Exhibit 1.1
[________]
Ocwen Financial Corporation
Common Stock
INTERNATIONAL UNDERWRITING AGREEMENT
August __, 1997
▇▇▇▇▇▇ Brothers International (Europe)
Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc.
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Co. International Limited
As Representatives of the several
Underwriters named in Schedule 1,
c/▇ ▇▇▇▇▇▇ Brothers International (Europe)
Three World ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
Ocwen Financial Corporation, a Florida corporation (the "Company"),
proposes to sell ___________ shares (the "Firm Stock") of the Company's
common stock, par value $0.01 per share (the "Common Stock"). In addition,
the Company proposes to grant to the underwriters named in Schedule 1 hereto
(the "International Managers") an option to purchase up to an additional
_________ shares of the Common Stock on the terms and for the purposes set
forth in Section 4 (the "Option Stock"). The Firm Stock and the Option
Stock, if purchased, are hereinafter collectively called the "Stock". This
is to confirm the agreement concerning the purchase of the Stock from the
Company by the International Managers named in Schedule 1 hereto.
It is understood by all parties that the Company is concurrently
entering into an agreement dated the date hereof (the "U.S. Underwriting
Agreement") providing for the sale by the Company of ___________ shares of
Common Stock (including the over-allotment option thereunder) (the "U.S.
Stock") through arrangements with certain underwriters in the United States
and in Canada (the "U.S. Underwriters"), for whom ▇▇▇▇▇▇ Brothers Inc.,
Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
are acting as representatives. The International Managers and the U.S.
Underwriters simultaneously are entering into an agreement between the
international and U.S. underwriting syndicates (the "Agreement Between U.S.
Underwriters and International Managers") which provides for, among other
things, the transfer of shares of Common Stock between the two syndicates.
Two forms of prospectus are to be used in connection with the offering and
sale of shares of Common Stock contemplated by the foregoing, one relating to
the Stock and the other relating to the U.S. Stock. The latter form of
prospectus will be identical to the former except for certain substitute
pages as included in the registration statement and amendments thereto
referred to below. Except as used in Sections 2, 3, 4, 9 and 10 herein, and
except as the context may otherwise require, references herein to the Stock
shall include all the shares of the Common Stock which may be
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sold pursuant to either this Agreement or the U.S. Underwriting Agreement,
and references herein to any prospectus whether in preliminary or final form,
and whether as amended or supplemented, shall include both the international
and the U.S. versions thereof.
1. Representations, Warranties and Agreements of the Company. The
Company represents, warrants and agrees that:
(a) A registration statement on Form S-1, and amendments thereto,
with respect to the Stock has (i) been prepared by the Company in
conformity with the requirements of the United States Securities Act
of 1933 (the "Securities Act") and the rules and regulations (the
"Rules and Regulations") of the United States Securities and Exchange
Commission (the "Commission") thereunder, (ii) been filed with the
Commission under the Securities Act and (iii) become effective under
the Securities Act; and a second registration statement on Form S-1
with respect to the Stock (i) may also be prepared by the Company in
conformity with the requirements of the Securities Act and the Rules
and Regulations and (ii) if to be so prepared, will be filed with the
Commission under the Securities Act pursuant to Rule 462(b) of the
Rules and Regulations on the date hereof. Copies of the first such
registration statement and the amendments to such registration
statement, together with the form of any such second registration
statement, have been delivered by the Company to you as the lead
managers (the "Lead Managers") of the International Managers. As used
in this Agreement, "Effective Time" means (i) with respect to the
first such registration statement, the date and the time as of which
such registration statement, or the most recent post-effective
amendment thereto, if any, was declared effective by the Commission
and (ii) with respect to any second registration statement, the date
and time as of which such second registration statement is filed with
the Commission, and "Effective Times" is the collective reference to
both Effective Times; "Effective Date" means (i) with respect to the
first such registration statement, the date of the Effective Time of
such registration statement and (ii) with respect to any second
registration statement, the date of the Effective Time of such second
registration statement, and "Effective Dates" is the collective
reference to both Effective Dates; "Preliminary Prospectus" means each
prospectus included in any such registration statement, or amendments
thereof, before it became effective under the Securities Act and any
prospectus filed with the Commission by the Company with the consent
of the Lead Managers pursuant to Rule 424(a) of the Rules and
Regulations; "Primary Registration Statement" means the first
registration statement referred to in this Section 1(a), as amended,
at its Effective Time, "Rule 462(b) Registration Statement" means the
second registration statement, if any, referred to in this Section
1(a), as filed with the Commission, and "Registration Statements"
means both the Primary Registration Statement and any Rule 462(b)
Registration Statement, including in each case all information
contained in the final prospectus filed with the Commission pursuant
to Rule 424(b) of the Rules and Regulations in accordance with Section
5(a) hereof and deemed to be a part of the Registration Statements as
of the Effective Time of the Primary Registration
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Statement pursuant to paragraph (b) of Rule 430A of the Rules and
Regulations; and "Prospectus" means such final prospectus, as first
filed with the Commission pursuant to paragraph (1) or (4) of Rule
424(b) of the Rules and Regulations. The Commission has not issued
any order preventing or suspending the use of any Preliminary
Prospectus.
(b) The Primary Registration Statement conforms (and the Rule
462(b) Registration Statement, if any, the Prospectus and any further
amendments or supplements to the Registration Statements or the
Prospectus, when they become effective or are filed with the
Commission, as the case may be, will conform) in all material respects
to the requirements of the Securities Act and the Rules and
Regulations and do not and will not, as of the applicable Effective
Date (as to the Registration Statements and any amendment thereto) and
as of the applicable filing date (as to the Prospectus and any
amendment or supplement thereto) contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading;
provided that no representation or warranty is made as to information
contained in or omitted from the Registration Statements or the
Prospectus in reliance upon and in conformity with written information
furnished to the Company through the Lead Managers by or on behalf of
any International Manager specifically for inclusion therein.
(c) The Company has an authorized capitalization as set forth in
the Prospectus, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued, are fully
paid and non-assessable and conform to the description thereof
contained in the Prospectus; and all of the issued shares of capital
stock of each subsidiary of the Company have been duly and validly
authorized and issued and are fully paid and non-assessable and except
for directors' qualifying shares and as set forth in the Registration
Statements and the Prospectus, are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or
claims; the Company is a savings and loan holding company duly
registered under the Home Owners' Loan Act, as amended ("HOLA"), and
duly organized and validly existing under the laws of the state of
Florida, with full power and authority to own its properties and
conduct its business as described in the Registration Statement and
the Prospectus, and to execute and deliver this Agreement; the Company
owns, directly or indirectly, beneficially and of record 100% of the
outstanding shares of capital stock of Ocwen Federal Bank FSB (the
"Bank"); the Bank is a federal savings bank duly organized and validly
existing under the laws of the United States with full power and
authority to own its properties and conduct its business as described
in the Registration Statement and the Prospectus; the Bank is a member
in good standing of the Federal Home Loan Bank System; the savings
accounts of depositors in the Bank are insured by the Federal Deposit
Insurance Corporation (the "FDIC") to the fullest extent permitted by
law and the rules and regulations of the FDIC, and
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no proceedings for the termination of such insurance are pending, or
to the best of the Company's knowledge, threatened.
(d) Each of the Company's subsidiaries (as defined in Section 15)
have been duly formed and are validly existing and in good standing
under the laws of their respective jurisdictions of incorporation; the
Company and each of its subsidiaries are duly qualified to do business
and are in good standing as foreign corporations in each jurisdiction
in which their respective ownership or lease of property or the
conduct of their respective businesses requires such qualification and
in which the failure singularly or in the aggregate, to be so
qualified could have a material adverse effect on the consolidated
financial position, stockholders' equity, results of operations,
business or prospects of the Company and its subsidiaries, and have
all power and authority necessary to own or hold their respective
properties and to conduct the businesses in which they are engaged;
and none of the subsidiaries (other than the Bank and BCBF, L.L.C.
("BCBF"), each a "Significant Subsidiary" and together the
"Significant Subsidiaries") is a "significant subsidiary", as such
term is defined in Rule 405 of the Rules and Regulations.
(e) The unissued shares of the Stock to be issued and sold by the
Company to the International Managers hereunder and under the U.S.
Underwriting Agreement have been duly and validly authorized and, when
issued and delivered against payment therefor as provided herein and
in the U.S. Underwriting Agreement, will be duly and validly issued,
fully paid and non-assessable; and the Common Stock will conform to
the description thereof contained in the Prospectus.
(f) The execution, delivery and performance of this Agreement and
the U.S. Underwriting Agreement by the Company and the consummation of
the transactions contemplated hereby and thereby will not conflict
with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by which
the Company or any of its subsidiaries is bound or to which any of the
properties or assets of the Company or any of its subsidiaries is
subject, except for such breaches or violations which would not,
singularly or in the aggregate, have a material adverse effect on the
general affairs, management, financial position, stockholders' equity
or results of operations of the Company and its subsidiaries, nor will
such actions result in any violation of the provisions of the charter
(or other organizational document) or by-laws of the Company or any of
its subsidiaries or any statute or any order, rule or regulation of
any court or governmental agency or body having jurisdiction over the
Company or any of its subsidiaries or any of their properties or
assets; and except for (i) the registration of the Stock under the
Securities Act, (ii) such consents, approvals, authorizations,
registrations or qualifications as may be required under the Exchange
Act and
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applicable state or foreign securities laws in connection with
the purchase and distribution of the Stock by the International
Managers and the U.S. Underwriters and (iii) the approval of the
listing of the Stock on the New York Stock Exchange ("NYSE"), no
consent, approval, authorization or order of, or filing or
registration with, any such court or governmental agency or body is
required for the execution, delivery and performance of this
Agreement, or the U.S. Underwriting Agreement by the Company and the
consummation of the transactions contemplated hereby and thereby.
(g) There are no contracts, agreements or understandings between
the Company and any person granting such person the right to require
the Company to file a registration statement under the Securities Act
with respect to any securities of the Company owned or to be owned by
such person or to require the Company to include such securities in
the securities registered pursuant to the Registration Statements or
in any securities being registered pursuant to any other registration
statement filed by the Company under the Securities Act.
(h) Except as described in the Registration Statements, the
Company has not sold or issued any shares of Common Stock during the
six-month period preceding the date of the Prospectus, including any
sales pursuant to Rule 144A or Regulations D or S under the Securities
Act, other than shares issued pursuant to director or employee benefit
plans, qualified stock options plans or other employee compensation
plans or pursuant to outstanding options, rights or warrants.
(i) Neither the Company nor any of its subsidiaries has
sustained, since the date of the latest audited financial statements
included in the Prospectus, any material loss or interference with its
business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus; and, since such date, there has not
been any change in the capital stock or long-term debt of the Company
or any of its subsidiaries or any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the
Registration Statements.
(j) The financial statements (including the related notes and
supporting schedules) filed as part of the Registration Statements or
included in the Prospectus present fairly the financial condition and
results of operations of the entities purported to be shown thereby,
at the dates and for the periods indicated, and have been prepared in
conformity with generally accepted accounting principles applied on a
consistent basis throughout the periods involved, except as otherwise
stated therein.
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(k) Price Waterhouse LLP, who have certified certain financial
statements of the Company and BCBF, whose reports appear in the
Prospectus and who have delivered the initial letter referred to in
Section 7(f) hereof, are independent public accountants as required by
the Securities Act and the Rules and Regulations.
(l) There are no legal or governmental proceedings pending to
which the Company or any of its subsidiaries is a party or of which
any property or asset of the Company or any of its subsidiaries is the
subject which, if determined adversely to the Company or any of its
subsidiaries, are reasonably likely to have a material adverse effect
on the consolidated financial position, stockholders' equity, results
of operations, business or prospects of the Company and its
subsidiaries; and to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by governmental authorities
or by others.
(m) There are no contracts or other documents which are required
to be described in the Prospectus or filed as exhibits to either of
the Registration Statements by the Securities Act or by the Rules and
Regulations which have not been described in the Prospectus or filed
as exhibits to either of the Registration Statements or incorporated
therein by reference as permitted by the Rules and Regulations.
(n) No relationship, direct or indirect, exists between or among
the Company on the one hand, and the directors, officers,
stockholders, customers or suppliers of the Company on the other hand,
which is required to be described in the Prospectus which is not so
described.
(o) The Company has filed all federal, state and local income and
franchise tax returns required to be filed through the date hereof and
has paid all taxes due thereon, and no tax deficiency has been
determined adversely to the Company or any of its subsidiaries which
has had (nor does the Company have any knowledge of any tax deficiency
which, if determined adversely to the Company or any of its
subsidiaries, is reasonably likely to have a material) adverse effect
on the consolidated financial position, stockholders' equity, results
of operations, business or prospects of the Company and its
subsidiaries.
(p) Since the date as of which information is given in the
Prospectus through the date hereof, and except as may otherwise be
disclosed in the Registration Statements, the Company has not (i)
issued or granted any securities,(ii) incurred any liability or
obligation, direct or contingent, other than liabilities and
obligations which were incurred in the ordinary course of
business,(iii) entered into any transaction not in the ordinary course
of business or (iv) declared or paid any dividend on its capital
stock.
(q) The Company (i) makes and keeps accurate books and records
and (ii) maintains internal accounting controls which provide
reasonable assurance that (A)
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transactions are executed in accordance with management's
authorization,(B) transactions are recorded as necessary to permit
preparation of its financial statements and to maintain
accountability for its assets,(C) access to its assets is permitted
only in accordance with management's authorization and (D) the
reported accountability for its assets is compared with existing
assets at reasonable intervals.
(r) Neither the Company nor any of its subsidiaries (i) is in
violation of its charter (or other organizational document) or
by-laws,(ii) is in default in any material respect, and no event has
occurred which, with notice or lapse of time or both, would constitute
such a default, in the due performance or observance of any term,
covenant or condition contained in any material indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to
which it is a party or by which it is bound or to which any of its
properties or assets is subject or (iii) is in violation in any
material respect of any law, ordinance, governmental rule, regulation
or court decree to which it or its properties or assets may be subject
or has failed to obtain any material license, permit, certificate,
franchise or other governmental authorization or permit necessary to
the ownership of its properties or assets or to the conduct of its
business.
(s) Neither the Company nor any subsidiary is an "investment
company" within the meaning of such term under the Investment Company
Act of 1940 and the rules and regulations of the Commission
thereunder.
2. Purchase of the Stock by the International Managers. On the basis
of the representations and warranties contained in, and subject to the terms and
conditions of, this Agreement, the Company agrees to sell __________ shares of
the Firm Stock to the several International Managers and each of the
International Managers, severally and not jointly, agrees to purchase the number
of shares of the Firm Stock set opposite that International Manager's name in
Schedule 1 hereto. The respective purchase obligations of the International
Managers with respect to the Firm Stock shall be rounded among the International
Managers to avoid fractional shares, as the Lead Managers may determine.
In addition, the Company grants to the International Managers an
option to purchase up to ___________ shares of Option Stock. Such option is
granted solely for the purpose of covering over-allotments in the sale of Common
Stock and is exercisable as provided in Section 4 hereof. Shares of Option
Stock shall be purchased severally for the account of the International Managers
in proportion to the number of shares of Common Stock set opposite the name of
such International Managers in Schedule 1 hereto. The respective purchase
obligations of each International Manager with respect to the Option Stock shall
be adjusted by the Lead Managers so that no International Manager shall be
obligated to purchase Option Stock other than in 100 share amounts.
The price of any Option Stock shall be $________ per share.
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The Company shall not be obligated to deliver any of the Stock to be
delivered on the First Delivery Date or the Second Delivery Date (as hereinafter
defined), as the case may be, except upon payment for all the Stock to be
purchased on such Delivery Date as provided herein and in the U.S. Underwriting
Agreement.
3. Offering of Stock by the International Managers. Upon
authorization by the Lead Managers of the release of the Firm Stock, the several
International Managers propose to offer the Firm Stock for sale upon the terms
and conditions set forth in the Prospectus; provided, however, that no Stock
registered pursuant to the Rule 462(b) Registration Statement, if any, shall be
offered prior to the Effective Time thereof.
Each International Manager agrees that, except to the extent permitted
by the Agreement Between U.S. Underwriters and International Managers, it will
not offer or sell any of the Stock in the United States or in Canada.
4. Delivery of and Payment for the Stock. Delivery of and payment
for the Firm Stock shall be made at the office of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ at
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, at 10:00 A.M., New York City
time, on the third (fourth, if pricing occurs after 4:30 p.m. New York City
time) full business day following the date of this Agreement or at such other
date or place as shall be determined by agreement between the Lead Managers and
the Company. This date and time are sometimes referred to as the "First
Delivery Date." On the First Delivery Date, the Company shall deliver or cause
to be delivered certificates representing the Firm Stock to the Lead Managers
for the account of each International Manager against payment to or upon the
order of the Company of the purchase price by wire transfer. Time shall be of
the essence, and delivery at the time and place specified pursuant to this
Agreement is a further condition of the obligation of each International Manager
hereunder. Upon delivery, the Firm Stock shall be registered in such names and
in such denominations as the Lead Managers shall request in writing not less
than two full business days prior to the First Delivery Date. For the purpose
of expediting the checking and packaging of the certificates for the Firm Stock,
the Company shall make the certificates representing the Firm Stock available
for inspection by the Lead Managers in New York, New York, not later than 2:00
P.M., New York City time, on the business day prior to the First Delivery Date.
At any time on or before the thirtieth day after the date of this
Agreement, the option granted in Section 2 may be exercised by written notice
being given to the Company by the Lead Managers. Such notice shall set forth
the aggregate number of shares of Option Stock as to which the option is
being exercised, the names in which the shares of Option Stock are to be
registered, the denominations in which the shares of Option Stock are to be
issued and the date and time, as determined by the Lead Managers, when the
shares of the Option Stock are to be delivered; provided, however, that this
date and time shall not be earlier than the First Delivery Date nor earlier
than the second business day after the date on which the option shall have
been exercised nor later than the fifth business day after the date on which
the option shall have been exercised. The date and time the shares of Option
Stock are delivered are sometimes referred to as the "Second Delivery Date"
and the First Delivery Date and the Second Delivery Date are sometimes each
referred to as a "Delivery Date".
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Delivery of and payment for the Option Stock shall be made at the
place specified in the first sentence of the first paragraph of this Section 4
(or at such other place as shall be determined by agreement between the Lead
Managers and the Company) at 10:00 A.M., New York City time, on the Second
Delivery Date. On the Second Delivery Date, the Company shall deliver or cause
to be delivered the certificates representing the Option Stock to the Lead
Managers for the account of each International Manager against payment to or
upon the order of the Company of the purchase price by wire transfer. Time
shall be of the essence, and delivery at the time and place specified pursuant
to this Agreement is a further condition of the obligation of each International
Manager hereunder. Upon delivery, the Option Stock shall be registered in such
names and in such denominations as the Lead Managers shall request in the
aforesaid written notice. For the purpose of expediting the checking and
packaging of the certificates for the Option Stock, the Company shall make the
certificates representing the Option Stock available for inspection by the Lead
Managers in New York, New York, not later than 2:00 P.M., New York City time, on
the business day prior to the Second Delivery Date.
5. Further Agreements of the Company. The Company agrees:
(a) To prepare the Rule 462(b) Registration Statement, if
necessary, in a form approved by the Lead Managers and to file such
Rule 462(b) Registration Statement with the Commission not later than
the day following the execution and delivery of this Agreement; to
prepare the Prospectus in a form approved by the Lead Managers and to
file such Prospectus pursuant to Rule 424(b) under the Securities Act
not later than 10:00 A.M., New York City time, on the day following
the execution and delivery of this Agreement; to make no further
amendment or any supplement to the Registration Statements or to the
Prospectus except as permitted herein; to advise the Lead Managers,
promptly after it receives notice thereof of the time when any
amendment to either Registration Statement has been filed or becomes
effective or any supplement to the Prospectus or any amended
Prospectus has been filed and to provide the Lead Managers with copies
thereof; to advise the Lead Managers, promptly after it receives
notice thereof, of the issuance by the Commission of any stop order or
of any order preventing or suspending the use of any Preliminary
Prospectus or the Prospectus, of the suspension of the qualification
of the Stock for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such purpose, or
of any request by the Commission for the amending or supplementing of
the Registration Statements or the Prospectus or for additional
information; and, in the event of the issuance of any stop order or of
any order preventing or suspending the use of any Preliminary
Prospectus or the Prospectus or suspending any such qualification, to
use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to ▇▇▇▇▇▇ Brothers International
(Europe) a signed copy of each of the Registration Statements as
originally filed with the Commission, and each amendment thereto filed
with the Commission, including all consents and exhibits filed
therewith;
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(c) To deliver promptly to the Lead Managers in New York City
such number of the following documents as the Lead Managers shall
reasonably request: (i)conformed copies of the Registration
Statements as originally filed with the Commission and each amendment
thereto (in each case excluding exhibits other than this Agreement and
the computation of per share earnings) and (ii) each Preliminary
Prospectus, the Prospectus (not later than 10:00 A.M., New York City
time, of the day following the execution and delivery of this
Agreement) and any amended or supplemented Prospectus (not later than
10:00 A.M., New York City time, on the day following the date of such
amendment or supplement); and, if the delivery of a prospectus is
required at any time after the Effective Time of the Primary
Registration Statement in connection with the offering or sale of the
Stock (or any other securities relating thereto) and if at such time
any event shall have occurred as a result of which the Prospectus as
then amended or supplemented would include any untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made when such Prospectus is delivered, not
misleading, or, if for any other reason it shall be necessary to amend
or supplement the Prospectus in order to comply with the Securities
Act, to notify the Lead Managers and, upon their request, to prepare
and furnish without charge to each International Manager and to any
dealer in securities as many copies as the Lead Managers may from time
to time reasonably request of an amended or supplemented Prospectus
which will correct such statement or omission or effect such
compliance;
(d) To file promptly with the Commission any amendment to the
Registration Statements or the Prospectus or any supplement to the
Prospectus that may, in the judgment of the Company or the Lead
Managers, be required by the Securities Act or requested by the
Commission;
(e) Prior to filing with the Commission (i) any amendment to
either of the Registration Statements or supplement to the Prospectus
or (ii) any Prospectus pursuant to Rule 424 of the Rules and
Regulations, to furnish a copy thereof to the Lead Managers and
counsel for the International Managers and obtain the consent of the
Lead Managers to the filing;
(f) As soon as practicable after the Effective Date of the
Primary Registration Statement, to make generally available to the
Company's security holders and to deliver to the Lead Managers an
earnings statement of the Company and its subsidiaries (which need not
be audited) complying with Section 11(a) of the Securities Act and the
Rules and Regulations (including, at the option of the Company, Rule
158);
(g) For a period of five years following the Effective Date of
the Primary Registration Statement, to furnish to the Lead Managers
(i) copies of all materials furnished by the Company to its
shareholders generally, (ii) copies of all public
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reports and all reports and financial statements furnished by the
Company to the principal national securities exchange or automated
quotation system upon which the Common Stock may be listed or quoted
pursuant to requirements of or agreements with such exchange or
system, (iii) copies of all reports filed by the Company with the
Commission pursuant to the Exchange Act or any rule or regulation of
the Commission thereunder and (iv) copies of the publicly available
reports filed by the Bank with the OTS;
(h) Promptly from time to time to take such action as the Lead
Managers may reasonably request to qualify the Stock for offering and
sale under the securities laws of such jurisdictions as the Lead
Managers may request and to comply with such laws so as to permit the
continuance of sales and dealings therein in such jurisdictions for as
long as may be necessary to complete the distribution of the Stock;
provided that in connection therewith the Company shall not be
required to qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction; and
(i) For a period of 90 days from the date of the Prospectus, not
to, directly or indirectly, offer for sale, sell or otherwise dispose
of (or enter into any transaction or device which is designed to, or
could be expected to, result in the disposition or purchase by any
person at any time in the future of) any shares of Common Stock (other
than the Stock issued pursuant to employee benefit plans, qualified
stock option plans or other employee compensation plans existing on
the date hereof or pursuant to currently outstanding options, warrants
or rights), or sell or grant options, rights or warrants with respect
to any shares of Common Stock (other than the grant of options
pursuant to option plans existing on the date hereof), without the
prior written consent ▇▇▇▇▇▇ Brothers International (Europe) on behalf
of the Lead Managers; and to cause each executive officer and director
of the Company to furnish to the Lead Managers, prior to the First
Delivery Date, a letter or letters, in form and substance satisfactory
to counsel for the International Managers, pursuant to which each such
person shall agree not to, directly or indirectly, offer for sale,
sell or otherwise dispose of (or enter into any transaction or device
which is designed to, or could be expected to, result in the
disposition or purchase by any person at any time in the future of)
any shares of Common Stock for a period of 180 days from the date of
the Prospectus, without the prior written consent of ▇▇▇▇▇▇ Brothers
International (Europe) on behalf of the Lead Managers;
6. Expenses. The Company agrees to pay (a) the costs incident to the
authorization, issuance, sale and delivery of the Stock and any taxes payable in
that connection; (b) the costs incident to the preparation, printing and filing
under the Securities Act of the Registration Statements and any amendments and
exhibits thereto; (c) the costs of distributing the Registration Statements as
originally filed and each amendment thereto and any post-effective amendments
thereof (including, in each case, exhibits), any Preliminary Prospectus, the
Prospectus and any amendment or supplement to the Prospectus, all as provided in
this
12
Agreement; (d) the costs of reproducing and distributing this Agreement, the
Agreement Between U.S. Underwriters and International Managers and the
Supplemental Agreement Among U.S. Underwriters; (e) the costs of distributing
the terms of agreement relating to the organization of the domestic
underwriting syndicate and selling group to the members thereof by mail,
telex or other means of communication; (f) the filing fees incident to
securing any required review by the National Association of Securities
Dealers, Inc. of the terms of sale of the Stock; (g) any applicable listing
or other fees; (h) the fees and expenses of qualifying the Stock under the
securities laws of the several jurisdictions as provided in Section 5(h) and
of preparing, printing and distributing a Blue Sky Memorandum (including
related fees and expenses of counsel to the International Managers); and (i)
all other costs and expenses incident to the performance of the obligations
of the Company under this Agreement; provided that, except as provided in
this Section 6 and in Section 11, the International Managers shall pay their
own costs and expenses, including the costs and expenses of their counsel,
any transfer taxes on the Stock which they may sell and the expenses of
advertising any offering of the Stock made by the International Managers.
7. Conditions of International Managers' Obligations. The respective
obligations of the International Managers hereunder are subject to the accuracy,
when made and on each Delivery Date, of the representations and warranties of
the Company contained herein, to the performance by the Company of its
obligations hereunder, and to each of the following additional terms and
conditions:
(a) The Rule 462(b) Registration Statement, if any, and the
Prospectus shall have been timely filed with the Commission in
accordance with Section 5(a); no stop order suspending the
effectiveness of either of the Registration Statements or any part
thereof shall have been issued and no proceeding for that purpose
shall have been initiated or threatened by the Commission; and any
request of the Commission for inclusion of additional information in
either of the Registration Statements or the Prospectus or otherwise
shall have been complied with.
(b) No International Manager or U.S. Underwriter shall have
discovered and disclosed to the Company on or prior to such Delivery
Date that either of the Registration Statements or the Prospectus or
any amendment or supplement thereto contains any untrue statement of a
fact which, in the opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for
the International Managers, is material or omits to state any fact
which, in the opinion of such counsel, is material and is required to
be stated therein or is necessary to make the statements therein not
misleading.
(c) All corporate proceedings and other legal matters incident
to the authorization, form and validity of this Agreement, the U.S.
Underwriting Agreement, the Stock, the Registration Statements and the
Prospectus, and all other legal matters relating to this Agreement and
the transactions contemplated hereby shall be satisfactory in all
respects to counsel for the International Managers, and the Company
shall have furnished to such counsel all documents
13
and information that they may reasonably request to enable them to pass upon
such matters.
(d) Elias, Matz, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P. shall have furnished to the
Lead Managers its written opinion, as counsel to the Company, addressed to
the International Managers and dated such Delivery Date, in form and
substance satisfactory to the Lead Managers, to the effect that:
(i) The Company is a savings and loan holding company duly
registered under HOLA;
(ii) The Bank has been duly organized and is validly
existing as a federal savings bank under the laws of the United
States of America, with full corporate power and authority to own
its properties and conduct its business as described in the
Registration Statements and the Prospectus, and is a member of
the Federal Home Loan Bank of New York;
(iii) The Company has an authorized capitalization as
set forth in the Prospectus, and all of the issued shares of
capital stock of the Company (including the shares of Stock being
delivered on such Delivery Date) have been duly and validly
authorized and issued, are fully paid and non-assessable and
conform to the description thereof contained in the Prospectus;
and all of the issued shares of capital stock of the Bank have
been duly and validly authorized and issued and are fully paid,
non-assessable and are directly or indirectly owned of record
and, to such counsel's knowledge, beneficially by the Company,
free and clear of all liens, encumbrances, equities or claims;
(iv) There are no preemptive or other rights to subscribe
for or to purchase, nor any restriction upon the voting or
transfer of, any shares of the Stock pursuant to the Company's
articles of incorporation or by-laws or any agreement or other
instrument known to such counsel;
(v) To such counsel's knowledge and other than as set forth
in the Prospectus, there are no legal or governmental proceedings
pending to which the Company or any of its subsidiaries is a
party or of which any property or asset of the Company or any of
its subsidiaries is the subject which, if determined adversely to
the Company or any of its subsidiaries, reasonably could be
expected to have a material adverse effect on the consolidated
financial position, stockholders' equity, results of operations,
business or prospects of the Company and its subsidiaries; and,
to such counsel's knowledge, no such proceedings are threatened
or contemplated by governmental authorities or by others;
14
(vi) The Primary Registration Statement was declared
effective under the Securities Act as of the date and time
specified in such opinion, the Rule 462(b) Registration
Statement, if any, was filed with the Commission on the date
specified therein, the Prospectus was filed with the Commission
pursuant to the subparagraph of Rule 424(b) of the Rules and
Regulations specified in such opinion on the date specified
therein and no stop order suspending the effectiveness of either
of the Registration Statements has been issued and, to the
knowledge of such counsel, no proceeding for that purpose is
pending or threatened by the Commission;
(vii) The Registration Statements, as of their
respective Effective Dates, and the Prospectus, as of its date,
and any further amendments or supplements thereto, as of their
respective dates, made by the Company prior to such Delivery Date
(other than the financial statements and other financial and
statistical data contained therein, as to which such counsel need
express no opinion) complied as to form in all material respects
with the requirements of the Securities Act and the Rules and
Regulations;
(viii) The statements contained in the Prospectus under
the captions "Regulation", "Taxation-Federal Taxation" and
"Description of Capital Stock", insofar as they describe federal
statutes, rules and regulations, constitute a fair summary
thereof;
(ix) To the best of such counsel's knowledge, there are no
contracts or other documents which are required to be described
in the Prospectus or filed as exhibits to the Registration
Statements by the Securities Act or by the Rules and Regulations
which have not been described or filed as exhibits to the
Registration Statements or incorporated therein by reference as
permitted by the Rules and Regulations;
(x) This Agreement and the U.S. Underwriting Agreement have
each been duly authorized, executed and delivered by the Company;
(xi) The issue and sale of the shares of Stock being
delivered on such Delivery Date by the Company and the compliance
by the Company with all of the provisions of this Agreement and
the U.S. Underwriting Agreement and the consummation of the
transactions contemplated hereby and thereby will not conflict
with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument known to such counsel to which the Company or any of
its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the properties or assets
of the Company or any of its subsidiaries is subject, except for
such conflicts, breaches, violations or defaults which
individually or in the aggregate would not have a material
15
adverse effect on the operations, business or condition of the
Company and its subsidiaries taken as a whole, nor will such
actions result in any violation of the provisions of the charter
or by-laws of the Company or any of its subsidiaries or any
statute or any order, rule or regulation known to such counsel of
any court or governmental agency or body having jurisdiction over
the Company or any of its subsidiaries or any of their properties
or assets; and, except for the registration of the Stock under
the Securities Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under the
Exchange Act and applicable state or foreign securities laws in
connection with the purchase and distribution of the Stock by the
International Managers and the U.S. Underwriters, no consent,
approval, authorization or order of, or filing or registration
with, any such court or governmental agency or body is required
for the execution, delivery and performance of this Agreement or
the U.S. Underwriting Agreement by the Company and the
consummation of the transactions contemplated hereby and thereby.
(xii) To such counsel's knowledge, there are no
contracts, agreements or understandings between the Company and
any person granting such person the right to require the Company
to file a registration statement under the Securities Act with
respect to any securities of the Company owned or to be owned by
such person or to require the Company to include such securities
in the securities registered pursuant to the Registration
Statements or in any securities being registered pursuant to any
other registration statement filed by the Company under the
Securities Act;
(xiii) The savings accounts of depositors in the Bank are
insured by the FDIC to the fullest extent permitted by law and
the rules and regulations of the FDIC, and no proceedings for the
termination of such insurance are pending, or to such counsel's
knowledge, threatened; and
(xiv) To such counsel's knowledge, neither the Company
nor any of its subsidiaries is party to or otherwise the subject
of any consent decree, memorandum of understanding, written
agreement or similar supervisory or enforcement agreement or
understanding with the OTS, the FDIC or any other government
authority or agency responsible for the supervision, regulation
or insurance of depository institutions or their holding
companies.
In rendering such opinion, such counsel may (i) state that its opinion
is limited to matters governed by the Federal laws of the United
States of America and the laws of Florida. Such counsel shall also
have furnished to the Lead Managers a written statement, addressed to
the International Managers and dated such Delivery Date, in form and
substance satisfactory to the Lead Managers, to the effect that
16
(x) such counsel has, in its capacity as special counsel to the
Company, participated in conferences with officers and other
representatives of the Company, representatives of the independent
public accountants of the Company and representatives of the
Representatives at which the contents of the Registration Statements
and the Prospectus have been discussed, and (y) based on the
foregoing, no facts have come to the attention of such counsel which
lead it to believe that the Registration Statements, as of their
respective Effective Dates, contained any untrue statement of a
material fact or omitted to state any material fact required to be
stated therein or necessary in order to make the statements therein
not misleading, or that the Prospectus contains any untrue statement
of a material fact or omits to state any material fact required to
be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made,
not misleading. The foregoing opinion and statement may be
qualified by a statement to the effect that such counsel does not
assume any responsibility for the accuracy, completeness or fairness
of the statements contained in the Registration Statements or the
Prospectus except for the statements made in the Prospectus under
the captions "Regulation", "Taxation-Federal Taxation" and
"Description of Capital Stock", insofar as such statements relate to
the Stock and concern legal matters.
(e) ▇▇▇▇ ▇. ▇▇▇▇▇, Managing Director, General Counsel and Secretary
of the Company, shall have furnished to the Lead Managers its written
opinion addressed to the International Managers and dated such Delivery
Date, in form and substance satisfactory to the Lead Managers, to the
effect that:
(i) All of the issued shares of capital stock of each
Significant Subsidiary of the Company have been duly and validly
authorized and issued and are fully paid, non-assessable and are
directly or indirectly owned of record and beneficially by the
Company, free and clear of all liens, encumbrances, equities or
claims;
(ii) Each of the Company's Significant Subsidiaries has been
duly incorporated and is validly existing as a corporation in
good standing under the laws of its jurisdiction of
incorporation; the Company and each of its subsidiaries are duly
qualified to do business and are in good standing as foreign
corporations in each jurisdiction in which their respective
ownership or lease of property or the conduct of their respective
businesses requires such qualification (other than those
jurisdictions in which the failure to so qualify would not have a
materially adverse effect on the Company or the Company and its
subsidiaries taken as a whole), and have all the power and
authority necessary to own or hold their respective properties
and conduct the businesses in which they are engaged;
17
(iii) There are no preemptive or other rights to
subscribe for or to purchase, nor any restriction upon the voting
or transfer of, any shares of the Common Stock pursuant to the
Company's articles of incorporation or by-laws or any agreement
or other instrument known to such counsel;
(iv) Other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending to which the Company or
any of its subsidiaries is a party or of which any property or
asset of the Company or any of its subsidiaries is the subject
which, if determined adversely to the Company or any of its
subsidiaries, reasonably could be expected to have a material
adverse effect on the consolidated financial position,
stockholders' equity, results of operations, business or
prospects of the Company and its subsidiaries; and, to the best
of such counsel's knowledge, no such proceedings are threatened
or contemplated by governmental authorities or by others; and
(v) The issue and sale of the shares of Stock being
delivered on such Delivery Date by the Company and the compliance
by the Company with all of the provisions of this Agreement and
the U.S. Underwriting Agreement and the consummation of the
transactions contemplated hereby and thereby will not conflict
with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument known to such counsel to which the Company or any of
its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the properties or assets
of the Company or any of its subsidiaries is subject, except for
such conflicts, breaches, violations or defaults which
individually or in the aggregate would not have a material
adverse effect on the operations, business or condition of the
Company and its subsidiaries taken as a whole, nor will such
actions result in any violation of the provisions of the charter
(or other organizational document) or by-laws of the Company or
any of its subsidiaries or any statute or any decree, judgment or
order of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any
of their properties or assets; and, except for the registration
of the Stock under the Securities Act and such consents,
approvals, authorizations, registrations or qualifications as may
be required under the Exchange Act, applicable state or foreign
securities laws and the NYSE in connection with the purchase and
distribution of the Stock by the International Managers and the
U.S. Underwriters, no consent, approval, authorization or order
of, or filing or registration with, any such court or
governmental agency or body is required for the execution,
delivery and performance of this Agreement or the U.S.
Underwriting Agreement by the Company and the consummation of the
transactions contemplated hereby and thereby.
18
In rendering such opinion, such counsel may (i) state that its opinion
is limited to matters governed by the Federal laws of the United
States of America and the laws of Florida. Such counsel shall also
have furnished to the Lead Managers a written statement, addressed to
the International Managers and dated such Delivery Date, in form and
substance satisfactory to the Lead Managers, to the effect that
(x) such counsel has acted as counsel to the Company in connection
with the preparation of the Registration Statements, and (y) based on
the foregoing, no facts have come to the attention of such counsel
which lead it to believe that the Registration Statements, as of their
respective Effective Dates, contained any untrue statement of a
material fact or omitted to state any material fact required to be
stated therein or necessary in order to make the statements therein
not misleading, or that the Prospectus contains any untrue statement
of a material fact or omits to state any material fact required to be
stated therein or necessary in order to make the statements therein,
in light of the circumstances under which they were made, not
misleading. The foregoing opinion and statement may be qualified by a
statement to the effect that such counsel does not assume any
responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statements or the Prospectus.
(f) With respect to the letter of Price Waterhouse LLP delivered
to the Lead Managers concurrently with the execution of this Agreement
(the "initial letter"), the Company shall have furnished to the Lead
Managers a letter (the "bring-down letter") of such accountants,
addressed to the International Managers and dated such Delivery Date
(i) confirming that they are independent public accountants within the
meaning of the Securities Act and are in compliance with the
applicable requirements relating to the qualification of accountants
under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as
of the date of the bring-down letter (or, with respect to matters
involving changes or developments since the respective dates as of
which specified financial information is given in the Prospectus, as
of a date not more than three days prior to the date of the bring-down
letter), the conclusions and findings of such firm with respect to the
financial information and other matters covered by the initial letter
and (iii) confirming in all material respects the conclusions and
findings set forth in the initial letter.
(g) The Company shall have furnished to the Lead Managers a
certificate, dated such Delivery Date, of its Chairman of the Board,
its President, a Managing Director or a Vice President and its chief
financial officer stating that, to the best of his or her knowledge,
(i) the representations, warranties and agreements of the
Company in Section 1 are true and correct as of such Delivery
Date; the Company has complied in all material respects with all
its agreements contained herein; and the conditions set forth in
Section 7(a) have been fulfilled;
19
(ii) (A) neither the Company nor any of its subsidiaries
has sustained since the date of the latest audited financial
statements included in the Prospectus any loss or interference
with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as
set forth or contemplated in the Prospectus or (B) since such
date there has not been any change in the capital stock or
long-term debt of the Company or any of its subsidiaries or any
change, or any development involving a prospective change, in or
affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and
its subsidiaries, otherwise than as set forth or contemplated in
the Registration Statements; and
(iii) they have carefully examined the Registration
Statements and the Prospectus and, in their opinion (A) the
Registration Statements, as of their respective Effective Dates,
and the Prospectus, as of each of the Effective Dates, did not
include any untrue statement of a material fact and did not omit
to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and (B)
since the Effective Date of the Primary Registration Statement,
no event has occurred which should have been set forth in a
supplement or amendment to either of the Registration Statements
or the Prospectus.
(h)(i) Neither the Company nor any of its subsidiaries shall
have sustained since the date of the latest audited financial
statements included in the Prospectus any loss or interference with
its business from fire, explosion, flood or other calamity, whether or
not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus or (ii) since such date there shall not
have been any change in the capital stock or long-term debt of the
Company or any of its subsidiaries or any change, or any development
involving a prospective change, in or affecting the general affairs,
management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, otherwise than as set
forth or contemplated in the Registration Statements, the effect of
which, in any such case described in clause (i) or (ii), is, in the
judgment of the Lead Managers, so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or
the delivery of the Stock being delivered on such Delivery Date on the
terms and in the manner contemplated in the Prospectus.
(i) Subsequent to the execution and delivery of this Agreement
(i) no downgrading shall have occurred in the rating accorded the
Company's debt securities by any "nationally recognized statistical
rating organization", as that term is defined by the Commission for
purposes of Rule 436(g)(2) of the Rules and Regulations and (ii) no
such organization shall have publicly announced that
20
it has under surveillance or review, with possible negative
implications, its rating of any of the Company's debt securities.
(j) Subsequent to the execution and delivery of this Agreement
there shall not have occurred any of the following:(i) trading in
securities generally on the NYSE or the American Stock Exchange or in
the over-the-counter market, or trading in any securities of the
Company on any exchange or in the over-the-counter market, shall have
been suspended or minimum prices shall have been established on any
such exchange or such market by the Commission, by such exchange or by
any other regulatory body or governmental authority having
jurisdiction,(ii) a banking moratorium shall have been declared by
Federal or state authorities,(iii) the United States shall have become
engaged in hostilities, there shall have been an escalation in
hostilities involving the United States or there shall have been a
declaration of a national emergency or war by the United States or
(iv) there shall have occurred such a material adverse change in
general economic, political or financial conditions (or the effect of
international conditions on the financial markets in the United States
shall be such) as to make it, in the judgment of a majority in
interest of the several International Managers, impracticable or
inadvisable to proceed with the public offering or delivery of the
Stock being delivered on such Delivery Date on the terms and in the
manner contemplated in the Prospectus.
(k) The NYSE shall have approved the Stock for listing.
(l) The Lead Managers shall have received the letters to be
provided pursuant to Section 5(i) of this Agreement.
(m) The closing under the U.S. Underwriting Agreement shall have
occurred concurrently with the closing hereunder.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance satisfactory to counsel
for the International Managers.
8. Indemnification and Contribution.
(a) The Company shall indemnify and hold harmless each International
Manager, its officers and employees and each person, if any, who controls any
International Manager within the meaning of the Securities Act, from and against
any loss, claim, damage or liability, joint or several, or any action in respect
thereof (including, but not limited to, any loss, claim, damage, liability or
action relating to purchases and sales of Stock), to which that International
Manager, officer, employee or controlling person may become subject, under the
Securities Act or otherwise, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon,(i) any untrue statement or alleged
untrue statement of a material fact contained (A) in any Preliminary Prospectus,
either of the Registration Statements or the Prospectus, or in
21
any amendment or supplement thereto, or (B) in any blue sky application or
other document prepared or executed by the Company (or based upon any written
information furnished by the Company) specifically for the purpose of
qualifying any or all of the Stock under the securities laws of any state or
other jurisdiction (any such application, document or information being
hereinafter called a "Blue Sky Application"), or (ii) the omission or alleged
omission to state in any Preliminary Prospectus, either of the Registration
Statements or the Prospectus, or in any amendment or supplement thereto, or
in any Blue Sky Application any material fact required to be stated therein
or necessary to make the statements therein not misleading, or (iii) any act
or failure to act, or any alleged act or failure to act, by any International
Manager in connection with, or relating in any manner to, the Stock or the
offering contemplated hereby, and which is included as part of or referred to
in any loss, claim, damage, liability or action arising out of or based upon
matters covered by clause (i) or (ii) above (provided that the Company shall
not be liable in the case of any matter covered by this clause (iii) to the
extent that it is determined in a final judgement by a court of competent
jurisdiction that such loss, claim, damage, liability or action resulted
directly from any such act or failure to act undertaken or omitted to be
taken by such International Manager through its gross negligence or wilful
misconduct), and shall reimburse each International Manager and each such
officer, employee and controlling person promptly upon demand for any legal
or other expenses reasonably incurred by that International Manager, officer,
employee or controlling person in connection with investigating or defending
or preparing to defend against any such loss, claim, damage, liability or
action as such expenses are incurred; 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 arises out of, or is based upon, any untrue
statement or alleged untrue statement or omission or alleged omission made in
any Preliminary Prospectus, either of the Registration Statements or the
Prospectus, or in any such amendment or supplement, or in any Blue Sky
Application in reliance upon and in conformity with the written information
furnished to the Company through the Lead Managers by or on behalf of any
International Manager specifically for inclusion therein and described in
Section 8(e); and provided further that as to any Preliminary Prospectus this
indemnity agreement shall not inure to the benefit of any International
Manager, its officers or employees or any person controlling that
International Manager on account of any loss, claim, damage, liability or
action arising from the sale of Stock to any person by that International
Manager if that International Manager failed to send or give a copy of the
Prospectus, as the same may be amended or supplemented, to that person within
the time required by the Securities Act, and the untrue statement or alleged
untrue statement of any material fact or omission or alleged omission to
state a material fact in such Preliminary Prospectus was corrected in the
Prospectus, unless such failure resulted from non-compliance by the Company
with Section 5(c). The foregoing indemnity agreement is in addition to any
liability which the Company may otherwise have to any International Manager
or to any officer, employee or controlling person of that International
Manager.
(b) Each International Manager, severally and not jointly, shall
indemnify and hold harmless the Company, its officers and employees, each of its
directors and each person, if any, who controls the Company within the meaning
of the Securities Act, from and against any loss, claim, damage or liability,
joint or several, or any action in respect thereof, to which the Company or any
such director, officer or controlling person may become subject, under the
22
Securities Act or otherwise, insofar as such loss, claim, damage, liability
or action arises out of, or is based upon,(i) any untrue statement or alleged
untrue statement of a material fact contained (A) in any Preliminary
Prospectus, either of the Registration Statements or the Prospectus, or in
any amendment or supplement thereto, or (B) in any Blue Sky Application or
(ii) the omission or alleged omission to state in any Preliminary Prospectus,
either of the Registration Statements or the Prospectus, or in any amendment
or supplement thereto, or in any Blue Sky Application any material fact
required to be stated therein or necessary to make the statements therein not
misleading, but in each case only to the extent that the untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with the written information furnished to the Company
through the Lead Managers by or on behalf of that International Manager
specifically for inclusion therein and described in Section 8(e), and shall
reimburse the Company and any such director, officer or controlling person
for any legal or other expenses reasonably incurred by the Company or any
such director, officer or controlling person in connection with investigating
or defending or preparing to defend against any such loss, claim, damage,
liability or action as such expenses are incurred. The foregoing indemnity
agreement is in addition to any liability which any International Manager may
otherwise have to the Company or any such director, officer or controlling
person.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against
the indemnifying party under this Section 8, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however,
that the failure to notify the indemnifying party shall not relieve it from
any liability which it may have under this Section 8 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 8. If any such claim or action shall be brought against an
indemnified party, and it shall notify the indemnifying party thereof, the
indemnifying party shall be entitled to participate therein and, to the
extent that it wishes, jointly with any other similarly notified indemnifying
party, to assume the defense thereof with counsel satisfactory to the
indemnified party. After notice from the indemnifying party to the
indemnified party of its election to assume the defense of such claim or
action, the indemnifying party shall not be liable to the indemnified party
under this Section 8 for any legal or other expenses subsequently incurred by
the indemnified party in connection with the defense thereof other than
reasonable costs of investigation; provided, however, that any indemnified
party shall have the right to employ separate counsel in any such action and
to participate in the defense thereof but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless (i) the
employment thereof has been specifically authorized by the indemnifying party
in writing, (ii) such indemnified party shall have been advised by such
counsel that there may be one or more legal defenses available to it which
are different from or additional to those available to the indemnifying party
and in the reasonable judgment of such counsel it is advisable for such
indemnified party to employ separate counsel or (iii) the indemnifying party
has failed to assume the defense of such action and employ counsel reasonably
satisfactory to the indemnified party, in which case, if such indemnified
party notifies the indemnifying party in writing that it elects to employ
separate counsel at the expense of the indemnifying party, the indemnifying
party shall not have the right
23
to assume the defense of such action on behalf of such indemnified party, it
being understood, however, that the indemnifying party shall not, in
connection with any one such action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses
of more than one separate firm of attorneys at any time for all such
indemnified parties, which firm shall be designated in writing by the Lead
Managers, if the indemnified parties under this Section 8 consist of any
International Manager or any of their respective officers, employees or
controlling persons, or by the Company, if the indemnified parties under this
Section consist of the Company or any of the Company's directors, officers,
employees or controlling persons. No indemnifying party shall (i) without
the prior written consent of the indemnified parties (which consent shall not
be unreasonably withheld), settle or compromise or consent to the entry of
any judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or
consent includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding, or (ii) be
liable for any settlement of any such action effected without its written
consent (which consent shall not be unreasonably withheld), but if settled
with its written consent or if there be a final judgment of the plaintiff in
any such action, the indemnifying party agrees to indemnify and hold harmless
any indemnified party from and against any loss of liability by reason of
such settlement or judgment.
(d) If the indemnification provided for in this Section 8 shall for
any reason be unavailable to or insufficient to hold harmless an indemnified
party under Section 8(a) or 8(b) in respect of any loss, claim, damage or
liability, or any action in respect thereof, referred to therein, then each
indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof,(i) in
such proportion as shall be appropriate to reflect the relative benefits
received by the Company on the one hand and the International Managers on the
other from the offering of the Stock 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
International Managers on the other with respect to the statements or omissions
which resulted in such loss, claim, damage or liability, or action in respect
thereof, as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and the International Managers
on the other with respect to such offering shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Stock purchased
under this Agreement (before deducting expenses) received by the Company, on the
one hand, and the total underwriting discounts and commissions received by the
International Managers with respect to the shares of the Stock purchased under
this Agreement, on the other hand, bear to the total gross proceeds from the
offering of the shares of the Stock under this Agreement, 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 whether the untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Company or the International
Managers, the intent of the parties and their relative knowledge, access to
information and
24
opportunity to correct or prevent such statement or omission. The Company and
the International Managers agree that it would not be just and equitable if
contributions pursuant to this Section 8(d) were to be determined by pro rata
allocation (even if the International Managers were treated as one entity for
such purpose) or by any other method of allocation which does not take into
account the equitable considerations referred to herein. The amount paid or
payable by an indemnified party as a result of the loss, claim, damage or
liability, or action in respect thereof, referred to above in this Section
8(d) shall be deemed to include, for purposes of this Section 8(d), any legal
or other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim. Notwithstanding
the provisions of this Section 8(d), no International Manager shall be
required to contribute any amount in excess of the amount by which the total
price at which the Stock underwritten by it and distributed to the public was
offered to the public exceeds the amount of any damages which such
International Manager has otherwise paid or become liable to pay by reason of
any 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 Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The
International Managers' obligations to contribute as provided in this Section
8(d) are several in proportion to their respective underwriting obligations
and not joint.
(e) The International Managers severally confirm that the statements
with respect to the public offering of the Stock set forth on the cover page of,
and under the caption "Underwriting" in, the Prospectus are correct and
constitute the only information furnished in writing to the Company by or on
behalf of the International Managers specifically for inclusion in the
Registration Statements and the Prospectus.
9. Defaulting International Managers.
If, on either Delivery Date, any International Manager defaults in the
performance of its obligations under this Agreement, the remaining
non-defaulting International Managers shall be obligated to purchase the Stock
which the defaulting International Manager agreed but failed to purchase on such
Delivery Date in the respective proportions which the number of shares of the
Firm Stock set opposite the name of each remaining non-defaulting International
Manager in Schedule 1 hereto bears to the total number of shares of the Firm
Stock set opposite the names of all the remaining non-defaulting International
Managers in Schedule 1 hereto; provided, however, that the remaining
non-defaulting International Managers shall not be obligated to purchase any of
the Stock on such Delivery Date if the total number of shares of the Stock which
the defaulting International Manager or International Managers agreed but failed
to purchase on such date exceeds 9.09% of the total number of shares of the
Stock to be purchased on such Delivery Date, and any remaining non-defaulting
International Manager shall not be obligated to purchase more than 110% of the
number of shares of the Stock which it agreed to purchase on such Delivery Date
pursuant to the terms of Section 2. If the foregoing maximums are exceeded, the
remaining non-defaulting International Managers, or those other underwriters
satisfactory to the Lead Managers who so agree, shall have the right, but shall
not be obligated, to purchase, in such proportion as may be agreed upon among
them, all the Stock to be purchased on such Delivery Date. If the remaining
International Managers or other underwriters
25
satisfactory to the Lead Managers do not elect to purchase the shares which
the defaulting International Manager or International Managers agreed but
failed to purchase on such Delivery Date, this Agreement (or, with respect to
the Second Delivery Date, the obligation of the International Managers to
purchase, and of the Company to sell, the Option Stock) shall terminate
without liability on the part of any non-defaulting International Manager or
the Company, except that the Company will continue to be liable for the
payment of expenses to the extent set forth in Sections 6 and 11. As used in
this Agreement, the term "International Manager" includes, for all purposes
of this Agreement unless the context requires otherwise, any party not listed
in Schedule 1 hereto who, pursuant to this Section 9, purchases Firm Stock
which a defaulting International Manager agreed but failed to purchase.
Nothing contained herein shall relieve a defaulting International
Manager of any liability it may have to the Company for damages caused by its
default. If other underwriters are obligated or agree to purchase the Stock of
a defaulting or withdrawing International Manager, either the Lead Managers or
the Company may postpone the First Delivery Date for up to seven full business
days in order to effect any changes that in the opinion of counsel for the
Company or counsel for the International Managers may be necessary in the
Registration Statement, the Prospectus or in any other document or arrangement.
10. Termination. The obligations of the International Managers
hereunder may be terminated by the Lead Managers by notice given to and received
by the Company prior to delivery of and payment for the Firm Stock if, prior to
that time, any of the events described in Sections 7(h), 7(i) or 7(j) shall have
occurred or if the International Managers shall decline to purchase the Stock
for any reason permitted under this Agreement.
11. Reimbursement of International Managers' Expenses. If (a) the
Company shall fail to tender the Stock for delivery to the International
Managers for any reason permitted under this Agreement, or (b) the International
Managers shall decline to purchase the Stock for any reason permitted under this
Agreement (including the termination of this Agreement pursuant to Section 10),
the Company shall reimburse the International Managers for the reasonable fees
and expenses of their counsel and for such other out-of-pocket expenses as shall
have been incurred by them in connection with this Agreement and the proposed
purchase of the Stock, and upon demand the Company shall pay the full amount
thereof to the Lead Managers. If this Agreement is terminated pursuant to
Section 9 by reason of the default of one or more International Managers, the
Company shall not be obligated to reimburse any defaulting International Manager
on account of those expenses.
12. Notices, etc. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the International Managers, shall be delivered or sent
by mail, telex or facsimile transmission to ▇▇▇▇▇▇ Brothers
International (Europe), Three World Financial Center, New York, New
York 10285, Attention: Syndicate Department (Fax: ▇▇▇-▇▇▇-▇▇▇▇);
26
(b) if to the Company, shall be delivered or sent by mail, telex
or facsimile transmission to the address of the Company set forth in
the Primary Registration Statement, Attention: Secretary (Fax:
▇▇▇-▇▇▇-▇▇▇▇);
provided, however, that any notice to an International Manager pursuant to
Section 8(c) shall be delivered or sent by mail, telex or facsimile transmission
to such International Manager at its address set forth in its acceptance telex
to the Lead Managers, which address will be supplied to any other party hereto
by the Lead Managers upon request. Any such statements, requests, notices or
agreements shall take effect at the time of receipt thereof. The Company shall
be entitled to act and rely upon any request, consent, notice or agreement given
or made on behalf of the International Managers by ▇▇▇▇▇▇ Brothers International
(Europe) on behalf of the Lead Managers.
13. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the International Managers, the
Company and their respective successors. This Agreement and the terms and
provisions hereof are for the sole benefit of only those persons, except that
(A) the representations, warranties, indemnities and agreements of the Company
contained in this Agreement shall also be deemed to be for the benefit of the
officers and employees of each International Manager and the person or persons,
if any, who control each International Manager within the meaning of Section 15
of the Securities Act and for the benefit of each International Manager (and
controlling persons thereof) who offers or sells any shares of Common Stock in
accordance with the terms of the Agreement Between U.S. Underwriters and
International Managers and (B) the indemnity agreement of the International
Managers contained in Section 8(b) of this Agreement shall be deemed to be for
the benefit of directors, officers and employees of the Company and any person
controlling the Company within the meaning of Section 15 of the Securities Act.
Nothing in this Agreement is intended or shall be construed to give any person,
other than the persons referred to in this Section 13, any legal or equitable
right, remedy or claim under or in respect of this Agreement or any provision
contained herein.
14. Survival. The respective indemnities, representations,
warranties and agreements of the Company and the International Managers
contained in this Agreement or made by or on behalf of them, respectively,
pursuant to this Agreement, shall survive the delivery of and payment for the
Stock and shall remain in full force and effect, regardless of any investigation
made by or on behalf of any of them or any person controlling any of them.
15. Definition of the Terms "Business Day" and "Subsidiary". For
purposes of this Agreement,(a) "business day" means any day on which the NYSE is
open for trading and (b) "subsidiary" has the meaning set forth in Rule 405 of
the Rules and Regulations and shall be deemed to include BCBF.
16. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of New York.
27
17. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
18. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
28
If the foregoing correctly sets forth the agreement among the Company
and the International Managers, please indicate your acceptance in the space
provided for that purpose below.
Very truly yours,
Ocwen Financial Corporation
By____________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Chairman, President and
Chief Executive Officer
Accepted:
▇▇▇▇▇▇ Brothers International (Europe)
Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc.
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Co. International Limited
For themselves and as Lead Managers
of the several International Managers named
in Schedule 1 hereto
By ▇▇▇▇▇▇ Brothers International (Europe)
By_______________________________________
Authorized Lead Manager
SCHEDULE 1
Number of
Shares
---------
International Managers
▇▇▇▇▇▇ Brothers International (Europe)...............
Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc................
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Co. International Limited..........
--------
Total........................................... --------
--------
