of common stock upon the
exercise of options under the Company's stock option plans), or material
increase in the short-term debt or long-term debt of the Company or any
Subsidiary, or any issuance of options, warrants, convertible securities or
other rights to purchase the capital stock of the Company or any Subsidiary
(other than the issuance of options or the issuance of shares of common stock
upon the exercise of options under the Company's stock option plans) or (D) any
dividend or distribution of any kind declared, paid or made by the Company on
its capital stock other than the dividend on the Company's common stock paid on
July 15, 1997.
(xvi) The Company and the Subsidiaries have good and marketable title
to all properties and assets described in the Prospectus as owned by them, free
and clear of all liens, charges, encumbrances or restrictions, except such as
are referred to in the Prospectus or are not materially significant in relation
to the financial condition, affairs, business or prospects of the Company and
the Subsidiaries considered as a whole; all of the leases and subleases material
to the business of the Company or under which the Company or any Subsidiary
holds properties described in the Prospectus are in full force and effect; and
neither the Company nor any Subsidiary has any notice of any material claim of
any sort which has been asserted by anyone adverse to the rights of the Company
or such Subsidiary as owner or as lessee or sublessee under any of the leases or
subleases mentioned above, or affecting or questioning the rights of the Company
or the Subsidiary to the continued possession of the leased or subleased
premises under any such lease or sublease.
(xvii) Neither the Company nor any Subsidiary is in default nor will
the performance of this Agreement or the issuance and sale of the Notes result
in a default in the observance of any provision of its charter, certificate of
incorporation or by-laws, or in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract, indenture, mortgage,
loan agreement, note, lease, license or other agreement or instrument to which
it is a party or by which it or any of its respective properties are subject or
may be bound, which would have a materially adverse effect on the financial
condition, affairs, business or prospects of the Company and the Subsidiaries
considered as a whole. No consent of any party to any contract, indenture,
mortgage, loan agreement, note, lease, license or other agreement or instrument
to which the Company or any Subsidiary is a party, or by which it or any of its
respective properties or assets are subject or may be bound, is required for the
execution, delivery or performance of this Agreement, or the issuance and sale
of the Notes, other than such consents which have been obtained.
12
(xviii) This Agreement has been duly authorized, executed and
delivered by the Company, and constitutes a valid, legal and binding obligation
of the Company, enforceable in accordance with its terms, except as rights to
indemnity hereunder may be limited by federal or state securities laws and
except as such enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting the rights of creditors generally and
subject to general principles of equity. The Company has full power and
authority to enter into this Agreement and to authorize, issue and sell the
Notes as contemplated by this Agreement.
(xix) The execution and delivery by the Company of this Agreement and
the Indenture, the issuance and delivery of the Notes, the consummation of the
transactions contemplated herein and in the Registration Statement and
compliance with the terms of this Agreement have been duly authorized by all
necessary corporate action and will not result in any violation of the Articles
of Incorporation or Bylaws of the Company, and will not conflict with or result
in a breach of any of the terms or provisions of, or constitute a default under,
or result in the creation or imposition of any lien, charge or encumbrance upon
any property or assets of the Company or any Subsidiary under any contract,
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument to which the Company or any Subsidiary is a party or by which the
Company or any Subsidiary, or any of their respective properties, is bound, or
any existing applicable law, rule, regulation, judgment, order or decree of any
government, governmental instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any Subsidiary or any of their respective
properties.
(xx) No consent, approval, authorization or order of, or filing with
any court, governmental authority or agency having jurisdiction over the Company
or any Subsidiary is required in connection with the execution, delivery and
performance of this Agreement or for the consummation of the transactions
contemplated hereby, including the issuance, sale and delivery of the Notes in
accordance with the terms of this Agreement and the Indenture, except such as
may be required under the Act, the Securities Exchange Act of 1934, as amended,
the Trust Indenture Act, the New York Stock Exchange and state securities or
Blue Sky laws.
(xxi) Neither the Commission nor the Blue Sky or securities authority
of any jurisdiction has issued a stop order (a "Stop Order") suspending the
effectiveness of the Registration Statement, preventing or suspending the use of
any Preliminary Prospectus, the Prospectus, the Registration Statement, or any
amendment or supplement thereto, refusing to permit the effectiveness of the
Registration Statement, suspending the registration or qualification of the
Notes, nor has any of such authorities instituted or, to the knowledge of the
Company, threatened to institute, any proceedings with respect to a Stop Order.
(xxii) Except as disclosed in the Prospectus, there is no action,
suit or proceeding before or by any court or governmental agency or body,
domestic or foreign, or any arbitrator or arbitration panel, now pending or, to
the knowledge of the Company, threatened against or affecting the Company or any
Subsidiary which might result in any material adverse change in the financial
condition, affairs, business, prospects, net worth or results of operations of
the Company
13
and the Subsidiaries considered as a whole, or which might materially and
adversely affect their properties or assets; and there is no decree, judgment or
order of any kind in existence against or restraining the Company or any
Subsidiary, or any of the officers, employees or directors of either, from
taking any actions of any kind in connection with the business of the Company or
any Subsidiary.
(xxiii) The Company is and each of its Subsidiaries is in compliance
with all applicable federal, state and local laws and regulations to which they
are subject or that regulate the business of the Company or its Subsidiaries,
where the effect of the failure to comply would be materially adverse to the
financial condition, affairs, business or prospects of the Company and the
Subsidiaries considered as a whole.
(xxiv) The Bank owns or possesses, or can acquire on reasonable
terms, trademarks, service marks and trade names necessary to conduct the
business now operated by it, and the Bank has not received any notice of
infringement of or conflict with asserted rights of others with respect to any
trademarks, service marks or trade names which, singly or in the aggregate, if
the subject of any unfavorable decision, ruling or finding, would materially
adversely effect the financial condition, affairs, business or prospects of the
Company and the Subsidiaries considered as a whole.
(xxv) The Company and each of its Subsidiaries has filed all
necessary federal and state income and franchise tax returns and paid all taxes
shown as due thereon. Except as is otherwise expressly stated in the
Registration Statement, the Company has no knowledge of any tax deficiency which
might be asserted against it which would have a material adverse effect on the
financial condition, affairs, business or prospects of the Company and the
Subsidiaries considered as a whole.
(xxvi) The Company and the Subsidiaries are not and do not intend to
conduct their businesses in a manner which would cause any of them to be an
"investment company" as defined in Section 3(a) of the Investment Company Act of
1940, as amended (the "Investment Company Act").
(xxvii) To the best of the Company's knowledge, there are no
affiliations between (i) any of the Company's officers, directors or 5% or
greater security holders, and (ii) any Underwriter or NASD-registered broker or
dealer except as set forth in the Registration Statement or as otherwise
disclosed in writing to the Underwriters.
(xxviii) The Notes have been duly authorized for listing by the New
York Stock Exchange upon official notice of issuance.
(xxix) The Company has not distributed and will not distribute any
prospectus or other offering material in connection with the offering and sale
of the Notes other than any
14
Preliminary Prospectus or the Prospectus or other materials permitted by the Act
to be distributed by the Company.
(xxx) The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurances that (i) transactions are executed
in accordance with management's general or specific authorization; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain accountability for assets; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and (iv) the
recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(xxxi) No hazardous substances, hazardous wastes, pollutants or
contaminants have been deposited or disposed of in, on or under the properties
of the Company or any Subsidiary (including properties owned, managed or
controlled by a Subsidiary in connection with its lending operations) during the
period in which the Company or any Subsidiary has owned, occupied, managed,
controlled or operated such properties in material violation of any applicable
law, ordinance, rule, regulation, order, judgment, decree or permit or which
would require remedial action under any applicable law, ordinance, rule,
regulation, order, judgment, decree or permit, except for any violation or
remedial action which would not have, or could not be reasonably likely to have,
singularly or in the aggregate with all such violations or remedial actions, a
material adverse effect on the general affairs, condition (financial, or
otherwise), business, key personnel, property, prospects, net worth or results
of operations of the Company and its Subsidiaries, taken as a whole.
7. INDEMNIFICATION AND CONTRIBUTION.
--------------------------------
(a) The Company agrees to indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise (including in
settlement of any litigation if such settlement is effected with the written
consent of the Company), insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon a untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement, including the information deemed to be a part of the
Registration Statement at the time of effectiveness pursuant to Rules 430A and
434(d) under the Act, if applicable, any Preliminary Prospectus, the Prospectus,
or any amendment or supplement thereto (including any term sheet within the
meaning of Rule 434 under the Act), 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 Underwriter for any legal or other out-of-pocket expenses
reasonably incurred by it in connection with investigating or defending against
such loss, claim, damage, liability or action; provided, however, that the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage, liability or action
15
rises out of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in the Registration Statement, any Preliminary
Prospectus, the Prospectus, or any such amendment or supplement, in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter specifically for use in the preparation thereof.
In addition to their other obligations under this Section 7(a), the Company
agrees that, as an interim measure during the pendency of any claim, action,
investigation, inquiry or other proceeding arising out of or based upon any
statement or omission, or any alleged statement or omission, described in this
Section 7(a), they will reimburse each Underwriter on a monthly basis for all
reasonable legal fees or other out-of-pocket expenses incurred in connection
with investigating or defending any such claim, action, investigation, inquiry
or other proceeding, notwithstanding the absence of a judicial determination as
to the propriety and enforceability of the Company's obligation to reimburse the
Underwriters for such expenses and the possibility that such payments might
later be held to have been improper by a court of competent jurisdiction. To
the extent that any such payments might later be held to have been improper by a
court of competent jurisdiction. To the extent that any such interim
reimbursement payment is so held to have been improper, the Underwriter that
received such payment shall promptly return it to the party or parties that made
such payment, together with interest, compounded daily, determined on the basis
of the prime rate (or other commercial lending rate for borrowers of the highest
credit standing) announced from time to time by Norwest Bank Minnesota, National
Association (the "Prime Rate"). Any such interim reimbursement payments which
are not made to an Underwriter within 30 days of a request for reimbursement
shall bear interest a the Prime Rate from the date of such request. This
indemnity agreement shall be in addition to any liabilities which the Company
may otherwise have.
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise (including in settlement of any
litigation, if such settlement is effected with the written consent of such
Underwriter), insofar such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement, any
Preliminary Prospectus, the Prospectus, or an amendment or supplement thereto
(including any term sheet within the meaning of Rule 434 under the Act), or
arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in the Registration Statement, any Preliminary
Prospectus, the Prospectus, or any such amendment or supplement, in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter specifically for use in the preparation thereof, and will reimburse
the Company for any legal or other out-of-pocket expenses reasonably incurred by
the Company in connection with investigating or defending against any such loss,
claim, damage, liability or action.
16
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; provided, however, that the failure so to
notify the indemnifying party shall not relieve the indemnifying party from any
liability that it may have under this Section 7 except to the extent it has been
materially prejudiced by such failure and, provided further, that the failure to
notify the indemnifying party shall not relieve it from any liability which it
may have to an indemnified party otherwise than under this Section 7. In case
any such action shall be brought against any indemnified party, and it shall
notify the indemnifying party of the commencement thereof, the indemnifying
party shall be entitled to participate in, and, to the extent that it shall
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel satisfactory to such indemnified party, and
after notice from the indemnifying party to such indemnified party of the
indemnifying party's election so to assume the defense thereof, the indemnifying
party shall not be liable to such indemnified party under such subsection for
any legal or other out-of-pocket expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation; provided, however, that if, in the sole judgment of the
Underwriters, it is advisable for the Underwriters to be represented as a group
by separate counsel, the Underwriters shall have the right to employ a single
counsel to represent themselves, in which event the reasonable fees and expenses
of such separate counsel shall be borne by the indemnifying party or parties and
reimbursed to the Underwriters as incurred (in accordance with the provisions of
the second paragraph in subsection (a) above). An indemnifying party shall not
be obligated under any settlement agreement relating to any action under this
Section 7 to which it has not agreed in writing.
(d) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above, (i)
in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters on the other from the
offering of the Notes 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 on the one hand and the Underwriters on the other
in connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other shall be deemed to be in the same proportion
as the total net proceeds from the offering (before deducting expenses) received
by the Company bear to the total underwriting discounts and commissions received
by the Underwriters, in each case as set forth in the table on the cover page of
the Prospectus. The relative fault shall be determined by reference to among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company or the Underwriters and the parties'
relevant intent, knowledge, access
17
to information and opportunity to correct or prevent such untrue statement or
omission. The Company and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this subsection (d) were to be determined
by pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to in the first sentence of this
subsection (d). 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 (d) shall be deemed to include any legal or other out-of-pocket
expenses reasonably incurred by such indemnified party in connection with
investigating or defending against any action or claim which is the subject of
this subsection (d). Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Notes underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages that
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this subsection
(d) to contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Company under this Section 7 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 7 shall be in addition to any liability that the
respective Underwriters may otherwise have and shall extend, upon the same terms
and conditions, to each director of the Company (including any person who, with
his consent, is named in the Registration Statement as about to become a
director of the Company), to each officer of the Company who has signed the
Registration Statement and to each person, if any, who controls the Company
within the meaning of the Act.
8. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS. The several obligations
-------------------------------------------
of the Underwriters to purchase the Notes hereunder are subject to the following
conditions:
(a) The Registration Statement shall have become effective not later
than 5:00 p.m., Eastern time, on the date hereof, or at such later date and time
as shall be consented to in writing by the Underwriters, and, if the
Underwriters and the Company have elected to rely upon Rule 430A under the Act,
the price of the Notes and any price-related or other information previously
omitted from the Registration Statement pursuant to such Rule 430A under the Act
shall have been transmitted to the Commission for filing pursuant to Rule 424
(b) within the prescribed time period, and on or prior to the Closing Date, the
Company shall have provided evidence satisfactory to the Underwriters of such
timely filing, or a post-effective amendment providing such information shall
have been promptly filed and declared effective in accordance with the
requirements of Rule 430A.
18
(b) Subsequent to the effective date of the Registration Statement,
(i) there shall not have occurred any change, or any material development
involving a prospective change, in or affecting particularly the business or
properties of the Company and the Subsidiaries, taken as a whole, not
contemplated by the Prospectus, which, in the Underwriters' opinion would
materially adversely affect the market for the Notes or make it impracticable or
inadvisable to proceed with the offering or the delivery of the Notes, as
contemplated herein and in the Prospectus, or to attempt to enforce contracts
for the purchase of the Notes, and (ii) the business and operations of the
Company and the Subsidiaries shall not have been materially interfered with by
strike, fire, flood, accident or other calamity (whether or not insured).
(c) The Underwriters shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇,
counsel for the Company, a favorable opinion dated the Closing Date and
satisfactory to the Underwriters and the Underwriters' counsel to the effect
that:
(i) Each of the Company and the Bank has been duly organized and is
validly existing as a corporation in good standing under the laws of its
jurisdiction of incorporation; each has all requisite corporate power and
corporate authority to own, lease and operate its properties and conduct its
business as described in the Registration Statement and the Prospectus. The
Bank is wholly-owned by the Company and the Bank and GBC Venture Capital, Inc.
are the Company's only direct subsidiaries.
(ii) The Company has an authorized capitalization as set forth in the
Prospectus. Each outstanding share of capital stock of the Company is duly
authorized, validly issued, fully paid and non-assessable and each outstanding
share of capital stock of the Bank is duly authorized, validly issued, fully
paid assessable, in the manner and to the extent provided in the California
Financial Code, has not been issued and is not owned or held in violation of any
preemptive right of shareholders. Each outstanding share of capital stock of
the Bank is owned of record and, to such counsel's knowledge, beneficially by
the Company and, except as disclosed in the Registration Statement, to the
knowledge of such counsel, is held free and clear of all liens, claims, security
interests, pledges, charges, encumbrances, shareholders' agreements, voting
trusts or claims of others. To such counsel's knowledge, except as set forth in
the Prospectus, neither the Board of Directors of the Company nor any committee
thereof has authorized or entered into any commitment or arrangement to issue,
and neither the Board of Directors nor any committee thereof has authorized the
issuance of any outstanding option, warrant or other right calling for the
issuance or sale of, any share of capital stock of the Company or the Bank or
any security or other instrument which by its terms is convertible into,
exercisable for or exchangeable for capital stock of the Company or the Bank.
To such counsel's knowledge, neither the Board of Directors nor any committee
thereof of the Bank has authorized any options, agreements, contracts or other
rights in existence to purchase or acquire from the Company or the Bank any
issued and outstanding shares of the capital stock of the Company or the Bank.
(ii) This Agreement has been duly authorized, executed and delivered
by the Company.
19
(iv) The Notes have been duly and validly authorized, executed and
delivered by the Company and when delivered and paid for pursuant hereto will
constitute valid and binding obligations of the Company entitled to the benefits
of the Indenture, enforceable against the Company in accordance with their
terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general equitable principles.
(v) The Indenture has been duly authorized, executed and delivered by
the Company and constitutes a valid and legally binding obligation of the
Company, enforceable against the Company in accordance with its terms, subject
to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
and to general equitable principles.
(vi) All regulatory consents, authorizations, approvals and filings
required to be obtained or made by the Company under the Federal laws of the
United States and the laws of the States of New York and California for the
issuance, sale and delivery of the Notes by the Company to you have been
obtained or made.
(vii) The issuance of the Notes in accordance with the Indenture and
the sale of the Notes by the Company to you pursuant to this Agreement do not,
and the performance by the Company of its obligations under the Indenture, this
Agreement and the Note will not (A) violate the Company's or the Bank's
Articles of Incorporation or Bylaws, (B) result in a default under or breach of
the agreements identified to us as material to the Company and the Subsidiaries
in the Officers' Certificate, dated the date of this opinion, of ▇▇▇▇▇ ▇▇▇▇,
Chief Financial Officer of the Company or (C) violate any Federal law of the
United States or law of the States of New York or California applicable to the
Company or its Subsidiaries; provided that such counsel may state that they
express no opinion with respect to Federal or state securities laws, other
antifraud laws and fraudulent transfer laws, and that insofar as performance by
the Company of its obligations under the Indenture, this Agreement and the
Notes, such counsel need express no opinion as to bankruptcy, insolvency,
reorganization, moratorium and similar laws of general applicability relating
to or affecting creditors' rights.
(viii) The Registration Statement has become effective under the Act,
and, to the best of the knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued, nor has any
proceeding for the issuance of such an order been initiated or, to the knowledge
of such counsel, threatened.
(ix) Such counsel does not know of any pending or threatened
litigation which would prevent the consummation of the transactions contemplated
by this Agreement or the Indenture.
20
(x) The Company and the Subsidiaries are not an "investment company"
or a person "controlled by" an "investment company" within the meaning of the
Investment Company Act.
In addition, you shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ a letter
stating that as counsel to the Company, they reviewed the Registration Statement
and the Prospectus, participated in discussions with your representatives and
those of the Company and its accountants, and advised the Company as to the
requirements of the Act and the applicable rules and regulations thereunder; on
the basis of the information that such counsel gained in the course of the
performance of such services, considered in the light of their understanding of
the applicable law (including the requirements of Form S-3 and the character of
the prospectus contemplated thereby) and the experience they have gained through
their practice under the Act, they confirm to you that, in their opinion, the
Registration Statement and the Prospectus, as of the effective date of the
Registration Statement, appeared on their face to be appropriately responsive in
all material respects to the requirements of the Act, the Trust Indenture Act
and the applicable rules and regulations of the Commission thereunder; nothing
that came to such counsel's attention in the course of such review has caused
such counsel to believe that the Registration Statement or the Prospectus, as of
such 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; nothing that has come to such
counsel's attention in the course of the limited procedures described in such
letter has caused them to believe that the Prospectus, as of the date and time
of delivery of such letter, 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, and such counsel do not know of any litigation or any governmental
proceeding instituted or threatened against the Company or any of its
consolidated Subsidiaries that would be required to be disclosed in the
Prospectus and is not so disclosed, and do not know of any documents that are
required to be filed as exhibits to the Registration Statement and are not so
filed or of any documents that are required to be summarized in the Prospectus
and are not so summarized. Such counsel may state that the limitations inherent
in the independent verification of factual matters and the character of
determinations involved in the registration process are such that they do not
assume any responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus except for
those made under the captions "Risk Factors -- Source of Payments to Holder of
Notes," "-- Limited Right of Acceleration of Notes," "--Limited Covenants," "--
Subordination of Notes" and "-- Regulation" and "Description of Notes" in the
Prospectus insofar as they relate to provisions of the Indenture and the Notes
therein described and the caption "Underwriting" insofar as they relate to
provisions of this Agreement; that such counsel do not express any opinion or
belief as to the financial statements or other financial data derived from
accounting records contained in the Registration Statement or the Prospectus, or
as to the statement of the eligibility and qualification of the Trustee under
the Indenture; and that their letter is furnished as counsel for the Company to
the several Underwriters and is solely for the benefit of the several
Underwriters.
21
In rendering such opinions, such counsel may rely as to matters of
fact, to the extent they deem proper on certificates of responsible officers of
the Company and the Subsidiaries and on certificates of public officials.
(d) The Underwriters shall have received on the Closing Date a
favorable opinion dated the Closing Date from ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP,
counsel for the Underwriters, as to such matters as the Underwriters may
reasonably require.
(e) The Underwriters shall have received letters addressed to the
Underwriters and dated the date hereof and the Closing Date, as the case may be,
from KPMG Peat Marwick LLP, independent public accountants for the Company,
substantially in the forms heretofore approved by the Underwriters and counsel
for the Underwriters.
(f) That (i) no Stop Order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been taken or, to the knowledge of the Company, shall be
contemplated by the Commission at or prior to the Closing Date; (ii) there shall
not have been any change in the capital stock of the Company or any Subsidiary
nor any material increase in the short or long-term debt of the Company and its
Subsidiaries taken as a whole from that set forth or contemplated in the
Registration Statement and Prospectus; (iii) the Company and its Subsidiaries
shall not have incurred any material liabilities or obligations, direct or
contingent (whether or not in the ordinary course of business), other than those
reflected in or contemplated by the Registration Statement and Prospectus; and
(iv) all of the representations and warranties of the Company contained in this
Agreement shall be true and correct in all material respects on and as of the
date hereof and on and as of the Closing Date as if made on and as of each such
date, and the Underwriters shall have received a certificate, dated the Closing
Date and in form and substance reasonably satisfactory to the Underwriters
signed by the President or a Vice President and the Chief Financial Officer of
the Company (or such other officers as are acceptable to the Underwriters) to
the effect set forth in this Section 8(f) and in Section 8(h) hereof.
(g) The Notes shall have been qualified for sale or exempted from such
qualification under the securities laws of such jurisdictions as the
Underwriters shall have designated prior to the time of execution of this
Agreement and such qualification or exemption shall continue in effect to and
including the Closing Date.
(h) The Company shall not have failed at or prior to the Closing Date
to have performed or complied in all material respects with any of the
agreements herein contained and required to be performed or complied with by it
at or prior to the Closing Date.
(i) The Notes shall not have received from Duff & ▇▇▇▇▇▇ Credit Rating
Co. a credit rating lower than BB-.
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9. REPRESENTATIONS AND AGREEMENTS TO SURVIVE DELIVERY. All
--------------------------------------------------
representations, warranties, and agreements of the Company herein or in
certificates delivered pursuant hereto, and the agreements of the Company and
the Underwriters contained in Section 7 hereof shall remain operative and in
full force and effect regardless of any investigation made by the Underwriters
or on the Underwriters' behalf or any controlling person thereof, or the Company
or any of its officers, directors, or controlling persons and shall survive
delivery of, and payment for, the Notes to and by the Underwriters hereunder.
10. EFFECTIVE DATE OF AGREEMENT.
---------------------------
(a) If the Registration Statement has not yet been declared effective,
this Agreement shall become effective contemporaneously with the effectiveness
of the Registration Statement. Until such time as this Agreement shall have
become effective, it may be terminated by the Company by notifying the
Underwriters, or by the Underwriters by notifying the Company.
(b) If any Underwriter shall fail or refuse to purchase Notes which it
has agreed to purchase under this Agreement and the aggregate principal amount
of Notes which such defaulting Underwriter agreed but failed or refused to
purchase is not more than one-tenth of the aggregate principal amount of Notes,
the other Underwriters shall be obligated, pro rata to purchase the Notes which
the defaulting Underwriter agreed but failed or refused to purchase. If any
Underwriter shall fail or refuse to purchase Notes and the aggregate principal
amount of Notes with respect to which such default occurs is more than one-tenth
of the aggregate principal amount of Notes and arrangements satisfactory to the
non-defaulting Underwriters and the Company for the purchase of such Notes are
not made within 36 hours after such default, this Agreement will terminate
without liability on the part of the non-defaulting Underwriters or the Company.
In any such case which does not result in termination of this Agreement, either
the non-defaulting Underwriters or the Company shall have the right to postpone
the Closing Date, but in no event for longer than seven days, in order that the
required changes, if any, in the Registration Statement and the Prospectus or
any other documents or arrangements may be effected. Any action taken under
this paragraph shall not relieve any defaulting Underwriter from liability in
respect of its default under this Agreement.
(c) Any notice under this Section 10 may be made by telecopy or
telephone but shall be subsequently confirmed by letter.
11. TERMINATION OF AGREEMENT. The Underwriters shall have the right to
------------------------
terminate this Agreement at any time prior to the Closing Date by notice to the
Company from the Underwriters, without liability on the Underwriters' part to
the Company if, on or prior to such date, (i) the Company shall have failed,
refused or been unable to perform in any material respect any agreement on its
part to be performed hereunder, (ii) any other condition to the obligations of
the Underwriters hereunder as provided in Section 8 is not fulfilled when and as
required in any material respect, (iii) trading in securities generally on the
New York Stock Exchange, the
23
American Stock Exchange or the NASD Automated Quotation System shall have been
suspended or materially limited, or minimum prices shall have been established
on such exchange or system by the Commission, or by such exchange or system or
other regulatory body or governmental authority having jurisdiction, (iv) a
general banking moratorium shall have been declared by Federal, California or
New York State authorities, (v) there is an outbreak or material escalation of
armed hostilities involving the United States on or after the date hereof, or
there has been a declaration by the United States of a national emergency or
war, the effect of which shall be, in the Underwriters' reasonable judgment, to
make it inadvisable or impracticable to proceed with the public offering or
delivery of the Notes on the terms and in the manner contemplated in the
Prospectus as supplemented or amended prior to the occurrence of such event,
(vi) in the Underwriters' reasonable opinion any material adverse change shall
have occurred since the respective dates as of which information is given in the
Registration Statement or the Prospectus (as supplemented or amended prior to
the occurrence of such event) in the condition (financial or other) of the
Company or the Subsidiaries, taken as a whole, whether or not arising in the
ordinary course of business other than as set forth in the Prospectus as
supplemented or amended prior to the occurrence of such event, or (vii) there
shall have been such a material adverse change in general economic, political or
financial conditions or if the effect of international conditions on the
financial markets in the United States shall be such as, in the Underwriters'
reasonable opinion, makes it inadvisable or impracticable to proceed with the
delivery of the Notes as contemplated hereby. Notice of such cancellation shall
be given to the Company by telecopy or telephone but shall be subsequently
confirmed by letter.
12. INFORMATION FURNISHED BY UNDERWRITER. The statements set forth in the
------------------------------------
last sentence of the first paragraph on the cover page, the last paragraph of
the cover page, the third sentence, in the paragraph under the caption "Risk
Factors -- Absence of Existing Public Market; Market Prices", in the third and
fourth paragraphs and the second and third sentence of the fifth paragraph under
the caption "Underwriting" in any Preliminary Prospectus and in the Prospectus
constitute the written information furnished by the Underwriter or on its behalf
referred to in Section 2 and Section 6 hereof.
13. MISCELLANEOUS. Except as otherwise provided in Sections 10 and 11
-------------
hereof, notice given pursuant to any of the provisions of this Agreement shall
be in writing and shall be delivered (i) if to the Company, at the office of the
Company at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
Chief Financial Officer, with a copy to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or
(ii) if to the Underwriters, at the offices of ▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc., ▇▇▇▇▇ ▇▇▇▇▇▇▇
Tower, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
Corporate Finance Department, with a copy to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, Esq.,
▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or in any case to such other address as the person to be
notified may have requested in writing.
14. PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement shall inure
----------------------------------------
to the benefit of and be binding upon the parties hereto and their respective
successors and
24
assigns and the controlling persons, officers and directors referred to in
Section 7. Nothing in this Agreement is intended or shall be construed to give
to any other person, firm or corporation any legal or equitable remedy or claim
under or in respect of this Agreement or any provision herein contained. The
term "successors and assigns" as herein used shall not include any purchaser, as
such purchaser, of any of the Notes from the Underwriters.
15. APPLICABLE LAW. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Minnesota.
16. COUNTERPARTS. This Agreement may be signed in various counterparts
which together shall constitute one and the same instrument.
Please confirm that the foregoing correctly sets forth the agreement
among the Company and the Underwriters.
Very truly yours,
GBC BANCORP
By: __________________________________
Name:
Title:
Accepted and delivered as of
the date first written above
▇▇▇▇▇ ▇▇▇▇▇▇▇ INC.
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, INC.
▇▇▇▇▇▇▇▇▇▇▇ & CO., INC.
By: ▇▇▇▇▇ ▇▇▇▇▇▇▇ INC.
By: ______________________________
Name:
Managing Director
25
GBC BANCORP
SCHEDULE I
----------
UNDERWRITERS
NAME PRINCIPAL
---- AMOUNT OF
NOTES
▇▇▇▇▇ ▇▇▇▇▇▇▇, Inc................ $__________
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, Inc...... $__________
▇▇▇▇▇▇▇▇▇▇▇ & Co., Inc............ $__________
TOTAL............................. $40,000,000
===========
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