EXHIBIT 1.3
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8,050,000 Shares
FLAGSTAR BANCORP, INC.
Common Stock
Form of
Selling Stockholder's Power of Attorney
____________ __, 1997
Xxxxxx Brothers Inc.
PaineWebber Incorporated
Xxxxx & Co.,
As Representatives of each of the
several Underwriters named in
the Underwriting Agreement
described herein,
c/x Xxxxxx Brothers Inc.
Three World Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
The undersigned stockholder of Flagstar Bancorp, Inc., a Michigan
corporation (the "Company"), understands that the Company has filed a
registration statement (the "Registration Statement") under the Securities Act
of 1933, as amended (the "Act"), in connection with the proposed sale by certain
stockholders of the Company (including the undersigned) (collectively, the
"Selling Stockholders") of 5,850,000 shares (the "Firm Stock") of the Common
Stock, par value $0.01 per share (the "Common Stock"), of the Company to the
underwriters named in the Underwriting Agreement referred to below (the
"Underwriters"), represented by Xxxxxx Brothers Inc., PaineWebber Incorporated
and Xxxxx & Co. (collectively, the "Representatives"), who propose to offer such
shares to the public. In addition, the Selling Stockholders propose to grant to
the Underwriters an option to purchase additional shares of Common Stock
pursuant to the Underwriting Agreement referred to below (the "Option Stock").
The shares of the Firm Stock and the Option Stock are hereinafter collectively
referred to as the "Stock."
The undersigned desires to sell up to _______ shares of Common Stock to the
Underwriters, all of which shares have been issued by the Company and are
currently owned by the undersigned.
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1. In connection with the foregoing, the undersigned hereby makes,
constitutes and appoints each of ___________________ and ___________________, or
any one of them or their successors, with full power of substitution, the true
and lawful attorneys-in-fact of the undersigned (said persons, or any one of
them or their successors, being hereinafter referred to as the "Attorneys-in-
Fact"), each one of them with full power and authority, in the name and on
behalf of the undersigned, to do and perform the following as fully as could the
undersigned if personally present and acting:
(a) To execute and deliver a Custody Agreement, in substantially the
form attached hereto as Exhibit A, pursuant to which (i) stock certificates
representing _________ shares of Common Stock owned as of the date hereof
to be sold on the First Delivery Date (as defined in the Underwriting
Agreement) (the "[Stockholder Name] Firm Stock"), (ii) stock certificates
representing up to _________ shares of Common Stock owned as of the date
hereof to be sold on the Second Delivery Date (as defined in the
Underwriting Agreement) (the "[Stockholder Name] Option Stock") and (iii)
stock powers (undated, in blank) with respect to both the [Stockholder
Name] Firm Stock and the [Stockholder Name] Option Stock (together, the
"[Stockholder Name] Stock") are being or will be delivered to the Custodian
(as defined in the Custody Agreement).
(b) To sell to the Representatives or the Underwriters the
[Stockholder Name] Firm Stock at a gross purchase price per share (the
"Purchase Price") (not to be less than $______ per share) and subject to
underwriting discounts and commissions (not to be in excess of 7% of such
Purchase Price per share), as the Attorneys-in-Fact, in his or their sole
discretion shall determine pursuant to and as provided in the Underwriting
Agreement referred to below; to sell to the Representatives or the
Underwriters up to ______ shares of the [Stockholder Name] Option Stock at
a purchase price per share equal to that which is to be paid by the
Underwriters for the Firm Stock.
(c) For the purpose of effecting such sale, to execute and deliver an
Underwriting Agreement (the "Underwriting Agreement"), in substantially the
form of the draft thereof included as Exhibit ____ to the Registration
Statement, among the Company, Flagstar Bank, FSB, the Selling Stockholders
and the Representatives, as representatives of the Underwriters, with such
modifications therein as such Attorneys-in-Fact, in his or their sole
discretion, shall approve, such approval to be conclusively evidenced by
such execution and delivery, and to execute and deliver all documents on
behalf of the undersigned required or contemplated by the Underwriting
Agreement.
(d) To take for the undersigned all steps deemed necessary or
advisable by the Attorneys-in-Fact in connection with the registration of
the [Stockholder Name] Stock under the Act, including, without limitation,
filing the Registration Statement and any amendment thereto, requesting
acceleration of effectiveness of the Registration Statement and such other
steps as the Attorneys-in-Fact may in his or their sole discretion deem
necessary or advisable.
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(e) To make, acknowledge, verify and file on behalf of the
undersigned applications, consents to service of process and such other
undertakings or reports as may be required by law with state commissioners
or officers administering state securities laws, and to take any other
action required to facilitate the qualification of the Stock under the blue
sky or securities laws of the jurisdictions in which the Stock is to be
offered.
(f) To give such orders and instructions to the Underwriters, the
Custodian, the Company or to ____________, as transfer agent for the Common
Stock, as the case may be, as the Attorneys-in-Fact may in his or their
sole discretion determine are necessary or desirable in connection with the
transactions contemplated by the Underwriting Agreement and this Power of
Attorney, including, without limitation, with respect to (i) the transfer
on the books of the Company of the certificates representing the
[Stockholder Name] Stock (including the names in which the new certificates
are to be issued and the denominations thereof), (ii) the delivery to or
for the account of the Representatives or the Underwriters, as the case may
be, of the certificates representing the shares of [Stockholder Name] Stock
to be sold on each Delivery Date (as defined in the Underwriting Agreement)
against receipt by the Attorneys-in-Fact, on behalf of the undersigned, of
a check for the purchase price therefor and (iii) instructions to make
payment of any costs and expenses payable by the undersigned (which are not
otherwise agreed to be paid by the Company, if any).
(g) To retain legal counsel to act on behalf of the undersigned and
the Attorneys-in-Fact in connection with any and all matters referred to
herein, which counsel may also represent the Company.
(h) To accept and acknowledge receipt of any and all documents
delivered or deliverable to the undersigned as a Selling Stockholder, and
any and all checks, drafts or funds payable to the undersigned as a result
of the sale of shares of [Stockholder Name] Stock pursuant to the
Underwriting Agreement.
(i) To make, execute, acknowledge and deliver all such other
contracts, orders, receipts, notices, requests, instructions, certificates,
letters, written consents and other writings, including, without
limitation, communications to the Securities and Exchange Commission (the
"Commission") and to various state securities administrators or
commissions, amendments to the Underwriting Agreement and the Custody
Agreement, and certificates from the undersigned, as a Selling Stockholder,
called for in the conditions sections of the Underwriting Agreement on each
Delivery Date (as defined therein), and in general to do all things and to
take all actions which the Attorneys-in-Fact, in his or their sole
discretion may consider necessary or proper in connection with or to carry
out the aforesaid sale of shares of [Stockholder Name] Stock to the
Underwriters.
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2. This Power of Attorney and all authority conferred hereby are
granted and conferred subject to and in consideration of the interests of and
for the benefit of the Underwriters and the other Selling Stockholders, and in
consideration of those interests, and for the purpose of completing the
transactions contemplated by the Underwriting Agreement and this Power of
Attorney, this Power of Attorney and all authority conferred hereby shall be
irrevocable and shall not be terminated by any act of the undersigned or, to the
extent permitted by applicable law, upon the occurrence of any event or events
which otherwise would result in a revocation or termination of this Power of
Attorney and the authority conferred hereby (including, without limitation, the
subsequent disability or incompetence of the undersigned, the liquidation or
dissolution of the undersigned or the termination of any trust or estate for
which the undersigned is acting as a fiduciary). If any such event or events
shall occur before the completion of the transactions contemplated by the
Underwriting Agreement and this Power of Attorney, the Attorneys-in-Fact
nevertheless shall be authorized and directed to complete all such transactions
as if such liquidation, termination or dissolution or such other event or events
had not occurred and regardless of notice thereof.
Notwithstanding the foregoing, if the First Delivery Date shall not
have occurred prior to _________ __, 1997 or if the Underwriting Agreement is
earlier terminated pursuant to its terms, then, from and after such date, the
undersigned shall have the power to revoke all authority hereby conferred by
giving written notice to the Attorneys-in-Fact that this Power of Attorney has
been terminated, subject, however, to all lawful action taken by either or both
Attorneys-in-Fact pursuant to this Power of Attorney prior to the actual receipt
of such notice.
3. Each Attorney-in-Fact shall have full power to make and substitute
any Attorney-in-Fact in his place and stead, and the undersigned hereby ratifies
and confirms all that the Attorneys-in-Fact or such substitute or substitutes
shall do by virtue of this Power of Attorney. All actions hereunder may be
taken by any one of the persons named herein as Attorneys-in-Fact or their
respective substitutes. In the event of the death or incapacity of any
Attorney-in-Fact, the remaining Attorneys-in-Fact shall appoint a substitute
therefor. The term "Attorneys-in-Fact" as used herein shall include their
respective substitutes.
4. The undersigned hereby represents, warrants and agrees that:
(a) The undersigned, having full right, power and authority to do so,
has duly executed and delivered this Power of Attorney.
(b) The undersigned acknowledges that its execution and delivery of
this Power of Attorney will authorize the Attorneys-in-Fact to execute and
deliver in the name of and on behalf of the undersigned the Custody
Agreement, which will contain such modifications as the Attorneys-in-Fact
in his or their sole discretion shall determine.
(c) The undersigned acknowledges that its execution and delivery of
this Power of Attorney will authorize the Attorneys-in-Fact to execute and
deliver in the name of and on behalf of the undersigned the Underwriting
Agreement, which will contain such
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additions to and changes in the form of the draft of the Underwriting
Agreement included as Exhibit ____ to the Registration Statement as the
Attorneys-in-Fact in his or their sole discretion shall determine, subject
to subparagraph (b) of paragraph 1 hereof. The undersigned has carefully
reviewed such form of the Underwriting Agreement, and the undersigned
represents and warrants hereby that each representation and warranty
contained in Section 2 of the Underwriting Agreement is true and correct as
to the undersigned and will also be true and correct as of each Delivery
Date (as defined in the Underwriting Agreement). In addition, the
undersigned agrees to perform every agreement which such form of
Underwriting Agreement contemplates being performed by the undersigned as a
Selling Stockholder.
(d) The undersigned has carefully reviewed the Registration Statement
[as amended by Pre-Effective Amendment No. 1 thereto...] and will carefully
review each additional amendment thereto upon receipt thereof from the
Company and the undersigned hereby represents and warrants that except as
set forth in paragraph 9 below:
(1) The information relating to the undersigned which is set
forth in each final prospectus relating to the Registration Statement
("Prospectus") under the section captioned "Selling Stockholders" is,
and will on each Delivery Date (as defined in the Underwriting
Agreement) be, completely and accurately set forth; and
(2) Except as is and will be fully and accurately set forth in
the Registration Statement and in each Prospectus, neither the
undersigned nor, to the undersigned's best knowledge, any of the
undersigned's associates/1/ (A) has an adverse interest to the Company
in any pending legal or administrative proceeding, (B) is, has been or
is proposed to be a party to any transaction or contract involving the
Company which was performed, or is to be performed, in whole or in
part, on or after the date hereof, or is a member of the immediate
family of any such party or (C) has a material relationship/2/ or
holds a position or office with the Company or has a material
relationship with any of its officers or directors (or has had any
such relationship at any time since ______ __, 19__).
(e) Except as indicated in paragraph 9 below, neither the undersigned
nor, to the best of the undersigned's knowledge, any associate/3/ of the
undersigned is affiliated with any member of the National Association of
Securities Dealers, Inc. or any firm directly or indirectly engaged in the
securities business as a broker or dealer, as (i) an employee acting in any
capacity including that of an officer or registered representative, (ii) a
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1. See Exhibit B attached hereto for certain definitions.
2. See Exhibit B attached hereto for certain definitions.
3. See Exhibit B attached hereto for certain definitions.
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director or partner, or (iii) an equity investor or debt investor. (You
need not include or disclose investments in publicly held corporations
which in turn have investments in firms in the securities business if your
investment in the publicly held corporation is of the same class of
security as is publicly held and does not exceed 5% of such class.)
(f) The undersigned has not distributed and will not distribute any
prospectus or other offering material in connection with the offering and
sale of the Stock other than a preliminary prospectus contained in the
Registration Statement and the Prospectuses or other material permitted by
the Act.
5. (a)(1) The number of shares of Common Stock owned beneficially/4/
by the undersigned as of the date hereof is as set forth below:
Common Stock. . . . . . . . . . . . . . . _______ shares.
(2) Each person or class of persons to whom the undersigned has sold
any shares of Common Stock of the Company since _____ __, 199_, or to whom the
undersigned is committed to sell shares of Common Stock of the Company in the
future other than the Underwriters, is named below, along with the circumstances
of each such sale:
Name Circumstances/5/
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(b) The undersigned is not acting in a fiduciary capacity or as a
nominee, custodian or agent in selling shares, except as indicated in paragraph
9 below.
6. The undersigned hereby authorizes the Attorney-in-Fact to furnish
the information concerning the undersigned which is set forth in this Power of
Attorney to the Commission, to the Underwriters, to the National Association of
Securities Dealers, Inc. and to the Company for use by them in connection with
the offering of the Stock and the preparation of the Registration Statement and
the Prospectuses. The undersigned represents and warrants to the Company, the
Underwriters, the other Selling Stockholders and their respective counsel that
such information is true and correct, and agrees to notify the Attorney-in-Fact
immediately if there is any change in any of such information prior to the
effective date of the Registration Statement. You and all of such persons and
firms may consider that there has been no such change unless advised to the
contrary in writing.
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4. Include shares issuable upon exercise of currently exercisable stock
options, if any.
5. Include consideration received or to be received, date of sale and number
of shares sold.
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7. Each Attorney-in-Fact may act upon any instrument or other writing
believed by him to be genuine and to be signed or presented or caused to be sent
by the proper person. The undersigned hereby agrees to indemnify and hold the
Attorneys-in-Fact, jointly and severally, free and harmless from and against any
and all liabilities, costs, damages, judgments, attorneys' fees and
disbursements, expenses, losses or liabilities of any kind or nature which the
Attorneys-in-Fact may incur or sustain as a result of any action taken by them
in good faith hereunder.
8. It is understood that the Attorneys-in-Fact shall serve entirely
without compensation, except as expressly provided in the foregoing paragraph 7.
9. EXCEPTIONS TO ANY OF THE ABOVE:
10. THIS POWER OF ATTORNEY SHALL CONSTITUTE AN INSTRUMENT UNDER SEAL
AND BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.
11. The undersigned hereby ratifies and confirms all that the
aforesaid Attorneys-in-Fact shall do by virtue of these presents.
Dated: ___________ __, 1997
Very truly yours,
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[NAME OF SELLING STOCKHOLDER]
Residence:
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Telephone No.:
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Number of shares of Stock to be sold:
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SUBSCRIBED AND SWORN to
before me this _____ day
of _______________________, 1997
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Notary Public
[Notarial Seal]
My commission expires:
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