Exhibit 21
Execution Copy
2,000,000 Shares
GOLDEN STATE BANCORP INC.
Common Stock par value $1.00 per share
REGISTRATION AGREEMENT
October 19, 2001
CREDIT SUISSE FIRST BOSTON CORPORATION
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
CREDIT SUISSE FIRST BOSTON INTERNATIONAL
C/O CREDIT SUISSE FIRST BOSTON CORPORATION
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Dear Sirs and Mesdames:
1. Introductory. (a) Underlying SAILS Transaction. GSB Investments
Corp. (the "Stockholder"), a wholly-owned subsidiary of Mafco Holdings Inc.
("Mafco"), Mafco, Credit Suisse First Boston International, as purchaser, and
Credit Suisse First Boston Corporation, as agent, have executed an agreement
entitled "Terms and Conditions for Private SAILS" (the "Term Sheet") dated
October 19, 2001, relating to forward sales by the Stockholder of up to
2,000,000 shares of Common Stock, par value $1.00 per share, (the "Common
Stock") of Golden State Bancorp Inc. (the "Company") to Credit Suisse First
Boston International (the "SAILS Transaction"). In connection with hedging its
exposure under the SAILS Transaction, Credit Suisse First Boston Corporation
and Credit Suisse First Boston International may execute, from time to time,
sales (the "Sales") of up to 2,000,000 shares of Common Stock (the
"Securities") pursuant to two registration statements each on Form S-3 under
the Securities Act of 1933, as amended (the "Act"). Credit Suisse First Boston
Corporation and Credit Suisse First Boston International are herein referred
to as the "CSFB Entities". In connection with the SAILS Transaction and the
Sales, the Stockholder, Mafco, the Company and the CSFB Entities agree with
each other as follows:
(b) Registration Statement and Prospectus. The Company has prepared
and filed with the Securities and Exchange Commission (the "Commission") in
accordance with the Act, (i) a registration statement on Form S-3 (File Number
333-50756) relating to shares of Common Stock, 1,356,323 shares (the "First
Shelf Securities") of which remain available for sale under such registration
statement and (ii) a registration statement on Form S-3 (File Number
333-70994), relating to 5,000,000 shares of Common Stock (the "Second Shelf
Securities") that includes a prospectus relating to the First Shelf Securities
and the Second Shelf Securities (collectively the "Shelf Securities"). The
Company proposes to file with the Commission pursuant to Rule 429 under the
Act a prospectus supplement (the "Prospectus Supplement") specifically
relating to the Sales. The registration statements as amended to the date of
this Agreement are hereinafter referred to as the "Registration Statements".
The related prospectus covering the Shelf Securities in the form first used to
confirm sales of the Securities is hereinafter referred to as the "Basic
Prospectus". The Basic Prospectus as supplemented by the Prospectus Supplement
in the form first used to confirm sales of the Securities is hereinafter
referred to as the "Prospectus". Any reference in this Agreement to the
Registration Statements, the Basic Prospectus or the Prospectus shall be
deemed to refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the Act which were filed under the
Securities Exchange Act of 1934, as amended, and the rule and regulations of
the Commission thereunder (collectively, the "Exchange Act") on or before the
date of this Agreement or the date of the Basic Prospectus or the Prospectus,
as the case may be; and any reference to "amend", "amendment" or "supplement"
with respect to the Registration Statements, the Basic Prospectus or the
Prospectus shall be deemed to refer to and include the filing of any documents
under the Exchange Act after the date of this Agreement, or the date of the
Basic Prospectus or the Prospectus, as the case may be, which are deemed to be
incorporated by reference therein.
2. Representations and Warranties of the Company, the Stockholder and
Mafco. (a) The Company represents and warrants to, and agrees with, the CSFB
Entities that:
(i) The Registration Statements have been declared effective
by the Commission under the Act; no stop order suspending the
effectiveness of either of the Registration Statements has been
issued and no proceeding for that purpose has been instituted or, to
the knowledge of the Company, threatened by the Commission; and the
Registration Statements and Prospectus (as amended or supplemented if
the Company shall have furnished any amendments or supplements
thereto) comply, or will comply, as the case may be, in all material
respects with the Act and do not and will not, as of the applicable
effective date as to each of the Registration Statements and any
amendment thereto and as of the date of the Prospectus and any
amendment or supplement thereto, contain any untrue statement of a
material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading, and the Prospectus, as amended or supplemented on each
date until the Final Prospectus Date (as defined below), will not
contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading;
except that the foregoing representations and warranties shall not
apply to statements or omissions in the Registration Statements or
the Prospectus made in reliance upon and in conformity with
information relating to the CSFB Entities furnished to the Company in
writing by the CSFB Entities expressly for use therein.
(ii) The documents incorporated by reference in the
Prospectus, when they were filed with the Commission, conformed in
all material respects to the requirements of the Exchange Act, and
none of such documents contained an untrue statement of a material
fact or omitted to state a material fact necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading; and any further documents so filed
and incorporated by reference in the Prospectus, when such documents
are filed with the Commission, will conform in all material respects
to the requirements of the Exchange Act, as applicable, and will not
contain an untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
(iii) The Company has been duly incorporated and is an
existing corporation in good standing under the laws of the State of
Delaware, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus;
and the Company is duly qualified to do business as a foreign
corporation in good standing in all other jurisdictions in which its
ownership or lease of property or the conduct of its business
requires such qualification, except where the failure to so qualify
would not be reasonably likely to have a material adverse effect on
the condition (financial or other), business, properties or results
of operations of the Company and its subsidiaries, taken as a whole(a
"Material Adverse Effect").
(iv) Each subsidiary of the Company that is a significant
subsidiary (as defined in Section 1-02(w) of Regulation S-X
("Regulation S-X") of the Commission) of the Company (each of such
corporations or other legal entities being hereinafter referred to as
a "Subsidiary" and all such corporations or other legal entities
being, collectively, the "Subsidiaries") has been duly incorporated
and is an existing corporation in good standing under the laws of the
jurisdiction of its incorporation, with power and authority
(corporate and other) to own its properties and conduct its business
as described in the Prospectus; and each Subsidiary of the Company is
duly qualified to do business as a foreign corporation in good
standing in all other jurisdictions in which its ownership or lease
of property or the conduct of its business requires such
qualification except where the failure to so qualify would not be
reasonably likely to have a Material Adverse Effect; all of the
issued and outstanding capital stock of each Subsidiary of the
Company has been duly authorized and validly issued and is fully paid
and nonassessable; and the capital stock of each Subsidiary owned by
the Company, directly or through subsidiaries, is owned free from
liens, encumbrances and defects.
(v) All outstanding shares of capital stock of the Company
have been duly authorized and validly issued, fully paid and
nonassessable and conform in all material respects to the description
thereof contained in the Prospectus.
(vi) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any
person that would give rise to a valid claim against the Company or
any CSFB Entity for a brokerage commission, finder's fee or other
like payment.
(vii) No consent, approval, authorization, or order of, or
filing with, any governmental agency or body or any court is required
to be obtained or made by the Company for the performance by the
Company of its obligations hereunder except such as have been
obtained and made under the Act and such as may be required under
state securities laws.
(viii) The execution, delivery and performance by the
Company of this Agreement, and the consummation of the transactions
herein contemplated by the Company will not result in a breach or
violation of any of the terms and provisions of, or constitute a
default under, (a) any statute, any rule, regulation or order of any
governmental agency or body or any court, domestic or foreign, having
jurisdiction over the Company or any Subsidiary of the Company or any
of their properties, or (b) any agreement or instrument to which the
Company or any such Subsidiary is a party or by which the Company or
any such Subsidiary is bound or to which any of the properties of the
Company or any such Subsidiary is subject, or (c) the charter or
by-laws of the Company or any such Subsidiary, except in the case of
clauses (a) or (b), for such breaches, violations, defaults that
would not be reasonably likely to have a Material Adverse Effect.
(ix) This Agreement has been duly authorized, executed
and delivered by the Company.
(x) Except as disclosed in the Prospectus and except as
would not be reasonably likely to have a Material Adverse Effect, the
Company and its subsidiaries have good and marketable title to all
real properties and all other properties and assets owned by them, in
each case free from liens, encumbrances and defects that would
materially affect the value thereof or materially interfere with the
use made or to be made thereof by them; and except as disclosed in
the Prospectus, the Company and its subsidiaries hold any leased real
or personal property under valid and enforceable leases with no
exceptions that would materially interfere with the use made or to be
made thereof by them.
(xi) The Company and its Subsidiaries possess adequate
certificates, authorities or permits issued by appropriate
governmental agencies or bodies necessary to conduct the business now
operated by them and have not received any notice of proceedings
relating to the revocation or modification of any such certificate,
authority or permit that are reasonably likely to have a Material
Adverse Effect.
(xii) The Company and its Subsidiaries own, possess or can
acquire on reasonable terms, adequate trademarks, trade names and
other rights to inventions, know-how, patents, copyrights,
confidential information and other intellectual property
(collectively, "intellectual property rights") necessary to conduct
the business now operated by them, or presently employed by them, and
have not received any notice of infringement of or conflict with
asserted rights of others with respect to any intellectual property
rights that is reasonably likely to have a Material Adverse Effect.
(xiii) Except as disclosed in the Prospectus, neither the
Company nor any of its subsidiaries is in violation of any statute,
any rule, regulation, decision or order of any governmental agency or
body or any court, domestic or foreign, relating to the use, disposal
or release of hazardous or toxic substances or relating to the
protection or restoration of the environment or human exposure to
hazardous or toxic substances (collectively, "environmental laws"),
owns or operates any real property contaminated with any substance
that is subject to any environmental laws, is liable for any off-site
disposal or contamination pursuant to any environmental laws, or is
subject to any claim relating to any environmental laws, which
violation, contamination, liability or claim is reasonably likely to
have a Material Adverse Effect; and the Company is not aware of any
pending investigation which might lead to such a claim.
(xiv) Except as disclosed in the Prospectus, there are no
pending actions, suits or proceedings against or affecting the
Company, any of its subsidiaries or any of their respective
properties that are reasonably likely to have a Material Adverse
Effect, or would materially and adversely affect the ability of the
Company to perform its obligations under this Agreement, or which are
otherwise material in the context of the sale of the Securities as
described in the Prospectus; and no such actions, suits or
proceedings are threatened or, to the Company's knowledge,
contemplated.
(xv) KPMG LLP ("KPMG") are independent public accountants
with respect to the Company as required by the Act.
(xvi) The financial statements included in the Registration
Statements and the Prospectus present fairly the financial position
of the Company and its consolidated subsidiaries as of the dates
shown and their results of operations and cash flows for the periods
shown, and such financial statements have been prepared in conformity
with the generally accepted accounting principles in the United
States applied on a consistent basis; and the schedules included in
the Registration Statements present fairly the information required
to be stated therein.
(xvii ) Except as disclosed in the Prospectus, since the
date of the latest audited financial statements included in the
Prospectus there has been no material adverse change, nor any
development or event involving a prospective material adverse change,
in the condition (financial or other), business, properties or
results of operations of the Company and its subsidiaries taken as a
whole, and, except as disclosed in or contemplated by the Prospectus,
there has been no dividend or distribution of any kind declared, paid
or made by the Company on any class of its capital stock.
(xvii) The Company is not an "investment company" as defined
in the Investment Company Act of 1940.
(b) Each of the Stockholder and Mafco, severally represents and
warrants to, and agrees with, the CSFB Entities that:
(i) It has duly authorized, executed and delivered
this Agreement.
(ii) The Registration Statements and Prospectus (as amended
or supplemented if the Company shall have furnished any amendments or
supplements thereto) comply, or will comply, as the case may be, in
all material respects with the Act and do not and will not, as of the
applicable effective date as to each of the Registration Statements
and any amendment thereto and as of the date of the Prospectus and
any amendment or supplement thereto, contain any untrue statement of
a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading, and the Prospectus, as amended or supplemented on each
date until the Final Prospectus Date (as defined below), will not
contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading;
provided that the foregoing representations and warranties shall
apply only to statements or omissions in the Registration Statements
or the Prospectus made in reliance upon and in conformity with
information relating to the Stockholder or Mafco furnished to the
Company by the Stockholder or Mafco expressly for use therein.
(iii) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between it and any person
that would give rise to a valid claim against the Company or the CSFB
Entities for a brokerage commission, finder's fee or other like
payment.
3. Sales of Common Stock. It is understood that the CSFB Entities
propose to offer the Securities for sale to the public as set forth in the
Prospectus.
4. Certain Agreements of the Company, the Stockholder and Mafco. The
Company agrees with CSFB Entities, the Stockholder and Mafco that:
(a) The Company will file the Prospectus, the form of which
is consented to by the CSFB Entities (which consent shall not be
unreasonably withheld), with the Commission pursuant to and in
accordance with Rule 429 under the Act not later than the second
business day following the execution and delivery of this Agreement.
The Company will advise the CSFB Entities promptly of any such filing
pursuant to Rule 429.
(b) The Company will advise the CSFB Entities promptly of
any proposal to amend or supplement either of the Registration
Statements as filed or the Prospectus and will file such amendments
or supplements, the form of which is consented to by the CSFB
Entities (which consent shall not be unreasonably withheld); and the
Company will also advise the CSFB Entities promptly of any amendment
or supplementation of either of the Registration Statements or the
Prospectus and of the institution by the Commission of any stop order
proceedings in respect of either of the Registration Statements and
will use its reasonable best efforts to prevent the issuance of any
such stop order and to obtain as soon as possible its lifting, if
issued.
(c) If, at any time until the final Closing Date (as defined
in the Term Sheet) or such later date when a prospectus relating to
the Securities is required to be delivered under the Act in
connection with sales by a CSFB Entity or dealer (the final Closing
Date or such later date the "Final Prospectus Date"), any event
occurs as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading, or if it is necessary at any time to amend the
Prospectus to comply with the Act, the Company will promptly notify
the CSFB Entities of such event and will promptly prepare and file
with the Commission, at its own expense, an amendment or supplement
which will correct such statement or omission or an amendment which
will effect such compliance. Neither the CSFB Entities' consent to,
nor the CSFB Entities' delivery of, any such amendment or supplement
shall constitute a waiver of any of the additional agreements set
forth in Section 5.
(d) As soon as practicable, but not later than the
Availability Date (as defined below), the Company will make generally
available to its securityholders an earnings statement covering a
period of at least 12 months beginning after the effective date (the
"Effective Date") of the Registration Statement which will satisfy
the provisions of Section 11(a) of the Act. For the purpose of the
preceding sentence, "Availability Date" means the 45th day after the
end of the fourth fiscal quarter following the fiscal quarter that
includes such Effective Date, except that, if such fourth fiscal
quarter is the last quarter of the Company's fiscal year,
"Availability Date" means the 90th day after the end of such fourth
fiscal quarter.
(e) The Company will furnish to the CSFB Entities copies of
the Registration Statements (one of each of which will be signed and
will include all exhibits), and, so long as a prospectus relating to
the Securities is required to be delivered under the Act in
connection with sales by a CSFB Entity or dealer, the Prospectus and
all amendments and supplements to such documents, in each case in
such quantities as the CSFB Entities request. The Prospectus shall be
so furnished on or prior to 3:00 P.M., New York time, on the business
day following the execution and delivery of this Agreement. All other
such documents shall be so furnished as soon as available. The
Company will pay the expenses of printing and distributing to the
CSFB Entities all such documents.
(f) The Company will arrange for the qualification of the
Securities for sale under the laws of such jurisdictions as the CSFB
Entities designate and will continue such qualifications in effect so
long as required for the distribution; provided, however, that the
Company is not obliged to qualify as a foreign corporation in any
jurisdiction in which it is not so qualified or take any action that
would subject it to service of process in any jurisdiction in which
it is not presently subject.
(g) During the period of five years hereafter, the Company
will furnish to the CSFB Entities as soon as practicable after the
end of each fiscal year, a copy of its annual report to stockholders
for such year; and the Company will furnish to the CSFB Entities from
time to time, such other information concerning the Company as the
CSFB Entities may reasonably request.
(h) The Company will pay all expenses incident to the
performance of the obligations of the Stockholder and the obligations
of the Company under this Agreement, for any filing fees and other
expenses (including fees and disbursements of counsel) incurred in
connection with qualification of the Securities for sale under the
laws of such jurisdictions as the CSFB Entities designates and the
printing of memoranda relating thereto, for any travel expenses of
the Company's officers and employees and any other expenses of the
Company in connection with attending or hosting meetings with
prospective purchasers of the Securities and for expenses incurred in
distributing the Prospectus (including any amendments and supplements
thereto) to the CSFB Entities.
(i) The Company, during the period when a prospectus
relating to the Securities is required to be delivered under the Act,
will file promptly all documents required to be filed with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act. The Company also will furnish the CSFB Entities with
copies of all investor relations news releases. The Company will
immediately notify the CSFB Entities of any downgrading in the rating
of any debt securities of the Company, or any proposal to downgrade
the rating of any debt securities of the Company, by any "nationally
recognized statistical rating organization" (as defined for purposes
of Rule 436(g) under the Act), as soon as the Company learns of such
downgrading or proposal to downgrade.
5. Additional Covenants of the Company. The Company and the
Stockholder, as applicable, agree that:
(a) On the first settlement date for a sale pursuant to the
Prospectus (the "Initial Representation Date") and on each date
thereafter that is the earlier of the date on which the Registration
Statement or Prospectus is amended or supplemented and the
thirty-first day following the most recent Representation Date (each
such date, including the Initial Representation Date, a
"Representation Date") until the Final Prospectus Date the Company
agrees to cause KPMG to deliver to the CSFB Entities a letter, dated
such Representation Date confirming that they are independent public
accountants within the meaning of the Act and the applicable
published rules and regulations thereunder (the "Rules and
Regulations") and stating to the effect that:
(i) in their opinion the financial statements and
schedules examined by them and included or incorporated in
the Registration Statements comply as to form in all
material respects with the applicable accounting
requirements of the Act and the related published Rules and
Regulations;
(ii) they have performed the procedures specified
by the American Institute of Certified Public Accountants
for a review of interim financial information as described
in Statement of Auditing Standards No. 71, Interim Financial
Information, on the unaudited financial statements included
or incorporated in the Registration Statements;
(iii) on the basis of the review referred to in
clause (ii) above, a reading of the latest available interim
financial statements of the Company, inquiries of officials
of the Company who have responsibility for financial and
accounting matters and other specified procedures, nothing
came to their attention that caused them to believe that:
(A) the unaudited financial statements
included or incorporated in the Registration
Statements do not comply as to form in all material
respects with the applicable accounting
requirements of the Act and the related published
Rules and Regulations or any material modifications
should be made to such unaudited financial
statements for them to be in conformity with
generally accepted accounting principles;
(B) at the date of the latest available
balance sheet read by such accountants, or at a
subsequent specified date not more than three
business days prior to the date of such letter,
there was any increase in the consolidated
borrowings (defined as the sum of (i) borrowings
from the Federal Home Loan Bank, (ii) securities
sold under agreements to repurchase and (iii) other
borrowings) or changes in the capital stock (other
than exercises of stock options) of the Company, as
compared with amounts shown on the latest balance
sheet included in the Prospectus; or
(C) for the period from the closing date
of the latest income statement included or
incorporated in the Prospectus to the closing date
of the latest available income statement read by
such accountants there were any decreases, as
compared with the corresponding period of the
previous year in consolidated net interest income,
total non-interest income or net income;
except in all cases set forth in clauses (B) and (C) above
for changes, increases or decreases which the Prospectus
discloses have occurred or may occur or which are described
in such letter; and
(iv) they have compared specified dollar amounts
(or percentages derived from such dollar amounts) and other
financial information contained in the Registration
Statements (in each case to the extent that such dollar
amounts, percentages and other financial information are
derived from the general accounting records of the Company
and its subsidiaries subject to the internal controls of the
Company's accounting system or are derived directly from
such records by analysis or computation) with the results
obtained from inquiries, a reading of such general
accounting records and other procedures specified in such
letter and have found such dollar amounts, percentages and
other financial information to be in agreement with such
results, except as otherwise specified in such letter.
(b) On each Representation Date, the Company shall cause to
be delivered to the CSFB Entities an opinion, dated such
Representation Date, of Xxxxxxxx X. Xxxxxxxx, Esq., Executive Vice
President and General Counsel of the Company, to the effect that:
(i) The Company has been duly incorporated and is
an existing corporation in good standing under the laws of
the State of Delaware, with corporate power and authority to
own its properties and conduct its business as described in
the Prospectus;
(ii) All outstanding shares of the Common Stock of
the Company have been duly authorized and validly issued,
are fully paid and nonassessable and conform in all material
respects to the description thereof contained in the
Prospectus;
(iii) The Company is not an "investment company" as
defined in the Investment Company Act of 1940.
(iv) No consent, approval, authorization or order
of, or filing with, any governmental agency or body or, to
such counsel's knowledge, any court is required to be
obtained or made by the Company for the performance by the
Company of its obligations hereunder or the consummation of
the transactions contemplated by this Agreement in
connection with the sale of the Securities as described in
the Prospectus, except such as have been obtained and made
under the Act and such as may be required under state
securities laws or pursuant to the rules of the National
Association of Securities Dealers;
(v) The execution, delivery and performance of this
Agreement and the consummation of the transactions herein
contemplated will not result in a breach or violation of any
of the terms and provisions of, or constitute a default
under, any statute, any rule, regulation or, to such
counsel's knowledge, order of any governmental agency or
body or any court having jurisdiction over the Company or
any subsidiary of the Company or any of their properties, or
any agreement or instrument known to such counsel to which
the Company or any such subsidiary is a party or by which
the Company or any such subsidiary is bound or to which any
of the properties of the Company or any such subsidiary is
subject, or the charter or by-laws of the Company or any
such subsidiary;
(vi) Each of the Registration Statements was
declared effective under the Act as of the date and time
specified in such opinion, the Prospectus was filed with the
Commission pursuant to the subparagraph of Rule 429 under
the Act specified in such opinion on the date specified
therein, and, to the best of the knowledge of such counsel,
no stop order suspending the effectiveness of either of the
Registration Statements or any part thereof has been issued
and no proceedings for that purpose have been instituted or
are pending or contemplated under the Act, and each of the
Registration Statements and the Prospectus, and each
amendment or supplement thereto, as of their respective
effective or issue dates, complied as to form in all
material respects with the requirements of the Act and the
Rules and Regulations; the descriptions in the Registration
Statements and Prospectus of statutes, legal and
governmental proceedings and contracts and other documents
are accurate and fairly present in all material respects the
information required to be shown; and such counsel does not
know of any legal or governmental proceedings required to be
described in the Registration Statements or the Prospectus
which are not described as required or of any contracts or
documents of a character required to be described in the
Registration Statements or the Prospectus or to be filed as
exhibits to either of the Registration Statements which are
not described and filed as required; it being understood
that such counsel need express no opinion as to the
financial statements or other financial or statistical data
contained or incorporated by reference in the Registration
Statements or the Prospectus; and
(vii) In addition, such opinion shall also contain
a statement that such counsel has participated in
conferences with officers and representatives of the Company
and representatives of the independent public accountants
for the Company at which the contents of the Prospectus
(including the documents incorporated therein) and related
matters were discussed and, although such counsel is not
passing upon and does not assume responsibility for the
accuracy, completeness or fairness of the statements
contained in the Registration Statements or the Prospectus
and has not made any independent check or verification
thereof, on the basis of the foregoing, no facts have come
to the attention of such counsel which have led such counsel
to believe that the Registration Statements or any amendment
thereto, as of its effective date, contained any untrue
statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to
make the statements therein not misleading or that the
Prospectus or any amendment or supplement thereto, as of its
issue date or as of such Representation Date, contained any
untrue statement of a material fact or omitted to state any
material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading (it being understood that such
counsel need not express an opinion as to the financial
statements or other financial or statistical data contained
in or incorporated by reference in the Registration
Statements or the Prospectus);
(viii) This Agreement has been duly authorized,
executed and delivered by the Company.
(c) On the Initial Representation Date, the Stockholder and
Mafco shall cause to be delivered to the CSFB Entities an opinion,
dated such Initial Representation Date, of Skadden, Arps, Slate,
Xxxxxxx & Xxxx LLP, counsel for the Stockholder, to the effect that:
(i) No consent, approval, license, authorization or
validation of, or filing, qualification or registration
with, any court, regulatory body, administrative agency or
governmental body of the State of Delaware, the State of New
York or the United States of America having jurisdiction
over the Stockholder or Mafco under Applicable Laws (as
defined below), which has not been obtained or taken and is
not in full force and effect, is required to authorize, or
is required in connection with, the execution, delivery or
performance of this Agreement;
(ii) The execution, delivery and performance of
this Agreement and the performance of its obligations
hereunder will not (i) constitute a violation of, or a
breach or default under, the terms of any of the agreements
or instruments identified on a schedule to such counsel's
opinion, (ii) violate or conflict with, or result in any
contravention of, any Applicable Law or any judgments,
orders or decrees identified on a schedule to such counsel's
opinion or (iii) constitute a violation of the charter or
by-laws of the Stockholder or Mafco. As used herein
"Applicable Laws" means the General Corporation Law of the
State of Delaware and those laws, rules and regulations of
the State of New York and the United States of America, in
each case, which, in such counsel's experience, are normally
applicable to transactions of the type contemplated by this
Agreement (other than the United States federal securities
laws, state securities or blue sky laws, antifraud laws and
the rules and regulations of the National Association of
Securities Dealers, Inc.), without such counsel having made
any special investigation as to the applicability of any
specific law, rule or regulation. Such counsel need not
express any opinion, however, with respect to whether the
execution, delivery or performance by the Stockholder or
Mafco of this Agreement will constitute a violation of, or a
default under, any covenant, restriction or provision with
respect to financial ratios or tests or any aspect of the
financial condition or results of operations of the
Stockholder or Mafco or any of their subsidiaries.
(iii) This Agreement has been duly authorized,
executed and delivered by each of the Stockholder and Mafco.
(d) On each Representation Date the Company shall furnish
the CSFB Entities a certificate, dated such Representation Date, of
the President or any Vice President and a principal financial or
accounting officer of the Company in which such officers shall state,
to the best of their knowledge after reasonable investigation, that:
the representations and warranties of the Company in this Agreement
are true and correct as of and as if made on such Representation
Date; the Company has complied with all agreements on its part to be
performed hereunder at or prior to such Delivery Date; no stop order
suspending the effectiveness of either of the Registration Statements
has been issued and no proceedings for that purpose have been
instituted or are contemplated by the Commission; and, subsequent to
the date of the most recent financial statements in the Prospectus,
there has been no material adverse change, nor any development or
event involving a prospective material adverse change, in the
condition (financial or other), business, properties or results of
operations of the Company and its subsidiaries taken as a whole
except as set forth in or contemplated by the Prospectus or as
described in such certificate.
(e) The Company agrees to cause the chief financial officer
and either the general counsel or a senior counsel of the Company to
participate in weekly telephonic due diligence sessions with
representatives of the CSFB Entities and their counsel until the
Final Prospectus Date.
(f) On the Initial Representation Date, the Stockholder and
Mafco shall cause to be delivered to the CSFB entities an opinion,
dated such Initial Representation Date, of Xxxx, Weiss, Rifkind,
Xxxxxxx & Xxxxxxxx, special counsel for the Stockholder, to the
effect that the execution, delivery and performance of this Agreement
and the performance of its obligations hereunder by each of the
Stockholder and Mafco will not constitute a violation of, or a breach
or default under, the terms of any of the agreements or instruments
identified on the schedule to such counsel's opinion. Such counsel
need not express any opinion, however, with respect to whether the
execution, delivery or performance by the Stockholder or Mafco of
this Agreement will constitute a violation of, or a default under,
any covenant, restriction or provision with respect to financial
ratios or tests or any aspect of the financial condition or results
of operations of the Stockholder or Mafco or any of their
subsidiaries.
The Stockholder and the Company will furnish the CSFB Entities with such
conformed copies of such opinions, certificates, letters and documents as the
CSFB Entities reasonably request. The CSFB Entities may in their sole
discretion waive compliance with any obligations of the Company hereunder.
6. Indemnification and Contribution. (a) The Company will indemnify
and hold harmless each CSFB Entity, its partners, directors and officers and
each person, if any, who controls such CSFB Entity within the meaning of
Section 15 of the Act, against any losses, claims, damages or liabilities,
joint or several, to which such CSFB Entity may become subject, under the Act
or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in either
of the Registration Statements, the Prospectus, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and will reimburse each CSFB
Entity for any legal or other expenses reasonably incurred by such CSFB Entity
in connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement
or alleged untrue statement in or omission or alleged omission from any of
such documents in reliance upon and in conformity with written information
furnished to the Company by any CSFB Entity specifically for use therein, it
being understood and agreed that the only such information furnished by any
CSFB Entity consists of the information described as such in subsection (c)
below.
(b) Mafco and the Stockholder, jointly and severally, will indemnify
and hold harmless each CSFB Entity, its partners, directors and officers and
each person, if any, who controls such CSFB Entity within the meaning of
Section 15 of the Act, against any losses, claims, damages or liabilities,
joint or several, to which such CSFB Entity may become subject, under the Act
or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in either
of the Registration Statements, the Prospectus, or any amendment or supplement
thereto or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and will reimburse each CSFB
Entity for any legal or other expenses reasonably incurred by such CSFB Entity
in connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred, in each case to the extent,
but only to the extent, that any such loss, liability, claim, damage or
expense arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with information provided to the Company by the Stockholder
or Mafco expressly for use therein;
(c) Each CSFB Entity will jointly and severally, indemnify and hold
harmless the Company, its directors and officers and each person, if any, who
controls the Company within the meaning of Section 15 of the Act, and each of
Mafco and the Stockholder against any losses, claims, damages or liabilities
to which the Company, Mafco or the Stockholder may become subject, under the
Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in either
of the Registration Statements, the Prospectus, or any amendment or supplement
thereto or arise out of or are based upon the omission or the alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, in each case to the extent, but
only to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity with
written information furnished to the Company by such CSFB Entity specifically
for use therein, and will reimburse any legal or other expenses reasonably
incurred by the Company, Mafco and the Stockholder in connection with
investigating or defending any such loss, claim, damage, liability or action
as such expenses are incurred, it being understood and agreed that the only
such information furnished by any CSFB Entity consists of the following
information in the Prospectus furnished on behalf of the CSFB Entities: the
information contained in the second paragraph under the caption "Supplemental
Plan of Distribution".
(d) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against an indemnifying party under
subsection (a), (b) or (c) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party
will not relieve the indemnifying party from any liability which it may have
to any indemnified party otherwise than under subsection (a), (b) or (c) above
unless and to the extent the indemnifying party did not otherwise learn of
such action and such failure to notify results in the forfeiture by the
indemnifying party of substantial rights and defenses. In case any such action
is brought against any indemnified party and it notifies an indemnifying party
of the commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof,
with counsel satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party, be counsel to the indemnifying
party), and after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party will
not be liable to such indemnified party under this Section for any legal or
other expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened action in respect of
which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party unless such settlement
(i) includes an unconditional release of such indemnified party from all
liability on any claims that are the subject matter of such action and (ii)
does not include a statement as to, or an admission of, fault, culpability or
a failure to act by or on behalf of an indemnified party.
(e) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a), (b) or (c) above, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of the losses, claims, damages or liabilities referred to in subsection (a),
(b) or (c) above (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Stockholder on the one hand
and the CSFB Entities on the other from the offering of the Securities or (ii)
if the allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Company and the Stockholder on the one hand and the CSFB Entities on the other
in connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Company and the
Stockholder on the one hand and the CSFB Entities on the other shall be deemed
to be in the same proportion as the total Aggregate Contract Price (as defined
in the Term Sheet) under the Term Sheet bears to the total value to the CSFB
Entities under the Term Sheet on the date thereof. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the Company, the
Stockholder or the CSFB Entities and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The amount paid by an indemnified party as a result of
the losses, claims, damages or liabilities referred to in the first sentence
of this subsection (e) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any action or claim which is the subject of this subsection (e).
Notwithstanding the provisions of this subsection (e), no CSFB Entity shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities sold under the Prospectus by it and distributed
to the public were offered to the public exceeds the amount of any damages
which such CSFB Entity has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. The CSFB Entities' obligations in this
subsection (e) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(f) The obligations of the Company, Mafco and the Stockholder under
this Section shall be in addition to any liability which the Company, Mafco
and the Stockholder may otherwise have and shall extend, upon the same terms
and conditions, to each person, if any, who controls any CSFB Entity within
the meaning of the Act; and the obligations of the CSFB Entities under this
Section shall be in addition to any liability which the respective CSFB
Entities may otherwise have and shall extend, upon the same terms and
conditions, to each director of the Company, to each officer of the Company
who has signed either of the Registration Statements and to each person, if
any, who controls the Company within the meaning of the Act.
7. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of Mafco, the Stockholder, of the Company or its officers and of
the CSFB Entities set forth in or made pursuant to this Agreement will remain
in full force and effect, regardless of any investigation, or statement as to
the results thereof, made by or on behalf of any CSFB Entity, the Stockholder,
the Company, Mafco or any of their respective representatives, officers or
directors or any controlling person, and will survive all Closing Dates under
the Term Sheet.
8. Notices. All communications hereunder will be in writing and, if
sent to the CSFB Entities, will be mailed, delivered or telegraphed and
confirmed to or care of Credit Suisse First Boston Corporation, Eleven Xxxxxxx
Xxxxxx, Xxx Xxxx, XX 00000-0000, Attention: Transactions Advisory Group, or,
if sent to the Company, will be mailed, delivered or telegraphed and confirmed
to it at 000 Xxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, Attention: Xxxxxxxx
X. Xxxxxxxx, or, if sent to the Stockholder or Mafco, will be mailed,
delivered or telegraphed and confirmed to it at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: General Counsel.
9. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 6, and
no other person will have any right or obligation hereunder.
10. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
11. Applicable Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York, without
regard to principles of conflicts of laws.
The Company hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York
in any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
If the foregoing is in accordance with the CSFB Entities'
understanding of our agreement, kindly sign and return to the Company one of
the counterparts hereof, whereupon it will become a binding agreement among
the Stockholder, Mafco, the Company and the CSFB Entities in accordance with
its terms.
Very truly yours,
GSB INVESTMENTS CORP.
By:/s/ Xxxx X. Xxxxxxx
-------------------------------
Name: Xxxx X. Xxxxxxx
Title: Executive Vice President
and Chief Financial Officer
MAFCO HOLDINGS INC.
By:/s/ Xxxx X. Xxxxxxx
-------------------------------
Name: Xxxx X. Xxxxxxx
Title: Executive Vice President
and Chief Financial Officer
GOLDEN STATE BANCORP INC.
By:/s/ Xxxxxxxx Xxxxxxxx
-------------------------------
Name: Xxxxxxxx Xxxxxxxx
Title: Executive Vice President
and General Counsel
The foregoing Registration Agreement is hereby confirmed and accepted as of
the date first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
By:/s/ Xxxxxxx X. Xxxx
-------------------------------
Name: Xxxxxxx X. Xxxx
Title: Managing Director
CREDIT SUISSE FIRST BOSTON INTERNATIONAL
By:/s/ Xxxx Xxxxxxx
-------------------------------
Name: Xxxx Xxxxxxx
Title: Director
By:/s/ Xxxxxxx XxXxxxxxxx
-------------------------------
Name: Xxxxxxx XxXxxxxxxx
Title:
