[Execution Copy]
3,110,320 SHARES
BANK UNITED CORP.
CLASS A COMMON STOCK
U.S. UNDERWRITING AGREEMENT
February 5, 1997
XXXXXX BROTHERS INC.,
As Representative of the several
Underwriters named in Schedule 0
Xxxxx Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Certain stockholders of Bank United Corp., a Delaware corporation
(the "Company"), named in Schedule 2 hereto (the "Participating Selling
Stockholders") propose to sell an aggregate of 3,110,320 shares (the "Firm
Stock") of the Company's Class A common stock, par value $0.01 per share
("Common Stock"). In addition, the Participating Selling Stockholders propose to
grant to the several Underwriters named in Schedule 1 hereto (the "U.S.
Underwriters") an option to purchase up to an additional 311,033 shares of
Common Stock on the terms and for the purposes set forth in Section 3 hereof
(the "Option Stock"). The Firm Stock and the Option Stock, if purchased, are
hereinafter collectively called the "Stock." This is to confirm the agreement
with you (the "Representative") and the other U.S. Underwriters on whose behalf
you are acting, concerning the purchase of the Stock from the Participating
Selling Stockholders by the U.S. Underwriters.
It is understood by all parties that the Participating Selling
Stockholders are concurrently entering into an agreement dated the date hereof
(the "International Underwriting Agreement") providing for the sale by the
Participating Selling Stockholders of an aggregate of 855,360 shares of Common
Stock (including the over-allotment option thereunder) (the "International
Stock") through arrangements with certain underwriters outside the United States
(the "International Managers"), for whom Xxxxxx Brothers International (Europe)
is acting as lead manager. The U.S. Underwriters and the International Managers
simultaneously are entering into an agreement between the U.S. and international
underwriting syndicates (the "Agreement Between U.S. Underwriters and
International Managers") which provides for, among other things, the transfer of
shares of Common Stock between the two syndicates. Except as used in Sections 3,
4, 5, 11 and 12 hereof, and except as the context may otherwise require,
references herein to the Stock shall include all the shares of Common Stock
which may be sold pursuant to either this Agreement or the International
Underwriting Agreement.
(1) REPRESENTATIONS AND WARRANTIES BY THE COMPANY AND THE BANK. Each
of the Company and its subsidiary Bank United, a federally chartered savings
bank (the "Bank"),
represents and warrants to each U.S. Underwriter and each Participating Selling
Stockholder, as of each Delivery Date referred to in Section 5 hereof, and
agrees with each U.S. Underwriter, as follows:
(a) Compliance with Registration Requirements. A registration
statement on Form S-1, including a basic prospectus for registration under
the U.S. Securities Act of 1933, as amended (the "Securities Act"), of the
offering and sale of shares of Common Stock, including the Stock, from
time to time in accordance with Rule 415 of the U.S. Securities and
Exchange Commission (the "Commission") under the Securities Act by certain
of the stockholders of the Company listed in such basic prospectus,
including the Participating Selling Stockholders, and an amendment to such
registration statement (i) has been prepared by the Company in conformity
with the requirements of the Securities Act and the rules and regulations
(the "1933 Act Regulations") of the Commission thereunder, (ii) has been
filed with the Commission under the Securities Act and (iii) has become
effective under the Securities Act. Copies of such registration statement
and the amendment thereto have been delivered by the Company to you as
Representative. As used in this Agreement, "Effective Time" means the date
and the time as of which such registration statement, or the most recent
post-effective amendment thereto, if any, became or was declared effective
by the Commission. "Registration Statement" means such registration
statement, including the exhibits and any schedules, as amended at the
Effective Time, and any Rule 430A Information (as defined below).
Two forms of prospectus are to be used in connection with the
offering and sale of the Stock: one relating to the Stock (the "Form of
U.S. Prospectus") and one relating to the International Stock (the "Form
of International Prospectus"). Each of the Form of U.S. Prospectus and the
Form of International Prospectus consists of (a) a "Basic Prospectus",
which is the prospectus included in the Registration Statement, and (b) a
"Prospectus Supplement", relating specifically to the Stock and the
International Stock, in the form first filed with, or transmitted for
filing to, the Commission pursuant to Rule 424 of the Securities Act. For
purposes of offers and sales of the Stock in Canada, the Form of U.S.
Prospectus also consists of an additional front cover and back cover page
which complies in all respects with all applicable laws in each of the
provinces and territories of Canada, the respective regulations under such
laws and the applicable published policy statements of the securities
regulatory authorities in such jurisdiction. The Form of International
Prospectus is identical to the Form of U.S. Prospectus used for offers and
sales in the United States, except for the front cover and back cover
pages. The term "Prospectus", as used herein, shall refer to the Basic
Prospectus as so supplemented by the relevant Prospectus Supplement. The
information included in such prospectuses that was omitted from the
Registration Statement at the Effective Time but that is deemed to be part
of the Registration Statement at the Effective Time pursuant to paragraph
(b) of Rule 430A is referred to as "Rule 430A Information". Each Form of
U.S. Prospectus and each Form of International Prospectus, and any
prospectus that omitted Rule 430A Information, that was used after the
Effective Time and prior to the execution and delivery of this Agreement,
is herein called a "Preliminary Prospectus". The Commission has not issued
any order preventing or suspending the use of any Preliminary Prospectus.
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Any registration statement filed pursuant to Rule 462(b) of the 1933
Act Regulations is herein referred to as the "Rule 462(b) Registration
Statement", and after such filing the term "Registration Statement" shall
include the Rule 462(b) Registration Statement. The final prospectuses in
the forms first furnished to the U.S. Underwriters and the International
Managers for use in connection with the offering of the U.S. Stock or the
International Stock, respectively, are herein called the "U.S. Prospectus"
and the "International Prospectus". For purposes of this Agreement, all
references to the Registration Statement, any Preliminary Prospectus, the
U.S. Prospectus, the International Prospectus or any amendment or
supplement to any of the foregoing shall be deemed to include the copy
filed with the Commission pursuant to its Electronic Data Gathering,
Analysis and Retrieval system ("XXXXX"). The term "Prospectus" shall,
unless the context otherwise requires, hereinafter refer to the U.S.
Prospectus and the International Prospectus.
The Registration Statement conforms, and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus will, when they became or become effective or were or are filed
with the Commission, as the case may be, conformed or will conform in all
respects to the requirements of the Securities Act and the 1933 Act
Regulations and do not and will not, as of the applicable effective date
(as to the Registration Statement and any amendment thereto) and as of the
applicable filing date (as to the Prospectus and any amendment or
supplement thereto) contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; PROVIDED that no
representation or warranty is made as to information contained in or
omitted from the Registration Statement or the Prospectus in reliance upon
and in conformity with written information furnished to the Company
through the Representative by or on behalf of any U.S. Underwriter or
International Manager specifically for inclusion therein.
(b) Independent Accountants. The accountants who certified the
financial statements and supporting schedules included in the Registration
Statement are independent public accountants as required by the Securities
Act and the 1933 Act Regulations.
(c) Financial Statements. The consolidated financial statements
included in the Registration Statement and the Prospectus, together with
the related schedules and notes, present fairly in all material respects
the consolidated financial position of the Company and its consolidated
subsidiaries at the dates indicated and the statement of operations,
stockholders' equity and cash flows of the Company and its consolidated
subsidiaries for the periods specified; said financial statements have
been prepared in conformity with generally accepted accounting principles
("GAAP") applied on a consistent basis throughout the periods involved,
except as may be noted therein. The supporting schedules, if any, included
in the Registration Statement present fairly in all material respects in
accordance with GAAP, except as may be noted therein, the information
required to be stated therein. The selected financial data and the summary
financial information included in the Prospectus present fairly in all
material respects the information shown therein and have been compiled on
a basis consistent with that of the audited financial statements
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included in the Registration Statement. The pro forma financial
information and the related notes thereto included in the Registration
Statement and the Prospectus present fairly the information shown therein,
have been prepared in accordance with the Commission's rules and
guidelines with respect to pro forma financial statements and have been
properly compiled on the bases described therein, and the assumptions used
in the preparation thereof are reasonable and the adjustments used therein
are appropriate to give effect to the transactions and circumstances
referred to therein.
(d) No Material Adverse Change in Business. Since the respective
dates as of which information is given in the Registration Statement and
the Prospectus, except as otherwise stated therein, (i) there has been no
material adverse change in the condition, financial or otherwise, or in
the earnings, stockholders' equity, business affairs or business prospects
of the Company and its subsidiaries considered as one enterprise, whether
or not arising in the ordinary course of business (a "Material Adverse
Effect"), (ii) there have been no transactions entered into by the Company
or any of its subsidiaries, other than those in the ordinary course of
business, which are material with respect to the Company and its
subsidiaries considered as one enterprise, and (iii) except for regular
quarterly dividends on the Bank Preferred Stock (as defined in the
Prospectus) in amounts per share that are consistent with past practice,
there has been no dividend or distribution of any kind declared, paid or
made by the Bank or the Company on any class of its capital stock.
(e) Good Standing of the Company. Each of the Company, the Bank and
each subsidiary of the Company or the Bank has been duly organized and is
validly existing as a corporation in good standing under the laws of the
State of Delaware and has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under this
Agreement; and the Company is duly qualified as a foreign corporation to
transact business and is in good standing in each other jurisdiction in
which such qualification is required, whether by reason of the ownership
or leasing of property or the conduct of business, except where the
failure so to qualify or to be in good standing would not result in a
Material Adverse Effect.
(f) The Bank; Other Subsidiaries.S
(i) The Bank is the only "significant subsidiary" of the
Company (as such term is defined in Rule 1-02 of Regulation S-X).
The only subsidiaries of the Company other than the Bank are the
wholly-owned subsidiaries of the Bank listed on Schedule E hereto
which, considered in the aggregate as a single subsidiary, do not
constitute a "significant subsidiary" as defined in Rule 1-02 of
Regulation S-X. The activities of all of the Bank's subsidiaries are
permitted to subsidiaries of a federally chartered savings bank, the
deposits of which are insured by the Savings Association Insurance
Fund ("SAIF"), which is administered by the Federal Deposit
Insurance Corporation (the "FDIC").
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(ii) The Bank has been duly organized and is validly existing
as a federally chartered savings bank in good standing under the
laws of the United States, and has corporate power and authority to
own, lease and operate its properties and to conduct its business as
described in the Prospectus and to enter into and perform its
obligations under this Agreement. Each subsidiary of the Bank has
been duly organized and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation and
has the power and authority to own, lease and operate its properties
and to conduct its business as described in the Prospectus.
(iii) All of the issued and outstanding capital stock of the
Bank and each subsidiary of the Bank has been duly authorized and
validly issued, is fully paid and non-assessable and, except as
otherwise disclosed in the Registration Statement, is owned by the
Company, directly or through subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or
equity; none of the outstanding shares of capital stock of any
subsidiary was issued in violation of the preemptive or similar
rights of any securityholder of such subsidiary.
(g) Capitalization. The authorized, issued and outstanding capital
stock of the Company is as set forth in the Prospectus in the column
entitled "Pro Forma" under the caption "Capitalization" (except for
subsequent issuances, if any, pursuant to reservations, agreements or
employee benefit plans referred to in the Prospectus or pursuant to the
exercise of convertible securities or options referred to in the
Prospectus). The shares of issued and outstanding capital stock, including
the shares of Common Stock to be purchased by the U.S. Underwriters and
the International Managers from the Participating Selling Stockholders,
have been duly authorized and validly issued and are fully paid and
non-assessable; none of the outstanding shares of capital stock, including
the shares of Common Stock to be purchased by the U.S. Underwriters and
the International Managers from the Participating Selling Stockholders,
was issued in violation of the preemptive or other similar rights of any
securityholder of the Company.
(h) Authorization of Agreement. This Agreement and the International
Underwriting Agreement have been duly authorized, executed and delivered
by each of the Company and the Bank.
(i) Authorization and Description of Offer Stock. The sale of the
Common Stock to the U.S. Underwriters and the International Managers by
the Participating Selling Stockholders is not subject to the preemptive or
other similar rights of any securityholder of the Company; and the Common
Stock conforms to all statements relating thereto contained in the
Prospectus and such description conforms to the rights set forth in the
instruments defining the same.
(j) Absence of Defaults and Conflicts. Neither the Company, the
Bank, nor any of their respective subsidiaries is in violation of its
charter or by-laws or in default in the performance or observance of any
obligation, agreement, covenant or condition contained
5
in any contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or other agreement or instrument to which the
Company, the Bank, or any of their respective subsidiaries is a party or
by which it or any of them may be bound, or to which any of the property
or assets of the Company, the Bank, or any of their respective
subsidiaries is subject (collectively, "Agreements and Instruments"),
except for such defaults that would not result in a Material Adverse
Effect; and the execution, delivery and performance of this Agreement and
the International Underwriting Agreement and the consummation of the
transactions contemplated thereby and compliance by each of the Company
and the Bank with its respective obligations hereunder and thereunder have
been duly authorized by all necessary corporate action and do not and will
not result in any violation of the provisions of the charter or by-laws of
the Company, the Bank, or any of their respective subsidiaries or any
applicable law, statute, rule, regulation, judgment, order, writ or decree
of any government, governmental instrumentality or court, domestic or
foreign, having jurisdiction over the Company, the Bank, or any of their
respective subsidiaries or any of their assets, properties or operations.
As used herein, a "Repayment Event" means any event or condition which
gives the holder of any note, debenture or other evidence of indebtedness
(or any person acting on such holder's behalf) the right to require the
repurchase, redemption or repayment of all or a portion of such
indebtedness by the Company.
(k) Absence of Labor Dispute. No labor dispute with the employees of
the Company or any subsidiary exists or, to the knowledge of the Company,
is imminent, and the Company is not aware of any existing or imminent
labor disturbance by the employees of any of its or any subsidiary's
principal suppliers, manufacturers, customers or contractors, which, in
either case, may reasonably be expected to result in a Material Adverse
Effect.
(l) Absence of Proceedings. There is no action, suit, proceeding,
inquiry or investigation before or brought by any court or governmental
agency or body, domestic or foreign, now pending, or, to the knowledge of
the Company or the Bank, as the case may be, threatened, against or
affecting the Company, the Bank, or any of their respective subsidiaries,
which individually or in the aggregate for all such actions, suits,
proceedings, inquiries or investigations is required to be disclosed in
the Registration Statement (other than as disclosed therein), or which
might reasonably be expected to result in a Material Adverse Effect, or
which might reasonably be expected to materially and adversely affect the
consummation of the transactions contemplated in this Agreement and the
International Underwriting Agreement or the performance by the Company or
the Bank of their respective obligations hereunder or thereunder; the
aggregate of all pending legal or governmental proceedings to which the
Company, the Bank, or any of their respective subsidiaries is a party or
of which any of their respective property or assets is the subject which
are not described in the Registration Statement, including ordinary
routine litigation incidental to the business of the Company, the Bank, or
any of their respective subsidiaries, could not reasonably be expected to
result in a Material Adverse Effect. No cease and desist order has been
entered by the Office of Thrift Supervision (the "OTS") or the FDIC
against the Company, the Bank or any of their respective subsidiaries.
6
(m) Accuracy of Exhibits. There are no contracts or documents which
are required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits thereto which have not been so
described and filed as required.
(n) Possession of Intellectual Property. The Company and its
subsidiaries own or possess, or can acquire on reasonable terms, adequate
patents, patent rights, licenses, inventions, copyrights, know-how
(including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures),
trademarks, service marks, trade names or other intellectual property
(collectively, "Intellectual Property") necessary to carry on the business
now operated by them, and neither the Company nor any of its subsidiaries
has received any notice or is otherwise aware of any infringement of or
conflict with asserted rights of others with respect to any Intellectual
Property or of any facts or circumstances which would render any
Intellectual Property invalid or inadequate to protect the interest of the
Company or any of its subsidiaries therein, and which infringement or
conflict (if the subject of any unfavorable decision, ruling or finding)
or invalidity or inadequacy, singly or in the aggregate, would result in a
Material Adverse Effect.
(o) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency,
including, without limitation, the OTS and the FDIC, is necessary or
required for the performance by the Company of its obligations hereunder
in connection with the offering or sale of the Stock hereunder and under
the International Underwriting Agreement, for the consummation of the
transactions contemplated hereby or thereby or for the other transactions
described in the Registration Statement under the caption "The Company --
Background of the Offering," except such as have been already obtained or
will have been obtained or made prior to the First Delivery Date (as
defined below) or as may be required under the Securities Act or the 1933
Act Regulations or state securities laws.
(p) Possession of Licenses and Permits. The Company and its
subsidiaries possess such permits, licenses, approvals, consents and other
authorizations (collectively, "Governmental Licenses") issued by the
appropriate federal, state, local or foreign regulatory agencies or bodies
necessary to conduct the business now operated by them; the Company and
its subsidiaries are in compliance with the terms and conditions of all
such Governmental Licenses, except where the failure so to comply would
not, singly or in the aggregate, have a Material Adverse Effect; all of
the Governmental Licenses are valid and in full force and effect, except
when the invalidity of such Governmental Licenses or the failure of such
Governmental Licenses to be in full force and effect would not have a
Material Adverse Effect; and neither the Company nor any of its
subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses which, singly
or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would result in a Material Adverse Effect.
7
(q) Title to Property. The Company and its subsidiaries have good
and marketable title to all real, tangible and intangible property
reflected in the most recent balance sheet included in the Prospectus as
owned by the Company and its subsidiaries and good title to all other
properties reflected in the most recent balance sheet included in the
Prospectus as owned by them, in each case, free and clear of all
mortgages, pledges, liens, security interests, claims, restrictions or
encumbrances of any kind except such as (i) are described in the
Prospectus or (ii) do not, singly or in the aggregate, materially affect
the value of such property and do not interfere with the use made and
proposed to be made of such property by the Company or any of its
subsidiaries; or, with respect to any such real property, render title
unmarketable as to a material part thereof and all of the leases and
subleases material to the business of the Company and its subsidiaries,
considered as one enterprise, and under which the Company or any of its
subsidiaries holds properties described in the Prospectus, are in full
force and effect, and neither the Company nor any subsidiary has any
notice of any material claim of any sort that has been asserted by anyone
adverse to the rights of the Company or any subsidiary under any of the
leases or subleases mentioned above, or affecting or questioning the
rights of the Company or such subsidiary to the continued possession of
the leased or subleased premises under any such lease or sublease.
(r) Investment Company Act. The Company is not, and upon the
sale of the Stock as contemplated herein and the application of the net
proceeds therefrom as described in the Prospectus will not be, an
"investment company" or an entity "controlled" by an "investment
company" as such terms are defined in the U.S. Investment Company Act
of 1940, as amended (the "1940 Act").
(s) Environmental Laws. Except as described in the Registration
Statement or except as would not, singly or in the aggregate, result in a
Material Adverse Effect, (i) the Company, the Bank and each of their
respective subsidiaries is not in violation of any federal, state, local
or foreign statute, law, rule, regulation, ordinance, code, policy or rule
of common law or any judicial or administrative interpretation thereof,
including any judicial or administrative order, consent, decree or
judgment, relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife, including,
without limitation, laws and regulations relating to the release or
threatened release of chemicals, pollutants, contaminants, wastes, toxic
substances, hazardous substances, petroleum or petroleum products
(collectively, "Hazardous Materials") or to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
Hazardous Materials (collectively, "Environmental Laws"), (ii) the
Company, the Bank and each of their respective subsidiaries have all
permits, authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with their requirements,
(iii) there are no pending or, to the knowledge of the Company, threatened
administrative, regulatory or judicial actions, suits, demands, demand
letters, claims, liens, notices of noncompliance or violation,
investigation or proceedings relating to any Environmental Law against the
Company, the Bank or any of their respective subsidiaries and (iv) to the
knowledge of the Company there are no events or circumstances that might
reasonably be
8
expected to form the basis of an order for clean-up or remediation, or an
action, suit or proceeding by any private party or governmental body or
agency, against or affecting the Company, the Bank or any of their
respective subsidiaries relating to Hazardous Materials or any
Environmental Laws.
(t) Registration Rights. Except as described in the Registration
Statement or as set forth in any document or agreement described in the
Registration Statement as containing such rights, there are no persons
with registration rights or other similar rights to have any securities
registered pursuant to the Registration Statement or otherwise registered
by the Company or the Bank, under the Securities Act or otherwise.
(u) Accounting. Each of the Company and the Bank maintains a system
of internal accounting controls sufficient to provide reasonable
assurances that (i) transactions are executed in accordance with
management's general or specific authorization; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with GAAP 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.
(v) Payments To the knowledge of each of the Company and the Bank,
neither the Company, the Bank nor any employee or agent of the Company or
the Bank has made any payment of funds of the Company or the Bank or
received or retained any funds in violation of any law, rule or
regulation, which payment, receipt or retention of funds is of a character
required to be disclosed in the Prospectus.
(w) Taxes Each of the Company and the Bank has filed all tax returns
required to be filed, which returns are complete and correct in all
material respects, and each of the Company and the Bank is not in default
in the payment of any taxes which were payable pursuant to said returns or
any assessments with respect thereto.
(x) Bank Holding Company. In the event the Company shall become
either directly or indirectly a bank holding company for purposes of the
Bank Holding Company Act of 1956, as amended (the "BHC Act") and the rules
and regulations of the Board of Governors of the Federal Reserve System
thereunder (the "BHC Rules"), the current activities of the Company and
its subsidiaries (as defined in the BHC Rules) would be activities
permissible for a bank holding company under the BHC Act and the BHC
Rules.
2. REPRESENTATIONS AND WARRANTIES BY THE PARTICIPATING SELLING
STOCKHOLDERS. Each Participating Selling Stockholder severally represents and
warrants (on behalf of itself and not as to any other Participating Selling
Stockholder or person) to each U.S. Underwriter and the Company as of the date
hereof and as of each Delivery Date, and agrees with each U.S. Underwriter, as
set forth below, except that each of Equitable Deal Flow Fund L.P., Equitable
Capital Partners L.P. and Equitable Capital Partners (Retirement Fund) L.P.
(collectively, "Equitable") is not a party to the Power of Attorney (as defined
below) and accordingly does not
9
make the following representations and warranties to the extent they relate to
the Power of Attorney:
(a) ACCURACY OF INFORMATION REGARDING PARTICIPATING SELLING
STOCKH(i)ER Accuracy of Information Regarding Selling Stockholder. The
information set forth in the Registration Statement in the chart on page
123 thereof under the caption "Selling Stockholders" which specifically
relates to such Participating Selling Stockholder did not, at the date the
Registration Statement became effective, contain 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 not misleading, and
the information set forth in the Basic Prospectus in the chart on page 123
thereof under the caption "Selling Stockholders" and the Prospectus
Supplement under the caption "Participating Selling Stockholders" which
specifically relates to such Participating Selling Stockholder (as to each
Participating Selling Stockholder, the "Participating Selling Stockholder
Information"), at the date hereof and on each Delivery Date, does not and
will not contain any untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements therein, in
light of the circumstances under which they are made, not misleading.
(b) Authorization of Agreements. Such Participating Selling
Stockholder has the full right, power and authority to enter into this
Agreement and the International Underwriting Agreement, a Power of
Attorney (the "Power of Attorney") and a Custody Agreement (as defined
below) and to sell, transfer and deliver the Stock to be sold by such
Participating Selling Stockholder hereunder. The execution and delivery of
this Agreement and the International Underwriting Agreement, the Power of
Attorney and the Custody Agreement and the sale and delivery of the Stock
to be sold by such Participating Selling Stockholder and the consummation
of the transactions contemplated herein and compliance by such
Participating Selling Stockholder with its obligations hereunder do not
and will not, whether with or without the giving of notice or passage of
time or both, conflict with or constitute a breach of, or default under,
or result in the creation or imposition of any tax, lien, charge or
encumbrance upon the Stock to be sold by such Participating Selling
Stockholder pursuant to any contract, indenture, mortgage, deed of trust,
loan or credit agreement, note, license, lease or other agreement or
instrument to which such Participating Selling Stockholder is a party or
by which such Participating Selling Stockholder may be bound, nor will
such action result in any violation of the provisions of the charter or
by-laws or other organizational instrument of such Participating Selling
Stockholder, if applicable, or (assuming the offering of the Stock is
conducted in accordance with the Securities Act and applicable state
securities laws) any applicable treaty, law, statute, rule, regulation,
judgment, order, writ or decree of any government, governmental
instrumentality or court, domestic or foreign, having jurisdiction over
such Participating Selling Stockholder or any of its properties.
(c) Good and Valid Title. Such Participating Selling Stockholder
has and will at the First Delivery Date and, if any Option Stock is
purchased, on the Second Delivery Date (as defined below), have good and
valid title to the Stock to be sold by such Participating Selling
Stockholder hereunder, free and clear of any security interest,
10
mortgage, pledge, lien, charge, claim, equity or encumbrance of any kind,
other than pursuant to this Agreement, the International Underwriting
Agreement and the Letter Agreement (as defined in the Prospectus); and
upon delivery of such Stock and payment of the purchase price therefor as
contemplated herein and therein, assuming each U.S. Underwriter and
International Manager has no notice of any adverse claim, each of the U.S.
Underwriters and the International Managers will receive good and valid
title to the Stock purchased by it from such Participating Selling
Stockholder, free and clear of any security interest, mortgage, pledge,
lien, charge, claim, equity or encumbrance of any kind.
(d) Due Execution of Power of Attorney and Custody Agreement. Such
Participating Selling Stockholder has duly executed and delivered, in the
form heretofore furnished to the Representative, the Power of Attorney
appointing Xxxxxxxxx X. Xxxxxxx, Xxxxxxxx X. Xxxxx or either of them, as
attorney(s)-in-fact (the "Attorney(s)-in-Fact") and a Custody Agreement,
with The Bank of New York (the "Custodian") as custodian (the "Custody
Agreement"), and the Custodian is authorized to accept payment for, and,
upon receipt of such payment and written instructions from such
Participating Selling Stockholder or the Attorney-in-Fact, as the case may
be, to deliver, the Stock to be sold by such Participating Selling
Stockholder hereunder; and each Attorney-in-Fact is authorized to execute
and deliver this Agreement and the certificate referred to in Section 9(k)
hereof on behalf of such Participating Selling Stockholder, to sell,
assign and transfer to the U.S. Underwriters and the International
Managers the Stock to be sold by such Participating Selling Stockholder
hereunder and under the International Underwriting Agreement, to determine
the purchase price to be paid by the U.S. Underwriters and the
International Managers to such Participating Selling Stockholder, as
provided in Section 3 hereof, to authorize the delivery of the Stock to be
sold by such Participating Selling Stockholder hereunder and under the
International Underwriting Agreement, to accept payment therefor, and
otherwise to act on behalf of such Participating Selling Stockholder in
connection with this Agreement and the International Underwriting
Agreement.
(e) Absence of Manipulation. Such Participating Selling Stockholder
has not taken, and will not take, directly or indirectly, any action which
is designed to or which has constituted or which might reasonably be
expected to cause or result in stabilization or manipulation of the price
of any security of the Company to facilitate the sale or resale of the
Stock.
(f) Absence of Further Requirements. No filing with, or consent,
approval, authorization, order, registration, qualification or decree of
any court or governmental authority or agency, domestic or foreign, is
necessary or required for the performance by each Participating Selling
Stockholder of its obligations hereunder or in the Power of Attorney or
the Custody Agreement, or in connection with the sale and delivery of the
Stock hereunder and under the International Underwriting Agreement or the
consummation of the transactions contemplated hereby and thereby, except
such as may have previously been made or obtained or will have been
obtained or made prior to the
11
First Delivery Date or as may be required under the Securities Act or the
1933 Act Regulations or state securities laws.
(g) Certificates Suitable for Transfer. Certificates for all of
the Stock to be sold by such Participating Selling Stockholder pursuant to
this Agreement and the International Underwriting Agreement, in suitable
form for transfer by delivery or accompanied by duly executed instruments
of transfer or assignment in blank with signatures guaranteed, have been
placed in custody with the Custodian with irrevocable conditional
instructions to deliver such Stock to the U.S. Underwriters and the
International Managers pursuant to this Agreement and the International
Underwriting Agreement.
(h) NO ASSOCIATION WITH NATIONAL ASSOCIATION OF SECURITIES
DEALER(ix)NCNo Association with NASD. Except as disclosed by such
Participating Selling Stockholder in writing to the Representative,
neither such Participating Selling Stockholder nor any of his, her or its
affiliates directly, or indirectly through one or more intermediaries,
controls, or is controlled by, or is under common control with, or has any
other association with (within the meaning of Article I, (q) of the
By-laws of the National Association of Securities Dealers, Inc. (the
"NASD")), any member firm of the NASD.
3. PURCHASE OF THE STOCK BY THE U.S. UNDERWRITERS. On the basis of
the representations and warranties contained in, and subject to the terms and
conditions of, this Agreement, each Participating Selling Stockholder, severally
and not jointly, agrees to sell the number of shares of Firm Stock set opposite
its name in Schedule 2 hereto to the several U.S. Underwriters, and each of the
U.S. Underwriters, severally and not jointly, agrees to purchase from each
Participating Selling Stockholder, at a purchase price of 96.5% of the price to
the public thereof, the number of shares of Firm Stock set opposite that U.S.
Underwriter's name in Schedule 1 hereto. Each U.S. Underwriter shall be
obligated to purchase from each Participating Selling Stockholder that number of
shares of Firm Stock which represents the same proportion of the number of
shares of Firm Stock to be sold by each Participating Selling Stockholder as the
number of shares of Firm Stock set forth opposite the name of such U.S.
Underwriter in Schedule 1 represents of the total number of shares of Firm Stock
to be purchased by all of the U.S. Underwriters pursuant to this Agreement. The
respective purchase obligations of the U.S. Underwriters with respect to the
Firm Stock shall be rounded among the U.S. Underwriters to avoid fractional
shares, as the Representative may determine.
In addition, the Participating Selling Stockholders grant to the
U.S. Underwriters an option to purchase up to 311,033 shares of Option Stock.
Such option is granted solely for the purpose of covering over-allotments in the
sale of Firm Stock and is exercisable as provided in Section 5 hereof. Shares of
Option Stock shall be purchased severally for the account of the U.S.
Underwriters in proportion to the number of shares of Firm Stock set opposite
the name of such U.S. Underwriters in Schedule 1 hereto. The respective purchase
obligations of each U.S. Underwriter with respect to the Option Stock shall be
adjusted by the Representative so that no U.S. Underwriter shall be obligated to
purchase Option Stock other than in 100 share amounts. The price to the public
of both the Firm Stock and any Option Stock shall be $29.00 per share.
12
The Participating Selling Stockholders shall not be obligated to
deliver any of the Stock to be delivered on the First Delivery Date or the
Second Delivery Date, as the case may be, except upon payment for all the Stock
to be purchased on such Delivery Date as provided herein and in the
International Underwriting Agreement.
4. OFFERING OF STOCK BY THE U.S. UNDERWRITERS. Upon
authorization by the Representative of the release of Firm Stock, the several
U.S. Underwriters propose to offer the Firm Stock for sale upon the terms and
conditions set forth in the Prospectus.
Each U.S. Underwriter agrees that, except to the extent permitted by
the Agreement Between U.S. Underwriters and International Managers, it will not
offer or sell any of the Stock outside of the United States.
5. DELIVERY OF AND PAYMENT FOR THE STOCK. Delivery of and payment
for the Firm Stock shall be made at the office of Cleary, Gottlieb, Xxxxx &
Xxxxxxxx, Xxx Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 10:00 A.M., New York
City time, on the third (fourth, if the pricing occurs after 4:30 P.M. New York
City time on any given day) full business day following the date of this
Agreement or at such other date or place as shall be determined by agreement
among the Representative, the Company and the Participating Selling
Stockholders. This date and time are sometimes referred to as the "First
Delivery Date." On the First Delivery Date, the Participating Selling
Stockholders shall deliver or cause to be delivered certificates representing
the Firm Stock to the Representative for the account of each U.S. Underwriter
against payment of the purchase price by wire transfer of immediately available
funds to bank accounts designated by the Custodian pursuant to each
Participating Selling Stockholder's Custody Agreement. Time shall be of the
essence, and delivery at the time and place specified pursuant to this Agreement
is a further condition of the obligation of each U.S. Underwriter hereunder.
Upon delivery, the Firm Stock shall be registered in such names and in such
denominations as the Representative shall request in writing not less than two
full business days prior to the First Delivery Date. For the purpose of
expediting the checking and packaging of the certificates for the Firm Stock,
the Participating Selling Stockholders shall make the certificates representing
the Firm Stock available for inspection by the Representative in New York, New
York, not later than 2:00 P.M., New York City time, on the business day prior to
the First Delivery Date.
At any time on or before the thirtieth day after the date of this
Agreement, the option granted in Section 3 hereof may be exercised by written
notice being given to the Participating Selling Stockholders by the
Representative. Such notice shall set forth the aggregate number of shares of
Option Stock as to which the option is being exercised, the names in which the
shares of Option Stock are to be registered, the denominations in which the
shares of Option Stock are to be issued and the date and time, as determined by
the Representative, when the shares of Option Stock are to be delivered;
PROVIDED, HOWEVER, that this date and time shall not be earlier than the First
Delivery Date, nor earlier than the second business day after the date on which
the option shall have been exercised, nor later than the fifth business day
after the date on which the option shall have been exercised. The date and time
the shares of Option Stock are delivered are sometimes referred to as the
"Second Delivery Date" and the First Delivery Date and the Second Delivery Date
are sometimes each referred to as a "Delivery Date").
13
Delivery of and payment for the Option Stock shall be made at the
place specified in the first sentence of the first paragraph of this Section 5
(or at such other place as shall be determined by agreement between the
Representative and the Participating Selling Stockholder) at 10:00 A.M., New
York City time, on the Second Delivery Date. On the Second Delivery Date, the
Participating Selling Stockholders shall deliver or cause to be delivered the
certificates representing the Option Stock to the Representative for the account
of each U.S. Underwriter against payment of the purchase price by wire transfer
of immediately available funds to bank accounts designated by the Custodian
pursuant to each Participating Selling Stockholder's Custody Agreement. Time
shall be of the essence, and delivery at the time and place specified pursuant
to this Agreement is a further condition of the obligation of each U.S.
Underwriter hereunder. Upon delivery, the Option Stock shall be registered in
such names and in such denominations as the Representative shall request in the
aforesaid written notice. For the purpose of expediting the checking and
packaging of the certificates for the Option Stock, the Participating Selling
Stockholders shall make the certificates representing the Option Stock available
for inspection by the Representative in New York, New York, not later than 2:00
P.M., New York City time, on the business day prior to the Second Delivery Date.
6. FURTHER AGREEMENTS OF THE COMPANY. The Company agrees:
(a) To prepare a Prospectus including the Rule 430A Information in a
form approved by the Representative and to file such Prospectus pursuant
to Rule 424(b) under the Securities Act not later than the Commission's
close of business on the second business day following the execution and
delivery of this Agreement or, if applicable, such earlier time as may be
required by Rule 430A(a)(3) under the Securities Act; to make no further
amendment or any supplement to the Registration Statement or to the
Prospectus except as permitted herein; to advise the Representative,
promptly after it receives notice thereof, of the time when any amendment
to the Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended or supplemented Prospectus has
been filed and to furnish the Representative with copies thereof; to
advise the Representative, promptly after it receives notice thereof, of
the issuance by the Commission of any stop order or of any order
preventing or suspending the use of any Preliminary Prospectus or the
Prospectus, of the suspension of the qualification of the Stock for
offering or sale in any jurisdiction, of the initiation or threatening of
any proceeding for any such purpose, or of any request by the Commission
for the amending or supplementing of the Registration Statement or the
Prospectus or for additional information; and, in the event of the
issuance of any stop order or of any order preventing or suspending the
use of any Preliminary Prospectus or the Prospectus or suspending any such
qualification, to use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to the Representative and to counsel for the
U.S. Underwriters a signed copy of the Registration Statement as
originally filed with the Commission, and each amendment thereto filed
with the Commission, including all consents and exhibits filed therewith;
14
(c) To deliver promptly to the Representative such number of the
following documents as the Representative shall reasonably request: (i)
conformed copies of the Registration Statement as originally filed with
the Commission and each amendment thereto (in each case excluding exhibits
other than this Agreement and the computation of per share earnings) and
(ii) each Preliminary Prospectus, the Prospectus and any amended or
supplemented Prospectus; and, if the delivery of a prospectus is required
at any time after the Effective Time in connection with the offering or
sale of the Stock or any other securities relating thereto and if at such
time any events shall have occurred as a result of which the Prospectus as
then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under which
they were made when such Prospectus is delivered, not misleading, or, if
for any other reason it shall be necessary to amend or supplement the
Prospectus in order to comply with the Securities Act, to notify the
Representative and, upon its request, to prepare and furnish without
charge to each U.S. Underwriter and to any dealer in securities as many
copies as the Representative may from time to time reasonably request of
an amended or supplemented Prospectus which will correct such statement or
omission or effect such compliance;
(d) To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the
Prospectus that may, in the judgment of the Company or the Representative,
be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the
Registration Statement or supplement to the Prospectus or any Prospectus
pursuant to Rule 424 of the 1933 Act Regulations, to furnish a copy
thereof to the Representative and counsel for the U.S. Underwriters and
obtain the consent of the Representative to the filing;
(f) Timely file such reports pursuant to the U.S. Securities
Exchange Act of 1934, as amended (the "Exchange Act") as are necessary in
order to make generally available to its securityholders as soon as
practicable an earnings statement for the purposes of, and to provide the
benefits contemplated by, the last paragraph of Section 11(a) of the
Securities Act;
(g) For a period of five years following the Effective Time, to
furnish to the Representative copies of all materials furnished by the
Company to its stockholders and all public reports and all reports and
financial statements furnished by the Company to the principal national
securities exchange upon which the Common Stock may be listed pursuant to
requirements of or agreements with such exchange or to the Commission
pursuant to the Exchange Act or any rule or regulation of the Commission
thereunder; and
(h) Promptly from time to time to take such action as the
Representative may reasonably request to qualify the Stock for offering
and sale under the securities laws of such jurisdictions as the
Representative may request and to comply with such laws so as to permit
the continuance of sales and dealings therein in such jurisdictions for as
long as may
15
be necessary to complete the distribution of the Stock; PROVIDED that in
connection therewith the Company shall not be required to qualify as a
foreign corporation or to file a general consent to service of process in
any jurisdiction.
7. FURTHER AGREEMENT OF THE PARTICIPATING SELLING Stockholders. Each
Participating Selling Stockholder agrees to deliver to the Representative prior
to the First Delivery Date a properly completed and executed United States
Treasury Department Form W-9.
8. EXPENSES.
(a) The Company and/or the U.S. Underwriters agree to pay the
following expenses: (i) the costs incident to the authorization, sale and
delivery of the Stock and any taxes payable in that connection; (ii) the
costs incident to the preparation, printing and filing under the
Securities Act of the Registration Statement and any amendments and
exhibits thereto; (iii) the costs of distributing the Registration
Statement as originally filed and each amendment thereto and any
post-effective amendments thereof (including, in each case, exhibits), any
Preliminary Prospectus, the Prospectus and any amendment or supplement to
the Prospectus, all as provided in this Agreement; (iv) the costs of
producing and distributing this Agreement, the Agreement Between U.S.
Underwriters and International Managers, any Supplemental Agreement Among
U.S. Underwriters and any other related documents in connection with the
offering, purchase, sale and delivery of the Stock; (v) the costs of
delivering and distributing the Powers of Attorney and the Custody
Agreements and the fees and expenses of the Custodian (and any other
Attorney-in-Fact); (vi) the filing fees incident to securing any required
review by the NASD of the terms of sale of the Stock; (vii) the fees and
expenses of qualifying the Stock under the securities laws of the several
jurisdictions as provided in Section 6 hereof and of preparing, printing
and distributing a blue sky application or other document prepared or
executed by the Company (or based upon any written information furnished
by the Company) specifically for the purpose of qualifying any or all of
the Stock under the securities laws of any state or other jurisdiction
(any such application, document or information being hereinafter called a
"Blue Sky Application") (including related fees and expenses of counsel to
the U.S. Underwriters); (viii) the preparation and delivery of the
certificates for the Stock to the U.S. Underwriters and the International
Managers; (ix) the fees and disbursements of the Company's counsel,
accountants and other advisors; and (x) all other costs and expenses
incident to the performance of the obligations of the Company and, except
as set forth in paragraph (b) below, the Participating Selling
Stockholders under this Agreement and the International Underwriting
Agreement. The allocation of the foregoing expenses between the Company
and the U.S. Underwriters will be set forth in a separate agreement
between the Company and the U.S.
Underwriters.
(b) The Participating Selling Stockholders agree to pay (i) any
stamp duties, capital duties and stock transfer taxes, if any, payable
upon the sale of the Stock of such Participating Selling Stockholder to
the U.S. Underwriters and the International Managers and their transfer
between the U.S. Underwriters and the International Managers pursuant to
16
the Agreement Between U.S. Underwriters and International Managers and
(ii) the fees and disbursements of their respective counsel, accountants
and other advisors.
9. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The respective
obligations of the U.S. Underwriters hereunder are subject to the accuracy, when
made and on each Delivery Date, of the representations and warranties of the
Company, the Bank and the Participating Selling Stockholders contained herein or
in certificates of any officer of the Company or any subsidiary of the Company
(including the Bank), or by or on behalf of any Participating Selling
Stockholder delivered pursuant to the provisions hereof, to the performance by
the Company, the Bank and the Participating Selling Stockholders of their
respective covenants and other obligations hereunder, and to each of the
following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission
in accordance with Section 6(a) hereof; no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall have
been issued and no proceeding for that purpose shall have been initiated
or threatened by the Commission; and any request of the Commission for
inclusion of additional information in the Registration Statement or the
Prospectus or otherwise shall have been complied with.
(b) All corporate proceedings and other legal matters incident to
the authorization, form and validity of this Agreement, the International
Underwriting Agreement, the Powers of Attorney, the Custody Agreements,
the Stock, the Registration Statement and the Prospectus, and all other
legal matters relating to this Agreement and the transactions contemplated
hereby shall be reasonably satisfactory in all material respects to the
Representative and counsel for the U.S.
Underwriters.
(c) Wachtell, Lipton, Xxxxx & Xxxx shall have furnished to the
Representative their written opinion, as counsel to the Company, addressed
to the U.S. Underwriters and dated such Delivery Date, in form and
substance reasonably satisfactory to the Representative, to the effect set
forth in Exhibit A hereto, and to such further effect as counsel to the
U.S. Underwriters may reasonably request.
(d) Xxxxxxxx X. Xxxxxxx, Esq., general counsel of the Company, shall
have furnished to the Representative its written opinion, as counsel to
the Company, addressed to the U.S. Underwriters and dated such Delivery
Date, in form and substance reasonably satisfactory to the Representative,
to the effect set forth in Exhibit B hereto, and to such further effect as
counsel to the U.S. Underwriters may reasonably request.
(e) Counsel for each Participating Selling Stockholder other than
Equitable shall have furnished to the Representative their written
opinion, as counsel to such Participating Selling Stockholder, addressed
to the U.S. Underwriters and dated such Delivery Date, in form and
substance reasonably satisfactory to the Representative, to the effect set
forth in Exhibit C hereto, and to such further effect as counsel to the
U.S. Underwriters may reasonably request.
17
(f) Counsel for Equitable shall have furnished to the Representative
their written opinion, as counsel to Equitable as a Participating Selling
Stockholder, addressed to the U.S. Underwriters and dated such Delivery
Date, in form and substance reasonably satisfactory to the Representative,
to the effect set forth in Exhibit D hereto, and to such further effect as
counsel to the U.S.
Underwriters may reasonably request.
(g) The Representative shall have received from Cleary, Gottlieb,
Xxxxx & Xxxxxxxx, counsel for the U.S. Underwriters, such opinion or
opinions, dated such Delivery Date, with respect to the sale of the Stock,
the Registration Statement, the Prospectus and other related matters as
the Representative may reasonably require, and the Company shall have
furnished to such counsel such documents as they reasonably request for
the purpose of enabling them to pass upon such matters.
(h) At the time of execution of this Agreement, the Representative
shall have received from Deloitte & Touche LLP a letter, in form and
substance satisfactory to the Representative, addressed to the U.S.
Underwriters and dated the date hereof (i) confirming that they are
independent public accountants within the meaning of the Securities Act
and are in compliance with the applicable requirements relating to the
qualification of accountants under Rule 2-01 of Regulation S-X of the
Commission, (ii) stating, as of the date hereof (or, with respect to
matters involving changes or developments since the respective dates as of
which specified financial information is given in the Prospectus, as of a
date not more than five days prior to the date hereof), the conclusions
and findings of such firm with respect to the financial information and
other matters ordinarily covered by accountants' "comfort letters" to
underwriters in connection with registered public offerings.
(i) With respect to the letter of Deloitte & Touche LLP referred to
in the preceding paragraph and delivered to the Representative
concurrently with the execution of this Agreement (the "initial letter"),
the Company shall have furnished to the Representative a letter (the
"bring-down letter") of such accountants, addressed to the U.S.
Underwriters and dated such Delivery Date (i) confirming that they are
independent public accountants within the meaning of the Securities Act
and are in compliance with the applicable requirements relating to the
qualification of accountants under Rule 2-01 of Regulation S-X of the
Commission, (ii) stating, as of the date of the bring-down letter (or,
with respect to matters involving changes or developments since the
respective dates as of which specified financial information is given in
the Prospectus, as of a date not more than five days prior to the date of
the bring-down letter), the conclusions and findings of such firm with
respect to the financial information and other matters covered by the
initial letter and (iii) confirming in all material respects the
conclusions and findings set forth in the initial letter.
(j) The Company shall have furnished to the Representative a
certificate, dated such Delivery Date, of its Chairman of the Board, its
President or a Vice President and its chief financial officer stating that
the representations, warranties and agreements of the Company in Section 1
hereof are true and correct as of such Delivery Date; the Company
18
has complied with all its agreements contained herein; and the conditions
set forth in Sections 9(a) and 9(l) hereof have been fulfilled.
(k) Each Participating Selling Stockholder (or the Custodian or one
or more Attorneys-in-Fact on behalf of the Participating Selling
Stockholders) shall have furnished to the Representative a certificate,
signed by, or on behalf of, the Participating Selling Stockholder (or the
Custodian or one or more Attorneys-in-Fact) stating that the
representations and warranties of such Participating Selling Stockholder
contained herein are true and correct as of such Delivery Date and that
such Participating Selling Stockholder has complied with all agreements
contained herein to be performed by the Participating Selling Stockholder
at or prior to such Delivery Date.
(l) There shall not have been, since the date hereof or since the
respective dates as of which information is given in the Prospectus, any
Material Adverse Change.
(m) The closing under the International Underwriting Agreement shall
have occurred concurrently with the closing hereunder on the First
Delivery Date.
(n) Subsequent to the execution and delivery of this Agreement there
shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange or the American Stock Exchange or
in the over-the-counter market, or trading in any securities of the
Company on any exchange or in the over-the-counter market, shall have been
suspended or minimum prices shall have been established on any such
exchange or such market by the Commission, by such exchange or by any
other regulatory body or governmental authority having jurisdiction, (ii)
a banking moratorium shall have been declared by Federal or state
authorities, (iii) the United States shall have become engaged in
hostilities, there shall have been an escalation in hostilities involving
the United States or there shall have been a declaration of a national
emergency or war by the United States or (iv) there shall have occurred
such a material adverse change in general economic, political or financial
conditions (or the effect of international conditions on the financial
markets in the United States shall be such) as to make it, in the judgment
of a majority in interest of the several U.S. Underwriters, impracticable
or inadvisable to proceed with the public offering or delivery of the
Stock being delivered on such Delivery Date on the terms and in the manner
contemplated in the Prospectus.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the U.S. Underwriters.
10. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company and the Bank, jointly and severally, shall indemnify
and hold harmless each Participating Selling Stockholder, each U.S. Underwriter,
their respective officers and employees and each person, if any, who controls
any Participating Selling Stockholder or U.S. Underwriter within the meaning of
the Securities Act, from and against any loss, claim, damage or liability, joint
or several, or any action in respect thereof (including, but not limited to, any
loss,
19
claim, damage, liability or action relating to purchases and sales of Stock), to
which such U.S. Underwriter, Participating Selling Stockholder, officer,
employee or controlling person may become subject, under the Securities Act or
otherwise, insofar as such loss, claim, damage, liability or action arises out
of, or is based upon, (i) any untrue statement or alleged untrue statement of a
material fact contained (A) in any Preliminary Prospectus, the Registration
Statement or the Prospectus or in any amendment or supplement thereto or (B) in
any Blue Sky Application, or (ii) the omission or alleged omission to state in
any Preliminary Prospectus, the Registration Statement or the Prospectus, or in
any amendment or supplement thereto, or in any Blue Sky Application any material
fact required to be stated therein or necessary to make the statements therein
not misleading, and shall reimburse each Participating Selling Stockholder and
U.S. Underwriter and each such officer, employee or controlling person promptly
upon demand for any legal or other expenses reasonably incurred by that
Participating Selling Stockholder or U.S. Underwriter, officer, employee or
controlling person in connection with investigating or defending or preparing to
defend against any such loss, claim, damage, liability or action as such
expenses are incurred; PROVIDED, HOWEVER, that the Company and the Bank shall
not be liable under this Section 10(a) in any such case to the extent that any
such loss, claim, damage, liability or action arises out of, or is based upon,
any untrue statement or alleged untrue statement or omission or alleged omission
made in any Preliminary Prospectus, the Registration Statement or the
Prospectus, or in any such amendment or supplement, or in any Blue Sky
Application, in reliance upon and in conformity with the Participating Selling
Stockholder Information or written information concerning such U.S. Underwriter
furnished to the Company through the Representative by or on behalf of any U.S.
Underwriter specifically for inclusion therein. The foregoing indemnity
agreement is in addition to any liability which the Company or the Bank may
otherwise have to any Participating Selling Stockholder or U.S. Underwriter or
to any officer, employee or controlling person of such U.S. Underwriter.
(b) The Participating Selling Stockholders, severally and not
jointly, shall indemnify and hold harmless each U.S. Underwriter, its officers
and employees, and each person, if any, who controls any U.S. Underwriter within
the meaning of the Securities Act, from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof (including, but
not limited to, any loss, claim, damage, liability or action relating to
purchases and sales of Stock), to which such U.S. Underwriter, officer, employee
or controlling person may become subject, under the Securities Act or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or is
based upon, (i) any untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus, the Registration Statement or the
Prospectus or in any amendment or supplement thereto or (ii) the omission or
alleged omission to state in any Preliminary Prospectus, Registration Statement
or the Prospectus, or in any amendment or supplement thereto, any material fact
required to be stated therein or necessary to make the statements therein not
misleading, but in each case only to the extent that the untrue statement or
alleged untrue statement or omission or alleged omission is a misstatement in or
omission from the Participating Selling Stockholder Information, and shall
reimburse each U.S. Underwriter, its officers and employees and each such
controlling person for any legal or other expenses reasonably incurred by that
U.S. Underwriter, its officers and employees or controlling person in connection
with investigating or defending or preparing to defend against any such loss,
claim, damage, liability or action as such expenses are incurred; PROVIDED,
HOWEVER, that each Participating Selling Stockholder's aggregate liability under
this Section 10 shall be limited to an amount equal to the net proceeds (after
deducting the underwriting discount, but before deducting expenses) received by
such Participating Selling
20
Stockholders may otherwise have to any U.S. Underwriter or any officer, employee
or controlling person of that U.S. Underwriter. Stockholder from the sale of
Stock pursuant to this Agreement. The foregoing indemnity agreement is in
addition to any liability which the Participating Selling
(c) Each U.S. Underwriter, severally and not jointly, shall
indemnify and hold harmless each Participating Selling Stockholder, the Company,
their respective officers and employees, each of their respective directors and
each person, if any, who controls such Participating Selling Stockholder or the
Company within the meaning of the Securities Act, from and against any loss,
claim, damage or liability, joint or several, or any action in respect thereof,
to which such Participating Selling Stockholder, the Company or any such
director, officer or controlling person may become subject, under the Securities
Act or otherwise, insofar as such loss, claim, damage, liability or action
arises out of, or is based upon, (i) any untrue statement or alleged untrue
statement of a material fact contained (A) in any Preliminary Prospectus, the
Registration Statement or the Prospectus or in any amendment or supplement
thereto, or (B) in any Blue Sky Application or (ii) the omission or alleged
omission to state in any Preliminary Prospectus, the Registration Statement or
the Prospectus, or in any amendment or supplement thereto, or in any Blue Sky
Application any material fact required to be stated therein or necessary to make
the statements therein not misleading, but in each case only to the extent that
the untrue statement or alleged untrue statement or omission or alleged omission
was made in reliance upon and in conformity with written information concerning
such U.S. Underwriter furnished to the Company through the Representative by or
on behalf of such U.S. Underwriter specifically for inclusion therein, and shall
reimburse such Participating Selling Stockholder, the Company and any such
director, officer or controlling person for any legal or other expenses
reasonably incurred by such Participating Selling Stockholder, the Company or
any such director, officer or controlling person in connection with
investigating or defending or preparing to defend against any such loss, claim,
damage, liability or action as such expenses are incurred. The foregoing
indemnity agreement is in addition to any liability which any U.S. Underwriter
may otherwise have to the Participating Selling Stockholders, the Company or any
such director, officer, employee or controlling person.
(d) Promptly after receipt by an indemnified party under this
Section 10 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 10, notify the indemnifying party in
writing of the claim or the commencement of that action; PROVIDED, however, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 10 except to the extent it has
been materially prejudiced by such failure. If any such claim or action shall be
brought against an indemnified party, and it shall notify the indemnifying party
thereof, the indemnifying party shall be entitled to participate therein and, to
the extent that it wishes, jointly with any other similarly notified
indemnifying party, to assume the defense thereof with counsel reasonably
satisfactory to the indemnified party. After notice from the indemnifying party
to the indemnified party of its election to assume the defense of such claim or
action, the indemnifying party shall not be liable to the indemnified party
under this Section 10 for any legal or other expenses subsequently incurred by
the indemnified party in connection with the
21
defense thereof other than reasonable costs of investigation; PROVIDED, HOWEVER,
that (i) the Representative shall have the right to employ counsel to represent
jointly the Representative and those other U.S. Underwriters and their
respective officers, employees and controlling persons who may be subject to
liability arising out of any claim in respect of which indemnity may be sought
by the U.S. Underwriters against the Company, the Bank or any Participating
Selling Stockholder under this Section 10 if, in the reasonable judgment of the
Representative, it is advisable for the Representative and those U.S.
Underwriters, officers, employees and controlling persons to be jointly
represented by separate counsel, and in that event the fees and expenses of such
separate counsel shall be paid by the Company or the Bank, and (ii)
notwithstanding the indemnifying party's election to appoint counsel to
represent the Participating Selling Stockholders in an action, each
Participating Selling Stockholder shall have the right to employ separate
counsel, and the indemnifying party shall bear the duly documented reasonable
fees, costs and expenses of such separate counsel, if (A) in the reasonable
judgment of such Participating Selling Stockholder, the use of counsel chosen by
the indemnifying party to represent such Participating Selling Stockholder would
present such counsel with a conflict of interest, (B) the actual or potential
defendants in, or targets of, any such action include both such Participating
Selling Stockholder and the indemnifying party and such Participating Selling
Stockholder shall have reasonably concluded 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, (C) the indemnifying
party shall not have employed counsel satisfactory to such Participating Selling
Stockholder to represent such Participating Selling Stockholder within a
reasonable time after notice of the institution of such action or (D) the
indemnifying party shall authorize such Participating Selling Stockholder to
employ separate counsel at the expense of the indemnifying party. No
indemnifying party shall (I) without the prior written consent of the
indemnified parties (which consent shall not be unreasonably withheld), settle
or compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding, or (II) be liable for any settlement of any such action
effected without its written consent (which consent shall not be unreasonably
withheld), but if settled with the consent of the indemnifying party or if there
be a final judgment of the plaintiff in any such action, the indemnifying party
agrees to indemnify and hold harmless any indemnified party from and against any
loss or liability by reason of such settlement or judgment.
(e) If the indemnification provided for in this Section 10 shall for
any reason be unavailable to or insufficient to hold harmless an indemnified
party under Section 10(a), 10(b) or 10(c) hereof in respect of any loss, claim,
damage or liability, or any action in respect thereof, referred to therein, then
each indemnifying party shall, in lieu of indemnifying such indemnified party
under Section 10(a), 10(b) or 10(c), as the case may be, in respect of any loss,
claim, damage or liability, or any action in respect thereof, referred to
therein, contribute to the amount paid or payable by such indemnified party as a
result of such loss, claim, damage or liability, or action in respect thereof
referred to in Section 10(a), 10(b) or 10(c), as the case may be, (i) in such
proportion as shall be appropriate to reflect the relative benefits received by
the Company, the Bank and the Participating Selling Stockholders on the one hand
and the U.S. Underwriters on the other from the
22
offering of the Stock or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company, the Bank and the Participating Selling
Stockholders on the one hand and the U.S. Underwriters on the other with respect
to the statements or omissions which resulted in such loss, claim, damage or
liability, or action in respect thereof, as well as any other relevant equitable
considerations. As between the Company and the Bank on the one hand and the
Participating Selling Stockholders on the other, each indemnifying party shall,
in lieu of indemnifying such indemnified party, contribute to the amount paid or
payable by such indemnified party as a result of such loss, claim, damage or
liability, or action in respect thereof, in such proportion as shall be
appropriate to reflect the relative fault of the Company and the Bank on the one
hand and the Participating Selling Stockholders on the other. The relative
benefits received by the Company, the Bank and the Participating Selling
Stockholders on the one hand and the U.S. Underwriters on the other with respect
to such offering shall be deemed to be in the same proportion as the total net
proceeds from the offering of the Stock purchased under this Agreement (before
deducting expenses) received by the Company, the Bank and the Participating
Selling Stockholders, on the one hand, and the total underwriting discounts and
commissions received by the U.S. Underwriters with respect to the shares of the
Stock purchased under this Agreement, on the other hand, bear to the total gross
proceeds from the offering of the shares of the Stock under this Agreement, in
each case as set forth in the table on the cover page of the Prospectus. The
relative fault shall be determined by reference to whether the untrue or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the Company, the Bank, the
Participating Selling Stockholders or the U.S. Underwriters, the intent of the
parties and their relative knowledge, access to information and opportunity to
correct or prevent such statement or omission. For purposes of the preceding two
sentences, the net proceeds deemed to be received by the Company shall be deemed
to be also for the benefit of the Bank and information supplied by the Company
shall also be deemed to have been supplied by the Bank. The Company, the Bank,
the Participating Selling Stockholders and the U.S. Underwriters agree that it
would not be just and equitable if contributions pursuant to this Section 10(e)
were to be determined by PRO RATA allocation (even if the U.S. Underwriters were
treated as one entity for such purpose) or by any other method of allocation
which does not take into account the equitable considerations referred to in
this Section 10(e). The amount paid or payable by an indemnified party as a
result of the loss, claim, damage or liability, or action in respect thereof,
referred to above in this Section 10(e) shall be deemed to include, for purposes
of this Section 10(e), any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Section 10(e), (A) no U.S.
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Stock underwritten by it and distributed
to the public was offered to the public exceeds the amount of any damages which
such U.S. Underwriter has otherwise paid or become liable to pay by reason of
any untrue or alleged untrue statement or omission or alleged omission, and (B)
each Participating Selling Stockholder's aggregate liability under this Section
10 shall be limited to an amount equal to the net proceeds (after deducting the
underwriting discount, but before deducting expenses) received by such
Participating Selling Stockholder from the sale of Stock pursuant to this
Agreement. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f)
23
of the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The U.S. Underwriters'
obligations to contribute as provided in this Section 10(e) are several in
proportion to their respective underwriting obligations and not joint.
(f) The U.S. Underwriters severally confirm and the Company
acknowledges that the statements with respect to the secondary offering of the
Stock by the U.S. Underwriters set forth on the cover page of, the legend
concerning over-allotments on the inside front cover page of, and the concession
and reallowance figures appearing under the caption "Underwriting" in, the
Prospectus Supplement are correct and constitute the only information concerning
such U.S. Underwriters furnished in writing to the Company by or on behalf of
the U.S. Underwriters specifically for inclusion in the Registration Statement
and the Prospectus.
11. DEFAULTING UNDERWRITERS. If, on either Delivery Date, any U.S.
Underwriter defaults in the performance of its obligations under this Agreement,
the remaining non-defaulting U.S. Underwriters shall be obligated to purchase
the Stock which the defaulting U.S. Underwriter agreed but failed to purchase on
such Delivery Date in the respective proportions which the number of shares of
Firm Stock set opposite the name of each remaining non-defaulting U.S.
Underwriter in Schedule 1 hereto bears to the total number of shares of Firm
Stock set opposite the names of all the remaining non-defaulting U.S.
Underwriters in Schedule 1 hereto; PROVIDED, HOWEVER, that the remaining
non-defaulting U.S. Underwriters shall not be obligated to purchase any of the
Stock on such Delivery Date if the total number of shares of the Stock which the
defaulting U.S. Underwriter or Underwriters agreed but failed to purchase on
such date exceeds 9.09% of the total number of shares of the Stock to be
purchased on such Delivery Date, and any remaining non-defaulting U.S.
Underwriter shall not be obligated to purchase more than 110% of the number of
shares of the Stock which it agreed to purchase on such Delivery Date pursuant
to the terms of Section 3 hereof. If the foregoing maximums are exceeded, the
remaining non-defaulting U.S. Underwriters, or those other underwriters
satisfactory to the Representative who so agree, shall have the right, but shall
not be obligated, to purchase, in such proportion as may be agreed upon among
them, all the Stock to be purchased on such Delivery Date. If the remaining U.S.
Underwriters or other underwriters satisfactory to the Representative do not
elect to purchase the Stock which the defaulting U.S. Underwriter or
Underwriters agreed but failed to purchase on such Delivery Date, this Agreement
(or, with respect to the Second Delivery Date, the obligation of the U.S.
Underwriters to purchase, and of the Participating Selling Stockholders to sell,
the Option Stock) shall terminate without liability on the part of any
non-defaulting U.S. Underwriter or the Company or the Participating Selling
Stockholders, except that the Company will continue to be liable for the payment
of expenses to the extent set forth in Section 8 hereof. As used in this
Agreement, the term "Underwriter" includes, for all purposes of this Agreement
unless the context requires otherwise, any party not listed in Schedule 1 hereto
who, pursuant to this Section 11, purchases Firm Stock which a defaulting U.S.
Underwriter agreed but failed to purchase.
Nothing contained herein shall relieve a defaulting U.S. Underwriter
of any liability it may have to the Company and the Participating Selling
Stockholders for damages caused by its default. If other underwriters are
obligated or agree to purchase the Stock of a defaulting or withdrawing U.S.
Underwriter, the Representative, the Company and the Participating Selling
Stockholders may postpone the Delivery Date for up to seven full business days
in order to effect
24
any changes that in the opinion of counsel for the Company or
counsel for the U.S. Underwriters may be necessary in the Registration
Statement, the Prospectus or in any other document or arrangement.
12. TERMINATION. The obligations of the U.S. Underwriters hereunder
may be terminated by the Representative by notice given to and received by the
Company and the Participating Selling Stockholders prior to delivery of and
payment for the Firm Stock if, prior to that time, any of the events described
in Sections 9(l) or 9(n) hereof shall have occurred or if the U.S. Underwriters
shall decline to purchase the Stock for any reason permitted under this
Agreement.
13. NOTICES, ETC. All statements, requests, notices and
agreements hereunder shall be in writing, and:
(a) if to the U.S. Underwriters, shall be delivered or sent by mail,
telex or facsimile transmission to Xxxxxx Brothers Inc., Three World
Financial Center, New York, New York 10285, Attention: Syndicate
Department (Fax: 000-000-0000), with a copy, in the case of any notice
pursuant to Section 10(d) hereof, to the Director of Litigation, Office of
the General Counsel, Xxxxxx Brothers Inc., 0 Xxxxx Xxxxxxxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, XX 00000;
(b) if to the Company or the Bank, shall be delivered or sent by
mail, telex or facsimile transmission to the address of the Company set
forth in the Registration Statement, Attention: Xxxxxxxx X.
Xxxxxxx, Esq. (Fax: 000-000-0000);
(c) if to any Participating Selling Stockholders, shall be delivered
or sent by mail, telex or facsimile transmission to such Participating
Selling Stockholder at the address set forth on Schedule 2 hereto;
PROVIDED, HOWEVER, that any notice to a U.S. Underwriter pursuant to Section
10(d) hereof shall be delivered or sent by mail, telex or facsimile transmission
to such U.S. Underwriter at its address set forth in its acceptance telex to the
Representative, which address will be supplied to any other party hereto by the
Representative upon request. Any such statements, requests, notices or
agreements shall take effect at the time of receipt thereof. The Company and the
Participating Selling Stockholders shall be entitled to act and rely upon any
request, consent, notice or agreement given or made on behalf of the U.S.
Underwriters by the Representative and the Company and the U.S. Underwriters
shall be entitled to act and rely upon any request, consent, notice or agreement
given or made on behalf of the Participating Selling Stockholders by the
Custodian.
14. PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement shall
inure to the benefit of and be binding upon the U.S. Underwriters, the Company,
the Bank, the Participating Selling Stockholders and their respective personal
representatives and successors. This Agreement and the terms and provisions
hereof are for the sole benefit of only those persons, except that (a) the
representations, warranties, indemnities and agreements of the Company and the
indemnities of the Participating Selling Stockholders contained in this
Agreement shall also be deemed to be for the benefit of the person or persons,
if any, who control any U.S. Underwriter within the meaning of
25
Section 15 of the Securities Act and each International Manager (and controlling
persons thereof) who offers or sells any shares of Common Stock in accordance
with the terms of the Agreement Between U.S. Underwriters and International
Managers and (b) the indemnity agreement of the U.S. Underwriters contained in
Section 10(c) hereof shall be deemed to be for the benefit of directors of the
Company and each Participating Selling Stockholder, officers of the Company who
have signed the Registration Statement and any person controlling the Company
and each Participating Selling Stockholder within the meaning of Section 15 of
the Securities Act. Nothing in this Agreement is intended or shall be construed
to give any person, other than the persons referred to in this Section 14, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision contained herein.
15. SURVIVAL. The respective representations, warranties and
agreements of the Company, the Bank, the Participating Selling Stockholders and
the U.S. Underwriters contained in this Agreement or made by or on behalf on
them, respectively, pursuant to this Agreement, shall survive the delivery of
and payment for the Stock and shall remain in full force and effect, regardless
of any investigation made by or on behalf of any of them or any person
controlling any of them.
16. DEFINITION OF THE TERMS "BUSINESS DAY" AND "SUBSIDIARY". For
purposes of this Agreement, (a) "business day" means any day on which the New
York Stock Exchange, Inc. is open for trading and (b) "subsidiary" has the
meaning set forth in Rule 405 of the 1933 Act Regulations.
17. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF NEW YORK.
18. CONSENT TO JURISDICTION. Each party irrevocably agrees that any
legal suit, action or proceeding arising out of or based upon this Agreement or
the transactions contemplated hereby may be instituted in the federal courts of
the United States of America located in the City of New York or the courts of
the State of New York in each case located in the Borough of Manhattan in the
City of New York (collectively, the "Specified Courts"), and irrevocably submits
to the exclusive jurisdiction (except for proceedings instituted in regard to
the enforcement of a judgment of any such court, as to which such jurisdiction
is non-exclusive) of such courts in any such suit, action or proceeding. The
parties further agree that service of any process, summons, notice or document
by mail to such party's address as set forth in Section 13 hereof shall be
effective service of process for any lawsuit, action or other proceeding brought
in any such court. The parties hereby irrevocably and unconditionally waive any
objection to the laying of venue of any lawsuit, action or other proceeding in
the Specified Courts, and hereby further irrevocably and unconditionally waive
and agree not to plead or claim in any such court that any such lawsuit, action
or other proceeding brought in any such court has been brought in an
inconvenient forum.
19. COUNTERPARTS. This Agreement may be executed in one or
more counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
26
20. HEADINGS. The headings herein are inserted for convenience
of reference only and are not intended to be part of, or to affect the
meaning or interpretation of, this Agreement.
27
If the foregoing correctly sets forth the agreement among the
Company, the Bank, the Participating Selling Stockholders and the U.S.
Underwriters, please indicate your acceptance in the space provided for that
purpose below.
[FOR ELECTRONIC FILINGS MADE UNDER XXXXX, UNDERWRITERS' COUNSEL IS
REQUESTED TO MAINTAIN ONE SET OF MANUALLY SIGNED SIGNATURE PAGES.]
Very truly yours,
BANK UNITED CORP.
By:
Name:
Title:
BANK UNITED
By:
Name:
Title:
The Participating Selling Stockholders
named in Schedule 2 to this Agreement
other than Equitable
By:
Name:
Attorney-in-Fact
EQUITABLE DEAL FLOW FUND, L.P.
BY: EQUITABLE MANAGED ASSETS, L.P.,
as General Partner
By: THE EQUITABLE LIFE ASSURANCE
SOCIETY OF THE UNITED STATES,
as General Partner
By:
Name:
Title: INVESTMENT OFFICER
EQUITABLE CAPITAL PARTNERS, L.P.
BY: ALLIANCE CORPORATE FINANCE
GROUP INCORPORATED,
as Managing General Partner
By:
Name:
Title: SENIOR VICE PRESIDENT
EQUITABLE CAPITAL PARTNERS (RETIREMENT
FUND), L.P.
BY: ALLIANCE CORPORATE FINANCE
GROUP INCORPORATED,
as Managing General Partner
By:
Name:
Title: SENIOR VICE PRESIDENT
Accepted:
XXXXXX BROTHERS INC.,
as Representative
By:
Name:
Title:
2
SCHEDULE 1
U.S. UNDERWRITERS NUMBER OF SHARES
Xxxxxx Brothers Inc. 710,110
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated 710,105
Xxxxx Xxxxxx Inc. 710,105
Bear, Xxxxxxx & Co. Inc. 44,500
Xxxxxxx X. Xxxxxxxxx & Co., Inc. 44,500
Credit Suisse First Boston Corporation 44,500
X.X. Xxxxxxx & Sons, Inc. 44,500
Xxx-Xxxx, Xxxxxx Inc. 44,500
Xxxxxxx, Xxxxx & Co. 44,500
Xxxxx, Xxxxxxxx & Xxxxx, Inc. 44,500
Xxxxxxxxxx Securities 44,500
Xxxxxx Xxxxxxx & Co. Incorporated 44,500
PaineWebber Incorporated 44,500
Principal Financial Securities, Inc. 44,500
Xxxxxxxx Xxxxxx Refsnes, Inc. 44,500
Salomon Brothers Inc 44,500
X.X. Xxxxxxxxxx & Co., Inc. 44,500
Advest, Inc. 21,000
Xxxxxx X. Xxxxx & Co. Incorporated 21,000
X.X. Xxxx & Company 21,000
Xxxxx & Company 21,000
Doft & Co., Inc. 21,000
First of Michigan Corporation 21,000
Friedman, Billings, Xxxxxx & Co., Inc. 21,000
Xxxxxx Xxxx LLC 21,000
Xxxxxx & Xxxxxx Inc. 21,000
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated 21,000
XxXxxxxx & Company Securities, Inc. 21,000
Xxxxx & Co., L.L.C. 21,000
Xxxxxxx Xxxxxx Xxxxx Inc. 21,000
Southeast Research Partners, Inc. 21,000
Southwest Securities, Inc. 21,000
Xxxxxx, Xxxxxxxx & Company, Incorporated 21,000
Xxxxxxx X. Xxxxxxxx & Company
Incorporated 21,000
Total........................ 3,110,320
=========
S1-1
SCHEDULE 2
NAME AND ADDRESS OF
PARTICIPATING SELLING NUMBER OF SHARES OF NUMBER OF SHARES OF
STOCKHOLDERS FIRM STOCK OPTION STOCK
Equitable Deal Flow Fund L.P. 473,879 47,388
Equitable Capital Partners L.P. 566,940 56,694
Equitable Capital Partners
(Retirement Fund) L.P. 279,180 27,918
The Sweater Trust (Xxxxxx
Xxxxxx) 378,842 37,884
Xxxxxx Xxxxxx 87,445 8,745
Institutional Interests (Xxxxxx
Xxxxxx) 194,176 19,418
Xxxxxxx X. Xxxxxx 252,562 25,256
The Airlie Group 252,562 25,256
Xxxxxx X. Mariatty 3,157 316
CHESED Congregations of America 74,182 7,418
United Congregation Mesorah 265,455 26,545
Xxxxxxx Bros., Shay & Co. 14,172 1,417
SunAmerica Inc. 267,768 26,777
Total................... 3,110,320 311,033
S2-1
EXHIBIT A-1
FORM OF OPINION OF
WACHTELL, LIPTON, XXXXX & XXXX
TO BE DELIVERED PURSUANT TO SECTION 9(C)
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Delaware.
(ii) The Company has corporate power and authority to own,
lease and operate its properties and to conduct its business as
described in the Prospectus, and to enter into and perform its
obligations under the U.S. Underwriting Agreement and the
International Underwriting Agreement. The activities of each of the
Company's subsidiaries are permitted to subsidiaries of a savings
and loan holding company.
(iii) The Bank is the only "significant subsidiary" of the
Company (as such term is defined in Rule 1-02 of Regulation S-X).
The only subsidiaries of the Company other than the Bank are the
wholly-owned subsidiaries of the Bank listed on Exhibit _ to the
Registration Statement which, considered in the aggregate as a
single subsidiary, do not constitute a "significant subsidiary" as
defined in Rule 1-02 of Regulation S-X.
(iv) The authorized, issued and outstanding capital stock of
the Company is as set forth in the Prospectus in the column entitled
"Pro Forma" under the caption "Capitalization" (except for
subsequent issuances, if any, pursuant to reservations, agreements
or employee benefit plans referred to in the Prospectus or pursuant
to the exercise of convertible securities or options referred to in
the Prospectus); the shares of issued and outstanding capital stock
of the Company, including the shares of Common Stock to be purchased
by the U.S. Underwriters and the International Managers from the
Participating Selling Stockholders, have been duly authorized and
validly issued and are fully paid and non-assessable; and none of
the outstanding shares of capital stock of the Company, including
the shares of Common Stock to be purchased by the U.S. Underwriters
and the International Managers from the Participating Selling
Stockholders, was issued in violation of the preemptive or other
similar rights of any securityholder of the Company.
(v) The sale of the Common Stock to the U.S. Underwriters and
the International Managers by the Participating Selling Stockholders
is not subject to the preemptive or other similar rights of any
securityholder of the Company. The Common Stock conforms to all
statements relating thereto contained in the Prospectus and such
description conforms to the rights set forth in the instruments
defining the same.
(vi) The form of certificate used to evidence the Common
Stock to be sold in the Offerings contemplated by the U.S.
Underwriting Agreement and the International Underwriting Agreement
complies in all material respects with all applicable statutory
requirements, with any applicable requirements of the Certificate
and By-Laws of the Company, and with the requirements of the NASDAQ
National Stock Market.
(vii) The Registration Statement has been declared effective
under the Securities Act; each Prospectus as supplemented by a
Prospectus Supplement has been filed pursuant to Rule 424(b) in the
manner and within the time period required by Rule 424(b); and, to
the best of our knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued under
the Securities Act and no proceedings for that purpose have been
instituted or are pending or threatened by the Commission.
(viii) The Registration Statement, the Rule 430A Information,
the Prospectus, and each amendment or supplement to the Registration
Statement and Prospectus, as of their respective effective or issue
dates (other than the financial statements and supporting schedules
included therein or omitted therefrom, as to which we express no
opinion) complied as to form in all material respects with the
requirements of the Securities Act and the 1933 Act Regulations.
(ix) The information in the Prospectus under the captions
"Risk Factors -- Limitations on Use of Tax Losses; Restrictions on
Transfers of Stock," "Risk Factors -- Holding Company Structure;
Ability to Pay Dividends," "Description of Capital Stock," "Business
-- The Assistance Agreement -- Warrant Agreement," "Legal
Proceedings," and in the Registration Statement under "Part II.
Information Not Required in Prospectus -- Item 14. Indemnification
of Directors and Officers," to the extent that such information
constitutes matters of law, summaries of legal matters, the
Certificate or By-laws or legal proceedings, or legal conclusions,
has been reviewed by us and is correct in all material respects.
(x) To the best of our knowledge, there are no statutes or
regulations that are required to be described in the Prospectus that
are not described as required.
(xi) All statements in the Registration Statement about
contracts and other documents to which the Company or its
subsidiaries are a party, insofar as such statements purport to
summarize provisions of such contracts and documents, provide a fair
summary of such provisions, and we do not know of contracts or other
documents of a character required to be described in the
Registration Statement or to be filed as exhibits to the
Registration Statement that are not filed or described as required.
A-2
(xii) Neither the Company, the Bank nor any of their
respective subsidiaries is in violation of its charter or by-laws
and, to the best of our knowledge, no default by the Company, the
Bank or any of their respective subsidiaries exists in the due
performance or observance of any material obligation, agreement,
covenant or condition contained in any contract, indenture,
mortgage, loan agreement, note, lease or other agreement or
instrument that is described or referred to in the Registration
Statement or the Prospectus or filed as an exhibit to the
Registration Statement.
(xiii) No filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any court
or governmental authority or agency, domestic or foreign including,
without limitation, the OTS and FDIC (other than under the
Securities Act and the 1933 Act Regulations, which have been
obtained, or as may be required under the securities or blue sky
laws of the various states, as to which we express no opinion) is
necessary or required for the performance by the Company of its
obligations under the U.S. Underwriting Agreement and the
International Underwriting Agreement in connection with the offering
or sale of the Stock by the Participating Selling Stockholders under
the U.S. Underwriting Agreement and the International Underwriting
Agreement, for the consummation by the Company and the Bank of the
transactions contemplated by the U.S. Underwriting Agreement and the
International Underwriting Agreement or the other transactions
described in the Registration Statement under the caption "The
Company -- Background of the Offering."
(xiv) The execution, delivery and performance of the U.S.
Underwriting Agreement and the International Underwriting Agreement
by the Company and the Bank, the consummation of the transactions
contemplated thereby, and compliance by each of the Company and the
Bank with their respective obligations under the U.S. Underwriting
Agreement and the International Underwriting Agreement have been
duly authorized by all necessary corporate action and do not and
will not result in any violation of the provisions of the charter or
by-laws of the Company, the Bank or any of their respective
subsidiaries, or any applicable law, statute, rule, regulation,
judgment, order, writ or decree, known to us, of any government,
governmental instrumentality or court, domestic or foreign, having
jurisdiction over the Company. Each of the U.S. Underwriting
Agreement and the International Underwriting Agreement has been duly
authorized, executed and delivered by the Company and the Bank.
(xv) To the best of our knowledge, there are no persons with
registration rights or other similar rights to have any securities
registered pursuant to the Registration Statement or otherwise
registered by the Company or the Bank under the Securities Act,
except as described in Registration Statement or as set forth in any
agreement described therein as containing such rights.
A-3
(xvi) The Company is not, and upon the sale of the Stock as
contemplated in the U.S. Underwriting Agreement and the
International Underwriting Agreement and the application of the net
proceeds therefrom as described in the Prospectus will not be, an
"investment company" or an entity "controlled" by an "investment
company," as such terms are defined in the 1940 Act.
Nothing has come to our attention that would lead us to believe that
the Registration Statement or any amendment thereto, including the Rule 430A
Information (except for financial statements and schedules and other financial
data included therein or omitted therefrom, as to which we make no statement),
at the time such Registration Statement or any such amendment became effective,
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading or that the Prospectus or any amendment or supplement thereto
(except for financial statements and schedules and other financial data included
therein or omitted therefrom, as to which we make no statement), at the time the
Prospectus was issued, at the time any such amended or supplemented Prospectus
was issued or at either Delivery Date, included or includes an untrue statement
of a material fact or omitted or omits to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
* * * * *
In rendering such opinion, such counsel may rely as to matters of
fact (but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company and public officials. Such
opinion shall not state that it is to be governed or qualified by, or that it is
otherwise subject to, any treatise, written policy or other document relating to
legal opinions, including, without limitation, the Legal Opinion Accord of the
ABA Section of Business Law (1991). All terms used but not defined in this
exhibit should have the meanings ascribed to them in the U.S. Underwriting
Agreement and should be defined accordingly in the form of opinion to be
delivered.
X-0
XXXXXXX X-0
FORM OF OPINION OF
XXXXXXXX X. XXXXXXX,
GENERAL COUNSEL OF THE COMPANY,
TO BE DELIVERED PURSUANT TO SECTION 9(D)
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Delaware.
(ii) The Company has corporate power and authority to own,
lease and operate its properties and to conduct its business as
described in the Prospectus, and to enter into and perform its
obligations under the U.S. Underwriting Agreement and the
International Underwriting Agreement. The activities of each of the
Company's subsidiaries are permitted to subsidiaries of a savings
and loan holding company.
(iii) The Bank is the only "significant subsidiary" of the
Company (as such term is defined in Rule 1-02 of Regulation S-X).
The only subsidiaries of the Company other than the Bank are the
wholly-owned subsidiaries of the Bank listed on Exhibit __ to the
Registration Statement, which, considered in the aggregate as a
single subsidiary, do not constitute a "significant subsidiary" as
defined in Rule 1-02 of Regulation S-X. The activities of all of the
Bank's subsidiaries are permitted to subsidiaries of a federally
chartered savings bank, the deposits of which are insured by the
SAIF, which is administered by the FDIC.
(iv) The Bank is a federally chartered stock savings bank,
duly incorporated and validly existing under the laws of the United
States, and the Bank's charter is in full force and effect. The Bank
is a member of the Federal Home Loan Bank of Dallas and has been
duly issued a certificate stating that its savings accounts are
insured by the FDIC in accordance with applicable law, and no
proceedings for the termination or revocation of such membership or
insurance are pending or, to the best of my knowledge, threatened.
(v) The Bank has corporate power and authority to own, lease
and operate its properties and to conduct its business as described
in the Prospectus and to enter into and perform its obligations
under the U.S. Underwriting Agreement and the International
Underwriting Agreement.
(vi) Each subsidiary of the Bank has been duly organized and
is validly existing as a corporation in good standing under the laws
of the jurisdiction of its incorporation and has the power and
authority to own, lease and operate its properties and to conduct
its business as described in the Prospectus. The activities
described in the Prospectus of each of the Bank's subsidiaries are
permitted activities of subsidiaries of a federally chartered
savings bank, the deposits of which are insured by the SAIF, which
is administered by the FDIC.
(vii) The Company, the Bank and each subsidiary of the
Company or the Bank is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except
where the failure so to qualify or to be in good standing would not
result in a Material Adverse Effect.
(viii) All of the issued and outstanding capital stock of the
Bank and each subsidiary of the Bank has been duly authorized and
validly issued, is fully paid and non-assessable and, except as
otherwise disclosed in the Registration Statement, is owned by the
Company, directly or through subsidiaries, to the best of my
knowledge, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity; none of the outstanding
shares of capital stock of any subsidiary was issued in violation of
the preemptive or similar rights of any securityholder of such
subsidiary.
(ix) The authorized, issued and outstanding capital stock of
the Company is as set forth in the Prospectus in the column entitled
"Pro Forma" under the caption "Capitalization" (except for
subsequent issuances, if any, pursuant to reservations, agreements
or employee benefit plans referred to in the Prospectus or pursuant
to the exercise of convertible securities or options referred to in
the Prospectus); the shares of issued and outstanding capital stock
of the Company, including the shares of Common Stock to be purchased
by the U.S. Underwriters and the International Managers from the
Participating Selling Stockholders, have been duly authorized and
validly issued and are fully paid and non-assessable; and none of
the outstanding shares of capital stock of the Company, including
the shares of Common Stock to be purchased by the U.S. Underwriters
and the International Managers from the Participating Selling
Stockholders, was issued in violation of the preemptive or other
similar rights of any securityholder of the Company.
(x) The sale of the Common Stock to the U.S. Underwriters and
the International Managers by the Participating Selling Stockholders
is not subject to the preemptive or other similar rights of any
securityholder of the Company. The Common Stock conforms to all
statements relating thereto contained in the Prospectus and such
description conforms to the rights set forth in the instruments
defining the same.
(xi) There is not pending or, to my knowledge, threatened any
action, suit, proceeding, inquiry or investigation, to which the
Company or the Bank or any of their respective subsidiaries is a
party, or to which the property of the Company or the Bank or any of
their respective subsidiaries is subject, before or
B-2
brought by any court or governmental agency or body, domestic or
foreign, which might reasonably be expected to result in a Material
Adverse Effect, or which might reasonably be expected to materially
and adversely affect the properties or assets thereof or the
consummation of the transactions contemplated in the U.S.
Underwriting Agreement or the International Underwriting Agreement
or the performance by the Company and the Bank of their respective
obligations thereunder. The aggregate of all pending legal or
governmental proceedings to which the Company, the Bank, or any of
their respective subsidiaries is known by me to be a party or of
which any of their respective property or assets is the subject
which are not described in the Registration Statement, including
ordinary routine litigation incidental to the business, could not
reasonably be expected to result in a Material Adverse Effect. No
cease and desist order has been entered by the OTS or the FDIC
against the Company, the Bank or any of their respective
subsidiaries. No labor dispute with the employees of the Company or
any subsidiary exists or, to the knowledge of the Company, is
imminent, and the Company is not aware of any existing or imminent
labor disturbance by the employees of any of its or any subsidiary's
principal suppliers, manufacturers, customers or contractors, which,
in either case, may reasonably be expected to result in a Material
Adverse Effect.
(xii) The information in the Prospectus under the captions
"Risk Factors -- Limitations on Use of Tax Losses; Restrictions on
Transfers of Stock," "Risk Factors -- Holding Company Structure;
Ability to Pay Dividends," "Description of Capital Stock," "Business
-- The Assistance Agreement," "Legal Proceedings," and in the
Registration Statement under "Part II. Information Not Required in
Prospectus -- Item 14. Indemnification of Directors and Officers,"
to the extent that such information constitutes matters of law,
summaries of legal matters, the Company's Certificate or Bylaws or
legal proceedings, or legal conclusions, has been reviewed by me and
is correct in all material respects.
(xiii) To the best of my knowledge, there are no statutes or
regulations that are required to be described in the Prospectus that
are not described as required.
(xiv) All descriptions in the Registration Statement of
contracts and other documents to which the Company or its
subsidiaries are a party are accurate in all material respects; to
the best of my knowledge, there are no franchises, contracts,
indentures, mortgages, loan agreements, notes, leases or other
instruments required to be described or referred to in the
Registration Statement or to be filed as exhibits thereto other than
those described or referred to therein or filed or incorporated by
reference as exhibits thereto, and the descriptions thereof or
references thereto are correct in all material respects.
(xv) Neither the Company, the Bank nor any of their
respective subsidiaries is in violation of its charter or by-laws
and no default by the
B-3
Company, the Bank or any of their respective subsidiaries exists in
the due performance or observance of any material obligation,
agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other agreement
or instrument that is described or referred to in the Registration
Statement or the Prospectus or filed as an exhibit to the
Registration Statement.
(xvi) The execution, delivery and performance of the U.S.
Underwriting Agreement and the International Underwriting Agreement
by the Company and the Bank, and the consummation of the
transactions contemplated thereby and compliance by each of the
Company and the Bank with its respective obligations under the U.S.
Underwriting Agreement and the International Underwriting Agreement
has been duly authorized by all necessary corporate action and do
not and will not, whether with or without the giving of notice or
lapse of time or both, conflict with or constitute a breach of, or
default or Repayment Event (as defined in Section 1(j) of the U.S.
Underwriting Agreement) under or result in the creation or
imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any subsidiary pursuant to any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note,
lease or any other agreement or instrument, known to me, to which
the Company or any subsidiary is a party or by which it or any of
them may be bound, or to which any of the property or assets of the
Company, the Bank or any of their respective subsidiaries is subject
(except for such conflicts, breaches or defaults or liens, charges
or encumbrances that would not result in a Material Adverse Effect),
nor will such action result in any violation of the provisions of
the charter or by-laws of the Company, the Bank or any of their
respective subsidiaries, or any applicable law, statute, rule,
regulation, judgment, order, writ or decree, known to me, of any
government, governmental instrumentality or court, domestic or
foreign, having jurisdiction over the Company, the Bank, or any of
their respective subsidiaries or any of their respective properties,
assets or operations.
(xvii) There are no persons with registration rights or other
similar rights to have any securities registered pursuant to the
Registration Statement or otherwise registered by the Company or the
Bank under the Securities Act, except as described in Registration
Statement or as set forth in any agreement described therein as
containing such rights.
(xviii) The Company, the Bank and each of its subsidiaries
possess such Governmental Licenses issued by the appropriate
federal, state, local or foreign regulatory agencies or bodies
necessary to conduct the business now operated by them; the Company,
the Bank and each of its subsidiaries are in compliance with the
terms and conditions of all such Governmental Licenses, except where
the failure so to comply would not, singly or in the aggregate, have
a Material Adverse Effect; all of the Governmental Licenses are
valid and in full force and effect, except when the invalidity of
such Governmental Licenses or the
B-5
failure of such Governmental Licenses to be in full force and effect
would not have a Material Adverse Effect; and neither the Company,
the Bank nor any of their respective subsidiaries has received any
notice of proceedings relating to the revocation or modification of
any such Governmental Licenses which, singly or in the aggregate, if
the subject of an unfavorable decision, ruling or finding, would
result in a Material Adverse Effect.
(xix) The Company, the Bank and each of their respective
subsidiaries have good and marketable title to all real, tangible
and intangible property reflected in the most recent balance sheet
included in the Prospectus as owned by the Company, the Bank and its
subsidiaries and good title to all other properties reflected in the
most recent balance sheet included in the Prospectus as owned by
them, in each case, free and clear of all mortgages, pledges, liens,
security interests, claims, restrictions or encumbrances of any kind
except such as (A) are described in the Prospectus or (B) do not,
singly or in the aggregate, materially affect the value of such
property and do not interfere with the use made and proposed to be
made of such property by the Company, the Bank or any of their
respective subsidiaries; or, with respect to any such real property,
render title unmarketable as to a material part thereof and all of
the leases and subleases material to the business of the Company,
the Bank and of their respective subsidiaries, considered as one
enterprise, and under which the Company, the Bank or any of their
respective subsidiaries holds properties described in the
Prospectus, are in full force and effect, and neither the Company,
the Bank nor any of their respective subsidiaries has any notice of
any material claim of any sort that has been asserted by anyone
adverse to the rights of the Company, the Bank or any of their
respective subsidiaries under any of the leases or subleases
mentioned above, or affecting or questioning the rights of the
Company, the Bank or such subsidiary to the continued possession of
the leased or subleased premises under any such lease or sublease.
(xx) Except as described in the Registration Statement or
except as would not, singly or in the aggregate, result in a
Material Adverse Effect, (A) the Company, the Bank and each of their
respective subsidiaries is not in violation of any Environmental
Laws, (B) the Company, the Bank and each of their respective
subsidiaries have all permits, authorizations and approvals required
under any applicable Environmental Laws and are each in compliance
with their requirements, (C) there are no pending or, to the
knowledge of the Company, threatened administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens,
notices of noncompliance or violation, investigation or proceedings
relating to any Environmental Law against the Company, the Bank or
any of their respective subsidiaries and (D) to the knowledge of the
Company there are no events or circumstances that might reasonably
be expected to form the basis of an order for clean-up or
remediation, or an action, suit or proceeding by any private party
or governmental body or agency, against or affecting the Company,
the Bank or any of their respective subsidiaries relating to
Hazardous Materials or any Environmental Laws.
(xxi) In the event the Company shall become either directly
or indirectly a bank holding company for purposes of the BHC Act and
the BHC Rules, the current activities of the Company and its
subsidiaries (as defined in the BHC Rules) would be activities
permissible for a bank holding company under the BHC Act and the BHC
Rules.
(xxii) No filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any court
or governmental authority or agency, domestic or foreign including,
without limitation, the OTS and FDIC is necessary or required by
federal banking laws and regulations for the performance by the
Company of its obligations under the U.S. Underwriting Agreement and
the International Underwriting Agreement in connection with the
offering or sale of the Stock by the Participating Selling
Stockholders under the U.S. Underwriting Agreement and the
International Underwriting Agreement or the consummation by the
Company and the Bank of the transactions contemplated by the U.S.
Underwriting Agreement and the International Underwriting Agreement.
Nothing has come to my attention that would lead me to believe that
the Registration Statement or any amendment thereto, including the information
included in any Prospectus that was omitted from such Registration Statement at
the time it became effective but that is deemed to be part of such Registration
Statement at the time it became effective pursuant to paragraph (b) of Rule 430A
(except for financial statements and schedules and other financial data included
therein or omitted therefrom, as to which I make no statement), at the time such
Registration Statement or any such amendment became effective, contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
or that the Prospectus or any amendment or supplement thereto (except for
financial statements and schedules and other financial data included therein or
omitted therefrom, as to which I make no statement), at the time the Prospectus
was issued, at the time any such amended or supplemented Prospectus was issued
or at either Delivery Date, included or includes an untrue statement of a
material fact or omitted or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
* * * * *
In rendering such opinion, such counsel may rely as to matters of
fact (but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company and public officials. Such
opinion shall not state that it is to be governed or qualified by, or that it is
otherwise subject to, any treatise, written policy or other document relating to
legal opinions, including, without limitation, the Legal Opinion Accord of the
ABA Section of
B-6
Business Law (1991). All terms used but not defined in this exhibit should have
the meanings ascribed to them in the U.S. Underwriting Agreement and should be
defined accordingly in the form of opinion to be delivered.
EXHIBIT CEXHIBIT C-1
FORM OF OPINION OF COUNSEL
TO PARTICIPATING SELLING STOCKHOLDERS
OTHER THAN EQUITABLE
TO BE DELIVERED PURSUANT TO SECTION 9(E)
[LETTERHEAD OF COUNSEL]
February 5, 1997
XXXXXX BROTHERS INC. ,
as Representative of the several U.S. Underwriters
XXXXXX BROTHERS INTERNATIONAL (EUROPE),
as Lead Manager of the several International Managers
c/x Xxxxxx Brothers Inc.
Three World Financial Center
New York, New York 10285
Ladies and Gentlemen:
We have acted as special counsel to [INSERT NAME OF PARTICIPATION
SELLING STOCKHOLDERS(S) REPRESENTED] (the "Represented Stockholder(s)") in
connection with the offering by the Represented Stockholder(s) of up to _____
shares (including shares to be sold upon exercise of over-allotment options) of
Class A common stock, par value $0.01 per share (the "Common Stock"), of Bank
United Corp., a Delaware corporation (the "Company"), offered by the
Participating Selling Stockholders pursuant to a registration statement of the
Company on Form S-1 (No. 333-19237). This opinion letter is furnished pursuant
to Section 9(e) of (i) the underwriting agreement (the "U.S. Underwriting
Agreement"), dated February 5, 1997, among the Company, Bank United, a federally
chartered savings institution (the "Bank"), the persons listed on Schedule 2
thereto (the "Participating Selling Stockholders") and the several underwriters
named in Schedule 1 thereto (the "U.S. Underwriters") and (ii) the underwriting
agreement (the "International Underwriting Agreement" and, together with the
U.S. Underwriting Agreement, the "Underwriting Agreements") dated February 5,
1997, among the Company, the Bank, the Participating Selling Stockholders and
the managers named in Schedule 1 thereto (the "International Managers" and,
together with the U.S. Underwriters, the "Underwriters") in connection with the
closing of the sale by the Represented Stockholder(s) of such shares (the
"Stock"). Capitalized terms used but not defined herein shall have the meanings
ascribed to them in the U.S. Underwriting Agreement.
In arriving at the opinions expressed below, we have reviewed the
following:
(a) the forms of U.S. Underwriting Agreement and International
Underwriting Agreement;
(b) an executed copy of a power of attorney of each Represented
Stockholder dated January 31, 1997 (the "Power of Attorney"); and
(c) an executed copy of a custody agreement between each
Represented Stockholder, the Company and The Bank of New York, as custodian,
dated as of February 3, 1997 (the "Custody Agreement").
In addition, we have made such investigations of law as we have deemed
appropriate as a basis for the opinions expressed below.
In rendering the opinions expressed below, we have assumed the
authenticity of all documents submitted to us as originals and the conformity to
the originals of all documents submitted to us as copies. In addition, we have
assumed and have not verified the accuracy as to factual matters of each
document we have reviewed (including, without limitation, the accuracy of the
representations and warranties of the Company and the Participating Selling
Stockholders in the U.S. Underwriting Agreement and the International
Underwriting Agreement). In addition, with respect to Participating Selling
Stockholders who are natural persons, we have assumed the legal capacity of each
such Participating Selling Stockholder.
Based on the foregoing, and subject to the further assumptions and
qualifications set forth below, it is our opinion that:
(i) Each of the Represented Stockholders has the [corporate]*
power and authority to enter into the U.S. Underwriting Agreement, the
International Underwriting Agreement, the Power of Attorney and the Custody
Agreement and to sell transfer and deliver the Stock to be sold by such
Represented Stockholder under the U.S. Underwriting Agreement and the
International Underwriting Agreement.
(ii) The Power of Attorney and the Custody Agreement have been
duly authorized, executed and delivered by or on behalf of each Represented
Stockholder, and each constitutes the valid and binding obligation of such
Represented Stockholder.
(iii) The execution and delivery of the U.S. Underwriting
Agreement, the International Underwriting Agreement, the Power of Attorney and
the Custody Agreement and the sale of Stock by each Represented Stockholder to
the U.S. Underwriters and the International Managers, and compliance by such
Represented Stockholder with the terms of the U.S. Underwriting Agreement, the
International Underwriting Agreement, the Power of Attorney and the Custody
Agreement [do not and will not result in a violation of the certificate of
C-2
incorporation and by laws or comparable constitutional documents of such
Represented Stockholder, and]* do not and will not conflict with, or result in a
breach of any of the terms and provision of, or constitute a default under any
statute, rule or regulation applicable to such Represented Stockholder [or its
legal or regulatory status in each case], that in our experience are normally
applicable to transactions of the type provided for in the U.S. Underwriting
Agreement and the International Underwriting Agreement.
(iv) Assuming execution and delivery of each of the U.S.
Underwriting Agreement and the International Underwriting Agreement by one of
the Attorneys (as defined in the Power of Attorney), each of the U.S.
Underwriting Agreement and the International Underwriting Agreement have been
duly authorized, executed and delivered by each of the Represented Stockholders.
(v) No consent, approval, authorization or order of or
qualification by the State of Delaware (as it relates to the General Corporation
Law of the State of Delaware), the State of New York or any federal or foreign
governmental body or agency is required for the performance by any Represented
Stockholder of its obligations under the U.S. Underwriting Agreement, the
International Underwriting Agreement, the Power of Attorney and the Custody
Agreement, except such (i) as may be required by U.S. federal or state or
foreign securities laws and (ii) as are applicable to any Represented
Stockholder solely because of its specific status (including regulatory status)
other than its status as a Participating Selling Stockholder, as to both of
which we express no opinion.
(vi) Assuming that the U.S. Underwriters and the International
Managers purchase the shares of Stock to be delivered by or on behalf of the
Represented Stockholders on the date hereof in good faith and without notice of
any security interests, claims, liens, equities, encumbrances and other adverse
claims, as such term is used in Section 8-302 of the Uniform Commercial Code as
in effect in the State of New York, the delivery of certificates representing
such Stock, duly endorsed to the U.S. Underwriters or the International Managers
or in blank, will pass to the U.S. Underwriters and the International Managers
valid title to such shares of Stock, free and clear of all security interests,
claims, liens, equities, encumbrances and other adverse claims.
Insofar as the foregoing opinions relate to the legality, validity,
binding effect or enforceability of any agreement or obligation of a Represented
Stockholder, we have assumed that each other party to such agreement or
obligation has duly authorized and executed such agreement or obligation and has
satisfied those legal requirements that are applicable to it to the extent
necessary to make such agreement or obligation enforceable against it. In
addition, the foregoing opinions are subject to applicable bankruptcy,
insolvency and similar laws affecting creditors' rights generally and to general
principles of equity.
The foregoing opinions are limited to the federal law of the United
States of America and the law of the State of New York.
C-3
We are furnishing this opinion letter to you, as Representative of
the U.S. Underwriters and as Lead Manager for the International Managers, solely
for the benefit of the U.S. Underwriters and the International Managers in
connection with the offering of the Stock. This opinion letter is not to be
used, circulated, quoted or otherwise referred to for any other purpose.
Very truly yours,
[NAME OF COUNSEL]
By
EXHIBIT D
FORM OF OPINION OF COUNSEL
TO EQUITABLE,
AS PARTICIPATING SELLING STOCKHOLDERS,
TO BE DELIVERED PURSUANT TO SECTION 9(F)
[LETTERHEAD OF IN-HOUSE COUNSEL TO EQUITABLE]
February 5, 1997
XXXXXX BROTHERS INC. ,
as Representative of the several U.S. Underwriters
XXXXXX BROTHERS INTERNATIONAL (EUROPE),
as Lead Manager of the several International Managers
c/x Xxxxxx Brothers Inc.
Three World Financial Center
New York, New York 10285
Ladies and Gentlemen:
We have acted as special counsel to Equitable Deal Flow Fund L.P.,
Equitable Capital Partners L.P., Equitable Capital Partners (Retirement Fund)
L.P. (each, a "Represented Stockholder" and collectively, the "Represented
Stockholders"), as Participating Selling Stockholders (as defined below) in
connection with the offering by the Represented Stockholders of up to _____
shares (including shares to be sold upon exercise of over-allotment options) of
Class A common stock, par value $0.01 per share (the "Common Stock"), of Bank
United Corp., a Delaware corporation (the "Company"), offered by the Represented
Stockholders and certain other stockholders of the Company pursuant to a
registration statement of the Company on Form S-1 (No. 333-19237). This opinion
letter is furnished pursuant to Section 9(f) of (i) the underwriting agreement
(the "U.S. Underwriting Agreement") dated February 5, 1997, among the Company,
Bank United, a federally chartered savings institution (the "Bank"), the persons
listed on Schedule 2 thereto (the "Participating Selling Stockholders") and the
several underwriters named in Schedule 1 thereto (the "U.S. Underwriters") and
(ii) the underwriting agreement (the "International Underwriting Agreement" and,
together with the U.S. Underwriting Agreement, the "Underwriting Agreements")
dated February 5, 1997, among the Company, the Bank, the Participating Selling
Stockholders and the managers named in Schedule 1 thereto (the "International
Managers" and, together with the U.S. Underwriters, the "Underwriters") in
connection with the closing of the sale
by the Represented Stockholders of such shares (the "Stock"). Capitalized terms
used but not defined herein shall have the meanings ascribed to them in the U.S.
Underwriting Agreement.
In arriving at the opinions expressed below, we have reviewed the
following:
(a) executed copies of the U.S. Underwriting Agreement and the
International Underwriting Agreement; and
(b) an executed copy of a custody agreement between each
Represented Stockholder, the Company and The Bank of New York, as custodian,
dated as of February 3, 1997 (the "Custody Agreement").
In addition, we have made such investigations of law as we have deemed
appropriate as a basis for the opinions expressed below.
In rendering the opinions expressed below, we have assumed the
authenticity of all documents submitted to us as originals and the conformity to
the originals of all documents submitted to us as copies. In addition, we have
assumed and have not verified the accuracy as to factual matters of each
document we have reviewed (including, without limitation, the accuracy of the
representations and warranties of the Company and each Represented Stockholder
in the U.S. Underwriting Agreement and the International Underwriting
Agreement).
Based on the foregoing, and subject to the further assumptions and
qualifications set forth below, it is our opinion that:
(i) Each Represented Stockholder has the corporate power and
authority to enter into the U.S. Underwriting Agreement, the International
Underwriting Agreement and the Custody Agreement and to sell transfer and
deliver the Stock to be sold by each Represented Stockholder under the U.S.
Underwriting Agreement and the International Underwriting Agreement.
(ii) The Custody Agreement has been duly authorized, executed and
delivered by each Represented Stockholder, and each constitutes the valid and
binding obligation of each Represented Stockholder.
(iii) The execution and delivery of the U.S. Underwriting
Agreement, the International Underwriting Agreement and the Custody Agreement
and the sale of Stock by each Represented Stockholder to the U.S. Underwriters
and the International Managers, and compliance by each Represented Stockholder
with the terms of the U.S. Underwriting Agreement, the International
Underwriting Agreement and the Custody Agreement do not and will not result in a
violation of the certificate of incorporation and by laws or comparable
constitutional documents of such Represented Stockholder, and do not and will
not conflict with, or result in a breach of any of the terms and provision of,
or constitute a default under any statute, rule or regulation applicable to any
Represented Stockholder or its respective legal or regulatory status in each
case, that in our experience are normally applicable to transactions of
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the type provided for in the U.S. Underwriting Agreement and the International
Underwriting Agreement.
(iv) Each of the U.S. Underwriting Agreement and the
International Underwriting Agreement have been duly authorized, executed and
delivered by each Represented Stockholder.
(v) No consent, approval, authorization or order of or
qualification by the State of Delaware (as it relates to the General Corporation
Law of the State of Delaware), the State of New York or any federal or foreign
governmental body or agency is required for the performance by any Represented
Stockholder of its respective obligations under the U.S. Underwriting Agreement,
the International Underwriting Agreement and the Custody Agreement, except such
(i) as may be required by U.S. federal or state or foreign securities laws and
(ii) as are applicable to any Represented Stockholder solely because of its
specific status (including regulatory status) other than its status as a
Participating Selling Stockholder, as to both of which we express no opinion.
(vi) Assuming that the U.S. Underwriters and the International
Managers purchase the shares of Stock to be delivered by or on behalf of each
Represented Stockholder on the date hereof in good faith and without notice of
any security interests, claims, liens, equities, encumbrances and other adverse
claims, as such term is used in Section 8-302 of the Uniform Commercial Code as
in effect in the State of New York, the delivery of certificates representing
such shares of Stock, duly endorsed to the U.S. Underwriters or the
International Managers or in blank, will pass to the U.S. Underwriters and the
International Managers valid title to such shares of Stock, free and clear of
all security interests, claims, liens, equities, encumbrances and other adverse
claims.
Insofar as the foregoing opinions relate to the legality, validity,
binding effect or enforceability of any agreement or obligation of any
Represented Stockholder, we have assumed that each other party to such agreement
or obligation has duly authorized and executed such agreement or obligation and
has satisfied those legal requirements that are applicable to it to the extent
necessary to make such agreement or obligation enforceable against it. In
addition, the foregoing opinions are subject to applicable bankruptcy,
insolvency and similar laws affecting creditors' rights generally and to general
principles of equity.
The foregoing opinions are limited to the federal law of the United
States of America and the law of the State of New York.
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We are furnishing this opinion letter to you, as Representative of
the U.S. Underwriters and as Lead Manager of the International Managers, solely
for the benefit of the U.S. Underwriters and the International Managers in
connection with the offering of the Stock. This opinion letter is not to be
used, circulated, quoted or otherwise referred to for any other purpose.
Very truly yours,
[NAME OF COUNSEL]
By
* Insert for corporate entities.
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