[Execution Copy]
777,600 SHARES
BANK UNITED CORP.
CLASS A COMMON STOCK
INTERNATIONAL UNDERWRITING AGREEMENT
February 5, 1997
XXXXXX BROTHERS INTERNATIONAL (EUROPE),
As Lead Manager of the several
International Managers named in Schedule 0
Xxx Xxxxxxxxx, 0xx Xxxxx
Xxxxxx XX0X 0XX
Xxxxxxx
Dear Sirs:
Certain stockholders of Bank United Corp., a Delaware corporation
(the "Company"), named in Schedule 2 hereto (the "Participating Selling
Stockholders") propose to sell an aggregate of 777,600 shares (the "Firm Stock")
of the Company's Class A common stock, par value $0.01 per share ("Common
Stock"). In addition, the Participating Selling Stockholders propose to grant to
the several Underwriters named in Schedule 1 hereto (the "International
Managers") an option to purchase up to an additional 77,760 shares of Common
Stock on the terms and for the purposes set forth in Section 3 hereof (the
"Option Stock"). The Firm Stock and the Option Stock, if purchased, are
hereinafter collectively called the "Stock." This is to confirm the agreement
with you (the "Lead Manager") and the other International Managers on whose
behalf you are acting, concerning the purchase of the Stock from the
Participating Selling Stockholders by the International Managers.
It is understood by all parties that the Participating Selling
Stockholders are concurrently entering into an agreement dated the date hereof
(the "U.S. Underwriting Agreement") providing for the sale by the Participating
Selling Stockholders of an aggregate of 3,421,352 shares of Common Stock
(including the over-allotment option thereunder) (the "U.S. Stock") through
arrangements with certain underwriters within the United States (the "U.S.
Underwriters"), for whom Xxxxxx Brothers Inc. is acting as representative. The
International Managers and the U.S. Underwriters simultaneously are entering
into an agreement between the U.S. and international underwriting syndicates
(the "Agreement Between U.S. Underwriters and International Managers") which
provides for, among other things, the transfer of shares of Common Stock between
the two syndicates. Except as used in Sections 3, 4, 5, 11 and 12 hereof, and
except as the context may otherwise require, references herein to the Stock
shall include all the shares of Common Stock which may be sold pursuant to
either this Agreement or the U.S. Underwriting Agreement.
(1) REPRESENTATIONS AND WARRANTIES BY THE COMPANY AND THE BANK.
Each of the Company and its subsidiary Bank United, a federally chartered
savings bank (the "Bank"), represents and warrants to each International Manager
and each Participating Selling Stockholder, as of each Delivery Date referred to
in Section 5 hereof, and agrees with each International Manager, as follows:
(a) Compliance with Registration Requirements. A registration
statement on Form S-1, including a basic prospectus for registration
under the U.S. Securities Act of 1933, as amended (the "Securities
Act"), of the offering and sale of shares of Common Stock, including the
Stock, from time to time in accordance with Rule 415 of the U.S.
Securities and Exchange Commission (the "Commission") under the
Securities Act by certain of the stockholders of the Company listed in
such basic prospectus, including the Participating Selling Stockholders,
and an amendment to such registration statement (i) has been prepared by
the Company in conformity with the requirements of the Securities Act
and the rules and regulations (the "1933 Act Regulations") of the
Commission thereunder, (ii) has been filed with the Commission under the
Securities Act and (iii) has become effective under the Securities Act.
Copies of such registration statement and the amendment thereto have
been delivered by the Company to you as Lead Manager. As used in this
Agreement, "Effective Time" means the date and the time as of which such
registration statement, or the most recent post-effective amendment
thereto, if any, became or was declared effective by the Commission.
"Registration Statement" means such registration statement, including
the exhibits and any schedules, as amended at the Effective Time, and
any Rule 430A Information (as defined below).
Two forms of prospectus are to be used in connection with the
offering and sale of the Stock: one relating to the Stock (the "Form of
International Prospectus") and one relating to the U.S. Stock (the "Form
of U.S. Prospectus"). Each of the Form of U.S. Prospectus and the Form
of International Prospectus consists of (a) a "Basic Prospectus", which
is the prospectus included in the Registration Statement, and (b) a
"Prospectus Supplement", relating specifically to the Stock and the U.S.
Stock, in the form first filed with, or transmitted for filing to, the
Commission pursuant to Rule 424 of the Securities Act. For purposes of
offers and sales of the Stock in Canada, the Form of U.S. Prospectus
also consists of an additional front cover and back cover page which
complies in all respects with all applicable laws in each of the
provinces and territories of Canada, the respective regulations under
such laws and the applicable published policy statements of the
securities regulatory authorities in such jurisdiction. The Form of
International Prospectus is identical to the Form of U.S. Prospectus
used for offers and sales in the United States, except for the front
cover and back cover pages. The term "Prospectus", as used herein, shall
refer to the Basic Prospectus as so supplemented by the relevant
Prospectus Supplement. The information included in such prospectuses
that was omitted from the Registration Statement at the Effective Time
but that is deemed to be part of the Registration Statement at the
Effective Time pursuant to paragraph (b) of Rule 430A is referred to as
"Rule 430A Information". Each Form of U.S. Prospectus and each Form of
International Prospectus, and any prospectus that omitted Rule 430A
Information, that was used after the Effective Time and prior to the
execution and delivery of this Agreement, is herein called a
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"Preliminary Prospectus". The Commission has not issued any order
preventing or suspending the use of any Preliminary Prospectus.
Any registration statement filed pursuant to Rule 462(b) of the
1933 Act Regulations is herein referred to as the "Rule 462(b)
Registration Statement", and after such filing the term "Registration
Statement" shall include the Rule 462(b) Registration Statement. The
final prospectuses in the forms first furnished to the International
Managers and the U.S. Underwriters for use in connection with the
offering of the International Stock or the U.S. Stock, respectively, are
herein called the "U.S. Prospectus" and the "International Prospectus".
For purposes of this Agreement, all references to the Registration
Statement, any Preliminary Prospectus, the U.S. Prospectus, the
International Prospectus or any amendment or supplement to any of the
foregoing shall be deemed to include the copy filed with the Commission
pursuant to its Electronic Data Gathering, Analysis and Retrieval system
("XXXXX"). The term "Prospectus" shall, unless the context otherwise
requires, hereinafter refer to the U.S. Prospectus and the International
Prospectus.
The Registration Statement conforms, and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus will, when they became or become effective or were or are
filed with the Commission, as the case may be, conformed or will conform
in all respects to the requirements of the Securities Act and the 1933
Act Regulations and do not and will not, as of the applicable effective
date (as to the Registration Statement and any amendment thereto) and as
of the applicable filing date (as to the Prospectus and any amendment or
supplement thereto) contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading; PROVIDED that no
representation or warranty is made as to information contained in or
omitted from the Registration Statement or the Prospectus in reliance
upon and in conformity with written information furnished to the Company
through the Lead Manager by or on behalf of any International Manager or
U.S. Underwriter specifically for inclusion therein.
(b) Independent Accountants. The accountants who certified the
financial statements and supporting schedules included in the
Registration Statement are independent public accountants as required by
the Securities Act and the 1933 Act Regulations.
(c) Financial Statements. The consolidated financial statements
included in the Registration Statement and the Prospectus, together with
the related schedules and notes, present fairly in all material respects
the consolidated financial position of the Company and its consolidated
subsidiaries at the dates indicated and the statement of operations,
stockholders' equity and cash flows of the Company and its consolidated
subsidiaries for the periods specified; said financial statements have
been prepared in conformity with generally accepted accounting
principles ("GAAP") applied on a consistent basis throughout the periods
involved, except as may be noted therein. The supporting schedules, if
any, included in the Registration Statement present fairly in all
material respects in accordance with GAAP, except as may be noted
therein, the information required to be
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stated therein. The selected financial data and the summary financial
information included in the Prospectus present fairly in all material
respects the information shown therein and have been compiled on a basis
consistent with that of the audited financial statements included in the
Registration Statement. The pro forma financial information and the
related notes thereto included in the Registration Statement and the
Prospectus present fairly the information shown therein, have been
prepared in accordance with the Commission's rules and guidelines with
respect to pro forma financial statements and have been properly
compiled on the bases described therein, and the assumptions used in the
preparation thereof are reasonable and the adjustments used therein are
appropriate to give effect to the transactions and circumstances
referred to therein.
(d) No Material Adverse Change in Business. Since the respective
dates as of which information is given in the Registration Statement and
the Prospectus, except as otherwise stated therein, (i) there has been
no material adverse change in the condition, financial or otherwise, or
in the earnings, stockholders' equity, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business (a
"Material Adverse Effect"), (ii) there have been no transactions entered
into by the Company or any of its subsidiaries, other than those in the
ordinary course of business, which are material with respect to the
Company and its subsidiaries considered as one enterprise, and (iii)
except for regular quarterly dividends on the Bank Preferred Stock (as
defined in the Prospectus) in amounts per share that are consistent with
past practice, there has been no dividend or distribution of any kind
declared, paid or made by the Bank or the Company on any class of its
capital stock.
(e) Good Standing of the Company. Each of the Company, the Bank
and each subsidiary of the Company or the Bank has been duly organized
and is validly existing as a corporation in good standing under the laws
of the State of Delaware and has corporate power and authority to own,
lease and operate its properties and to conduct its business as
described in the Prospectus and to enter into and perform its
obligations under this Agreement; and the Company is duly qualified as a
foreign corporation to transact business and is in good standing in each
other jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure so to qualify or to be in good
standing would not result in a Material Adverse Effect.
(f) The Bank; Other Xxxxxxxxxxxx.XX
(i) The Bank is the only "significant subsidiary" of the
Company (as such term is defined in Rule 1-02 of Regulation S-X).
The only subsidiaries of the Company other than the Bank are the
wholly-owned subsidiaries of the Bank listed on Schedule E hereto
which, considered in the aggregate as a single subsidiary, do not
constitute a "significant subsidiary" as defined in Rule 1-02 of
Regulation S-X. The activities of all of the Bank's subsidiaries
are permitted to subsidiaries of a federally chartered savings
bank, the deposits of which are insured by the Savings
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Association Insurance Fund ("SAIF"), which is administered by the
Federal Deposit Insurance Corporation (the "FDIC").
(ii) The Bank has been duly organized and is validly
existing as a federally chartered savings bank in good standing
under the laws of the United States, and has corporate power and
authority to own, lease and operate its properties and to conduct
its business as described in the Prospectus and to enter into and
perform its obligations under this Agreement. Each subsidiary of
the Bank has been duly organized and is validly existing as a
corporation in good standing under the laws of the jurisdiction
of its incorporation and has the power and authority to own,
lease and operate its properties and to conduct its business as
described in the Prospectus.
(iii) All of the issued and outstanding capital stock of
the Bank and each subsidiary of the Bank has been duly authorized
and validly issued, is fully paid and non-assessable and, except
as otherwise disclosed in the Registration Statement, is owned by
the Company, directly or through subsidiaries, free and clear of
any security interest, mortgage, pledge, lien, encumbrance, claim
or equity; none of the outstanding shares of capital stock of any
subsidiary was issued in violation of the preemptive or similar
rights of any securityholder of such subsidiary.
(g) Capitalization. The authorized, issued and outstanding
capital stock of the Company is as set forth in the Prospectus in the
column entitled "Pro Forma" under the caption "Capitalization" (except
for subsequent issuances, if any, pursuant to reservations, agreements
or employee benefit plans referred to in the Prospectus or pursuant to
the exercise of convertible securities or options referred to in the
Prospectus). The shares of issued and outstanding capital stock,
including the shares of Common Stock to be purchased by the
International Managers and the U.S. Underwriters from the Participating
Selling Stockholders, have been duly authorized and validly issued and
are fully paid and non-assessable; none of the outstanding shares of
capital stock, including the shares of Common Stock to be purchased by
the International Managers and the U.S. Underwriters from the
Participating Selling Stockholders, was issued in violation of the
preemptive or other similar rights of any securityholder of the Company.
(h) Authorization of Agreement. This Agreement and the U.S.
Underwriting Agreement have been duly authorized, executed and delivered
by each of the Company and the Bank.
(i) Authorization and Description of Offer Stock. The sale of the
Common Stock to the International Managers and the U.S. Underwriters by
the Participating Selling Stockholders is not subject to the preemptive
or other similar rights of any securityholder of the Company; and the
Common Stock conforms to all statements relating thereto contained in
the Prospectus and such description conforms to the rights set forth in
the instruments defining the same.
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(j) Absence of Defaults and Conflicts. Neither the Company, the
Bank, nor any of their respective subsidiaries is in violation of its
charter or by-laws or in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note,
lease or other agreement or instrument to which the Company, the Bank,
or any of their respective subsidiaries is a party or by which it or any
of them may be bound, or to which any of the property or assets of the
Company, the Bank, or any of their respective subsidiaries is subject
(collectively, "Agreements and Instruments"), except for such defaults
that would not result in a Material Adverse Effect; and the execution,
delivery and performance of this Agreement and the U.S. Underwriting
Agreement and the consummation of the transactions contemplated thereby
and compliance by each of the Company and the Bank with its respective
obligations hereunder and thereunder have been duly authorized by all
necessary corporate action and do not and will not result in any
violation of the provisions of the charter or by-laws of the Company,
the Bank, or any of their respective subsidiaries or any applicable law,
statute, rule, regulation, judgment, order, writ or decree of any
government, governmental instrumentality or court, domestic or foreign,
having jurisdiction over the Company, the Bank, or any of their
respective subsidiaries or any of their assets, properties or
operations. As used herein, a "Repayment Event" means any event or
condition which gives the holder of any note, debenture or other
evidence of indebtedness (or any person acting on such holder's behalf)
the right to require the repurchase, redemption or repayment of all or a
portion of such indebtedness by the Company.
(k) Absence of Labor Dispute. No labor dispute with the employees
of the Company or any subsidiary exists or, to the knowledge of the
Company, is imminent, and the Company is not aware of any existing or
imminent labor disturbance by the employees of any of its or any
subsidiary's principal suppliers, manufacturers, customers or
contractors, which, in either case, may reasonably be expected to result
in a Material Adverse Effect.
(l) Absence of Proceedings. There is no action, suit, proceeding,
inquiry or investigation before or brought by any court or governmental
agency or body, domestic or foreign, now pending, or, to the knowledge
of the Company or the Bank, as the case may be, threatened, against or
affecting the Company, the Bank, or any of their respective
subsidiaries, which individually or in the aggregate for all such
actions, suits, proceedings, inquiries or investigations is required to
be disclosed in the Registration Statement (other than as disclosed
therein), or which might reasonably be expected to result in a Material
Adverse Effect, or which might reasonably be expected to materially and
adversely affect the consummation of the transactions contemplated in
this Agreement and the U.S. Underwriting Agreement or the performance by
the Company or the Bank of their respective obligations hereunder or
thereunder; the aggregate of all pending legal or governmental
proceedings to which the Company, the Bank, or any of their respective
subsidiaries is a party or of which any of their respective property or
assets is the subject which are not described in the Registration
Statement, including ordinary routine litigation incidental to the
business of the Company, the Bank, or any of their respective
subsidiaries, could not reasonably be expected to result in a Material
Adverse Effect. No cease and
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desist order has been entered by the Office of Thrift Supervision (the
"OTS") or the FDIC against the Company, the Bank or any of their
respective subsidiaries.
(m) Accuracy of Exhibits. There are no contracts or documents
which are required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits thereto which have not been so
described and filed as required.
(n) Possession of Intellectual Property. The Company and its
subsidiaries own or possess, or can acquire on reasonable terms,
adequate patents, patent rights, licenses, inventions, copyrights,
know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks, trade names or other
intellectual property (collectively, "Intellectual Property") necessary
to carry on the business now operated by them, and neither the Company
nor any of its subsidiaries has received any notice or is otherwise
aware of any infringement of or conflict with asserted rights of others
with respect to any Intellectual Property or of any facts or
circumstances which would render any Intellectual Property invalid or
inadequate to protect the interest of the Company or any of its
subsidiaries therein, and which infringement or conflict (if the subject
of any unfavorable decision, ruling or finding) or invalidity or
inadequacy, singly or in the aggregate, would result in a Material
Adverse Effect.
(o) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency, including, without limitation, the OTS and the FDIC, is
necessary or required for the performance by the Company of its
obligations hereunder in connection with the offering or sale of the
Stock hereunder and under the U.S. Underwriting Agreement, for the
consummation of the transactions contemplated hereby or thereby or for
the other transactions described in the Registration Statement under the
caption "The Company -- Background of the Offering," except such as have
been already obtained or will have been obtained or made prior to the
First Delivery Date (as defined below) or as may be required under the
Securities Act or the 1933 Act Regulations or state securities laws.
(p) Possession of Licenses and Permits. The Company and its
subsidiaries possess such permits, licenses, approvals, consents and
other authorizations (collectively, "Governmental Licenses") issued by
the appropriate federal, state, local or foreign regulatory agencies or
bodies necessary to conduct the business now operated by them; the
Company and its subsidiaries are in compliance with the terms and
conditions of all such Governmental Licenses, except where the failure
so to comply would not, singly or in the aggregate, have a Material
Adverse Effect; all of the Governmental Licenses are valid and in full
force and effect, except when the invalidity of such Governmental
Licenses or the failure of such Governmental Licenses to be in full
force and effect would not have a Material Adverse Effect; and neither
the Company nor any of its subsidiaries has received any notice of
proceedings relating to the revocation or modification of any such
7
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.
(q) Title to Property. The Company and its subsidiaries have good
and marketable title to all real, tangible and intangible property
reflected in the most recent balance sheet included in the Prospectus as
owned by the Company and its subsidiaries and good title to all other
properties reflected in the most recent balance sheet included in the
Prospectus as owned by them, in each case, free and clear of all
mortgages, pledges, liens, security interests, claims, restrictions or
encumbrances of any kind except such as (i) are described in the
Prospectus or (ii) do not, singly or in the aggregate, materially affect
the value of such property and do not interfere with the use made and
proposed to be made of such property by the Company or any of its
subsidiaries; or, with respect to any such real property, render title
unmarketable as to a material part thereof and all of the leases and
subleases material to the business of the Company and its subsidiaries,
considered as one enterprise, and under which the Company or any of its
subsidiaries holds properties described in the Prospectus, are in full
force and effect, and neither the Company nor any subsidiary has any
notice of any material claim of any sort that has been asserted by
anyone adverse to the rights of the Company or any subsidiary under any
of the leases or subleases mentioned above, or affecting or questioning
the rights of the Company or such subsidiary to the continued possession
of the leased or subleased premises under any such lease or sublease.
(r) Investment Company Act. The Company is not, and upon the sale
of the Stock as contemplated herein and the application of the net
proceeds therefrom as described in the Prospectus will not be, an
"investment company" or an entity "controlled" by an "investment
company" as such terms are defined in the U.S. Investment Company Act of
1940, as amended (the "1940 Act").
(s) Environmental Laws. Except as described in the Registration
Statement or except as would not, singly or in the aggregate, result in
a Material Adverse Effect, (i) the Company, the Bank and each of their
respective subsidiaries is not in violation of any federal, state, local
or foreign statute, law, rule, regulation, ordinance, code, policy or
rule of common law or any judicial or administrative interpretation
thereof, including any judicial or administrative order, consent, decree
or judgment, relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife, including,
without limitation, laws and regulations relating to the release or
threatened release of chemicals, pollutants, contaminants, wastes, toxic
substances, hazardous substances, petroleum or petroleum products
(collectively, "Hazardous Materials") or to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling
of Hazardous Materials (collectively, "Environmental Laws"), (ii) the
Company, the Bank and each of their respective subsidiaries have all
permits, authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with their requirements,
(iii) there are no pending or, to the knowledge of the Company,
threatened administrative, regulatory or judicial actions, suits,
demands, demand letters, claims, liens, notices of
8
noncompliance or violation, investigation or proceedings relating to any
Environmental Law against the Company, the Bank or any of their
respective subsidiaries and (iv) to the knowledge of the Company there
are no events or circumstances that might reasonably be expected to form
the basis of an order for clean-up or remediation, or an action, suit or
proceeding by any private party or governmental body or agency, against
or affecting the Company, the Bank or any of their respective
subsidiaries relating to Hazardous Materials or any Environmental Laws.
(t) Registration Rights. Except as described in the Registration
Statement or as set forth in any document or agreement described in the
Registration Statement as containing such rights, there are no persons
with registration rights or other similar rights to have any securities
registered pursuant to the Registration Statement or otherwise
registered by the Company or the Bank, under the Securities Act or
otherwise.
(u) Accounting. Each of the Company and the Bank maintains a
system of internal accounting controls sufficient to provide reasonable
assurances that (i) transactions are executed in accordance with
management's general or specific authorization; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with GAAP and to maintain accountability for assets; (iii)
access to assets is permitted only in accordance with management's
general or specific authorization; and (iv) the recorded accountability
for assets is compared with existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(v) Payments To the knowledge of each of the Company and the
Bank, neither the Company, the Bank nor any employee or agent of the
Company or the Bank has made any payment of funds of the Company or the
Bank or received or retained any funds in violation of any law, rule or
regulation, which payment, receipt or retention of funds is of a
character required to be disclosed in the Prospectus.
(w) Taxes Each of the Company and the Bank has filed all tax
returns required to be filed, which returns are complete and correct in
all material respects, and each of the Company and the Bank is not in
default in the payment of any taxes which were payable pursuant to said
returns or any assessments with respect thereto.
(x) Bank Holding Company. In the event the Company shall become
either directly or indirectly a bank holding company for purposes of the
Bank Holding Company Act of 1956, as amended (the "BHC Act") and the
rules and regulations of the Board of Governors of the Federal Reserve
System thereunder (the "BHC Rules"), the current activities of the
Company and its subsidiaries (as defined in the BHC Rules) would be
activities permissible for a bank holding company under the BHC Act and
the BHC Rules.
2. REPRESENTATIONS AND WARRANTIES BY THE PARTICIPATING SELLING
Stockholders. Each Participating Selling Stockholder severally represents and
warrants (on behalf of itself and not as to any other Participating Selling
Stockholder or person) to each International Manager and the Company as of the
date hereof and as of each Delivery Date, and agrees with each International
9
Manager, as set forth below, except that each of Equitable Deal Flow Fund L.P.,
Equitable Capital Partners L.P. and Equitable Capital Partners (Retirement Fund)
L.P. (collectively, "Equitable") is not a party to the Power of Attorney (as
defined below) and accordingly does not make the following representations and
warranties to the extent they relate to the Power of Attorney:
(a) Accuracy of Information Regarding Selling Stockholder. The
information set forth in the Registration Statement in the chart on page
123 thereof under the caption "Selling Stockholders" which specifically
relates to such Participating Selling Stockholder did not, at the date
the Registration Statement became effective, contain any untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading, and the information set forth in the Basic Prospectus in the
chart on page 123 thereof under the caption "Selling Stockholders" and
the Prospectus Supplement under the caption "Participating Selling
Stockholders" which specifically relates to such Participating Selling
Stockholder (as to each Participating Selling Stockholder, the
"Participating Selling Stockholder Information"), at the date hereof and
on each Delivery Date, does not and will not contain any untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in light of the
circumstances under which they are made, not misleading.
(b) Authorization of Agreements. Such Participating Selling
Stockholder has the full right, power and authority to enter into this
Agreement and the U.S. Underwriting Agreement, a Power of Attorney (the
"Power of Attorney") and a Custody Agreement (as defined below) and to
sell, transfer and deliver the Stock to be sold by such Participating
Selling Stockholder hereunder. The execution and delivery of this
Agreement and the U.S. Underwriting Agreement, the Power of Attorney and
the Custody Agreement and the sale and delivery of the Stock to be sold
by such Participating Selling Stockholder and the consummation of the
transactions contemplated herein and compliance by such Participating
Selling Stockholder with its obligations hereunder do not and will not,
whether with or without the giving of notice or passage of time or both,
conflict with or constitute a breach of, or default under, or result in
the creation or imposition of any tax, lien, charge or encumbrance upon
the Stock to be sold by such Participating Selling Stockholder pursuant
to any contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, license, lease or other agreement or instrument to
which such Participating Selling Stockholder is a party or by which such
Participating Selling Stockholder may be bound, nor will such action
result in any violation of the provisions of the charter or by-laws or
other organizational instrument of such Participating Selling
Stockholder, if applicable, or (assuming the offering of the Stock is
conducted in accordance with the Securities Act and applicable state
securities laws) any applicable treaty, law, statute, rule, regulation,
judgment, order, writ or decree of any government, governmental
instrumentality or court, domestic or foreign, having jurisdiction over
such Participating Selling Stockholder or any of its properties.
(c) Good and Valid Title. Such Participating Selling
Stockholder has and will at the First Delivery Date and, if any Option
Stock is purchased, on the Second Delivery
10
Date (as defined below), have good and valid title to the Stock to be
sold by such Participating Selling Stockholder hereunder, free and clear
of any security interest, mortgage, pledge, lien, charge, claim, equity
or encumbrance of any kind, other than pursuant to this Agreement, the
U.S. Underwriting Agreement and the Letter Agreement (as defined in the
Prospectus); and upon delivery of such Stock and payment of the purchase
price therefor as contemplated herein and therein, assuming each
International Manager and U.S. Underwriter has no notice of any adverse
claim, each of the International Managers and the U.S. Underwriters will
receive good and valid title to the Stock purchased by it from such
Participating Selling Stockholder, free and clear of any security
interest, mortgage, pledge, lien, charge, claim, equity or encumbrance
of any kind.
(d) Due Execution of Power of Attorney and Custody Agreement.
Such Participating Selling Stockholder has duly executed and delivered,
in the form heretofore furnished to the Lead Manager, the Power of
Attorney appointing Xxxxxxxxx X. Xxxxxxx, Xxxxxxxx X. Xxxxx or either of
them, as attorney(s)-in-fact (the "Attorney(s)-in-Fact") and a Custody
Agreement, with The Bank of New York (the "Custodian") as custodian,
(the "Custody Agreement"), and the Custodian is authorized to accept
payment for, and, upon receipt of such payment and written instructions
from such Participating Selling Stockholder or the Attorney-in-Fact, as
the case may be, to deliver, the Stock to be sold by such Participating
Selling Stockholder hereunder; and each Attorney-in-Fact is authorized
to execute and deliver this Agreement and the certificate referred to in
Section 9(k) hereof on behalf of such Participating Selling Stockholder,
to sell, assign and transfer to the International Managers and the U.S.
Underwriters the Stock to be sold by such Participating Selling
Stockholder hereunder and under the U.S. Underwriting Agreement, to
determine the purchase price to be paid by the International Managers
and the U.S. Underwriters to such Participating Selling Stockholder, as
provided in Section 3 hereof, to authorize the delivery of the Stock to
be sold by such Participating Selling Stockholder hereunder and under
the U.S. Underwriting Agreement, to accept payment therefor, and
otherwise to act on behalf of such Participating Selling Stockholder in
connection with this Agreement and the U.S. Underwriting Agreement.
(e) Absence of Manipulation. Such Participating Selling
Stockholder has not taken, and will not take, directly or indirectly,
any action which is designed to or which has constituted or which might
reasonably be expected to cause or result in stabilization or
manipulation of the price of any security of the Company to facilitate
the sale or resale of the Stock.
(f) Absence of Further Requirements. No filing with, or consent,
approval, authorization, order, registration, qualification or decree of
any court or governmental authority or agency, domestic or foreign, is
necessary or required for the performance by each Participating Selling
Stockholder of its obligations hereunder or in the Power of Attorney or
the Custody Agreement, or in connection with the sale and delivery of
the Stock hereunder and under the U.S. Underwriting Agreement or the
consummation of the transactions contemplated hereby and thereby, except
such as may have previously been
11
made or obtained or will have been obtained or made prior to the First
Delivery Date or as may be required under the Securities Act or the 1933
Act Regulations or state securities laws.
(g) Certificates Suitable for Transfer. Certificates for all
of the Stock to be sold by such Participating Selling Stockholder
pursuant to this Agreement and the U.S. Underwriting Agreement, in
suitable form for transfer by delivery or accompanied by duly executed
instruments of transfer or assignment in blank with signatures
guaranteed, have been placed in custody with the Custodian with
irrevocable conditional instructions to deliver such Stock to the
International Managers and the U.S. Underwriters pursuant to this
Agreement and the U.S.
Underwriting Agreement.
(h) No Association with NASD. Except as disclosed by such
Participating Selling Stockholder in writing to the Lead Manager,
neither such Participating Selling Stockholder nor any of his, her or
its affiliates directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common
control with, or has any other association with (within the meaning of
Article I, (q) of the By-laws of the National Association of Securities
Dealers, Inc. (the "NASD")), any member firm of the NASD.
3. PURCHASE OF THE STOCK BY THE INTERNATIONAL MANAGERS. On the
basis of the representations and warranties contained in, and subject to the
terms and conditions of, this Agreement, each Participating Selling Stockholder,
severally and not jointly, agrees to sell the number of shares of Firm Stock set
opposite its name in Schedule 2 hereto to the several International Managers,
and each of the International Managers, severally and not jointly, agrees to
purchase from each Participating Selling Stockholder, at a purchase price of
96.5% of the price to the public thereof, the number of shares of Firm Stock set
opposite that International Manager's name in Schedule 1 hereto. Each
International Manager shall be obligated to purchase from each Participating
Selling Stockholder that number of shares of Firm Stock which represents the
same proportion of the number of shares of Firm Stock to be sold by each
Participating Selling Stockholder as the number of shares of Firm Stock set
forth opposite the name of such International Manager in Schedule 1 represents
of the total number of shares of Firm Stock to be purchased by all of the
International Managers pursuant to this Agreement. The respective purchase
obligations of the International Managers with respect to the Firm Stock shall
be rounded among the International Managers to avoid fractional shares, as the
Lead Manager may determine.
In addition, the Participating Selling Stockholders grant to the
International Managers an option to purchase up to 77,760 shares of Option
Stock. Such option is granted solely for the purpose of covering over-allotments
in the sale of Firm Stock and is exercisable as provided in Section 5 hereof.
Shares of Option Stock shall be purchased severally for the account of the
International Managers in proportion to the number of shares of Firm Stock set
opposite the name of such International Managers in Schedule 1 hereto. The
respective purchase obligations of each International Manager with respect to
the Option Stock shall be adjusted by the Lead Manager so that no International
Manager shall be obligated to purchase Option Stock other than in 100 share
12
amounts. The price to the public of both the Firm Stock and any Option Stock
shall be $29.00 per share.
The Participating Selling Stockholders shall not be obligated to
deliver any of the Stock to be delivered on the First Delivery Date or the
Second Delivery Date, as the case may be, except upon payment for all the Stock
to be purchased on such Delivery Date as provided herein and in the U.S.
Underwriting Agreement.
4. OFFERING OF STOCK BY THE INTERNATIONAL MANAGERS. Upon
authorization by the Lead Manager of the release of Firm Stock, the several
International Managers propose to offer the Firm Stock for sale upon the terms
and conditions set forth in the Prospectus.
Each International Manager agrees that, except to the extent
permitted by the Agreement Between U.S. Underwriters and International Managers,
it will not offer or sell any of the Stock outside of the United States.
5. DELIVERY OF AND PAYMENT FOR THE STOCK. Delivery of and payment
for the Firm Stock shall be made at the office of Cleary, Gottlieb, Xxxxx &
Xxxxxxxx, Xxx Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 10:00 A.M., New York
City time, on the third (fourth, if the pricing occurs after 4:30 P.M. New York
City time on any given day) full business day following the date of this
Agreement or at such other date or place as shall be determined by agreement
among the Lead Manager, the Company and the Participating Selling Stockholders.
This date and time are sometimes referred to as the "First Delivery Date." On
the First Delivery Date, the Participating Selling Stockholders shall deliver or
cause to be delivered certificates representing the Firm Stock to the Lead
Manager for the account of each International Manager against payment of the
purchase price by wire transfer of immediately available funds to bank accounts
designated by the Custodian pursuant to each Participating Selling Stockholder's
Custody Agreement. Time shall be of the essence, and delivery at the time and
place specified pursuant to this Agreement is a further condition of the
obligation of each International Manager hereunder. Upon delivery, the Firm
Stock shall be registered in such names and in such denominations as the Lead
Manager shall request in writing not less than two full business days prior to
the First Delivery Date. For the purpose of expediting the checking and
packaging of the certificates for the Firm Stock, the Participating Selling
Stockholders shall make the certificates representing the Firm Stock available
for inspection by the Lead Manager in New York, New York, not later than 2:00
P.M., New York City time, on the business day prior to the First Delivery Date.
At any time on or before the thirtieth day after the date of this
Agreement, the option granted in Section 3 hereof may be exercised by written
notice being given to the Participating Selling Stockholders by the Lead
Manager. Such notice shall set forth the aggregate number of shares of Option
Stock as to which the option is being exercised, the names in which the shares
of Option Stock are to be registered, the denominations in which the shares of
Option Stock are to be issued and the date and time, as determined by the Lead
Manager, when the shares of Option Stock are to be delivered; PROVIDED, HOWEVER,
that this date and time shall not be earlier than the First Delivery Date, nor
earlier than the second business day after the date on which the option shall
have
13
been exercised, nor later than the fifth business day after the date on which
the option shall have been exercised. The date and time the shares of Option
Stock are delivered are sometimes referred to as the "Second Delivery Date" and
the First Delivery Date and the Second Delivery Date are sometimes each referred
to as a "Delivery Date").
Delivery of and payment for the Option Stock shall be made at the
place specified in the first sentence of the first paragraph of this Section 5
(or at such other place as shall be determined by agreement between the Lead
Manager and the Participating Selling Stockholder) at 10:00 A.M., New York City
time, on the Second Delivery Date. On the Second Delivery Date, the
Participating Selling Stockholders shall deliver or cause to be delivered the
certificates representing the Option Stock to the Lead Manager for the account
of each International Manager against payment of the purchase price by wire
transfer of immediately available funds to bank accounts designated by the
Custodian pursuant to each Participating Selling Stockholder's Custody
Agreement. Time shall be of the essence, and delivery at the time and place
specified pursuant to this Agreement is a further condition of the obligation of
each International Manager hereunder. Upon delivery, the Option Stock shall be
registered in such names and in such denominations as the Lead Manager shall
request in the aforesaid written notice. For the purpose of expediting the
checking and packaging of the certificates for the Option Stock, the
Participating Selling Stockholders shall make the certificates representing the
Option Stock available for inspection by the Lead Manager in New York, New York,
not later than 2:00 P.M., New York City time, on the business day prior to the
Second Delivery Date.
6. FURTHER AGREEMENTS OF THE COMPANY. The Company agrees:
(a) To prepare a Prospectus including the Rule 430A Information
in a form approved by the Lead Manager and to file such Prospectus
pursuant to Rule 424(b) under the Securities Act not later than the
Commission's close of business on the second business day following the
execution and delivery of this Agreement or, if applicable, such earlier
time as may be required by Rule 430A(a)(3) under the Securities Act; to
make no further amendment or any supplement to the Registration
Statement or to the Prospectus except as permitted herein; to advise the
Lead Manager, promptly after it receives notice thereof, of the time
when any amendment to the Registration Statement has been filed or
becomes effective or any supplement to the Prospectus or any amended or
supplemented Prospectus has been filed and to furnish the Lead Manager
with copies thereof; to advise the Lead Manager, promptly after it
receives notice thereof, of the issuance by the Commission of any stop
order or of any order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus, of the suspension of the
qualification of the Stock for offering or sale in any jurisdiction, of
the initiation or threatening of any proceeding for any such purpose, or
of any request by the Commission for the amending or supplementing of
the Registration Statement or the Prospectus or for additional
information; and, in the event of the issuance of any stop order or of
any order preventing or suspending the use of any Preliminary Prospectus
or the Prospectus or suspending any such qualification, to use promptly
its best efforts to obtain its withdrawal;
(b) To furnish promptly to the Lead Manager and to counsel for
the International Managers a signed copy of the Registration Statement
as originally filed with the Commission, and each amendment thereto
filed with
14
the Commission, including all consents and exhibits filed therewith;
(c) To deliver promptly to the Lead Manager such number of the
following documents as the Lead Manager shall reasonably request: (i)
conformed copies of the Registration Statement as originally filed with
the Commission and each amendment thereto (in each case excluding
exhibits other than this Agreement and the computation of per share
earnings) and (ii) each Preliminary Prospectus, the Prospectus and any
amended or supplemented Prospectus; and, if the delivery of a prospectus
is required at any time after the Effective Time in connection with the
offering or sale of the Stock or any other securities relating thereto
and if at such time any events shall have occurred as a result of which
the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus is
delivered, not misleading, or, if for any other reason it shall be
necessary to amend or supplement the Prospectus in order to comply with
the Securities Act, to notify the Lead Manager and, upon its request, to
prepare and furnish without charge to each International Manager and to
any dealer in securities as many copies as the Lead Manager may from
time to time reasonably request of an amended or supplemented Prospectus
which will correct such statement or omission or effect such compliance;
(d) To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the
Prospectus that may, in the judgment of the Company or the Lead Manager,
be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the
Registration Statement or supplement to the Prospectus or any Prospectus
pursuant to Rule 424 of the 1933 Act Regulations, to furnish a copy
thereof to the Lead Manager and counsel for the International Managers
and obtain the consent of the Lead Manager to the filing;
(f) Timely file such reports pursuant to the U.S. Securities
Exchange Act of 1934, as amended (the "Exchange Act") as are necessary
in order to make generally available to its securityholders as soon as
practicable an earnings statement for the purposes of, and to provide
the benefits contemplated by, the last paragraph of Section 11(a) of the
Securities Act;
(g) For a period of five years following the Effective Time, to
furnish to the Lead Manager copies of all materials furnished by the
Company to its stockholders and all public reports and all reports and
financial statements furnished by the Company to the principal national
securities exchange upon which the Common Stock may be listed pursuant
to requirements of or agreements with such exchange or to the Commission
pursuant to the Exchange Act or any rule or regulation of the Commission
thereunder; and
15
(h) Promptly from time to time to take such action as the Lead
Manager may reasonably request to qualify the Stock for offering and
sale under the securities laws of such jurisdictions as the Lead Manager
may request and to comply with such laws so as to permit the continuance
of sales and dealings therein in such jurisdictions for as long as may
be necessary to complete the distribution of the Stock; PROVIDED that in
connection therewith the Company shall not be required to qualify as a
foreign corporation or to file a general consent to service of process
in any jurisdiction.
7. FURTHER AGREEMENT OF THE PARTICIPATING SELLING STOCKHOLDERS.
Each Participating Selling Stockholder agrees to deliver to the Lead Manager
prior to the First Delivery Date a properly completed and executed United States
Treasury Department Form W-9.
8. EXPENSES.
(a) The Company and/or the International Managers agree to pay
the following expenses: (i) the costs incident to the authorization,
sale and delivery of the Stock and any taxes payable in that connection;
(ii) the costs incident to the preparation, printing and filing under
the Securities Act of the Registration Statement and any amendments and
exhibits thereto; (iii) the costs of distributing the Registration
Statement as originally filed and each amendment thereto and any
post-effective amendments thereof (including, in each case, exhibits),
any Preliminary Prospectus, the Prospectus and any amendment or
supplement to the Prospectus, all as provided in this Agreement; (iv)
the costs of producing and distributing this Agreement, the Agreement
Between U.S. Underwriters and International Managers, the Agreement
Among International Managers and any other related documents in
connection with the offering, purchase, sale and delivery of the Stock;
(v) the costs of delivering and distributing the Powers of Attorney and
the Custody Agreements and the fees and expenses of the Custodian (and
any other Attorney-in-Fact); (vi) the filing fees incident to securing
any required review by the NASD of the terms of sale of the Stock; (vii)
the fees and expenses of qualifying the Stock under the securities laws
of the several jurisdictions as provided in Section 6 hereof and of
preparing, printing and distributing a blue sky application or other
document prepared or executed by the Company (or based upon any written
information furnished by the Company) specifically for the purpose of
qualifying any or all of the Stock under the securities laws of any
state or other jurisdiction (any such application, document or
information being hereinafter called a "Blue Sky Application")
(including related fees and expenses of counsel to the International
Managers); (viii) the preparation and delivery of the certificates for
the Stock to the International Managers and the U.S. Underwriters; (ix)
the fees and disbursements of the Company's counsel, accountants and
other advisors; and (x) all other costs and expenses incident to the
performance of the obligations of the Company and, except as set forth
in paragraph (b) below, the Participating Selling Stockholders under
this Agreement and the U.S. Underwriting Agreement. The allocation of
the foregoing expenses between the Company and the International
Managers will be set forth in a separate agreement between the Company
and the International Managers.
16
(b) The Participating Selling Stockholders agree to pay (i) any
stamp duties, capital duties and stock transfer taxes, if any, payable
upon the sale of the Stock of such Participating Selling Stockholder to
the International Managers and the U.S. Underwriters and their transfer
between the International Managers and the U.S. Underwriters pursuant to
the Agreement Between U.S. Underwriters and International Managers and
(ii) the fees and disbursements of their respective counsel, accountants
and other advisors.
9. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The respective
obligations of the International Managers hereunder are subject to the accuracy,
when made and on each Delivery Date, of the representations and warranties of
the Company, the Bank and the Participating Selling Stockholders contained
herein or in certificates of any officer of the Company or any subsidiary of the
Company (including the Bank), or by or on behalf of any Participating Selling
Stockholder delivered pursuant to the provisions hereof, to the performance by
the Company, the Bank and the Participating Selling Stockholders of their
respective covenants and other obligations hereunder, and to each of the
following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the
Commission in accordance with Section 6(a) hereof; no stop order
suspending the effectiveness of the Registration Statement or any part
thereof shall have been issued and no proceeding for that purpose shall
have been initiated or threatened by the Commission; and any request of
the Commission for inclusion of additional information in the
Registration Statement or the Prospectus or otherwise shall have been
complied with.
(b) All corporate proceedings and other legal matters incident to
the authorization, form and validity of this Agreement, the U.S.
Underwriting Agreement, the Powers of Attorney, the Custody Agreements,
the Stock, the Registration Statement and the Prospectus, and all other
legal matters relating to this Agreement and the transactions
contemplated hereby shall be reasonably satisfactory in all material
respects to the Lead Manager and counsel for the International Managers.
(c) Wachtell, Lipton, Xxxxx & Xxxx shall have furnished to the
Lead Manager their written opinion, as counsel to the Company, addressed
to the International Managers and dated such Delivery Date, in form and
substance reasonably satisfactory to the Lead Manager, to the effect set
forth in Exhibit A hereto, and to such further effect as counsel to the
International Managers may reasonably request.
(d) Xxxxxxxx X. Xxxxxxx, Esq., general counsel of the Company,
shall have furnished to the Lead Manager its written opinion, as counsel
to the Company, addressed to the International Managers and dated such
Delivery Date, in form and substance reasonably satisfactory to the Lead
Manager, to the effect set forth in Exhibit B hereto, and to such
further effect as counsel to the International Managers may reasonably
request.
(e) Counsel for each Participating Selling Stockholder other than
Equitable shall have furnished to the Lead Manager their written
opinion, as counsel to such Participating Selling Stockholder, addressed
to the International Managers and dated such Delivery Date, in form and
substance reasonably satisfactory to the Lead Manager, to the effect set
forth in Exhibit C hereto, and to such further effect as counsel to the
International Managers may reasonably request.
(f) Counsel for Equitable shall have furnished to the Lead
Manager their written opinion, as counsel to Equitable as a
Participating Selling Stockholder, addressed to the International
Managers and dated such
17
Delivery Date, in form and substance reasonably satisfactory to the Lead
Manager, to the effect set forth in Exhibit D hereto, and to such
further effect as counsel to the International Managers may reasonably
request.
(g) The Lead Manager shall have received from Cleary, Gottlieb,
Xxxxx & Xxxxxxxx, counsel for the International Managers, such opinion
or opinions, dated such Delivery Date, with respect to the sale of the
Stock, the Registration Statement, the Prospectus and other related
matters as the Lead Manager may reasonably require, and the Company
shall have furnished to such counsel such documents as they reasonably
request for the purpose of enabling them to pass upon such matters.
(h) At the time of execution of this Agreement, the Lead Manager
shall have received from Deloitte & Touche LLP a letter, in form and
substance satisfactory to the Lead Manager, addressed to the
International Managers and dated the date hereof (i) confirming that
they are independent public accountants within the meaning of the
Securities Act and are in compliance with the applicable requirements
relating to the qualification of accountants under Rule 2-01 of
Regulation S-X of the Commission, (ii) stating, as of the date hereof
(or, with respect to matters involving changes or developments since the
respective dates as of which specified financial information is given in
the Prospectus, as of a date not more than five days prior to the date
hereof), the conclusions and findings of such firm with respect to the
financial information and other matters ordinarily covered by
accountants' "comfort letters" to underwriters in connection with
registered public offerings.
(i) With respect to the letter of Deloitte & Touche LLP referred
to in the preceding paragraph and delivered to the Lead Manager
concurrently with the execution of this Agreement (the "initial
letter"), the Company shall have furnished to the Lead Manager a letter
(the "bring-down letter") of such accountants, addressed to the
International Managers and dated such Delivery Date (i) confirming that
they are independent public accountants within the meaning of the
Securities Act and are in compliance with the applicable requirements
relating to the qualification of accountants under Rule 2-01 of
Regulation S-X of the Commission, (ii) stating, as of the date of the
bring-down letter (or, with respect to matters involving changes or
developments since the respective dates as of which specified financial
information is given in the Prospectus, as of a date not more than five
days prior to the date of the bring-down letter), the conclusions and
findings of such firm with respect to the financial information and
other matters covered by the initial letter and (iii) confirming in all
material respects the conclusions and findings set forth in the initial
letter.
18
(j) The Company shall have furnished to the Lead Manager a
certificate, dated such Delivery Date, of its Chairman of the Board, its
President or a Vice President and its chief financial officer stating
that the representations, warranties and agreements of the Company in
Section 1 hereof are true and correct as of such Delivery Date; the
Company has complied with all its agreements contained herein; and the
conditions set forth in Sections 9(a) and 9(l) hereof have been
fulfilled.
(k) Each Participating Selling Stockholder (or the Custodian or
one or more Attorneys-in-Fact on behalf of the Participating Selling
Stockholders) shall have furnished to the Lead Manager a certificate,
signed by, or on behalf of, the Participating Selling Stockholder (or
the Custodian or one or more Attorneys-in-Fact) stating that the
representations and warranties of such Participating Selling Stockholder
contained herein are true and correct as of such Delivery Date and that
such Participating Selling Stockholder has complied with all agreements
contained herein to be performed by the Participating Selling
Stockholder at or prior to such Delivery Date.
(l) There shall not have been, since the date hereof or since the
respective dates as of which information is given in the Prospectus, any
Material Adverse Change.
(m) The closing under the U.S. Underwriting Agreement shall have
occurred concurrently with the closing hereunder on the First Delivery
Date.
(n) Subsequent to the execution and delivery of this Agreement
there shall not have occurred any of the following: (i) trading in
securities generally on the New York Stock Exchange or the American
Stock Exchange or in the over-the-counter market, or trading in any
securities of the Company on any exchange or in the over-the-counter
market, shall have been suspended or minimum prices shall have been
established on any such exchange or such market by the Commission, by
such exchange or by any other regulatory body or governmental authority
having jurisdiction, (ii) a banking moratorium shall have been declared
by Federal or state authorities, (iii) the United States shall have
become engaged in hostilities, there shall have been an escalation in
hostilities involving the United States or there shall have been a
declaration of a national emergency or war by the United States or (iv)
there shall have occurred such a material adverse change in general
economic, political or financial conditions (or the effect of
international conditions on the financial markets in the United States
shall be such) as to make it, in the judgment of a majority in interest
of the several International Managers, impracticable or inadvisable to
proceed with the public offering or delivery of the Stock being
delivered on such Delivery Date on the terms and in the manner
contemplated in the Prospectus.
All opinions, letters, evidence and certificates mentioned above
or elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the International Managers.
19
10. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company and the Bank, jointly and severally, shall
indemnify and hold harmless each Participating Selling Stockholder, each
International Manager, their respective officers and employees and each person,
if any, who controls any Participating Selling Stockholder or International
Manager within the meaning of the Securities Act, from and against any loss,
claim, damage or liability, joint or several, or any action in respect thereof
(including, but not limited to, any loss, claim, damage, liability or action
relating to purchases and sales of Stock), to which such International Manager,
Participating Selling Stockholder, officer, employee or controlling person may
become subject, under the Securities Act or otherwise, insofar as such loss,
claim, damage, liability or action arises out of, or is based upon, (i) any
untrue statement or alleged untrue statement of a material fact contained (A) in
any Preliminary Prospectus, the Registration Statement or the Prospectus or in
any amendment or supplement thereto or (B) in any Blue Sky Application, or (ii)
the omission or alleged omission to state in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or in any amendment or supplement
thereto, or in any Blue Sky Application any material fact required to be stated
therein or necessary to make the statements therein not misleading, and shall
reimburse each Participating Selling Stockholder and International Manager and
each such officer, employee or controlling person promptly upon demand for any
legal or other expenses reasonably incurred by that Participating Selling
Stockholder or International Manager, officer, employee or controlling person in
connection with investigating or defending or preparing to defend against any
such loss, claim, damage, liability or action as such expenses are incurred;
PROVIDED, HOWEVER, that the Company and the Bank shall not be liable under this
Section 10(a) in any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue statement or
alleged untrue statement or omission or alleged omission made in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or in any such
amendment or supplement, or in any Blue Sky Application, in reliance upon and in
conformity with the Participating Selling Stockholder Information or written
information concerning such International Manager furnished to the Company
through the Lead Manager by or on behalf of any such International Manager
specifically for inclusion therein. The foregoing indemnity agreement is in
addition to any liability which the Company or the Bank may otherwise have to
any Participating Selling Stockholder or International Manager or to any
officer, employee or controlling person of such International Manager.
(b) The Participating Selling Stockholders, severally and not
jointly, shall indemnify and hold harmless each International Manager, its
officers and employees, and each person, if any, who controls any International
Manager within the meaning of the Securities Act, from and against any loss,
claim, damage or liability, joint or several, or any action in respect thereof
(including, but not limited to, any loss, claim, damage, liability or action
relating to purchases and sales of Stock), to which such International Manager,
officer, employee or controlling person may become subject, under the Securities
Act or otherwise, insofar as such loss, claim, damage, liability or action
arises out of, or is based upon, (i) any untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement or the Prospectus or in any amendment or supplement
thereto or (ii) the omission or alleged omission to state in any Preliminary
Prospectus, Registration Statement or the Prospectus, or in any amendment or
supplement thereto, any material fact required to be stated therein or
20
necessary to make the statements therein not misleading, but in each case only
to the extent that the untrue statement or alleged untrue statement or omission
or alleged omission is a misstatement in or omission from the Participating
Selling Stockholder Information, and shall reimburse each International Manager,
its officers and employees and each such controlling person for any legal or
other expenses reasonably incurred by that International Manager, its officers
and employees or controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim, damage, liability
or action as such expenses are incurred; PROVIDED, HOWEVER, that each
Participating Selling Stockholder's aggregate liability under this Section 10
shall be limited to an amount equal to the net proceeds (after deducting the
underwriting discount, but before deducting expenses) received by such
Participating Selling Stockholder from the sale of Stock pursuant to this
Agreement. The foregoing indemnity agreement is in addition to any liability
which the Participating Selling Stockholders may otherwise have to any
International Manager or any officer, employee or controlling person of that
International Manager.
(c) Each International Manager, severally and not jointly, shall
indemnify and hold harmless each Participating Selling Stockholder, the Company,
their respective officers and employees, each of their respective directors and
each person, if any, who controls such Participating Selling Stockholder or the
Company within the meaning of the Securities Act, from and against any loss,
claim, damage or liability, joint or several, or any action in respect thereof,
to which such Participating Selling Stockholder, the Company or any such
director, officer or controlling person may become subject, under the Securities
Act or otherwise, insofar as such loss, claim, damage, liability or action
arises out of, or is based upon, (i) any untrue statement or alleged untrue
statement of a material fact contained (A) in any Preliminary Prospectus, the
Registration Statement or the Prospectus or in any amendment or supplement
thereto, or (B) in any Blue Sky Application or (ii) the omission or alleged
omission to state in any Preliminary Prospectus, the Registration Statement or
the Prospectus, or in any amendment or supplement thereto, or in any Blue Sky
Application any material fact required to be stated therein or necessary to make
the statements therein not misleading, but in each case only to the extent that
the untrue statement or alleged untrue statement or omission or alleged omission
was made in reliance upon and in conformity with written information concerning
such International Manager furnished to the Company through the Lead Manager by
or on behalf of such International Manager specifically for inclusion therein,
and shall reimburse such Participating Selling Stockholder, the Company and any
such director, officer or controlling person for any legal or other expenses
reasonably incurred by such Participating Selling Stockholder, the Company or
any such director, officer or controlling person in connection with
investigating or defending or preparing to defend against any such loss, claim,
damage, liability or action as such expenses are incurred. The foregoing
indemnity agreement is in addition to any liability which any International
Manager may otherwise have to the Participating Selling Stockholders, the
Company or any such director, officer, employee or controlling person.
(d) Promptly after receipt by an indemnified party under this
Section 10 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 10, notify the indemnifying party in
writing of the claim or the commencement of that action; PROVIDED, HOWEVER, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may
21
have under this Section 10 except to the extent it has been materially
prejudiced by such failure. If any such claim or action shall be brought against
an indemnified party, and it shall notify the indemnifying party thereof, the
indemnifying party shall be entitled to participate therein and, to the extent
that it wishes, jointly with any other similarly notified indemnifying party, to
assume the defense thereof with counsel reasonably satisfactory to the
indemnified party. After notice from the indemnifying party to the indemnified
party of its election to assume the defense of such claim or action, the
indemnifying party shall not be liable to the indemnified party under this
Section 10 for any legal or other expenses subsequently incurred by the
indemnified party in connection with the defense thereof other than reasonable
costs of investigation; PROVIDED, HOWEVER, that (i) the Lead Manager shall have
the right to employ counsel to represent jointly the Lead Manager and those
other International Managers and their respective officers, employees and
controlling persons who may be subject to liability arising out of any claim in
respect of which indemnity may be sought by the International Managers against
the Company, the Bank or any Participating Selling Stockholder under this
Section 10 if, in the reasonable judgment of the Lead Manager, it is advisable
for the Lead Manager and those International Managers, officers, employees and
controlling persons to be jointly represented by separate counsel, and in that
event the fees and expenses of such separate counsel shall be paid by the
Company or the Bank, and (ii) notwithstanding the indemnifying party's election
to appoint counsel to represent the Participating Selling Stockholders in an
action, each Participating Selling Stockholder shall have the right to employ
separate counsel, and the indemnifying party shall bear the duly documented
reasonable fees, costs and expenses of such separate counsel, if (A) in the
reasonable judgment of such Participating Selling Stockholder, the use of
counsel chosen by the indemnifying party to represent such Participating Selling
Stockholder would present such counsel with a conflict of interest, (B) the
actual or potential defendants in, or targets of, any such action include both
such Participating Selling Stockholder and the indemnifying party and such
Participating Selling Stockholder shall have reasonably concluded that there may
be legal defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party, (C)
the indemnifying party shall not have employed counsel satisfactory to such
Participating Selling Stockholder to represent such Participating Selling
Stockholder within a reasonable time after notice of the institution of such
action or (D) the indemnifying party shall authorize such Participating Selling
Stockholder to employ separate counsel at the expense of the indemnifying party.
No indemnifying party shall (I) without the prior written consent of the
indemnified parties (which consent shall not be unreasonably withheld), settle
or compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding, or (II) be liable for any settlement of any such action
effected without its written consent (which consent shall not be unreasonably
withheld), but if settled with the consent of the indemnifying party or if there
be a final judgment of the plaintiff in any such action, the indemnifying party
agrees to indemnify and hold harmless any indemnified party from and against any
loss or liability by reason of such settlement or judgment.
(e) If the indemnification provided for in this Section 10 shall
for any reason be unavailable to or insufficient to hold harmless an indemnified
party under Section 10(a), 10(b) or
22
10(c) hereof in respect of any loss, claim, damage or liability, or any action
in respect thereof, referred to therein, then each indemnifying party shall, in
lieu of indemnifying such indemnified party under Section 10(a), 10(b) or 10(c),
as the case may be, in respect of any loss, claim, damage or liability, or any
action in respect thereof, referred to therein, contribute to the amount paid or
payable by such indemnified party as a result of such loss, claim, damage or
liability, or action in respect thereof, referred to in Section 10(a), 10(b) or
10(c), as the case may be, (i) in such proportion as shall be appropriate to
reflect the relative benefits received by the Company, the Bank and the
Participating Selling Stockholders on the one hand and the International
Managers on the other from the offering of the Stock or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company, the Bank and
the Participating Selling Stockholders on the one hand and the International
Managers on the other with respect to the statements or omissions which resulted
in such loss, claim, damage or liability, or action in respect thereof, as well
as any other relevant equitable considerations. As between the Company and the
Bank on the one hand and the Participating Selling Stockholders on the other,
each indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof, in such
proportion as shall be appropriate to reflect the relative fault of the Company
and the Bank on the one hand and the Participating Selling Stockholders on the
other. The relative benefits received by the Company, the Bank and the
Participating Selling Stockholders on the one hand and the International
Managers on the other with respect to such offering shall be deemed to be in the
same proportion as the total net proceeds from the offering of the Stock
purchased under this Agreement (before deducting expenses) received by the
Company, the Bank and the Participating Selling Stockholders, on the one hand,
and the total underwriting discounts and commissions received by the
International Managers with respect to the shares of the Stock purchased under
this Agreement, on the other hand, bear to the total gross proceeds from the
offering of the shares of the Stock under this Agreement, in each case as set
forth in the table on the cover page of the Prospectus. The relative fault shall
be determined by reference to whether the untrue or alleged untrue statement of
a material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company, the Bank, the Participating Selling
Stockholders or the International Managers, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent
such statement or omission. For purposes of the preceding two sentences, the net
proceeds deemed to be received by the Company shall be deemed to be also for the
benefit of the Bank and information supplied by the Company shall also be deemed
to have been supplied by the Bank. The Company, the Bank, the Participating
Selling Stockholders and the International Managers agree that it would not be
just and equitable if contributions pursuant to this Section 10(e) were to be
determined by PRO RATA allocation (even if the International Managers were
treated as one entity for such purpose) or by any other method of allocation
which does not take into account the equitable considerations referred to in
this Section 10(e). The amount paid or payable by an indemnified party as a
result of the loss, claim, damage or liability, or action in respect thereof,
referred to above in this Section 10(e) shall be deemed to include, for purposes
of this Section 10(e), any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Section 10(e), (A) no
International Manager shall be
23
required to contribute any amount in excess of the amount by which the total
price at which the Stock underwritten by it and distributed to the public was
offered to the public exceeds the amount of any damages which such International
Manager has otherwise paid or become liable to pay by reason of any untrue or
alleged untrue statement or omission or alleged omission, and (B) each
Participating Selling Stockholder's aggregate liability under this Section 10
shall be limited to an amount equal to the net proceeds (after deducting the
underwriting discount, but before deducting expenses) received by such
Participating Selling Stockholder from the sale of Stock pursuant to this
Agreement. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
International Managers' obligations to contribute as provided in this Section
10(e) are several in proportion to their respective underwriting obligations and
not joint.
(f) The International Managers severally confirm and the Company
acknowledges that the statements with respect to the secondary offering of the
Stock by the International Managers set forth on the cover page of, the legend
concerning over-allotments on the inside front cover page of, and the concession
and reallowance figures appearing under the caption "Underwriting" in, the
Prospectus Supplement are correct and constitute the only information concerning
such International Managers furnished in writing to the Company by or on behalf
of the International Managers specifically for inclusion in the Registration
Statement and the Prospectus.
11. DEFAULTING MANAGERS. If, on either Delivery Date, any
International Manager defaults in the performance of its obligations under this
Agreement, the remaining non-defaulting International Managers shall be
obligated to purchase the Stock which the defaulting International Manager
agreed but failed to purchase on such Delivery Date in the respective
proportions which the number of shares of Firm Stock set opposite the name of
each remaining non-defaulting International Manager in Schedule 1 hereto bears
to the total number of shares of Firm Stock set opposite the names of all the
remaining non-defaulting International Managers in Schedule 1 hereto; PROVIDED,
HOWEVER, that the remaining non-defaulting International Managers shall not be
obligated to purchase any of the Stock on such Delivery Date if the total number
of shares of the Stock which the defaulting International Manager or Managers
agreed but failed to purchase on such date exceeds 9.09% of the total number of
shares of the Stock to be purchased on such Delivery Date, and any remaining
non-defaulting International Manager shall not be obligated to purchase more
than 110% of the number of shares of the Stock which it agreed to purchase on
such Delivery Date pursuant to the terms of Section 3 hereof. If the foregoing
maximums are exceeded, the remaining non-defaulting International Managers, or
those other managers satisfactory to the Lead Manager who so agree, shall have
the right, but shall not be obligated, to purchase, in such proportion as may be
agreed upon among them, all the Stock to be purchased on such Delivery Date. If
the remaining International Managers or other managers satisfactory to the Lead
Manager do not elect to purchase the Stock which the defaulting International
Manager or Managers agreed but failed to purchase on such Delivery Date, this
Agreement (or, with respect to the Second Delivery Date, the obligation of the
International Managers to purchase, and of the Participating Selling
Stockholders to sell, the Option Stock) shall terminate without liability on the
part of any non-defaulting International Manager or the Company or the
Participating Selling Stockholders, except that the Company will continue to be
liable for the payment of expenses to the
24
extent set forth in Section 8 hereof. As used in this Agreement, the term
"International Manager" includes, for all purposes of this Agreement unless the
context requires otherwise, any party not listed in Schedule 1 hereto who,
pursuant to this Section 11, purchases Firm Stock which a defaulting
International Manager agreed but failed to purchase.
Nothing contained herein shall relieve a defaulting International
Manager of any liability it may have to the Company and the Participating
Selling Stockholders for damages caused by its default. If other managers are
obligated or agree to purchase the Stock of a defaulting or withdrawing
International Manager, the Lead Manager, the Company and the Participating
Selling Stockholders may postpone the Delivery Date for up to seven full
business days in order to effect any changes that in the opinion of counsel for
the Company or counsel for the International Managers may be necessary in the
Registration Statement, the Prospectus or in any other document or arrangement.
12. TERMINATION. The obligations of the International Managers
hereunder may be terminated by the Lead Manager by notice given to and received
by the Company and the Participating Selling Stockholders prior to delivery of
and payment for the Firm Stock if, prior to that time, any of the events
described in Sections 9(l) or 9(n) hereof shall have occurred or if the
International Managers shall decline to purchase the Stock for any reason
permitted under this Agreement.
13. NOTICES, ETC. All statements, requests, notices and
agreements hereunder shall be in writing, and:
(a) if to the International Managers, shall be delivered or sent
by mail, telex or facsimile transmission to Xxxxxx Brothers
International (Europe), Three World Financial Center, New York, New York
10285, Attention: Syndicate Department (Fax: 000-000-0000), with a copy,
in the case of any notice pursuant to Section 10(d) hereof, to the
Director of Litigation, Office of the General Counsel, Xxxxxx Brothers
Inc., 0 Xxxxx Xxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000;
(b) if to the Company or the Bank, shall be delivered or sent by
mail, telex or facsimile transmission to the address of the Company set
forth in the Registration Statement, Attention: Xxxxxxxx X. Xxxxxxx,
Esq. (Fax: 000-000-0000);
(c) if to any Participating Selling Stockholders, shall be
delivered or sent by mail, telex or facsimile transmission to such
Participating Selling Stockholder at the address set forth on Schedule 2
hereto;
PROVIDED, HOWEVER, that any notice to a International Manager pursuant to
Section 10(d) hereof shall be delivered or sent by mail, telex or facsimile
transmission to such International Manager at its address set forth in its
acceptance telex to the Lead Manager, which address will be supplied to any
other party hereto by the Lead Manager upon request. Any such statements,
requests, notices or agreements shall take effect at the time of receipt
thereof. The Company and the Participating Selling Stockholders shall be
entitled to act and rely upon any request, consent, notice or agreement given or
made on behalf of the International Managers by the Lead Manager and the Company
and
25
the International Managers shall be entitled to act and rely upon any request,
consent, notice or agreement given or made on behalf of the Participating
Selling Stockholders by the Custodian.
14. PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement
shall inure to the benefit of and be binding upon the International Managers,
the Company, the Bank, the Participating Selling Stockholders and their
respective personal representatives and successors. This Agreement and the terms
and provisions hereof are for the sole benefit of only those persons, except
that (a) the representations, warranties, indemnities and agreements of the
Company and the indemnities of the Participating Selling Stockholders contained
in this Agreement shall also be deemed to be for the benefit of the person or
persons, if any, who control any International Manager within the meaning of
Section 15 of the Securities Act and each U.S. Underwriter (and controlling
persons thereof) who offers or sells any shares of Common Stock in accordance
with the terms of the Agreement Between U.S. Underwriters and International
Managers and (b) the indemnity agreement of the International Managers contained
in Section 10(c) hereof shall be deemed to be for the benefit of directors of
the Company and each Participating Selling Stockholder, officers of the Company
who have signed the Registration Statement and any person controlling the
Company and each Participating Selling Stockholder within the meaning of Section
15 of the Securities Act. Nothing in this Agreement is intended or shall be
construed to give any person, other than the persons referred to in this Section
14, any legal or equitable right, remedy or claim under or in respect of this
Agreement or any provision contained herein.
15. SURVIVAL. The respective representations, warranties and
agreements of the Company, the Bank, the Participating Selling Stockholders and
the International Managers contained in this Agreement or made by or on behalf
on them, respectively, pursuant to this Agreement, shall survive the delivery of
and payment for the Stock and shall remain in full force and effect, regardless
of any investigation made by or on behalf of any of them or any person
controlling any of them.
16. DEFINITION OF THE TERMS "BUSINESS DAY" AND "SUBSIDIARY". For
purposes of this Agreement, (a) "business day" means any day on which the New
York Stock Exchange, Inc. is open for trading and (b) "subsidiary" has the
meaning set forth in Rule 405 of the 1933 Act Regulations.
17. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF NEW YORK.
18. CONSENT TO JURISDICTION. Each party irrevocably agrees that
any legal suit, action or proceeding arising out of or based upon this Agreement
or the transactions contemplated hereby may be instituted in the federal courts
of the United States of America located in the City of New York or the courts of
the State of New York in each case located in the Borough of Manhattan in the
City of New York (collectively, the "Specified Courts"), and irrevocably submits
to the exclusive jurisdiction (except for proceedings instituted in regard to
the enforcement of a judgment of any such court, as to which such jurisdiction
is non-exclusive) of such courts in any such suit, action or proceeding. The
parties further agree that service of any process, summons, notice or document
by mail to such party's address as set forth in Section 13 hereof shall be
effective service
26
of process for any lawsuit, action or other proceeding brought in any such
court. The parties hereby irrevocably and unconditionally waive any objection to
the laying of venue of any lawsuit, action or other proceeding in the Specified
Courts, and hereby further irrevocably and unconditionally waive and agree not
to plead or claim in any such court that any such lawsuit, action or other
proceeding brought in any such court has been brought in an inconvenient forum.
19. COUNTERPARTS. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
20. HEADINGS. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
27
If the foregoing correctly sets forth the agreement among the
Company, the Bank, the Participating Selling Stockholders and the International
Managers, please indicate your acceptance in the space provided for that purpose
below.
[FOR ELECTRONIC FILINGS MADE UNDER XXXXX, UNDERWRITERS' COUNSEL
IS REQUESTED TO MAINTAIN ONE SET OF MANUALLY SIGNED SIGNATURE PAGES.]
Very truly yours,
BANK UNITED CORP.
By:
Name:
Title:
BANK UNITED
By:
Name:
Title:
The Participating Selling Stockholders
named in Schedule 2 to this Agreement
other than Equitable
By:
Name:
Attorney-in-Fact
EQUITABLE DEAL FLOW FUND, L.P.
BY: EQUITABLE MANAGED ASSETS, L.P.,
as General Partner
By: THE EQUITABLE LIFE ASSURANCE
SOCIETY OF THE UNITED STATES,
as General Partner
By:
Name:
Title: INVESTMENT OFFICER
EQUITABLE CAPITAL PARTNERS, L.P.
BY: ALLIANCE CORPORATE FINANCE
GROUP INCORPORATED,
as Managing General Partner
By:
Name:
Title: SENIOR VICE PRESIDENT
EQUITABLE CAPITAL PARTNERS (RETIREMENT
FUND), L.P.
BY: ALLIANCE CORPORATE FINANCE
GROUP INCORPORATED,
as Managing General Partner
By:
Name:
Title: SENIOR VICE PRESIDENT
Accepted:
XXXXXX BROTHERS INC.,
as Representative
By:
Name:
Title:
SCHEDULE 1
INTERNATIONAL MANAGERS NUMBER OF SHARES
---------------------- ----------------
Xxxxxx Brothers International (Europe)...... 259,200
Xxxxxxx Xxxxx International................. 259,200
Xxxxx Xxxxxx Inc............................ 259,200
Total.............................. 777,600
=======
S1-1
SCHEDULE 2
NAME AND ADDRESS OF NUMBER OF SHARES OF NUMBER OF SHARES OF
PARTICIPATING SELLING STOCKHOLDERS FIRM STOCK OPTION STOCK
Equitable Deal Flow Fund L.P. 118,471 11,847
Equitable Capital Partners L.P. 141,735 14,174
Equitable Capital Partners (Retirement
Fund) L.P. 69,795 6,979
The Sweater Trust (Xxxxxx Xxxxxx) 94,711 9,471
Xxxxxx Xxxxxx 21,862 2,186
Institutional Interests (Xxxxxx Xxxxxx) 48,545 4,854
Xxxxxxx X. Xxxxxx 63,140 6,315
The Airlie Group 63,141 6,314
Xxxxxx X. Xxxxxxxx 789 79
CHESED Congregations of America 18,545 1,855
United Congregation Mesorah 66,364 6,636
Xxxxxxx Bros., Shay & Co. 3,560 357
SunAmerica Inc. 66,942 6,694
Total........................ 777,600 77,760
======= ======
S1-2
EXHIBIT A-1
FORM OF OPINION OF
WACHTELL, LIPTON, XXXXX & XXXX
TO BE DELIVERED PURSUANT TO SECTION 9(C)
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Delaware.
(ii) The Company has corporate power and authority to
own, lease and operate its properties and to conduct its business
as described in the Prospectus, and to enter into and perform its
obligations under the International Underwriting Agreement and
the U.S. Underwriting Agreement. The activities of each of the
Company's subsidiaries are permitted to subsidiaries of a savings
and loan holding company.
(iii) The Bank is the only "significant subsidiary" of
the Company (as such term is defined in Rule 1-02 of Regulation
S-X). The only subsidiaries of the Company other than the Bank
are the wholly-owned subsidiaries of the Bank listed on Exhibit _
to the Registration Statement which, considered in the aggregate
as a single subsidiary, do not constitute a "significant
subsidiary" as defined in Rule 1-02 of Regulation S-X.
(iv) The authorized, issued and outstanding capital stock
of the Company is as set forth in the Prospectus in the column
entitled "Pro Forma" under the caption "Capitalization" (except
for subsequent issuances, if any, pursuant to reservations,
agreements or employee benefit plans referred to in the
Prospectus or pursuant to the exercise of convertible securities
or options referred to in the Prospectus); the shares of issued
and outstanding capital stock of the Company, including the
shares of Common Stock to be purchased by the International
Managers and the U.S. Underwriters from the Participating Selling
Stockholders, have been duly authorized and validly issued and
are fully paid and non-assessable; and none of the outstanding
shares of capital stock of the Company, including the shares of
Common Stock to be purchased by the International Managers and
the U.S. Underwriters from the Participating Selling
Stockholders, was issued in violation of the preemptive or other
similar rights of any securityholder of the Company.
(v) The sale of the Common Stock to the International
Managers and the U.S. Underwriters by the Participating Selling
Stockholders is not subject to the preemptive or other similar
rights of any securityholder of the Company. The Common Stock
conforms to all statements relating thereto contained in the
Prospectus and such description conforms to the rights set forth
in the instruments defining the same.
(vi) The form of certificate used to evidence the Common
Stock to be sold in the Offerings contemplated by the
International Underwriting Agreement and the U.S. Underwriting
Agreement complies in all material respects with all applicable
statutory requirements, with any applicable requirements of the
Certificate and By-Laws of the Company, and with the requirements
of the NASDAQ National Stock Market.
(vii) The Registration Statement has been declared
effective under the Securities Act; each Prospectus as
supplemented by a Prospectus Supplement has been filed pursuant
to Rule 424(b) in the manner and within the time period required
by Rule 424(b); and, to the best of our knowledge, no stop order
suspending the effectiveness of the Registration Statement has
been issued under the Securities Act and no proceedings for that
purpose have been instituted or are pending or threatened by the
Commission.
(viii) The Registration Statement, the Rule 430A
Information, the Prospectus, and each amendment or supplement to
the Registration Statement and Prospectus, as of their respective
effective or issue dates (other than the financial statements and
supporting schedules included therein or omitted therefrom, as to
which we express no opinion) complied as to form in all material
respects with the requirements of the Securities Act and the 1933
Act Regulations.
(ix) The information in the Prospectus under the captions
"Risk Factors -- Limitations on Use of Tax Losses; Restrictions
on Transfers of Stock," "Risk Factors -- Holding Company
Structure; Ability to Pay Dividends," "Description of Capital
Stock," "Business -- The Assistance Agreement -- Warrant
Agreement," "Legal Proceedings," and in the Registration
Statement under "Part II. Information Not Required in Prospectus
-- Item 14. Indemnification of Directors and Officers," to the
extent that such information constitutes matters of law,
summaries of legal matters, the Certificate or By-laws or legal
proceedings, or legal conclusions, has been reviewed by us and is
correct in all material respects.
(x) To the best of our knowledge, there are no statutes
or regulations that are required to be described in the
Prospectus that are not described as required.
(xi) All statements in the Registration Statement about
contracts and other documents to which the Company or its
subsidiaries are a party, insofar as such statements purport to
summarize provisions of such contracts and documents, provide a
fair summary of such provisions, and we do not know of contracts
or other documents of a character required to be described in the
Registration Statement or to be filed as exhibits to the
Registration Statement that are not filed or described as
required.
A-2
(xii) Neither the Company, the Bank nor any of their
respective subsidiaries is in violation of its charter or by-laws
and, to the best of our knowledge, no default by the Company, the
Bank or any of their respective subsidiaries exists in the due
performance or observance of any material obligation, agreement,
covenant or condition contained in any contract, indenture,
mortgage, loan agreement, note, lease or other agreement or
instrument that is described or referred to in the Registration
Statement or the Prospectus or filed as an exhibit to the
Registration Statement.
(xiii) No filing with, or authorization, approval,
consent, license, order, registration, qualification or decree
of, any court or governmental authority or agency, domestic or
foreign including, without limitation, the OTS and FDIC (other
than under the Securities Act and the 1933 Act Regulations, which
have been obtained, or as may be required under the securities or
blue sky laws of the various states, as to which we express no
opinion) is necessary or required for the performance by the
Company of its obligations under the International Underwriting
Agreement and the U.S. Underwriting Agreement in connection with
the offering or sale of the Stock by the Participating Selling
Stockholders under the International Underwriting Agreement and
the U.S. Underwriting Agreement, for the consummation by the
Company and the Bank of the transactions contemplated by the
International Underwriting Agreement and the U.S. Underwriting
Agreement or the other transactions described in the Registration
Statement under the caption "The Company -- Background of the
Offering."
(xiv) The execution, delivery and performance of the
International Underwriting Agreement and the U.S. Underwriting
Agreement by the Company and the Bank, the consummation of the
transactions contemplated thereby, and compliance by each of the
Company and the Bank with their respective obligations under the
International Underwriting Agreement and the U.S. Underwriting
Agreement have been duly authorized by all necessary corporate
action and do not and will not result in any violation of the
provisions of the charter or by-laws of the Company, the Bank or
any of their respective subsidiaries, or any applicable law,
statute, rule, regulation, judgment, order, writ or decree, known
to us, of any government, governmental instrumentality or court,
domestic or foreign, having jurisdiction over the Company. Each
of the International Underwriting Agreement and the U.S.
Underwriting Agreement has been duly authorized, executed and
delivered by the Company and the Bank.
(xv) To the best of our knowledge, there are no persons
with registration rights or other similar rights to have any
securities registered pursuant to the Registration Statement or
otherwise registered by the Company or the Bank under the
Securities Act, except as described in Registration Statement or
as set forth in any agreement described therein as containing
such rights.
A-3
(xvi) The Company is not, and upon the sale of the Stock
as contemplated in the International Underwriting Agreement and
the U.S. Underwriting Agreement and the application of the net
proceeds therefrom as described in the Prospectus will not be, an
"investment company" or an entity "controlled" by an "investment
company," as such terms are defined in the 1940 Act.
Nothing has come to our attention that would lead us to believe
that the Registration Statement or any amendment thereto, including the Rule
430A Information (except for financial statements and schedules and other
financial data included therein or omitted therefrom, as to which we make no
statement), at the time such Registration Statement or any such amendment became
effective, contained an untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus or any amendment or
supplement thereto (except for financial statements and schedules and other
financial data included therein or omitted therefrom, as to which we make no
statement), at the time the Prospectus was issued, at the time any such amended
or supplemented Prospectus was issued or at either Delivery Date, included or
includes an untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
* * * * *
In rendering such opinion, such counsel may rely as to matters of
fact (but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company and public officials. Such
opinion shall not state that it is to be governed or qualified by, or that it is
otherwise subject to, any treatise, written policy or other document relating to
legal opinions, including, without limitation, the Legal Opinion Accord of the
ABA Section of Business Law (1991). All terms used but not defined in this
exhibit should have the meanings ascribed to them in the International
Underwriting Agreement and should be defined accordingly in the form of opinion
to be delivered.
X-0
XXXXXXX X-0
FORM OF OPINION OF
XXXXXXXX X. XXXXXXX,
GENERAL COUNSEL OF THE COMPANY,
TO BE DELIVERED PURSUANT TO SECTION 9(D)
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Delaware.
(ii) The Company has corporate power and authority to
own, lease and operate its properties and to conduct its business
as described in the Prospectus, and to enter into and perform its
obligations under the International Underwriting Agreement and
the U.S. Underwriting Agreement. The activities of each of the
Company's subsidiaries are permitted to subsidiaries of a savings
and loan holding company.
(iii) The Bank is the only "significant subsidiary" of
the Company (as such term is defined in Rule 1-02 of Regulation
S-X). The only subsidiaries of the Company other than the Bank
are the wholly-owned subsidiaries of the Bank listed on Exhibit
__ to the Registration Statement, which, considered in the
aggregate as a single subsidiary, do not constitute a
"significant subsidiary" as defined in Rule 1-02 of Regulation
S-X. The activities of all of the Bank's subsidiaries are
permitted to subsidiaries of a federally chartered savings bank,
the deposits of which are insured by the SAIF, which is
administered by the FDIC.
(iv) The Bank is a federally chartered stock savings
bank, duly incorporated and validly existing under the laws of
the United States, and the Bank's charter is in full force and
effect. The Bank is a member of the Federal Home Loan Bank of
Dallas and has been duly issued a certificate stating that its
savings accounts are insured by the FDIC in accordance with
applicable law, and no proceedings for the termination or
revocation of such membership or insurance are pending or, to the
best of my knowledge, threatened.
(v) The Bank has corporate power and authority to own,
lease and operate its properties and to conduct its business as
described in the Prospectus and to enter into and perform its
obligations under the International Underwriting Agreement and
the U.S. Underwriting Agreement.
(vi) Each subsidiary of the Bank has been duly organized
and is validly existing as a corporation in good standing under
the laws of the jurisdiction of its incorporation and has the
power and authority to own, lease and operate its properties and
to conduct its business as described in the Prospectus. The
activities described in the Prospectus of each of the Bank's
subsidiaries are
permitted activities of subsidiaries of a federally chartered
savings bank, the deposits of which are insured by the SAIF,
which is administered by the FDIC.
(vii) The Company, the Bank and each subsidiary of the
Company or the Bank is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business,
except where the failure so to qualify or to be in good standing
would not result in a Material Adverse Effect.
(viii) All of the issued and outstanding capital stock of
the Bank and each subsidiary of the Bank has been duly authorized
and validly issued, is fully paid and non-assessable and, except
as otherwise disclosed in the Registration Statement, is owned by
the Company, directly or through subsidiaries, to the best of my
knowledge, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity; none of the
outstanding shares of capital stock of any subsidiary was issued
in violation of the preemptive or similar rights of any
securityholder of such subsidiary.
(ix) The authorized, issued and outstanding capital stock
of the Company is as set forth in the Prospectus in the column
entitled "Pro Forma" under the caption "Capitalization" (except
for subsequent issuances, if any, pursuant to reservations,
agreements or employee benefit plans referred to in the
Prospectus or pursuant to the exercise of convertible securities
or options referred to in the Prospectus); the shares of issued
and outstanding capital stock of the Company, including the
shares of Common Stock to be purchased by the International
Managers and the U.S. Underwriters from the Participating Selling
Stockholders, have been duly authorized and validly issued and
are fully paid and non-assessable; and none of the outstanding
shares of capital stock of the Company, including the shares of
Common Stock to be purchased by the International Managers and
the U.S. Underwriters from the Participating Selling
Stockholders, was issued in violation of the preemptive or other
similar rights of any securityholder of the Company.
(x) The sale of the Common Stock to the International
Managers and the U.S. Underwriters by the Participating Selling
Stockholders is not subject to the preemptive or other similar
rights of any securityholder of the Company. The Common Stock
conforms to all statements relating thereto contained in the
Prospectus and such description conforms to the rights set forth
in the instruments defining the same.
(xi) There is not pending or, to my knowledge, threatened
any action, suit, proceeding, inquiry or investigation, to which
the Company or the Bank or any of their respective subsidiaries
is a party, or to which the property of the Company or the Bank
or any of their respective subsidiaries is subject, before or
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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
International Underwriting Agreement or the U.S. Underwriting
Agreement or the performance by the Company and the Bank of their
respective obligations thereunder. The aggregate of all pending
legal or governmental proceedings to which the Company, the Bank,
or any of their respective subsidiaries is known by me to be a
party or of which any of their respective property or assets is
the subject which are not described in the Registration
Statement, including ordinary routine litigation incidental to
the business, could not reasonably be expected to result in a
Material Adverse Effect. No cease and desist order has been
entered by the OTS or the FDIC against the Company, the Bank or
any of their respective subsidiaries. No labor dispute with the
employees of the Company or any subsidiary exists or, to the
knowledge of the Company, is imminent, and the Company is not
aware of any existing or imminent labor disturbance by the
employees of any of its or any subsidiary's principal suppliers,
manufacturers, customers or contractors, which, in either case,
may reasonably be expected to result in a Material Adverse
Effect.
(xii) The information in the Prospectus under the
captions "Risk Factors -- Limitations on Use of Tax Losses;
Restrictions on Transfers of Stock," "Risk Factors -- Holding
Company Structure; Ability to Pay Dividends," "Description of
Capital Stock," "Business -- The Assistance Agreement," "Legal
Proceedings," and in the Registration Statement under "Part II.
Information Not Required in Prospectus -- Item 14.
Indemnification of Directors and Officers," to the extent that
such information constitutes matters of law, summaries of legal
matters, the Company's Certificate or Bylaws or legal
proceedings, or legal conclusions, has been reviewed by me and is
correct in all material respects.
(xiii) To the best of my knowledge, there are no statutes
or regulations that are required to be described in the
Prospectus that are not described as required.
(xiv) All descriptions in the Registration Statement of
contracts and other documents to which the Company or its
subsidiaries are a party are accurate in all material respects;
to the best of my knowledge, there are no franchises, contracts,
indentures, mortgages, loan agreements, notes, leases or other
instruments required to be described or referred to in the
Registration Statement or to be filed as exhibits thereto other
than those described or referred to therein or filed or
incorporated by reference as exhibits thereto, and the
descriptions thereof or references thereto are correct in all
material respects.
(xv) Neither the Company, the Bank nor any of their
respective subsidiaries is in violation of its charter or by-laws
and no default by the
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Company, the Bank or any of their respective subsidiaries exists
in the due performance or observance of any material obligation,
agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other
agreement or instrument that is described or referred to in the
Registration Statement or the Prospectus or filed as an exhibit
to the Registration Statement.
(xvi) The execution, delivery and performance of the
International Underwriting Agreement and the U.S. Underwriting
Agreement by the Company and the Bank, and the consummation of
the transactions contemplated thereby and compliance by each of
the Company and the Bank with its respective obligations under
the International Underwriting Agreement and the U.S.
Underwriting Agreement has been duly authorized by all necessary
corporate action and do not and will not, whether with or without
the giving of notice or lapse of time or both, conflict with or
constitute a breach of, or default or Repayment Event (as defined
in Section 1(j) of the International Underwriting Agreement)
under or result in the creation or imposition of any lien, charge
or encumbrance upon any property or assets of the Company or any
subsidiary pursuant to any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, lease or any other
agreement or instrument, known to me, to which the Company or any
subsidiary is a party or by which it or any of them may be bound,
or to which any of the property or assets of the Company, the
Bank or any of their respective subsidiaries is subject (except
for such conflicts, breaches or defaults or liens, charges or
encumbrances that would not result in a Material Adverse Effect),
nor will such action result in any violation of the provisions of
the charter or by-laws of the Company, the Bank or any of their
respective subsidiaries, or any applicable law, statute, rule,
regulation, judgment, order, writ or decree, known to me, of any
government, governmental instrumentality or court, domestic or
foreign, having jurisdiction over the Company, the Bank, or any
of their respective subsidiaries or any of their respective
properties, assets or operations.
(xvii) There are no persons with registration rights or
other similar rights to have any securities registered pursuant
to the Registration Statement or otherwise registered by the
Company or the Bank under the Securities Act, except as described
in Registration Statement or as set forth in any agreement
described therein as containing such rights.
(xviii) The Company, the Bank and each of its
subsidiaries possess such Governmental Licenses issued by the
appropriate federal, state, local or foreign regulatory agencies
or bodies necessary to conduct the business now operated by them;
the Company, the Bank and each of its subsidiaries are in
compliance with the terms and conditions of all such Governmental
Licenses, except where the failure so to comply would not, singly
or in the aggregate, have a Material Adverse Effect; all of the
Governmental Licenses are valid and in full force and effect,
except when the invalidity of such Governmental Licenses or the
B-4
failure of such Governmental Licenses to be in full force and
effect would not have a Material Adverse Effect; and neither the
Company, the Bank nor any of their respective subsidiaries has
received any notice of proceedings relating to the revocation or
modification of any such Governmental Licenses which, singly or
in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would result in a Material Adverse Effect.
(xix) The Company, the Bank and each of their respective
subsidiaries have good and marketable title to all real, tangible
and intangible property reflected in the most recent balance
sheet included in the Prospectus as owned by the Company, the
Bank and its subsidiaries and good title to all other properties
reflected in the most recent balance sheet included in the
Prospectus as owned by them, in each case, free and clear of all
mortgages, pledges, liens, security interests, claims,
restrictions or encumbrances of any kind except such as (A) are
described in the Prospectus or (B) do not, singly or in the
aggregate, materially affect the value of such property and do
not interfere with the use made and proposed to be made of such
property by the Company, the Bank or any of their respective
subsidiaries; or, with respect to any such real property, render
title unmarketable as to a material part thereof and all of the
leases and subleases material to the business of the Company, the
Bank and of their respective subsidiaries, considered as one
enterprise, and under which the Company, the Bank or any of their
respective subsidiaries holds properties described in the
Prospectus, are in full force and effect, and neither the
Company, the Bank nor any of their respective subsidiaries has
any notice of any material claim of any sort that has been
asserted by anyone adverse to the rights of the Company, the Bank
or any of their respective subsidiaries under any of the leases
or subleases mentioned above, or affecting or questioning the
rights of the Company, the Bank or such subsidiary to the
continued possession of the leased or subleased premises under
any such lease or sublease.
(xx) Except as described in the Registration Statement or
except as would not, singly or in the aggregate, result in a
Material Adverse Effect, (A) the Company, the Bank and each of
their respective subsidiaries is not in violation of any
Environmental Laws, (B) the Company, the Bank and each of their
respective subsidiaries have all permits, authorizations and
approvals required under any applicable Environmental Laws and
are each in compliance with their requirements, (C) there are no
pending or, to the knowledge of the Company, threatened
administrative, regulatory or judicial actions, suits, demands,
demand letters, claims, liens, notices of noncompliance or
violation, investigation or proceedings relating to any
Environmental Law against the Company, the Bank or any of their
respective subsidiaries and (D) to the knowledge of the Company
there are no events or circumstances that might reasonably be
expected to form the basis of an order for clean-up or
remediation, or an action, suit or proceeding by any private
party or governmental body or agency, against or affecting the
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Company, the Bank or any of their respective subsidiaries
relating to Hazardous Materials or any Environmental Laws.
(xxi) In the event the Company shall become either
directly or indirectly a bank holding company for purposes of the
BHC Act and the BHC Rules, the current activities of the Company
and its subsidiaries (as defined in the BHC Rules) would be
activities permissible for a bank holding company under the BHC
Act and the BHC Rules.
(xxii) No filing with, or authorization, approval,
consent, license, order, registration, qualification or decree
of, any court or governmental authority or agency, domestic or
foreign including, without limitation, the OTS and FDIC is
necessary or required by federal banking laws and regulations for
the performance by the Company of its obligations under the
International Underwriting Agreement and the U.S. Underwriting
Agreement in connection with the offering or sale of the Stock by
the Participating Selling Stockholders under the International
Underwriting Agreement and the U.S. Underwriting Agreement or the
consummation by the Company and the Bank of the transactions
contemplated by the International Underwriting Agreement and the
U.S.
Underwriting Agreement.
Nothing has come to my attention that would lead me to believe
that the Registration Statement or any amendment thereto, including the
information included in any Prospectus that was omitted from such Registration
Statement at the time it became effective but that is deemed to be part of such
Registration Statement at the time it became effective pursuant to paragraph (b)
of Rule 430A (except for financial statements and schedules and other financial
data included therein or omitted therefrom, as to which I make no statement), at
the time such Registration Statement or any such amendment became effective,
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading or that the Prospectus or any amendment or supplement thereto
(except for financial statements and schedules and other financial data included
therein or omitted therefrom, as to which I make no statement), at the time the
Prospectus was issued, at the time any such amended or supplemented Prospectus
was issued or at either Delivery Date, included or includes an untrue statement
of a material fact or omitted or omits to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
* * * * *
In rendering such opinion, such counsel may rely as to matters of
fact (but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company and public officials. Such
opinion shall not state that it is to be governed or qualified by, or that it is
otherwise subject to, any treatise, written policy or other document relating to
B-6
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 International
Underwriting Agreement and should be defined accordingly in the form of opinion
to be delivered.
B-7
EXHIBIT C
FORM OF OPINION OF COUNSEL
TO PARTICIPATING SELLING STOCKHOLDERS
OTHER THAN EQUITABLE
TO BE DELIVERED PURSUANT TO SECTION 9(E)
[LETTERHEAD OF COUNSEL]
February 5, 1997
XXXXXX BROTHERS INC. ,
as Representative of the several U.S. Underwriters
XXXXXX BROTHERS INTERNATIONAL (EUROPE),
as Lead Manager of the several International Managers
c/x Xxxxxx Brothers Inc.
Three World Financial Center
New York, New York 10285
Ladies and Gentlemen:
We have acted as special counsel to [INSERT NAME OF PARTICIPATION
SELLING STOCKHOLDERS(S) REPRESENTED] (the "Represented Stockholder(s)") in
connection with the offering by the Represented Stockholder(s) of up to ______
shares (including shares to be sold upon exercise of over-allotment options) of
Class A common stock, par value $0.01 per share (the "Common Stock"), of Bank
United Corp., a Delaware corporation (the "Company"), offered by the
Participating Selling Stockholders pursuant to a registration statement of the
Company on Form S-1 (No. 333-19237). This opinion letter is furnished pursuant
to Section 9(e) of (i) the underwriting agreement (the "U.S. Underwriting
Agreement"), dated February 5, 1997, among the Company, Bank United, a federally
chartered savings institution (the "Bank"), the persons listed on Schedule 2
thereto (the "Participating Selling Stockholders") and the several underwriters
named in Schedule 1 thereto (the "U.S. Underwriters") and (ii) the underwriting
agreement (the "International Underwriting Agreement" and, together with the
U.S. Underwriting Agreement, the "Underwriting Agreements") dated February 5,
1997, among the Company, the Bank, the Participating Selling Stockholders and
the managers named in Schedule 1 thereto (the "International Managers" and,
together with the U.S. Underwriters, the "Underwriters") in connection with the
closing of the sale by the Represented Stockholder(s) of such shares (the
"Stock"). Capitalized terms used but not defined herein shall have the meanings
ascribed to them in the U.S. Underwriting Agreement.
In arriving at the opinions expressed below, we have reviewed the
following:
(a) the forms of U.S. Underwriting Agreement and International
Underwriting Agreement;
(b) an executed copy of a power of attorney of each
Represented Stockholder dated January 31, 1997 (the "Power of Attorney"); and
(c) an executed copy of a custody agreement between each
Represented Stockholder, the Company and The Bank of New York, as custodian,
dated as of February 3, 1997 (the "Custody Agreement").
In addition, we have made such investigations of law as we have deemed
appropriate as a basis for the opinions expressed below.
In rendering the opinions expressed below, we have assumed the
authenticity of all documents submitted to us as originals and the conformity to
the originals of all documents submitted to us as copies. In addition, we have
assumed and have not verified the accuracy as to factual matters of each
document we have reviewed (including, without limitation, the accuracy of the
representations and warranties of the Company and the Participating Selling
Stockholders in the U.S. Underwriting Agreement and the International
Underwriting Agreement). In addition, with respect to Participating Selling
Stockholders who are natural persons, we have assumed the legal capacity of each
such Participating Selling Stockholder.
Based on the foregoing, and subject to the further assumptions
and qualifications set forth below, it is our opinion that:
(i) Each of the Represented Stockholders has the [corporate]*
power and authority to enter into the U.S. Underwriting Agreement, the
International Underwriting Agreement, the Power of Attorney and the Custody
Agreement and to sell transfer and deliver the Stock to be sold by such
Represented Stockholder under the U.S. Underwriting Agreement and the
International Underwriting Agreement.
(ii) The Power of Attorney and the Custody Agreement have been
duly authorized, executed and delivered by or on behalf of each Represented
Stockholder, and each constitutes the valid and binding obligation of such
Represented Stockholder.
(iii) The execution and delivery of the U.S. Underwriting
Agreement, the International Underwriting Agreement, the Power of Attorney and
the Custody Agreement and the sale of Stock by each Represented Stockholder to
the U.S. Underwriters and the International Managers, and compliance by such
Represented Stockholder with the terms of the U.S. Underwriting Agreement, the
International Underwriting Agreement, the Power of Attorney and the Custody
Agreement [do not and will not result in a violation of the certificate of
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incorporation and by laws or comparable constitutional documents of such
Represented Stockholder, and]* do not and will not conflict with, or result in a
breach of any of the terms and provision of, or constitute a default under any
statute, rule or regulation applicable to such Represented Stockholder [or its
legal or regulatory status in each case], that in our experience are normally
applicable to transactions of the type provided for in the U.S. Underwriting
Agreement and the International Underwriting Agreement.
(iv) Assuming execution and delivery of each of the U.S.
Underwriting Agreement and the International Underwriting Agreement by one of
the Attorneys (as defined in the Power of Attorney), each of the U.S.
Underwriting Agreement and the International Underwriting Agreement have been
duly authorized, executed and delivered by each of the Represented Stockholders.
(v) No consent, approval, authorization or order of or
qualification by the State of Delaware (as it relates to the General Corporation
Law of the State of Delaware), the State of New York or any federal or foreign
governmental body or agency is required for the performance by any Represented
Stockholder of its obligations under the U.S. Underwriting Agreement, the
International Underwriting Agreement, the Power of Attorney and the Custody
Agreement, except such (i) as may be required by U.S. federal or state or
foreign securities laws and (ii) as are applicable to any Represented
Stockholder solely because of its specific status (including regulatory status)
other than its status as a Participating Selling Stockholder, as to both of
which we express no opinion.
(vi) Assuming that the U.S. Underwriters and the International
Managers purchase the shares of Stock to be delivered by or on behalf of the
Represented Stockholders on the date hereof in good faith and without notice of
any security interests, claims, liens, equities, encumbrances and other adverse
claims, as such term is used in Section 8-302 of the Uniform Commercial Code as
in effect in the State of New York, the delivery of certificates representing
such Stock, duly endorsed to the U.S. Underwriters or the International Managers
or in blank, will pass to the U.S. Underwriters and the International Managers
valid title to such shares of Stock, free and clear of all security interests,
claims, liens, equities, encumbrances and other adverse claims.
Insofar as the foregoing opinions relate to the legality,
validity, binding effect or enforceability of any agreement or obligation of a
Represented Stockholder, we have assumed that each other party to such agreement
or obligation has duly authorized and executed such agreement or obligation and
has satisfied those legal requirements that are applicable to it to the extent
necessary to make such agreement or obligation enforceable against it. In
addition, the foregoing opinions are subject to applicable bankruptcy,
insolvency and similar laws affecting creditors' rights generally and to general
principles of equity.
The foregoing opinions are limited to the federal law of the
United States of America and the law of the State of New York.
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We are furnishing this opinion letter to you, as Representative
of the U.S. Underwriters and as Lead Manager for the International Managers,
solely for the benefit of the U.S. Underwriters and the International Managers
in connection with the offering of the Stock. This opinion letter is not to be
used, circulated, quoted or otherwise referred to for any other purpose.
Very truly yours,
[NAME OF COUNSEL]
By
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EXHIBIT D
FORM OF OPINION OF COUNSEL
TO EQUITABLE,
AS PARTICIPATING SELLING STOCKHOLDERS,
TO BE DELIVERED PURSUANT TO SECTION 9(F)
[LETTERHEAD OF IN-HOUSE COUNSEL TO EQUITABLE]
February 5, 1997
XXXXXX BROTHERS INC. ,
as Representative of the several U.S. Underwriters
XXXXXX BROTHERS INTERNATIONAL (EUROPE),
as Lead Manager of the several International Managers
c/x Xxxxxx Brothers Inc.
Three World Financial Center
New York, New York 10285
Ladies and Gentlemen:
We have acted as special counsel to Equitable Deal Flow Fund
L.P., Equitable Capital Partners L.P., Equitable Capital Partners (Retirement
Fund) L.P. (each, a "Represented Stockholder" and collectively, the "Represented
Stockholders"), as Participating Selling Stockholders (as defined below) in
connection with the offering by the Represented Stockholders of up to ______
shares (including shares to be sold upon exercise of over-allotment options) of
Class A common stock, par value $0.01 per share (the "Common Stock"), of Bank
United Corp., a Delaware corporation (the "Company"), offered by the Represented
Stockholders and certain other stockholders of the Company pursuant to a
registration statement of the Company on Form S-1 (No. 333-19237). This opinion
letter is furnished pursuant to Section 9(f) of (i) the underwriting agreement
(the "U.S. Underwriting Agreement") dated February 5, 1997, among the Company,
Bank United, a federally chartered savings institution (the "Bank"), the persons
listed on Schedule 2 thereto (the "Participating Selling Stockholders") and the
several underwriters named in Schedule 1 thereto (the "U.S. Underwriters") and
(ii) the underwriting agreement (the "International Underwriting Agreement" and,
together with the U.S. Underwriting Agreement, the "Underwriting Agreements")
dated February 5, 1997, among the Company, the Bank, the Participating Selling
Stockholders and the managers named in Schedule 1 thereto (the "International
Managers" and, together with the U.S. Underwriters, the "Underwriters") in
connection with the closing of the sale
by the Represented Stockholders of such shares (the "Stock"). Capitalized terms
used but not defined herein shall have the meanings ascribed to them in the U.S.
Underwriting Agreement.
In arriving at the opinions expressed below, we have reviewed the
following:
(a) executed copies of the U.S. Underwriting Agreement and the
International Underwriting Agreement; and
(b) an executed copy of a custody agreement between each
Represented Stockholder, the Company and The Bank of New York, as custodian,
dated as of February 3, 1997 (the "Custody Agreement").
In addition, we have made such investigations of law as we have deemed
appropriate as a basis for the opinions expressed below.
In rendering the opinions expressed below, we have assumed the
authenticity of all documents submitted to us as originals and the conformity to
the originals of all documents submitted to us as copies. In addition, we have
assumed and have not verified the accuracy as to factual matters of each
document we have reviewed (including, without limitation, the accuracy of the
representations and warranties of the Company and each Represented Stockholder
in the U.S. Underwriting Agreement and the International Underwriting
Agreement).
Based on the foregoing, and subject to the further assumptions
and qualifications set forth below, it is our opinion that:
(i) Each Represented Stockholder has the corporate power and
authority to enter into the U.S. Underwriting Agreement, the International
Underwriting Agreement and the Custody Agreement and to sell transfer and
deliver the Stock to be sold by each Represented Stockholder under the U.S.
Underwriting Agreement and the International Underwriting Agreement.
(ii) The Custody Agreement has been duly authorized, executed
and delivered by each Represented Stockholder, and each constitutes the valid
and binding obligation of each Represented Stockholder.
(iii) The execution and delivery of the U.S. Underwriting
Agreement, the International Underwriting Agreement and the Custody Agreement
and the sale of Stock by each Represented Stockholder to the U.S. Underwriters
and the International Managers, and compliance by each Represented Stockholder
with the terms of the U.S. Underwriting Agreement, the International
Underwriting Agreement and the Custody Agreement do not and will not result in a
violation of the certificate of incorporation and by laws or comparable
constitutional documents of such Represented Stockholder, and do not and will
not conflict with, or result in a breach of any of the terms and provision of,
or constitute a default under any statute, rule or regulation applicable to any
Represented Stockholder or its respective legal or regulatory status in each
case, that in our experience are normally applicable to transactions of
D-2
the type provided for in the U.S. Underwriting Agreement and the International
Underwriting Agreement.
(iv) Each of the U.S. Underwriting Agreement and the
International Underwriting Agreement have been duly authorized, executed and
delivered by each Represented Stockholder.
(v) No consent, approval, authorization or order of or
qualification by the State of Delaware (as it relates to the General Corporation
Law of the State of Delaware), the State of New York or any federal or foreign
governmental body or agency is required for the performance by any Represented
Stockholder of its respective obligations under the U.S. Underwriting Agreement,
the International Underwriting Agreement and the Custody Agreement, except such
(i) as may be required by U.S. federal or state or foreign securities laws and
(ii) as are applicable to any Represented Stockholder solely because of its
specific status (including regulatory status) other than its status as a
Participating Selling Stockholder, as to both of which we express no opinion.
(vi) Assuming that the U.S. Underwriters and the International
Managers purchase the shares of Stock to be delivered by or on behalf of each
Represented Stockholder on the date hereof in good faith and without notice of
any security interests, claims, liens, equities, encumbrances and other adverse
claims, as such term is used in Section 8-302 of the Uniform Commercial Code as
in effect in the State of New York, the delivery of certificates representing
such shares of Stock, duly endorsed to the U.S. Underwriters or the
International Managers or in blank, will pass to the U.S. Underwriters and the
International Managers valid title to such shares of Stock, free and clear of
all security interests, claims, liens, equities, encumbrances and other adverse
claims.
Insofar as the foregoing opinions relate to the legality,
validity, binding effect or enforceability of any agreement or obligation of any
Represented Stockholder, we have assumed that each other party to such agreement
or obligation has duly authorized and executed such agreement or obligation and
has satisfied those legal requirements that are applicable to it to the extent
necessary to make such agreement or obligation enforceable against it. In
addition, the foregoing opinions are subject to applicable bankruptcy,
insolvency and similar laws affecting creditors' rights generally and to general
principles of equity.
The foregoing opinions are limited to the federal law of the
United States of America and the law of the State of New York.
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We are furnishing this opinion letter to you, as Representative
of the U.S. Underwriters and as Lead Manager of the International Managers,
solely for the benefit of the U.S. Underwriters and the International Managers
in connection with the offering of the Stock. This opinion letter is not to be
used, circulated, quoted or otherwise referred to for any other purpose.
Very truly yours,
[NAME OF COUNSEL]
By
* Insert for corporate entities.
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