BANKATLANTIC BANCORP, INC.
(a Florida corporation)
3,000,000 Shares
Class A Common Stock
UNDERWRITING AGREEMENT
________ ____, 1997
XXXX, XXXX & CO., INC.
As Representative of the several Underwriters
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Dear Sirs:
BankAtlantic Bancorp, Inc., a Florida corporation (the "Company"),
proposes, subject to the terms and conditions stated herein, to issue and sell
to the underwriters listed in Schedule A hereto (the "Underwriters"), for whom
you are acting as representative (the "Representative"), 3,000,000 shares of the
Company's Class A common stock $0.01 par value per share. The aforesaid
3,000,000 shares ("Initial Common Securities") and all or any part of the
450,000 shares subject to the option described in Section 2 hereof ("Option
Common Securities") are collectively herein referred to as the "Common
Securities" or the "Securities." The Initial Common Securities are to be sold to
each Underwriter, acting severally and not jointly, in such amounts as are set
forth in Schedule A hereto opposite the name of such Underwriter. The Company
also grants to the Underwriters the option described in Section 2 to purchase
all or any part of an additional 450,000 shares of the Securities to cover
over-allotments. The Company has, outstanding, shares of class A common stock,
$0.01 par value per share ("Class A Common Stock") and shares of class B common
stock, $0.01 par value per share ("Class B Common Stock"). The Debt Securities
are convertible at any time prior to maturity, unless previously redeemed, into
shares of Class A Common Stock.
The initial public offering price for the Securities and the
purchase price to be paid by the Underwriters for the Securities, shall be
agreed upon by the Company and the Representative, acting on behalf of the
several Underwriters, and such agreement shall be set
forth in a separate written instrument substantially in the form of Exhibit A
hereto (the "Price Determination Agreement"). The Price Determination Agreement
may take the form of an exchange of any standard form of written
telecommunication between the Company and the Representative and shall specify
such applicable information as is indicated in Exhibit A hereto. The offering of
the Securities will be governed by this Agreement, as supplemented by the Price
Determination Agreement. From and after the date of the execution and delivery
of the Price Determination Agreement, this Agreement shall be deemed to
incorporate, and all references herein to "this Agreement" shall be deemed to
include, the Price Determination Agreement.
The Company has prepared and filed with the Securities and
Exchange Commission (the "Commission") a registration statement on Form S-3
(File No. 333-______) covering the registration of the Securities under the
Securities Act of 1933, as amended (the "1933 Act"), including the related
preliminary prospectus or prospectuses, and, if such registration statement has
not become effective, the Company will prepare and file, prior to the effective
date of such registration statement, an amendment to such registration
statement, including a final prospectus. Each prospectus used before the time
such registration statement becomes effective is herein called a "preliminary
prospectus". Such registration statement, including the exhibits thereto
(excluding any Form T-1 other than Item 2 to Form T-1) and the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933
Act, at the time it becomes effective and including documents filed after such
effective time under the Securities Exchange Act of 1934, as amended (the "1934
Act") is herein called the "Registration Statement", and the prospectus,
including the documents incorporated by reference therein pursuant to Item 12 of
Form S-3 under the 1933 Act, included in the Registration Statement at the time
it becomes effective is herein called the "Prospectus" except that, if any
revised prospectus provided to the Underwriters by the Company for use in
connection with the offering of the Securities differs from the prospectus
included in the Registration Statement at the time it becomes effective (whether
or not such prospectus is required to be filed pursuant to Rule 424(b)), the
term "Prospectus" shall refer to such revised prospectus from and after the time
it is first furnished to the Underwriters for such use.
The Company understands that the Underwriters propose to make a public
offering of the Securities (the "Offering") as soon as possible after the
Registration Statement becomes effective. The Underwriters may assemble and
manage a selling group of broker-dealers that are members of the National
Association of Securities Dealers, Inc. ("NASD") to participate in the
solicitation of purchase orders for the Securities under a selected dealer
agreement, the form of which is set forth as Exhibit B to this Agreement.
Section 1. REPRESENTATIONS AND WARRANTIES.
(a) The Company represents and warrants to and agrees with
each of the Underwriters that:
(i) The Company meets the requirements for use of Form S-3
under the 1933 Act and when the Registration Statement on such form
shall become effective and at all times
2
subsequent thereto up to the Closing Time referred to below and with
respect to Option Securities, up to the Date of Delivery referred to
below, (A) the Registration Statement and any amendments and
supplements thereto will comply in all material respects with the
requirements of the 1933 Act and the rules and regulations of the
Commission under the 1933 Act (the "1933 Act Regulations"); (B) neither
the Registration Statement nor any amendment or supplement thereto will
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; and (C) neither the Prospectus nor
any amendment or supplement thereto will include an untrue statement of
a material fact or omit 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, except that this representation
and warranty does not apply to statements or omissions made in reliance
upon and in conformity with information furnished in writing to the
Company by the Underwriters expressly for use in the Registration
Statement or the Prospectus, or any information contained in any Form
T-1 (other than Item 2 to such Form T-1) which is an exhibit to the
Registration Statement. The statements contained under the caption
"Underwriting" in the Prospectus constitute the only information
furnished to the Company in writing by the Underwriters expressly for
use in the Registration Statement or the Prospectus.
(ii) The documents incorporated by reference in the Prospectus
pursuant to Item 12 of Form S-3 under the 1933 Act, at the time they
were filed with the Commission, complied in all material respects with
the requirements of the 1934 Act, and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations") and, when read
together and with the other information in the Prospectus, at the time
the Registration Statement becomes effective and at all times
subsequent thereto up to the Date of Delivery, will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the
statements therein not misleading, in each case after excluding any
statement that does not constitute a part of the Registration Statement
or the Prospectus pursuant to Rule 412 of the 1933 Act Regulations.
(iii) KPMG Peat Marwick LLP, who are reporting upon the
audited financial statements included or incorporated by reference in
the Registration Statement, are independent public accountants as
required by the 1933 Act and the 1933 Act Regulations.
(iv) This Agreement has been duly authorized, executed and
delivered by the Company and, when duly executed by the Representative,
will constitute the valid and binding agreement of the Company
enforceable against the Company in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency, or
reorganization, moratorium or other similar laws relating to or
affecting creditors' rights generally or by general equitable
principles.
3
(v) The consolidated financial statements, audited and
unaudited (including the Notes thereto), included or incorporated by
reference in the Registration Statement present fairly the consolidated
financial position of the Company and its subsidiaries as of the dates
indicated and the consolidated results of operations and cash flows of
the Company and its subsidiaries for the periods specified. Such
financial statements have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis throughout
the periods involved, except as otherwise stated therein. The financial
statement schedules, if any, included in the Registration Statement
present fairly the information required to be stated therein. The
selected financial and statistical data included in the Prospectus are
accurate in all material respects and present fairly the information
shown therein and have been compiled on a basis consistent with that of
the audited consolidated financial statements included or incorporated
by reference in the Registration Statement.
(vi) The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Florida
with corporate power and authority under such laws to own, lease and
operate its properties and conduct its business as described in the
Prospectus and to enter into and perform its obligations under this
Agreement and the Indenture. The Company is duly qualified to transact
business as a foreign corporation and is in good standing in each other
jurisdiction in which it owns or leases property of a nature, or
transacts business of a type, that would make such qualification
necessary, except to the extent that the failure to so qualify or be in
good standing would not have a material adverse effect on the
condition, financial or otherwise, or earnings, business affairs,
assets or business prospects of the Company and its subsidiaries,
considered as one enterprise.
(vii) The Company is duly registered with the Office of Thrift
Supervision as a savings and loan holding company under the Home
Owners' Loan Act as amended; each subsidiary of the Company that
conducts business as a savings association is duly authorized to
conduct such business in each jurisdiction in which such business is
currently conducted, except to the extent that the failure to be so
authorized would not have a material adverse effect on the Company and
its subsidiaries, considered as one enterprise; and the deposit
accounts of BankAtlantic, A Federal Savings Bank (the "Bank") are
insured by either the Savings Association Insurance Fund or Bank
Insurance Fund of the Federal Deposit Insurance Corporation ("FDIC"),
up to the maximum allowable limits thereof. The Company has all such
power, authority, authorization, approvals and orders as may be
required to enter into this Agreement, to carry out the provisions and
conditions hereof and to issue and sell the Securities.
(viii) The Bank is a federally chartered savings association
duly organized, validly existing and in good standing under the laws of
the United States with corporate power and authority under such laws to
own, lease and operate its properties and conduct its business; the
Bank is duly qualified to transact business as a foreign corporation
and is in good standing in each other jurisdiction in which it owns or
leases property of a
4
nature, or transacts business of a type, that would make such
qualification necessary, except to the extent that the failure to so
qualify or be in good standing would not have a material adverse effect
on the Bank and its subsidiaries, considered as one enterprise. All of
the outstanding shares of capital stock of each subsidiary of the
Company have been duly authorized and validly issued and are fully paid
and non-assessable and are owned by the Company directly or through one
or more subsidiaries, free and clear of any pledge, lien, security
interest, charge, claim, equity or encumbrance of any kind, except as
disclosed in Note 10 to the consolidated financial statements in the
Prospectus.
(ix) Except for the Bank, the Company does not have any
"significant subsidiaries" as defined in Rule 1-02 of Regulation S-X
under the 0000 Xxx.
(x) The Company had at the date indicated a duly authorized
and outstanding capitalization as set forth in the Prospectus under the
caption "Capitalization"; the capital stock of the Company and the
Securities conform in all material respects to the description thereof
contained or incorporated by reference in the Prospectus and such
description conforms to the rights set forth in the instruments
defining the same. Subsequent to such date, the Company has not issued,
and other than under the Company's existing option plans, savings plan
pursuant to Section 401(k) of the Internal Revenue Code ("401(k)
savings plan"), savings plan or outstanding warrants, is not obligated
to issue, any other shares of capital stock; without limiting the
generality of the foregoing and except for options to purchase
__________ shares of Class A Common Stock granted pursuant to the
Company's 1996 Stock Option Plan (a plan through which options for up
to an additional __________ shares of Class A Common Stock may be
granted) and except for options to purchase __________ shares of Class
B Common Stock granted pursuant to the Company's other option plans
(plans through which options for up to an additional __________ shares
of Class B Common Stock may be granted) there are no options, warrants,
calls, employee benefit or other plans, preemptive rights or
commitments of any character relating to the authorized but unissued
capital stock or any other equity security of the Company or the Bank,
except as disclosed in Note 10 to the consolidated financial statements
in the Prospectus.
(xi) The Common Securities have been duly and validly
authorized and, when issued against full payment of the purchase price
therefore specified in this Agreement, will be validly issued, fully
paid and non-assessable; no holder thereof will be subject to personal
liability solely by reason of being such a holder; the Common
Securities are not subject to the preemptive rights of any stockholder
of the Company.
(xii) All of the outstanding shares of capital stock of the
Company have been duly authorized and validly issued and are fully paid
and non-assessable, and none of the outstanding shares of capital stock
was issued in violation of the preemptive rights of any stockholder of
the Company.
5
(xiii) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise stated therein, there has not been (A) any material adverse
change in the condition (financial or otherwise), earnings, business
affairs, assets or business prospects of the Company and its
subsidiaries, considered as one enterprise, whether or not arising in
the ordinary course of business, (B) any transaction entered into by
the Company or any subsidiary, other than in the ordinary course of
business, that is material to the Company and its subsidiaries,
considered as one enterprise, or (C) any dividend or distribution of
any kind declared, paid or made by the Company on its capital stock,
excluding the regular quarterly dividend paid on Class B Common Stock
and the regular quarterly dividend paid on the Class A Common Stock.
Neither the Company nor the Bank has any material liability of any
nature, contingent or otherwise, except as set forth in the Prospectus.
(xiv) Neither the Company nor the Bank is in violation of any
provision of its charter or by-laws or in default in the performance or
observance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan agreement, note,
lease or other agreement or instrument to which it is a party or by
which it may be bound or to which any of its properties may be subject,
except for such defaults that would not have a material adverse effect
on the condition (financial or otherwise), earnings, business affairs,
assets or business prospects of the Company and its subsidiaries,
considered as one enterprise. The execution and delivery of this
Agreement by the Company, the issuance and delivery of the Securities,
the consummation by the Company of the transactions contemplated in
this Agreement and the transactions contemplated in the Registration
Statement in connection with the issuance and delivery of the
Securities and compliance by the Company with the terms of this
Agreement have been duly authorized by all necessary corporate action
on the part of the Company and do not and will not result in any
violation of the charter or by-laws of the Company or the Bank, and do
not and will not conflict with, or result in a breach of any of the
terms or provisions of, or constitute a default 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 under (A) any
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument to which the Company or any subsidiary is a party or by
which it may be bound or to which any of its properties may be subject
(except for such conflicts, breaches or defaults or liens, charges or
encumbrances that would not have a material adverse effect on the
condition (financial or otherwise) earnings, business affairs, assets
or business prospects of the Company and its subsidiaries, considered
as one enterprise) or (B) any existing applicable law, rule,
regulation, judgment, order or decree of any government, governmental
instrumentality or court, domestic or foreign, having jurisdiction over
the Company or any subsidiary or any of its properties.
6
(xv) No authorization, approval, consent or license of any
government, governmental instrumentality or court, domestic or foreign
(other than under the 1933 Act, the 1934 Act, the Trust Indenture Act
of 1939, as amended ("TIA"), and the securities or blue sky laws of the
various states), is required for the valid authorization, issuance,
sale and delivery of the Securities.
(xvi) Except as disclosed in the Prospectus, there is no
action, suit or proceeding before or by any government, governmental
instrumentality or court, domestic or foreign, now pending or, to the
knowledge of the Company, threatened against the Company or the Bank
that is required to be disclosed in the Prospectus or that could
reasonably be expected to result in any material adverse change in the
condition (financial or otherwise), earnings, business affairs, assets
or business prospects of the Company and its subsidiaries, considered
as one enterprise, or that could reasonably be expected to materially
and adversely affect the properties or assets of the Company and its
subsidiaries, considered as one enterprise, or that could reasonably be
expected to materially and adversely affect the consummation of the
transactions contemplated in this Agreement and the Indenture; all
pending legal or governmental proceedings to which the Company or the
Bank is a party that are not described in the Prospectus, including
ordinary routine litigation incidental to its business, if decided in a
manner adverse to the Company, would not have a material adverse effect
on the condition (financial or otherwise), earnings, business affairs
or business prospects of the Company and its subsidiaries, considered
as one enterprise.
(xvii) There are no material contracts or documents of a
character required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement
that are not described and filed as required.
(xviii) The Company and the Bank each has good and marketable
title to all properties and assets described in the Prospectus as owned
by it, free and clear of all liens, charges, encumbrances or
restrictions, except such as (A) are described in the Prospectus or (B)
are neither material in amount nor materially significant in relation
to the business of the Company and its subsidiaries, considered as one
enterprise; 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 the Bank holds properties described in the
Prospectus, are in full force and effect, and neither the Company nor
the Bank has any notice of any material claim that has been asserted by
anyone adverse to the rights of the Company or the Bank under any of
the leases or subleases mentioned above, or affecting or questioning
the rights of such corporation to the continued possession of the
leased or subleased premises under any such lease or sublease.
(xix) Each of the Company and the Bank owns, possesses or has
obtained all material governmental licenses, permits, certificates,
consents, orders, approvals and other authorizations necessary to own
or lease, as the case may be, and to operate its properties and to
carry on its business as presently conducted, and neither the Company
7
nor the Bank has received any notice of any restriction upon, or any
notice of proceedings relating to revocation or modification of, any
such licenses, permits, certificates, consents, orders, approvals or
authorizations.
(xx) Except as disclosed in the Prospectus, no labor problem
exists with the employees of the Company or with employees of the Bank
or to the best knowledge of the Company is imminent that could
materially adversely affect the Company and its subsidiaries,
considered as one enterprise, and the Company is not aware of any
existing or imminent labor disturbance by the employees of any of its
or the Bank's principal suppliers, contractors or customers that could
reasonably be expected to materially adversely affect the condition
(financial or otherwise), earnings, business affairs or business
prospects of the Company and its subsidiaries, considered as one
enterprise.
(xxi) The Securities will conform in all material respects to
the respective statements relating thereto contained in the Prospectus
and will be in substantially the respective forms filed or incorporated
by reference, as the case may be, as exhibits to the Registration
Statement.
(xxii) There are no persons with registration or other similar
rights to have any securities of the Company registered pursuant to the
Registration Statement or otherwise registered by the Company under the
1933 Act; however, the Company has undertaken in connection with the
issuance of its 6 3/4% Convertible Subordinated Debentures to take
reasonable steps to ensure that the shares of common stock issuable
upon exercise thereof may be issued without a legend restricting
transfer.
(xxiii) Except as disclosed in the Prospectus, the Company and
the Bank own or possess all patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets or other
unpatented and/or unpatentable proprietary or confidential information
systems or procedures), trademarks, servicemarks and tradenames
(collectively, "patent and proprietary rights") currently employed by
them in connection with the business now operated by them except where
the failure to so own, possess or acquire such patent and proprietary
rights would not have a material adverse effect on the condition,
financial or otherwise, or the earnings, business affairs, assets or
business prospects of the Company and its subsidiaries considered as
one enterprise, and neither the Company nor the Bank has received any
notice nor is otherwise aware of any infringement of or conflict with
asserted rights of others with respect to any patent or proprietary
rights, and which infringement or conflict (if the subject of any
unfavorable decision, rule and refinement, singly or in the aggregate)
could reasonably be expected to result in any material adverse change
in the condition, financial or otherwise, or in the earnings, business
affairs, assets or business prospects of the Company and its
subsidiaries considered as one enterprise.
(xxiv) The Company and each subsidiary of the Company have
filed all Federal, state and local income, franchise or other tax
returns required to be filed and have made
8
timely payments of all taxes due and payable in respect of such returns
and no material deficiency has been asserted with respect thereto by
any taxing authority.
(xxv) The Company has filed with the New York Stock Exchange
(the "NYSE") all documents and notices required by the NYSE of
companies that have issued securities that are traded on the NYSE.
(xxvi) The Company has filed with The Nasdaq Stock Market
("Nasdaq") all documents and notices required by Nasdaq of companies
that have issued securities that are traded on Nasdaq.
(xxvii) The Company and the Bank have no agreement or
understanding with any entity concerning the future acquisition by the
Company or the Bank of a controlling interest in any entity that is
required by the 1933 Act or the 1933 Act Regulations to be disclosed by
the Company that is not disclosed in the Prospectus; the Company and
the Bank have no agreement or understanding with any entity concerning
the future acquisition of a controlling interest in the Company or the
Bank by any entity that is required by the 1933 Act or the 1933 Act
Regulations to be disclosed by the Company that is not disclosed in the
Prospectus.
(b) Any certificate signed by any authorized officer of the Company or
the Bank and delivered to the Representative or to counsel for the
Representative pursuant to this Agreement shall be deemed a representation and
warranty by the Company to each Underwriter as to the matters covered thereby.
Section 2. SALE AND DELIVERY TO THE UNDERWRITERS; CLOSING.
(a) On the basis of the representations and warranties herein
contained, and subject to the terms and conditions herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company that amount of Initial Common
Securities set forth in Schedule A of the 3,000,000 Initial Common Securities at
the purchase price and terms set forth in the Price Determination Agreement.
In addition, on the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Company
hereby grants an option to the Underwriters, severally and not jointly, to
purchase up to an additional 450,000 Common Securities in accordance with the
terms set forth in the Price Determination Agreement. The option hereby granted
will expire at 5:00 p.m. on the 30th day after the date the Registration
Statement is declared effective by the Commission (or at 5:00 p.m. on the next
business day if such 30th day is not a business day) and may be exercised, on
one occasion only, solely for the purpose of covering over-allotments which may
be made in connection with the offering and distribution of the Initial
Securities upon notice by you to the Company setting forth the number of Option
Securities as to which the several Underwriters are exercising the option and
the time,
9
date and place of payment and delivery for the Option Securities. Such time and
date of delivery (the "Date of Delivery") shall be determined by the
Representative but shall not be later than five full business days after the
exercise of said option, nor in any event prior to Closing Time, as hereinafter
defined, nor earlier than the second business day after the date on which the
notice of the exercise of the option shall have been given. If the option is
exercised as to all or any portion of the Option Securities, the Option
Securities as to which the option is exercised shall be purchased by the
Underwriters, severally and not jointly, in their respective underwriting
obligation proportions set forth in Schedule A.
(b) If the Company has elected not to rely upon Rule 430A, the
initial public offering price for the Securities and the purchase price for the
Securities to be paid by the several Underwriters have been agreed upon and set
forth herein and an amendment to the Registration Statement containing such
information will have been filed before the Registration Statement becomes
effective.
(c) Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of
Xxxxxxx, Spidi, Sloane & Xxxxx, P.C., or at such other place as shall be agreed
upon by the Company and the Representative, at 9:30 a.m. on the third full
business day after the effective date of the Registration Statement, or at such
other time not more than seven full business days thereafter as you and the
Company shall determine (such date and time of payment and delivery being herein
called the "Closing Time"). In addition, in the event that any or all of the
Option Securities are purchased by the Underwriters, payment of the purchase
price for, and delivery of certificates for, such Option Securities shall be
made at the above-mentioned office of Xxxxxxx, Spidi, Sloane & Xxxxx, P.C., or
at such other place as shall be agreed upon by the Company and the
Representative, on the Date of Delivery as specified in the notice from the
Representative to the Company. Payment for the Initial Securities and the Option
Securities, if any, shall be made to the Company by funds available the same day
to the Company, against delivery to the Representative for the respective
accounts of the several Underwriters of certificates for the Securities to be
purchased by them.
(d) Certificates for the Securities to be purchased by the
Underwriters shall be in such denominations and registered in such names as the
Underwriters may request in writing at least two full business days before the
Closing Time or the Date of Delivery, as the case may be. The certificates for
the Initial Securities or the Option Securities to be purchased will be made
available in New York City for examination and packaging by the Underwriters not
later than 10:00 a.m. on the business day prior to the Closing Time or the Date
of Delivery, as the case may be.
(e) It is understood that each Underwriter has authorized you,
for its account, to accept delivery of, receipt for, and make payment of the
purchase price for, the Securities that it has agreed to purchase. You,
individually and not as Representative, may (but shall not be obligated to) make
payment of the purchase price for the Initial Securities or Option Securities to
be purchased by any Underwriter whose check or checks shall not have been
received by the Closing Time or the Date of Delivery, as the case may be.
10
Section 3. CERTAIN COVENANTS OF THE COMPANY. The Company
covenants with the Underwriters as follows:
(a) The Company will use its best efforts to cause the
Registration Statement to become effective and will notify the Representative
immediately, and confirm the notice in writing, (i) when the Registration
Statement, or any post-effective amendment to the Registration Statement, shall
have become effective, or any supplement to the Prospectus or any amended
Prospectus shall have been filed, (ii) of the receipt of any comments from the
Commission (iii) of any request of the Commission to amend the Registration
Statement or amend or supplement the Prospectus or for additional information
and (iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the suspension of the
qualification of the Securities or capital stock, for offering or sale in any
jurisdiction, or of the institution or threatening of any proceedings for any of
such purposes. The Company will use every reasonable effort to prevent the
issuance of any such stop order or of any order preventing or suspending such
use and, if any such order is issued, to obtain the lifting thereof at the
earliest possible moment.
(b) The Company will not at any time file or make any
amendment to the Registration Statement, or any amendment or supplement if the
Company has elected to rely upon Rule 430A, to the Prospectus (including
documents incorporated by reference into such prospectus or to the Prospectus)
of which the Representative shall not have previously been advised and have
previously been furnished a copy, or to which the Representative or counsel for
the Representative shall reasonably object.
(c) The Company has furnished or will furnish to you as many
signed and conformed copies of the Registration Statement as originally filed
and of each amendment thereto, whether filed before or after the Registration
Statement becomes effective, copies of all exhibits and documents filed
therewith (including documents incorporated by reference into the Prospectus
pursuant to Item 12 of Form S-3 under the 0000 Xxx) and signed copies of all
consents and certificates of experts as you may reasonably request and has
furnished or will furnish to you, for each other Underwriter, one conformed copy
of the Registration Statement as originally filed and of each amendment thereto
(including documents incorporated by reference into the Prospectus but without
exhibits).
(d) The Company will deliver or cause to be delivered to each
Underwriter, without charge, from time to time until the effective date of the
Registration Statement, as many copies of each preliminary prospectus as such
Underwriter may reasonably request, and the Company hereby consents to the use
of such copies for purposes permitted by the 1933 Act. The Company will deliver
or cause to be delivered to each Underwriter, without charge, as soon as the
Registration Statement shall have become effective (or, if the Company has
elected to rely upon Rule 430A, as soon as practicable after the Price
Determination Agreement has been executed and delivered) and thereafter from
time to time as requested during the period when
11
the Prospectus is required to be delivered under the 1933 Act, such number of
copies of the Prospectus (as supplemented or amended) as such Underwriter may
reasonably request.
(e) The Company will comply to the best of its ability with
the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act
Regulations, so as to permit the completion of the distribution of the
Securities as contemplated in this Agreement and in the Prospectus. If, at any
time when a prospectus is required by the 1933 Act to be delivered in connection
with sales of the Securities, any event shall occur or condition exist as a
result of which it is necessary, in the reasonable opinion of counsel for the
Representative or counsel for the Company, to amend the Registration Statement
or amend or supplement the Prospectus in order that the Prospectus will not
include an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading in the light of
the circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the reasonable opinion of either such counsel, at any
such time to amend the Registration Statement or amend or supplement the
Prospectus in order to comply with the requirements of the 1933 Act or the 1933
Act Regulations, the Company will promptly prepare and file with the Commission,
subject to Section 3(b), such amendment or supplement as may be necessary to
correct such untrue statement or omission or to make the Registration Statement
or the Prospectus comply with such requirements.
(f) The Company will use its best efforts, in cooperation with
the Underwriters, to qualify the Securities, for offering and sale under the
applicable securities laws of such states and other jurisdictions as the
Representative may designate and to maintain such qualifications in effect for a
period of not less than one year from the effective date of the Registration
Statement and to qualify the shares of Class A Common Stock issuable upon
conversion of the Debt Securities for offering and sale upon conversion of the
Debt Securities under the applicable securities laws of such states and other
jurisdictions as you may designate and to maintain such qualifications in effect
for such period as any Debt Securities may be issued and outstanding and shares
of Class A Common Stock issuable upon conversion thereof; PROVIDED, HOWEVER,
that the Company shall not be obligated to file any general consent to service
of process or to qualify as a foreign corporation or as a dealer in securities
in any jurisdiction in which it is not so qualified or to subject itself to
taxation in respect of doing business in any jurisdiction in which it is not
otherwise so subject. The Company will file such statements and reports as may
be required by the laws of each jurisdiction in which the Securities have been
qualified as above provided.
(g) The Company will make generally available (within the
meaning of Rule 158) to its security holders as soon as practicable, but not
later than 90 days after the close of the period covered thereby, an earnings
statement of the Company (in form complying with the provisions of Rule 158 of
the 1933 Act Regulations) covering a period of at least 12 months beginning
after the effective date of the Registration Statement but not later than the
first day of the Company's fiscal quarter next following such effective date.
12
(h) The Company and the Bank will use the net proceeds
received by them from the sale of the Securities in the manner specified in the
Prospectus under the caption "Use of Proceeds".
(i) The Company, during the period when the Prospectus is
required to be delivered under the 1933 Act, will file promptly all documents
required to be filed with the Commission pursuant to Section 13 or 14 of the
1934 Act subsequent to the time the Registration Statement becomes effective.
(j) For a period of five years after the Closing Time, the
Company will furnish to the Representative, copies of all annual reports,
quarterly reports and current reports filed with the Commission on Forms 10-K,
10-Q and 8-K, or such other similar forms as may be designated by the
Commission, and such other documents, reports, Proxy Statements, and information
as shall be furnished by the Company to its stockholders generally.
(k) The Company will file with the NYSE and Nasdaq all
documents and notices required by the NYSE and Nasdaq, respectively, of
companies that have issued securities that are traded on the NYSE and Nasdaq.
(l) The Company shall pay for the legal fees and related
filing fees to the counsel to the Representative to prepare one or more "blue
sky" surveys (each, a "Blue Sky Survey") for use in connection with the offering
of the Securities as contemplated by the Prospectus and a copy of such Blue Sky
Survey or surveys shall be delivered to each of the Company and the
Representative.
(m) If, at the time the Registration Statement becomes
effective, any information shall have been omitted therefrom in reliance upon
Rule 430A of the 1933 Act Regulations, then the Company will prepare, and file
or transmit for filing with the Commission in accordance with such Rule 430A and
Rule 424(b), copies of an amended Prospectus, or, if required by such Rule 430A,
a post-effective amendment to the Registration Statement (including an amended
Prospectus), containing all information so omitted.
(n) The Company will, at its expense, subsequent to the
issuance of the Securities, prepare and distribute to each of the
Representative, counsel to the Representative and counsel to the Company, a
hard-bound copy of the documents used in connection with the issuance of the
Securities.
(o) At or prior to the Closing Time, the Company will deliver
to the Underwriter agreements (the "Lock-Up Agreements") executed by each of (i)
the Company's Chairman, Vice Chairman, President, Executive Vice Presidents and
their respective affiliates and (ii) its parent, BFC Financial Corporation, that
for a 120 day period from the Closing Time, they will not, without your prior
consent, sell, contract to sell or grant any option for the sale or otherwise
dispose of, directly or indirectly, any shares of Common Stock owned by them. At
or prior to the Closing Time, the Company shall deliver instructions to its
transfer agent
13
authorizing it to place stop transfer orders on the Company's ledgers. However,
this subparagraph (o) shall not be construed to limit (1) the exercise of
options granted by the Company to purchase shares of Common Stock obtained prior
to the Closing Time by any individual subject to a Lock-Up Agreement or the sale
of underlying shares of Common Stock obtained from the exercise of such options
or (2) the sale of shares of Common Stock held by a BONA FIDE third party
pursuant to a written pledge agreement entered into prior to the Closing Time
for Common Stock owned by any person subject to a Lock-Up Agreement who
defaulted after the closing Time on the written pledge agreement.
Section 4. PAYMENT OF EXPENSES. The Company will pay and bear
all costs and expenses incident to the performance of its obligations under this
Agreement, including (a) the preparation, printing and filing of the
Registration Statement (including financial statements and exhibits), as
originally filed and as amended, the preliminary prospectuses and the Prospectus
and any amendments or supplements thereto, and the cost of furnishing copies
thereof to the Underwriters, (b) the preparation, printing and distribution of
this Agreement, the Securities and the Blue Sky Survey, (c) the issuance and
delivery of the Securities to the Underwriters, including any transfer taxes
payable upon the sale of the Securities to the Underwriters, (d) the fees and
disbursements of the Company's counsel and accountants, (e) NYSE filing fees,
(f) fees and disbursements of counsel to the Representative in connection with
the Blue Sky Survey, (g) the qualification of the Securities under the
applicable securities laws in accordance with Section 3(f) and any filing fee
for review of the offering with the NASD, (h) the legal fees and expenses (other
than those applicable to the Blue Sky Survey) of the Representative's counsel
(such counsel's fees shall not exceed $__________) and general out-of-pocket
expenses of the Representative not to exceed $__________, and (i) all other
costs incident to the performance of the Company's obligations hereunder.
If (i) the Closing Time does not occur on or before ____________ ,
199___, (ii) the Company abandons or terminates the Offering, or (iii) this
Agreement is terminated by the Underwriters in accordance with the provisions of
Section 5 or 10(a), the Company shall reimburse the Underwriters for all their
reasonable out-of-pocket expenses, as set forth in this Section 4, including the
reasonable fees and disbursements of counsel for the Representative, but
excluding fees associated with the Blue Sky Survey, which shall be paid directly
to the Representative's counsel.
Section 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The
obligations of the several Underwriters to purchase and pay for the Securities
that they have respectively agreed to purchase pursuant to this Agreement are
subject to the accuracy of the representations and warranties of the Company
contained herein or in certificates of any officer of the Company or any
subsidiary delivered pursuant to the provisions hereof, to the performance by
the Company of its obligations hereunder and to the following further
conditions:
(a) The Registration Statement shall have become effective not
later than 5:30 P.M. on the date of this Agreement or, with your consent, at a
later time and date not later, however, than 5:30 P.M. on the first business day
following the date hereof, or at such later
14
time or on such later date as you may agree to in writing; at the Closing Time
no stop order suspending the effectiveness of the Registration Statement shall
have been issued under the 1933 Act and no proceedings for that purpose shall
have been instituted or shall be pending or, to the Underwriters' knowledge or
the knowledge of the Company shall be contemplated by the Commission, and any
request on the part of the Commission for additional information shall have been
complied with to the satisfaction of counsel for the Representative. If the
Company has elected to rely upon Rule 430A, a prospectus containing the Rule
430A Information shall have been filed with the Commission in accordance with
Rule 424(b) (or a post-effective amendment providing such information shall have
been filed and declared effective in accordance with the requirements of Rule
430A).
(b) At the Closing Time, you shall have received a signed
opinion of Xxxxxxx Xxxxxx Xxxxxx Xxxxxxxx Xxxxxxxx & Xxxxxxxxx, P.A., special
securities counsel for the Company, dated as of the Closing Time, together with
signed or reproduced copies of such opinion for each of the other Underwriters
in form and substance reasonably satisfactory to your counsel, to the effect
that:
(i) The Company is a corporation organized, validly existing
and in good standing under the laws of the State of Florida with
corporate power and authority under such laws to own, lease and operate
its properties and conduct its business as described in the Prospectus.
(ii) To such counsel's knowledge, the Company is qualified to
transact business as a foreign corporation and is in good standing in
each other jurisdiction in which it owns or leases property of a
nature, or transacts business of a type, that would make such
qualification necessary, except to the extent that the failure to so
qualify or be in good standing would not have a material adverse effect
on the Company and its subsidiaries, considered as one enterprise.
(iii) The Bank is chartered under the laws of the United
States to transact the business of a federal savings bank and its
charter is in full force and effect with the Office of Thrift
Supervision, with corporate power and authority under such laws to own,
lease and operate its properties and conduct its business as now being
conducted.
(iv) The deposit accounts of the Bank are insured by either
the Savings Association Insurance Fund or the Bank Insurance Fund of
the FDIC up to the maximum amount allowable under applicable law.
(v) To such counsel's knowledge, the Bank is qualified to
transact business as a foreign corporation in each other jurisdiction
in which it owns or leases property of a nature, or transacts business
of a type, that would make such qualification necessary, except to the
extent that the failure to so qualify would not have a material adverse
effect on the Company and its subsidiaries, considered as one
enterprise.
15
(vi) The Company is registered as a savings & loan holding
company under the Home Owners' Loan Act, as amended.
(vii) None of the outstanding shares of capital stock of the
Company and none of the Securities was issued in violation of the
preemptive rights of any stockholder of the Company.
(viii) The authorized capital stock of the Company at
September 30, 1997 is as set forth in the Prospectus under the heading
"Capitalization".
(ix) To such counsel's knowledge, all of the outstanding
shares of capital stock of the Bank have been authorized and validly
issued and are fully paid and non-assessable; all of such shares are
owned by the Company, to such counsel's knowledge, free and clear of
any pledge, lien, security interest, charge, claim, equity or
encumbrance of any kind, except as disclosed in Note 10 to the
consolidated financial statements in the Prospectus; none of such
shares was issued in violation of the preemptive rights of any
stockholder of the Bank.
(x) The Common Securities have been duly authorized and, when
delivered against payment of the purchase price therefore specified in
the Price Determination Agreement, will be validly issued and are fully
paid and non-assessable; no holder thereof is or will be subject to
personal liability solely by reason of being such a holder; the Common
Securities are not subject to the preemptive rights of any stockholder
of the Company.
(xi) The Securities conform in all material respects as to
legal matters to the description thereof contained in the Prospectus
and such descriptions conform in all material respects to the rights
set forth in the instruments defining the same.
(xii) The execution and delivery of this Agreement and the
consummation of the transactions contemplated thereby and in the
Prospectus have each been duly and validly authorized by all necessary
action on the part of the Company.
(xiii) The Agreement has been duly executed and delivered by
the Company and, assuming due execution and delivery by all other
parties thereto, constitutes the valid and binding agreement of the
Company enforceable against the Company in accordance with its terms,
except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating
to or affecting creditors' rights generally, or by general equitable
principles and except with respect to the enforceability of the
indemnification and contribution or governing law provisions of this
Agreement, as to which such counsel need not express any opinion.
(xiv) No authorization, approval, consent or license of any
government, governmental instrumentality or court, (other than under
the 1933 Act, the 1933 Act
16
Rules, the TIA, and the securities or blue sky laws of the various
states and by-laws and rules of the NYSE), is required in connection
with the execution, delivery and performance of this Agreement or the
transactions contemplated therein or in the Prospectus or for the valid
authorization, issuance, sale and delivery of the Securities.
(xv) To such counsel's knowledge, there are no pending or
threatened legal or governmental proceedings, required under the 1933
Act and the 1933 Act Regulations to be described in the Prospectus that
are not described as required, other than litigation incidental to the
business of the Company or the Bank which is, considered in the
aggregate, not material to the Company and its subsidiaries, considered
as one enterprise, and to such counsel's knowledge, there are no
material contracts or documents of a character required to be described
or referred to in the Registration Statement or the Prospectus or to be
filed as exhibits to the Registration Statement that are not described,
referred to or filed as required.
(xvi) The descriptions in the Prospectus of the statutes,
regulations, legal or governmental proceedings, contracts and other
documents therein described conform in all material respects with such
statutes, regulations, legal or governmental proceedings, contracts and
other documents.
(xvii) The statements made in the Prospectus under "Regulation
and Supervision", "Description of the Debentures," "Description of
Capital Stock," and "Federal and State Taxation" to the extent that
they constitute matters of law or legal conclusions, have been reviewed
by such counsel and are correct in all material respects.
(xviii) The execution and delivery of this Agreement, the
issuance and delivery of the Securities, the consummation by the
Company of the transactions contemplated in this Agreement and
compliance by the Company with the terms of this Agreement do not and
will not result in any violation of the charter or by-laws of the
Company or the Bank, and to such counsel's knowledge do not and will
not conflict with, or result in a breach of any of the terms or
provisions of, or constitute a default under, or result in the creation
or imposition of any lien, charge or encumbrance upon any property or
assets of the Company or the Bank under (A) any indenture, mortgage or
loan agreement, or any other agreement or instrument to which the
Company or the Bank is a party or by which it may be bound or to which
any of its properties may be subject (except for such conflicts,
breaches or defaults or liens, charges or encumbrances that would not
have a material adverse effect on the condition (financial or
otherwise), earnings, business affairs or business prospects of the
Company and its subsidiaries, considered as one enterprise), (B) any
existing applicable law, rule or regulation, or (C) any judgment, order
or decree of any government, governmental instrumentality or court,
having jurisdiction over the Company or the Bank or any of its
properties.
(xix) The Registration Statement is effective under the 1933
Act; any required filing of the Prospectus or any supplement thereto
pursuant to Rule 424(b) has been made
17
in the manner and within the time period required by Rule 424(b); to
such counsel's knowledge, no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for that
purpose have been instituted or are pending or threatened under the
1933 Act.
(xx) The Registration Statement (including the Rule 430A
Information, if applicable) and the Prospectus, excluding the documents
incorporated by reference therein, and each amendment or supplement
thereto (except for the financial statements and other financial or
statistical data included therein or omitted therefrom, as to which
such counsel need express no opinion), as of their respective effective
or issue dates, comply or complied as to form in all material respects
to the applicable requirements of the 1933 Act and the 1933 Act
Regulations.
(xxi) The documents incorporated by reference in the
Prospectus (except for the financial statements and other financial or
statistical data included therein or omitted therefrom, as to which
such counsel need express no opinion, and except to the extent that any
statement therein is modified or superseded in the Prospectus), as of
the dates they were filed with the Commission, complied as to form in
all material respects to the applicable requirements of the 1934 Act
and the 1934 Act Regulations.
(xxii) To such counsel's knowledge, (1) there are no persons
with registration or other similar rights to have any securities of the
Company registered pursuant to the Registration Statement or otherwise
registered by the Company under the 1933 Act, and (2) except as
described in the Prospectus and except for the 1996 Stock Option Plan
of the Company and options to purchase __________ shares of Class A
Common Stock granted under such plan, there are no options, warrants,
calls, convertible securities, employee benefit or other plans,
pre-emptive rights or commitments of any character relating to the
authorized but unissued capital stock of the Company or the Bank.
(xxiii) To the best of such counsel's knowledge, the Company
and the Bank each has all material licenses, permits and other
governmental authorizations currently required for the conduct of its
business as presently conducted.
Counsel will supplementally provide a written statement that
such counsel has participated in the preparation of the Registration Statement
and Prospectus and has reviewed the documents incorporated by reference in the
Prospectus and no facts have come to the attention of such counsel to lead it to
believe (A) that the Registration Statement (including the Rule 430A
Information, if applicable) or any amendment thereto (except for the financial
statements and other financial or statistical data included therein or omitted
therefrom, as to which such counsel need express no opinion), at the time the
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 (B) that the Prospectus or any amendment or supplement thereto (except for
the financial statements and other financial or statistical data included
therein or omitted therefrom,
18
as to which such counsel need express no opinion), at the time the Prospectus
was issued, at the time any such amended or supplemented prospectus was issued
or at the Closing Time, 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 or (C) that the documents incorporated by reference in the
Prospectus (except for the financial statements and other financial or
statistical data contained therein or omitted therefrom, as to which such
counsel need express no opinion, and except to the extent that any statement
therein is modified or superseded in the Prospectus), as of the dates they were
filed with the Commission, 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.
In giving such opinion, such counsel may rely, as to all
matters governed by the laws of jurisdictions other than the federal law of the
United States, upon opinions of other counsel, who shall be counsel satisfactory
to counsel for the Representative, in which case the opinion shall state that
counsel believes that you and your counsel are entitled to so rely. Such counsel
may also state that, insofar as such opinion involves factual matters, they have
relied, to the extent they deem proper, upon certificates of officers of the
Company and the Bank and certificates of public officials.
(c) At the Closing Time, the Representative shall have
received the favorable opinion of Xxxxxxx, Spidi, Sloane & Xxxxx, P.C., counsel
for the Representative, dated as of the Closing Time, to the effect that the
opinion delivered pursuant to Section 5(b) hereof appears on its face to be
appropriately responsive to the requirements of this Agreement except,
specifying the same, to the extent waived by the Representative, and with
respect to the incorporation and legal existence of the Company, the Securities,
this Agreement, the Registration Statement, the Prospectus, the documents
incorporated by reference and such other related matters as the Representative
may require. In giving such opinion such counsel may rely, as to all matters
governed by the laws of jurisdictions other than the federal law of the United
States, upon the opinions of counsel satisfactory to Xxxxxxx, Spidi, Sloane &
Xxxxx, P.C. as to form and scope and upon which the Representative may
justifiably rely. Such counsel may also state that, insofar as such opinion
involves factual matters, they have relied, to the extent they deem proper, upon
certificates of officers of the Company and the Bank and certificates of public
officials.
(d) At the Closing Time, (i) the Registration Statement and the
Prospectus, as they may then be amended or supplemented, shall contain all
statements that are required to be stated therein under the 1933 Act and the
1933 Act Regulations and in all material respects shall conform to the
requirements of the 1933 Act and the 1933 Act Regulations, the Company shall
have complied in all material respects with Rule 430A (if it shall have elected
to rely thereon) and neither the Registration Statement nor the Prospectus, as
they may then be amended or supplemented, shall 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, (ii) there shall not
have been, since the respective dates as of which information is given in the
19
Registration Statement, any material adverse change in the condition (financial
or otherwise), earnings, business affairs, assets or business prospects of the
Company and its subsidiaries, considered as one enterprise, whether or not
arising in the ordinary course of business, (iii) no action, suit or proceeding
at law or in equity shall be pending or, to the knowledge of the Company,
threatened against the Company or any subsidiary that would be required to be
set forth in the Prospectus other than as set forth therein and no proceedings
shall be pending or, to the knowledge of the Company, threatened against the
Company or any subsidiary before or by any federal, state or other commission,
board or administrative agency wherein an unfavorable decision, ruling or
finding could reasonably be expected to materially adversely affect the
condition (financial or otherwise), earnings, business affairs, assets or
business prospects of the Company and its subsidiaries, considered as one
enterprise, other than as set forth in the Prospectus, (iv) the Company shall
have complied with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to the Closing Time, (v) the other
representations and warranties of the Company set forth in Section l(a) shall be
accurate in all material respects as though expressly made at and as of the
Closing Time, and (vi) no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceeding for that purpose
been initiated or to the best knowledge of the Company threatened by the
Commission. At the Closing Time, the Representative shall have received a
certificate of the Chairman or the President, and the Chief Financial Officer or
Controller, of the Company, dated as of the Closing Time, to such effect.
(e) At the time that this Agreement is executed by the
Company, you shall have received from KPMG Peat Marwick LLP a letter or letters,
dated such date, in form and substance satisfactory to you, confirming that they
are independent certified public accountants with respect to the Company within
the meaning of the 1933 Act and the published 1933 Act Regulations, and stating
in effect that:
With respect to the Company:
(i) in their opinion, the consolidated financial statements as
of December 31, 1996 and 1995, and for each of the years in the three
year period ended December 31, 1996 and the related financial statement
schedules, if any, included or incorporated by reference in the
Registration Statement and the Prospectus and covered by their opinions
included therein comply as to form in all material respects with the
applicable accounting requirements of the 1933 Act and the published
1933 Act Regulations;
(ii) on the basis of procedures (but not an audit in
accordance with generally accepted auditing standards) specified by the
American Institute of Certified Public Accountants for a review of
interim financial information as described in SAS No. 71, INTERIM
FINANCIAL INFORMATION, for the unaudited interim consolidated financial
statements of the Company for the three-month and nine month periods
ended September 30, 1997 and September 30, 1996, including a reading of
comparative unaudited consolidated financial statements of the Company
which are available for periods subsequent to those subject to the SAS
No. 71 review noted above, a reading of the minutes of all meetings
20
of the stockholders of the Company and the Bank, of the Board of
Directors of the Company and the Bank and of the Audit and Executive
Committees of the Board of Directors of the Bank since October 1, 1997,
inquiries of certain officials of the Company and its subsidiaries
responsible for financial and accounting matters, and such other
inquiries and procedures as may be specified in such letter, nothing
came to their attention that caused them to believe that:
(A) at a specified date not more than three days
prior to the date of this Agreement, there was any increase in
notes or subordinated debentures payable, advances from the
Federal Home Loan Bank, real estate owned, or allowance for
loan losses of the Company and its consolidated subsidiaries
or any decrease in total assets, total deposits or
stockholders' equity of the Company and its consolidated
subsidiaries or any increase in the number of outstanding
shares of capital stock of the Company and its consolidated
subsidiaries, in each case as compared with amounts shown in
the financial statements at September 30, 1997 included in the
Registration Statement; or
(B) for the period from October 1, 1997 to a
specified date not more than three days prior to the date of
this Agreement, there was any decrease in consolidated net
interest income, non-interest income or net income or the
(split-adjusted) total or fully diluted per share amounts of
net income or any increase in the consolidated provision for
loan losses or non-interest expense, in each case as compared
with the comparable period in the preceding year; or
(C) the unaudited consolidated financial statements
included in the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements
of the Commission and pursuant to the 1933 Act and the
respective published rules and regulations of the Commission
thereunder; or
(D) such unaudited consolidated financial statements
included in the Prospectus are not in conformity with
generally accepted accounting principles ("GAAP") applied on a
basis substantially consistent with that of the audited
consolidated financial statements included in the Prospectus.
(iii) in addition to the procedures referred to in clause (ii)
above, they have performed other specified procedures, not constituting
an audit, with respect to certain amounts, percentages, numerical data
and financial information appearing in the Registration Statement
(including the Summary Financial Information) (having compared such
items with, and have found such items to be in agreement with, the
financial statements of the Company or general accounting records of
the Company, as applicable, which are subject to the Company's internal
accounting controls or other data and schedules prepared by the Company
from such records).
21
(f) At the Closing Time, the Representative shall have
received from KPMG Peat Marwick LLP letters, in form and substance satisfactory
to the Underwriters and dated as of the Closing Time, to the effect that they
reaffirm the statements made in the letter(s) furnished pursuant to Section
5(e), except that the inquiries specified in Section 5(e) shall be made based
upon the latest available unaudited interim consolidated financial statements
and the specified date referred to shall be a date not more than two days prior
to the Closing Time.
(g) At the Closing Time, counsel for the Representative shall
have been furnished with all such documents, certificates and opinions as they
may request for the purpose of enabling them to pass upon the issuance and sale
of the Securities as contemplated in this Agreement and the matters referred to
in Section 5(c) and in order to evidence the accuracy and completeness of any of
the representations, warranties or statements of the Company, the performance of
any of the covenants of the Company, or the fulfillment of any of the conditions
herein contained; all proceedings taken by the Company at or prior to the
Closing Time in connection with the authorization, issuance and sale of the
Securities as contemplated in this Agreement shall be satisfactory in form and
substance to the Representative and to counsel for the Representative.
(h) Between the date of this Agreement and the Closing Time,
(i) no downgrading shall have occurred in the rating accorded any securities of
the Company or any deposit instruments of the Bank by any "nationally recognized
statistical rating organization," as that term is defined by the Commission for
purposes of Rule 436(g) (2) under the 1933 Act and (ii) no such organization
shall have given any notice of any intended or potential downgrading or of any
surveillance or review, with possible negative implications, of its rating of
any of the Company's securities or any deposit instruments of the Bank.
(i) The Company shall have paid, or made arrangements
satisfactory to the Underwriters for the payment of, all such expenses as may be
required by Section 4 hereof.
(j) In the event the Underwriters exercise their option
provided in Section 2 hereof to purchase all or any portion of the Option
Securities, the obligations of the several Underwriters to purchase the Option
Securities that they shall have respectively agreed to purchase shall be subject
to the accuracy of the representations and warranties of the Company contained
herein and of the statements in any certificates furnished by the Company
hereunder as of such Date of Delivery (as if made on such date), to the
performance by the Company of its obligations hereunder and to the receipt by
you on the Date of Delivery of:
(1) A certificate, dated the Date of Delivery, of the
Chairman or the President and the Chief Financial Officer or Controller
of the Company confirming that the certificate delivered on the Closing
Time pursuant to Section 5(d) hereof remains true as of the Date of
Delivery;
(2) The favorable opinion of Xxxxxxx Xxxxxx Xxxxxx
Xxxxxxxx Xxxxxxxx & Xxxxxxxxx, P.A., counsel for the Company, addressed
to you and dated
22
the Date of Delivery, in form satisfactory to Xxxxxxx, Spidi, Sloane &
Xxxxx, P.C., your counsel, relating to the Option Securities and
otherwise to the same effect as the opinion required by Section 5(b)
hereof;
(3) The favorable opinion of Xxxxxxx, Spidi, Sloane &
Xxxxx, P.C., dated the Date of Delivery, relating to the Option Shares
and otherwise to the same effect as the opinion required by Section
5(c) hereof; and
(4) Letters from KPMG Peat Marwick LLP addressed to
the Representative and dated the Date of Delivery, in form and
substance satisfactory to the Representative and substantially the same
in form and substance as the letters furnished to the Representative
pursuant to Section 5(e) hereof.
If any of the conditions specified in this Section 5 shall not
have been fulfilled when and as required by this Agreement to be fulfilled, this
Agreement may be terminated by the Representative on notice to the Company at
any time at or prior to the Closing Time, and such termination shall be without
liability of any party to any other Party, except as provided in Section 4.
Notwithstanding any such termination, the provisions of Sections 7, 8, 9 and 11
shall remain in effect.
Section 6. [INTENTIONALLY LEFT BLANK]
Section 7. INDEMNIFICATION
(a) The Company agrees to indemnify and hold harmless
each Underwriter, officers, directors, employees, agents, and counsel of each
Underwriter, and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20(a) of the 1934 Act, against
any loss, liability, claim, damage, and expense whatsoever (which shall include,
but not be limited to amounts incurred in investigating, preparing, or defending
against any litigation, commenced or threatened, or any claim or investigation
whatsoever and any and all amounts paid in settlement of any claim or
litigation), as and when incurred, arising out of, based upon, or in connection
with (i) any untrue statement or alleged untrue statement of a material fact or
any omission or alleged omission to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, contained in
(A) any Preliminary Prospectus, the Registration Statement, or the Prospectus
(as from time to time amended and supplemented), or any amendment or supplement
thereto or in any document incorporated by reference therein or required to be
delivered with any Preliminary Prospectus or the Prospectus or (B) in any
application or other document or communication (collectively called an
"application") executed by or on behalf of the Company or based upon written
information furnished by or on behalf of the Company filed in any jurisdiction
in order to qualify the Securities under the "blue sky" or securities laws
thereof or filed with the Commission or any securities exchange; unless such
statement or omission or alleged statement or omission was made in reliance upon
and in conformity with written information concerning that Underwriter, the
Underwriting Agreement or the compensation of
23
the Underwriters furnished to the Company by or on behalf of the Underwriters
expressly for inclusion in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or any amendment or supplement thereto, or in any
application, as the case may be, or (ii) any breach of any representation,
warranty, covenant, or agreement of the Company contained in the Underwriting
Agreement. The foregoing indemnification with respect to any preliminary
prospectus shall not inure to the benefit of the Underwriters if the person
asserting any such losses, claims, damages or liabilities purchased Securities
and a copy of the Prospectus (as then amended or supplemented if the Company
shall have furnished any amendments or supplements thereto) was not sent or
given by or on behalf of the Underwriters to such person, if such is required by
law, in connection with the written confirmation of the sale of such Securities
to such person and if the Prospectus (as so amended or supplemented) would have
cured the defect giving rise to such loss, claim, damage or liability, provided,
that the Company delivered the Prospectus, as amended or supplemented, to the
Representative or the Underwriters on a timely basis to permit such delivery or
sending. For purposes of this section, the term "expense" shall include, but not
be limited to, counsel fees and costs, court costs, out-of-pocket costs and
compensation for the time spent by any of the Representative's directors,
officers, employees and counsel according to his or her normal hourly billing
rates. The indemnification provisions shall also extend to all affiliates of any
of the Underwriters, their respective directors, officers, employees, legal
counsel, agents and controlling persons within the meaning of the federal
securities laws. The foregoing agreement to indemnify shall be in addition to
any liability the Company may otherwise have to the Underwriters or the persons
entitled to the benefit of these indemnification provisions.
(b) Each Underwriter severally agrees to indemnify
and hold harmless the Company, its directors, officers who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20(a) of the 1934 Act,
against any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) above, as incurred, but only with respect
to untrue statements or omissions, or alleged untrue statements or omissions,
made in the Registration Statement (or any amendment thereto) or any Preliminary
Prospectus or the Prospectus (or any amendment or supplement thereto) or any
application in reliance upon and in conformity with written information about
that Underwriter, the Underwriting Agreement, or the compensation of that
Underwriter, furnished to the Company by that Underwriter expressly for use in
the Registration Statement (or any amendment thereto) or such Preliminary
Prospectus or the Prospectus (or any amendment or supplement thereto) or in any
application.
(c) An indemnified party shall give prompt notice to
the indemnifying party if any action, suit, proceeding or investigation is
commenced in respect of which indemnity may be sought hereunder, but failure to
so notify an indemnifying party shall not relieve the indemnifying party from
its obligations to indemnify hereunder, except to the extent that the
indemnifying party has been prejudiced in any material respect by such failure.
If it so elects within a reasonable time after receipt of such notice, an
indemnifying party may assume the defense of such action, including the
employment of counsel satisfactory to the indemnified parties and payment of all
expenses of the indemnified party in connection with such action.
24
Such indemnified party or parties shall have the right to employ its or their
own counsel in any such case, but the fees and expenses of such counsel shall be
at the expense of such indemnified party or parties unless the employment of
such counsel shall have been authorized in writing by the indemnifying party in
connection with the defense of such action or the indemnifying party shall not
have promptly employed counsel satisfactory to such indemnified party or parties
or such indemnified party or parties shall have reasonably concluded that there
may be one or more legal defenses available to it or them or to other
indemnified parties which are different from or additional to those available to
one or more of the indemnifying parties, in any of which events such fees and
expenses shall be borne by the indemnifying party and the indemnifying party
shall not have the right to direct the defense of such action on behalf of the
indemnified party or parties. The Company shall be liable for any settlement of
any claim against any Underwriter (or its directors, officers, employees,
affiliates or controlling persons), made with the Company's written consent,
which consent shall not be unreasonably withheld. The Company shall not, without
the written consent of any Underwriter, settle or compromise any claim against
it based upon circumstances giving rise to an indemnification claim against the
Company hereunder unless such settlement or compromise provides that such
Underwriter and the other indemnified parties shall be unconditionally and
irrevocably released from all liability in respect to such claim.
(d) In order to provide for just and equitable
contribution, if a claim for indemnification pursuant to these indemnification
provisions is made but it is found in a final judgment by a court that such
indemnification may not be enforced in such case, even though the express
provisions hereof provide for indemnification in such case, then the Company, on
the one hand, and the Underwriters, on the other hand, shall contribute to the
amount paid or payable by such indemnified persons as a result of such loss,
liability, claim, damage and expense in such proportion as is appropriate to
reflect the relative benefits received by the Company, on the one hand, and the
Underwriters, on the other hand, from the underwriting, and also the relative
fault of the Company, on the one hand, and the Underwriters, on the other hand,
in connection with the statements, acts or omissions which resulted in such
loss, liability claim, damage and expense, and any other relevant equitable
considerations shall also be considered. No person found liable for a fraudulent
misrepresentation or omission shall be entitled to contribution from any person
who is not also found liable for such fraudulent misrepresentation or omission.
Notwithstanding the foregoing, an Underwriter shall not be obligated to
contribute any amount hereunder that exceeds the amount of the underwriting
discount retained by it applicable to the Securities purchased by that
Underwriter.
(e) The indemnity and contribution agreements
contained herein are in addition to any liability which the Company may
otherwise have to the Underwriters.
(f) Neither termination nor completion of the
engagement of the Underwriters nor any investigation made by or on behalf of the
Underwriters shall effect the indemnification obligations of the Company or the
Underwriters hereunder, which shall remain and continue to be operative and in
full force and effect.
25
Section 8. [INTENTIONALLY LEFT BLANK]
Section 9. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO
SURVIVE DELIVERY. The representations, warranties, indemnities, agreements and
other statements of the Company or its officers set forth in or made pursuant to
this Agreement will remain operative and in full force and effect regardless of
any investigation made by or on behalf of the Company or any Underwriter or any
controlling person and will survive delivery of and payment for the Securities.
Section 10. TERMINATION OF AGREEMENT.
(a) You may terminate this Agreement, by notice to the
Company, at any time at or prior to the Closing Time (i) if there has been,
since the respective dates as of which information is given in the Registration
Statement, any material adverse change in the condition (financial or
otherwise), earnings, 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, or (ii) if there has occurred any outbreak or
escalation of existing hostilities or other national or international calamity
or crisis the effect of which on the financial markets of the United States is
such as to make it, in the Underwriters' reasonable judgment, impracticable to
market the Securities or enforce contracts for the sale of the Securities, or
(iii) if trading in any securities of the Company has been suspended by the
Commission or the NYSE or Nasdaq or if trading generally on the NYSE or in the
over-the-counter market has been suspended (other than suspensions in trading
generally for less than one trading day) or minimum or maximum prices for
trading have been fixed, or maximum ranges for prices for securities have been
required, by such exchange or by order of the Commission, the NASD or any other
governmental authority with appropriate jurisdiction over such matters, or (iv)
if a banking moratorium has been declared by either federal, Florida
authorities, or (v) if there shall have been such material and substantial
change in the market for securities in general or in political, financial or
economic conditions as in your reasonable judgment makes it inadvisable to
proceed with the Offering, sale and delivery of the Securities on the terms
contemplated by the Prospectus, or (vi) if you reasonably determine (which
determination shall be in good faith) that there has not been satisfactory
disclosure of all relevant financial information relating to the Company in the
Company's disclosure documents and that the sale of the Securities is
unreasonable given such disclosures.
(b) If this Agreement is terminated pursuant to this Section,
such termination shall be without liability of any party to any other party,
except to the extent provided in Section 4. Notwithstanding any such
termination, the provisions of Sections 7 and 9 shall remain in effect.
Section 11. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If one
or more of the Underwriters shall fail at the Closing Time to purchase the
Initial Securities that it or they are obligated to purchase pursuant to this
Agreement (the "Defaulted Securities"), you shall have the right, within 24
hours thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the
26
Defaulted Securities in such amounts as may be agreed upon and upon the terms
set forth in this Agreement; if, however, you have not completed such
arrangements within such 24-hour period, then:
(a) if the aggregate principal amount of Defaulted
Securities does not exceed 10% of the Initial Securities, the non-defaulting
Underwriters shall be obligated to purchase the full amount thereof in the
proportions that their respective Initial Securities underwriting obligation
proportions bear to the underwriting obligations of all non-defaulting
Underwriters; or
(b) if the amount of Defaulted Securities exceeds 10%
of the Initial Securities, this Agreement shall terminate without liability on
the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default that does not result in a
termination of this Agreement, either you or the Company shall have the right to
postpone the Closing Time for a period not exceeding seven days in order to
effect any required changes in the Registration Statement or Prospectus or in
any other documents or arrangements. As used herein, the term "Underwriter"
includes any person substituted for an Underwriter under this Section 11.
Section 12. NOTICES. All notices and other communications
under this Agreement shall be in writing and shall be deemed to have been duly
given if delivered, mailed or transmitted by any standard form of
telecommunication. Notices shall be addressed as follows:
If to the Underwriters:
c/o Ryan, Xxxx & Co., Inc.
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxx X. Xxxxxx, Senior Vice President
with a copy to:
Xxxx X. Spidi, Esq.
Xxxxxxx, Spidi, Sloane & Xxxxx, P.C.
Xxx Xxxxxxxx Xxxxxx, Xxxxx 000 Xxxx
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
27
If to the Company:
BankAtlantic Bancorp, Inc.
0000 Xxxx Xxxxxxx Xxxxxxxxx
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxx, Chief Executive Officer
with a copy to:
Xxxxxx X. Xxxxxx, Esq.
Xxxxxxx Xxxxxx Xxxxxx Xxxxxxxx Xxxxxxxx & Xxxxxxxxx, P.A.
000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Section 13. PARTIES. This Agreement herein set forth is made solely
for the benefit of the several Underwriters, the Company and, to the extent
expressed, any person controlling the Company or the Underwriters, and the
directors of the Company, its officers who have signed the Registration
Statement, and their respective executors, administrators, successors and
assigns and subject to the provisions of Section 11, no other person shall
acquire or have any right under or by virtue of this Agreement. The term
"successors and assigns" shall not include any purchaser, as such purchaser,
from the several Underwriters of the Securities. All of the obligations of the
Underwriters hereunder are several and not joint.
Section 14. ARBITRATION. Any claims, controversies, demands,
disputes or differences between or among the parties hereto or any persons bound
hereby arising out of, or by virtue of, or in connection with, or otherwise
relating to this Agreement shall be submitted to and settled by arbitration
conducted in Miami, Florida before one or three arbitrators, each of whom shall
be knowledgeable in the field of securities law and investment banking. Such
arbitration shall otherwise be conducted in accordance with the rules then
obtaining of the American Arbitration Association. The parties hereto agree to
share equally the responsibility for all fees of the arbitrators, abide by any
decision rendered as final and binding, and waive the right to appeal the
decision or otherwise submit the dispute to a court of law for a jury or
non-jury trial. The parties hereto specifically agree that neither party may
appeal or subject to the award or decision of any such arbitrator to appeal or
review in any court of law or in equity or in any other tribunal, arbitration
system or otherwise. Judgment upon any award granted by such arbitrator may be
enforced in any court having jurisdiction thereof.
Section 15. GOVERNING LAW AND TIME. This Agreement shall be
governed by the laws of the State of New Jersey. Specified times of the day
refer to New York City time.
Section 16. COUNTERPARTS. This Agreement may be executed in
one or more counterparts, and when a counterpart has been executed by each
party, all such counterparts taken together shall constitute one and the same
agreement.
28
Section 17. REPRESENTATION OF UNDERWRITERS. You will act for
the several Underwriters in connection with this financing, and any action under
or in respect of this Agreement taken by you as Representative will be binding
upon all Underwriters.
------------------------
29
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us a counterpart hereof, whereupon this
instrument will become a binding agreement between the Company and the several
Underwriters in accordance with its terms.
Very truly yours,
BANKATLANTIC BANCORP, INC.
By:-------------------------
Name: Xxxx X. Xxxxx
Title: Chief Executive Officer
Confirmed and accepted as of
the date first above written:
XXXX, XXXX & CO., INC.
By:__________________________
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President
FOR ITSELF AND AS REPRESENTATIVE
OF THE OTHER UNDERWRITERS
NAMED IN SCHEDULE A
30
SCHEDULE A
AMOUNT OF
INITIAL COMMON PERCENTAGE OF INITIAL
SECURITIES TO COMMON SECURITIES
UNDERWRITER BE PURCHASED TO BE PURCHASED
----------- -------------- ---------------------
Xxxx, Xxxx & Co, Inc............................................. %
TOTAL....................................................... 3,000,000 100%
========= ===
31
EXHIBIT A
BANKATLANTIC BANCORP, INC.
(a Florida corporation)
3,000,000 Shares
Class A Common Stock
PRICE DETERMINATION AGREEMENT
__________ ____, 1997
XXXX, XXXX & CO., INC.
As Representative of the several Underwriters
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Dear Sirs:
Reference is made to the Underwriting Agreement dated the date hereof
(the "Underwriting Agreement") among BankAtlantic Bancorp, Inc. (the "Company")
and the several Underwriters named in Schedules A and B thereto or hereto (the
"Underwriters") for whom Xxxx, Xxxx & Co. is acting as representative (the
"Representative"). The Underwriting Agreement provides for the purchase by the
Underwriters from the Company, subject to the terms and conditions set forth
therein, of 3,000,000 shares of Class A Common Stock, subject to a 450,000
shares adjustment (to cover over-allotments, if any) up to 3,450,000 shares of
Class A Common Stock (the "Common Securities"). This Agreement is the Price
Determination Agreement referred to in the Underwriting Agreement.
1
Pursuant to Section 2 of the Underwriting Agreement, the Company agrees
with the Representative as follows:
1. The public offering price per share for the Common
Securities shall be $--------.
2. The purchase price per share for the Common Securities to
be paid by the Underwriters shall be $________, representing an amount
equal to the public offering price set forth above, less $________ per
share.
The Company represents and warrants to each of the Underwriters that
the representations and warranties of the Company set forth in Section 1(a) of
the Underwriting Agreement are accurate as though expressly made at and as of
the date hereof.
As contemplated by Section 2 of the Underwriting Agreement, attached as
Schedule A is a completed list of the several Underwriters, which shall be a
part of the Agreement and the Underwriting Agreement.
This Agreement shall be governed by the laws of the State of New
Jersey.
2
If the foregoing is in accordance with the understanding of the
Representative of the agreement between the Underwriters and the Company, please
sign and return to the Company a counterpart hereof, whereupon this instrument,
along with all counterparts and together with the Underwriting Agreement, shall
be a binding agreement between the Underwriters and the Company in accordance
with its terms and the terms of the Underwriting Agreement.
Very truly yours,
BANKATLANTIC BANCORP, INC.
By: __________________________
Xxxx X. Xxxxx
Chairman of the Board
Chief Executive Officer
Confirmed and accepted as of
the date first above written:
XXXX, XXXX & CO., INC.
By: __________________________
Xxxxx X. Xxxxxx
Senior Vice President
FOR ITSELF AND AS REPRESENTATIVE OF
THE OTHER UNDERWRITERS NAMED IN
SCHEDULE A [ATTACHED TO THE UNDERWRITING AGREEMENT]
3
BANKATLANTIC BANCORP, INC.
(a Florida corporation)
$100,000,000
_____% Convertible Subordinated Debentures due 2007
UNDERWRITING AGREEMENT
________ ____, 1997
XXXX, XXXX & CO., INC.
As Representative of the several Underwriters
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Dear Sirs:
BankAtlantic Bancorp, Inc., a Florida corporation (the "Company"),
proposes, subject to the terms and conditions stated herein, to issue and sell
to the underwriters listed in Schedule A hereto (the "Underwriters"), for whom
you are acting as representative (the "Representative"), $100,000,000 principal
amount of the Company's _____% Convertible Subordinated Debentures due 2007. The
aforesaid debentures ("Initial Debt Securities" or "Initial Securities") and all
or any part of the debentures subject to the option described in Section 2
hereof ("Option Debt Securities" or "Option Securities") are collectively herein
referred to as the "Debt Securities" or the "Securities." The Initial Debt
Securities are to be sold to each Underwriter, acting severally and not jointly,
in such amounts as are set forth in Schedule A hereto opposite the name of such
Underwriter. The Company also grants to the Underwriters the option described in
Section 2 to purchase all or any part of $15,000,000 principal amount of Option
Debt Securities to cover over-allotments. The Debt Securities are to be issued
pursuant to an indenture, dated as of __________ ____, 1997 (the "Indenture"),
between the Company, as issuer, and First Trust National Association, as trustee
(the "Trustee"). The Company has, outstanding, shares of class A common stock,
$0.01 par value per share ("Class A Common Stock") and shares of class B common
stock, $0.01 par value per share ("Class B Common Stock"). The Debt Securities
are convertible at any time prior to maturity, unless previously redeemed, into
shares of Class A Common Stock.
The initial public offering price for the Securities, the
purchase price to be paid by the Underwriters for the Securities, the conversion
price at which the principal amount of the Debt Securities may be converted into
shares of Class A Common Stock, and the rate of interest to be paid on the Debt
Securities shall be agreed upon by the Company and the Representative, acting on
behalf of the several Underwriters, and such agreement shall be set forth in a
separate written instrument substantially in the form of Exhibit A hereto (the
"Price Determination Agreement"). The Price Determination Agreement may take the
form of an exchange of any standard form of written telecommunication between
the Company and the Representative and shall specify such applicable information
as is indicated in Exhibit A hereto. The offering of the Securities will be
governed by this Agreement, as supplemented by the Price Determination
Agreement. From and after the date of the execution and delivery of the Price
Determination Agreement, this Agreement shall be deemed to incorporate, and all
references herein to "this Agreement" shall be deemed to include, the Price
Determination Agreement.
The Company has prepared and filed with the Securities and
Exchange Commission (the "Commission") a registration statement on Form S-3
(File No. 333-______) covering the registration of the Securities under the
Securities Act of 1933, as amended (the "1933 Act"), including the related
preliminary prospectus or prospectuses, and, if such registration statement has
not become effective, the Company will prepare and file, prior to the effective
date of such registration statement, an amendment to such registration
statement, including a final prospectus. Each prospectus used before the time
such registration statement becomes effective is herein called a "preliminary
prospectus". Such registration statement, including the exhibits thereto
(excluding any Form T-1 other than Item 2 to Form T-1) and the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933
Act, at the time it becomes effective and including documents filed after such
effective time under the Securities Exchange Act of 1934, as amended (the "1934
Act") is herein called the "Registration Statement", and the prospectus,
including the documents incorporated by reference therein pursuant to Item 12 of
Form S-3 under the 1933 Act, included in the Registration Statement at the time
it becomes effective is herein called the "Prospectus" except that, if any
revised prospectus provided to the Underwriters by the Company for use in
connection with the offering of the Securities differs from the prospectus
included in the Registration Statement at the time it becomes effective (whether
or not such prospectus is required to be filed pursuant to Rule 424(b)), the
term "Prospectus" shall refer to such revised prospectus from and after the time
it is first furnished to the Underwriters for such use.
The Company understands that the Underwriters propose to make a public
offering of the Securities (the "Offering") as soon as possible after the
Registration Statement becomes effective. The Underwriters may assemble and
manage a selling group of broker-dealers that are members of the National
Association of Securities Dealers, Inc. ("NASD") to participate in the
solicitation of purchase orders for the Securities under a selected dealer
agreement, the form of which is set forth as Exhibit B to this Agreement.
2
Section 1. REPRESENTATIONS AND WARRANTIES.
(a) The Company represents and warrants to and agrees with
each of the Underwriters that:
(i) The Company meets the requirements for use of Form S-3
under the 1933 Act and when the Registration Statement on such form
shall become effective and at all times subsequent thereto up to the
Closing Time referred to below and with respect to Option Securities,
up to the Date of Delivery referred to below, (A) the Registration
Statement and any amendments and supplements thereto will comply in all
material respects with the requirements of the 1933 Act and the rules
and regulations of the Commission under the 1933 Act (the "1933 Act
Regulations"); (B) neither the Registration Statement nor any amendment
or supplement thereto will 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; and (C)
neither the Prospectus nor any amendment or supplement thereto will
include an untrue statement of a material fact or omit 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,
except that this representation and warranty does not apply to
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by the Underwriters
expressly for use in the Registration Statement or the Prospectus, or
any information contained in any Form T-1 (other than Item 2 to such
Form T-1) which is an exhibit to the Registration Statement. The
statements contained under the caption "Underwriting" in the Prospectus
constitute the only information furnished to the Company in writing by
the Underwriters expressly for use in the Registration Statement or the
Prospectus.
(ii) The documents incorporated by reference in the Prospectus
pursuant to Item 12 of Form S-3 under the 1933 Act, at the time they
were filed with the Commission, complied in all material respects with
the requirements of the 1934 Act, and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations") and, when read
together and with the other information in the Prospectus, at the time
the Registration Statement becomes effective and at all times
subsequent thereto up to the Date of Delivery, will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the
statements therein not misleading, in each case after excluding any
statement that does not constitute a part of the Registration Statement
or the Prospectus pursuant to Rule 412 of the 1933 Act Regulations.
(iii) KPMG Peat Marwick LLP, who are reporting upon the
audited financial statements included or incorporated by reference in
the Registration Statement, are independent public accountants as
required by the 1933 Act and the 1933 Act Regulations.
3
(iv) This Agreement has been duly authorized, executed and
delivered by the Company and, when duly executed by the Representative,
will constitute the valid and binding agreement of the Company
enforceable against the Company in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency, or
reorganization, moratorium or other similar laws relating to or
affecting creditors' rights generally or by general equitable
principles. The Indenture has been duly authorized by the Company and,
at the Closing Time, will have been duly executed and delivered by the
Company and when duly executed by the Trustee, will constitute a valid
and binding agreement of the Company enforceable against the Company in
accordance with its terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency, or reorganization, moratorium or
other similar laws relating to or affecting creditors' rights generally
or general equitable principles.
(v) The consolidated financial statements, audited and
unaudited (including the Notes thereto), included or incorporated by
reference in the Registration Statement present fairly the consolidated
financial position of the Company and its subsidiaries as of the dates
indicated and the consolidated results of operations and cash flows of
the Company and its subsidiaries for the periods specified. Such
financial statements have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis throughout
the periods involved, except as otherwise stated therein. The financial
statement schedules, if any, included in the Registration Statement
present fairly the information required to be stated therein. The
selected financial and statistical data included in the Prospectus are
accurate in all material respects and present fairly the information
shown therein and have been compiled on a basis consistent with that of
the audited consolidated financial statements included or incorporated
by reference in the Registration Statement.
(vi) The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Florida
with corporate power and authority under such laws to own, lease and
operate its properties and conduct its business as described in the
Prospectus and to enter into and perform its obligations under this
Agreement and the Indenture. The Company is duly qualified to transact
business as a foreign corporation and is in good standing in each other
jurisdiction in which it owns or leases property of a nature, or
transacts business of a type, that would make such qualification
necessary, except to the extent that the failure to so qualify or be in
good standing would not have a material adverse effect on the
condition, financial or otherwise, or earnings, business affairs,
assets or business prospects of the Company and its subsidiaries,
considered as one enterprise.
(vii) The Company is duly registered with the Office of Thrift
Supervision as a savings and loan holding company under the Home
Owners' Loan Act as amended; each subsidiary of the Company that
conducts business as a savings association is duly authorized to
conduct such business in each jurisdiction in which such business is
currently conducted, except to the extent that the failure to be so
authorized would not
4
have a material adverse effect on the Company and its subsidiaries,
considered as one enterprise; and the deposit accounts of BankAtlantic,
A Federal Savings Bank (the "Bank") are insured by either the Savings
Association Insurance Fund or Bank Insurance Fund of the Federal
Deposit Insurance Corporation ("FDIC"), up to the maximum allowable
limits thereof. The Company has all such power, authority,
authorization, approvals and orders as may be required to enter into
this Agreement, to carry out the provisions and conditions hereof and
to issue and sell the Securities.
(viii) The Bank is a federally chartered savings association
duly organized, validly existing and in good standing under the laws of
the United States with corporate power and authority under such laws to
own, lease and operate its properties and conduct its business; the
Bank is duly qualified to transact business as a foreign corporation
and is in good standing in each other jurisdiction in which it owns or
leases property of a nature, or transacts business of a type, that
would make such qualification necessary, except to the extent that the
failure to so qualify or be in good standing would not have a material
adverse effect on the Bank and its subsidiaries, considered as one
enterprise. All of the outstanding shares of capital stock of each
subsidiary of the Company have been duly authorized and validly issued
and are fully paid and non-assessable and are owned by the Company
directly or through one or more subsidiaries, free and clear of any
pledge, lien, security interest, charge, claim, equity or encumbrance
of any kind, except as disclosed in Note 10 to the consolidated
financial statements in the Prospectus.
(ix) Except for the Bank, the Company does not have any
"significant subsidiaries" as defined in Rule 1-02 of Regulation S-X
under the 0000 Xxx.
(x) The Company had at the date indicated a duly authorized
and outstanding capitalization as set forth in the Prospectus under the
caption "Capitalization"; the capital stock of the Company and the
Securities conform in all material respects to the description thereof
contained or incorporated by reference in the Prospectus and such
description conforms to the rights set forth in the instruments
defining the same. Subsequent to such date, the Company has not issued,
and other than under the Company's existing option plans, savings plan
pursuant to Section 401(k) of the Internal Revenue Code ("401(k)
savings plan"), savings plan or outstanding warrants, is not obligated
to issue, any other shares of capital stock; without limiting the
generality of the foregoing and except for options to purchase
__________ shares of Class A Common Stock granted pursuant to the
Company's 1996 Stock Option Plan (a plan through which options for up
to an additional __________ shares of Class A Common Stock may be
granted) and except for options to purchase __________ shares of Class
B Common Stock granted pursuant to the Company's other option plans
(plans through which options for up to an additional __________ shares
of Class B Common Stock may be granted) there are no options, warrants,
calls, employee benefit or other plans, preemptive rights or
commitments of any character relating to the authorized but unissued
capital stock or any other equity security of the Company or the Bank,
except as disclosed in Note 10 to the consolidated financial statements
in the Prospectus.
5
(xi) The Debt Securities have been duly and validly authorized
and, when authenticated in the manner provided for in the Indenture and
delivered against full payment of the purchase price therefore
specified in this Agreement, will be validly issued and will constitute
valid and binding obligations of the Company, enforceable against the
Company in accordance with their terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or effecting creditors'
rights generally or by general equitable principles, and will be in the
form contemplated by, and entitled to the benefits of, the Indenture;
no holder thereof will be subject to personal liability solely by
reason of being a holder of the Debt Securities; such Debt Securities
are not subject to the preemptive rights of any stockholder of the
Company; and all corporate action required to be taken for the
authorization, issue and sale of the Debt Securities has been validly
taken. Upon conversion of the Debt Securities into shares of Class A
Common Stock in accordance with the terms of the Indenture, the Company
will cause such shares of Class A Common Stock on or before their
issuance to be validly issued, fully paid and non-assessable.
(xii) All of the outstanding shares of capital stock of the
Company have been duly authorized and validly issued and are fully paid
and non-assessable, and none of the outstanding shares of capital stock
was issued in violation of the preemptive rights of any stockholder of
the Company.
(xiii) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise stated therein, there has not been (A) any material adverse
change in the condition (financial or otherwise), earnings, business
affairs, assets or business prospects of the Company and its
subsidiaries, considered as one enterprise, whether or not arising in
the ordinary course of business, (B) any transaction entered into by
the Company or any subsidiary, other than in the ordinary course of
business, that is material to the Company and its subsidiaries,
considered as one enterprise, or (C) any dividend or distribution of
any kind declared, paid or made by the Company on its capital stock,
excluding the regular quarterly dividend paid on Class B Common Stock
and the regular quarterly dividend paid on the Class A Common Stock.
Neither the Company nor the Bank has any material liability of any
nature, contingent or otherwise, except as set forth in the Prospectus.
(xiv) Neither the Company nor the Bank is in violation of any
provision of its charter or by-laws or in default in the performance or
observance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan agreement, note,
lease or other agreement or instrument to which it is a party or by
which it may be bound or to which any of its properties may be subject,
except for such defaults that would not have a material adverse effect
on the condition (financial or otherwise), earnings, business affairs,
assets or business prospects of the Company and its subsidiaries,
considered as one enterprise. The execution and delivery of this
Agreement and the Indenture by the Company, the issuance and delivery
of the
6
Securities, the consummation by the Company of the transactions
contemplated in this Agreement and the Indenture and the transactions
contemplated in the Registration Statement in connection with the
issuance and delivery of the Securities and compliance by the Company
with the terms of this Agreement and the Indenture have been duly
authorized by all necessary corporate action on the part of the Company
and do not and will not result in any violation of the charter or
by-laws of the Company or the Bank, and do not and will not conflict
with, or result in a breach of any of the terms or provisions of, or
constitute a default 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 under (A) any indenture, mortgage, loan
agreement, note, lease or other agreement or instrument to which the
Company or any subsidiary is a party or by which it may be bound or to
which any of its properties may be subject (except for such conflicts,
breaches or defaults or liens, charges or encumbrances that would not
have a material adverse effect on the condition (financial or
otherwise) earnings, business affairs, assets or business prospects of
the Company and its subsidiaries, considered as one enterprise) or (B)
any existing applicable law, rule, regulation, judgment, order or
decree of any government, governmental instrumentality or court,
domestic or foreign, having jurisdiction over the Company or any
subsidiary or any of its properties.
(xv) No authorization, approval, consent or license of any
government, governmental instrumentality or court, domestic or foreign
(other than under the 1933 Act, the 1934 Act, the Trust Indenture Act
of 1939, as amended ("TIA"), and the securities or blue sky laws of the
various states), is required for the valid authorization, issuance,
sale and delivery of the Securities.
(xvi) Except as disclosed in the Prospectus, there is no
action, suit or proceeding before or by any government, governmental
instrumentality or court, domestic or foreign, now pending or, to the
knowledge of the Company, threatened against the Company or the Bank
that is required to be disclosed in the Prospectus or that could
reasonably be expected to result in any material adverse change in the
condition (financial or otherwise), earnings, business affairs, assets
or business prospects of the Company and its subsidiaries, considered
as one enterprise, or that could reasonably be expected to materially
and adversely affect the properties or assets of the Company and its
subsidiaries, considered as one enterprise, or that could reasonably be
expected to materially and adversely affect the consummation of the
transactions contemplated in this Agreement and the Indenture; all
pending legal or governmental proceedings to which the Company or the
Bank is a party that are not described in the Prospectus, including
ordinary routine litigation incidental to its business, if decided in a
manner adverse to the Company, would not have a material adverse effect
on the condition (financial or otherwise), earnings, business affairs
or business prospects of the Company and its subsidiaries, considered
as one enterprise.
7
(xvii) There are no material contracts or documents of a
character required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement
that are not described and filed as required.
(xviii) The Company and the Bank each has good and marketable
title to all properties and assets described in the Prospectus as owned
by it, free and clear of all liens, charges, encumbrances or
restrictions, except such as (A) are described in the Prospectus or (B)
are neither material in amount nor materially significant in relation
to the business of the Company and its subsidiaries, considered as one
enterprise; 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 the Bank holds properties described in the
Prospectus, are in full force and effect, and neither the Company nor
the Bank has any notice of any material claim that has been asserted by
anyone adverse to the rights of the Company or the Bank under any of
the leases or subleases mentioned above, or affecting or questioning
the rights of such corporation to the continued possession of the
leased or subleased premises under any such lease or sublease.
(xix) Each of the Company and the Bank owns, possesses or has
obtained all material governmental licenses, permits, certificates,
consents, orders, approvals and other authorizations necessary to own
or lease, as the case may be, and to operate its properties and to
carry on its business as presently conducted, and neither the Company
nor the Bank has received any notice of any restriction upon, or any
notice of proceedings relating to revocation or modification of, any
such licenses, permits, certificates, consents, orders, approvals or
authorizations.
(xx) Except as disclosed in the Prospectus, no labor problem
exists with the employees of the Company or with employees of the Bank
or to the best knowledge of the Company is imminent that could
materially adversely affect the Company and its subsidiaries,
considered as one enterprise, and the Company is not aware of any
existing or imminent labor disturbance by the employees of any of its
or the Bank's principal suppliers, contractors or customers that could
reasonably be expected to materially adversely affect the condition
(financial or otherwise), earnings, business affairs or business
prospects of the Company and its subsidiaries, considered as one
enterprise.
(xxi) The Securities and the Indenture will conform in all
material respects to the respective statements relating thereto
contained in the Prospectus and will be in substantially the respective
forms filed or incorporated by reference, as the case may be, as
exhibits to the Registration Statement.
(xxii) There are no persons with registration or other similar
rights to have any securities of the Company registered pursuant to the
Registration Statement or otherwise registered by the Company under the
1933 Act; however, the Company has undertaken in connection with the
issuance of its 6 3/4% Convertible Subordinated Debentures to
8
take reasonable steps to ensure that the shares of common stock
issuable upon exercise thereof may be issued without a legend
restricting transfer.
(xxiii) Except as disclosed in the Prospectus, the Company and
the Bank own or possess all patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets or other
unpatented and/or unpatentable proprietary or confidential information
systems or procedures), trademarks, servicemarks and tradenames
(collectively, "patent and proprietary rights") currently employed by
them in connection with the business now operated by them except where
the failure to so own, possess or acquire such patent and proprietary
rights would not have a material adverse effect on the condition,
financial or otherwise, or the earnings, business affairs, assets or
business prospects of the Company and its subsidiaries considered as
one enterprise, and neither the Company nor the Bank has received any
notice nor is otherwise aware of any infringement of or conflict with
asserted rights of others with respect to any patent or proprietary
rights, and which infringement or conflict (if the subject of any
unfavorable decision, rule and refinement, singly or in the aggregate)
could reasonably be expected to result in any material adverse change
in the condition, financial or otherwise, or in the earnings, business
affairs, assets or business prospects of the Company and its
subsidiaries considered as one enterprise.
(xxiv) The Company and each subsidiary of the Company have
filed all Federal, state and local income, franchise or other tax
returns required to be filed and have made timely payments of all taxes
due and payable in respect of such returns and no material deficiency
has been asserted with respect thereto by any taxing authority.
(xxv) The Company has filed with the New York Stock Exchange
(the "NYSE") all documents and notices required by the NYSE of
companies that have issued securities that are traded on the NYSE.
(xxvi) The Company has filed with The Nasdaq Stock Market
("Nasdaq") all documents and notices required by Nasdaq of companies
that have issued securities that are traded on Nasdaq.
(xxvii) The Company and the Bank have no agreement or
understanding with any entity concerning the future acquisition by the
Company or the Bank of a controlling interest in any entity that is
required by the 1933 Act or the 1933 Act Regulations to be disclosed by
the Company that is not disclosed in the Prospectus; the Company and
the Bank have no agreement or understanding with any entity concerning
the future acquisition of a controlling interest in the Company or the
Bank by any entity that is required by the 1933 Act or the 1933 Act
Regulations to be disclosed by the Company that is not disclosed in the
Prospectus.
(b) Any certificate signed by any authorized officer of the Company or
the Bank and delivered to the Representative or to counsel for the
Representative pursuant to this Agreement
9
shall be deemed a representation and warranty by the Company to each Underwriter
as to the matters covered thereby.
Section 2. SALE AND DELIVERY TO THE UNDERWRITERS; CLOSING.
(a) On the basis of the representations and warranties herein
contained, and subject to the terms and conditions herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company that amount of Initial Debt Securities
set forth in Schedule A of the $100,000,000 principal amount of the Initial Debt
Securities at the purchase price and terms set forth in the Price Determination
Agreement.
In addition, on the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Company
hereby grants an option to the Underwriters, severally and not jointly, to
purchase up to an additional $15,000,000 principal amount of the Debt Securities
in accordance with the terms set forth in the Price Determination Agreement. The
option hereby granted will expire at 5:00 p.m. on the 30th day after the date
the Registration Statement is declared effective by the Commission (or at 5:00
p.m. on the next business day if such 30th day is not a business day) and may be
exercised, on one occasion only, solely for the purpose of covering
over-allotments which may be made in connection with the offering and
distribution of the Initial Securities upon notice by you to the Company setting
forth the number of Option Securities as to which the several Underwriters are
exercising the option and the time, date and place of payment and delivery for
the Option Securities. Such time and date of delivery (the "Date of Delivery")
shall be determined by the Representative but shall not be later than five full
business days after the exercise of said option, nor in any event prior to
Closing Time, as hereinafter defined, nor earlier than the second business day
after the date on which the notice of the exercise of the option shall have been
given. If the option is exercised as to all or any portion of the Option
Securities, the Option Securities as to which the option is exercised shall be
purchased by the Underwriters, severally and not jointly, in their respective
underwriting obligation proportions set forth in Schedule A.
(b) If the Company has elected not to rely upon Rule 430A, the
initial public offering price for the Securities, the purchase price for the
Securities to be paid by the several Underwriters and the interest rate on,
conversion price of, and redemption provisions of the Debt Securities have been
agreed upon and set forth herein and an amendment to the Registration Statement
containing such information will have been filed before the Registration
Statement becomes effective.
(c) Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of
Xxxxxxx, Spidi, Sloane & Xxxxx, P.C., or at such other place as shall be agreed
upon by the Company and the Representative, at 9:30 a.m. on the third full
business day after the effective date of the Registration Statement, or at such
other time not more than seven full business days thereafter as you and the
Company shall determine (such date and time of payment and delivery being herein
called the "Closing Time"). In addition, in the
10
event that any or all of the Option Securities are purchased by the
Underwriters, payment of the purchase price for, and delivery of certificates
for, such Option Securities shall be made at the above-mentioned office of
Xxxxxxx, Spidi, Sloane & Xxxxx, P.C., or at such other place as shall be agreed
upon by the Company and the Representative, on the Date of Delivery as specified
in the notice from the Representative to the Company. Payment for the Initial
Securities and the Option Securities, if any, shall be made to the Company by
funds available the same day to the Company, against delivery to the
Representative for the respective accounts of the several Underwriters of
certificates for the Securities to be purchased by them.
(d) Certificates for the Securities to be purchased by the
Underwriters shall be in such denominations and registered in such names as the
Underwriters may request in writing at least two full business days before the
Closing Time or the Date of Delivery, as the case may be. The certificates for
the Initial Securities or the Option Securities to be purchased will be made
available in New York City for examination and packaging by the Underwriters not
later than 10:00 a.m. on the business day prior to the Closing Time or the Date
of Delivery, as the case may be.
(e) It is understood that each Underwriter has authorized you,
for its account, to accept delivery of, receipt for, and make payment of the
purchase price for, the Securities that it has agreed to purchase. You,
individually and not as Representative, may (but shall not be obligated to) make
payment of the purchase price for the Initial Securities or Option Securities to
be purchased by any Underwriter whose check or checks shall not have been
received by the Closing Time or the Date of Delivery, as the case may be.
Section 3. CERTAIN COVENANTS OF THE COMPANY. The Company
covenants with the Underwriters as follows:
(a) The Company will use its best efforts to cause the
Registration Statement to become effective and will notify the Representative
immediately, and confirm the notice in writing, (i) when the Registration
Statement, or any post-effective amendment to the Registration Statement, shall
have become effective, or any supplement to the Prospectus or any amended
Prospectus shall have been filed, (ii) of the receipt of any comments from the
Commission (iii) of any request of the Commission to amend the Registration
Statement or amend or supplement the Prospectus or for additional information
and (iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the suspension of the
qualification of the Securities or capital stock, for offering or sale in any
jurisdiction, or of the institution or threatening of any proceedings for any of
such purposes. The Company will use every reasonable effort to prevent the
issuance of any such stop order or of any order preventing or suspending such
use and, if any such order is issued, to obtain the lifting thereof at the
earliest possible moment.
(b) The Company will not at any time file or make any
amendment to the Registration Statement, or any amendment or supplement if the
Company has elected to rely
11
upon Rule 430A, to the Prospectus (including documents incorporated by reference
into such prospectus or to the Prospectus) of which the Representative shall not
have previously been advised and have previously been furnished a copy, or to
which the Representative or counsel for the Representative shall reasonably
object.
(c) The Company has furnished or will furnish to you as many
signed and conformed copies of the Registration Statement as originally filed
and of each amendment thereto, whether filed before or after the Registration
Statement becomes effective, copies of all exhibits and documents filed
therewith (including documents incorporated by reference into the Prospectus
pursuant to Item 12 of Form S-3 under the 0000 Xxx) and signed copies of all
consents and certificates of experts as you may reasonably request and has
furnished or will furnish to you, for each other Underwriter, one conformed copy
of the Registration Statement as originally filed and of each amendment thereto
(including documents incorporated by reference into the Prospectus but without
exhibits).
(d) The Company will deliver or cause to be delivered to each
Underwriter, without charge, from time to time until the effective date of the
Registration Statement, as many copies of each preliminary prospectus as such
Underwriter may reasonably request, and the Company hereby consents to the use
of such copies for purposes permitted by the 1933 Act. The Company will deliver
or cause to be delivered to each Underwriter, without charge, as soon as the
Registration Statement shall have become effective (or, if the Company has
elected to rely upon Rule 430A, as soon as practicable after the Price
Determination Agreement has been executed and delivered) and thereafter from
time to time as requested during the period when the Prospectus is required to
be delivered under the 1933 Act, such number of copies of the Prospectus (as
supplemented or amended) as such Underwriter may reasonably request.
(e) The Company will comply to the best of its ability with
the 1933 Act and the 1933 Act Regulations, and the 1934 Act and the 1934 Act
Regulations, so as to permit the completion of the distribution of the
Securities as contemplated in this Agreement and in the Prospectus. If, at any
time when a prospectus is required by the 1933 Act to be delivered in connection
with sales of the Securities, any event shall occur or condition exist as a
result of which it is necessary, in the reasonable opinion of counsel for the
Representative or counsel for the Company, to amend the Registration Statement
or amend or supplement the Prospectus in order that the Prospectus will not
include an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading in the light of
the circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the reasonable opinion of either such counsel, at any
such time to amend the Registration Statement or amend or supplement the
Prospectus in order to comply with the requirements of the 1933 Act or the 1933
Act Regulations, the Company will promptly prepare and file with the Commission,
subject to Section 3(b), such amendment or supplement as may be necessary to
correct such untrue statement or omission or to make the Registration Statement
or the Prospectus comply with such requirements.
12
(f) The Company will use its best efforts, in cooperation with
the Underwriters, to qualify the Securities, for offering and sale under the
applicable securities laws of such states and other jurisdictions as the
Representative may designate and to maintain such qualifications in effect for a
period of not less than one year from the effective date of the Registration
Statement and to qualify the shares of Class A Common Stock issuable upon
conversion of the Debt Securities for offering and sale upon conversion of the
Debt Securities under the applicable securities laws of such states and other
jurisdictions as you may designate and to maintain such qualifications in effect
for such period as any Debt Securities may be issued and outstanding and shares
of Class A Common Stock issuable upon conversion thereof; PROVIDED, HOWEVER,
that the Company shall not be obligated to file any general consent to service
of process or to qualify as a foreign corporation or as a dealer in securities
in any jurisdiction in which it is not so qualified or to subject itself to
taxation in respect of doing business in any jurisdiction in which it is not
otherwise so subject. The Company will file such statements and reports as may
be required by the laws of each jurisdiction in which the Securities have been
qualified as above provided.
(g) The Company will make generally available (within the
meaning of Rule 158) to its security holders as soon as practicable, but not
later than 90 days after the close of the period covered thereby, an earnings
statement of the Company (in form complying with the provisions of Rule 158 of
the 1933 Act Regulations) covering a period of at least 12 months beginning
after the effective date of the Registration Statement but not later than the
first day of the Company's fiscal quarter next following such effective date.
(h) The Company and the Bank will use the net proceeds
received by them from the sale of the Securities in the manner specified in the
Prospectus under the caption "Use of Proceeds".
(i) The Company, during the period when the Prospectus is
required to be delivered under the 1933 Act, will file promptly all documents
required to be filed with the Commission pursuant to Section 13 or 14 of the
1934 Act subsequent to the time the Registration Statement becomes effective.
(j) For a period of five years after the Closing Time, the
Company will furnish to the Representative, copies of all annual reports,
quarterly reports and current reports filed with the Commission on Forms 10-K,
10-Q and 8-K, or such other similar forms as may be designated by the
Commission, and such other documents, reports, Proxy Statements, and information
as shall be furnished by the Company to its stockholders generally.
(k) The Company will file with the NYSE and Nasdaq all
documents and notices required by the NYSE and Nasdaq, respectively, of
companies that have issued securities that are traded on the NYSE and Nasdaq.
(l) The Company shall pay for the legal fees and related
filing fees to the counsel to the Representative to prepare one or more "blue
sky" surveys (each, a "Blue Sky Survey")
13
for use in connection with the offering of the Securities as contemplated by the
Prospectus and a copy of such Blue Sky Survey or surveys shall be delivered to
each of the Company and the Representative.
(m) If, at the time the Registration Statement becomes
effective, any information shall have been omitted therefrom in reliance upon
Rule 430A of the 1933 Act Regulations, then the Company will prepare, and file
or transmit for filing with the Commission in accordance with such Rule 430A and
Rule 424(b), copies of an amended Prospectus, or, if required by such Rule 430A,
a post-effective amendment to the Registration Statement (including an amended
Prospectus), containing all information so omitted.
(n) The Company will, at its expense, subsequent to the
issuance of the Securities, prepare and distribute to each of the
Representative, counsel to the Representative and counsel to the Company, a
hard-bound copy of the documents used in connection with the issuance of the
Securities.
Section 4. PAYMENT OF EXPENSES. The Company will pay and bear
all costs and expenses incident to the performance of its obligations under this
Agreement, including (a) the preparation, printing and filing of the
Registration Statement (including financial statements and exhibits), as
originally filed and as amended, the preliminary prospectuses and the Prospectus
and any amendments or supplements thereto, and the cost of furnishing copies
thereof to the Underwriters, (b) the preparation, printing and distribution of
this Agreement, the Securities and the Blue Sky Survey, (c) the issuance and
delivery of the Securities to the Underwriters, including any transfer taxes
payable upon the sale of the Securities to the Underwriters, (d) the fees and
disbursements of the Company's counsel and accountants, (e) Nasdaq filing fees,
(f) fees and disbursements of counsel to the Representative in connection with
the Blue Sky Survey, (g) the qualification of the Securities under the
applicable securities laws in accordance with Section 3(f) and any filing fee
for review of the offering with the NASD, (h) the legal fees and expenses (other
than those applicable to the Blue Sky Survey) of the Representative's counsel
(such counsel's fees shall not exceed $__________) and general out-of-pocket
expenses of the Representative not to exceed $__________, and (i) all other
costs incident to the performance of the Company's obligations hereunder.
If (i) the Closing Time does not occur on or before ____________ ,
199___, (ii) the Company abandons or terminates the Offering, or (iii) this
Agreement is terminated by the Underwriters in accordance with the provisions of
Section 5 or 10(a), the Company shall reimburse the Underwriters for all their
reasonable out-of-pocket expenses, as set forth in this Section 4, including the
reasonable fees and disbursements of counsel for the Representative, but
excluding fees associated with the Blue Sky Survey, which shall be paid directly
to the Representative's counsel.
Section 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The
obligations of the several Underwriters to purchase and pay for the Securities
that they have respectively agreed to purchase pursuant to this Agreement are
subject to the accuracy of the representations and
14
warranties of the Company contained herein or in certificates of any officer of
the Company or any subsidiary delivered pursuant to the provisions hereof, to
the performance by the Company of its obligations hereunder and to the following
further conditions:
(a) The Registration Statement shall have become effective not
later than 5:30 P.M. on the date of this Agreement or, with your consent, at a
later time and date not later, however, than 5:30 P.M. on the first business day
following the date hereof, or at such later time or on such later date as you
may agree to in writing; at the Closing Time no stop order suspending the
effectiveness of the Registration Statement shall have been issued under the
1933 Act and no proceedings for that purpose shall have been instituted or shall
be pending or, to the Underwriters' knowledge or the knowledge of the Company
shall be contemplated by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to the
satisfaction of counsel for the Representative. If the Company has elected to
rely upon Rule 430A, a prospectus containing the Rule 430A Information shall
have been filed with the Commission in accordance with Rule 424(b) (or a
post-effective amendment providing such information shall have been filed and
declared effective in accordance with the requirements of Rule 430A).
(b) At the Closing Time, you shall have received a signed
opinion of Xxxxxxx Xxxxxx Xxxxxx Xxxxxxxx Xxxxxxxx & Xxxxxxxxx, P.A., special
securities counsel for the Company, dated as of the Closing Time, together with
signed or reproduced copies of such opinion for each of the other Underwriters
in form and substance reasonably satisfactory to your counsel, to the effect
that:
(i) The Company is a corporation organized, validly existing
and in good standing under the laws of the State of Florida with
corporate power and authority under such laws to own, lease and operate
its properties and conduct its business as described in the Prospectus.
(ii) To such counsel's knowledge, the Company is qualified to
transact business as a foreign corporation and is in good standing in
each other jurisdiction in which it owns or leases property of a
nature, or transacts business of a type, that would make such
qualification necessary, except to the extent that the failure to so
qualify or be in good standing would not have a material adverse effect
on the Company and its subsidiaries, considered as one enterprise.
(iii) The Bank is chartered under the laws of the United
States to transact the business of a federal savings bank and its
charter is in full force and effect with the Office of Thrift
Supervision, with corporate power and authority under such laws to own,
lease and operate its properties and conduct its business as now being
conducted.
(iv) The deposit accounts of the Bank are insured by either
the Savings Association Insurance Fund or the Bank Insurance Fund of
the FDIC up to the maximum amount allowable under applicable law.
15
(v) To such counsel's knowledge, the Bank is qualified to
transact business as a foreign corporation in each other jurisdiction
in which it owns or leases property of a nature, or transacts business
of a type, that would make such qualification necessary, except to the
extent that the failure to so qualify would not have a material adverse
effect on the Company and its subsidiaries, considered as one
enterprise.
(vi) The Company is registered as a savings & loan holding
company under the Home Owners' Loan Act, as amended.
(vii) None of the outstanding shares of capital stock of the
Company and none of the Securities was issued in violation of the
preemptive rights of any stockholder of the Company.
(viii) The authorized capital stock of the Company at
September 30, 1997 is as set forth in the Prospectus under the heading
"Capitalization".
(ix) To such counsel's knowledge, all of the outstanding
shares of capital stock of the Bank have been authorized and validly
issued and are fully paid and non-assessable; all of such shares are
owned by the Company, to such counsel's knowledge, free and clear of
any pledge, lien, security interest, charge, claim, equity or
encumbrance of any kind, except as disclosed in Note 10 to the
consolidated financial statements in the Prospectus; none of such
shares was issued in violation of the preemptive rights of any
stockholder of the Bank.
(x) The Debt Securities have been duly authorized and validly
issued and, when authenticated in the manner provided for in the
Indenture, and when delivered against payment of the purchase price
therefore specified in this Agreement, will constitute valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting creditors' rights generally, or
by general equitable principles, and will be in the form contemplated
by, and entitled to the benefits of, the Indenture; and no holder
thereof is or will be subject to personal liability solely by reason of
being such a holder; such Debt Securities are not subject to the
preemptive rights of any stockholder of the Company.
(xi) The Securities and the Indenture conform in all material
respects as to legal matters to the description thereof contained in
the Prospectus and such descriptions conform in all material respects
to the rights set forth in the instruments defining the same.
(xii) The execution and delivery of this Agreement and the
Indenture and the consummation of the transactions contemplated thereby
and in the Prospectus have each been duly and validly authorized by all
necessary action on the part of the Company.
16
(xiii) The Indenture and this Agreement have each been duly
executed and delivered by the Company and, assuming due execution and
delivery by all other parties thereto, each constitutes the valid and
binding agreement of the Company enforceable against the Company in
accordance with its terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting creditors' rights generally, or
by general equitable principles and except with respect to the
enforceability of the indemnification and contribution or governing law
provisions of this Agreement, as to which such counsel need not express
any opinion.
(xiv) No authorization, approval, consent or license of any
government, governmental instrumentality or court, (other than under
the 1933 Act, the 1933 Act Rules, the TIA, and the securities or blue
sky laws of the various states and by-laws and rules of Nasdaq), is
required in connection with the execution, delivery and performance of
this Agreement or the Indenture or the transactions contemplated
therein or in the Prospectus or for the valid authorization, issuance,
sale and delivery of the Securities.
(xv) To such counsel's knowledge, there are no pending or
threatened legal or governmental proceedings, required under the 1933
Act and the 1933 Act Regulations to be described in the Prospectus that
are not described as required, other than litigation incidental to the
business of the Company or the Bank which is, considered in the
aggregate, not material to the Company and its subsidiaries, considered
as one enterprise, and to such counsel's knowledge, there are no
material contracts or documents of a character required to be described
or referred to in the Registration Statement or the Prospectus or to be
filed as exhibits to the Registration Statement that are not described,
referred to or filed as required.
(xvi) The descriptions in the Prospectus of the statutes,
regulations, legal or governmental proceedings, contracts and other
documents therein described conform in all material respects with such
statutes, regulations, legal or governmental proceedings, contracts and
other documents.
(xvii) The statements made in the Prospectus under "Regulation
and Supervision", "Description of the Debentures," "Description of
Capital Stock," and "Federal and State Taxation" to the extent that
they constitute matters of law or legal conclusions, have been reviewed
by such counsel and are correct in all material respects.
(xviii) The execution and delivery of this Agreement and the
Indenture, the issuance and delivery of the Securities, the
consummation by the Company of the transactions contemplated in this
Agreement and the Indenture and compliance by the Company with the
terms of this Agreement and the Indenture do not and will not result in
any violation of the charter or by-laws of the Company or the Bank, and
to such counsel's knowledge do not and will not conflict with, or
result in a breach of any of the terms or provisions of, or constitute
a default under, or result in the creation or
17
imposition of any lien, charge or encumbrance upon any property or
assets of the Company or the Bank under (A) any indenture, mortgage or
loan agreement, or any other agreement or instrument to which the
Company or the Bank is a party or by which it may be bound or to which
any of its properties may be subject (except for such conflicts,
breaches or defaults or liens, charges or encumbrances that would not
have a material adverse effect on the condition (financial or
otherwise), earnings, business affairs or business prospects of the
Company and its subsidiaries, considered as one enterprise), (B) any
existing applicable law, rule or regulation, or (C) any judgment, order
or decree of any government, governmental instrumentality or court,
having jurisdiction over the Company or the Bank or any of its
properties.
(xix) The Registration Statement is effective under the 1933
Act; any required filing of the Prospectus or any supplement thereto
pursuant to Rule 424(b) has been made in the manner and within the time
period required by Rule 424(b); to such counsel's knowledge, no stop
order suspending the effectiveness of the Registration Statement has
been issued and no proceedings for that purpose have been instituted or
are pending or threatened under the 1933 Act.
(xx) The Registration Statement (including the Rule 430A
Information, if applicable) and the Prospectus, excluding the documents
incorporated by reference therein, and each amendment or supplement
thereto (except for the financial statements and other financial or
statistical data included therein or omitted therefrom, as to which
such counsel need express no opinion), as of their respective effective
or issue dates, comply or complied as to form in all material respects
to the applicable requirements of the 1933 Act and the 1933 Act
Regulations.
(xxi) The documents incorporated by reference in the
Prospectus (except for the financial statements and other financial or
statistical data included therein or omitted therefrom, as to which
such counsel need express no opinion, and except to the extent that any
statement therein is modified or superseded in the Prospectus), as of
the dates they were filed with the Commission, complied as to form in
all material respects to the applicable requirements of the 1934 Act
and the 1934 Act Regulations.
(xxii) To such counsel's knowledge, (1) there are no persons
with registration or other similar rights to have any securities of the
Company registered pursuant to the Registration Statement or otherwise
registered by the Company under the 1933 Act, and (2) except as
described in the Prospectus and except for the 1996 Stock Option Plan
of the Company and options to purchase __________ shares of Class A
Common Stock granted under such plan, there are no options, warrants,
calls, convertible securities, employee benefit or other plans,
pre-emptive rights or commitments of any character relating to the
authorized but unissued capital stock of the Company or the Bank.
18
(xxiii) To the best of such counsel's knowledge, the Company
and the Bank each has all material licenses, permits and other
governmental authorizations currently required for the conduct of its
business as presently conducted.
Counsel will supplementally provide a written statement that
such counsel has participated in the preparation of the Registration Statement
and Prospectus and has reviewed the documents incorporated by reference in the
Prospectus and no facts have come to the attention of such counsel to lead it to
believe (A) that the Registration Statement (including the Rule 430A
Information, if applicable) or any amendment thereto (except for the financial
statements and other financial or statistical data included therein or omitted
therefrom, as to which such counsel need express no opinion), at the time the
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 (B) that the Prospectus or any amendment or supplement thereto (except for
the financial statements and other financial or statistical data included
therein or omitted therefrom, as to which such counsel need express no opinion),
at the time the Prospectus was issued, at the time any such amended or
supplemented prospectus was issued or at the Closing Time, 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 or (C) that the
documents incorporated by reference in the Prospectus (except for the financial
statements and other financial or statistical data contained therein or omitted
therefrom, as to which such counsel need express no opinion, and except to the
extent that any statement therein is modified or superseded in the Prospectus),
as of the dates they were filed with the Commission, 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.
In giving such opinion, such counsel may rely, as to all
matters governed by the laws of jurisdictions other than the federal law of the
United States, upon opinions of other counsel, who shall be counsel satisfactory
to counsel for the Representative, in which case the opinion shall state that
counsel believes that you and your counsel are entitled to so rely. Such counsel
may also state that, insofar as such opinion involves factual matters, they have
relied, to the extent they deem proper, upon certificates of officers of the
Company and the Bank and certificates of public officials.
(c) At the Closing Time, the Representative shall have
received the favorable opinion of Xxxxxxx, Spidi, Sloane & Xxxxx, P.C., counsel
for the Representative, dated as of the Closing Time, to the effect that the
opinion delivered pursuant to Section 5(b) hereof appears on its face to be
appropriately responsive to the requirements of this Agreement except,
specifying the same, to the extent waived by the Representative, and with
respect to the incorporation and legal existence of the Company, the Securities,
this Agreement, the Registration Statement, the Prospectus, the documents
incorporated by reference and such other related matters as the Representative
may require. In giving such opinion such counsel may rely, as to all matters
governed by the laws of jurisdictions other than the federal law of the United
19
States, upon the opinions of counsel satisfactory to Xxxxxxx, Spidi, Sloane &
Xxxxx, P.C. as to form and scope and upon which the Representative may
justifiably rely. Such counsel may also state that, insofar as such opinion
involves factual matters, they have relied, to the extent they deem proper, upon
certificates of officers of the Company and the Bank and certificates of public
officials.
(d) At the Closing Time, (i) the Registration Statement and the
Prospectus, as they may then be amended or supplemented, shall contain all
statements that are required to be stated therein under the 1933 Act and the
1933 Act Regulations and in all material respects shall conform to the
requirements of the 1933 Act and the 1933 Act Regulations, the Company shall
have complied in all material respects with Rule 430A (if it shall have elected
to rely thereon) and neither the Registration Statement nor the Prospectus, as
they may then be amended or supplemented, shall 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, (ii) there shall not
have been, since the respective dates as of which information is given in the
Registration Statement, any material adverse change in the condition (financial
or otherwise), earnings, business affairs, assets or business prospects of the
Company and its subsidiaries, considered as one enterprise, whether or not
arising in the ordinary course of business, (iii) no action, suit or proceeding
at law or in equity shall be pending or, to the knowledge of the Company,
threatened against the Company or any subsidiary that would be required to be
set forth in the Prospectus other than as set forth therein and no proceedings
shall be pending or, to the knowledge of the Company, threatened against the
Company or any subsidiary before or by any federal, state or other commission,
board or administrative agency wherein an unfavorable decision, ruling or
finding could reasonably be expected to materially adversely affect the
condition (financial or otherwise), earnings, business affairs, assets or
business prospects of the Company and its subsidiaries, considered as one
enterprise, other than as set forth in the Prospectus, (iv) the Company shall
have complied with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to the Closing Time, (v) the other
representations and warranties of the Company set forth in Section l(a) shall be
accurate in all material respects as though expressly made at and as of the
Closing Time, and (vi) no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceeding for that purpose
been initiated or to the best knowledge of the Company threatened by the
Commission. At the Closing Time, the Representative shall have received a
certificate of the Chairman or the President, and the Chief Financial Officer or
Controller, of the Company, dated as of the Closing Time, to such effect.
(e) At the time that this Agreement is executed by the
Company, you shall have received from KPMG Peat Marwick LLP a letter or letters,
dated such date, in form and substance satisfactory to you, confirming that they
are independent certified public accountants with respect to the Company within
the meaning of the 1933 Act and the published 1933 Act Regulations, and stating
in effect that:
20
With respect to the Company:
(i) in their opinion, the consolidated financial statements as
of December 31, 1996 and 1995, and for each of the years in the three
year period ended December 31, 1996 and the related financial statement
schedules, if any, included or incorporated by reference in the
Registration Statement and the Prospectus and covered by their opinions
included therein comply as to form in all material respects with the
applicable accounting requirements of the 1933 Act and the published
1933 Act Regulations;
(ii) on the basis of procedures (but not an audit in
accordance with generally accepted auditing standards) specified by the
American Institute of Certified Public Accountants for a review of
interim financial information as described in SAS No. 71, INTERIM
FINANCIAL INFORMATION, for the unaudited interim consolidated financial
statements of the Company for the three-month and nine month periods
ended September 30, 1997 and September 30, 1996, including a reading of
comparative unaudited consolidated financial statements of the Company
which are available for periods subsequent to those subject to the SAS
No. 71 review noted above, a reading of the minutes of all meetings of
the stockholders of the Company and the Bank, of the Board of Directors
of the Company and the Bank and of the Audit and Executive Committees
of the Board of Directors of the Bank since October 1, 1997, inquiries
of certain officials of the Company and its subsidiaries responsible
for financial and accounting matters, and such other inquiries and
procedures as may be specified in such letter, nothing came to their
attention that caused them to believe that:
(A) at a specified date not more than three days
prior to the date of this Agreement, there was any increase in
notes or subordinated debentures payable, advances from the
Federal Home Loan Bank, real estate owned, or allowance for
loan losses of the Company and its consolidated subsidiaries
or any decrease in total assets, total deposits or
stockholders' equity of the Company and its consolidated
subsidiaries or any increase in the number of outstanding
shares of capital stock of the Company and its consolidated
subsidiaries, in each case as compared with amounts shown in
the financial statements at September 30, 1997 included in the
Registration Statement; or
(B) for the period from October 1, 1997 to a
specified date not more than three days prior to the date of
this Agreement, there was any decrease in consolidated net
interest income, non-interest income or net income or the
(split-adjusted) total or fully diluted per share amounts of
net income or any increase in the consolidated provision for
loan losses or non-interest expense, in each case as compared
with the comparable period in the preceding year; or
(C) the unaudited consolidated financial statements
included in the Prospectus do not comply as to form in all
material respects with the applicable
21
accounting requirements of the Commission and pursuant to the
1933 Act and the respective published rules and regulations of
the Commission thereunder; or
(D) such unaudited consolidated financial statements
included in the Prospectus are not in conformity with
generally accepted accounting principles ("GAAP") applied on a
basis substantially consistent with that of the audited
consolidated financial statements included in the Prospectus.
(iii) in addition to the procedures referred to in clause (ii)
above, they have performed other specified procedures, not constituting
an audit, with respect to certain amounts, percentages, numerical data
and financial information appearing in the Registration Statement
(including the Summary Financial Information) (having compared such
items with, and have found such items to be in agreement with, the
financial statements of the Company or general accounting records of
the Company, as applicable, which are subject to the Company's internal
accounting controls or other data and schedules prepared by the Company
from such records).
(f) At the Closing Time, the Representative shall have
received from KPMG Peat Marwick LLP letters, in form and substance satisfactory
to the Underwriters and dated as of the Closing Time, to the effect that they
reaffirm the statements made in the letter(s) furnished pursuant to Section
5(e), except that the inquiries specified in Section 5(e) shall be made based
upon the latest available unaudited interim consolidated financial statements
and the specified date referred to shall be a date not more than two days prior
to the Closing Time.
(g) At the Closing Time, counsel for the Representative shall
have been furnished with all such documents, certificates and opinions as they
may request for the purpose of enabling them to pass upon the issuance and sale
of the Securities as contemplated in this Agreement and the matters referred to
in Section 5(c) and in order to evidence the accuracy and completeness of any of
the representations, warranties or statements of the Company, the performance of
any of the covenants of the Company, or the fulfillment of any of the conditions
herein contained; all proceedings taken by the Company at or prior to the
Closing Time in connection with the authorization, issuance and sale of the
Securities as contemplated in this Agreement shall be satisfactory in form and
substance to the Representative and to counsel for the Representative.
(h) Between the date of this Agreement and the Closing Time,
(i) no downgrading shall have occurred in the rating accorded any securities of
the Company or any deposit instruments of the Bank by any "nationally recognized
statistical rating organization," as that term is defined by the Commission for
purposes of Rule 436(g) (2) under the 1933 Act and (ii) no such organization
shall have given any notice of any intended or potential downgrading or of any
surveillance or review, with possible negative implications, of its rating of
any of the Company's securities or any deposit instruments of the Bank.
22
(i) The Company shall have paid, or made arrangements
satisfactory to the Underwriters for the payment of, all such expenses as may be
required by Section 4 hereof.
(j) In the event the Underwriters exercise their option
provided in Section 2 hereof to purchase all or any portion of the Option
Securities, the obligations of the several Underwriters to purchase the Option
Securities that they shall have respectively agreed to purchase shall be subject
to the accuracy of the representations and warranties of the Company contained
herein and of the statements in any certificates furnished by the Company
hereunder as of such Date of Delivery (as if made on such date), to the
performance by the Company of its obligations hereunder and to the receipt by
you on the Date of Delivery of:
(1) A certificate, dated the Date of Delivery, of the
Chairman or the President and the Chief Financial Officer or Controller
of the Company confirming that the certificate delivered on the Closing
Time pursuant to Section 5(d) hereof remains true as of the Date of
Delivery;
(2) The favorable opinion of Xxxxxxx Xxxxxx Xxxxxx
Xxxxxxxx Xxxxxxxx & Xxxxxxxxx, P.A., counsel for the Company, addressed
to you and dated the Date of Delivery, in form satisfactory to Xxxxxxx,
Spidi, Sloane & Xxxxx, P.C., your counsel, relating to the Option
Securities and otherwise to the same effect as the opinion required by
Section 5(b) hereof;
(3) The favorable opinion of Xxxxxxx, Spidi, Sloane &
Xxxxx, P.C., dated the Date of Delivery, relating to the Option Shares
and otherwise to the same effect as the opinion required by Section
5(c) hereof; and
(4) Letters from KPMG Peat Marwick LLP addressed to
the Representative and dated the Date of Delivery, in form and
substance satisfactory to the Representative and substantially the same
in form and substance as the letters furnished to the Representative
pursuant to Section 5(e) hereof.
(k) At the Closing Date, you shall have received an opinion
from counsel to the Trustee, dated the date of its delivery, addressed to you
and in form and substance satisfactory to Representative's counsel, to the
effect that:
(1) the Trustee is a national banking association or
state chartered bank or trust company and is validly existing in good
standing under the laws of the jurisdiction in which it is
incorporated;
(2) the Trustee has the power and authority to enter
into the Indenture and authenticate the Debt Securities as Trustee
under the Indenture;
(3) the Indenture has been duly authorized, executed
and delivered by the Trustee, as Trustee under the Indenture, and the
Indenture is valid and
23
binding on the Trustee in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization
or other similar laws affecting creditors' rights generally or by
equitable principles relating to the availability of remedies; and
(4) the Debt Securities have been duly authenticated
and delivered by the Trustee, as Trustee, under the Indenture.
If any of the conditions specified in this Section 5 shall not
have been fulfilled when and as required by this Agreement to be fulfilled, this
Agreement may be terminated by the Representative on notice to the Company at
any time at or prior to the Closing Time, and such termination shall be without
liability of any party to any other Party, except as provided in Section 4.
Notwithstanding any such termination, the provisions of Sections 7, 8, 9 and 11
shall remain in effect.
Section 6. [INTENTIONALLY LEFT BLANK]
Section 7. INDEMNIFICATION
(a) The Company agrees to indemnify and hold harmless
each Underwriter, officers, directors, employees, agents, and counsel of each
Underwriter, and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20(a) of the 1934 Act, against
any loss, liability, claim, damage, and expense whatsoever (which shall include,
but not be limited to amounts incurred in investigating, preparing, or defending
against any litigation, commenced or threatened, or any claim or investigation
whatsoever and any and all amounts paid in settlement of any claim or
litigation), as and when incurred, arising out of, based upon, or in connection
with (i) any untrue statement or alleged untrue statement of a material fact or
any omission or alleged omission to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, contained in
(A) any Preliminary Prospectus, the Registration Statement, or the Prospectus
(as from time to time amended and supplemented), or any amendment or supplement
thereto or in any document incorporated by reference therein or required to be
delivered with any Preliminary Prospectus or the Prospectus or (B) in any
application or other document or communication (collectively called an
"application") executed by or on behalf of the Company or based upon written
information furnished by or on behalf of the Company filed in any jurisdiction
in order to qualify the Securities under the "blue sky" or securities laws
thereof or filed with the Commission or any securities exchange; unless such
statement or omission or alleged statement or omission was made in reliance upon
and in conformity with written information concerning that Underwriter, the
Underwriting Agreement or the compensation of the Underwriters furnished to the
Company by or on behalf of the Underwriters expressly for inclusion in any
Preliminary Prospectus, the Registration Statement or the Prospectus, or any
amendment or supplement thereto, or in any application, as the case may be, or
(ii) any breach of any representation, warranty, covenant, or agreement of the
Company contained in the Underwriting Agreement. The foregoing indemnification
with respect to any preliminary
24
prospectus shall not inure to the benefit of the Underwriters if the person
asserting any such losses, claims, damages or liabilities purchased Securities
and a copy of the Prospectus (as then amended or supplemented if the Company
shall have furnished any amendments or supplements thereto) was not sent or
given by or on behalf of the Underwriters to such person, if such is required by
law, in connection with the written confirmation of the sale of such Securities
to such person and if the Prospectus (as so amended or supplemented) would have
cured the defect giving rise to such loss, claim, damage or liability, provided,
that the Company delivered the Prospectus, as amended or supplemented, to the
Representative or the Underwriters on a timely basis to permit such delivery or
sending. For purposes of this section, the term "expense" shall include, but not
be limited to, counsel fees and costs, court costs, out-of-pocket costs and
compensation for the time spent by any of the Representative's directors,
officers, employees and counsel according to his or her normal hourly billing
rates. The indemnification provisions shall also extend to all affiliates of any
of the Underwriters, their respective directors, officers, employees, legal
counsel, agents and controlling persons within the meaning of the federal
securities laws. The foregoing agreement to indemnify shall be in addition to
any liability the Company may otherwise have to the Underwriters or the persons
entitled to the benefit of these indemnification provisions.
(b) Each Underwriter severally agrees to indemnify
and hold harmless the Company, its directors, officers who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20(a) of the 1934 Act,
against any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) above, as incurred, but only with respect
to untrue statements or omissions, or alleged untrue statements or omissions,
made in the Registration Statement (or any amendment thereto) or any Preliminary
Prospectus or the Prospectus (or any amendment or supplement thereto) or any
application in reliance upon and in conformity with written information about
that Underwriter, the Underwriting Agreement, or the compensation of that
Underwriter, furnished to the Company by that Underwriter expressly for use in
the Registration Statement (or any amendment thereto) or such Preliminary
Prospectus or the Prospectus (or any amendment or supplement thereto) or in any
application.
(c) An indemnified party shall give prompt notice to
the indemnifying party if any action, suit, proceeding or investigation is
commenced in respect of which indemnity may be sought hereunder, but failure to
so notify an indemnifying party shall not relieve the indemnifying party from
its obligations to indemnify hereunder, except to the extent that the
indemnifying party has been prejudiced in any material respect by such failure.
If it so elects within a reasonable time after receipt of such notice, an
indemnifying party may assume the defense of such action, including the
employment of counsel satisfactory to the indemnified parties and payment of all
expenses of the indemnified party in connection with such action. Such
indemnified party or parties shall have the right to employ its or their own
counsel in any such case, but the fees and expenses of such counsel shall be at
the expense of such indemnified party or parties unless the employment of such
counsel shall have been authorized in writing by the indemnifying party in
connection with the defense of such action or the indemnifying party shall not
have promptly employed counsel satisfactory to such indemnified party or parties
or
25
such indemnified party or parties shall have reasonably concluded that there may
be one or more legal defenses available to it or them or to other indemnified
parties which are different from or additional to those available to one or more
of the indemnifying parties, in any of which events such fees and expenses shall
be borne by the indemnifying party and the indemnifying party shall not have the
right to direct the defense of such action on behalf of the indemnified party or
parties. The Company shall be liable for any settlement of any claim against any
Underwriter (or its directors, officers, employees, affiliates or controlling
persons), made with the Company's written consent, which consent shall not be
unreasonably withheld. The Company shall not, without the written consent of any
Underwriter, settle or compromise any claim against it based upon circumstances
giving rise to an indemnification claim against the Company hereunder unless
such settlement or compromise provides that such Underwriter and the other
indemnified parties shall be unconditionally and irrevocably released from all
liability in respect to such claim.
(d) In order to provide for just and equitable
contribution, if a claim for indemnification pursuant to these indemnification
provisions is made but it is found in a final judgment by a court that such
indemnification may not be enforced in such case, even though the express
provisions hereof provide for indemnification in such case, then the Company, on
the one hand, and the Underwriters, on the other hand, shall contribute to the
amount paid or payable by such indemnified persons as a result of such loss,
liability, claim, damage and expense in such proportion as is appropriate to
reflect the relative benefits received by the Company, on the one hand, and the
Underwriters, on the other hand, from the underwriting, and also the relative
fault of the Company, on the one hand, and the Underwriters, on the other hand,
in connection with the statements, acts or omissions which resulted in such
loss, liability claim, damage and expense, and any other relevant equitable
considerations shall also be considered. No person found liable for a fraudulent
misrepresentation or omission shall be entitled to contribution from any person
who is not also found liable for such fraudulent misrepresentation or omission.
Notwithstanding the foregoing, an Underwriter shall not be obligated to
contribute any amount hereunder that exceeds the amount of the underwriting
discount retained by it applicable to the Securities purchased by that
Underwriter.
(e) The indemnity and contribution agreements
contained herein are in addition to any liability which the Company may
otherwise have to the Underwriters.
(f) Neither termination nor completion of the
engagement of the Underwriters nor any investigation made by or on behalf of the
Underwriters shall effect the indemnification obligations of the Company or the
Underwriters hereunder, which shall remain and continue to be operative and in
full force and effect.
Section 8. [INTENTIONALLY LEFT BLANK]
Section 9. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO
SURVIVE DELIVERY. The representations, warranties, indemnities, agreements and
other statements of the Company or its officers set forth in or made pursuant to
this Agreement will remain operative and in full force
26
and effect regardless of any investigation made by or on behalf of the Company
or any Underwriter or any controlling person and will survive delivery of and
payment for the Securities.
Section 10. TERMINATION OF AGREEMENT.
(a) You may terminate this Agreement, by notice to the
Company, at any time at or prior to the Closing Time (i) if there has been,
since the respective dates as of which information is given in the Registration
Statement, any material adverse change in the condition (financial or
otherwise), earnings, 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, or (ii) if there has occurred any outbreak or
escalation of existing hostilities or other national or international calamity
or crisis the effect of which on the financial markets of the United States is
such as to make it, in the Underwriters' reasonable judgment, impracticable to
market the Securities or enforce contracts for the sale of the Securities, or
(iii) if trading in any securities of the Company has been suspended by the
Commission, the NYSE or Nasdaq or if trading generally on the NYSE or in the
over-the-counter market has been suspended (other than suspensions in trading
generally for less than one trading day) or minimum or maximum prices for
trading have been fixed, or maximum ranges for prices for securities have been
required, by such exchange or by order of the Commission, the NASD or any other
governmental authority with appropriate jurisdiction over such matters, or (iv)
if a banking moratorium has been declared by either federal, Florida
authorities, or (v) if there shall have been such material and substantial
change in the market for securities in general or in political, financial or
economic conditions as in your reasonable judgment makes it inadvisable to
proceed with the Offering, sale and delivery of the Securities on the terms
contemplated by the Prospectus, or (vi) if you reasonably determine (which
determination shall be in good faith) that there has not been satisfactory
disclosure of all relevant financial information relating to the Company in the
Company's disclosure documents and that the sale of the Securities is
unreasonable given such disclosures.
(b) If this Agreement is terminated pursuant to this Section,
such termination shall be without liability of any party to any other party,
except to the extent provided in Section 4. Notwithstanding any such
termination, the provisions of Sections 7 and 9 shall remain in effect.
Section 11. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If one
or more of the Underwriters shall fail at the Closing Time to purchase the
Initial Securities that it or they are obligated to purchase pursuant to this
Agreement (the "Defaulted Securities"), you shall have the right, within 24
hours thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms set forth in this Agreement; if, however, you have not completed such
arrangements within such 24-hour period, then:
27
(a) if the aggregate principal amount of Defaulted
Securities does not exceed 10% of the aggregate principal amount of Initial
Securities, the non-defaulting Underwriters shall be obligated to purchase the
full amount thereof in the proportions that their respective Initial Securities
underwriting obligation proportions bear to the underwriting obligations of all
non-defaulting Underwriters; or
(b) if the aggregate principal amount of Defaulted
Securities exceeds 10% of the aggregate principal amount of Initial Securities,
this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default that does not result in a
termination of this Agreement, either you or the Company shall have the right to
postpone the Closing Time for a period not exceeding seven days in order to
effect any required changes in the Registration Statement or Prospectus or in
any other documents or arrangements. As used herein, the term "Underwriter"
includes any person substituted for an Underwriter under this Section 11.
Section 12. NOTICES. All notices and other communications
under this Agreement shall be in writing and shall be deemed to have been duly
given if delivered, mailed or transmitted by any standard form of
telecommunication. Notices shall be addressed as follows:
If to the Underwriters:
c/o Ryan, Xxxx & Co., Inc.
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxx X. Xxxxxx, Senior Vice President
with a copy to:
Xxxx X. Spidi, Esq.
Xxxxxxx, Spidi, Sloane & Xxxxx, P.C.
Xxx Xxxxxxxx Xxxxxx, Xxxxx 000 Xxxx
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
If to the Company:
BankAtlantic Bancorp, Inc.
0000 Xxxx Xxxxxxx Xxxxxxxxx
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxx, Chief Executive Officer
28
with a copy to:
Xxxxxx X. Xxxxxx, Esq.
Xxxxxxx Xxxxxx Xxxxxx Xxxxxxxx Xxxxxxxx & Xxxxxxxxx, P.A.
000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Section 13. PARTIES. This Agreement herein set forth is made solely
for the benefit of the several Underwriters, the Company and, to the extent
expressed, any person controlling the Company or the Underwriters, and the
directors of the Company, its officers who have signed the Registration
Statement, and their respective executors, administrators, successors and
assigns and subject to the provisions of Section 11, no other person shall
acquire or have any right under or by virtue of this Agreement. The term
"successors and assigns" shall not include any purchaser, as such purchaser,
from the several Underwriters of the Securities. All of the obligations of the
Underwriters hereunder are several and not joint.
Section 14. ARBITRATION. Any claims, controversies, demands,
disputes or differences between or among the parties hereto or any persons bound
hereby arising out of, or by virtue of, or in connection with, or otherwise
relating to this Agreement shall be submitted to and settled by arbitration
conducted in Miami, Florida before one or three arbitrators, each of whom shall
be knowledgeable in the field of securities law and investment banking. Such
arbitration shall otherwise be conducted in accordance with the rules then
obtaining of the American Arbitration Association. The parties hereto agree to
share equally the responsibility for all fees of the arbitrators, abide by any
decision rendered as final and binding, and waive the right to appeal the
decision or otherwise submit the dispute to a court of law for a jury or
non-jury trial. The parties hereto specifically agree that neither party may
appeal or subject to the award or decision of any such arbitrator to appeal or
review in any court of law or in equity or in any other tribunal, arbitration
system or otherwise. Judgment upon any award granted by such arbitrator may be
enforced in any court having jurisdiction thereof.
Section 15. GOVERNING LAW AND TIME. This Agreement shall be
governed by the laws of the State of New Jersey. Specified times of the day
refer to New York City time.
Section 16. COUNTERPARTS. This Agreement may be executed in
one or more counterparts, and when a counterpart has been executed by each
party, all such counterparts taken together shall constitute one and the same
agreement.
Section 17. REPRESENTATION OF UNDERWRITERS. You will act for
the several Underwriters in connection with this financing, and any action under
or in respect of this Agreement taken by you as Representative will be binding
upon all Underwriters.
------------------------
29
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us a counterpart hereof, whereupon this
instrument will become a binding agreement between the Company and the several
Underwriters in accordance with its terms.
Very truly yours,
BANKATLANTIC BANCORP, INC.
By:_________________________
Name: Xxxx X. Xxxxx
Title: Chief Executive Officer
Confirmed and accepted as of
the date first above written:
XXXX, XXXX & CO., INC.
By:_____________________________
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President
FOR ITSELF AND AS REPRESENTATIVE
OF THE OTHER UNDERWRITERS
NAMED IN SCHEDULE A
30
SCHEDULE A
AMOUNT OF PERCENTAGE OF INITIAL
INITIAL DEBT SECURITIES DEBT SECURITIES
UNDERWRITER TO BE PURCHASED TO BE PURCHASED
----------- ----------------------- ---------------------
Xxxx, Xxxx & Co, Inc............................................. %
TOTAL....................................................... $100,000,000 100%
============ ===
31
EXHIBIT A
BANKATLANTIC BANCORP, INC.
(a Florida corporation)
$100,000,000 of _____% Convertible Subordinated Debentures Due 2007
PRICE DETERMINATION AGREEMENT
__________ ____, 1997
XXXX, XXXX & CO., INC.
As Representative of the several Underwriters
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Dear Sirs:
Reference is made to the Underwriting Agreement dated the date hereof
(the "Underwriting Agreement") among BankAtlantic Bancorp, Inc. (the "Company")
and the several Underwriters named in Schedules A and B thereto or hereto (the
"Underwriters") for whom Xxxx, Xxxx & Co. is acting as representative (the
"Representative"). The Underwriting Agreement provides for the purchase by the
Underwriters from the Company, subject to the terms and conditions set forth
therein, of $100.0 million, subject to a $15.0 million adjustment (to cover
over-allotments, if any) up to $115.0 million, in aggregate principal amount of
the _____% Convertible Subordinated Debentures Due 2007 of the Company (the
"Debt Securities"). This Agreement is the Price Determination Agreement referred
to in the Underwriting Agreement.
Pursuant to Section 2 of the Underwriting Agreement, the Company agrees
with the Representative as follows:
1. The public offering price per $1,000 principal amount for
the Debt Securities shall be 100.00% of the principal amount thereof.
1
2. The purchase price for the Debt Securities to be paid by
the Underwriters shall be _____% of the principal amount thereof.
3. The interest rate on the Debt Securities shall be _____%
per annum.
4. The Debt Securities are convertible into shares of Class A
Common Stock of the Company at a conversion price of $_____ per share
(equivalent to a conversion rate of ______ shares per $1,000 principal
amount of Debt Securities).
5. The redemption price for the Debt Securities redeemable at
the option of the Company (expressed as a percentage of principal
amount), if redeemed during the twelve-month period beginning
__________ of the years indicated, shall be:
YEAR PERCENTAGE
---- ----------
%
and Thereafter
The amount payable upon redemption of the Debt Securities
shall include the redemption price shown above, together with accrued
and unpaid interest to the date fixed for redemption.
The Company represents and warrants to each of the Underwriters that
the representations and warranties of the Company set forth in Section 1(a) of
the Underwriting Agreement are accurate as though expressly made at and as of
the date hereof.
As contemplated by Section 2 of the Underwriting Agreement, attached as
Schedule A is a completed list of the several Underwriters, which shall be a
part of the Agreement and the Underwriting Agreement.
This Agreement shall be governed by the laws of the State of New
Jersey.
2
If the foregoing is in accordance with the understanding of the
Representative of the agreement between the Underwriters and the Company, please
sign and return to the Company a counterpart hereof, whereupon this instrument,
along with all counterparts and together with the Underwriting Agreement, shall
be a binding agreement between the Underwriters and the Company in accordance
with its terms and the terms of the Underwriting Agreement.
Very truly yours,
BANKATLANTIC BANCORP, INC.
By: __________________________
Xxxx X. Xxxxx
Chairman of the Board
Chief Executive Officer
Confirmed and accepted as of
the date first above written:
XXXX, XXXX & CO., INC.
By: __________________________
Xxxxx X. Xxxxxx
Senior Vice President
FOR ITSELF AND AS REPRESENTATIVE OF
THE OTHER UNDERWRITERS NAMED IN
SCHEDULE A [ATTACHED TO THE UNDERWRITING AGREEMENT]
3
