EXHIBIT 10(a)
STANDBY STOCK PURCHASE AGREEMENT
THIS STANDBY STOCK PURCHASE AGREEMENT (this "Agreement"), made and entered
into as of ____________, 2001, by and between Bay View Capital Corporation, a
Delaware corporation (the "Company"), and ___________ (the "Purchaser").
W I T N E S S E T H
WHEREAS, the Company anticipates (i) issuing to the holders of its issued
and outstanding shares of common stock, $.01 par value per share (the "Common
Stock"), certain transferable rights (the "Rights") to subscribe for and
purchase approximately ________________ shares of Common Stock (the "Underlying
Shares") at a price of $____ per share (the "Subscription Price"), such
transaction being referred to in this Agreement as the "Rights Offering;"
WHEREAS, each Right consists of (i) the right to subscribe for and purchase
__________ Underlying Shares at the Subscription Price (a "Basic Subscription
Privilege") and (ii) a related right entitling the holder, upon the exercise of
all Rights held by such holder, to subscribe for and purchase an unlimited
number of Underlying Shares at the Subscription Price, up to the amount of
Underlying Shares available after all exercises of Basic Subscription
Privileges, subject to proration and certain additional limitations (an
"Oversubscription Privilege");
WHEREAS, in connection with, and as part of, the Rights Offering, a number
of persons, including the Purchaser, are entering into agreements with the
Company (the "Standby Purchasers") to participate (i) as Standby Purchasers for
the Underlying Shares in excess of _____ shares not purchased pursuant to the
exercise of Rights ("Standby Shares") and (ii) as purchasers of units (the
"Units") consisting of the Company's 4% Series A Convertible Preferred Stock,
$.01 par value per share (the "Preferred Stock"), and warrants (the "Warrants")
to purchase shares of the Company's Common Stock, such purchase of Units being
referred to in this Agreement as the "Initial Offering;" and
WHEREAS, the Purchaser desires to agree to serve as a Standby Purchaser for
a specified number of Standby Shares and to purchase a specified number of
Units, all as is more particularly set forth herein;
NOW, THEREFORE, for and in consideration of the premises and covenants
herein contained and other good and valuable consideration, the receipt and
sufficiency of all of which is hereby acknowledged, the parties hereto agree as
follows:
1. Registration of the Rights, the Underlying Shares, the Standby Shares,
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the Units and the Securities Comprising the Units.
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(a) A prospectus supplement with respect to the Rights Offering (the
"Rights Offering Prospectus Supplement"), which is a part of Post-Effective
Amendment No. 2 to Registration Statement No. 333-64877 on Form S-3 (the
"Registration Statement"), has been filed with the Securities and Exchange
Commission (the "SEC") under the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder (the "Securities Act") and has been
declared effective by the SEC. The Rights and any shares of Common Stock to be
issued and sold by the Company upon the exercise of the Rights in the Rights
Offering have been registered pursuant to the Rights Offering Prospectus
Supplement and the Registration Statement, which the Purchaser acknowledges have
been furnished to the Purchaser.
(b) A prospectus supplement with respect to the Standby Shares and
the Initial Offering (the "Standby Prospectus Supplement," and, together with
the Rights Offering Prospectus Supplement, the "Prospectus Supplements"), which
is a part of the Registration Statement, has been filed with the SEC under the
Securities Act and has been declared effective by the SEC. Any Standby Shares,
Units, shares of Preferred Stock and Warrants comprising the Units, shares of
Common Stock issuable upon conversion of the Preferred Stock (the "Conversion
Shares") and shares of Common Stock issuable upon exercise of the Warrants (the
"Warrant Shares") to be issued and sold to the Purchaser have been registered
pursuant to the Standby Prospectus Supplement and the Registration Statement,
which the Purchaser acknowledges have been furnished to the Purchaser.
2. The Initial Offering. The Purchaser hereby agrees to purchase, and
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the Company hereby agrees to sell, at a price equal to the Subscription Price,
at the Initial Closing (as hereinafter defined), in accordance with Sections 4
and 5, __________ Units, subject to reduction pursuant to Section 6. The
obligations of the Purchaser and the Company under this Agreement shall not be
affected by the obligations of any other Standby Purchaser or any other person
to purchase Units, Standby Shares or to purchase Common Stock pursuant to the
Rights or otherwise and, except as expressly provided herein, are unconditional.
3. The Standby Purchase. The Company hereby agrees to issue and sell to
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the Purchaser and the Purchaser hereby agrees to purchase from the Company,
immediately following completion of the Rights Offering and in accordance with
Sections 4 and 5, up to _______ Standby Shares (the "Standby Commitment").
Subject to reduction pursuant to Section 6, the Purchaser shall purchase, and
the Company shall sell, an amount of Common Stock equal to (i) the product of
(A) the aggregate amount of Standby Shares and (B) a fraction, the numerator of
which is the Standby Commitment and the denominator of which is _________ (the
aggregate of the Standby Commitment hereunder and the standby commitments of all
other Standby Purchasers
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under their respective Standby Stock Purchase Agreements), plus (ii) the
Allocable Remaining Share Amount; provided, however, that if the result of such
calculation exceeds the Standby Commitment, the Purchaser shall only be
obligated to purchase and the Company shall only be obligated to sell the amount
of Common Stock equal to the Standby Commitment.
The "Allocable Remaining Share Amount" shall equal zero if the amount
of Standby Shares purchased by the Purchaser hereunder shall be reduced by
operation of Section 6 hereof and otherwise shall equal the product of (x) the
aggregate amount of Standby Shares, if any, that other Standby Purchasers have
committed to purchase pursuant to their respective Standby Stock Purchase
Agreements but that is not purchased by reason of the operation in their
respective Standby Stock Purchase Agreements of limitations of the type set
forth in Section 6 hereof or for any other reason, and (y) a fraction, the
numerator of which is the Standby Commitment and the denominator of which is the
aggregate of the Standby Commitment hereunder and the standby commitments of all
other Standby Purchasers under their respective Standby Stock Purchase
Agreements whose purchases are not reduced as provided in clause (x) above.
4. The Closings.
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(a) The Initial Closing. At 10:00 a.m., Pacific time, on the date
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(the "Initial Closing Date") following the date on which the Rights expire (the
"Expiration Date"), the closing (the "Initial Closing") of the purchase and sale
of the Preferred Stock and the Warrants comprising the Units in the Initial
Offering pursuant to Section 2 shall take place at the offices of Xxxxx
Ventures, LLC, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or such other place
designated by the Company upon notice to the Purchaser not less than three days
prior to the Initial Closing.
(b) The Standby Closing. Promptly following its determination of the
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number of Underlying Shares that will not be sold pursuant to the exercise of
Rights (and in any event no more than five business days following the
Expiration Date), the Company shall notify the Purchaser of the number of
Standby Shares to be purchased by the Purchaser pursuant to Section 3 and the
aggregate price therefor, the date and time on which such Standby Shares shall
be purchased (which shall be not less than three business days and not more than
five business days following receipt by the Purchaser of such notice) and the
place of such purchase, which shall be in Los Angeles, California, or such other
place designated by the Company upon notice to the Purchaser not less than three
days prior to the Standby Closing. The consummation of the purchase and sale of
the Standby Shares pursuant to Section 3 is herein referred to as the "Standby
Closing" and the time and date of such purchase and sale is referred as the
"Standby Closing Date." The Initial Closing and the Standby Closing are
collectively referred to as the "Closings." The Initial Closing Date and the
Standby Closing Date are
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collectively referred to as the "Closing Dates."
(c) Payment and Delivery. Payment for the Preferred Stock and the
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Warrants comprising the Units and the Common Stock hereunder shall be made by
wire transfer in immediately available funds to an account designated by the
Company against delivery of the Preferred Stock and the Warrants comprising the
Units and the Common Stock to the Purchaser and registered as provided in
Section 5.
5. Delivery of the Standby Shares and the Units. At the Closings, the
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Preferred Stock and the Warrants comprising the Units and the Common Stock to be
purchased by the Purchaser hereunder, in each case registered in the name of the
Purchaser or its nominee(s), as the Purchaser may specify in writing at least
three business days prior to the respective Closing Date, shall be delivered by
or on behalf of the Company to the Purchaser, for the Purchaser's account
against delivery by the Purchaser of the aggregate Subscription Price therefor
as provided in Section 4.
6. Limitations on Issuance of the Standby Shares and the Units.
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(a) The Purchaser acknowledges and agrees that, notwithstanding
anything to the contrary herein contained or implied, the Company shall not be
obligated to issue shares of Common Stock or shares of Preferred Stock and
Warrants comprising the Units in an amount that would exceed:
(i) if the Purchaser is a bank holding company or an affiliate
of a bank holding company, 4.9% of the total issued and outstanding shares of
Common Stock of the Company, assuming for this purpose the conversion of all
Preferred Stock held by the Purchaser and any other Standby Purchaser and
including for this purpose all other shares of Common Stock of the Company or
other securities of the Company convertible into or exercisable for the purchase
of Common Stock of the Company, including the Warrants, owned or controlled by
the Purchaser; or
(ii) if the Purchaser is not a bank holding company and is not
an affiliate of a bank holding company, 9.9% of the total issued and outstanding
shares of Common Stock of the Company, assuming for this purpose the conversion
of all Preferred Stock held by the Purchaser and any other Standby Purchaser and
including for this purpose all other shares of Common Stock of the Company or
other securities of the Company convertible into or exercisable for the purchase
of Common Stock of the Company, including the Warrants, owned or controlled by
the Purchaser.
(b) The Purchaser hereby acknowledges and agrees that,
notwithstanding anything to the contrary herein contained or implied, the
Company shall not be obligated to issue shares of Common Stock and the Preferred
Stock and the Warrants comprising the Units to the Purchaser in an amount that,
when aggregated with any other shares of Common Stock and other securities of
the Company
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convertible into or exercisable for shares of Common Stock owned or controlled
by the Purchaser, would require prior approval or non-objection of such purchase
from any state or federal bank regulatory authority to own or control such
securities unless (i) such approval or non-objection has been obtained, (ii) any
required waiting period has expired prior to the respective Closing or (iii)
satisfactory evidence thereof has been presented to the Company prior to the
respective Closing Date.
(c) The Purchaser acknowledges and agrees that, notwithstanding
anything to the contrary herein contained or implied, the Company shall not be
obligated to issue shares of Common Stock or shares of Preferred Stock and
Warrants comprising the Units in an amount that, in the sole judgment of the
Company after consultation with its tax advisor, would likely result in an
"ownership change" of the Company under Section 382 of the Internal Revenue Code
of 1986, as amended (the "Code").
7. Limitations On Exercise of Oversubscription Privilege. To the extent
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that, as a stockholder of the Company, the Purchaser is issued Rights in the
Rights Offering, the Purchaser agrees to exercise in full its Basic Subscription
Privilege but refrain from exercising any portion of the related
Oversubscription Privilege held by the Purchaser.
8. Representations and Warranties. The Company and the Purchaser hereby
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confirm their agreement as follows:
(a) The Company represents and warrants to, and covenants with, the
Purchaser as follows:
(i) Except for the required approval contemplated by clause
(ii) of this Section 8(a), the Standby Shares, the Preferred Stock, the
Conversion Shares, the Warrants and the Warrant Shares have been duly authorized
by the Company, and when issued and delivered by the Company against payment
therefor, will be duly and validly issued, fully paid and non-assessable. The
Rights have been duly authorized by the Company, and when issued and delivered
by the Company, will constitute valid and legally binding obligations of the
Company, subject to applicable bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating to
or affecting creditors' rights and to general equity principles regardless of
whether enforcement is sought in a proceeding in equity or at law. A Certificate
of Designations with respect to the Preferred Stock filed with the Secretary of
State of Delaware has been duly authorized and executed by the Company.
(ii) As soon as practicable following the Standby Closing, the
Company shall cause a proxy statement to be filed with the SEC and delivered to
stockholders of the Company and a meeting of the Company's stockholders to be
held to consider and act upon an amendment to the Company's Certificate of
Incorporation for the purpose of increasing the authorized shares of Common
Stock to not less than an
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amount that would permit the conversion of the Preferred Stock and the exercise
of the Warrants.
(iii) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of Delaware, with
corporate power and authority to perform its obligations under this Agreement.
(iv) The execution, delivery and performance of this Agreement
by the Company and the consummation by the Company of the transactions
contemplated hereby have been duly authorized by all necessary corporate action
of the Company and this Agreement, when duly executed and delivered by the
Purchaser, will constitute a valid and legally binding agreement of the Company
enforceable in accordance with its terms, subject to applicable bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to general
equity principles regardless of whether enforcement is sought in a proceeding in
equity or at law.
(v) The execution and delivery of this Agreement, the
consummation by the Company of the transactions herein contemplated and the
compliance by the Company with the terms hereof do not and will not conflict
with, or result in a breach or violation of any of the terms or provisions of,
or constitute a default under, the Certificate of Incorporation or By-laws of
the Company, or any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company is a party or by which any of its
properties or assets are bound, with such exceptions as would not have a
material adverse effect on the financial condition of the Company, or any
applicable law, rule, regulation, judgment, order or decree of any government,
governmental instrumentality or court having jurisdiction over the Company or
any of its properties or assets; and no consent, approval, authorization, order,
registration or qualification of or with any such government, governmental
instrumentality or court is required for the valid authorization, execution,
delivery and performance by the Company of this Agreement, the issuance of the
Rights, the issuance of the shares of Common Stock upon the exercise of the
Rights, the issuance of the Preferred Stock and the Warrants comprising the
Units in the Initial Offering, the issuance of the Conversion Shares, the
issuance of the Warrant Shares or the consummation by the Company of the other
transactions contemplated by this Agreement, except such as have been obtained
under the rules and regulations of the Federal Reserve Board, the Office of the
Comptroller of the Currency, the Securities and Exchange Commission and such
consents, approvals, authorizations, registrations or qualifications as may be
required under state securities or "blue sky" laws.
(vi) The Registration Statement, including Post-Effective
Amendment No. 2 thereto, shall be effective at the Closing Dates and no stop
order suspending the effectiveness of such Registration Statement, including
Post-Effective Amendment No. 2 thereto, or any other amendment or supplement
thereto shall have
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been issued. On the date the Registration Statement and Post-Effective Amendment
No. 2 thereto became effective, the Registration Statement and Post-Effective
Amendment No. 2 thereto complied, and at the Closing Dates they will comply, in
all material respects with the requirements of the Securities Act. The
Registration Statement and Post-Effective Amendment No. 2 thereto, including the
Prospectus Supplements, on the date hereof do not contain, and at the Closing
Dates they 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 under which they were
made, not misleading; except that the foregoing does not apply to statements in
or omissions from the Registration Statement, Post-Effective Amendment No. 2 or
the Prospectus Supplements made in reliance upon and in conformity with
information furnished by the Purchaser to the Company expressly for use therein.
(vii) None of the Company's direct or indirect subsidiaries
that is considered to be a "significant subsidiary" within the meaning of the
Securities Act (each a "Subsidiary" and, collectively, the "Subsidiaries") is in
violation of its charter or by-laws or in default under any agreement, indenture
or instrument to which such Subsidiary is a party, the effect of which violation
or default would be material to the business, properties, financial condition or
results of operations of the Company and its Subsidiaries, taken as a whole, and
the execution, delivery and performance of this Agreement by the Company and the
consummation of the transactions contemplated hereby will not conflict with, or
constitute a breach of, or default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any of the assets of the
Subsidiaries pursuant to the terms of any agreement, indenture or instrument to
which any of the Subsidiaries is a party, or result in a violation of the
charter or by-laws of any of the Subsidiaries or any order, rule or regulation
of any court or governmental agency having jurisdiction over any of the
Subsidiaries or any of their property; and no consent, authorization or order
of, or filing or registration with, any court or governmental agency is required
of any Subsidiary for the execution, delivery and performance of this Agreement,
except as has been obtained or applied for as of the date hereof, and with
respect to any approvals applied for, the Company has no reason to believe such
approvals will not be granted or obtained.
(viii) The Standby Shares, to the extent issuable at the
Standby Closing, shall be listed on the New York Stock Exchange as of the
Standby Closing Date, subject to official notice of issuance. The Warrant Shares
and the Conversion Shares shall be listed on the New York Stock Exchange
promptly upon issuance. In the event that an amendment to the Company's
Certificate of Incorporation for the purpose of increasing the Company's
authorized shares of Common Stock to at least an amount that would permit the
conversion of the Preferred Stock and the exercise of the Warrants is not
approved by the Company's stockholders at their next meeting, the Company shall
promptly cause the Preferred Stock to be listed on the New York Stock Exchange.
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(b) The Purchaser represents and warrants to, and covenants with, the
Company as follows:
(i) (A) If the Purchaser is an individual, he or she has full
power and authority to perform his or her obligations under this Agreement.
(B) If the Purchaser is a corporation, the Purchaser is a
corporation duly incorporated, validly existing and in good standing under the
laws of _____________, with corporate power and authority to perform its
obligations under this Agreement.
(C) If the Purchaser is a trust, the Trustee has been duly
appointed as Trustee of the Purchaser with full power and authority to act on
behalf of the Purchaser and to perform the obligations of the Purchaser under
this Agreement.
(D) If the Purchaser is a partnership or limited liability
company, the Purchaser is a ___________ duly organized, validly existing and in
good standing under the laws of _____________, with full power and authority to
perform its obligations under this Agreement.
(ii) The Purchaser has received from the Company and has reviewed
carefully copies of Post-Effective Amendment No. 2 to the Registration Statement
and the Prospectus Supplements as well as the documents incorporated by
reference therein or filed in connection therewith, and except as set forth in
this Agreement, Post-Effective Amendment No. 2 to the Registration Statement and
in the Prospectus Supplements, the Purchaser is not relying on any information
other than information contained in this Agreement, Post-Effective Amendment No.
2 to the Registration Statement or the Prospectus Supplements.
(iii) The Purchaser will be purchasing any shares of Common Stock
and shares of Preferred Stock and Warrants comprising the Units pursuant to the
terms hereof as a passive investment in the ordinary course of the Purchaser's
business, and such Purchaser does not have the intent to exercise a controlling
influence, either alone or acting in concert with any other third party, over
the management or policies of the Company.
(iv) The execution, delivery and performance of this Agreement by
the Purchaser and the consummation by the Purchaser of the transactions
contemplated hereby have been duly authorized by all necessary action of the
Purchaser. This Agreement, when duly executed and delivered by the Purchaser,
will constitute a valid and legally binding instrument, enforceable in
accordance with its terms, subject to applicable bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors'
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rights and to general equity principles regardless of whether enforcement is
sought in a proceeding in equity or at law.
(v) The Purchaser is not insolvent and has sufficient cash funds on
hand to purchase the Standby Shares and the Preferred Stock and Warrants
comprising the Units on the terms and conditions contained in this Agreement and
will have such funds on the respective Closing Dates. The Purchaser has
simultaneously with the execution and delivery of this Agreement or prior
thereto provided the Company with evidence or otherwise substantiated that such
Purchaser has the financial means to satisfy its financial obligations under
this Agreement and the foregoing evidence and substantiation is a true and
accurate representation of such means.
(vi) No state, federal or foreign regulatory approvals, permits,
licenses or consents or other contractual or legal obligations are required in
order for the Purchaser to enter into this Agreement or purchase the Standby
Shares and the Preferred Stock and the Warrants comprising the Units.
(vii) The execution and delivery of this Agreement, the consummation
by the Purchaser of the transactions herein contemplated and the compliance by
the Purchaser with the terms hereof do not and will not conflict with, or result
in a breach or violation of any of the terms or provisions of, or constitute a
default under, the constituent documents of the Purchaser or any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Purchaser is a party or by which any of the Purchaser's properties or
assets are bound, or any applicable law, rule, regulation, judgment, order or
decree of any government, governmental instrumentality or court, domestic or
foreign, having jurisdiction over the Purchaser or any of the Purchaser's
properties or assets; and no consent, approval, authorization, order,
registration or qualification of or with any such government, governmental
instrumentality or court, domestic or foreign, is required for the valid
authorization, execution, delivery and performance by the Purchaser of this
Agreement or the consummation by the Purchaser of the transactions contemplated
by this Agreement.
(viii) Except for advisory arrangements with discretionary clients on
behalf of which the Purchaser may be acquiring the Standby Shares and the
Preferred Stock and the Warrants comprising the Units, the Purchaser has not
entered into any contracts, arrangements, understandings or relationships, legal
or otherwise, with any other person or persons with respect to the transactions
contemplated by this Agreement or any securities of the Company, including but
not limited to transfer or voting of any of the securities, finder's fees, joint
ventures, loan or option arrangements, puts or calls, guarantees of profits,
division of profits or loss or the giving or withholding of proxies. The
Purchaser does not own any securities of the Company
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that are pledged or otherwise subject to a contingency the occurrence of which
would give another person voting power or investment power over such securities.
(ix) The Purchaser's commitment under this Agreement is not contingent
on the commitment of any other Standby Purchaser or on any minimum number of
shares being issued in the Rights Offering or otherwise.
(x) If the Purchaser is not a bank holding company, the aggregate of
all shares of Common Stock directly or indirectly beneficially owned or
controlled by or subject to or held with the power of vote of, in each case,
within the meaning of the Change in Bank Control Act of 1978 and the rules and
regulations thereunder or the California Financial Code and the rules and
regulations thereunder, as the case may be, the Purchaser, together with any
shares of Common Stock that may be acquired under this Agreement, including the
Conversion Shares and the Warrant Shares, does not exceed 9.9% of __________,
which represents the minimum total number of shares of Common Stock and
Preferred Stock anticipated to be issued and outstanding upon completion of the
Rights Offering, or such higher number of shares issued and outstanding upon
completion of the Rights Offering together with any Conversion Shares and
Warrant Shares issued pursuant to this Agreement and any other Standby Stock
Purchase Agreements. If the Purchaser is a bank holding company, the aggregate
of all shares of Common Stock directly or indirectly owned or controlled (within
the meaning of the Bank Holding Company Act of 1956 and the rules and
regulations thereunder) by the Purchaser, together any shares of Common Stock
that may be acquired under this Agreement, including the Conversion Shares and
the Warrant Shares, does not exceed 4.9% of __________, which represents the
minimum total number of shares of Common Stock and Preferred Shares anticipated
to be issued and outstanding upon completion of the Rights Offering, or such
higher number of shares issued and outstanding upon completion of the Rights
Offering together with any Conversion Shares and Warrant Shares issued pursuant
to this Agreement and any other Standby Stock Purchase Agreements.
9. Closing Conditions. The respective obligations of the Company and the
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Purchaser as set forth in this Agreement are subject, in the discretion of the
Company and the Purchaser, as the case may be, to the following conditions:
(a) No order suspending the effectiveness of Post-Effective Amendment
No. 2 to the Registration Statement or any amendment or supplement thereto shall
have been issued and no proceedings for such purpose shall be pending before or
threatened by the SEC and any requests for additional information by the SEC to
be included in Post-Effective Amendment No. 2 to the Registration Statement, in
the Prospectus Supplements or otherwise shall have been complied with in all
material respects.
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(b) The representations and warranties of the Company and the
Purchaser contained herein shall be true and correct in all material respects as
of the Closing Dates and the Company and the Purchaser shall have performed all
covenants and agreements herein required to be performed on its respective part
at or prior to the Closing Dates.
(c) The Company shall have conducted the Rights Offering
substantially in the manner described in the Rights Offering Prospectus
Supplement.
(d) The Company shall have received payment on or prior to the
Initial Closing Date, in consideration for the issuance of shares of Preferred
Stock and Warrants comprising Units, from the Standby Purchasers in an aggregate
amount of not less than $____ million.
(e) Following the expiration of the Rights Offering, after performing
the calculation under Section 3 of each Standby Purchaser's Standby Stock
Purchase Agreement, the Standby Purchasers remain obligated to purchase an
amount of Standby Shares such that the Company will receive not less than an
aggregate of $____ million from the Initial Offering, the Rights Offering and
the sale of Standby Shares.
(f) The Company shall have delivered to Xxxxx Ventures, LLC
("Xxxxx"), as representative of the Standby Purchasers, at the Initial Closing:
(i) an opinion addressed to Xxxxx by the Company's Vice
President, General Counsel and Secretary, in a form satisfactory to Xxxxx; and
(ii) a comfort letter addressed to Xxxxx from KPMG LLP,
independent accountants, in a form satisfactory to Xxxxx.
10. Termination.
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(a) The Purchaser may terminate this Agreement (i) upon the
occurrence of a suspension of trading in the Common Stock, the establishment of
limited or minimum prices for the Common Stock or a general suspension of
trading in or the establishment of limited or minimum prices on any national
securities exchange, any banking moratorium, any suspension of payments with
respect to banks in the United States or a declaration of war or national
emergency in the United States, (ii) under any circumstances that would result
in the Purchaser, individually or together with any other person or entity,
being required to register as a depository institution holding company under
federal or state laws or regulations, or to submit an application, or notice, to
acquire or retain control of a depository institution or depository institution
holding company, to a federal bank regulatory authority or (iii) prior to the
expiration of the Rights Offering, if the Company experiences a material
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adverse change in its financial condition from its financial condition on
December 31, 2001.
(b) In the event consummation of the Rights Offering is prohibited by
law, rule or regulation, the Company may terminate this Agreement without
liability.
(c) Either of the parties hereto may terminate this Agreement (i) if
the transactions contemplated hereby are not consummated by ________, 2001
through no fault of the terminating party or (ii) in the event that the Company
is unable to obtain any required federal or state approvals for the transactions
contemplated hereby on conditions reasonably satisfactory to it despite its
reasonable efforts to obtain such approvals. In addition, this Agreement shall
terminate upon mutual consent of the parties hereto.
(d) The Company and the Purchaser hereby agree that any termination
of this Agreement pursuant to Sections 8(a), (b) or (c), other than termination
by one party in the event of a breach of this Agreement by the other party or
misrepresentation of any of the statements made hereby by the other party, shall
be without liability of the Company or the Purchaser.
11. Future Acquisitions.
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(a) For a period of five years from the Standby Closing Date, the
Purchaser agrees to give the Company sufficient prior written notice of any
proposed acquisition of additional shares of "stock" of the Company (as defined
under Section 382 of the Code and the regulations promulgated thereunder) so
that the Company may determine in its reasonable judgement whether such purchase
of additional shares could reasonably be expected to result in an "ownership
change" under Section 382 and the regulations promulgated thereunder and, in the
event the Company makes such a determination, the Purchaser agrees to limit its
purchases of additional shares of Common Stock or interests therein as the
Company may request to avoid such an ownership change.
(b) The Purchaser agrees that (i) during the period beginning on the
date hereof and continuing until the Standby Closing Date, it will not offer,
sell, contract to sell or otherwise dispose of, or bid for, purchase, contract
to purchase or otherwise acquire, any shares of Common Stock or interests
therein without the prior written consent of the Company and (ii) during the
period commencing the day after the Standby Closing Date and continuing until
the third anniversary of the Standby Closing Date, it will not bid for,
purchase, contract to purchase or otherwise acquire any shares of Common Stock
or interests therein if, after consummation of such acquisition, its percentage
ownership of the total number of shares of Common Stock of the Company would
exceed 4.9%. The Purchaser may increase such percentage ownership above
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4.9%, but in no event in excess of 9.9%, within such three-year period with the
written permission of the Company.
12. Continuing Provisions. The representations and warranties of the
---------------------
Company and the Purchaser set forth in this Agreement shall be true and correct
in all material respects only as of the date of this Agreement and as of the
Closing Dates. All of the covenants, agreements and obligations of each of the
Company and the Purchaser required to be performed by the Closing Dates shall
have been duly performed and complied with by the Closing Dates unless such
performance shall have been waived in writing by the Company or the Purchaser,
as the case may be. The respective representations, warranties, covenants,
agreements and obligations of the parties to this Agreement shall survive the
Closing Dates.
13. Recapitalization, etc. Other than as disclosed in the Prospectus
---------------------
Supplements, prior to the Closings, the Company shall not split, combine,
reclassify or repurchase any of its capital stock or declare or pay any
extraordinary dividends on any of its capital stock.
14. Further Registration. In the event that the Purchaser delivers an
--------------------
opinion of legal counsel experienced in such matters that registration under the
Securities Act is necessary for the resale by the Purchaser of any Standby
Shares, Warrant Shares or Conversion Shares purchased by the Purchaser pursuant
to this Agreement, at the request of the Purchaser, the Company shall use
commercially reasonable efforts to file and cause to be declared effective a
registration statement (the "Resale Registration Statement") under the
Securities Act to enable the Purchaser to resell in the public market such
Standby Shares, Warrant Shares or Conversion Shares. The Purchaser shall provide
all reasonable information requested by the Company in connection with the
Resale Registration Statement. The Company shall bear all expenses related to
the Resale Registration Statement except for any underwriting discounts, selling
commissions or expenses in connection with legal counsel retained by the
Purchaser in connection with the Resale Registration Statement. Notwithstanding
the foregoing, if the Company shall furnish to the Purchaser a certificate
signed by the Chief Executive Officer of the Company stating that in the good
faith judgment of the Board of Directors of the Company, it would be seriously
detrimental to the Company and its stockholders for the Resale Registration
Statement to be filed at such time, the Company shall have the right to defer
the filing of the Resale Registration Statement for an aggregate of not more
than 90 days after receipt of the request of the Purchaser. In the event the
Company is requested to file a Resale Registration Statement, it shall (i) give
10 business days notice thereof to all other Standby Purchasers and offer to
include in such Resale Registration Statement all Standby Shares, Warrant Shares
and Conversion Shares held by such Standby Purchasers and (ii) upon written
notice of acceptance thereof from any such Standby Purchasers within 20 business
days after the date of such notice include in the Resale Registration Statement
such Standby Shares, Warrant Shares and Conversion Shares as shall be requested
by all such Standby Purchasers. If, upon the receipt of
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notice by the Purchaser that a Resale Registration Statement will be filed by
the Company with respect to another Standby Purchaser, the Purchaser does not
provide further notice that it would like to be included in the Resale
Registration Statement pursuant to clause (ii) above, the rights of the
Purchaser under this Section 14 shall thereafter terminate. The Purchaser agrees
to enter into any additional agreements with respect to a Resale Registration
Statement as reasonably requested by the Company that contain customary terms
and conditions, including those relating to indemnification by the Company and
the Purchaser.
15. Miscellaneous. This Agreement is made solely for the benefit of the
-------------
Purchaser and the Company, and their respective personal representatives and
successors, and no other person, partnership, association or corporation shall
acquire or have any right under or by virtue of this Agreement.
16. Assignment. Neither the Company nor the Purchaser may assign any of
----------
its rights under this Agreement without the prior written consent of the other
party hereto.
17. Entire Agreement. This Agreement constitutes the entire agreement and
----------------
understanding between the Purchaser and the Company, and supersedes all prior
agreements and understandings relating to the subject matter hereof. In case any
one or more of the provisions contained in this Agreement, or the application
thereof in any circumstance, is held invalid, illegal or unenforceable in any
respect under the laws of any jurisdiction, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be in any way affected or impaired thereby
or under the laws of any other jurisdiction.
18. Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which when so executed and delivered shall be an original,
and all such counterparts together constitute but one and the same instrument.
19. Amendments. This Agreement may not be amended, modified or changed,
----------
in whole or in part, except by an instrument in writing signed by the Company
and the Purchaser.
20. Notices. Except as otherwise provided in this Agreement, and unless
-------
otherwise notified by the respective addressee, all notices and communications
hereunder shall be in writing and mailed or delivered or by facsimile or
telephone if subsequently confirmed in writing, to:
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If to the Company: Bay View Capital Corporation
0000 Xxxxxxx Xxxxx
Xxx Xxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxx,
Chief Executive Officer
Telephone: 000-000-0000
Facsimile: 000-000-0000
With a copy to: Xxxxxx, Xxxx & Xxxxxxxx LLP
000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000-0000
Attn: Dhiya El-Saden, Esq.
Phone: 000-000-0000
Fax: 000-000-0000
If to the
Purchaser: _______________________________
_______________________________
_______________________________
Attention:_____________________
Telephone:_____________________
Facsimile:_____________________
21. Applicable Law. This Agreement shall be governed by and construed in
--------------
accordance with the laws of the State of California, without regard to conflict
of laws principles.
22. Business Day. The term "business day" shall mean a day on which
------------
banking institutions are open generally in New York.
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IN WITNESS WHEREOF, and intending to be legally bound hereby, each of the
Purchaser and the Company has signed or caused to be signed its name as of the
day and year first above written.
BAY VIEW CAPITAL CORPORATION
By:___________________________________
Xxxxxx X. Xxxxxxxxx, President and
Chief Executive Officer
Agreed and Accepted as of the
____ day of ____, 2001:
[PURCHASER]
By:___________________________
Name:
Title:
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