EXHIBIT 1.1
850,000 SHARES
BANKUNITED FINANCIAL CORPORATION
CLASS A COMMON STOCK
UNDERWRITING AGREEMENT
March [___], 1998
Friedman, Billings, Xxxxxx & Co., Inc.
PaineWebber Incorporated
c/o Friedman, Billings, Xxxxxx & Co., Inc.
Potomac Tower
0000 Xxxxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Dear Sirs:
BankUnited Financial Corporation, a Florida corporation (the "Company")
confirms its agreement with you and the other underwriters named in Schedule A
annexed hereto (the "Underwriters", which term shall also include any
underwriter substituted as hereinafter in Section 9 provided), for whom you are
acting as Representatives, whereby the Company proposes to issue and sell
850,000 shares of its authorized but unissued Class A Common Stock, $.01 par
value per share (the "Common Stock"). Said 850,000 shares are herein called the
"Firm Common Shares." In addition, the Company proposes to grant to the
Underwriters an option to purchase up to 127,500 additional shares of Common
Stock (the "Optional Common Shares"), as provided in Section 1 hereof. The Firm
Common Shares and, to the extent such option is exercised, the Optional Common
Shares are hereinafter collectively referred to as the "Common Shares." In
addition, the Company is offering additional shares of Class B Common Stock and
Noncumulative Convertible Preferred Securities (collectively the AOther
Securities@) in a direct offering to certain affiliated parties (the ADirect
Offering@).
You have advised the Company that the Underwriters propose to make a
public offering of their respective portions of the Common Shares on the
effective date of the registration statement hereinafter referred to, or as soon
thereafter as in your judgment is advisable (the "Offering").
The Company hereby confirms its agreement with respect to the purchase
of the Common Shares by you and the Underwriters, as the case may be, as
follows:
SECTION 1. PURCHASE, SALE AND DELIVERY OF COMMON SHARES. On the basis
of the representations, warranties and agreements herein contained, but subject
to the terms and conditions herein set forth, (i) the Company agrees to issue
and sell to you and the Underwriters, as the case
may be, all of the Firm Common Shares, and (ii) you and the Underwriters agree,
severally and not jointly, to purchase from the Company such Firm Common Shares.
The purchase price per share to be paid by the Underwriters to the Company shall
be $[______] per share.
Delivery of the Firm Common Shares to be purchased by you or the
Underwriters and payment therefor shall be made at the offices of Friedman,
Billings, Xxxxxx & Co., Inc., Xxxxxxx Xxxxx, 00xx Xxxxx, 0000 Xxxxxxxxxx Xxxxxx
Xxxxx, Xxxxxxxxx, Xxxxxxxx (or such other place as may be agreed upon by the
Company and the Representatives) on the third (or, if the purchase set forth in
the above paragraph is determined after 4:30 p.m., Washington, D.C. time, the
fourth) business day following the first date that any of the Common Shares are
released by you for sale to the public (the "First Closing Date"); provided,
however, that if the Prospectus is at any time prior to the First Closing Date
recirculated to the public, the First Closing Date shall occur upon the later of
the third full business day following the first date that any of the Common
Shares are released by you for sale to the public or the date that is 48 hours
after the date that the Prospectus has been so recirculated.
Delivery of certificates for the Firm Common Shares shall be made by or
on behalf of the Company to you, for your account or for the respective accounts
of the Underwriters, as the case may be, against payment by you for your account
or for the accounts of the several Underwriters, as the case may be, of the
purchase price therefor by wire transfer or certified or official bank checks
payable in next day funds to the order of the Company. The certificates for the
Firm Common Shares shall be registered in such names and denominations as you
shall have requested at least two full business days prior to the First Closing
Date, and shall be made available for checking and packaging on the business day
preceding the First Closing Date at a location in Arlington, Virginia, as may be
designated by you. Time shall be of the essence, and delivery at the time and
place specified in this Agreement is a further condition to your obligation or
the obligations of the Underwriters, as the case may be.
In addition, on the basis of the representations, warranties and
agreements herein contained, but subject to the terms and conditions herein set
forth, the Company hereby grants an option to you or to the several
Underwriters, as the case may be, to purchase, severally and not jointly, up to
an aggregate of 127,500 Optional Common Shares at the purchase price per share
to be paid for the Firm Common Shares, for use solely in covering any
over-allotments made by you for your account or the account of the Underwriters,
as the case may be, in the sale and distribution of the Firm Common Shares. The
option granted hereunder may be exercised at any time (but not more than once)
within 30 days after the first date that any of the Common Shares are released
by you for sale to the public, upon notice by you to the Company setting forth
the aggregate number of Optional Common Shares as to which you or the
Underwriters, as the case may be, are exercising the option, the names and
denominations in which the certificates for such shares are to be registered and
the time and place at which such certificates will be delivered. Such time of
delivery (which may not be earlier than the First Closing Date), being herein
referred to as the "Second Closing Date," shall be determined by you, but if at
any time other than the First Closing Date shall not be earlier than three nor
later than five full business days after delivery of such notice of exercise.
The number of Optional Common Shares to be purchased by each Underwriter shall
be determined by multiplying the number of Optional Common Shares to be sold by
the Company pursuant to such notice of
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exercise by a fraction, the numerator of which is the number of Firm Common
Shares to be purchased by such Underwriter as set forth opposite its name in
Schedule A and the denominator of which is 3,200,000 (subject to such
adjustments to eliminate any fractional share purchases as you in your
discretion may make). Certificates for the Optional Common Shares will be made
available for checking and packaging on the business day preceding the Second
Closing Date at a location in Arlington, Virginia, as may be designated by you.
The manner of payment for and delivery of the Optional Common Shares shall be
the same as for the Firm Common Shares purchased from the Company as specified
in the two preceding paragraphs. At any time before lapse of the option, you may
cancel such option by giving written notice of such cancellation to the Company.
If applicable, you have advised the Company that each Underwriter has
authorized you to accept delivery of its Common Shares, to make payment and
receipt therefor. If applicable, you, individually and not as the
Representatives of the Underwriters, may (but shall not be obligated to) make
payment for any Common Shares to be purchased by any Underwriter whose funds
shall not have been received by you by the First Closing Date or the Second
Closing Date, as the case may be, for the account of such Underwriter, but any
such payment shall not relieve such Underwriter from any of its obligations
under this Agreement.
Subject to the terms and conditions hereof, you or the Underwriters, as
the case may be, agree to make a public offering of the Common Shares as soon
after the effective date of the Registration Statement (as hereafter defined) as
in your judgment is advisable and at the public offering price set forth on the
cover page of and on the terms set forth in the Prospectus.
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to the several Underwriters that:
(a) A registration statement on Form S-3 (File No. 333-48249)
with respect to the Common Shares has been prepared by the Company in
conformity with the requirements of the Securities Act of 1933, as
amended (the "Act"), and the rules and regulations (the "Rules and
Regulations") of the Securities and Exchange Commission (the
"Commission") thereunder, and has been filed with the Commission. The
Company has prepared and has filed or proposes to file prior to the
effective date of such registration statement an amendment or
amendments to such registration statement, which amendment or
amendments have been or will be similarly prepared. There has been
delivered to you one signed copy of such registration statement and
amendments, together with two copies of each exhibit filed therewith.
Conformed copies of such registration statement and amendments (but
without exhibits) and of the related Preliminary Prospectus (as defined
below) have been delivered to you in such reasonable quantities as you
have requested. The Company will next file with the Commission one of
the following: (i) prior to effectiveness of such registration
statement, a further amendment thereto, including the form of final
prospectus, or (ii) a final prospectus in accordance with Rules 430A
and 424(b) of the Rules and Regulations. As filed, such amendment and
form of final prospectus, or such final prospectus, shall include all
Rule 430A Information
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(as defined below) and, except to the extent that you shall agree to a
modification, shall be in all substantive respects in the form
furnished to you prior to the date and time that this Agreement was
executed and delivered by the parties hereto, or, to the extent not
completed at such date and time, shall contain only such specific
additional information and other changes (beyond that contained in the
latest Preliminary Prospectus) as the Company shall have previously
advised you in writing would be included or made therein.
The term "Registration Statement" as used in this Agreement
shall mean such registration statement at the time such registration
statement becomes effective and, in the event any post-effective
amendment thereto becomes effective prior to the First Closing Date,
shall also mean such registration statement as so amended; provided,
however, that such term shall also include all Rule 430A Information
deemed to be included in such registration statement at the time such
registration statement becomes effective as provided by Rule 430A of
the Rules and Regulations. The term ARegistration Statement@ as used in
this Agreement shall also include any registration statement filed
pursuant to Rule 462(B) of the Rules and Regulations. The term
"Preliminary Prospectus" shall mean any preliminary prospectus referred
to in the preceding paragraph and any preliminary prospectus included
in the Registration Statement at the time it becomes effective that
omits Rule 430A Information. The term "Prospectus" as used in this
Agreement shall mean the prospectus relating to the Common Shares in
the form in which it is first filed with the Commission pursuant to
Rule 424(b) of the Rules and Regulations or, if no filing pursuant to
Rule 424(b) of the Rules and Regulations is required, shall mean the
form of final prospectus included in the Registration Statement at the
time such registration statement becomes effective. The term "Rule 430A
Information" means information with respect to the Common Shares and
the offering thereof permitted to be omitted from the Registration
Statement when it becomes effective pursuant to Rule 430A of the Rules
and Regulations.
(b) The Commission has not issued any order preventing or
suspending the use of any Preliminary Prospectus, and the most recent
Preliminary Prospectus has conformed in all material respects to the
requirements of the Act and the Rules and Regulations and, as of its
date, has not included any 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 at the time the Registration Statement becomes
effective, and at all times subsequent thereto up to and including each
Closing Date, the Registration Statement and the Prospectus, and any
amendments or supplements thereto (including, without limitation, all
documents incorporated or deemed to be incorporated by reference in
either the Registration Statement or Prospectus at the time they were
filed or hereafter are filed with the Commission), will contain all
material statements and information required to be included therein by
the Act and the Rules and Regulations and will in all material respects
conform to the requirements of the Act and the Rules
4
and Regulations, and neither the Registration Statement nor the
Prospectus, nor any amendment or supplement thereto (including,
without limitation, all documents incorporated or deemed to be
incorporated by reference in either the Registration Statement or
Prospectus at the time they were filed or hereafter are filed with the
Commission), will include any 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; provided,
however, no representation or warranty contained in this subsection
2(b) shall be applicable to information contained in or omitted from
any Preliminary Prospectus, the Registration Statement, the Prospectus
or any such amendment or supplement in reliance upon and in conformity
with written information furnished to the Company by or on behalf of
you or any Underwriter specifically for use in the preparation
thereof.
(c) The Prospectus delivered to the Underwriters for use in
connection with this offering was identical to the electronically
transmitted copies thereof filed with the Commission pursuant to XXXXX,
except to the extent permitted by Regulation S-T.
(d) The Company does not own or control, directly or
indirectly, any corporation, association or other entity other than its
wholly owned subsidiaries, BankUnited, FSB (the "Bank") and BU
Ventures, Inc., and the Bank's wholly owned subsidiaries, T&D
Properties of South Florida, Inc., and Bay Holdings Inc. (BU Ventures,
Inc., the Bank and the Bank's wholly owned subsidiaries are
collectively referred to herein as the "Subsidiaries"). Neither the
Company nor the Subsidiaries own any equity interests in any other
entities except as disclosed in the Prospectus. The Company and the
Subsidiaries have been duly incorporated and are validly existing as
corporations in good standing under the laws of their respective
jurisdictions of incorporation, with full power and authority
(corporate and other) to own and lease their properties and conduct
their respective businesses as described in the Prospectus; the Company
owns all of the outstanding capital stock of the Bank and BU Ventures,
Inc. and the Bank owns all of the outstanding capital stock of T&D
Properties of South Florida, Inc., and Bay Holdings, Inc., each owning
said stock free and clear of all claims, liens, charges and
encumbrances; the Company and the Subsidiaries are in possession of and
operating in compliance with all authorizations, licenses, permits,
consents, certificates and orders material to the conduct of their
respective businesses, all of which are valid and in full force and
effect; the Company and the Subsidiaries are duly qualified to do
business and are in good standing as foreign corporations in each
jurisdiction in which the ownership or leasing of properties or the
conduct of their respective businesses requires such qualification
except where the failure to be so qualified would not have a material
adverse effect on the business, properties, financial condition or
results of operations of the Company and the Subsidiaries, taken as a
whole, and no proceeding has been
5
instituted in any such jurisdiction, revoking, limiting or curtailing,
or seeking to revoke, limit or curtail, such power and authority or
qualification.
(e) The Company has, and upon consummation of the Offering,
will have, authorized and outstanding capital stock as set forth under
the heading "Description of Capital Stock" in the Prospectus; the
issued and outstanding shares of the Company's capital stock have been
duly authorized and validly issued, are fully paid and nonassessable,
have been issued in compliance with all federal and state securities
laws, were not issued in violation of or subject to any preemptive
rights or other rights to subscribe for or purchase securities (except
as may be disclosed in the Prospectus), and conform in all material
respects to the description thereof contained in the Prospectus. The
issued and outstanding Class A Common Stock is duly listed on the
Nasdaq Stock Market. All issued and outstanding shares of capital stock
of the Subsidiaries have been duly authorized and validly issued and
are fully paid and nonassessable. Except as disclosed in or
contemplated by the Prospectus and the financial statements of the
Company, and the related notes thereto, included in the Prospectus,
(and except for options to officers, directors or employees granted
subsequent to December 31, 1997, a complete list of which has been
provided to you) neither the Company nor the Subsidiaries have
outstanding any options to purchase, or any preemptive rights or other
rights to subscribe for or to purchase, any securities or obligations
convertible into, or any contracts or commitments to issue or sell,
shares of its capital stock or any such options, rights, convertible
securities or obligations. The description of the Company's stock
option and other stock plans or arrangements, and the options or other
rights granted and exercised thereunder, set forth in the Prospectus
accurately and fairly presents the information required to be shown
with respect to such plans, arrangements, options and rights.
(f) The Common Shares to be sold by the Company hereunder and
the Other Securities have been duly authorized and, when issued,
delivered and paid for in the manner set forth in this Agreement, will
be validly issued, fully paid and nonassessable free from all liens,
encumbrances and defects, and will conform to the description thereof
contained in the Prospectus. No preemptive rights or other rights to
subscribe for or purchase exist with respect to sale of the Common
Shares by the Company pursuant to this Agreement or the sale of the
Other Securities. The certificates used to evidence shares of Common
Stock are in due and proper form.
(g) The deposits of the Bank are insured by the Federal
Deposit Insurance Corporation (the "FDIC") up to legally applicable
limits, and no proceedings for the termination or revocation of such
insurance are pending or, to the best knowledge of the Company or the
Bank, threatened; no approvals by or filings with the FDIC, except such
as have been obtained, are necessary to consummate the Offering; and
neither the Company nor the Subsidiaries is a party to or otherwise the
subject of any consent decree, memorandum of understanding, written
commitment or other supervisory agreement with the Office of Thrift
Supervision, Department of
6
Treasury (AOTS@) or any other federal or state authority or agency
charged with the supervision or insurance of depository institutions
or their holding companies.
(h) No approval, consent or authority of the stockholders of
the Company or the Board of Directors of the Company or any
governmental agency or any other third party will be required for the
issuance and sale of the Common Shares to be sold by the Company as
contemplated herein, except such as have been obtained.
(i) The Company has full legal right, power and authority to
enter into this Agreement and to perform the transactions contemplated
hereby. This Agreement has been duly and validly authorized by the
Company and upon due execution and delivery by the Company and the
other parties thereto will constitute the valid and binding obligations
of the Company, enforceable against the Company in accordance with
their terms, subject to limitations imposed by general principles of
equity (regardless of whether such enforceability is considered in a
proceeding at law or in equity) and subject to any bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer or other
laws, now or hereafter in effect, relating to or limiting creditors'
rights generally and Section 8(b)(6)(D) of the Federal Deposit
Insurance Act, as amended (the AFDIA@). The making and performance of
this Agreement by the Company and the consummation of the transactions
herein contemplated will not violate any provisions of the articles of
incorporation or bylaws, or other organizational documents of the
Company or the Subsidiaries and will not conflict with, result in the
breach or violation of, or constitute, either by itself or upon notice
or the passage of time or both, a default under any agreement,
mortgage, deed of trust, lease, franchise, license, indenture, permit
or other instrument to which the Company or any of the Subsidiaries is
a party or by which the Company or the Subsidiaries or any of their
respective properties may be bound or affected, any statute or any
authorization, judgment, decree, order, rule or regulation of any court
or any regulatory body, administrative agency or other governmental
body applicable to the Company or any of the Subsidiaries or any of
their respective properties, except where any violation, conflict,
breach or default, whether individually or in the aggregate, would not
have a material adverse effect on the condition (financial or
otherwise), business, properties, results of operations, management or
prospects of the Company and the Subsidiaries, taken as a whole
(hereinafter, a "Material Adverse Effect"). No consent, approval,
authorization or other order of any court, regulatory body,
administrative agency or other governmental body is required for the
execution and delivery of this Agreement or the consummation of the
transactions contemplated hereby, except for compliance with the Act,
the Blue Sky laws applicable to the public offering of the Common
Shares by you or the Underwriters, the clearance of such offering with
the National Association of Securities Dealers, Inc. (the "NASD"), and
the listing of the Common Shares to be sold by the Company on the
Nasdaq Stock Market.
7
(j) Price Waterhouse LLP, who have expressed their opinion
with respect to the financial statements filed with the Commission as a
part of the Registration Statement and incorporated by reference into
the Prospectus and into the Registration Statement, are independent
certified public accountants as required by the Act and the Rules and
Regulations.
(k) The consolidated financial statements and schedules of the
Company, and the related notes thereto, included in the Registration
Statement and the Prospectus, or incorporated by reference therein,
present fairly the consolidated financial position of the Company, as
of the respective dates of such financial statements and schedules, and
the consolidated results of operations and changes in cash flows of the
Company, for the respective periods covered thereby. Such statements,
schedules and related notes have been prepared in accordance with
generally accepted accounting principles applied on a consistent basis.
No other financial statements or schedules are required to be included
in the Registration Statement, or incorporated by reference therein.
The other financial, statistical and pro forma information and related
notes included in the Registration Statement and the Prospectus, or
incorporated by reference therein (i) present fairly the information
shown therein on a basis consistent (except as otherwise noted therein)
with the audited financial statements of the Company incorporated by
reference therein; and (ii) are in compliance in all material respects
with the requirements of the Act.
(l) Neither the Company nor any of the Subsidiaries is in
violation or default of any provision of its articles of incorporation,
bylaws, or other organizational documents, or except as disclosed in
the Prospectus, and except as to defaults which individually or in the
aggregate would not have a Material Adverse Effect, in breach of or
default with respect to any provision of any agreement, judgment,
decree, order, mortgage, deed of trust, lease, franchise, license,
indenture, permit or other instrument to which it is a party or by
which it or any of its properties are bound; and except as to defaults
that individually or in the aggregate would not have a Material Adverse
Effect, there does not exist any state of facts which constitutes an
event of default on the part of the Company or any such Subsidiary as
defined in such documents or which, with notice or lapse of time or
both, would constitute such an event of default.
(m) There are no contracts or other documents required to be
described in the Registration Statement or to be filed as exhibits to
the Registration Statement by the Act or by the Rules and Regulations
which have not been described or filed as required. The contracts so
described in the Prospectus are in full force and effect on the date
hereof; the descriptions thereof or references thereto are correct in
all material respects; and neither the Company nor any of the
Subsidiaries, nor, to the knowledge of the Company, any other party is
in breach of or default under any of such contracts.
8
(n) Except as disclosed in the Prospectus, there are no legal
or governmental actions, suits or proceedings pending or, to the
knowledge of the Company, threatened to which the Company or any of the
Subsidiaries is or may be a party or of which property owned or leased
by the Company or any of the Subsidiaries is or may be the subject, or
related to environmental, discrimination or regulatory matters, which
actions, suits or proceedings might, individually or in the aggregate,
prevent or adversely affect the transactions contemplated by this
Agreement or are likely to result in a Material Adverse Effect and no
labor disturbance by the employees of the Company or the Subsidiaries
exists or is imminent which might be expected to affect adversely such
condition, properties, business, results of operations or prospects of
the Company and the Subsidiaries, taken as a whole. Except as disclosed
in the Prospectus, no enforcement proceeding, whether formal or
informal, has been commenced against the Company or any of the
Subsidiaries by the FDIC or, to the Company's and the Subsidiaries'
knowledge, any other governmental authority, nor have any such
proceedings been instituted, threatened or recommended. Except as
disclosed in the Prospectus, neither the Company, nor any of the
Subsidiaries, or any of their respective officers, employees or
directors is a party or subject to the provisions of any regulatory
action, injunction, judgment, decree or order of any court, regulatory
body, administrative agency or other governmental body affecting the
business of the Company or any of the Subsidiaries.
(o) The Company or the Subsidiaries has good and marketable
title to all their properties and assets, free and clear of all liens,
charges, encumbrances or restrictions, except such as do not materially
adversely affect the value of such properties and assets and do not
interfere with the use made or proposed to be made of such properties
and assets by the Company and the Subsidiaries; all of the leases and
subleases material to the business of the Company or the Subsidiaries
or under which the Company holds properties described in the Prospectus
are in full force and effect; and the Company or the Subsidiaries has
no notice of any material claim of any sort which has been asserted by
anyone adverse to the rights of the Company or the Subsidiaries as
owner or as lessee or sublessee under any of the leases or subleases
mentioned above, or materially affecting or questioning the rights of
the Company or the Subsidiaries to the continued possession of the
leased or subleased premises under any such lease or sublease. Except
as disclosed in the Prospectus and other than such leases and
properties as are immaterial in the aggregate, the Company or the
Subsidiaries owns or leases all such properties as are necessary to its
operations as now conducted or, as proposed to be conducted.
(p) Since the respective dates as of which information is
given in the Registration Statement and Prospectus, and except as
described in or specifically contemplated by the Prospectus: (i) the
Company and the Subsidiaries have not incurred any material liabilities
or obligations, indirect, direct or contingent, or entered into any
material verbal or written agreement or other transaction whether or
not arising in the ordinary course of business or which could result in
a material
9
reduction in the future earnings of the Company and the Subsidiaries
(taken as a whole); (ii) there has not been any material increase in
the long-term debt of the Company and the Subsidiaries (taken as a
whole) or in the aggregate dollar or principal amount of the Company's
and the Subsidiaries (taken as a whole) assets which are classified as
substandard, doubtful or loss or loans which are 90 days or more past
due or real estate acquired by foreclosure; (iv) there has not been any
Material Adverse Effect on the aggregate dollar amount of the Company's
and the Subsidiaries' (taken as a whole) deposits or their consolidated
net worth or spread; (v) there has been no material adverse change in
the Company's and the Subsidiaries relationship with its insurance
carriers, including, without limitation, cancellation or other
termination of the Company's or the Subsidiaries fidelity bond or any
other type of insurance coverage; (vi) except as disclosed in the
Prospectus there has been no material change in management of the
Company or the Subsidiaries; (vii) the Company and the Subsidiaries
have not sustained any material loss or interference with their
respective business or properties from fire, flood, windstorm,
earthquake, accident or other calamity, whether or not covered by
insurance; (viii) the Company has not paid or declared any dividends or
other distributions with respect to its capital stock and the Company
and the Subsidiaries are not in default in the payment of principal or
interest on any outstanding debt obligations; (ix) there has not been
any change in the capital stock (other than upon the sale of the Common
Shares hereunder); and (x) there has not been any material adverse
change in the condition (financial or otherwise), business, properties,
results of operations or prospects of the Company and the Subsidiaries,
taken as a whole, other than changes resulting from changes in the
economy or the Company's and the Subsidiaries industry generally.
(q) Except as disclosed in or specifically contemplated by the
Prospectus, the Company and the Subsidiaries have sufficient
trademarks, trade names, patent rights, copyrights, licenses, approvals
and governmental authorizations to conduct their businesses as now
conducted; the expiration of any trademarks, trade names, patent
rights, copyrights, licenses, approvals or governmental authorizations
would not have a Material Adverse Effect; and the Company and the
Subsidiaries have no knowledge of any material infringement by it of
trademark, trade name rights, patent rights, copyrights, licenses,
trade secret or other similar rights of others, and, to the Company's
and the Subsidiaries knowledge, there is no claim being made against
the Company or any of the Subsidiaries regarding trademark, trade name,
patent, copyright, license, trade secret or other infringement which
could have a Material Adverse Effect.
(r) The Company has not been advised, and has no reason to
believe, that either it or any of the Subsidiaries is not conducting
business in compliance with all applicable laws, rules and regulations
of the jurisdictions in which it is conducting business, including,
without limitation, all applicable local, state and federal financial
institution and environmental laws and regulations; except where
failure to be so in compliance would not have a Material Adverse
Effect. Neither the
10
Company nor any of its affiliates (including the Subsidiaries) is a
bank holding company within the meaning of the Bank Holding Company Act
of 1956, as amended, or applicable regulations promulgated thereunder.
The Company is a savings and loan holding company within the meaning of
the Home Owners' Loan Act. The Bank is an insured depository
institution within the meaning of the FDIA.
(s) Except as disclosed in the Prospectus, the Bank is not in
violation of any directive from the FDIC or any other governmental
authority and the Bank is in compliance with all federal and state laws
and regulations that regulate or are concerned with its business
including, without limitation, the Financial Institutions Recovery,
Reform and Enforcement Act of 1989 ("FIRREA"), the FDIA, the National
Housing Act (the "NHA"), the Federal Deposit Insurance Corporation
Improvement Act of 1991 ("FDICIA") and all other applicable laws and
regulations where the failure to comply would have a Material Adverse
Effect.
(t) The Company and the Subsidiaries have filed or caused to
be filed all material federal, state and foreign income and franchise
tax returns and have paid all taxes shown as due thereon; and the
Company has no knowledge of any tax deficiency which has been or might
be asserted or threatened against the Company or the Subsidiaries which
would have a Material Adverse Effect.
(u) With respect to each employee benefit plan, program and
arrangement (including, without limitation, any Aemployee benefit plan@
as defined in Section 3(3) of the Employee Retirement Income Security
Act of 1974, as amended (AERISA@)) maintained or contributed to by the
Company, or with respect to which the Company could incur any liability
under ERISA (collectively, the ABenefit Plans@), no event has occurred
and, to the best knowledge of the Company, there exists no condition or
set of circumstances, in connection with which the Company could be
subject to any liability under the terms of such Benefit Plan,
applicable law (including, without limitation, ERISA and the Internal
Revenue Code of 1986, as amended) or any applicable agreement that
could have a Material Adverse Effect.
(v) The Company is not an "investment company" within the
meaning of the Investment Company Act of 1940, as amended (the
"Investment Company Act").
(w) The Company has not distributed any offering material in
connection with the offering and sale of the Common Shares or Other
Securities other than the Preliminary Prospectus, the Prospectus, the
Registration Statement and the other materials permitted by the Act.
(x) Except as disclosed in the Prospectus, there is no claim
pending or to the knowledge of the Company threatened under any
Environmental Law (as defined below) against the Company or the
Subsidiaries which could reasonably be expected, singly or in the
aggregate, to result in a Material Adverse Effect; to the knowledge of
the Company there are no past or present actions, conditions, events,
11
circumstances or practices, including, without limitation, the release
of any Hazardous Material (as defined below) that could reasonably be
expected to form the basis of any such claim under any Environmental
Law against the Company or the Subsidiaries which would, singly or in
the aggregate, result in a Material Adverse Effect. The term
AEnvironmental Law@ means the common law and any federal, state, local
or foreign law, rule or regulation, code, order, decree, judgment or
injunction, issued, promulgated, approved or entered thereunder
relating to pollution or protection of public or employee health or the
environment, including without limitation, the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as
amended, the Resources Conservation and Recovery Act, as amended, the
Toxic Substance Control Act, as amended, the Clean Air Act, as amended,
and the Federal Water Pollution Act, as amended, and their foreign,
state and local counterparts or equivalents and any other laws relating
to (i) releases of any Hazardous Material into the environment
(including without limitation, ambient air, surface water, ground
water, land surface or subsurface strata), (ii) the manufacture,
processing, distribution, use, treatment, storage, disposal, transport,
presence or handling of any Hazardous Material, or (iii) underground
storage tanks and related piping, and releases therefrom. The term
AHazardous Material@ means any pollutant, contaminant, chemical,
hazardous material, or industrial, toxic or hazardous substance or
waste (including, without limitation, petroleum, including crude oil or
any fraction thereof or any petroleum product) regulated by or the
subject of any Environmental Law.
(y) In the ordinary course of its business, the Company
conducts a periodic review of the effect of Environmental Laws on the
business, operations and properties of the Company and its
Subsidiaries, in the course of which it identifies and evaluates
associated costs and liabilities (including, without limitation, any
capital or operating expenditures required for clean-up, closure of
properties or compliance with Environmental Laws or any permit, license
or approval, any related constraints on operating activities and any
potential liabilities to third parties). Except as set forth in the
Registration Statement and the Prospectus there are no costs and
liabilities associated with or arising in connection with Environmental
Laws as currently in effect (including, without limitation, costs of
compliance therewith) which would, singly or in the aggregate have a
material adverse effect on the condition (financial or otherwise) or on
the earnings, business, properties, business prospects or operations of
the Company and its Subsidiaries, taken as a whole.
(z) The Company and the Bank maintain insurance of the types
and in the amounts generally deemed adequate for their respective
businesses, including, but not limited to, general liability insurance,
fidelity bond insurance and insurance covering real and personal
property owned or leased by the Company or the Bank against theft,
forgery, damage, destruction, acts of vandalism and all other risks
customarily insured against, all of which insurance is in full force
and effect.
12
(aa) Neither the Company nor the Bank has, directly or
indirectly, at any time during the last five years (i) made any
unlawful contribution to any candidate for public office, or failed to
disclose fully any contribution in violation of law, or (ii) made any
payment to any federal or state governmental officer or official, or
other person charged with similar public or quasi-public duties, other
than payments required or permitted by the laws of the United States or
any jurisdiction thereof.
(bb) All material transactions between the Company and the
Bank and the officers, directors and major stockholders of the Company
that are required to be disclosed under the Act and the Rules and
Regulations have been accurately disclosed in the Prospectus; and the
terms of each such transaction are fair to the Company and no less
favorable to the Company than the terms that could have been obtained
from unrelated parties, except as disclosed in the Prospectus.
(cc) Except as disclosed in the Prospectus, neither the
Company nor the Bank has: (i) placed any securities within the last 18
months (except for notes to evidence other bank loans and reverse
repurchase agreements); (ii) had any material dealings with any member
of the NASD or any person related to or associated with such member,
other than discussions and meetings relating to the proposed Offering
and routine purchases and sales of U.S. Government and agency
securities and other assets; (iii) entered into a financial or
management consulting agreement; or (iv) engaged any intermediary
between the Representatives and the Company in connection with the
Offering, and no person is being compensated in any manner for such
service.
(dd) The Company has not taken and will not take, directly or
indirectly, any action prohibited by Regulation M under the Exchange
Act in connection with the sale and offering of the Common Shares or
the Other Securities.
(ee) The Company has not relied upon the Representatives or
legal counsel for the Representatives for any legal, tax or accounting
advice in connection with the Offering.
(ff) The offering of the Other Securities has been and will be
duly and validly authorized by the Company and will be completed in
compliance with the Act and the Blue Sky laws to the extent applicable
to such offering.
Any certificate signed by any officer of the Company and delivered to
you or to your counsel shall be deemed a representation and warranty by the
Company to you as to the matters covered thereby. Any certificate delivered by
the Company to its counsel for purposes of enabling such counsel to render the
opinions referred to in Section 7(c) will also be furnished to the Underwriters
and its counsel and shall be deemed to be additional representations and
warranties by the Company to the Underwriters as to the matters covered thereby
and the Underwriters and its counsel are entitled to rely thereon.
13
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE UNDERWRITERS. You, for
yourselves or on behalf of the Underwriters, as the case may be, represent and
warrant to the Company that the information set forth in the Prospectus (i) on
the cover page of the Prospectus with respect to price, underwriting discounts
and commissions and terms of offering, (ii) on the inside cover page with
respect to stabilization and (iii) under the caption "Underwriting" in the
Prospectus was furnished to the Company by and on behalf of the Underwriters for
use in connection with the preparation of the Registration Statement and the
Prospectus and is complete and correct in all material respects. If applicable,
the Representatives represent and warrant you have been authorized by each of
the other Underwriters as the Representatives to enter into this Agreement on
its behalf and to act for it in the manner herein provided.
SECTION 4. COVENANTS OF THE COMPANY. The Company covenants and agrees
that:
(a) The Company will use its best efforts to cause the
Registration Statement and any amendment thereof, if not effective at
the time and date that this Agreement is executed and delivered by the
parties hereto, to become effective. If the Registration Statement has
become or becomes effective pursuant to Rule 430A of the Rules and
Regulations, or the filing of the Prospectus is otherwise required
under Rule 424(b) of the Rules and Regulations, the Company will file
the Prospectus, properly completed, pursuant to the applicable
paragraph of Rule 424(b) of the Rules and Regulations within the time
period prescribed and will provide evidence satisfactory to you of such
timely filing. The Company will promptly advise you in writing (i) of
the receipt of any comments of the Commission, (ii) of any request of
the Commission for amendment of or supplement to the Registration
Statement (either before or after it becomes effective), any
Preliminary Prospectus or the Prospectus or for additional information,
(iii) when the Registration Statement shall have become effective and
(iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of the institution of
any proceedings for that purpose. If the Commission shall enter any
such stop order at any time, the Company will use its best efforts to
obtain the lifting of such order at the earliest possible moment. The
Company will not file any amendment or supplement to the Registration
Statement (either before or after it becomes effective), any
Preliminary Prospectus or the Prospectus of which you have not been
furnished with a copy a reasonable time prior to such filing or to
which you reasonably object or which is not in compliance with the Act
and the Rules and Regulations.
(b) The Company will prepare and file with the Commission,
promptly upon your request, any amendments or supplements to the
Registration Statement or the Prospectus which in your reasonable
judgment may be necessary or advisable to enable the Underwriter to
continue the distribution of the Common Shares and will use its best
efforts to cause the same to become effective as promptly as possible.
The Company will fully and completely comply with the provisions of
Rule 430A
14
of the Rules and Regulations with respect to information omitted from
the Registration Statement in reliance upon such Rule.
(c) If at any time within the nine-month period referred to in
Section 10(a)(3) of the Act during which a prospectus relating to the
Common Shares is required to be delivered under the Act any event
occurs, as a result of which the Prospectus, including any amendments
or supplements, would include an 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 light of the circumstances
then existing, not misleading, or if it is necessary at any time to
amend the Prospectus, including any amendments or supplements, to
comply with the Act or the Rules and Regulations, the Company will
promptly advise you thereof 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 or supplement which
will effect such compliance and will use its best efforts to cause the
same to become effective as soon as possible; and, in case you or any
Underwriters are required to deliver a Prospectus after such nine-month
period, the Company upon request, but at the expense of you or such
Underwriters, will promptly prepare such amendment or amendments to the
Registration Statement and such Prospectus or Prospectuses as may be
necessary to permit compliance with the requirements of Section
10(a)(3) of the Act.
(d) As soon as practicable, but not later than 45 days after
the end of the first quarter ending after one year following the
"effective date of the Registration Statement" (as defined in Rule
158(c) of the Rules and Regulations), the Company will make generally
available to its security holders an earnings statement (which need not
be audited) covering a period of 12 consecutive months beginning after
the effective date of the Registration Statement which will satisfy the
provisions of the last paragraph of Section 11(a) of the Act.
(e) During such period as a Prospectus is required by law to
be delivered in connection with sales by an Underwriter or dealer, the
Company, at its expense, but only for the nine-month period referred to
in Section 10(a)(3) of the Act, will furnish to you or mail to you
copies of the Registration Statement, the Prospectus, the Preliminary
Prospectus and all amendments and supplements to any such documents in
each case as soon as available and in such quantities as you may
request, for the purposes contemplated by the Act.
(f) The Company shall cooperate with you and your counsel in
order to qualify or register the Common Shares for sale under (or
obtain exemptions from the application of) the Blue Sky laws of such
jurisdictions as you designate, will comply with such laws and will
continue such qualifications, registrations and exemptions in effect so
long as reasonably required for the distribution of the Common Shares.
The Company shall not be required to qualify as a foreign corporation
or to file a
15
general consent to service of process in any such jurisdiction where it
is not presently qualified or where it would be subject to taxation as
a foreign corporation. The Company will advise you promptly of the
suspension of the qualification or registration of (or any such
exemption relating to) the Common Shares for offering, sale or trading
in any jurisdiction or any initiation or threat of any proceeding for
any such purpose, and in the event of the issuance of any order
suspending such qualification, registration or exemption, the Company,
with your cooperation, will use its best efforts to obtain the
withdrawal thereof.
(g) The Company shall promptly prepare and file with the
Commission, from time to time, such reports as may be required to be
filed by the Act and the Exchange Act including, without limitation,
reports with respect to the sale of the Common Shares and the
application of the proceeds thereof as may be required in accordance
with Rule 463 under the Act.
(h) During the period of five years hereafter, the Company
will furnish to you: (i) at the same time as such are furnished to its
Stockholders generally, copies of the Annual Report of the Company
containing the consolidated balance sheet of the Company and the
Subsidiaries as of the close of such fiscal year and consolidated
statements of income, stockholders' equity and cash flows for the year
then ended and the opinion thereon of the Company's independent public
accountants; (ii) as soon as practicable after the filing thereof,
copies of each proxy statement, Annual Report on Form 10-K, Quarterly
Report on Form 10-Q, Current Report on Form 8-K or other report filed
by the Company with the Commission, the NASD or any securities
exchange; (iii) as soon as available, copies of any report or
communication of the Company mailed generally to holders of its Common
Stock; (iv) as soon as practicable after the filing thereof, of each
non-confidential report or other statement or document filed by the
Company with the Commission, or with any national securities exchange
or quotation system on which any securities of the Company may be
listed or quoted; and (v) from time to time, such other
non-confidential information concerning the Company as you may
reasonably request.
(i) During the period of 180 days after the date the
Registration Statement is declared effective by the Commission, without
your prior written consent, which consent may be withheld at your sole
discretion, the Company will not, directly or indirectly, issue, offer,
sell, grant options to purchase or otherwise dispose of any of the
Company's equity securities or any other securities convertible into,
exchangeable for or exercisable for its Class A Common Stock or other
equity security of the Company, other than (i) shares of Class A Common
Stock or Class B Common Stock issued upon the exercise of outstanding
stock options disclosed in the Prospectus; (ii) shares of Class A
Common Stock or Class B Common Stock issued upon conversion of
outstanding convertible securities disclosed in the Prospectus, (iii)
options to purchase Class A Common Stock, Class B Common Stock or
Series B Preferred Stock to be granted under the Company's stock option
16
plans or approved as of September 30, 1997 by the Company's Board of
Directors, as described under the caption "Capitalization" in the
Prospectus, and the shares of Class A Common Stock, Class B Common
Stock or Series B Preferred Stock issued upon exercise of such options,
and (iv) shares of Class A Common Stock, Class B Common Stock or Series
B Preferred Stock issued as fees to directors of the Company, salary to
employees of the Company, dividends on the Company's stock, or bonuses
under the Company's employee bonus plan. Notwithstanding the foregoing,
the 180 day period set forth in the preceding sentence shall be reduced
to 120 days with respect to the acquisition of any other financial
institution or its holding company.
(j) The Company will apply the net proceeds of the sale of the
Common Shares sold by it substantially in accordance with its
statements under the caption "Use of Proceeds" in the Prospectus.
(k) The Company will use its best efforts to list, subject to
notice of issuance, the Common Shares as a national market system
security on the Nasdaq Stock Market.
(l) Each of the Trust and the Company maintains a system of
internal accounting controls sufficient to provide reasonable assurance
that (i) transactions are executed in accordance with management=s
general or specific authorization; (ii) transactions are recorded as
necessary to permit preparation of financial statements in conformity
with generally accepted accounting principles and to maintain
accountability for assets; (iii) access to assets is permitted only in
accordance with management=s general or specific authorization; and
(iv) the recorded accountability for assets is compared with existing
assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(m) The Company will not distribute prior to the First Closing
Date any offering material in connection with the offering and sale of
the Common Shares other than the Preliminary Prospectus, the
Prospectus, the Registration Statement and the other materials
permitted by the Act.
(n) The Company will not take, directly or indirectly, any
action designed to cause or result in, or which has constituted or
which reasonably might be expected to constitute, the stabilization or
manipulation of the price of the Class A Common Stock to facilitate the
sale or resale of the Common Shares.
(o) The Company will not rely upon the Representatives or
legal counsel for the Representatives for any legal, tax or accounting
advice in connection with the Offering.
17
You may, in your sole discretion, waive in writing the performance by
the Company of any one or more of the foregoing covenants or extend the time for
their performance.
SECTION 5. PAYMENT OF EXPENSES. Whether or not the transactions
contemplated hereunder are consummated or this Agreement becomes effective or is
terminated, the Underwriters will pay all of their costs, fees and expenses
incurred in connection with the performance of its obligations hereunder and in
connection with the transactions contemplated hereby.
SECTION 6. CONDITIONS TO THE OBLIGATIONS OF YOU AND THE UNDERWRITERS.
The obligations of you and the Underwriters to purchase and pay for the Firm
Common Shares on the First Closing Date and the Optional Common Shares on the
Second Closing Date shall be subject to the accuracy in all material respects of
the representations and warranties on the part of the Company herein set forth
as of the date hereof and as of the First Closing Date or the Second Closing
Date, as the case may be, to the accuracy in all material respects of the
statements of Company and Bank officers made pursuant to the provisions hereof,
to the performance in all material respects by the Company of its obligations
hereunder, and to the following additional conditions:
(a) The Registration Statement shall have become effective not
later than 5:00 P.M., Washington, D.C. Time, on the date of this
Agreement, or at such later time as shall have been consented to by
you; if the filing of the Prospectus, or any supplement thereto, is
required pursuant to Rule 424(b) of the Rules and Regulations, the
Prospectus shall have been filed in the manner and within the time
period required by Rule 424(b) of the Rules and Regulations; and prior
to such Closing Date, no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for
that purpose shall have been instituted or shall be pending or, to the
knowledge of the Company or you, shall be contemplated by the
Commission; and any request of the Commission for inclusion of
additional information in the Registration Statement, or otherwise,
shall have been complied with to your reasonable satisfaction.
(b) You shall be reasonably satisfied that since the
respective dates as of which information is given in the Registration
Statement and Prospectus, (i) there shall not have been any change in
the capital stock of the Company or the Subsidiaries or any material
change in the indebtedness (other than in the ordinary course of
business) of the Company or the Subsidiaries, (ii) except as set forth
or contemplated by the Registration Statement or the Prospectus, no
material verbal or written agreement or other transaction shall have
been entered into by the Company or the Subsidiaries, which is not in
the ordinary course of business and which could result in a material
reduction in the future earnings of the Company and the Subsidiaries,
taken as a whole, (iii) no loss or damage (whether or not insured) to
the property of the Company or the Subsidiaries shall have been
sustained which materially and adversely affects the condition
(financial or otherwise), business, results of operations or prospects
of the Company and the Subsidiaries, taken as a whole, (iv) no legal or
governmental action, suit or proceeding affecting the
18
Company or the Subsidiaries which is material to the Company and the
Subsidiaries, taken as a whole, or which affects or may affect the
transactions contemplated by this Agreement shall have been instituted
or threatened, (v) no enforcement proceeding, whether formal or
informal, shall have been commenced against the Company or the Bank by
the FDIC or any other governmental agency nor shall any such proceeding
have been instituted, threatened or recommended, and (vi) there shall
not have been any material change in the condition (financial or
otherwise), business, management, results of operations or prospects of
the Company and the Subsidiaries, taken as a whole, which makes it
impractical or inadvisable in your judgment to proceed with the public
offering or purchase the Common Shares as contemplated hereby.
(c) There shall have been furnished to you, individually or as
Representatives of the Underwriters, as the case may be, on each
Closing Date, in form and substance reasonably satisfactory to you,
except as otherwise expressly provided below:
(i) An opinion of Stuzin & Camner, counsel for the
Company, addressed to you, or you as Representatives of the
Underwriters, as the case may be, and dated the First Closing
Date, or the Second Closing Date, as the case may be, in the
form of Exhibit A to this Agreement.
(ii) Such opinion or opinions of Silver, Xxxxxxxx &
Taff, L.L.P., counsel for the Underwriters dated the First
Closing Date or the Second Closing Date, as the case may be,
with respect to the incorporation of the Company, the
sufficiency of all corporate proceedings and other legal
matters relating to this Agreement, the validity of the Common
Shares, the Registration Statement and the Prospectus and
other related matters as you may reasonably require, and such
counsel shall have received such documents and shall have
exhibited to them such papers and records as they may
reasonably request for the purpose of enabling them to pass
upon such matters. In connection with such opinions, such
counsel may rely on the opinion of Stuzin & Camner and
representations or certificates of officers of the Company and
the Bank and governmental officials.
(iii) A certificate of the Company executed by the
Chairman of the Board or President and the Chief Financial or
Accounting Officer, dated the First Closing Date or the Second
Closing Date, as the case may be, to the effect that:
19
(1) The representations and warranties of
the Company set forth in Section 2 of this Agreement
are true and correct in all material respects as of
the date of this Agreement and as of the First
Closing Date or the Second Closing Date, as the case
may be, and the Company has complied in all material
respects with all the agreements and satisfied all
the conditions on its part to be performed or
satisfied on or prior to such Closing Date;
(2) The Commission has not issued any order
preventing or suspending the use of the Prospectus or
any Preliminary Prospectus filed as a part of the
Registration Statement or any amendment thereto; no
stop order suspending the effectiveness of the
Registration Statement has been issued; and to the
best of the knowledge of the respective signers, no
proceedings for that purpose have been instituted or
are pending or contemplated under the Act;
(3) Neither the Registration Statement nor
the Prospectus nor any amendment or supplement
thereto includes any untrue statement of a material
fact or omits 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;
(4) Since the initial date on which the
Registration Statement was filed with the Commission,
no agreement, written or oral, transaction or event
has occurred which should have been set forth in an
amendment to the Registration Statement or in a
supplement to or amendment of any prospectus which
has not been disclosed in such a supplement or
amendment;
(5) Since the respective dates as of which
information is given in the Registration Statement
and the Prospectus and except as disclosed in or
contemplated by the Prospectus, the Company and the
Subsidiaries, taken as a whole, have not sustained a
material loss or damage by strike, fire, flood,
windstorm, accident or other calamity (whether or not
insured).
20
(iv) On the date before this Agreement is executed
and also on the First Closing Date and the Second Closing Date
a letter addressed to you, from Price Waterhouse LLP,
independent certified public accountants, the first one to be
dated the day before the date of this Agreement, the second
one to be dated the First Closing Date and the third one (in
the event of a Second Closing) to be dated the Second Closing
Date, in form and substance reasonably satisfactory to you and
Price Waterhouse LLP to the effect that:
(1) They are independent certified public
accountants within the meaning of the Act
and the applicable published rules and
regulations thereunder;
(2) In their opinion, the consolidated financial
statements of the Company and its
subsidiaries audited by them incorporated by
reference into the Registration Statement
comply as to form in all material respects
with the applicable accounting requirements
of the Act and the published rules and
regulations thereunder with respect to
registration statements on Form S-3;
(3) On the basis of procedures (but not an audit
in accordance with generally accepted
auditing standards) consisting of:
(a) Reading the minutes of meetings of
the stockholders and the Board of
Directors of the Company and its
consolidated subsidiaries since
December 31, 1997 as set forth in
the minute books through a specified
date not more than five business
days prior to the date of delivery
of any such letter;
(b) Performing the procedures specified
by the American Institute of
Certified Public Accountants for a
review of interim financial
information as described in SAS No.
71, Interim Financial Information,
on the unaudited condensed interim
financial statements of the Company
and its consolidated subsidiaries
incorporated by reference into the
Registration Statement under and
reading the unaudited interim
financial data for the period from
the date of
21
the latest balance sheet
incorporated by reference into the
Registration Statement to the date
of the latest available interim
financial data; and
(c) Making inquiries of certain
officials of the Company who have
responsibility for financial and
accounting matters regarding the
specific items for which
representations are requested below;
nothing has come to their attention as a
result of the foregoing procedures that
caused them to believe that:
(i) the unaudited condensed
interim financial
statements, incorporated by
reference into the
Registration Statement, do
not comply as to form in
all material respects with
the applicable accounting
requirements of the Act and
the published rules and
regulations thereunder;
(ii) any material modifications
should be made to the
unaudited condensed interim
financial statements,
incorporated by reference
into the Registration
Statement for them to be in
conformity with generally
accepted accounting
principles;
(iii) (i) at the date of the
latest available intirim
financial data and at a
specified date not more
than five business days
prior to the date of
delivery of such letter,
there was any change in
the capital stock,
increase in long-term
debt or any decreases in
consolidated total
assets or stockholders'
equity of the Company
and subsidiaries
consolidated as compared
with amounts shown in
the latest balance sheet
incorporated by
reference into the
Registration Statement
or (ii) for the period from
22
the date of the
latest available
financial data to a
specified date not more
than five business days
prior to delivery of
such letter, there were
any decreases, as
compared with the
corresponding period in
the preceding year, in
consolidated net
interest income or in
the total or per share
amounts of net income,
except in all instances
for changes or decreases
which the Registration
Statement discloses have
occurred or may occur,
or they shall state any
specific changes or
decreases.
(4) The letter shall also state that they have:
(a) Read the dollar amounts and percentages and
other financial information of the Company
contained in the Registration Statement or
incorporated by reference therein and agreed
such dollar amounts and percentages
respectively to appropriate accounts in the
Company's accounting records subject to its
system of internal accounting controls and
to schedules prepared by the Company
therefrom;
(b) Read the dollar amounts listed as AActual@
under "Capitalization" and agreed such
amounts or totals thereof to the Company's
accounting records subject to its system of
internal accounting controls; and
(c) Read the dollar and per share amounts listed
under "Selected Consolidated Financial
Information and Other Data" and "Summary
Consolidated Financial Information and Other
Data" and agreed such amounts to audited
financial statements, unaudited condensed
interim financial statements or to schedules
prepared by the Company from its accounting
records subject to its system of internal
accounting controls.
(v) On or before the First Closing Date, letters from
each director and executive officer of the Company, in form
and substance satisfactory to you, confirming that for a
period of ninety (90) days after the first date that any of
the Common Shares are released by
23
you for sale to the public, such person will not directly or
indirectly sell, offer to sell, contract to sell or otherwise
dispose of any shares of Common Stock or any right to acquire
such shares without the prior written consent of the
Representatives, which consent may be withheld at the sole
discretion of the Representatives.
All such opinions, certificates, letters and documents shall be in
compliance with the provisions hereof only if they are reasonably satisfactory
to you and to Silver, Xxxxxxxx & Xxxx, L.L.P., counsel for the Underwriters. The
Company shall furnish you with such manually signed or conformed copies of such
opinions, certificates, letters and documents as you reasonably request. The
letter described in subparagraph (c)(v) above may be an original or facsimile of
the original.
If any condition to you or the Underwriters' obligations hereunder to
be satisfied prior to or at the First Closing Date is not so satisfied, this
Agreement at your election will terminate upon written notification by you as
Representatives to the Company without liability on the part of any Underwriter
or the Company, except to the extent provided in Section 9 hereof.
SECTION 7. EFFECTIVENESS OF REGISTRATION STATEMENT. Each party to this
Agreement will use its best efforts to cause the Registration Statement to
become effective, to prevent the issuance of any stop order suspending the
effectiveness of the Registration Statement and, if such stop order be issued,
to obtain as soon as possible the lifting thereof.
SECTION 8. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls an Underwriter, as
the case may be, within the meaning of the Act against any losses,
claims, damages, liabilities or expenses, joint or several, to which an
Underwriter or such controlling person may become subject, under the
Act, the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), or other federal or state statutory law or regulation, or at
common law or otherwise (including in settlement of any litigation, if
such settlement is effected with the written consent of the Company),
insofar as such losses, claims, damages, liabilities or expenses (or
actions in respect thereof as contemplated below) arise out of or are
based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, any Preliminary
Prospectus, the Prospectus, or any amendment or supplement thereto, or
based upon written information supplied by the Company filed in any
state or jurisdiction to register or qualify any or all of the Common
Shares or to claim an exemption therefrom, or provided to any state or
jurisdiction to exempt the Company as a broker-dealer or its officers,
directors and employees as broker-dealers or agents, under the
securities laws thereof (collectively, the "Blue Sky Application") or
arise out of or are based upon the omission or alleged omission to
state in any of them a material fact required to be stated therein or
necessary to make the statements in any of them not misleading, or
arise from any theory of liability whatsoever relating to or arising
from or based upon the Registration Statement, any Preliminary
Prospectus, the
24
Prospectus, or any amendment or supplement thereto, or arise out of or
are based in whole or in part on any inaccuracy in the representations
and warranties of the Company contained herein or any failure of the
Company to perform its obligations hereunder or under law; and will
reimburse each Underwriter and each such controlling person for any
legal and other expenses as such expenses are reasonably incurred by
such Underwriter or such controlling person in connection with
investigating, defending, settling, compromising or paying any such
loss, claim, damage, liability, expense or action; provided, however,
that the Company will not be liable in any such case to the extent that
any such loss, claim, damage, liability or expense arises out of or is
based upon an untrue statement or alleged untrue statement or omission
or alleged omission made in the Registration Statement, any Preliminary
Prospectus, the Prospectus or any amendment or supplement thereto in
reliance upon and in conformity with the information furnished to the
Company pursuant to Section 3 hereof; provided, further, that the
foregoing indemnity with respect to any Preliminary Prospectus shall
not inure to the benefit of any Underwriter from whom the person
asserting any such loss, claim, damage or liability purchased the
Common Shares that are the subject thereof if such person did not
receive a copy of the Prospectus (or the Prospectus as supplemented) at
or prior to the confirmation of the sale to such person in any case
where such delivery is required by the Act and the untrue statement or
omission of a material fact contained in such Preliminary Prospectus
was corrected in the Prospectus (or the Prospectus as supplemented). In
addition to its other obligations under this Section 9(a), the Company
agrees that, as an interim measure during the pendency of any claim,
action, investigation, inquiry or other proceeding arising out of or
based upon any statement or omission, or any alleged statement or
omission, or any inaccuracy in the representations and warranties of
the Company herein or failure to perform its obligations hereunder, all
as described in this Section 8(a), it will reimburse each Underwriter
(and, to the extent applicable, each controlling person) on a quarterly
basis for all reasonable legal or other expenses incurred in connection
with investigating or defending any such claim, action, investigation,
inquiry or other proceeding, notwithstanding the absence of a judicial
determination as to the propriety and enforceability of the Company's
obligation to reimburse each Underwriter (and, to the extent applicable
each controlling person) for such expenses and the possibility that
such payments might later be held to have been improper by a court of
competent jurisdiction. To the extent that any such interim
reimbursement payment is so held to have been improper, such
Underwriter (and, to the extent applicable each controlling person)
shall promptly return it to the Company together with interest,
compounded daily, determined on the basis of the prime rate (or other
commercial lending rate for borrowers of the highest credit standing)
announced from time to time by The Wall Street Journal (the "Prime
Rate"). Any such interim reimbursement payments which are not made to
an Underwriter within 30 days of a request for reimbursement, shall
bear interest at the Prime Rate from the date of such request. This
indemnity agreement will be in addition to any liability which the
Company may otherwise have.
25
(b) You or each Underwriter, as the case may be, will
severally indemnify and hold harmless the Company, each of its
directors, each of its officers who signed the Registration Statement,
and each person, if any, who controls the Company within the meaning of
the Act, against any losses, claims, damages, liabilities or expenses
to which the Company or any such director, officer, or controlling
person may become subject, under the Act, the Exchange Act, or other
federal or state statutory law or regulation, or at common law or
otherwise (including in settlement of any litigation, if such
settlement is effected with the written consent of such Underwriter),
insofar as such losses, claims, damages, liabilities or expenses (or
actions in respect thereof as contemplated below) arise out of or are
based upon any untrue or alleged untrue statement of any material fact
contained in the Registration Statement, any Preliminary Prospectus,
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, in each such case to the extent, but
only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in the Registration
Statement, any Preliminary Prospectus, the Prospectus, or any amendment
or supplement thereto, in reliance upon and in conformity with the
information furnished to the Company pursuant to Section 3 hereof; and
will reimburse the Company or any such director, officer, or
controlling person for any legal and other expense reasonably incurred
by the Company, or any such director, officer, or controlling person in
connection with investigating, defending, settling, compromising or
paying any such loss, claim, damage, liability, expense or action. In
addition to the other obligations under this Section 8(b), you or each
Underwriter, as the case may be, severally agrees that, as an interim
measure during the pendency of any claim, action, investigation,
inquiry or other proceeding arising out of or based upon any statement
or omission, or any alleged statement or omission, described in this
Section 8(b) which relates to information furnished to the Company
pursuant to Section 3 hereof, it will reimburse the Company (and, to
the extent applicable, each officer, director, controlling person) on a
quarterly basis for all reasonable legal or other expenses incurred in
connection with investigating or defending any such claim, action,
investigation, inquiry or other proceeding, notwithstanding the absence
of a judicial determination as to the propriety and enforceability of
your or the Underwriters' obligation to reimburse the Company (and, to
the extent applicable, each officer, director, controlling person) for
such expenses and the possibility that such payments might later be
held to have been improper by a court of competent jurisdiction. To the
extent that any such interim reimbursement payment is so held to have
been improper, the Company (and, to the extent applicable, each
officer, director or controlling person) shall promptly return it to
the Underwriters together with interest, compounded daily, determined
on the basis of the Prime Rate. Any such interim reimbursement payments
which are not made to the Company within 30 days of a request for
reimbursement, shall bear interest at the Prime Rate from the date of
such request. This indemnity agreement will be in addition to any
liability which you or such Underwriter, as the case may be, may
otherwise have.
26
(c) 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 this Section, notify the indemnifying party in
writing of the commencement thereof, but the omission so to notify the
indemnifying party will not relieve it from any liability which it may
have to any indemnified party for indemnity, contribution or otherwise
except to the extent the indemnifying party is prejudiced as a
proximate result of such failure. In case any such action is brought
against any indemnified party and such indemnified party seeks or
intends to seek indemnity from an indemnifying party, the indemnifying
party will be entitled to participate in, and, to the extent that it
may wish, jointly with all other indemnifying parties similarly
notified, to assume the defense thereof with counsel reasonably
satisfactory to such indemnified party; provided, however, if the
defendants in any such action include both the indemnified party and
the indemnifying party, and the indemnified party shall have reasonably
concluded that there may be a conflict between the positions of the
indemnifying party and the indemnified party in conducting the defense
of any such action or that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional
to those available to the indemnifying party, the indemnified party or
parties shall have the right to select separate counsel to assume such
legal defenses and to otherwise participate in the defense of such
action on behalf of such indemnified party or parties. Upon receipt of
notice from the indemnifying party to such indemnified party of its
election to assume the defense of such action and approval by the
indemnified party of counsel, 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 unless (i) the indemnified party shall have
employed such counsel in connection with the assumption of legal
defenses in accordance with the proviso to the next preceding sentence
or (ii) the indemnifying party shall not have employed counsel
reasonably satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement
of the action, in each of which cases the fees and expenses of counsel
shall be at the expense of the indemnifying party (it being understood,
however, that the indemnifying party shall not be liable for the
expenses of more than one separate counsel representing the indemnified
parties who are parties to such action; provided, however, if an
indemnified party in any such action shall have concluded that there
may be legal defenses or rights available to it which are different
from, in actual or potential conflict with, or additional to those
available to other indemnified parties, such party shall have the right
to select an additional law firm to act as its separate counsel).
(d) If the indemnification provided for in this Section 8 is
required by its terms but is for any reason held to be unavailable to
or otherwise insufficient to hold harmless an indemnified party under
subsections (a), (b) or (c) of this Section 8 in respect of any losses,
claims, damages, liabilities or expenses referred to herein, then each
applicable indemnifying party shall contribute to the amount paid or
payable
27
by such indemnified party as a result of any losses, claims, damages,
liabilities or expenses referred to herein (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company
and you or the Underwriters, as the case may be, from the offering of
the Common Shares 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 you or
the Underwriters, as the case may be, in connection with the statements
or omissions or inaccuracies in the representations and warranties
herein which resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The
relative benefits received by the Company, on the one hand, and the
Underwriters, on the other hand, shall be deemed to be in the same
respective proportions as the total proceeds (net of underwriting
commissions, but before deducting expenses) from the offering of the
Common Stock received by the Company and the total underwriting
commissions received by the Underwriters bear to the aggregate public
offering price of the Common Stock. The relative fault of the Company
and the Underwriters 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 or
the inaccurate or the alleged inaccurate representation and/or warranty
relates to information supplied by the Company or the Underwriters and
the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission.
The amount paid or payable by a party as a result of the losses,
claims, damages, liabilities and expenses referred to above shall be
deemed to include, subject to the limitations set forth in subsection
(c) of this Section 8, any legal or other fees or expenses reasonably
incurred by such party in connection with investigating or defending
any action or claim. The provisions set forth in subsection (c) of this
Section 8 with respect to notice of commencement of any action shall
apply if a claim for contribution is to be made under this subsection
(d); provided, however, that no additional notice shall be required
with respect to any action for which notice has been given under
subsection (c) for purposes of indemnification. The Company and you or
the Underwriters, as the case may be, agree that it would not be just
and equitable if contribution pursuant to this Section 8 were
determined solely by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations
referred to in this paragraph. Notwithstanding the provisions of this
Section 8, no Underwriter shall be required to contribute any amount in
excess of the amount of the total underwriting discounts and
commissions received by such Underwriter in connection with the Common
Shares underwritten by it and distributed to the public. 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.
(e) It is agreed that any controversy arising out of the
operation of the interim reimbursement arrangements set forth in
Sections 8(a) and 8(b) hereof, including the amounts of any requested
reimbursement payments and the method of determining
28
such amounts, shall be settled by arbitration conducted under the
provisions of the Constitution and Rules of the Board of Governors of
the New York Stock Exchange, Inc. or pursuant to the Code of
Arbitration Procedure of the NASD. Any such arbitration must be
commenced by service of a written demand for arbitration or written
notice of intention to arbitrate, therein electing the arbitration
tribunal. In the event the party demanding arbitration does not make
such designation of an arbitration tribunal in such demand or notice,
then the party responding to said demand or notice is authorized to do
so. Such an arbitration would be limited to the operation of the
interim reimbursement provisions contained in Sections 8(a) and 8(b)
hereof and would not resolve the ultimate propriety or enforceability
of the obligation to reimburse expenses which is created by the
provisions of such Sections 8(a) and 8(b) hereof.
SECTION 9. DEFAULT OF UNDERWRITERS. It shall be a condition to this
Agreement and the obligation of the Company to sell and deliver the Common
Shares hereunder, and a condition of your obligations or the obligation of each
Underwriter, as the case may be, to purchase the Common Shares in the manner as
described herein, that, except as hereinafter in this paragraph provided, each
of you or the Underwriters, as the case may be, shall purchase and pay for all
the Common Shares agreed to be purchased by you or such Underwriter hereunder
upon tender to you individually or as the Representatives of the Underwriters,
of all such shares in accordance with the terms hereof. If any Underwriter or
Underwriters default in your or their obligations to purchase Common Shares
hereunder on either the First or Second Closing Date and the aggregate number of
Common Shares which such defaulting Underwriter or Underwriters agreed but
failed to purchase on such Closing Date does not exceed 10% of the total number
of Common Shares which the Underwriters are obligated to purchase on such
Closing Date, the non-defaulting Underwriters shall be obligated severally, in
proportion to their respective commitments hereunder, to purchase the Common
Shares which such defaulting Underwriters agreed but failed to purchase on such
Closing Date. If any Underwriter or Underwriters so default and the aggregate
number of Common Shares with respect to which such default occurs is more than
the above percentage and arrangements satisfactory to the Representatives and
the Company for the purchase of such Common Shares by other persons are not made
within 48 hours after such default, this Agreement will terminate without
liability on the part of any non-defaulting Underwriter or the Company except to
the extent provided in Section 9 hereof.
If applicable, in the event that Common Shares to which a default
relates are to be purchased by the nondefaulting entities or by another party or
parties, you or the Company shall have the right to postpone the First or Second
Closing Date, as the case may be, for not more than five business days in order
that the necessary changes in the Registration Statement, Prospectus and any
other documents, as well as any other arrangements, may be effected. As used in
this Agreement, the term "Underwriter" includes any person substituted for an
Underwriter under this Section. Nothing herein will relieve you or a defaulting
Underwriter from liability for its default.
SECTION 10. EFFECTIVE DATE. This Agreement shall become effective
immediately as to Sections 8, 11 and 12 and, as to all other provisions, (i) if
at the time of execution of this Agreement the Registration Statement has not
become effective, at 5:00 P.M., New York time, on the first full
29
business day following the effectiveness of the Registration Statement, or (ii)
if at the time of execution of this Agreement the Registration Statement has
been declared effective, at 9:00 A.M., New York time, on the first full business
day following the date of execution of this Agreement; but this Agreement shall
nevertheless become effective at such earlier time after the Registration
Statement becomes effective as you may determine on and by notice to the Company
or by release of any of the Common Shares for sale to the public. For the
purposes of this Section 10, the Common Shares shall be deemed to have been so
released upon the release for publication of any newspaper advertisement
relating to the Common Shares or upon the release by you of telegrams (i)
advising the Underwriters that the Common Shares are released for public
offering or (ii) offering the Common Shares for sale to securities dealers,
whichever may occur first.
SECTION 11. TERMINATION. The obligations of the several Underwriters
hereunder shall be subject to termination in the absolute discretion of the
Representatives, at any time prior to the Closing Time or any Date of Delivery,
(i) if any of the conditions specified in Section 6 shall not have been
fulfilled when and as required by this Agreement to be fulfilled, or (ii) if
there has been since the respective dates as of which information is given in
the Registration Statement, any material adverse change, or any development
involving a prospective material adverse change, in or affecting the business,
prospects, management, properties, assets, results of operations or condition
(financial or otherwise) of the Company, whether or not arising in the ordinary
course of business, or (iii) if there has occurred any outbreak or escalation of
hostilities or other national or international calamity or crisis or change in
economic, political or other conditions the effect of which on the financial
markets of the United States is such as to make it, in the judgment of the
Representatives, impracticable to market the Common Shares or enforce contracts
for the sale of the Common Shares, or (iv) if trading in any securities of the
Company has been suspended by the Commission or by Nasdaq or if trading
generally on the New York Stock Exchange or in the Nasdaq over-the-counter
market has been suspended (including automatic halt in trading pursuant to
market-decline triggers other than those in which solely program trading is
temporarily halted), or limitations on prices for trading (other than
limitations on hours or numbers of days of trading) have been fixed, or maximum
ranges for prices for securities have been required, by such exchange or the
NASD or Nasdaq or by order of the Commission or any other governmental
authority, or (v) if there has been any downgrading in the rating of any of the
Company's debt securities or preferred stock by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule 436(g) under
the Securities Act), or (vi) any federal or state statute, regulation, rule or
order of any court or other governmental authority has been enacted, published,
decreed or otherwise promulgated which in the reasonable opinion of the
Representatives materially adversely affects or will materially adversely affect
the business or operations of the Company, or (viii) any action has been taken
by any federal, state or local government or agency in respect of its monetary
or fiscal affairs which in the reasonable opinion of the Representatives has a
material adverse effect on the securities markets in the United States.
If the Representatives elect to terminate this Agreement as provided in
this Section 11, the Company and the Underwriters shall be notified promptly by
telephone, promptly confirmed by facsimile.
30
If the sale to the Underwriters of the Common Shares, as contemplated
by this Agreement, is not carried out by the Underwriters for any reason
permitted under this Agreement or if such sale is not carried out because the
Company shall be unable to comply in all material respects with any of the terms
of this Agreement, the Company shall not be under any obligation or liability
under this Agreement (except to the extent provided in Sections 5 and 9 hereof)
and the Underwriters shall be under no obligation or liability to the Company
under this Agreement (except to the extent provided in Section 9 hereof) or to
one another hereunder.
SECTION 12. REPRESENTATIONS AND INDEMNITIES TO SURVIVE DELIVERY. The
respective indemnities, agreements, representations, warranties and other
statements of the parties hereto and of their respective officers set forth in
or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation made by or on behalf of the Underwriters, the
Company or any of its or their partners, officers or directors or any
controlling person, as the case may be, and will survive delivery of and payment
for the Common Shares sold hereunder and any termination of this Agreement.
SECTION 13. NOTICES. All communications hereunder shall be in writing
and, if sent to the Representatives shall be mailed, delivered or telegraphed
and confirmed to you at Friedman, Billings, Xxxxxx & Co., Inc., 0000 Xxxxxxxxxx
Xxxxxx, Xxxxx, Xxxxxxxxx, Xxxxxxxx 00000 Attention: Xxxxxxx Xxxxxx, with a copy
to Silver, Xxxxxxxx & Xxxx, L.L.P., 0000 Xxx Xxxx Xxxxxx, X.X., Xxxxx 000 Xxxx,
Xxxxxxxxxx, X.X. 00000, Attention: Xxxx X. Xxxxxxxxxx, P.C.; and if sent to the
Company shall be mailed, delivered or telegraphed and confirmed to the Company
at 000 Xxxxxxxx Xxxxxx, Xxxxx Xxxxxx, Xxxxxxx 00000, Attention: Xxxxxx X.
Xxxxxx, with a copy to Stuzin and Camner, Professional Association, 000 Xxxxxxxx
Xxx, Xxxxx 000, Xxxxx Xxxxxx, Xxxxxxx 00000; Attention: Xxxxxx X. Xxxxxx, Esq.
The Company or you may change the address for receipt of communications
hereunder by giving notice to the others.
SECTION 14. SUCCESSORS. This Agreement will inure to the benefit of and
be binding upon the parties hereto, and to the benefit of the officers and
directors and controlling persons referred to in Section 9, and in each case
their respective successors, personal representatives and assigns, and no other
person will have any right or obligation hereunder. Notwithstanding the
foregoing, this Agreement shall not be assignable by the parties. The term
"successors" shall not include any purchaser of the Common Shares as such from
the Underwriters merely by reason of such purchase.
SECTION 15. PARTIAL UNENFORCEABILITY. The invalidity or
unenforceability of any Section, paragraph or provision of this Agreement shall
not affect the validity or enforceability of any other Section, paragraph or
provision hereof. If any Section, paragraph or provision of this Agreement is
for any reason determined to be invalid or unenforceable, there shall be deemed
to be made such minor changes (and only such minor changes) as are necessary to
make it valid and enforceable.
SECTION 16. APPLICABLE LAW. This Agreement shall be governed by and
construed in accordance with the internal laws (and not the laws pertaining to
conflicts of laws) of the State of Virginia.
31
SECTION 17. GENERAL. This Agreement constitutes the entire agreement of
the parties to this Agreement and supersedes all prior written or oral and all
contemporaneous oral agreements, understandings and negotiations with respect to
the subject matter hereof. This Agreement may be executed in several
counterparts, each one of which shall be an original, and all of which shall
constitute one and the same document.
In this Agreement, the masculine, feminine and neuter genders and the
singular and the plural include one another. The section headings in this
Agreement are for the convenience of the parties only and will not affect the
construction or interpretation of this Agreement. This Agreement may be amended
or modified, and the observance of any term of this Agreement may be waived,
only by a writing signed by the Company and you.
32
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us the enclosed copies hereof, whereupon it
will become a binding agreement between the Company and the Underwriters, all in
accordance with its terms.
Very truly yours,
BANKUNITED FINANCIAL CORPORATION
By:
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chairman of the Board
The foregoing Underwriting Agreement is hereby confirmed and accepted by us in
Arlington, Virginia as of the date first above written.
FRIEDMAN, BILLINGS, XXXXXX & CO., INC.
--------------------------------------
BY: FRIEDMAN, BILLINGS, XXXXXX & CO., INC.
By:
---------------------------------
Name:
Title: Managing Director
BY: PAINEWEBBER INCORPORATED
By:
---------------------------------
Name:
Title:
33
EXHIBIT A
FORM OF OPINION OF STUZIN AND CAMNER,
PROFESSIONAL ASSOCIATION
__________ , 1998
Friedman, Billings, Xxxxxx & Co., Inc.
PaineWebber Incorporated
c/o Friedman, Billings, Xxxxxx & Co., Inc.
Potomac Tower
0000 Xxxxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Re: BANKUNITED FINANCIAL CORPORATION
Sirs:
We have acted as counsel for BankUnited Financial Corporation, a
Florida Corporation (the "Company"), in connection with its offering of (i)
850,000 shares of Class A Common Stock, $.01 par value per share (the "Firm
Shares"), and (ii) an aggregate of an additional 127,500 shares of Common Stock
(collectively with the Firm Shares, the "Shares"), issuable upon exercise of an
over-allotment option, pursuant to the Underwriting Agreement, dated
___________, 1998 (the "Underwriting Agreement"), by and among the Company and
you, as the Representatives of the several Underwriters named in Schedule A to
the Underwriting Agreement. We are rendering this opinion pursuant to Section
6(c)(i) of the Underwriting Agreement. Unless otherwise defined herein, each
capitalized term used herein shall have the same meaning ascribed to such term
in the Underwriting Agreement.
As counsel to the Company, we have reviewed the Registration Statement
on Form S-3 (Registration No. 333-48249) filed by the Company on March 19, 1998
with the Commission pursuant to the Act, as well as Amendment No. 1 thereto
filed by the Company with the Commission on March 19, 1998 for the purpose of
registering the Shares under the Act. The Registration Statement, together with
all exhibits thereto, as amended and existing at __________, 1998, the effective
date thereof, is hereinafter referred to as the "Registration Statement."
1
In our capacity as such counsel, we have examined, among other things,
original, certified copies or copies otherwise identified to our satisfaction as
being true copies, of the following:
(1) The Registration Statement;
(2) The Prospectus dated ___________, 1998 included in the
Registration Statement (the "Prospectus");
(3) The Preliminary Prospectus dated ___________, 1998;
(4) Advice from the Commission that (a) the Registration Statement
was declared effective under the Act by the Commission on
____________, 1998 and (b) as of ____________, 1998, no stop
order relating to the Registration Statement had been issued;
(5) The Articles of Incorporation of the Company as in effect on
the date hereof;
(6) The Bylaws of the Company as in effect on the date hereof;
(7) Resolutions adopted by the Board of Directors of the Company
in connection with the registration of the Shares under the
Act, the issuance of the Shares and other matters;
(8) A Certificate of the Secretary of the Company dated
___________, 1998, relating to the Bylaws of the Company,
certain resolutions, incumbency of officers and certain other
matters;
(9) The Underwriting Agreement;
(10) Certificate of the Chairman of the Board or President and
Chief Financial or Accounting Officer of the Company pursuant
to Section 6(c)(iii) of the Underwriting Agreement;
(11) Certificates and advice relating to the good standing of the
Company;
(12) A Certificate of the Federal Deposit Insurance Corporation
dated ___________________ certifying that the Company is an
insured depository institution under the Federal Deposit
Insurance Act; and
(13) A specimen of the certificate representing the Common Shares
filed through incorporation by reference as Exhibit [____] to
the Registration Statement.
In addition, we have obtained from public officials and from officers
and representatives of the Company such other certificates and assurances as we
consider necessary for the purpose of rendering this opinion. On the basis of
the foregoing and our examination of such other matters of
2
fact and questions of law as we have deemed relevant under the circumstances,
and in reliance thereon, we are of the opinion that:
(A) Each of the Company and T&D Properties of South Florida,
Inc., Bay Holdings, Inc. and BU Ventures, Inc., has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation and the Bank is
duly organized under the laws of the United States and each is duly
qualified to do business as a foreign corporation and is in good
standing in all other jurisdictions where the ownership or leasing of
properties or the conduct of its business requires such qualification,
except where the failure to be so qualified would not have a Material
Adverse Effect on the Company and Subsidiaries, taken as a whole, and
the Company and the Subsidiaries have all necessary corporate power and
authority to own their properties and conduct their business as
described in the Registration Statement and Prospectus; the Bank is a
wholly owned savings and loan subsidiary of the Company;
(B) To the best of our knowledge, the authorized, issued and
outstanding capital stock of the Company is as set forth under the
caption "Capitalization" in the Prospectus at the dates indicated
therein; the outstanding shares of the Company's capital stock conform
in all material respects to the description thereof contained in the
Prospectus; the shares of capital stock outstanding prior to the
issuance of the Common Shares have been duly and validly issued and are
fully paid and nonassessable and were not issued in violation of any
preemptive rights of any other stockholders of the Company; the Common
Shares have been duly authorized and, when issued and delivered in
accordance with the terms of the Underwriting Agreement, will be duly
and validly issued and outstanding, fully paid and non-assessable and
conform in all material respects to the description thereof in the
Registration Statement and Prospectus; the Common shares will not be
issued in violation of or subject to any statutory preemptive rights or
any preemptive rights set forth in the certificate of incorporation or
bylaws of the Company or, to the best of such counsel=s knowledge,
other rights to subscribe for or purchase any securities; without
limiting the foregoing, there are no statutory preemptive or any
preemptive rights set forth in the certificate of incorporation or
bylaws of the Company or other rights to subscribe for or purchase any
of the Common Shares.
(C) All of the issued and outstanding shares of capital stock
of the Subsidiaries have been duly and validly authorized and issued
and are fully paid and nonassessable and are owned of record, and to
the best of our knowledge beneficially, by the Company with respect to
the Bank and by the Bank with respect to T&D Properties of South
Florida, Inc., Bay Holdings, Inc. and BU Ventures, Inc., free and clear
of all perfected and, to the best of our knowledge, other liens,
encumbrances, equities, claims, security interests, voting trusts or
other defects of title whatsoever and, to our knowledge, except as
disclosed in the Prospectus neither the Company nor the Subsidiaries
own any equity interests in any other equity;
(D) Except as disclosed in or specifically contemplated by the
Prospectus to the best of our knowledge, there are no outstanding
options, warrants or other rights calling for the
3
issuance of, and no commitments, plans or arrangements to issue, any
shares of capital stock of the Company or any securities convertible
into or exchangeable for capital stock of the Company and to the best
of our knowledge, no options, warrants or other rights to purchase,
agreements or other obligations to issue or other rights to convert any
obligations into shares of capital stock or ownership interests in the
Subsidiaries are outstanding;
(E)(1) The Registration Statement has become effective under
the Act, and, to the best of our knowledge, no stop order suspending
the effectiveness of the Registration Statement or preventing the use
of the Prospectus has been issued and no proceedings for that purpose
have been instituted or are pending or contemplated by the Commission;
any required filing of the Prospectus and any supplement thereto
pursuant to Rule 424(b) of the Rules and Regulations has been made in
the manner and within the time period required by such Rule 424(b);
(2) The Registration Statement, the Prospectus and
each amendment or supplement thereto (except for the financial
statements, schedules and other financial or statistical
information contained or included therein as to which we need
express no opinion) comply as to form in all material respects
with the requirements of the Act and the Rules and
Regulations;
(3) To the best of our knowledge, there are no
franchises, leases, contracts, agreements or documents of a
character required to be disclosed in the Registration
Statement on Form S-3 or Prospectus or to be filed as exhibits
to the Registration Statement or to the Company's Annual
Report on Form 10-K which are not disclosed or filed, as
required;
(4) To the best of our knowledge, there are no legal
or governmental actions, suits or proceedings pending or
threatened against the Company which are required to be
described in the Prospectus which are not described as
required;
(5) To the best of our knowledge, there are no
material cease and desist orders, memoranda of understanding
or other regulatory agreement, order or understanding to which
the Company or the Subsidiaries is a part or by which the
Company or the Subsidiaries is bound or to which any of the
properties or assets of the Company or any subsidiary is
subject, which are required to be described in the
Registration Statement and the Prospectus that are not
described as required;
(6) To our knowledge, the Company and the
Subsidiaries have obtained all material licenses, permits and
other governmental authorizations currently required for the
conduct of their business except where the failure to obtain
the same would not have a Material Adverse Effect on the
Company; and to such counsel's knowledge, all material
licenses, permits and other governmental authorizations,
leases and subleases are in full force and effect and the
Company is in all material respects complying therewith.
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(7) We do not know of any statutes or regulations
required to be described in the Prospectus which are not so
described. Except as disclosed in the Prospectus, to our
knowledge, there are no legal or governmental proceedings
pending to which the Company or any Subsidiary is a party or
of which any property of the Company or any Subsidiary is the
subject which, if determined adversely to the Company or any
such Subsidiary, would individually or in the aggregate have a
Material Adverse Effect on the Company; and, except as
disclosed in the Prospectus, to our knowledge, no such
proceedings are threatened or contemplated by governmental
authorities or threatened by others. All descriptions in the
Prospectus of statutes, regulations or legal or governmental
proceedings are accurate and fairly present the information
required to be shown.
(F) The Company has all necessary corporate power and
authority to enter into the Underwriting Agreement and to sell and
deliver the Common Shares to be sold by it to you or the Underwriters,
as the case may be; the Underwriting Agreement has been duly and
validly authorized by all necessary corporate action of the Company,
has been duly and validly executed and delivered by and on behalf of
the Company, and is a valid and binding agreement of the Company
enforceable in accordance with its terms, except as enforcement thereof
may be limited by bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance, receivership, conservatorship or other similar
laws, regulations or procedures of general applicability relating to or
effecting enforcement of the rights of creditors of the Company or
savings and loan holding companies, the accounts of whose subsidiaries
are insured by the FDIC, or by general equity principles and the
discretion of the court before which any proceeding is brought
(regardless of whether enforceability is considered in a proceeding in
equity or at law) and, with respect to the Underwriting Agreement,
except as to those provisions relating to indemnity or contribution for
liabilities arising under the Act as to which no opinion need be
expressed; and no approval, authorization, order, consent,
registration, filing, qualification, license or permit of or with any
court, regulatory, administrative or other governmental body is
required for the execution and delivery of the Underwriting Agreement
by the Company or the consummation of the transactions contemplated by
the Underwriting Agreement, except such as have been obtained and are
in full force and effect under the Act and such as may be required
under applicable blue sky laws in connection with the purchase and
distribution of the Common Shares by the Underwriters, the clearance of
such offering with the NASD, and the listing of the Common Shares by
the Nasdaq Stock Market.
(G) The execution and performance of the Underwriting
Agreement and the consummation of the transactions therein contemplated
will not conflict with, result in the breach of, or constitute, either
by themselves or upon notice or the passage of time or both, a default
under, any agreement, mortgage, deed of trust, lease, franchise,
license, indenture, permit or other instrument known to us to which the
Company or any of the Subsidiaries is a party or by which the Company
or any of the Subsidiaries or any of its or their property may be bound
or affected or, so fare as is known to such counsel, violated any
statute, judgment, decree, order, rule or regulation of any court or
governmental body having jurisdiction over the Company or the
Subsidiaries or any of its or their property; which
5
conflict, breach, default or violation would have a Material Adverse
Effect on the Company and the Subsidiaries, taken as a whole, or
violate any of the provisions of the Certificate or Articles of
Incorporation or by-laws of the Company or the Subsidiaries or the
Bank's charter or by-laws;
(H) To the best of our knowledge, there is no regulatory cease
and desist order or other order, memorandum of understanding or
agreement between the Company or the Subsidiaries and any regulatory
authority which would govern, limit or prohibit the Company from
entering into and performing its obligations under the Underwriting
Agreement;
(I) Except as described herein neither the Company nor any
Subsidiary is in violation nor will the Company's performance of its
obligations under this Agreement result in a violation of its
Certificate or Articles of Incorporation or by-laws or the Bank's
charter or by-laws, or to the best of our knowledge, be in breach of or
default (or, with notice or lapse of time or both, would be in default)
with respect to any provision of any agreement, mortgage, deed of
trust, lease, franchise, license, indenture, permit or other instrument
to the Registration Statement to which the Company or any of the
Subsidiaries is a party or by which it or any of its properties may be
bound or affected, except where such breach or default would not have a
Material Adverse Effect on the Company and the Subsidiaries, taken as a
whole; and, to the best of our knowledge, the Company and the
Subsidiaries are in compliance with all laws, rules, regulations,
judgments, decrees, orders and statutes of any court or jurisdiction to
which they are subject, except where noncompliance would not have a
Material Adverse Effect on the Company and the Subsidiaries, taken as a
whole; neither the Company nor any of its affiliates (including the
Subsidiaries) is a bank holding company within the meaning of the Bank
Holding Company Act of 1956, as amended, or applicable regulations
promulgated thereunder; and the Bank is an insured depository
institution within the meaning of the Federal Deposit Insurance Act, as
amended;
(J) The Company is duly registered as a savings and loan
holding company under the Home Owners' Loan Act;
(K) To the best of our knowledge, except as set forth in the
Prospectus under the caption "Description of Capital Stock," no holders
of securities of the Company have rights which have not lapsed or been
waived to the registration of shares of Class A Common Stock or other
securities of the Company, because of the filing of the Registration
Statement by the Company or the offering contemplated hereby;
(L) The Company's Common Stock, including the Common Shares,
have been approved for quotation on the Nasdaq National Market upon
notice of issuance.
(M) The form of share certificate evidencing the Common
Shares, as filed through incorporation by reference as Exhibit 4.3 to
the Registration Statement, is in due and proper form under the laws of
the State of Florida.
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(N) The Company is not an "investment company" as such term is
defined in the Investment Company Act.
(O) No transfer taxes are required to be paid by the
Underwriters in connection with the sale and delivery of the Common
Shares by the Company to the Underwriters pursuant to the Underwriting
Agreement.
(P) The Company has all necessary corporate power and
authority to offer and sell the Other Securities and such offering has
been completed in compliance with all applicable requirements of the
Act and any Blue Sky laws applicable to such offering.
We have participated in conferences with officers and other
representatives of the Company and the Company's independent public accountants
and with your representatives and your counsel, at which conferences the
contents of the Registration Statement, the Prospectus and related matters were
discussed. We have advised the Company, concerning the requirements of the Act
and the Rules and Regulations but have not independently verified the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or Prospectus. Because the purpose of our professional engagement was
not to establish or confirm factual matters and because the scope of our
examination of the affairs of the Company did not permit us to verify the
accuracy, completeness or fairness of the statements set forth in the
Registration Statement or Prospectus, we are not passing upon, and do not assume
any responsibility for, the accuracy, completeness or fairness of such
statements. However, no facts have come to our attention that would lead us to
believe that the Registration Statement, at the time it was declared effective
by the Commission, or the Prospectus as of the date it was filed with the
Commission, contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading or that, as of the date hereof, the Registration Statement or
Prospectus contains an untrue statement of a material fact, or that the
Registration Statement or the Prospectus omits to state a material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they are made, not misleading, it being understood
that we make no comment with respect to the financial statements, the notes
thereto and related schedules or any other financial or statistical data
included in the Registration Statement or Prospectus.
Whenever our opinion herein with respect to the existence or absence of
facts is stated to be based upon our knowledge or awareness, it is intended to
signify that during the course of our representation of the Company, no
information has come to our attention that would give us actual knowledge of the
existence or absence of such facts. However, except to the extent expressly set
forth herein, we have not undertaken any independent investigation to determine
the existence or absence of such facts, and no inference as to our knowledge of
the existence or absence of such facts should be drawn from our representation
of the Company or from our participation in the referenced transaction.
We render no opinion herein as to matters involving the laws of any
jurisdiction other than the State of Florida and the United States of America.
This opinion is limited to the effect of the
7
present state of the laws of the State of Florida and of the United States of
America, to present judicial interpretations thereof and to facts as they
presently exist. In rendering this opinion, we assume no obligation to revise or
supplement it should the current laws of the State of Florida and the United
States be changed by legislative action, judicial decision or otherwise.
We have assumed that the signatures on all documents examined by us are
genuine, which fact we have not independently verified. We have also assumed the
due authorization, execution and delivery of the Underwriting Agreement by the
Underwriters.
This letter is furnished by us as counsel for the Company to you in
connection with the Underwriting Agreement and the transactions contemplated
thereby and may not be relied upon by any other party other than your counsel,
and may not be relied upon by you or them in any other context or for any other
purpose. This opinion may not be quoted in whole or in part or delivered to any
other person without our prior written consent.
Very truly yours,
STUZIN AND CAMNER,
PROFESSIONAL ASSOCIATION
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