Exhibit 1.1
BANK UNITED CORP.
2,000,000 PREMIUM INCOME EQUITY SECURITIES SM ("PIES SM")*
CONSISTING OF 2,000,000 CORPORATE PIES
UNDERWRITING AGREEMENT
August 4, 1999
XXXXXX BROTHERS INC.
Three World Financial Center
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Bank United Corp., a Delaware corporation (the "Company"), confirms its
agreement with Xxxxxx Brothers Inc. (the "Underwriter"), with respect to the
issue and sale by the Company and purchase by the Underwriter of 2,000,000
Premium Income Equity Securities ("PIES") (the "Firm PIES"). In addition, the
Company proposes to grant to the Underwriter an option to purchase up to an
additional 300,000 PIES on the terms and for the purposes set forth in Section 2
(the "Option PIES"). The Firm PIES and the Option PIES, if purchased, are
hereinafter collectively called the "PIES." Capitalized terms used herein
without definition shall be used as defined in the Final Prospectus (as
hereinafter defined).
Each PIES will initially consist of a unit (a "Corporate PIES") comprised
of (a) a stock purchase contract (a "Purchase Contract") under which (i) the
holder will purchase from the Company no later than August 15, 2002, for $50, a
number of shares of common stock, par value $0.01 per share, of the Company (the
"Common Stock"), equal to the Settlement Rate as set forth in the Purchase
Contract Agreement (as hereinafter defined) and (ii) the Company will pay to the
holder contract adjustment payments and (b) a share of the Company's Series B
Preferred Stock, liquidation preference $50 per share (the "Preferred Stock").
In accordance with the terms of a Purchase Contract Agreement (the "Purchase
Contract Agreement") to be entered into between the Company and The First
National Bank of Chicago, as Purchase Contract Agent (the "Purchase Contract
Agent"), the holders of the PIES will pledge the Preferred Stock to The Bank of
New York, as Collateral Agent (the "Collateral Agent"), pursuant to a Pledge
Agreement (the "Pledge Agreement") to be entered into among the Company, the
Purchase Contract Agent, The Bank of New York, as Securities Intermediary (the
"Securities Intermediary"), and the Collateral Agent, to secure the holders'
obligations to purchase Common Stock under the Purchase Contracts.
This is to confirm the agreement concerning the purchase of the PIES by the
Underwriter.
___________________
* "Premium Income Equity Securities" and "PIES" are service marks owned by
Xxxxxx Brokers Inc.
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1. Representations, Warranties and Agreements of the Company. The Company
represents, warrants and agrees that:
(a) A registration statement on Form S-3 (File No. 333-75937) and an
amendment or amendments thereto with respect to the offering and sale of
securities of the Company, including the PIES have (i) been prepared by the
Company in conformity with the requirements of the Securities Act of 1933,
as amended (the "Securities Act"), and the rules and regulations (the
"Rules and Regulations") of the Securities and Exchange Commission (the
"Commission") thereunder, (ii) been filed with the Commission under the
Securities Act and (iii) become effective under the Securities Act. The
registration statement, as amended at the date of this Agreement, meets the
requirements set forth in Rule 415(a)(1)(x) under the Securities Act and
complies in all other material respects with such Rule. The Company
proposes to file with the Commission pursuant to Rule 424(b) under the
Securities Act ("Rule 424(b)") a supplement to the form of prospectus
included in the registration statement relating to the initial offering of
the PIES and the plan of distribution thereof and has previously advised
you of all further information (financial and other) with respect to the
Company to be set forth therein. The term "Registration Statement" means
the registration statement, as amended at the date of this Agreement and as
amended from time to time hereafter, including the exhibits thereto, and
all documents incorporated therein by reference pursuant to Item 12 of Form
S-3 (the "Incorporated Documents"), and the prospectus, in the form in
which it appeared in the Registration Statement at the time the
Registration Statement became effective, including the Incorporated
Documents, is hereinafter referred to as the "Basic Prospectus"; and such
supplemented form of prospectus, in the form in which it shall be filed
with the Commission pursuant to Rule 424(b) (including the Basic Prospectus
as so supplemented), is hereinafter called the "Final Prospectus". The form
of preliminary prospectus included in Amendment No. 1 to the registration
statement as filed with the Commission on July 29, 1999, including the form
of preliminary prospectus supplement dated July 29, 1999 relating to the
PIES which was also included therein, is hereinafter referred to as the
"Preliminary Prospectus". Any reference herein to the Registration
Statement, the Preliminary Prospectus or the Final Prospectus shall be
deemed to refer to and include the Incorporated Documents which were filed
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
on or before the date of this Agreement, the issue date of the Preliminary
Prospectus or the issue date of the Final Prospectus, as the case may be;
and any reference herein to the terms "amend", "amendment" or "supplement"
with respect to the Registration Statement, the Preliminary Prospectus or
the Final Prospectus shall be deemed to refer to and include the filing of
any Incorporated Documents under the Exchange Act after the date of this
Agreement or the issue date of the Basic Prospectus, the Preliminary
Prospectus or the Final Prospectus, as the case may be, and deemed to be
incorporated therein by reference. Copies of the Registration Statement
(including any amendment or amendments to such Registration Statement) have
been delivered by the Company to the Underwriter.
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(b) (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Interim Prospectus or
Final Prospectus complied or will comply when so filed in all material
respects with the Exchange Act and the applicable rules and regulations of
the Commission thereunder, (ii) the Registration Statement, when it became
effective, did not contain and, as amended or supplemented, if applicable,
will not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, (iii) the Preliminary Prospectus
complied and the Registration Statement and the Final Prospectus comply,
and, as amended or supplemented, if applicable, will comply in all material
respects with the Securities Act and the Rules and Regulations and (iv) the
Preliminary Prospectus did not contain and the Final Prospectus does not
contain and, as it may be amended or supplemented, will not contain 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 are made, not misleading; provided that no
representation and warranty is made as to information contained in or
omitted from the Registration Statement, the Preliminary Prospectus or the
Final Prospectus in reliance upon and in conformity with written
information concerning the Underwriter furnished to the Company by the
Underwriter or on behalf of the Underwriter specifically for inclusion
therein; and the Commission has not issued an order preventing or
suspending the use of the Registration Statement, the Preliminary
Prospectus or the Final Prospectus.
(c) The shares of Common Stock to be issued and sold by the Company
pursuant to the Purchase Contracts have been duly and validly authorized
and reserved for issuance and, when issued and delivered in accordance with
the provisions of the Purchase Contracts, will be duly and validly issued,
fully paid and non-assessable and will not be subject to any preemptive
rights of any person.
(d) The Corporate PIES have been duly authorized by the Company, and
when duly executed by the Company (assuming due execution by the Purchase
Contract Agent as attorney-in-fact for the holders thereof and due
authentication by the Purchase Contract Agent) and delivered by the Company
and upon payment therefor as set forth herein, will be duly and validly
issued and outstanding, and will constitute valid and binding obligations
of the Company entitled to the benefits of the Purchase Contract Agreement
and enforceable against the Company in accordance with their terms, except
as the enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or other similar laws affecting the enforcement
of creditors' rights generally or by general equitable principles
(regardless of whether enforcement is considered in a proceeding in equity
or at law) (the "Bankruptcy Exceptions") and an implied covenant of good
faith and fair dealing.
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(e) The shares of Preferred Stock have been duly authorized by the
Company and, when issued and delivered against payment therefor as provided
herein, will be duly and validly issued, fully paid and non-assessable and
will not be subject to any preemptive rights of any person.
(f) The Purchase Contract Agreement has been duly authorized by the
Company and, when duly executed by the proper officers of the Company
(assuming due execution and delivery by the Purchase Contract Agent) and
delivered by the Company, 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 the Bankruptcy
Exceptions and an implied covenant of good faith and fair dealing.
(g) The Pledge Agreement has been duly authorized by the Company and,
when duly executed by the proper officers of the Company (assuming due
execution and delivery by the Purchase Contract Agent, the Securities
Intermediary and the Collateral Agent) and delivered by the Company, 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 the Bankruptcy Exceptions and an implied covenant of good
faith and fair dealing.
(h) This Agreement has been duly authorized, executed and delivered by
the Company; and the Remarketing Agreement (the "Remarketing Agreement") to
be entered into by the Company and Xxxxxx Brothers Inc., as Remarketing
Agent, has been duly authorized by the Company and, when executed and
delivered by the Company, 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 the Bankruptcy
Exceptions and an implied covenant of good faith and fair dealing.
(i) The Corporate PIES, the Preferred Stock, the Common Stock to be
issued and sold pursuant to the Purchase Contracts, the Purchase Contract
Agreement, the Pledge Agreement and the Remarketing Agreement, when the
Corporate PIES are delivered pursuant to this Agreement, will conform to
the descriptions thereof contained in the Final Prospectus.
(j) The accountants who certified the financial statements and any
supporting schedules thereto included or incorporated by reference in the
Registration Statement and the Final Prospectus, and who delivered the
letters referred to in Section 7(g) of this Agreement, are independent
public accountants as required by the Securities Act and the Rules and
Regulations.
(k) Neither the Company nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included or
incorporated by reference
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in the Final Prospectus any loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order
or decree, otherwise than as set forth or contemplated in the Prospectus or
as would not have a material adverse effect on the consolidated financial
position, stockholders' equity, results of operations, business or
prospects of the Company (a "Material Adverse Effect"); and, since such
date there has not been any material change in the capital stock or
long-term debt of the Company or any of its subsidiaries or any material
adverse change, or any development involving a prospective material adverse
change, in or affecting the general affairs, management, financial
position, stockholders' equity or results of operations of the Company and
its subsidiaries, otherwise than as set forth or contemplated in the Final
Prospectus.
(l) The consolidated financial statements included in the Registration
Statement and the Final Prospectus, together with the related schedules and
notes, present fairly in all material respects the consolidated financial
position of the Company and its consolidated subsidiaries at the dates
indicated and the results of operations, changes in stockholders' equity
and cash flows of the Company and its consolidated subsidiaries for the
periods specified; said financial statements have been prepared in
conformity with generally accepted accounting principles ("GAAP") applied
on a consistent basis throughout the periods involved, except as may be
noted therein. The selected financial data and the summary financial
information included in the Final Prospectus present fairly in all material
respects the information shown therein and have been compiled on a basis
consistent with that of the audited financial statements included in the
Registration Statement.
(m) Since the respective dates as of which information is given in the
Registration Statement and the Final Prospectus, except as otherwise stated
therein, (i) there has been no material adverse change in the condition,
financial or otherwise, or in the earnings, stockholders' equity, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course
of business, (ii) there have been no transactions entered into by the
Company or any of its subsidiaries, other than those in the ordinary course
of business, which are material with respect to the Company and its
subsidiaries considered as one enterprise, and (iii) except for regular
quarterly dividends on the Common Stock or on the Series A Preferred Stock
of Bank United (the "Bank") or on the Series B Preferred Stock of the Bank
or on the Common Stock of the Bank in amounts per share that are consistent
with past practice, there has been no dividend or distribution of any kind
declared, paid or made by the Bank or the Company on any class of its
capital stock.
(n) The Company, and each of its subsidiaries including the Bank, has
been duly organized and is validly existing as a corporation or as a
federal savings bank, as the case may be, in good standing under the laws
of its jurisdiction and has all necessary corporate power and authority to
own, lease and operate its properties and to conduct its business as
described in the Final Prospectus; the Company has all
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necessary corporate power and authority to enter into and perform its
obligations under this Agreement, the Purchase Contract Agreement, the
Pledge Agreement and the Remarketing Agreement; and the Company and each of
its subsidiaries is duly qualified as a foreign corporation to transact
business and is in good standing in each other jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to qualify
or to be in good standing would not result in a Material Adverse Effect.
(o) (i) The Bank is the only "significant subsidiary" of the Company (as
such term is defined in Rule 1-02 of Regulation S-X). The only subsidiaries
of the Company other than the Bank are the wholly-owned subsidiaries of the
Bank listed on Schedule 1 hereto which, considered in the aggregate as a
single subsidiary, do not constitute a "significant subsidiary" as defined
in Rule 1-02 of Regulation S-X. The activities of all of the Bank's
subsidiaries are permitted to subsidiaries of a federally chartered savings
bank, the deposits of which are insured by the Savings Association
Insurance Fund ("SAIF"), which is administered by the Federal Deposit
Insurance Corporation (the "FDIC").
(ii) All of the issued and outstanding capital stock of the Bank and
each subsidiary of the Bank has been duly authorized and validly issued, is
fully paid and non-assessable and, except as otherwise disclosed in the
Final Prospectus, and, other than the Series A Preferred Stock of the Bank
and the Series B Preferred Stock of the Bank, is owned by the Company,
directly or through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity; none of the
outstanding shares of capital stock of any subsidiary was issued in
violation of the preemptive or similar rights of any securityholder of such
subsidiary.
(p) The authorized, issued and outstanding capital stock of the
Company is as set forth in the Final Prospectus under the caption
"Capitalization" (except for subsequent issuances, if any, pursuant to
reservations, agreements or employee benefit plans referred to in the Final
Prospectus). The shares of issued and outstanding capital stock have been
duly authorized and validly issued and are fully paid and non-assessable;
none of the outstanding shares of capital stock was issued in violation of
the preemptive or other similar rights of any securityholder of the
Company.
(q) Neither the Company nor any of its subsidiaries is in violation of
its charter or by-laws or in default in the performance or observance of
any obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note, lease
or other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which it or any of them may be bound, or to
which any of the assets, properties or operations of the
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Company or any of its subsidiaries is subject (collectively, "Agreements
and Instruments"), except for such defaults that would not result in a
Material Adverse Effect. The execution, delivery and performance of this
Agreement, the Purchase Contract Agreement, the Pledge Agreement and the
Remarketing Agreement and any other agreement or instrument entered into or
issued or to be entered into or issued by the Company in connection with
the transactions contemplated hereby or thereby and the consummation of the
transactions contemplated herein (including the issuance and sale of the
Corporate PIES, the Preferred Stock and the Common Stock to be issued and
sold pursuant to the Purchase Contract and the use of the proceeds from the
sale of the Corporate PIES as described in the Final Prospectus under the
caption "Use of Proceeds" (collectively, the "Transactions") and compliance
by the Company with its obligations hereunder and thereunder have been duly
authorized by all necessary corporate action and do not and will not,
whether with or without the giving of notice or passage of time or both,
conflict with or constitute a breach of, or default or Repayment Event (as
defined below) under, or result in the creation or imposition of any lien,
charge or encumbrance upon any assets, properties or operations of the
Company or any of its subsidiaries pursuant to, any Agreements and
Instruments (except for such conflicts, breaches or defaults or liens,
charges or encumbrances that would not result in a Material Adverse
Effect), nor will such action result in any violation of the provisions of
the charter or by-laws of the Company or any of its subsidiaries or (except
for such violations that would not result in a Material Adverse Effect) any
applicable law, statute, rule, regulation, judgment, order, writ or decree
of any government, government instrumentality or court, domestic or
foreign, having jurisdiction over the Company or any of its subsidiaries or
any of their assets, properties or operations. As used herein, a "Repayment
Event" means any event or condition which gives the holder of any note,
debenture or other evidence of indebtedness (or any person acting on such
holder's behalf) the right to require (whether with or without the giving
of notice or passage of time or both) the repurchase, redemption or
repayment of all or a portion of such indebtedness by the Company or any of
its subsidiaries.
(r) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent, and the
Company is not aware of any existing or imminent labor disturbance by the
employees of any of its or any subsidiary's principal suppliers,
manufacturers, customers or contractors, which, in either case, may
reasonably be expected to result in a Material Adverse Effect.
(s) There is no action, suit, proceeding, inquiry or investigation
before or brought by any court or governmental agency or body, domestic or
foreign, now pending, or, to the knowledge of the Company, threatened,
against or affecting the Company or any of its subsidiaries, which
individually or in the aggregate for all such actions, suits, proceedings,
inquiries or investigations is required to be disclosed in the Registration
Statement (other than as disclosed therein), or which might
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reasonably be expected to result in a Material Adverse Effect, or which
might reasonably be expected to materially and adversely affect the
consummation of the Transactions or the performance by the Company of its
obligations hereunder and thereunder; the aggregate of all pending legal or
governmental proceedings to which the Company or any of its subsidiaries is
a party or of which any of their respective property or assets is the
subject which are not described in the Registration Statement, including
ordinary routine litigation incidental to the business of the Company or
any of its subsidiaries, could not reasonably be expected to result in a
Material Adverse Effect. Neither the Company nor any of its subsidiaries is
a party to any written agreement or memorandum of understanding with, or
commitment letter or similar undertaking to, or subject to any order or
directive issued by, or a recipient of any extraordinary supervisory letter
from, or has adopted any board resolutions at the request of, any federal
or state government agency or authority with responsibility for the
supervision or regulation of depository institutions or their holding
companies or the insurance of deposits, which in any such case materially
restricts the conduct of its business or in any manner relates to its
capital adequacy, its credit policies or its management, nor has the
Company or any of its subsidiaries been advised by any such regulatory
authority that it is contemplating issuing or requesting any such order,
decree, written agreement, memorandum of understanding, extraordinary
supervisory letter, commitment letter or similar undertakings or board
resolutions.
(t) There are no contracts or documents which are required to be
described in the Registration Statement, the Final Prospectus or the
documents incorporated by reference therein or to be filed as exhibits
thereto which have not been so described and filed as required.
(u) The Company and its subsidiaries own or possess, or can acquire on
reasonable terms, adequate patents, patent rights, licenses, inventions,
copyrights, know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks, trade names or other intellectual
property (collectively, "Intellectual Property") necessary to carry on the
business now operated by them, and neither the Company nor any of its
subsidiaries has received any notice or is otherwise aware of any
infringement of or conflict with asserted rights of others with respect to
any Intellectual Property or of any facts or circumstances which would
render any Intellectual Property invalid or inadequate to protect the
interest of the Company or any of its subsidiaries therein, and which
infringement or conflict (if the subject of any unfavorable decision,
ruling or finding) or invalidity or inadequacy, singly or in the aggregate,
would result in a Material Adverse Effect.
(v) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency, including, without limitation, the OTS and the FDIC,
is necessary or
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required for the due authorization, execution and delivery by the Company
of this Agreement or for the performance by the Company of the
Transactions, except such as have been already obtained or will have been
obtained or made prior to the Closing Date (as defined below) or as may be
required under the Securities Act or the Rules and Regulations or state
securities laws.
(w) The Company and its subsidiaries possess such permits, licenses,
approvals, consents and other authorizations (collectively, "Governmental
Licenses") issued by the appropriate federal, state, local or foreign
regulatory agencies or bodies necessary to conduct the business now
operated by them; the Company and its subsidiaries are in compliance with
the terms and conditions of all such Governmental Licenses, except where
the failure so to comply would not, singly or in the aggregate, have a
Material Adverse Effect; all of the Governmental Licenses are valid and in
full force and effect, except when the invalidity of such Governmental
Licenses or the failure of such Governmental Licenses to be in full force
and effect would not have a Material Adverse Effect; and neither the
Company nor any of its subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such Governmental
Licenses which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would result in a Material Adverse
Effect.
(x) The Company and its subsidiaries have good and marketable title to
all real, tangible and intangible property reflected in the most recent
balance sheet included in the Final Prospectus as owned by the Company and
its subsidiaries and good title to all other properties reflected in the
most recent balance sheet included in the Final Prospectus as owned by
them, in each case, free and clear of all mortgages, pledges, liens,
security interests, claims, restrictions or encumbrances of any kind except
such as (i) are described in the Final Prospectus or (ii) do not, singly or
in the aggregate, materially affect the value of such property and do not
interfere with the use made and proposed to be made of such property by the
Company or any of its subsidiaries; or, with respect to any such real
property, render title unmarketable as to a material part thereof and all
of the leases and subleases material to the business of the Company and its
subsidiaries, considered as one enterprise, and under which the Company or
any of its subsidiaries holds properties described in the Final Prospectus,
are in full force and effect, and neither the Company nor any subsidiary
has any notice of any material claim of any sort that has been asserted by
anyone adverse to the rights of the Company or any subsidiary under any of
the leases or subleases mentioned above, or affecting or questioning the
rights of the Company or such subsidiary to the continued possession of the
leased or subleased premises under any such lease or sublease.
(y) The Company is not, and upon the issuance and sale of the PIES as
herein contemplated and the application of the net proceeds therefrom as
described
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in the Final Prospectus will not be, an "investment company" within the
meaning of the Investment Company Act of 1940, as amended (the "1940 Act").
(z) Except as described in the Final Prospectus, and except as would
not, singly or in the aggregate, result in a Material Adverse Effect, (A)
neither the Company nor any of its subsidiaries is in violation of any
federal, state, local or foreign statute, law, rule, regulation, ordinance,
code, policy or rule of common law or any judicial or administrative
interpretation thereof including any judicial or administrative order,
consent, decree or judgment, relating to pollution or protection of human
health, the environment (including, without limitation, ambient air,
surface water, groundwater, land surface or subsurface strata) or wildlife,
including, without limitation, laws and regulations relating to the release
or threatened release of chemicals, pollutants, contaminants, wastes, toxic
substances, hazardous substances, petroleum or petroleum products
(collectively, "Hazardous Materials") or to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
Hazardous Materials (collectively, "Environmental Laws"), (B) the Company
and its subsidiaries have all permits, authorizations and approvals
required under any applicable Environmental Laws and are each in compliance
with their requirements, (C) there are no pending or, to the knowledge of
the Company, threatened administrative, regulatory or judicial actions,
suits, demands, demand letters, claims, liens, notices of noncompliance or
violation, investigation or proceedings relating to any Environmental Law
against the Company or any of its subsidiaries and (D) to the knowledge of
the Company, there are no events or circumstances that might reasonably be
expected to form the basis of an order for clean-up or remediation, or an
action, suit or proceeding by any private party or governmental body or
agency, against or affecting the Company or any of its subsidiaries
relating to Hazardous Materials or any Environmental Laws.
(aa) Except as described in the Registration Statement or as set forth
in any document or agreement described in the Registration Statement as
containing such rights, there are no persons with registration rights or
other similar rights to have any securities registered pursuant to the
Registration Statement or otherwise registered by the Company or the Bank,
under the Securities Act or otherwise.
(ab) Each of the Company and the Bank maintains a system of internal
accounting controls sufficient to provide reasonable assurances that (i)
transactions are executed in accordance with management's general or
specific authorization; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with GAAP and to
maintain accountability for assets; (iii) access to assets is permitted
only in accordance with management's general or specific authorization; and
(iv) the recorded accountability for assets is compared with existing
assets at reasonable intervals and appropriate action is taken with respect
to any differences.
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(ac) To the knowledge of the Company, neither the Company, the Bank
nor any employee or agent of the Company or the Bank has made any payment
of funds of the Company or the Bank or received or retained any funds in
violation of any law, rule or regulation, which payment, receipt or
retention of funds is of a character required to be disclosed in the Final
Prospectus.
(ad) Each of the Company and the Bank has filed all tax returns
required to be filed, which returns are complete and correct in all
material respects, and each of the Company and the Bank is not in default
in the payment of any taxes which were payable pursuant to said returns or
any assessments with respect thereto.
(ae) In the event the Company shall become either directly or
indirectly a bank holding company for purposes of the Bank Holding Company
Act of 1956, as amended (the "BHC Act") and the rules and regulations of
the Board of Governors of the Federal Reserve System thereunder (the "BHC
Rules"), the current activities of the Company and its subsidiaries (as
defined in the BHC Rules) would be activities permissible for a bank
holding company under the BHC Act and the BHC Rules.
(af) The Company has not taken and will not take, directly or
indirectly, any action designed to, or that might be reasonably expected
to, cause or result in stabilization or manipulation of the price of the
PIES.
(ag) The Company has satisfied the conditions for use of Form S-3, as
set forth in the General Instructions thereto.
2. Purchase of the PIES by the Underwriter. On the basis of the
representations and warranties contained in, and subject to the terms and
conditions of, this Agreement, the Company agrees to sell 2,000,000 Firm PIES to
the Underwriter and the Underwriter agrees to purchase 2,000,000 Firm PIES.
In addition, the Company grants to the Underwriter an option to purchase up
to 300,000 Option PIES. Such option is granted solely for the purpose of
covering over-allotments in the sale of the Firm PIES and is exercisable as
provided in Section 4 hereof.
The price of both the Firm PIES and any Option PIES shall be $48.50 per
PIES.
The Company shall not be obligated to deliver any of the PIES to be
delivered on the First Delivery Date (as hereinafter defined) or the Second
Delivery Date (as hereinafter defined), as the case may be, except upon payment
for all the PIES to be purchased on such Delivery Date as provided herein.
3. Offering of PIES by the Underwriter. The Underwriter proposes to offer
the Firm PIES for sale upon the terms and conditions set forth in the Final
Prospectus.
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4. Delivery of and Payment for the PIES. Delivery of and payment for the
PIES shall be made at the office of Xxxxxxx Xxxxxxx & Xxxxxxxx at 000 Xxxxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx, at 8:30 A.M., New York City time, on the third full
business day following the date of this Agreement (unless the sale of the PIES
hereunder has been priced after 4:30 p.m. Eastern time on the date of this
Agreement, in which case the fourth full business day following the date of this
Agreement) or at such other date or place as shall be determined by agreement
between the Underwriter and the Company. This date and time are sometimes
referred to as the "First Delivery Date." On the First Delivery Date, the
Company, through the facilities of The Depository Trust Company ("DTC"), shall
deliver or cause to be delivered a securities entitlement with respect to the
Firm PIES to the Underwriter against payment to or upon the order of the Company
of the purchase price by wire transfer of same-day funds to a bank account
designated by the Company. Time shall be of the essence, and delivery at the
time and place specified pursuant to this Agreement is a further condition of
the obligation of the Underwriter hereunder. Upon delivery, the Firm PIES shall
be registered in the name of Cede & Co., as nominee for DTC.
At any time on or before the thirtieth day after the date of this Agreement
the option granted in Section 2 may be exercised by written notice being given
to the Company by the Underwriter. Such notice shall set forth the aggregate
number of Option PIES as to which the option is being exercised, the names in
which the Option PIES are to be registered, the denominations in which the
Option PIES are to be issued and the date and time, as determined by the
Underwriter, when the Option PIES are to be delivered; provided, however, that
this date and time shall not be earlier than the First Delivery Date nor earlier
than the second business day after the date on which the option shall have been
exercised nor later than the fifth business day after the date on which the
option shall have been exercised. The date and time the Option PIES are
delivered are sometimes referred to as the "Second Delivery Date" and the First
Delivery Date and the Second Delivery Date are sometimes each referred to as a
"Delivery Date".
Delivery of and payment for the Option PIES shall be made at the place
specified in the first sentence of the first paragraph of this Section 4 (or at
such other place as shall be determined by agreement between the Underwriter and
the Company) at 8:30 A.M., New York City time, on the Second Delivery Date. On
the Second Delivery Date, the Company, through the facilities of DTC, shall
deliver or cause to be delivered a securities entitlement with respect to the
Option PIES to the Underwriter against payment to or upon the order of the
Company of the purchase price by wire transfer of same-day funds to a bank
account designated by the Company. Time shall be of the essence, and delivery at
the time and place specified pursuant to this Agreement is a further condition
of the obligation of the Underwriter hereunder. Upon delivery, the Option PIES
shall be registered in the name of Cede & Co., as nominee of DTC.
The Preferred Stock underlying the PIES will be pledged with the Collateral
Agent to secure the holders' obligations to purchase Common Stock under the
Purchase Contracts. Such pledge shall be effected by the transfer to the
Securities Intermediary of the Preferred Stock to be pledged to the Collateral
Agent in accordance with the Pledge Agreement.
13
5. Further Agreements of the Company. The Company agrees:
(a) To prepare the Final Prospectus in a form approved by the
Underwriter and to file such Prospectus pursuant to Rule 424(b) under the
Securities Act not later than the Commission's close of business on the
second business day following the execution and delivery of this Agreement;
to make no further amendment or any supplement to the Registration
Statement or the Final Prospectus except as permitted herein; to advise the
Underwriter, promptly after it receives notice thereof, of the time when
any amendment to the Registration Statement has been filed or becomes
effective or any supplement to the Final Prospectus or any amended Final
Prospectus has been filed and to furnish the Underwriter with copies
thereof; to timely file all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission pursuant
to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the
date of the Final Prospectus and for so long as the delivery of a
prospectus is required in connection with the offering or sale of the PIES;
to advise the Underwriter, promptly after it receives notice thereof, of
the issuance by the Commission of any stop order or of any order preventing
or suspending the use of the Final Prospectus, of the suspension of the
qualification of the PIES for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such purpose, or of any
request by the Commission for the amending or supplementing of the
Registration Statement or the Final Prospectus or for additional
information; and, in the event of the issuance of any stop order or of any
order preventing or suspending the use of the Final Prospectus or
suspending any such qualification, to use promptly its best efforts to
obtain its withdrawal.
(b) To furnish promptly to the Underwriter and to counsel for the
Underwriter a signed copy of the Registration Statement as originally filed
with the Commission, and each amendment thereto filed with the Commission,
including all consents and exhibits filed therewith.
(c) To deliver promptly to the Underwriter such number of the
following documents as the Underwriter shall reasonably request: ()
conformed copies of the Registration Statement as originally filed with the
Commission and each amendment thereto (in each case excluding exhibits
other than this Agreement, the Purchase Contract Agreement, the Pledge
Agreement and the Remarketing Agreement) and, () the Final Prospectus (not
later than 5:00 P.M., New York City time, of the day following the
execution and delivery of this Agreement) and any amended or supplemented
Final Prospectus (not later than 5:00 P.M., New York City time, on the day
following the date of such amendment or supplement) and () any document
incorporated by reference in the Preliminary Prospectus or Final Prospectus
(excluding exhibits thereto); and, if the delivery of a prospectus is
required at any time after the date hereof in connection with the offering
or sale of the PIES (or any other securities relating thereto) and if at
such time any event shall have occurred as a result of which the Final
Prospectus as then amended or supplemented would
14
include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made when the Final
Prospectus is delivered, not misleading, or, if for any other reason it
shall be necessary during such same period to amend or supplement the Final
Prospectus or to file under the Exchange Act any document incorporated by
reference in the Final Prospectus in order to comply with the Securities
Act or the Exchange Act, to notify the Underwriter and, upon its request,
to prepare and to file such amendment, supplement or document, to cause any
amendment of the Registration Statement containing an amended Final
Prospectus to be made effective as soon as possible and to prepare and
furnish without charge to the Underwriter and to any dealer in securities
as many copies as the Underwriter may from time to time reasonably request
of an amended or supplemented Final Prospectus which will correct such
statement or omission or effect such compliance.
(d) To file promptly with the Commission any amendment to the
Registration Statement or the Final Prospectus or any supplement to the
Final Prospectus that may, in the judgment of the Company or the
Underwriter, be required by the Securities Act or requested by the
Commission.
(e) Prior to filing with the Commission any amendment to the
Registration Statement or supplement to the Final Prospectus, including any
document incorporated by reference in the Final Prospectus, to furnish a
copy thereof to the Underwriter and counsel for the Underwriter and obtain
the consent of the Underwriter to the filing.
(f) Timely file such reports pursuant to the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), as are necessary in order to make
generally available to its securityholders as soon as practicable an
earnings statement for the purposes of, and to provide the benefits
contemplated by, the last paragraph of Section 11(a) of the Securities Act.
(g) For a period of five years following the effective date of the
Registration Statement, to furnish to the Underwriter copies of all
materials furnished by the Company to its shareholders and all public
reports and all reports and financial statements furnished by the Company
to the principal national securities exchange upon which the Company's
common stock or the PIES may be listed pursuant to requirements of or
agreements with such exchange or to the Commission pursuant to the Exchange
Act or any rule or regulation of the Commission thereunder.
(h) Promptly from time to time to take such action as the Underwriter
may reasonably request to qualify the Preferred Stock, the Purchase
Contracts, the Common Stock and the Corporate PIES for offering and sale
under the securities laws of such jurisdictions as the Underwriter may
request and to comply with such laws so as to permit the continuance of
sales and dealings therein in such
15
jurisdictions for as long as may be necessary to complete the distribution
of the Preferred Stock, the Purchase Contracts, the Common Stock and the
Corporate PIES; provided that in connection therewith, the Company shall
not be required to qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction.
(i) For a period of 90 days from the date of the Final Prospectus, not
to, directly or indirectly, offer for sale, pledge, sell, contract to sell,
sell any option or contract to purchase, purchase any option or contract to
sell, grant any option, right or warrant to purchase or otherwise transfer
or dispose of or otherwise dispose of (or enter into any transaction or
device which is designed to, or could be expected to, result in the
disposition or purchase by any person at any time in the future of) or file
any registration statement under the Securities Act with respect to, any
PIES, common stock, purchase contracts or preferred stock of any series
other than the series of preferred stock of the Company which is the
subject of a concurrent offering described in the Final Prospectus, or any
securities of the Company similar to the PIES, purchase contracts or
preferred stock of any such series (other than (i) the PIES offered hereby,
(ii) Treasury PIES or Corporate PIES that may be created or recreated upon
substitution of pledged securities or common stock issuable upon early
settlement of the Corporate PIES or Treasury PIES, (iii) shares of common
stock, or options to purchase shares of common stock, issued in a merger
involving the Company or in connection with an acquisition transaction,
(iv) shares of common stock issued, or options to purchase shares of common
stock granted pursuant to employee benefit plans existing on the date
hereof or (v) shares of common stock issued under any non-employee director
stock plan or dividend reinvestment plan), without the prior written
consent of the Underwriter.
(j) To use its best efforts to complete the (i) listing of the
Corporate PIES on the New York Stock Exchange, Inc., subject only to
official notice of issuance and evidence of satisfactory distribution and
(ii) listing or quotation of the Common Stock to be issued and sold
pursuant to the Purchase Contracts on the exchange or quotation system on
which the Company's Common Stock is listed or quoted at the time of such
issuance and sale.
(k) To use the net proceeds received by it from the sale of the PIES
pursuant to this Agreement in the manner specified in the Final Prospectus
under the caption "Use of Proceeds."
6. Expenses. The Company agrees to pay (a) the fees, disbursements and
expenses of the Company's counsel and accountants in connection with the
registration of the PIES under the Securities Act and all other expenses in
connection with the preparation, printing and filing of the Registration
Statement, the Preliminary Prospectus and the Final Prospectus and amendments
and supplements thereto; (b) the costs incident to the authorization, issuance,
sale and delivery of the Preferred Stock, Purchase Contracts, Common Stock to be
issued and sold pursuant to the Purchase
16
Contracts and PIES and any taxes payable in connection therewith; (c) the
costs incident to the preparation, printing and filing under the Securities
Act of the Registration Statement and any amendments and exhibits thereto;
(d) the costs of distributing the Registration Statement as originally
filed and each amendment thereto and any post-effective amendments thereof
(including, in each case, exhibits), the Preliminary Prospectus, the Final
Prospectus and any amendment or supplement to any such prospectus or any
document incorporated by reference therein, all as provided in this
Agreement; (e) the costs of reproducing and distributing this Agreement and
any other related documents in delivery of the PIES; (f) any applicable
listing or other fees; (g) the fees and expenses of qualifying the
Preferred Stock, Purchase Contracts, Common Stock and PIES under the
securities laws of the several jurisdictions as provided in Section 5(h)
and of preparing, printing and distributing a Blue Sky Memorandum
(including related fees and expenses of counsel to the Underwriter); (h)
the filing fees and any expenses of legal counsel incident to any required
review by the National Association of Securities Dealers, Inc. of the terms
of the sale of the PIES; (i) any fees charged by securities rating services
for rating the PIES (or any related security); (j) the fees and expenses of
the Purchase Contract Agent, the Collateral Agent, the Securities
Intermediary and their respective counsel; (k) any transfer taxes payable
in connection with the sale of the PIES to the Underwriter; and (l) all
other costs and expenses incident to the performance of the obligations of
the Company under this Agreement; provided that, except as provided in this
Section 6, the Underwriter shall pay its own costs and expenses, including
the costs and expenses of its counsel, any transfer taxes on the PIES which
it may sell and the expenses of advertising any offering of the PIES made
by the Underwriter.
7. Conditions of Underwriter's Obligations. The obligations of the
Underwriter hereunder are subject to the accuracy, when made and on each
Delivery Date, of the representations and warranties of the Company contained
herein or in certificates of any officer of the Company or any subsidiary of the
Company delivered pursuant to the provisions hereof, to the performance by the
Company of its covenants and other obligations hereunder, and to each of the
following additional terms and conditions:
(a) As of each Delivery Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued under
the Securities Act, and no proceedings for that purpose shall have been
instituted or be pending or threatened by the Commission, and any request
on the part of the Commission for additional information shall have been
complied with. The Final Prospectus shall have been filed with the
Commission in accordance with Section 5(a) hereof.
(b) On each Delivery Date, the Underwriter shall have received the
favorable opinion, dated as of such Delivery Date, of Wachtell, Lipton,
Xxxxx & Xxxx, counsel for the Company, in form and substance satisfactory
to counsel for the Underwriter to the effect set forth in Exhibit A hereto.
(c) On each Delivery Date, the Underwriter shall have received the
favorable opinion, dated as of such Delivery Date, of Xxxxxxxx X. Xxxxxxx,
Esq., General Counsel for
17
the Company, in form and substance satisfactory to counsel for the
Underwriter, to the effect set forth in Exhibit B hereto.
(d) On each Delivery Date, the Underwriter shall have received the
favorable opinion, dated as of such Delivery Date, of Xxxxxxx Xxxxxxx &
Xxxxxxxx, counsel for the Underwriter, with respect to the Registration
Statement, Final Prospectus, the validity of the Preferred Stock, Purchase
Contract, Common Stock to be issued pursuant to the Purchase Contracts and
other related matters as the Underwriter may reasonably request.
(e) The Law Department of Bank One Corporation shall have furnished to
the Underwriter its written opinion, as counsel to The First National Bank
of Chicago, as Purchase Contract Agent, dated such Delivery Date, in form
and substance satisfactory to counsel for the Underwriter, to the effect
that:
(i) The Purchase Contract Agent is duly incorporated as a
national banking corporation with all necessary power and authority to
execute, deliver and perform its obligations under the Purchase
Contract Agreement and the Pledge Agreement.
(ii) The execution, delivery and performance by the Purchase
Contract Agent of the Purchase Contract Agreement and the Pledge
Agreement, and the authentication and delivery of the PIES, have been
duly authorized by all necessary corporate action on the part of the
Purchase Contract Agent. The Purchase Contract Agreement and the
Pledge Agreement have been duly executed and delivered by the Purchase
Contract Agent, and constitute the valid and binding agreements of the
Purchase Contract Agent, enforceable against the Purchase Contract
Agent in accordance with their terms, except as the enforcement
thereof may be limited by the Bankruptcy Exceptions and an implied
covenant of good faith and fair dealing.
(iii)The execution, delivery and performance of the Purchase
Contract Agreement and the Pledge Agreement by the Purchase Contract
Agent does not conflict with or constitute a breach of the charter or
by-laws of the Purchase Contract Agent.
(iv) No consent, approval or authorization of, or registration
with or notice to, any state or federal governmental authority or
agency is required for the execution, delivery or performance by the
Purchase Contract Agent of the Purchase Contract Agreement and the
Pledge Agreement.
(f) The Underwriter shall not have discovered and promptly disclosed
to the Company on or prior to such Delivery Date that the Registration
Statement or the Final Prospectus or any amendment or supplement thereto
contains any untrue statement of a fact which, in the opinion of Xxxxxxx
Xxxxxxx & Xxxxxxxx, counsel for the Underwriter, is material or omits to
state any fact which, in the opinion of such counsel, is material and (i)
is required to be stated therein or (ii) is necessary to make the
statements therein not misleading.
18
(g) All corporate proceedings and other legal matters incident to the
authorization, form and validity of this Agreement, the Purchase Contract
Agreement, the Pledge Agreement, the Remarketing Agreement, the Purchase
Contracts, the Common Stock to be issues and sold pursuant to the Purchase
Contracts, the Registration Statement and the Final Prospectus, and all
other legal matters relating to this Agreement and the transactions
contemplated hereby, shall be reasonably satisfactory in all material
respects to counsel for the Underwriter, and the Company shall have
furnished to such counsel all documents and information that they may
reasonably request to enable them to pass upon such matters.
(h) At the time of execution of this Agreement, the Underwriter shall
have received letters from each of Deloitte & Touche LLP and KPMG Peat
Marwick LLP, in form and substance satisfactory to the Underwriter,
addressed to the Underwriter and dated the date hereof (i) confirming that
they are independent public accountants within the meaning of the
Securities Act and are in compliance with the applicable requirements
relating to the qualification of accountants under Rule 2-01 of Regulation
S-X of the Commission, (ii) stating, as of the date hereof (or, with
respect to matters involving changes or developments since the respective
dates as of which specified financial information is given in the Final
Prospectus, as of a date not more than five days prior to the date hereof),
the conclusions and findings of such firm with respect to the financial
information and other matters ordinarily covered by accountants' "comfort
letters" to underwriters in connection with registered public offerings.
(i) With respect to the letters of Deloitte & Touche LLP and of KPMG
Peat Marwick LLP referred to in the preceding paragraph and delivered to
the Underwriter concurrently with the execution of this Agreement (the
"initial letters"), the Company shall have furnished to the Underwriter
letters (the "bring-down letters") of such accountants, addressed to the
Underwriter and dated as of such Delivery Date confirming in all material
respects the conclusions and findings set forth in the initial letter.
(j) The Company shall have furnished to the Underwriter a certificate,
dated such Delivery Date, of its Chairman of the Board or its President and
its chief financial officer stating that:
(i) The representations, warranties and agreements of the Company in
Section 1 are true and correct as of such Delivery Date; the Company has
complied with all its agreements contained herein; and the conditions set
forth in Section 7(a) have been fulfilled;
(ii) They have carefully examined the Registration Statement and the
Final Prospectus and, in their opinion (A) the Registration Statement and
the Final Prospectus, as of such Delivery Date, did not include any untrue
statement of a material fact and did not omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading, and (B) since the date of this Agreement, no event has
occurred which should have been set forth in a supplement or amendment to
the Registration Statement or the Final Prospectus.
19
(k) On each Delivery Date, counsel for the Underwriter shall have been
furnished with such documents as they may require for the purpose of
enabling them to pass upon the issuance and sale of the PIES as herein
contemplated, or other legal matters incident to the authorization, form
and validity of this Agreement, the Purchase Contract Agreement, the Pledge
Agreement, the Remarketing Agreement, the Purchase Contracts, the Common
Stock to be issued and sold pursuant to the Purchase Contracts, the
Registration Statement, the Preliminary Prospectus and the Final Prospectus
or in order to evidence the accuracy of any of the representations or
warranties, or the fulfillment of any of the conditions, herein contained,
and all proceedings taken by the Company in connection with the issuance
and sale of the PIES as herein contemplated shall be satisfactory in form
and substance to the Underwriter and counsel for the Underwriter.
(l) There shall not have been, since the date hereof or since the
respective dates as of which information is given in the Final Prospectus,
any material adverse change in the condition, financial or otherwise, or in
the consolidated financial position, stockholders' equity, results of
operations, business or prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course
of business.
(m) Subsequent to the execution and delivery of this Agreement (i) no
downgrading shall have occurred in the rating accorded the Company's or any
significant subsidiary's debt securities or preferred stock by any
"nationally recognized statistical rating organization", as that term is
defined by the Commission for purposes of Rule 436(g)(2) of the Rules and
Regulations and (ii) no such organization shall have publicly announced
that it has under surveillance or review, with possible negative
implications, its rating of any of the Company's or any significant
subsidiary's debt securities or preferred stock.
(n) Subsequent to the execution and delivery of this Agreement there
shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange or the American Stock Exchange or
in the over-the-counter market, or trading in any securities of the Company
on any exchange or in the over-the-counter market, shall have been
suspended or minimum prices shall have been established on any such
exchange or such market by the Commission, by such exchange or by any other
regulatory body or governmental authority having jurisdiction, (ii) a
banking moratorium shall have been declared by Federal or state
authorities, (iii) the United States shall have become engaged in
hostilities, there shall have been an escalation in hostilities involving
the United States or there shall have been a declaration of a national
emergency or war by the United States or (iv) there shall have occurred
such a material adverse change in general economic, political or financial
conditions (or the effect of international conditions on the financial
markets in the United States shall be such) as to make it, in the judgment
of the Underwriter, impracticable or inadvisable to proceed with the public
offering or delivery of the PIES on the terms and in the manner
contemplated in the Final Prospectus.
(o) The New York Stock Exchange, Inc. shall have approved the
Corporate PIES for listing, subject only to official notice of issuance.
20
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriter.
8. Indemnification and Contribution
(a) The Company shall indemnify and hold harmless the Underwriter, its
officers and employees and each person, if any, who controls the Underwriter
within the meaning of the Securities Act, from and against any loss, claim,
damage or liability, joint or several, or any action in respect thereof
(including, but not limited to, any loss, claim, damage, liability or action
relating to purchases and sales of the PIES), to which the Underwriter, officer,
employee or controlling person may become subject, under the Securities Act or
otherwise, insofar as such loss, claim, damage, liability or action arises out
of, or is based upon, (i) any untrue statement or alleged untrue statement of a
material fact contained (A) in the Registration Statement, the Preliminary
Prospectus or the Final Prospectus, or in any amendment or supplement thereto,
or (B) in any blue sky application or other document prepared or executed by the
Company (or based upon any written information furnished by the Company)
specifically for the purpose of qualifying any or all of the PIES under the
securities laws of any state or other jurisdiction (any such application,
document or information being hereinafter called a "Blue Sky Application"), or
(ii) the omission or alleged omission to state in the Registration Statement,
the Preliminary Prospectus or the Final Prospectus, or in any amendment or
supplement thereto, or in any Blue Sky Application any material fact required to
be stated therein or necessary to make the statements therein not misleading,
and shall reimburse the Underwriter and each such officer, employee or
controlling person promptly upon demand for any legal or other expenses
reasonably incurred by the Underwriter, officer, employee or controlling person
in connection with investigating or defending or preparing to defend against any
such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that the Company shall not be liable under this Section 8(a)
in any such case to the extent that any such loss, claim, damage, liability or
action arises out of, or is based upon, any untrue statement or alleged untrue
statement or omission or alleged omission made in the Registration Statement,
the Preliminary Prospectus or the Final Prospectus, or in any such amendment or
supplement, or in any Blue Sky Application in reliance upon and in conformity
with written information concerning the Underwriter furnished to the Company by
or on behalf of the Underwriter specifically for inclusion therein; and provided
further that as to the Preliminary Prospectus this indemnity agreement shall not
inure to the benefit of the Underwriter, its officers or employees or any person
controlling the Underwriter on account of any loss, claim, damage, liability or
action arising from the sale of PIES to any person by the Underwriter if the
Underwriter failed to send or give a copy of the Final Prospectus to that person
within the time required by the Securities Act, and the untrue statement or
alleged untrue statement of any material fact or omission or alleged omission to
state a material fact in the Preliminary Prospectus was corrected in the Final
Prospectus, unless such failure resulted from non-compliance by the Company with
Section 5(c). The foregoing indemnity agreement is in addition to any liability
which the Company may
21
otherwise have to the Underwriter or to any officer, employee or controlling
person of the Underwriter.
(b) The Underwriter shall indemnify and hold harmless the Company, its
officers and employees, each of its directors and each person, if any, who
controls the Company within the meaning of the Securities Act, from and against
any loss, claim, damage or liability, joint or several, or any action in respect
thereof, to which the Company or any such director, officer or controlling
person may become subject, under the Securities Act or otherwise, insofar as
such loss, claim, damage, liability or action arises out of, or is based upon,
(i) any untrue statement or alleged untrue statement of a material fact
contained (A) in the Registration Statement, the Preliminary Prospectus or the
Final Prospectus, or in any amendment or supplement thereto, or (B) in any Blue
Sky Application or (ii) the omission or alleged omission to state in the
Registration Statement, the Preliminary Prospectus or the Final Prospectus, or
in any amendment or supplement thereto, or in any Blue Sky Application any
material fact required to be stated therein or necessary to make the statements
therein not misleading, but in each case only to the extent that the untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with written information concerning the
Underwriter furnished to the Company by or on behalf of the Underwriter
specifically for inclusion therein, and shall reimburse the Company and any such
director, officer or controlling person for any legal or other expenses
reasonably incurred by the Company or any such director, officer or controlling
person in connection with investigating or defending or preparing to defend
against any such loss, claim, damage, liability or action as such expenses are
incurred. The foregoing indemnity agreement is in addition to any liability
which the Underwriter may otherwise have to the Company or any such director,
officer, employee or controlling person.
(c) Promptly after receipt by an indemnified party under this Section 8 of
notice of any claim or the commencement of any action, the indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under this Section 8, notify the indemnifying party in writing of the
claim or the commencement of that action; provided, however, that the failure to
notify the indemnifying party shall not relieve it from any liability which it
may have under this Section 8 except to the extent it has been materially
prejudiced by such failure. If any such claim or action shall be brought against
an indemnified party, and it shall notify the indemnifying party thereof, the
indemnifying party shall be entitled to participate therein and, to the extent
that it wishes, jointly with any other similarly notified indemnifying party, to
assume the defense thereof with counsel reasonably satisfactory to the
indemnified party. After notice from the indemnifying party to the indemnified
party of its election to assume the defense of such claim or action, the
indemnifying party shall not be liable to the indemnified party under this
Section 8 for any legal or other expenses subsequently incurred by the
indemnified party in connection with the defense thereof other than reasonable
costs of investigation; provided, however, that the Underwriter shall have the
right to employ counsel to represent jointly the Underwriter and its officers,
employees and controlling persons who may be subject to liability arising out of
any claim in respect of which indemnity may be sought by the Underwriter against
the
22
Company under this Section 8 if, in the reasonable judgment of the
Underwriter, it is advisable for the Underwriter and its officers, employees and
controlling persons to be jointly represented by separate counsel, and in that
event the fees and expenses of such separate counsel shall be paid by the
Company. No indemnifying party shall (i) without the prior written consent of
the indemnified parties (which consent shall not be unreasonably withheld),
settle or compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding, or (ii) be liable for any settlement of any such action
effected without its written consent (which consent shall not be unreasonably
withheld), but if settled with the written consent of the indemnifying party or
if there be a final judgment of the plaintiff in any such action, the
indemnifying party agrees to indemnify and hold harmless any indemnified party
from and against any loss or liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 8 shall for any
reason be unavailable to or insufficient to hold harmless an indemnified party
under Section 8(a) or 8(b) in respect of any loss, claim, damage or liability,
or any action in respect thereof, referred to therein, then each indemnifying
party shall, in lieu of indemnifying such indemnified party under Section 8(a)
or 8(b), as the case may be, in respect of any loss, claim damage or liability
or any action in respect thereof, referred to therein, contribute to the amount
paid or payable by such indemnified party as a result of such loss, claim,
damage or liability, or action in respect thereof referred to in Section 8(a) or
8(b), as the case may be, (i) in such proportion as shall be appropriate to
reflect the relative benefits received by the Company on the one hand and the
Underwriter on the other from the offering of the PIES or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and the Underwriter on the other with respect to the statements or
omissions which resulted in such loss, claim, damage or liability, or action in
respect thereof, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Underwriter on
the other with respect to such offering shall be deemed to be in the same
proportion as the total net proceeds from the offering of the PIES purchased
under this Agreement (before deducting expenses) received by the Company on the
one hand, and the total underwriting discounts and commissions received by the
Underwriter with respect to the PIES purchased under this Agreement, on the
other hand, bear to the total gross proceeds from the offering of the PIES under
this Agreement, in each case as set forth on the cover of the Final Prospectus.
The relative fault shall be determined by reference to whether the untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by the Company or the
Underwriter, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriter agree that it
23
would not be just and equitable if contributions pursuant to this Section 8(d)
were to be determined by pro rata allocation or by any other method of
allocation which does not take into account the equitable considerations
referred to in this Section 8(d). The amount paid or payable by an indemnified
party as a result of the loss, claim, damage or liability, or action in respect
thereof, referred to above in this Section 8(d) shall be deemed to include, for
purposes of this Section 8(d), any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 8(d) the
Underwriter shall not be required to contribute any amount in excess of the
amount by which the total price at which the PIES underwritten by it and
distributed to the public was offered to the public exceeds the amount of any
damages which the Underwriter has otherwise paid or become liable to pay by
reason of any untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
(e) The Underwriter confirms and the Company acknowledges that the
statements with respect to the public offering of the PIES set forth on the
cover page of and under the caption "Underwriting" in, the Final Prospectus are
correct and constitute the only information concerning the Underwriter furnished
in writing to the Company specifically for inclusion in the Registration
Statement and the Final Prospectus.
9. Termination. The obligations of the Underwriter hereunder may be
terminated by the Underwriter by notice given to and received by the Company
prior to delivery of any payment for the Firm PIES if, prior to that time, any
of the events described in Sections 7(l), 7(m) or 7(n) shall have occurred or if
the Underwriter shall decline to purchase the PIES for any reason permitted
under this Agreement.
10. Notices, etc. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Underwriter, shall be delivered or sent by mail, telex
or facsimile transmission to Xxxxxx Brothers Inc., Three World Financial
Center, New York, New York 10285, Attention: Syndicate Department (Fax:
000-000-0000) with a copy, in the case of any notice pursuant to Section
8(c), to the Director of Litigation, Office of the General Counsel, Xxxxxx
Brothers Inc., Three World Financial Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000;
(b) if to the Company, shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Company set forth in the
Registration Statement, Attention: Xxxxxxxx X. Xxxxxxx, Esq. (Fax:
000-000-0000);
Any such statements, requests, notices or agreements shall take effect at the
time of receipt thereof.
24
11. Persons Entitled to Benefit of Agreement. This Agreement shall inure to
the benefit of and be binding upon the Underwriter, the Company, and their
respective successors and assigns. This Agreement and the terms and provisions
hereof are for the sole benefit of only those persons, except that (A) the
representations, warranties, indemnities and agreements of the Company contained
in this Agreement shall also be deemed to be for the benefit of the person or
persons, if any, who control the Underwriter within the meaning of Section 15 of
the Securities Act and (B) the indemnity agreement of the Underwriter contained
in Section 8(b) of this Agreement shall be deemed to be for the benefit of
directors of the Company and officers of the Company who have signed the
Registration Statement and any person controlling the Company within the meaning
of Section 15 of the Securities Act. Nothing in this Agreement is intended or
shall be construed to give any person, other than the persons referred to in
this Section 11, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision contained herein.
12. Survival. The respective indemnities, representations, warranties and
agreements of the Company and the Underwriter contained in this Agreement or
made by or on behalf of them, respectively, pursuant to this Agreement, shall
survive the delivery of and payment for the PIES and shall remain in full force
and effect, regardless of any investigation made by or on behalf of any of them
or any person controlling any of them.
13. Definition of the Terms "Business Day" and "Subsidiary". For purposes
of this Agreement, (a) "business day" means each Monday, Tuesday, Wednesday,
Thursday or Friday which is not a day on which banking institutions in New York
are generally authorized or obligated by law or executive order to close and (b)
"subsidiary" has the meaning set forth in Rule 405 of the Rules and Regulations.
14. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF NEW YORK.
15. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
16. Headings. The headings herein are inserted for convenience of reference
only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
17. Consent to Jurisdiction. Each party irrevocably agrees that any legal
suit, action or proceeding arising out of or based upon this Agreement or the
transactions contemplated hereby may be instituted in the federal courts of the
United States of America located in the City of New York or the courts of the
State of New York in each case located in the Borough of Manhattan in the City
of New York (collectively, the "Specified Courts"), and irrevocably submits to
the exclusive jurisdiction (except for proceedings instituted in regard to the
25
enforcement of a judgment of any such court, as to which such jurisdiction is
non-exclusive) of such courts in any such suit, action or proceeding. The
parties further agree that service of any process, summons, notice or document
by mail to such party's address as set forth in Section 10 hereof shall be
effective service of process for any lawsuit, action or other proceeding brought
in any such court. The parties hereby irrevocably and unconditionally waive any
objection to the laying of venue of any lawsuit, action or other proceeding in
the Specified Courts, and hereby further irrevocably and unconditionally waive
and agree not to plead or claim in any such court that any such lawsuit, action
or other proceeding brought in any such court has been brought in an
inconvenient forum.
26
If the foregoing correctly sets forth the agreement between the Company and
the Underwriter, please indicate your acceptance in the space provided for that
purpose below.
Very truly yours,
BANK UNITED CORP.
By:/s/ Xxxxx X. Xxxxxxxxxx
--------------------------
Title: President and CEO
Accepted:
XXXXXX BROTHERS INC.
By:/s/ Xxxx X. Xxxxxx
---------------------
AUTHORIZED REPRESENTATIVE
Managing Director
SCHEDULE 1
List of Subsidiaries
BANK UNITED CORP. SUBSIDIARIES
BNKU Holdings, Inc.
BUC Reinsurance Company
BUC Acquisition II Corporation
BNKU HOLDINGS, INC. SUBSIDIARIES
Bank United
BUC Title Ventures, Inc.
BANK UNITED SUBSIDIARIES
Commonwealth United Mortgage Company
United Agency Corporation
United Capital Management Corporation
United Greenway Securities Services, Inc.
United Mortgage Securities Corporation
United Mortgage Securities, Inc.
USAT Mortgage Securities, Inc.
Bank United Securities Corp.
UNITED AGENCY CORPORATION SUBSIDIARY
Commonwealth General Services Agency, Inc.
Exhibit A
FORM OF OPINION OF
WACHTELL, LIPTON, XXXXX & XXXX
TO BE DELIVERED PURSUANT TO SECTION 7(b)
(i) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware.
(ii) The Company has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the Final
Prospectus, and to enter into and perform its obligations under the Underwriting
Agreement. The activities of each of the Company's subsidiaries are permitted to
subsidiaries of a savings and loan holding company.
(iii) The Bank is the only "significant subsidiary" of the Company (as such
term is defined in Rule 1-02 of Regulation S-X). The only subsidiaries of the
Company other than the Bank are the wholly-owned subsidiaries of the Bank listed
on Schedule 1 to the Underwriting Agreement which, considered in the aggregate
as a single subsidiary, do not constitute a "significant subsidiary" as defined
in Rule 1-02 of Regulation S-X.
(iv) The Company has an authorized capitalization as set forth in the Final
Prospectus. The shares of issued and outstanding capital stock of the Company,
including the shares of Preferred Stock being delivered on such Delivery Date,
have been duly authorized and validly issued and are fully paid and
non-assessable; and none of the outstanding shares of capital stock of the
Company, including the shares of Preferred Stock being delivered on such
Delivery Date, was issued in violation of any preemptive or other similar rights
of any securityholder of the Company.
(v) The Underwriting Agreement has been duly authorized, executed
and delivered by the Company.
(vi) The unissued shares of Common Stock to be issued and sold by the
Company pursuant to the Purchase Contracts have been duly and validly authorized
and reserved for issuance and when issued and delivered in accordance with the
provisions of the Purchase Contracts, will be duly and validly issued, fully
paid and non-assessable.
(vii) The Corporate PIES have been duly authorized, executed and
delivered by the Company and (assuming due execution by the Purchase Contract
Agent as attorney-in-fact of the holders thereof and due authentication by the
Purchase Contract Agent) upon payment therefor as set forth in the Underwriting
Agreement, will be duly and validly issued and outstanding, and will constitute
valid and binding obligations of the Company entitled to the benefits of the
Purchase Contract Agreement and enforceable against the Company in accordance
with their terms, except as enforceability may be limited by the Bankruptcy
Exceptions and an implied covenant of good faith and fair dealing.
(viii) The Purchase Contract Agreement and the Pledge Agreement have been
duly authorized, executed and delivered by the Company and (assuming due
execution and delivery by the Purchase Contract Agent and, in the case of the
Pledge Agreement, the Securities Intermediary and the Collateral Agent)
constitute valid and binding agreements of the Company enforceable against the
Company in accordance with their respective terms, except as the enforceability
thereof may be limited by the Bankruptcy Exceptions and an implied covenant of
good faith and fair dealing. While the matter is not free from doubt, if a
Termination Event occurs by reason of the Company's becoming a debtor in a case
under the Bankruptcy Code, Section 365(e)(1) of the Bankruptcy Code should not
deprive the Purchase Contract Agent of the substantive benefit of the provisions
of Sections 3.15 and 5.8 of the Purchase Contract Agreement and Section 5.4 of
the Pledge Agreement that require termination of the Purchase Contracts and
release of the Collateral Agent's security interest in the Pledged Shares and
Pledged Treasury Securities; provided, however, that exercise of the rights
afforded to the Purchase Contract Agent under such provisions may require relief
from the automatic stay arising in such Bankruptcy Code case.
(ix) The Remarketing Agreement has been duly authorized, executed and
delivered by the Company.
(x) The provisions of the Pledge Agreement are effective to create,
in favor of the Collateral Agent for the benefit of the Company, a valid and
perfected security interest under the Uniform Commercial Code as in effect on
the date of such opinion in the State of New York (the "New York UCC") in the
Pledged Preferred Stock and under applicable regulation of the United States
Treasury as in effect on such date in the Pledged Treasury Securities from time
to time credited to the Collateral Account in accordance with the Pledge
Agreement. For purposes of such counsel's opinion, capitalized terms used in
this clause (x) shall have the meanings ascribed to such terms in the Pledge
Agreement.
(xi) There are no preemptive or other rights to subscribe for or to
purchase, nor any restriction upon the voting or transfer of, (A) any shares of
Common Stock issuable pursuant to the Purchase Contracts or (B) the Preferred
Stock pursuant to the Company's charter, by-laws, the certificate of designation
relating to the Preferred Stock or any agreement or other instrument known to
such counsel.
(xii) The Registration Statement has been declared effective under the
Securities Act; the Final Prospectus was filed with the Commission pursuant to
Rule 424(b) in the manner and within the time period required by Rule 424(b);
and, to the best of our knowledge, no stop order suspending the effectiveness of
the Registration Statement has been issued under the Securities Act and no
proceedings for that purpose have been instituted or are pending or threatened
by the Commission.
(xiii) The Registration Statements, the Final Prospectus, and each
amendment or supplement to the Registration Statement and the Final Prospectus,
as of their respective effective or issue dates (other than the financial
statements and supporting schedules included therein or omitted therefrom, as to
which we express no opinion) complied as to form in all material respects with
the requirements of the Securities Act and the Rules and Regulations.
(xiv) The statements contained in the Final Prospectus under the
captions (A) "Description of Offered Securities," in the Basic Prospectus and
(B) "Prospectus Supplement Summary--The Offering," "Description of the PIES,"
"Description of the Purchase Contracts," "Certain Provisions of the Purchase
Contracts, the Purchase Contract Agreement and the Pledge Agreement," and
"Description of the Preferred Stock" in the Prospectus Supplement insofar as
they purport to constitute summaries of certain terms of documents referred to
therein, constitute accurate summaries of the terms of such documents in all
material respects.
(xv) The statements set forth in the Final Prospectus under the
caption "United States Federal Income Tax Consequences" insofar as they purport
to constitute summaries of matters of United States federal tax laws and
regulations or legal conclusions with respect thereto, constitute accurate
summaries of the matters described therein in all material respects.
(xvi) To the best of our knowledge, there are no statutes or regulations
that are required to be described in the Final Prospectus that are not described
as required.
(xvii) Neither the Company, the Bank nor any of their respective
subsidiaries is in violation of its charter or by-laws and, to the best of our
knowledge, no default by the Company, the Bank or any of their respective
subsidiaries exists in the due performance or observance of any material
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument that is described or referred to in the Registration Statement or the
Final Prospectus or filed as an exhibit to the Registration Statement.
(xviii) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency, domestic or foreign including, without limitation, the OTS
and FDIC (other than under the Securities Act and the Rules and Regulations,
which have been obtained, or as may be required under the securities or blue sky
laws of the various states, as to which we express no opinion) is necessary or
required in connection with the due authorization, execution and delivery of the
Underwriting Agreement, the offering, issuance, sale or delivery of the PIES,
the performance of the Transactions, or the performance by the Company of its
obligations pursuant to the Underwriting Agreement, the Purchase Contract
Agreements, the Pledge Agreement, the Remarketing Agreement, the Purchase
Contracts, the Preferred Stock or the PIES.
(xix) The execution, delivery and performance of the Underwriting
Agreement, the Purchase Contract Agreement, the Pledge Agreement and the
Remarketing Agreement, and the consummation by the Company of the Transactions
contemplated thereby and in the Registration Statement have been duly authorized
by all necessary corporate action and do not and will not result in any
violation of the provisions of the charter or by-laws of the Company or any of
its subsidiaries, or any applicable law, statute, rule, regulation, judgment,
order, writ or decree, known to us, of any government, governmental
instrumentality or court, domestic or foreign, having jurisdiction over the
Company.
(xx) To the best of our knowledge, there are no persons with registration
rights or other similar rights to have any securities registered pursuant to the
Registration Statement or otherwise registered by the Company under the
Securities Act, except as described in the
Registration Statement or as set forth in any agreement described therein as
containing such rights.
(xxi) The Company is not, and upon the sale of the PIES as contemplated in
the Underwriting Agreement and the application of the net proceeds therefrom as
described in the Final Prospectus will not be, an "investment company" or an
entity "controlled" by an "investment company," as such terms are defined in the
1940 Act.
Nothing has come to our attention that would lead us to believe that the
Registration Statement or any amendment thereto (except for financial statements
and schedules and other financial data included therein or omitted therefrom, as
to which we make no statement), at the time such Registration Statement or any
such amendment became effective, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or that the Final
Prospectus or any amendment or supplement thereto (except for financial
statements and schedules and other financial data included therein or omitted
therefrom, as to which we make no statement), at the time the Final Prospectus
was issued, at the time any such amended or supplemented Final Prospectus was
issued or at the Closing Date, included or includes an untrue statement of a
material fact or omitted or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
In rendering such opinion, such counsel may rely as to matters of fact (but
not as to legal conclusions), to the extent they deem proper, on certificates of
responsible officers of the Company and public officials. Such opinion shall not
state that it is to be governed or qualified by, or that it is otherwise subject
to, any treatise, written policy or other document relating to legal opinions,
including, without limitation, the Legal Opinion Accord of the ABA Section of
Business Law (1991). All terms used but not defined in this exhibit should have
the meanings ascribed to them in the Underwriting Agreement and should be
defined accordingly in the form of opinion to be delivered.
Exhibit B
FORM OF OPINION OF
XXXXXXXX X. XXXXXXX
GENERAL COUNSEL OF THE COMPANY,
TO BE DELIVERED PURSUANT TO SECTION 7(c)
(i) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware.
(ii) The Company has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the Final
Prospectus, and to enter into and perform its obligations under the Underwriting
Agreement. The activities of each of the Company's subsidiaries are permitted to
subsidiaries of a savings and loan company.
(iii) The Bank is the only "significant subsidiary" of the Company (as such
term is defined in Rule 1-02 of Regulation S-X). The only subsidiaries of the
Company other than the Bank are the wholly-owned subsidiaries of the Bank listed
on Schedule 1 to the Underwriting Agreement, which, considered in the aggregate
as a single subsidiary, do not constitute a "significant subsidiary" as defined
in Rule 1-02 of Regulation S-X. The activities of all of the Bank's subsidiaries
are permitted to subsidiaries of a federally chartered savings bank, the
deposits of which are insured by the SAIF, which is administered by the FDIC.
(iv) The Bank is a federally chartered stock savings bank, duly
incorporated and validly existing under the laws of the United States, and the
Bank's charter is in full force and effect. The Bank is a member of the Federal
Home Loan Bank of Dallas and has been duly issued a certificate stating that its
savings accounts are insured by the FDIC in accordance with applicable law, and
no proceedings for the termination or revocation of such membership or insurance
are pending or, to the best of my knowledge, threatened.
(v) The Bank has corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the Final Prospectus.
(vi) Each subsidiary of the Bank has been duly organized and is validly
existing as a corporation in good standing under the laws of the jurisdiction of
its incorporation and has the power and authority to own, lease and operate its
properties and to conduct its business as described in the Final Prospectus. The
activities described in the Final Prospectus of each of the Bank's subsidiaries
are permitted activities of subsidiaries of a federally chartered savings bank,
the deposits of which are insured by the SAIF, which is administered by the
FDIC.
(vii) The Company, the Bank and each subsidiary of the Company or the Bank
is duly qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the conduct of business,
except where the failure so to qualify or to be in good standing would not
result in a Material Adverse Effect.
(viii) All of the issued and outstanding capital stock of the Bank and each
subsidiary of the Bank has been duly authorized and validly issued, is fully
paid and non-assessable and,
except as otherwise disclosed in the Registration Statement, is owned by the
Company, directly or through subsidiaries, to the best of my knowledge, free and
clear of any security interest, mortgage, pledge, lien, encumbrance, claim or
equity; none of the outstanding shares of capital stock of any subsidiary was
issued in violation of the preemptive or similar rights of any securityholder of
such subsidiary.
(ix) The Company has an authorized capitalization as set forth in the Final
Prospectus. The shares of issued and outstanding capital stock of the Company,
including the shares of Preferred Stock being delivered on such Delivery Date,
have been duly authorized and validly issued and are fully paid and
non-assessable; and none of the outstanding shares of capital stock of the
Company, including the shares of Preferred Stock being delivered on such
Delivery Date, was issued in violation of any preemptive or other similar rights
of any securityholder of the Company.
(x) The documents incorporated by reference in the Final Prospectus and any
further amendment or supplement to any such incorporated document made by the
Company prior to the Closing Date (other than the financial statements and
related schedules contained therein, as to which such counsel need express no
opinion), when they became effective or were filed with the Commission, as the
case may be, complied as to form in all material respects with the requirements
of the Securities Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder.
(xi) There is not pending or, to my knowledge, threatened any action, suit,
proceeding, inquiry or investigation, to which the Company or the Bank or any of
their respective subsidiaries is a party, or to which the property of the
Company or the Bank or any of their respective subsidiaries is subject, before
or brought by any court or governmental agency or body, domestic or foreign,
which might reasonably be expected to result in a Material Adverse Effect, or
which might reasonably be expected to materially and adversely affect the
properties or assets thereof or the consummation of the transactions
contemplated in the Underwriting Agreement or the performance by the Company of
its obligations thereunder. The aggregate of all pending legal or governmental
proceedings to which the Company, the Bank, or any of their respective
subsidiaries is known by me to be a party or of which any of their respective
property or assets is the subject which are not described in the Registration
Statement, including ordinary routine litigation incidental to the business,
could not reasonably be expected to result in a Material Adverse Effect. To the
best of my knowledge, neither the Company nor any of its subsidiaries is a party
to any written agreement or memorandum of understanding with, or commitment
letter or similar undertaking to, or subject to any order or directive issued
by, or a recipient of any extraordinary supervisory letter from, or has adopted
any board resolutions at the request of, any federal or state government agency
or authority with responsibility for the supervision or regulation of depository
institutions or their holding companies or the insurance of deposits, which in
any such case materially restricts the conduct of its business or in any manner
relates to its capital adequacy, its credit policies or its management, nor has
the Company or any of its subsidiaries been advised by any such regulatory
authority that it is contemplating issuing or requesting any such order, decree,
written agreement, memorandum of understanding, extraordinary supervisory
letter, commitment letter or similar undertakings or board resolutions. No labor
dispute with the employees of the Company or any subsidiary exists or, to the
knowledge of the Company, is imminent, and the Company is not aware of any
existing or imminent labor disturbance by the employees of any of its or any
subsidiary's principal suppliers,
manufacturers, customers or contractors, which, in either case, may reasonably
be expected to result in a Material Adverse Effect.
(xii) To the best of my knowledge, there are no statutes or regulations
that are required to be described in the Final Prospectus that are not described
as required.
(xiii) All descriptions in the Registration Statement of contracts and
other documents to which the Company or its subsidiaries are a party are
accurate in all material respects; to the best of my knowledge, there are no
franchises, contracts, indentures, mortgages, loan agreements, notes, leases or
other instruments required to be described or referred to in the Registration
Statement or to be filed as exhibits thereto other than those described or
referred to therein or filed or incorporated by reference as exhibits thereto,
and the descriptions thereof or references thereto are correct in all material
respects.
(xiv) Neither the Company, the Bank nor any of their respective
subsidiaries is in violation of its charter or by-laws and no default by the
Company, the Bank or any of their respective subsidiaries exists in the due
performance or observance of any material obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan agreement, note,
lease or other agreement or instrument that is described or referred to in the
Registration Statement or the Final Prospectus or filed as an exhibit to the
Registration Statement.
(xv) The execution, delivery and performance of the Underwriting Agreement,
the Purchase Contract Agreement, the Pledge Agreement and the Remarketing
Agreement, and the consummation by the Company of the Transactions contemplated
thereby and in the Registration Statement has been duly authorized by all
necessary corporate action and do not and will not, whether with or without the
giving of notice or lapse of time or both, conflict with or constitute a breach
of, or default or Repayment Event (as defined in Section l(p) of the
Underwriting Agreement) under or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the Company or any
subsidiary pursuant to any contract, indenture, mortgage, deed of trust, loan or
credit agreement, note, lease or any other agreement or instrument, known to me,
to which the Company or any subsidiary is a party or by which it or any of them
may be bound, or to which any of the property or assets of the Company, the Bank
or any of their respective subsidiaries is subject (except for such conflicts,
breaches or defaults or liens, charges or encumbrances that would not result in
a Material Adverse Effect), nor will such action result in any violation of the
provisions of the charter or by-laws of the Company, the Bank or any of their
respective subsidiaries, or any applicable law, statute, rule, regulation,
judgment, order, writ or decree, known to me, of any government, governmental
instrumentality or court, domestic or foreign, having jurisdiction over the
Company, the Bank, or any of their respective subsidiaries or any of their
respective properties, assets or operations.
(xvi) There are no persons with registration rights or other similar rights
to have any securities registered pursuant to the Registration Statement or
otherwise registered by the Company or the Bank under the Securities Act, except
as described in Registration Statement or as set forth in any agreement
described therein as containing such rights.
(xvii) The Company, the Bank and each of its subsidiaries possess such
Governmental Licenses issued by the appropriate federal, state, local or foreign
regulatory agencies or bodies
necessary to conduct the business now operated by them; the Company, the Bank
and each of its subsidiaries are in compliance with the terms and conditions of
all such Governmental Licenses, except where the failure so to comply would not,
singly or in the aggregate, have a Material Adverse Effect; all of the
Governmental Licenses are valid and in full force and effect, except when the
invalidity of such Governmental Licenses or the failure of such Governmental
Licenses to be in full force and effect would not have a Material Adverse
Effect; and neither the Company, the Bank nor any of their respective
subsidiaries has received any notice of proceedings relating to the revocation
or modification of any such Governmental Licenses which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding, would
result in a Material Adverse Effect.
(xviii) The Company, the Bank and each of their respective subsidiaries
have good and marketable title to all real, tangible and intangible property
reflected in the most recent balance sheet included in the Final Prospectus as
owned by the Company, the Bank and its subsidiaries and good title to all other
properties reflected in the most recent balance sheet included in the Final
Prospectus as owned by them, in each case, free and clear of all mortgages,
pledges, liens, security interests, claims, restrictions or encumbrances of any
kind except such as (A) are described in the Final Prospectus or (a) do not,
singly or in the aggregate, materially affect the value of such property and do
not interfere with the use made and proposed to be made of such property by the
Company, the Bank or any of their respective subsidiaries; or, with respect to
any such real property, render title unmarketable as to a material part thereof
and all of the leases and subleases material to the business of the Company, the
Bank and of their respective subsidiaries, considered as one enterprise, and
under which the Company, the Bank or any of their respective subsidiaries holds
properties described in the Final Prospectus, are in full force and effect, and
neither the Company, the Bank nor any of their respective subsidiaries has any
notice of any material claim of any sort that has been asserted by anyone
adverse to the rights of the Company, the Bank or any of their respective
subsidiaries under any of the leases or subleases mentioned above, or affecting
or questioning the rights of the Company, the Bank or such subsidiary to the
continued possession of the leased or subleased premises under any such lease or
sublease.
(xix) Except as described in the Registration Statement or except as would
not, singly or in the aggregate, result in a Material Adverse Effect, (A) the
Company, the Bank and each of their respective subsidiaries is not in violation
of any Environmental Laws, (B) the Company, the Bank and each of their
respective subsidiaries have all permits, authorizations and approvals required
under any applicable Environmental Laws and are each in compliance with their
requirements, (C) there are no pending or, to the knowledge of the Company,
threatened administrative, regulatory or judicial actions, suits, demands,
demand letters, claims, liens, notices of noncompliance or violation,
investigation or proceedings relating to any Environmental Law against the
Company, the Bank or any of their respective subsidiaries and (D) to the
knowledge of the Company there are no events or circumstances that might
reasonably be expected to form the basis of an order for clean-up or
remediation, or an action, suit or proceeding by any private party or
governmental body or agency, against or affecting the Company, the Bank or any
of their respective subsidiaries relating to Hazardous Materials or any
Environmental Laws.
(xx) In the event the Company shall become either directly or indirectly a
bank holding company for purposes of the BHC Act and the BHC Rules, the current
activities of the Company
and its subsidiaries (as defined in the BHc Rules) would be activities
permissible for a bank holding company under the BHC Act and the BHC Rules.
(xxi) No filing with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any court or governmental authority or
agency, domestic or foreign including, without limitation, the OTS and FDIC is
necessary or required by federal banking laws and regulations in connection with
the due authorization, execution and delivery of the Underwriting Agreement, the
offering, issuance, sale or delivery of the PIES, the performance of the
Transactions, or the performance by the Company of its obligations pursuant to
the Underwriting Agreement, the Purchase Contract Agreements, the Pledge
Agreement, the Remarketing Agreement, the Purchase Contracts, the Preferred
Stock or the PIES.
Nothing has come to my attention that would lead me to believe that the
Registration Statement or any amendment thereto, including the information
included in any prospectus that was omitted from such Registration Statement at
the time it became effective but that is deemed to be part of such Registration
Statement at the time it became effective (except for financial statements and
schedules and other financial data included therein or omitted therefrom, as to
which I make no statement), at the time such Registration Statement or any such
amendment became effective, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or that the Final Prospectus or any
amendment or supplement thereto (except for financial statements and schedules
and other financial data included therein or omitted therefrom, as to which I
make no statement), at the time the Final Prospectus was issued, at the time any
such amended or supplemented Final Prospectus was issued or at either Delivery
Date, included or includes an untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
In rendering such opinion, such counsel may rely as to matters of fact (but
not as to legal conclusions), to the extent they deem proper, on certificates of
responsible officers of the Company and public officials. Such opinion shall not
state that it is to be governed or qualified by, or that it is otherwise subject
to, any treatise, written policy or other document relating to legal opinions,
including, without limitation, the Legal Opinion Accord of the ABA Section of
Business Law (1991). All terms used but not defined in this exhibit should have
the meanings ascribed to them in the Underwriting Agreement and should be
defined accordingly in the form of opinion to be delivered.
