EXHIBIT 1.1
3,200,000 SHARES
BANKUNITED FINANCIAL CORPORATION
CLASS A COMMON STOCK
UNDERWRITING AGREEMENT
________, 1997
Friedman, Billings, Xxxxxx & Co., Inc.
PaineWebber, Incorporated
c/o Friedman, Billings, Xxxxxx & Co., Inc.
Potomac Tower
0000 Xxxxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Dear Sirs:
BankUnited Financial Corporation, a Florida corporation (the "Company")
confirms its agreement with you and the other underwriters named in Schedule A
annexed hereto (the "Underwriters", which term shall also include any
underwriter substituted as hereinafter in Section 9 provided), for whom you are
acting as Representatives, whereby the Company proposes to issue and sell
3,200,000 shares of its authorized but unissued Class A Common Stock, $.01 par
value per share (the "Common Stock"). Said 3,200,000 shares are herein called
the "Firm Common Shares." In addition, the Company proposes to grant to the
Underwriters an option to purchase up to 480,000 additional shares of Common
Stock (the "Optional Common Shares"), as provided in Section 1 hereof. The Firm
Common Shares and, to the extent such option is exercised, the Optional Common
Shares are hereinafter collectively referred to as the "Common Shares."
You have advised the Company that the Underwriters propose to make a
public offering of their respective portions of the Common Shares on the
effective date of the registration statement hereinafter referred to, or as soon
thereafter as in your judgment is advisable (the "Offering").
The Company hereby confirms its agreement with respect to the purchase
of the Common Shares by you and the Underwriters, as the case may be, as
follows:
SECTION 1. PURCHASE, SALE AND DELIVERY OF COMMON SHARES. On the basis
of the representations, warranties and agreements herein contained, but subject
to the terms and conditions herein set forth, (i) the Company agrees to issue
and sell to you and the Underwriters, as the case may be, all of the Firm Common
Shares, and (ii) you and the Underwriters agree, severally and not jointly, to
purchase from the Company such Firm Common Shares. The purchase price per share
to be paid by the Underwriters to the Company shall be $____ per share.
Delivery of the Firm Common Shares to be purchased by you or the
Underwriters and payment therefor shall be made at the offices of Friedman,
Billings, Xxxxxx & Co., Inc., Xxxxxxx Xxxxx, 00xx Xxxxx, 0000 Xxxxxxxxxx Xxxxxx
Xxxxx, Xxxxxxxxx, Xxxxxxxx (or such other place as may be agreed upon by the
Company and the Representatives) on the third (or, if the purchase set forth in
the above paragraph is determined after 4:30 p.m., Washington, D.C. time, the
fourth) business day following the first date that any of the Common Shares are
released by you for sale to the public (the "First Closing Date"); provided,
however, that if the Prospectus is at any time prior to the First Closing Date
recirculated to the public, the First Closing Date shall occur upon the later of
the third full business day following the first date that any of the Common
Shares are released by you for sale to the public or the date that is 48 hours
after the date that the Prospectus has been so recirculated.
Delivery of certificates for the Firm Common Shares shall be made by or
on behalf of the Company to you, for your account or for the respective accounts
of the Underwriters, as the case may be, against payment by you for your account
or for the accounts of the several Underwriters, as the case may be, of the
purchase price therefor by wire transfer or certified or official bank checks
payable in next day funds to the order of the Company. The certificates for the
Firm Common Shares shall be registered in such names and denominations as you
shall have requested at least two full business days prior to the First Closing
Date, and shall be made available for checking and packaging on the business day
preceding the First Closing Date at a location in Arlington, Virginia, as may be
designated by you. Time shall be of the essence, and delivery at the time and
place specified in this Agreement is a further condition to your obligation or
the obligations of the Underwriters, as the case may be.
In addition, on the basis of the representations, warranties and
agreements herein contained, but subject to the terms and conditions herein set
forth, the Company hereby grants an option to you or to the several
Underwriters, as the case may be, to purchase, severally and not jointly, up to
an aggregate of 480,000 Optional Common Shares at the purchase price per share
to be paid for the Firm Common Shares, for use solely in covering any
over-allotments made by you for your account or the account of the Underwriters,
as the case may be, in the sale and distribution of the Firm Common Shares. The
option granted hereunder may be exercised at any time (but not more than once)
within 30 days after the first date that any of the Common Shares are released
by you for sale to the public, upon notice by you to the Company setting forth
the aggregate number of Optional Common Shares as to which you or the
Underwriters, as the case may be, are exercising the option, the names and
denominations in which the certificates for such shares are to be registered and
the time and place at which such certificates will be delivered. Such time of
delivery (which may not be earlier than the First Closing Date), being herein
referred to as the "Second Closing Date," shall be determined by you, but if at
any time other than the First Closing Date shall not be earlier than three nor
later than five full business days after delivery of such notice of exercise.
The number of Optional Common Shares to be purchased by each Underwriter shall
be determined by multiplying the number of Optional Common Shares to be sold by
the Company pursuant to such notice of exercise by a fraction, the numerator of
which is the number of Firm Common Shares to be purchased by such Underwriter as
set forth opposite its name in Schedule A and the denominator of which is
3,200,000 (subject to such adjustments to eliminate any fractional share
purchases as you in your discretion may make). Certificates for the Optional
Common Shares will be made available
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for checking and packaging on the business day preceding the Second Closing Date
at a location in Arlington, Virginia, as may be designated by you. The manner of
payment for and delivery of the Optional Common Shares shall be the same as for
the Firm Common Shares purchased from the Company as specified in the two
preceding paragraphs. At any time before lapse of the option, you may cancel
such option by giving written notice of such cancellation to the Company.
If applicable, you have advised the Company that each Underwriter has
authorized you to accept delivery of its Common Shares, to make payment and
receipt therefor. If applicable, you, individually and not as the
Representatives of the Underwriters, may (but shall not be obligated to) make
payment for any Common Shares to be purchased by any Underwriter whose funds
shall not have been received by you by the First Closing Date or the Second
Closing Date, as the case may be, for the account of such Underwriter, but any
such payment shall not relieve such Underwriter from any of its obligations
under this Agreement.
Subject to the terms and conditions hereof, you or the Underwriters, as
the case may be, agree to make a public offering of the Common Shares as soon
after the effective date of the Registration Statement (as hereafter defined) as
in your judgment is advisable and at the public offering price set forth on the
cover page of and on the terms set forth in the Prospectus.
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to the several Underwriters that:
(a) A registration statement on Form S-3 (File No. 333-35781)
with respect to the Common Shares has been prepared by the Company in
conformity with the requirements of the Securities Act of 1933, as
amended (the "Act"), and the rules and regulations (the "Rules and
Regulations") of the Securities and Exchange Commission (the
"Commission") thereunder, and has been filed with the Commission. The
Company has prepared and has filed or proposes to file prior to the
effective date of such registration statement an amendment or
amendments to such registration statement, which amendment or
amendments have been or will be similarly prepared. There has been
delivered to you one signed copy of such registration statement and
amendments, together with two copies of each exhibit filed therewith.
Conformed copies of such registration statement and amendments (but
without exhibits) and of the related Preliminary Prospectus (as defined
below) have been delivered to you in such reasonable quantities as you
have requested. The Company will next file with the Commission one of
the following: (i) prior to effectiveness of such registration
statement, a further amendment thereto, including the form of final
prospectus, or (ii) a final prospectus in accordance with Rules 430A
and 424(b) of the Rules and Regulations. As filed, such amendment and
form of final prospectus, or such final prospectus, shall include all
Rule 430A Information (as defined below) and, except to the extent that
you shall agree to a modification, shall be in all substantive respects
in the form furnished to you prior to the date and time that this
Agreement was executed and delivered by the parties hereto, or, to the
extent not completed at such date and time, shall contain only such
specific
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additional information and other changes (beyond that contained in the
latest Preliminary Prospectus) as the Company shall have previously
advised you in writing would be included or made therein.
The term "Registration Statement" as used in this Agreement
shall mean such registration statement at the time such registration
statement becomes effective and, in the event any post-effective
amendment thereto becomes effective prior to the First Closing Date,
shall also mean such registration statement as so amended; provided,
however, that such term shall also include all Rule 430A Information
deemed to be included in such registration statement at the time such
registration statement becomes effective as provided by Rule 430A of
the Rules and Regulations. The term "Preliminary Prospectus" shall mean
any preliminary prospectus referred to in the preceding paragraph and
any preliminary prospectus included in the Registration Statement at
the time it becomes effective that omits Rule 430A Information. The
term "Prospectus" as used in this Agreement shall mean the prospectus
relating to the Common Shares in the form in which it is first filed
with the Commission pursuant to Rule 424(b) of the Rules and
Regulations or, if no filing pursuant to Rule 424(b) of the Rules and
Regulations is required, shall mean the form of final prospectus
included in the Registration Statement at the time such registration
statement becomes effective. The term "Rule 430A Information" means
information with respect to the Common Shares and the offering thereof
permitted to be omitted from the Registration Statement when it becomes
effective pursuant to Rule 430A of the Rules and Regulations.
(b) The Commission has not issued any order preventing or
suspending the use of any Preliminary Prospectus, and the most recent
Preliminary Prospectus has conformed in all material respects to the
requirements of the Act and the Rules and Regulations and, as of its
date, has not included any untrue statement of a material fact or
omitted to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; and at the time the Registration Statement becomes
effective, and at all times subsequent thereto up to and including each
Closing Date hereinafter mentioned, the Registration Statement and the
Prospectus, and any amendments or supplements thereto, will contain all
material statements and information required to be included therein by
the Act and the Rules and Regulations and will in all material respects
conform to the requirements of the Act and the Rules and Regulations,
and neither the Registration Statement nor the Prospectus, nor any
amendment or supplement thereto, will include 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, in the light of
the circumstances under which they were made, not misleading; provided,
however, no representation or warranty contained in this subsection
2(b) shall be applicable to information contained in or omitted from
any Preliminary Prospectus, the Registration Statement, the Prospectus
or any such amendment or supplement in reliance upon and in conformity
with written
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information furnished to the Company by or on behalf of you or any
Underwriter specifically for use in the preparation thereof.
(c) The Company does not own or control, directly or
indirectly, any corporation, association or other entity other than its
wholly owned subsidiaries, BankUnited, FSB (the "Bank") and BU
Ventures, Inc., and the Bank's wholly owned subsidiaries, T&D
Properties of South Florida, Inc., and Bay Holdings Inc. (BU Ventures,
Inc., the Bank and the Bank's wholly owned subsidiaries are
collectively referred to herein as the "Subsidiaries"). Neither the
Company nor the Subsidiaries own any equity interests in any other
entities except as disclosed in the Prospectus. The Company and the
Subsidiaries have been duly incorporated and are validly existing as
corporations in good standing under the laws of their respective
jurisdictions of incorporation, with full power and authority
(corporate and other) to own and lease their properties and conduct
their respective businesses as described in the Prospectus; the Company
owns all of the outstanding capital stock of the Bank and BU Ventures,
Inc. and the Bank owns all of the outstanding capital stock of T&D
Properties of South Florida, Inc., and Bay Holdings, Inc., each owning
said stock free and clear of all claims, liens, charges and
encumbrances; the Company and the Subsidiaries are in possession of and
operating in compliance with all authorizations, licenses, permits,
consents, certificates and orders material to the conduct of their
respective businesses, all of which are valid and in full force and
effect; the Company and the Subsidiaries are duly qualified to do
business and are in good standing as foreign corporations in each
jurisdiction in which the ownership or leasing of properties or the
conduct of their respective businesses requires such qualification
except where the failure to be so qualified would not have a material
adverse effect on the business, properties, financial condition or
results of operations of the Company and the Subsidiaries, taken as a
whole, and no proceeding has been instituted in any such jurisdiction,
revoking, limiting or curtailing, or seeking to revoke, limit or
curtail, such power and authority or qualification.
(d) The Company has, and upon consummation of the Offering,
will have, authorized and outstanding capital stock as set forth under
the heading "Description of Capital Stock" in the Prospectus; the
issued and outstanding shares of the Company's capital stock have been
duly authorized and validly issued, are fully paid and nonassessable,
have been issued in compliance with all federal and state securities
laws, were not issued in violation of or subject to any preemptive
rights or other rights to subscribe for or purchase securities (except
as may be disclosed in the Prospectus), and conform in all material
respects to the description thereof contained in the Prospectus. The
issued and outstanding Class A Common Stock is duly listed on the
Nasdaq Stock Market. All issued and outstanding shares of capital stock
of the Subsidiaries have been duly authorized and validly issued and
are fully paid and nonassessable. Except as disclosed in or
contemplated by the Prospectus and the financial statements of the
Company, and the related notes thereto, included in the Prospectus,
neither the Company nor the Subsidiaries have outstanding any
5
options to purchase, or any preemptive rights or other rights to
subscribe for or to purchase, any securities or obligations convertible
into, or any contracts or commitments to issue or sell, shares of its
capital stock or any such options, rights, convertible securities or
obligations. The description of the Company's stock option and other
stock plans or arrangements, and the options or other rights granted
and exercised thereunder, set forth in the Prospectus accurately and
fairly presents the information required to be shown with respect to
such plans, arrangements, options and rights.
(e) The Common Shares to be sold by the Company hereunder have
been duly authorized and, when issued, delivered and paid for in the
manner set forth in this Agreement, will be validly issued, fully paid
and nonassessable, and will conform to the description thereof
contained in the Prospectus. No preemptive rights or other rights to
subscribe for or purchase exist with respect to sale of the Common
Shares by the Company pursuant to this Agreement. The certificates used
to evidence shares of Common Stock are in due and proper form.
(f) The deposits of the Bank are insured by the Federal
Deposit Insurance Corporation (the "FDIC") up to legally applicable
limits, and no proceedings for the termination or revocation of such
insurance are pending or, to the best knowledge of the Company or the
Bank, threatened; no approvals by or filings with the FDIC, except such
as have been obtained, are necessary to consummate the Offering; and
neither the Company nor the Subsidiaries is a party to or otherwise the
subject of any consent decree, memorandum of understanding, written
commitment or other supervisory agreement with the Office of Thrift
Supervision, Department of Treasury ("OTS") or any other federal or
state authority or agency charged with the supervision or insurance of
depository institutions or their holding companies.
(g) No approval, consent or authority of the stockholders of
the Company or the Board of Directors of the Company or any
governmental agency or any other third party will be required for the
issuance and sale of the Common Shares to be sold by the Company as
contemplated herein, except such as have been obtained.
(h) The Company has full legal right, power and authority to
enter into this Agreement and to perform the transactions contemplated
hereby. This Agreement has been duly and validly authorized by the
Company and upon due execution and delivery by the Company and the
other parties thereto will constitute the valid and binding obligations
of the Company, enforceable against the Company in accordance with
their terms, subject to limitations imposed by general principles of
equity (regardless of whether such enforceability is considered in a
proceeding at law or in equity) and subject to any bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer or other
laws, now or hereafter in effect, relating to or limiting creditors'
rights generally and Section 8(b)(6)(D) of the Federal Deposit
Insurance Act. The making and performance of this Agreement by the
Company and the
6
consummation of the transactions herein contemplated will not violate
any provisions of the articles of incorporation or bylaws, or other
organizational documents of the Company or the Subsidiaries and will
not conflict with, result in the breach or violation of, or constitute,
either by itself or upon notice or the passage of time or both, a
default under any agreement, mortgage, deed of trust, lease, franchise,
license, indenture, permit or other instrument to which the Company or
any of the Subsidiaries is a party or by which the Company or the
Subsidiaries or any of their respective properties may be bound or
affected, any statute or any authorization, judgment, decree, order,
rule or regulation of any court or any regulatory body, administrative
agency or other governmental body applicable to the Company or any of
the Subsidiaries or any of their respective properties, except where
any violation, conflict, breach or default, whether individually or in
the aggregate, would not have a material adverse effect on the
condition (financial or otherwise), business, properties, results of
operations, management or prospects of the Company and the
Subsidiaries, taken as a whole (hereinafter, a "Material Adverse
Effect"). No consent, approval, authorization or other order of any
court, regulatory body, administrative agency or other governmental
body is required for the execution and delivery of this Agreement or
the consummation of the transactions contemplated hereby, except for
compliance with the Act, the Blue Sky laws applicable to the public
offering of the Common Shares by you or the Underwriters, the clearance
of such offering with the National Association of Securities Dealers,
Inc. (the "NASD"), and the listing of the Common Shares to be sold by
the Company on the Nasdaq Stock Market.
(i) Price Waterhouse, LLP, who have expressed their opinion
with respect to the financial statements and schedules filed with the
Commission as a part of the Registration Statement and included in the
Prospectus and in the Registration Statement, are independent
accountants as required by the Act and the Rules and Regulations.
(j) The consolidated financial statements and schedules of the
Company, the Subsidiaries and Suncoast Savings and Loan Association,
FSA ("Suncoast"), and the related notes thereto, included in the
Registration Statement and the Prospectus, or incorporated by reference
therein, present fairly the financial position of the Company, the
Subsidiaries and Suncoast, as the case may be, as of the respective
dates of such financial statements and schedules, and the consolidated
results of operations and changes in cash flows of the Company, the
Subsidiaries or Suncoast for the respective periods covered thereby.
Such statements, schedules and related notes have been prepared in
accordance with generally accepted accounting principles applied on a
consistent basis (and with regard to the Company and the Subsidiaries,
as certified by the independent accountants named in subsection 2(i)).
No other financial statements or schedules are required to be included
in the Registration Statement, or incorporated by reference therein.
The other financial, statistical and pro forma information and related
notes included in the Registration
7
Statement and the Prospectus, or incorporated by reference therein (i)
present fairly the information shown therein on a basis consistent
(except as otherwise noted therein) with the audited financial
statements of the Company included therein; and (ii) are in compliance
in all material respects with the requirements of the Act.
(k) Neither the Company nor any of the Subsidiaries is in
violation or default of any provision of its articles of incorporation,
bylaws, or other organiza tional documents, or except as disclosed in
the Prospectus, and except as to defaults which individually or in the
aggregate would not have a Material Adverse Effect, in breach of or
default with respect to any provision of any agreement, judgment,
decree, order, mortgage, deed of trust, lease, franchise, license,
indenture, permit or other instrument to which it is a party or by
which it or any of its properties are bound; and except as to defaults
that individually or in the aggregate would not have a Material Adverse
Effect, there does not exist any state of facts which constitutes an
event of default on the part of the Company or any such Subsidiary as
defined in such documents or which, with notice or lapse of time or
both, would constitute such an event of default.
(l) There are no contracts or other documents required to be
described in the Registration Statement or to be filed as exhibits to
the Registration Statement by the Act or by the Rules and Regulations
which have not been described or filed as required. The contracts so
described in the Prospectus are in full force and effect on the date
hereof; the descriptions thereof or references thereto are correct in
all material respects; and neither the Company nor any of the
Subsidiaries, nor, to the knowledge of the Company, any other party is
in breach of or default under any of such contracts.
(m) Except as disclosed in the Prospectus, there are no legal
or governmental actions, suits or proceedings pending or, to the
knowledge of the Company, threatened to which the Company or any of the
Subsidiaries is or may be a party or of which property owned or leased
by the Company or any of the Subsidiaries is or may be the subject, or
related to environmental, discrimination or financial regulatory
matters, which actions, suits or proceedings might, individually or in
the aggregate, prevent or adversely affect the transactions
contemplated by this Agreement or are likely to result in a Material
Adverse Effect and no labor disturbance by the employees of the Company
or the Subsidiaries exists or is imminent which might be expected to
affect adversely such condition, properties, business, results of
operations or prospects of the Company and the Subsidiaries, taken as a
whole. Except as disclosed in the Prospectus, no enforcement
proceeding, whether formal or informal, has been commenced against the
Company or any of the Subsidiaries by the FDIC or, to the Company's and
the Subsidiaries' knowledge, any other governmental authority, nor have
any such proceedings been instituted, threatened or recommended. Except
as disclosed in the Prospectus, neither the Company, nor any of the
Subsidiaries, or any of their respective officers, employees
8
or directors is a party or subject to the provisions of any regulatory
action, injunction, judgment, decree or order of any court, regulatory
body, administrative agency or other governmental body affecting the
business of the Company or any of the Subsidiaries.
(n) The Company or the Subsidiaries has good and marketable
title to all their properties and assets, free and clear of all liens,
charges, encumbrances or restrictions, except such as do not materially
adversely affect the value of such properties and assets and do not
interfere with the use made or proposed to be made of such properties
and assets by the Company and the Subsidiaries; all of the leases and
subleases material to the business of the Company or the Subsidiaries
or under which the Company holds properties described in the Prospectus
are in full force and effect; and the Company or the Subsidiaries has
no notice of any material claim of any sort which has been asserted by
anyone adverse to the rights of the Company or the Subsidiaries as
owner or as lessee or sublessee under any of the leases or subleases
mentioned above, or materially affecting or questioning the rights of
the Company or the Subsidiaries to the continued possession of the
leased or subleased premises under any such lease or sublease. Except
as disclosed in the Prospectus and other than such leases and
properties as are immaterial in the aggregate, the Company or the
Subsidiaries owns or leases all such properties as are necessary to its
operations as now conducted or, as proposed to be conducted.
(o) Since the respective dates as of which information is
given in the Registration Statement and Prospectus, and except as
described in or specifically contemplated by the Prospectus: (i) the
Company and the Subsidiaries have not incurred any material liabilities
or obligations, indirect, direct or contingent, or entered into any
material verbal or written agreement or other transaction whether or
not arising in the ordinary course of business or which could result in
a material reduction in the future earnings of the Company and the
Subsidiaries (taken as a whole); (ii) there has not been any material
increase in the long-term debt of the Company and the Subsidiaries
(taken as a whole) or in the aggregate dollar or principal amount of
the Company's and the Subsidiaries (taken as a whole) assets which are
classified as substandard, doubtful or loss or loans which are 90 days
or more past due or real estate acquired by foreclosure; (iv) there has
not been any Material Adverse Effect on the aggregate dollar amount of
the Company's and the Subsidiaries' (taken as a whole) deposits or
their consolidated net worth or spread; (v) there has been no material
adverse change in the Company's and the Subsidiaries relationship with
its insurance carriers, including, without limitation, cancellation or
other termination of the Company's or the Subsidiaries fidelity bond or
any other type of insurance coverage; (vi) except as disclosed in the
Prospectus there has been no material change in management of the
Company or the Subsidiaries; (vii) the Company
9
and the Subsidiaries have not sustained any material loss or
interference with their respective business or properties from fire,
flood, windstorm, earthquake, accident or other calamity, whether or
not covered by insurance; (viii) the Company has not paid or declared
any dividends or other distributions with respect to its capital stock
and the Company and the Subsidiaries are not in default in the payment
of principal or interest on any outstanding debt obligations; (ix)
there has not been any change in the capital stock (other than upon the
sale of the Common Shares hereunder); and (x) there has not been any
material adverse change in the condition (financial or otherwise),
business, properties, results of operations or prospects of the Company
and the Subsidiaries, taken as a whole, other than changes resulting
from changes in the economy or the Company's and the Subsidiaries
industry generally.
(p) Except as disclosed in or specifically contemplated by the
Prospectus, the Company and the Subsidiaries have sufficient
trademarks, trade names, patent rights, copyrights, licenses, approvals
and governmental authorizations to conduct their businesses as now
conducted; the expiration of any trademarks, trade names, patent
rights, copyrights, licenses, approvals or governmental authorizations
would not have a Material Adverse Effect; and the Company and the
Subsidiaries have no knowledge of any material infringement by it of
trademark, trade name rights, patent rights, copyrights, licenses,
trade secret or other similar rights of others, and, to the Company's
and the Subsidiaries knowledge, there is no claim being made against
the Company or any of the Subsidiaries regarding trademark, trade name,
patent, copyright, license, trade secret or other infringement which
could have a Material Adverse Effect.
(q) The Company has not been advised, and has no reason to
believe, that either it or any of the Subsidiaries is not conducting
business in compliance with all applicable laws, rules and regulations
of the jurisdictions in which it is conducting business, including,
without limitation, all applicable local, state and federal financial
institution and environmental laws and regulations; except where
failure to be so in compliance would not have a Material Adverse
Effect. Neither the Company nor any of its affiliates (including the
Subsidiaries) is a bank holding company within the meaning of the Bank
Holding Company Act of 1956, as amended, or applicable regulations
promulgated thereunder. The Company is a savings and loan holding
company within the meaning of the Home Owners' Loan Act. The Bank is an
insured depository institution within the meaning of the Federal
Deposit Insurance Act, as amended.
(r) Except as disclosed in the Prospectus, the Bank is not in
violation of any directive from the FDIC or any other governmental
authority and the Bank is in compliance with all federal and state laws
and regulations that regulate or are concerned with its business
including, without limitation, the Financial Institutions Recovery,
Reform and Enforcement Act of 1989 ("FIRREA"), the Federal Deposit
Insurance Act (the "FDIA"), the National Housing Act (the "NHA"), the
Federal Deposit Insurance Corporation Improvement Act of 1991
("FDICIA") and all other applicable laws and regulations where the
failure to comply would have a Material Adverse Effect.
10
(s) The Company and the Subsidiaries have filed or caused to
be filed all material federal, state and foreign income and franchise
tax returns and have paid all taxes shown as due thereon; and the
Company has no knowledge of any tax deficiency which has been or might
be asserted or threatened against the Company or the Subsidiaries which
would have a Material Adverse Effect.
(t) The Company is not an "investment company" within the
meaning of the Investment Company Act of 1940, as amended (the
"Investment Company Act").
(u) The Company has not distributed any offering material in
connection with the offering and sale of the Common Shares other than
the Preliminary Prospectus, the Prospectus, the Registration Statement
and the other materials permitted by the Act.
(v) The Company and the Bank maintain insurance of the types
and in the amounts generally deemed adequate for their respective
businesses, including, but not limited to, general liability insurance,
fidelity bond insurance and insurance covering real and personal
property owned or leased by the Company or the Bank against theft,
forgery, damage, destruction, acts of vandalism and all other risks
customarily insured against, all of which insurance is in full force
and effect.
(w) Neither the Company nor the Bank has, directly or
indirectly, at any time during the last five years (i) made any
unlawful contribution to any candidate for public office, or failed to
disclose fully any contribution in violation of law, or
(ii) made any payment to any federal or state governmental officer or
official, or other person charged with similar public or quasi-public
duties, other than payments required or permitted by the laws of the
United States or any jurisdiction thereof.
(x) All material transactions between the Company and the Bank
and the officers, directors and major stockholders of the Company that
are required to be disclosed under the Act and the Rules and
Regulations have been accurately disclosed in the Prospectus; and the
terms of each such transaction are fair to the Company and no less
favorable to the Company than the terms that could have been obtained
from unrelated parties, except as disclosed in the Prospectus.
(y) Except as disclosed in the Prospectus, neither the Company
nor the Bank has: (i) placed any securities within the last 18 months
(except for notes to evidence other bank loans and reverse repurchase
agreements); (ii) had any material dealings with any member of the NASD
or any person related to or associated with such member, other than
discussions and meetings relating to the proposed Offering and routine
purchases and sales of U.S. Government and agency securities and other
assets; (iii) entered into a financial or management consulting
agreement except as contemplated hereunder and except for the
engagement letter with Friedman, Billings, Xxxxxx & Co., Inc., dated
December 5, 1995; or (iv) engaged any
11
intermediary between the Representatives and the Company in connection
with the Offering, and no person is being compensated in any manner for
such service.
(z) The Company has not taken directly or indirectly, any
action designed to cause or result in, or which has constituted or
which reasonably might be expected to constitute, the stabilization or
manipulation of the price of the Class A Common Stock to facilitate the
sale or resale of the Class A Common Stock.
(aa) The Company has not relied upon the Representatives or
legal counsel for the Representatives for any legal, tax or accounting
advice in connection with the Offering.
Any certificate signed by any officer of the Company and delivered to
you or to your counsel shall be deemed a representation and warranty by the
Company to you as to the matters covered thereby. Any certificate delivered by
the Company to its counsel for purposes of enabling such counsel to render the
opinions referred to in Section 7(c) will also be furnished to the Underwriters
and its counsel and shall be deemed to be additional representations and
warranties by the Company to the Underwriters as to the matters covered thereby
and the Underwriters and its counsel are entitled to rely thereon.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE UNDERWRITERS. You, for
yourselves or on behalf of the Underwriters, as the case may be, represent and
warrant to the Company that the information set forth in the Prospectus (i) on
the cover page of the Prospectus with respect to price, underwriting discounts
and commissions and terms of offering, (ii) on the inside cover page with
respect to stabilization and (iii) under the caption "Underwriting" in the
Prospectus was furnished to the Company by and on behalf of the Underwriters for
use in connection with the preparation of the Registration Statement and the
Prospectus and is complete and correct in all material respects. If applicable,
the Representatives represent and warrant you have been authorized by each of
the other Underwriters as the Representatives to enter into this Agreement on
its behalf and to act for it in the manner herein provided.
SECTION 4. COVENANTS OF THE COMPANY. The Company covenants and agrees
that:
(a) The Company will use its best efforts to cause the
Registration Statement and any amendment thereof, if not effective at
the time and date that this Agreement is executed and delivered by the
parties hereto, to become effective. If the Registration Statement has
become or becomes effective pursuant to Rule 430A of the Rules and
Regulations, or the filing of the Prospectus is otherwise required
under Rule 424(b) of the Rules and Regulations, the Company will file
the Prospectus, properly completed, pursuant to the applicable
paragraph of Rule 424(b) of the Rules and Regulations within the time
period prescribed and will provide evidence satisfactory to you of such
timely filing. The Company will promptly advise you in writing (i) of
the receipt of any comments of the Commission, (ii) of any request of
the Commission for amendment of or supplement to the Registration
Statement
12
(either before or after it becomes effective), any Preliminary
Prospectus or the Prospectus or for additional information, (iii) when
the Registration Statement shall have become effective and (iv) of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of the institution of
any proceedings for that purpose. If the Commission shall enter any
such stop order at any time, the Company will use its best efforts to
obtain the lifting of such order at the earliest possible moment. The
Company will not file any amendment or supplement to the Registration
Statement (either before or after it becomes effective), any
Preliminary Prospectus or the Prospectus of which you have not been
furnished with a copy a reasonable time prior to such filing or to
which you reasonably object or which is not in compliance with the Act
and the Rules and Regulations.
(b) The Company will prepare and file with the Commission,
promptly upon your request, any amendments or supplements to the
Registration Statement or the Prospectus which in your reasonable
judgment may be necessary or advisable to enable the Underwriter to
continue the distribution of the Common Shares and will use its best
efforts to cause the same to become effective as promptly as possible.
The Company will fully and completely comply with the provisions of
Rule 430A of the Rules and Regulations with respect to information
omitted from the Registration Statement in reliance upon such Rule.
(c) If at any time within the nine-month period referred to in
Section 10(a)(3) of the Act during which a prospectus relating to the
Common Shares is required to be delivered under the Act any event
occurs, as a result of which the Prospectus, including any amendments
or supplements, would include an untrue statement of a material fact,
or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
then existing, not misleading, or if it is necessary at any time to
amend the Prospectus, including any amendments or supplements, to
comply with the Act or the Rules and Regulations, the Company will
promptly advise you thereof and will promptly prepare and file with the
Commission, at its own expense, an amendment or supplement which will
correct such statement or omission or an amendment or supplement which
will effect such compliance and will use its best efforts to cause the
same to become effective as soon as possible; and, in case you or any
Underwriters are required to deliver a Prospectus after such nine-month
period, the Company upon request, but at the expense of you or such
Underwriters, will promptly prepare such amendment or amendments to the
Registration Statement and such Prospectus or Prospectuses as may be
necessary to permit compliance with the requirements of Section
10(a)(3) of the Act.
(d) As soon as practicable, but not later than 45 days after
the end of the first quarter ending after one year following the
"effective date of the Registration Statement" (as defined in Rule
158(c) of the Rules and Regulations), the Company
13
will make generally available to its security holders an earnings
statement (which need not be audited) covering a period of 12
consecutive months beginning after the effective date of the
Registration Statement which will satisfy the provisions of the last
paragraph of Section 11(a) of the Act.
(e) During such period as a Prospectus is required by law to
be delivered in connection with sales by an Underwriter or dealer, the
Company, at its expense, but only for the nine-month period referred to
in Section 10(a)(3) of the Act, will furnish to you or mail to your
order copies of the Registration Statement, the Prospectus, the
Preliminary Prospectus and all amendments and supplements to any such
documents in each case as soon as available and in such quantities as
you may request, for the purposes contemplated by the Act.
(f) The Company shall cooperate with you and your counsel in
order to qualify or register the Common Shares for sale under (or
obtain exemptions from the application of) the Blue Sky laws of such
jurisdictions as you designate, will comply with such laws and will
continue such qualifications, registrations and exemptions in effect so
long as reasonably required for the distribution of the Common Shares.
The Company shall not be required to qualify as a foreign corporation
or to file a general consent to service of process in any such
jurisdiction where it is not presently qualified or where it would be
subject to
taxation as a foreign corporation. The Company will advise you promptly
of the suspension of the qualification or registration of (or any such
exemption relating to) the Common Shares for offering, sale or trading
in any jurisdiction or any initiation or threat of any proceeding for
any such purpose, and in the event of the issuance of any order
suspending such qualification, registration or exemption, the Company,
with your cooperation, will use its best efforts to obtain the
withdrawal thereof.
(g) The Company shall promptly prepare and file with the
Commission, from time to time, such reports as may be required to be
filed by the Act and the Exchange Act including, without limitation,
reports with respect to the sale of the Common Shares and the
application of the proceeds thereof as may be required in accordance
with Rule 463 under the Act.
(h) During the period of five years hereafter, the Company
will furnish to you: (i) at the same time as such are furnished to its
Stockholders generally, copies of the Annual Report of the Company
containing the consolidated balance sheet of the Company and the
Subsidiaries as of the close of such fiscal year and consolidated
statements of income, stockholders' equity and cash flows for the year
then ended and the opinion thereon of the Company's independent public
accountants; (ii) as soon as practicable after the filing thereof,
copies of each proxy statement, Annual Report on Form 10-K, Quarterly
Report on Form 10-Q, Current Report on Form 8-K or other report filed
by the Company with the Commission, the NASD or any securities
exchange; (iii) as soon as available, copies of any report or
communication
14
of the Company mailed generally to holders of its Common Stock; (iv) as
soon as practicable after the filing thereof, of each non-confidential
report or other statement or document filed by the Company with the
Commission, or with any national securities exchange or quotation
system on which any securities of the Company may be listed or quoted;
and (v) from time to time, such other non-confidential information
concerning the Company as you may reasonably request.
(i) During the period of 180 days after the date the
Registration Statement is declared effective by the Commission, without
your prior written consent, which consent may be withheld at your sole
discretion, the Company will not, directly or indirectly, issue, offer,
sell, grant options to purchase or otherwise dispose of any of the
Company's equity securities or any other securities convertible into,
exchangeable for or exercisable for its Class A Common Stock or other
equity security of the Company, other than (i) shares of Class A Common
Stock or Class B Common Stock issued upon the exercise of outstanding
stock options disclosed in the Prospectus; (ii) shares of Class A
Common Stock or Class B Common Stock issued upon conversion of
outstanding convertible securities disclosed in the Prospectus, (iii)
options to purchase Class A Common Stock or Class B Common
Stock to be granted under the Company's stock option plans or approved
as of September 30, 1997 by the Company's Board of Directors, as
described under the caption "Capitalization" in the Prospectus, and the
shares of Class A Common Stock issued upon exercise of such options,
and (iv) shares of Class A Common Stock or Class B Common Stock issued
as fees to directors of the Company, salary to employees of the
Company, dividends on the Company's stock, or bonuses under the
Company's employee bonus plan.
(j) The Company will apply the net proceeds of the sale of the
Common Shares sold by it substantially in accordance with its
statements under the caption "Use of Proceeds" in the Prospectus.
(k) The Company will use its best efforts to list, subject to
notice of issuance, the Common Shares as a national market system
security on the Nasdaq Stock Market.
(l) The Bank shall continue to maintain a system of internal
accounting controls as required under FDICIA.
(m) The Company will not distribute prior to the First Closing
Date any offering material in connection with the offering and sale of
the Common Shares other than the Preliminary Prospectus, the
Prospectus, the Registration Statement and the other materials
permitted by the Act.
(n) The Company will not take, directly or indirectly, any
action designed to cause or result in, or which has constituted or
which reasonably might be expected
15
to constitute, the stabilization or manipulation of the price of the
Class A Common Stock to facilitate the sale or resale of the Common
Shares.
(o) The Company will not rely upon the Representatives or
legal counsel for the Representatives for any legal, tax or accounting
advice in connection with the Offering.
You may, in your sole discretion, waive in writing the performance by
the Company of any one or more of the foregoing covenants or extend the time for
their performance.
SECTION 5. PAYMENT OF EXPENSES. Whether or not the transactions
contemplated hereunder are consummated or this Agreement becomes effective or is
terminated, the Company agrees to pay all costs, fees and expenses incurred in
connection with the performance of its obligations hereunder and in connection
with the transactions contemplated hereby, including without limiting the
generality of the foregoing, (i) all expenses incident to the issuance and
delivery of the Common Shares (including all printing and engraving costs), (ii)
all fees and expenses of the registrar and transfer agent of the Class A Common
Stock, (iii) all necessary issue,
transfer and other stamp taxes in connection with the issuance and sale of the
Common Shares to you and the Underwriters, (iv) all fees and expenses of the
Company's counsel and the Company's independent accountants, (v) all costs and
expenses incurred in connection with the preparation, printing, filing, shipping
and distribution of the Registration Statement, each Preliminary Prospectus and
the Prospectus (including all exhibits and financial statements) and all
amendments and supplements provided for herein, (vi) all filing fees, attorneys'
fees and expenses incurred by the Company or the Underwriters in connection with
qualifying or registering (or obtaining exemptions from the qualification or
registration of) all or any part of the Common Shares for offer and sale under
the Blue Sky laws, (vii) the filing fee of the National Association of
Securities Dealers, Inc., (viii) all the costs and expenses incurred by the
Company in making road show presentations with respect to the Offering, (ix) all
costs of preparing, printing and distribution of bound volumes of the
transaction documents for you and your counsel, (x) all fees, costs and expenses
of the Representatives, including fees and expenses of their counsel and road
show costs and expenses (which shall not exceed $75,000 without prior permission
of the Company) and (xi) all other fees, costs and expenses referred to in Item
14 of the Registration Statement provided, however, that the Company shall pay
all of the foregoing costs, fees and expenses related to a second closing, if
any. Except as provided in this Section 6, and Section 9 hereof, each of you and
the Underwriters shall pay all of your own expenses.
SECTION 6. CONDITIONS TO THE OBLIGATIONS OF YOU AND THE UNDERWRITERS.
The obligations of you and the Underwriters to purchase and pay for the Firm
Common Shares on the First Closing Date and the Optional Common Shares on the
Second Closing Date shall be subject to the accuracy in all material respects of
the representations and warranties on the part of the Company herein set forth
as of the date hereof and as of the First Closing Date or the Second Closing
Date, as the case may be, to the accuracy in all material respects of the
statements of Company and Bank officers made pursuant to the provisions hereof,
to the performance in all material respects by the Company of its obligations
hereunder, and to the following additional conditions:
16
(a) The Registration Statement shall have become effective not
later than 5:00 P.M., Washington, D.C. Time, on the date of this
Agreement, or at such later time as shall have been consented to by
you; if the filing of the Prospectus, or any supplement thereto, is
required pursuant to Rule 424(b) of the Rules and Regulations, the
Prospectus shall have been filed in the manner and within the time
period required by Rule 424(b) of the Rules and Regulations; and prior
to such Closing Date, no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for
that purpose shall have been instituted or shall be pending or, to the
knowledge of the Company or you, shall be contemplated by the
Commission; and any request of the Commission for inclusion of
additional information in the Registration Statement, or otherwise,
shall have been complied with to your reasonable satisfaction.
(b) You shall be reasonably satisfied that since the
respective dates as of which information is given in the Registration
Statement and Prospectus, (i) there
shall not have been any change in the capital stock of the Company or
the Subsidiaries or any material change in the indebtedness (other than
in the ordinary course of business) of the Company or the Subsidiaries,
(ii) except as set forth or contemplated by the Registration Statement
or the Prospectus, no material verbal or written agreement or other
transaction shall have been entered into by the Company or the
Subsidiaries, which is not in the ordinary course of business and which
could result in a material reduction in the future earnings of the
Company and the Subsidiaries, taken as a whole, (iii) no loss or damage
(whether or not insured) to the property of the Company or the
Subsidiaries shall have been sustained which materially and adversely
affects the condition (financial or otherwise), business, results of
operations or prospects of the Company and the Subsidiaries, taken as a
whole, (iv) no legal or governmental action, suit or proceeding
affecting the Company or the Subsidiaries which is material to the
Company and the Subsidiaries, taken as a whole, or which affects or may
affect the transactions contemplated by this Agreement shall have been
instituted or threatened, (v) no enforcement proceeding, whether formal
or informal, shall have been commenced against the Company or the Bank
by the FDIC or any other governmental agency nor shall any such
proceeding have been instituted, threatened or recommended, and (vi)
there shall not have been any material change in the condition
(financial or otherwise), business, management, results of operations
or prospects of the Company and the Subsidiaries, taken as a whole,
which makes it impractical or inadvisable in your judgment to proceed
with the public offering or purchase the Common Shares as contemplated
hereby.
(c) There shall have been furnished to you, individually or as
Representatives of the Underwriters, as the case may be, on each
Closing Date, in form and substance reasonably satisfactory to you,
except as otherwise expressly provided below:
17
(i) An opinion of Stuzin & Camner, counsel for the
Company, addressed to you, or you as Representatives of the
Underwriters, as the case may be, and dated the First Closing
Date, or the Second Closing Date, as the case may be, in the
form of Exhibit A to this Agreement.
(ii) Such opinion or opinions of Silver, Xxxxxxxx &
Taff, L.L.P., counsel for the Underwriters dated the First
Closing Date or the Second Closing Date, as the case may be,
with respect to the incorporation of the Company, the
sufficiency of all corporate proceedings and other legal
matters relating to this Agreement, the validity of the Common
Shares, the Registration Statement and the Prospectus and
other related matters as you may reasonably require, and such
counsel shall have received such documents and shall have
exhibited to them such papers and records as they may
reasonably request for the purpose of enabling them to pass
upon such matters. In connection with such opinions, such
counsel may rely on the opinion of Stuzin & Camner and
representations or certificates of officers of the Company and
the Bank and governmental officials.
(iii) A certificate of the Company executed by the
Chairman of the Board or President and the Chief Financial or
Accounting Officer, dated the First Closing Date or the Second
Closing Date, as the case may be, to the effect that:
(1) The representations and warranties of
the Company set forth in Section 2 of this Agreement
are true and correct in all material respects as of
the date of this Agreement and as of the First
Closing Date or the Second Closing Date, as the case
may be, and the Company has complied in all material
respects with all the agreements and satisfied all
the conditions on its part to be performed or
satisfied on or prior to such Closing Date;
(2) The Commission has not issued any order
preventing or suspending the use of the Prospectus or
any Preliminary Prospectus filed as a part of the
Registration Statement or any amendment thereto; no
stop order suspending the effectiveness of the
Registration Statement has been issued; and to the
best of the knowledge of the respective signers, no
proceedings for that purpose have been instituted or
are pending or contemplated under the Act;
18
(3) Neither the Registration Statement nor
the Prospectus nor any amendment or supplement
thereto includes any untrue statement of a material
fact or omits to state any material fact required to
be stated therein, or necessary to make the
statements therein, in the light of the circumstances
under which they were made, not misleading;
(4) Since the initial date on which the
Registration Statement was filed with the Commission,
no agreement, written or oral, transaction or event
has occurred which should have been set forth in an
amendment to the Registration Statement or in a
supplement to or amendment of any prospectus which
has not been disclosed in such a supplement or
amendment;
(5) Since the respective dates as of which
information is given in the Registration Statement
and the Prospectus and except as disclosed in or
contemplated by the Prospectus, the Company and the
Subsidiaries, taken as a whole, have not sustained a
material loss or damage by strike, fire, flood,
windstorm, accident or other calamity (whether or not
insured).
(iv) On the date before this Agreement is executed
and also on the First Closing Date and the Second Closing Date
a letter addressed to you or to you as Representatives of the
Underwriters, as the case may be, from Price Waterhouse LLP,
independent accountants, the first one to be dated the day
before the date of this Agreement, the second one to be dated
the First Closing Date and the third one (in the event of a
Second Closing) to be dated the Second Closing Date, in form
and substance reasonably satisfactory to you to the effect
that:
(1) They are independent accountants within the
meaning of the Act and the applicable
published rules and regulations thereunder;
(2) In their opinion, the consolidated financial
statements of the Company and its
subsidiaries audited by them and included in
the Registration Statement comply as to form
in all material respects with the applicable
accounting requirements of the Act and the
published rules and regulations thereunder
with respect to registration statements on
Form S-3;
19
(3) On the basis of procedures (but not an audit
in accordance with generally accepted
auditing standards) consisting of:
(a) Reading the minutes of meetings of
the stockholders and the Board of
Directors of the Company and its
consolidated subsidiaries since
September 30, 1994 as set forth in
the minute books through a
specified date not more than five
business days prior to the date of
delivery of any such letter;
(b) Performing the procedures specified
by the American Institute of
Certified Public Accountants for a
review of interim financial
information as described in SAS No.
71, interim Financial Information,
on the unaudited condensed interim
financial statements of the Company
and its consolidated subsidiaries
included in the Registration
Statement under the caption
"Summary of Recent Developments"
and reading the unaudited interim
financial data for the period from
the date of the latest audited
balance sheet included in the
Registration Statement to the date
of the latest available interim
financial data; and
(c) Making inquires of certain
officials of the Company who have
responsibility for financial and
accounting matters regarding the
specific items for which
representations are requested
below;
nothing has come to their attention as a
result of the foregoing procedures that
caused them to believe that:
(i) the unaudited condensed
interim financial
statements, included in the
Registration Statement,
under the caption "Summary
of Recent Developments", do
not comply as to form in
all material respects with
the applicable accounting
requirements of
20
the Act and the published
rules and
regulations thereunder;
(ii) any material modifications
should be made to the
unaudited condensed
interim financial
statements, included in
the Registration Statement
under the caption "Summary
of Recent Developments",
for them to be in
conformity with generally
accepted accounting
principles;
(iii) (i) at the date of the
latest available
interim financial data
and at a specified date
not more than five
business days prior to
the date of delivery of
such letter, there was
any change in the
capital stock, increase
in long-term debt or any
decreases in
consolidated net current
assets (working capital)
or stockholders' equity
of the Company and
subsidiaries
consolidated as compared
with amounts shown in
the latest balance sheet
included in the
Registration Statement
or (ii) for the
period from the date of
the latest available
financial data to a
specified date not more
than five business days
prior to delivery of
such letter, there were
any decreases, as
compared with the
corresponding period in
the preceding year, in
consolidated net
interest income or in
the total or per share
amounts of net income,
except in all instances
for changes or decreases
which the Registration
Statement discloses have
occurred or may occur,
or they shall state any
specific changes or
decreases.
(4) The letter shall also state that they have:
21
(a) Read the dollar amounts and percentages and
other financial information of the Company
contained in the Registration Statement or
incorporated by reference therein and agreed
such dollar amounts and percentages
respectively to appropriate accounts in the
Company's accounting records subject to its
system of internal accounting controls and
to schedules prepared by the Company
therefrom;
(b) Read the dollar amounts listed as
outstanding under "Capitalization" and
agreed such amounts or totals thereof to the
Company's accounting records subject to its
system of internal accounting controls; and
(c) Read the dollar and per share amounts listed
under "Selected Financial Information and
Other Data" and "Summary Financial
Information and Other Data" and agreed such
amounts to audited financial
statements.
(v) On or before the First Closing Date, letters from
each director and executive officer of the Company, in form
and substance satisfactory to you, confirming that for a
period of ninety (90) days after the first date that any of
the Common Shares are released by you for sale to the public,
such person will not directly or indirectly sell, offer to
sell, contract to sell or otherwise dispose of any shares of
Common Stock or any right to acquire such shares without the
prior written consent of the Representatives, which consent
may be withheld at the sole discretion of the Representatives.
All such opinions, certificates, letters and documents shall be in
compliance with the provisions hereof only if they are reasonably satisfactory
to you and to Silver, Xxxxxxxx & Xxxx, L.L.P., counsel for the Underwriters. The
Company shall furnish you with such manually signed or conformed copies of such
opinions, certificates, letters and documents as you reasonably request. The
letter described in subparagraph (c)(v) above may be an original or facsimile of
the original.
If any condition to you or the Underwriters' obligations hereunder to
be satisfied prior to or at the First Closing Date is not so satisfied, this
Agreement at your election will terminate upon written notification by you as
Representatives to the Company without liability on the part of any Underwriter
or the Company, except for the expenses to be paid or reimbursed by the Company
pursuant to Section 5 hereof and except to the extent provided in Section 9
hereof.
SECTION 7. EFFECTIVENESS OF REGISTRATION STATEMENT. Each party to this
Agreement will use its best efforts to cause the Registration Statement to
become effective, to prevent the issuance of
22
any stop order suspending the effectiveness of the Registration Statement and,
if such stop order be issued, to obtain as soon as possible the lifting thereof.
SECTION 8. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls an Underwriter, as
the case may be, within the meaning of the Act against any losses,
claims, damages, liabilities or expenses, joint or several, to which an
Underwriter or such controlling person may become subject, under the
Act, the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), or other federal or state statutory law or regulation, or at
common law or otherwise (including in settlement of any litigation, if
such settlement is effected with the written consent of the Company),
insofar as such losses, claims, damages, liabilities or expenses (or
actions in respect thereof as contemplated below) arise out of or are
based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, any Preliminary
Prospectus, the Prospectus, or any amendment or supplement thereto, or
based upon written information supplied by the Company filed in any
state or jurisdiction to register or qualify any or all of the Common
Shares or to claim an exemption therefrom, or provided to any state or
jurisdiction to exempt the Company as a broker-dealer or its officers,
directors and employees as broker-dealers or agents, under the
securities laws thereof (collectively, the "Blue Sky Application") or
arise out of or are based upon the omission or alleged omission to
state in any of them a material fact required to be stated therein or
necessary to make the statements in any of them not misleading, or
arise from any theory of liability whatsoever relating to or arising
from or based upon the Registration Statement, any Preliminary
Prospectus, the Prospectus, or any amendment or supplement thereto, or
arise out of or are based in whole or in part on any inaccuracy in the
representations and warranties of the Company contained herein or any
failure of the Company to perform its obligations hereunder or under
law; and will reimburse each Underwriter and each such controlling
person for any legal and other expenses as such expenses are reasonably
incurred by such Underwriter or such controlling person in connection
with investigating, defending, settling, compromising or paying any
such loss, claim, damage, liability, expense or action; provided,
however, that the Company will not be liable in any such case to the
extent that any such loss, claim, damage, liability or expense arises
out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in the Registration Statement, any
Preliminary Prospectus, the Prospectus or any amendment or supplement
thereto in reliance upon and in conformity with the information
furnished to the Company pursuant to Section 3 hereof; provided,
further, that the foregoing indemnity with respect to any Preliminary
Prospectus shall not inure to the benefit of any Underwriter from whom
the person asserting any such loss, claim, damage or liability
purchased the Common Shares that are the subject thereof if such person
did not receive a copy of the Prospectus (or the Prospectus as
supplemented) at or prior to the confirmation of
23
the sale to such person in any case where such delivery is required
by the Act and the untrue statement or omission of a material fact
contained in such Preliminary Prospectus was corrected in the
Prospectus (or the Prospectus as supplemented). In addition to its
other obligations under this Section 9(a), the Company agrees that, as
an interim measure during the pendency of any claim, action,
investigation, inquiry or other proceeding arising out of or based upon
any statement or omission, or any alleged statement or omission, or any
inaccuracy in the representations and warranties of the Company herein
or failure to perform its obligations hereunder, all as described in
this Section 8(a), it will reimburse each Underwriter (and, to the
extent applicable, each controlling person) on a quarterly basis for
all reasonable legal or other expenses incurred in connection with
investigating or defending any such claim, action, investigation,
inquiry or other proceeding, notwithstanding the absence of a judicial
determination as to the propriety and enforceability of the Company's
obligation to reimburse each Underwriter (and, to the extent applicable
each controlling person) for such expenses and the possibility that
such payments might later be held to have been improper by a court of
competent jurisdiction. To the extent that any such interim
reimbursement payment is so held to have been improper, such
Underwriter (and, to the extent applicable each controlling person)
shall promptly return it to the Company together with interest,
compounded daily, determined on the basis of the prime rate (or other
commercial lending rate for borrowers of the highest credit standing)
announced from time to time by The Wall Street Journal (the "Prime
Rate"). Any such interim reimbursement payments which are not made to
an Underwriter within 30 days of a request for reimbursement, shall
bear interest at the Prime Rate from the date of such request. This
indemnity agreement will be in addition to any liability which the
Company may otherwise have.
(b) You or each Underwriter, as the case may be, will
severally indemnify and hold harmless the Company, each of its
directors, each of its officers who signed the Registration Statement,
and each person, if any, who controls the Company within the meaning of
the Act, against any losses, claims, damages, liabilities or expenses
to which the Company or any such director, officer, or controlling
person may become subject, under the Act, the Exchange Act, or other
federal or state statutory law or regulation, or at common law or
otherwise (including in settlement of any litigation, if such
settlement is effected with the written consent of such Underwriter),
insofar as such losses, claims, damages, liabilities or expenses (or
actions in respect thereof as contemplated below) arise out of or are
based upon any untrue or alleged untrue statement of any material fact
contained in the Registration Statement, any Preliminary Prospectus,
the Prospectus, or any amendment or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, in each such case to the extent, but
only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in the Registra tion
Statement, any Preliminary
24
Prospectus, the Prospectus, or any amendment or supplement thereto, in
reliance upon and in conformity with the information furnished to the
Company pursuant to Section 3 hereof; and will reimburse the Company or
any such director, officer, or controlling person for any legal and
other expense reasonably incurred by the Company, or any such director,
officer, or controlling person in connection with investigating,
defending, settling, compromising or paying any such loss, claim,
damage, liability, expense or action. In addition to the other
obligations under this Section 8(b), you or each Underwriter, as the
case may be, severally agrees that, as an interim measure during the
pendency of any claim, action, investigation, inquiry or other
proceeding arising out of or based upon any statement or omission, or
any alleged statement or omission, described in this Section 8(b) which
relates to information furnished to the Company pursuant to Section 3
hereof, it will reimburse the Company (and, to the extent applicable,
each officer, director, controlling person) on a quarterly basis for
all reasonable legal or other expenses incurred in connection with
investigating or defending any such claim, action, investigation,
inquiry or other proceeding, notwithstanding the absence of a judicial
determination as to the propriety and enforceability of your or the
Underwriters' obligation to reimburse the Company (and, to the extent
applicable, each officer, director, controlling person) for such
expenses and the possibility that such payments might later be held to
have been improper by a court of competent jurisdiction. To the extent
that any such interim reimbursement payment is so held to have been
improper, the Company (and, to the extent applicable, each officer,
director or controlling person) shall promptly return it to the
Underwriters together with interest, compounded daily, determined on
the basis of the Prime Rate. Any such interim reimbursement payments
which are not made to the Company within 30 days of a request for
reimbursement, shall bear interest at the Prime Rate from the date of
such request. This indemnity agreement will be in addition to any
liability which you or such Underwriter, as the case may be, may
otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against an
indemnifying party under this Section, notify the indemnifying party in
writing of the commencement thereof, but the omission so to notify the
indemnifying party will not relieve it from any liability which it may
have to any indemnified party for indemnity, contribution or otherwise
except to the extent the indemnifying party is prejudiced as a
proximate result of such failure. In case any such action is brought
against any indemnified party and such indemnified party seeks or
intends to seek indemnity from an indemnifying
25
party, the indemnifying party will be entitled to participate in, and,
to the extent that it may wish, jointly with all other indemnifying
parties similarly notified, to assume the defense thereof with counsel
reasonably satisfactory to such indemnified party; provided, however,
if the defendants in any such action include both the indemnified party
and the indemnifying party and the indemnified party shall have
reasonably concluded that there may be a conflict between the positions
of the indemnifying party and the indemnified party in conducting the
defense of any such action or 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, the
indemnified party or parties shall have the right to select separate
counsel to assume such legal defenses and to otherwise participate in
the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such
indemnified party of its election so to assume the defense of such
action and approval by the indemnified party of counsel, the
indemnifying party will not be liable to such indemnified party under
this Section for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof unless
(i) the indemnified party shall have employed such counsel in
connection with the assumption of legal defenses in accordance with the
proviso to the next preceding sentence or (ii) the indemnifying party
shall not have employed counsel reasonably satisfactory to the
indemnified party to represent the indemnified party within a
reasonable time after notice of commencement of the action, in each of
which cases the fees and expenses of counsel shall be at the expense of
the indemnifying party (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than
one separate counsel representing the indemnified parties who are
parties to such action; provided, however, if an indemnified party in
any such action shall have concluded that there may be legal defenses
or rights available to it which are different from, in actual or
potential conflict with, or additional to those available to other
indemnified parties, such party shall have the right to select an
additional law firm to act as its separate counsel).
(d) If the indemnification provided for in this Section 8 is required
by its terms but is for any reason held to be unavailable to or
otherwise insufficient to hold harmless an indemnified party under
subsections (a), (b) or (c) of this Section 8 in respect of any losses,
claims, damages, liabilities or expenses referred to herein, then each
applicable indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of any losses, claims,
damages, liabilities or expenses referred to herein (i) in such
proportion as is appropriate to reflect the relative benefits received
by the Company and you or the Underwriters, as the case may be, from
the offering of the Common Shares 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 and you
or the Underwriters, as the case may be, in connection with the
statements or omissions or inaccuracies in the representations and
warranties herein which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable
considerations. The relative benefits received by the Company, on the
one hand, and the Underwriters, on the other hand, shall be deemed to
be in the same respective proportions as the total proceeds (net of
underwriting commissions, but before deducting expenses) from the
offering of the Common Stock received by the Company and the total
26
underwriting commissions received by the Underwriters bear to the
aggregate public offering price of the Common Stock. The relative fault
of the Company and the Underwriters shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a
material fact or the inaccurate or the alleged inaccurate
representation and/or warranty relates to information supplied by the
Company or the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The amount paid or payable by a
party as a result of the losses, claims, damages, liabilities and
expenses referred to above shall be deemed to include, subject to the
limitations set forth in subsection (c) of this Section 8, any legal or
other fees or expenses reasonably incurred by such party in connection
with investigating or defending any action or claim. The provisions set
forth in subsection (c) of this Section 8 with respect to notice of
commencement of any action shall apply if a claim for contribution is
to be made under this subsection (d); provided, however, that no
additional notice shall be required with respect to any action for
which notice has been given under subsection (c) for purposes of
indemnification. The Company and you or the Underwriters, as the case
may be, agree that it would not be just and equitable if contribution
pursuant to this Section 8 were determined solely by pro rata
allocation or by any other method of allocation which does not take
account of the equitable considerations referred to in this paragraph.
Notwithstanding the provisions of this Section 8, no Underwriter shall
be required to contribute any amount in excess of the amount of the
total underwriting discounts and commissions received by such
Underwriter in connection with the Common Shares underwritten by it and
distributed to the public. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation.
(e) It is agreed that any controversy arising out of the
operation of the interim reimbursement arrangements set forth in
Sections 8(a) and 8(b) hereof, including the amounts of any requested
reimbursement payments and the method of determining such amounts,
shall be settled by arbitration conducted under the provisions of the
Constitution and Rules of the Board of Governors of the New York Stock
Exchange, Inc. or pursuant to the Code of Arbitration Procedure of the
NASD. Any such arbitration must be commenced by service of a written
demand for arbitration or written notice of intention to arbitrate,
therein electing the arbitration tribunal. In the event the party
demanding arbitration does not make such designation of an arbitration
tribunal in such demand or notice, then the party responding to said
demand or notice is authorized to do so. Such an arbitration
would be limited to the operation of the interim reimbursement
provisions contained in Sections 8(a) and 8(b) hereof and would not
resolve the ultimate propriety or enforceability of the obligation to
reimburse expenses which is created by the provisions of such Sections
8(a) and 8(b) hereof.
27
SECTION 9. DEFAULT OF UNDERWRITERS. It shall be a condition to this
Agreement and the obligation of the Company to sell and deliver the Common
Shares hereunder, and a condition of your obligations or the obligation of each
Underwriter, as the case may be, to purchase the Common Shares in the manner as
described herein, that, except as hereinafter in this paragraph provided, each
of you or the Underwriters, as the case may be, shall purchase and pay for all
the Common Shares agreed to be purchased by you or such Underwriter hereunder
upon tender to you individually or as the Representatives of the Underwriters,
of all such shares in accordance with the terms hereof. If any Underwriter or
Underwriters default in your or their obligations to purchase Common Shares
hereunder on either the First or Second Closing Date and the aggregate number of
Common Shares which such defaulting Underwriter or Underwriters agreed but
failed to purchase on such Closing Date does not exceed 10% of the total number
of Common Shares which the Underwriters are obligated to purchase on such
Closing Date, the non-defaulting Underwriters shall be obligated severally, in
proportion to their respective commitments hereunder, to purchase the Common
Shares which such defaulting Underwriters agreed but failed to purchase on such
Closing Date. If any Underwriter or Underwriters so default and the aggregate
number of Common Shares with respect to which such default occurs is more than
the above percentage and arrangements satisfactory to the Representatives and
the Company for the purchase of such Common Shares by other persons are not made
within 48 hours after such default, this Agreement will terminate without
liability on the part of any non-defaulting Underwriter or the Company except
for the expenses to be paid by the Company pursuant to Section 5 hereof and
except to the extent provided in Section 9 hereof.
If applicable, in the event that Common Shares to which a default
relates are to be purchased by the nondefaulting entities or by another party or
parties, you or the Company shall have the right to postpone the First or Second
Closing Date, as the case may be, for not more than five business days in order
that the necessary changes in the Registration Statement, Prospectus and any
other documents, as well as any other arrangements, may be effected. As used in
this Agreement, the term "Underwriter" includes any person substituted for an
Underwriter under this Section. Nothing herein will relieve you or a defaulting
Underwriter from liability for its default.
SECTION 10. EFFECTIVE DATE. This Agreement shall become effective
immediately as to Sections 5, 8, 11 and 12 and, as to all other provisions, (i)
if at the time of execution of this Agreement the Registration Statement has not
become effective, at 5:00 P.M., New York time, on the first full business day
following the effectiveness of the Registration Statement, or (ii) if at the
time of execution of this Agreement the Registration Statement has been declared
effective, at 9:00 A.M., New York time, on the first full business day following
the date of execution of this Agreement; but this Agreement shall nevertheless
become effective at such earlier time after the Registration Statement becomes
effective as you may determine on and by notice to the Company
or by release of any of the Common Shares for sale to the public. For the
purposes of this Section 10, the Common Shares shall be deemed to have been so
released upon the release for publication of any newspaper advertisement
relating to the Common Shares or upon the release by you of telegrams (i)
advising the Underwriters that the Common Shares are released for public
offering or (ii) offering the Common Shares for sale to securities dealers,
whichever may occur first.
28
SECTION 11. TERMINATION. The obligations of the several Underwriters
hereunder shall be subject to termination in the absolute discretion of the
Representatives, at any time prior to the Closing Time or any Date of Delivery,
(i) if any of the conditions specified in Section 6 shall not have been
fulfilled when and as required by this Agreement to be fulfilled, or (ii) if
there has been since the respective dates as of which information is given in
the Registration Statement, any material adverse change, or any development
involving a prospective material adverse change, in or affecting the business,
prospects, management, properties, assets, results of operations or condition
(financial or otherwise) of the Company, whether or not arising in the ordinary
course of business, or (iii) if there has occurred any outbreak or escalation of
hostilities or other national or international calamity or crisis or change in
economic, political or other conditions the effect of which on the financial
markets of the United States is such as to make it, in the judgment of the
Representatives, impracticable to market the Common Shares or enforce contracts
for the sale of the Common Shares, or (iv) if trading in any securities of the
Company has been suspended by the Commission or by Nasdaq or if trading
generally on the New York Stock Exchange or in the Nasdaq over-the-counter
market has been suspended (including automatic halt in trading pursuant to
market-decline triggers other than those in which solely program trading is
temporarily halted), or limitations on prices for trading (other than
limitations on hours or numbers of days of trading) have been fixed, or maximum
ranges for prices for securities have been required, by such exchange or the
NASD or Nasdaq or by order of the Commission or any other governmental
authority, or (v) if there has been any downgrading in the rating of any of the
Company's debt securities or preferred stock by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule 436(g) under
the Securities Act), or (vi) any federal or state statute, regulation, rule or
order of any court or other governmental authority has been enacted, published,
decreed or otherwise promulgated which in the reasonable opinion of the
Representatives materially adversely affects or will materially adversely affect
the business or operations of the Company, or (viii) any action has been taken
by any federal, state or local government or agency in respect of its monetary
or fiscal affairs which in the reasonable opinion of the Representatives has a
material adverse effect on the securities markets in the United States.
If the Representatives elect to terminate this Agreement as provided in
this Section 11, the Company and the Underwriters shall be notified promptly by
telephone, promptly confirmed by facsimile.
If the sale to the Underwriters of the Common Shares, as contemplated
by this Agreement, is not carried out by the Underwriters for any reason
permitted under this Agreement or if such sale is not carried out because the
Company shall be unable to comply in all material respects with any of the terms
of this Agreement, the Company shall not be under any obligation or liability
under this Agreement (except to the extent provided in Sections 5 and 9 hereof)
and the Underwriters shall be under no obligation or liability to the Company
under this Agreement (except to the extent provided in Section 9 hereof) or to
one another hereunder.
SECTION 12. REPRESENTATIONS AND INDEMNITIES TO SURVIVE DELIVERY. The
respective indemnities, agreements, representations, warranties and other
statements of the parties hereto and of their respective officers set forth in
or made pursuant to this Agreement will remain in full force
29
and effect, regardless of any investigation made by or on behalf of the
Underwriters, the Company or any of its or their partners, officers or directors
or any controlling person, as the case may be, and will survive delivery of and
payment for the Common Shares sold hereunder and any termination of this
Agreement.
SECTION 13. NOTICES. All communications hereunder shall be in writing
and, if sent to the Representatives shall be mailed, delivered or telegraphed
and confirmed to you at Friedman, Billings, Xxxxxx & Co., Inc., 0000 Xxxxxxxxxx
Xxxxxx, Xxxxx, Xxxxxxxxx, Xxxxxxxx 00000 Attention: Xxxxxxx Xxxxxx, with a copy
to Silver, Xxxxxxxx & Xxxx, L.L.P., 0000 Xxx Xxxx Xxxxxx, X.X., Xxxxx 000 Xxxx,
Xxxxxxxxxx, X.X. 00000, Attention: Xxxx X. Xxxxxxxxxx, P.C.; and if sent to the
Company shall be mailed, delivered or telegraphed and confirmed to the Company
at 000 Xxxxxxxx Xxxxxx, Xxxxx Xxxxxx, Xxxxxxx 00000, Attention: Xxxxxx X.
Xxxxxx, with a copy to Stuzin and Camner, Professional Association, 0000
Xxxxxxxx Xxxxxx, 00xx Xxxxx, Xxxxx, Xxxxxxx 00000; Attention: Xxxxxx X. Xxxxxx,
Esq. The Company or you may change the address for receipt of communications
hereunder by giving notice to the others.
SECTION 14. SUCCESSORS. This Agreement will inure to the benefit of and
be binding upon the parties hereto, and to the benefit of the officers and
directors and controlling persons referred to in Section 9, and in each case
their respective successors, personal representatives and assigns, and no other
person will have any right or obligation hereunder. Notwithstanding the
foregoing, this Agreement shall not be assignable by the parties. The term
"successors" shall not include any purchaser of the Common Shares as such from
the Underwriters merely by reason of such purchase.
SECTION 15. PARTIAL UNENFORCEABILITY. The invalidity or
unenforceability of any Section, paragraph or provision of this Agreement shall
not affect the validity or enforceability of any other Section, paragraph or
provision hereof. If any Section, paragraph or provision of this Agreement is
for any reason determined to be invalid or unenforceable, there shall be deemed
to be made such minor changes (and only such minor changes) as are necessary to
make it valid and enforceable.
SECTION 16. APPLICABLE LAW. This Agreement shall be governed by and
construed in accordance with the internal laws (and not the laws pertaining to
conflicts of laws) of the State of Virginia.
SECTION 17. GENERAL. This Agreement constitutes the entire agreement of
the parties to this Agreement and supersedes all prior written or oral and all
contemporaneous oral agreements, understandings and negotiations with respect to
the subject matter hereof. This Agreement may be executed in several
counterparts, each one of which shall be an original, and all of which shall
constitute one and the same document.
In this Agreement, the masculine, feminine and neuter genders and the
singular and the plural include one another. The section headings in this
Agreement are for the convenience of the parties only and will not affect the
construction or interpretation of this Agreement. This Agreement may be amended
or modified, and the observance of any term of this Agreement may be waived,
only by a writing signed by the Company and you.
30
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us the enclosed copies hereof, whereupon it
will become a binding agreement between the Company and the Underwriters, all in
accordance with its terms.
Very truly yours,
BANKUNITED FINANCIAL CORPORATION
By:
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chairman of the Board
The foregoing Underwriting Agreement
is hereby confirmed and accepted by us
in Arlington, Virginia as of the date
first above written.
FRIEDMAN, BILLINGS, XXXXXX & CO., INC.
---------------------------------------
If applicable, acting as Representative
of the Several Underwriters in the
attached Schedule A.
BY: FRIEDMAN, BILLINGS, XXXXXX &
CO., INC.
By:
---------------------------
Name:
Title: Managing Director
BY: PAINEWEBBER, INC.
By:
---------------------------
Name:
Title:
32
EXHIBIT A
FORM OF OPINION OF STUZIN AND CAMNER,
PROFESSIONAL ASSOCIATION
___________, 1997
Friedman, Billings, Xxxxxx & Co., Inc.
PaineWebber, Incorporated
c/o Friedman, Billings, Xxxxxx & Co., Inc.
Potomac Tower
0000 Xxxxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Re: BANKUNITED FINANCIAL CORPORATION
Sirs:
We have acted as counsel for BankUnited Financial Corporation, a
Florida Corporation (the "Company"), in connection with its offering of (i)
3,200,000 shares of Class A Common Stock, $.01 par value per share (the "Firm
Shares"), and (ii) an aggregate of an additional 480,000 shares of Common Stock
(collectively with the Firm Shares, the "Shares"), issuable upon exercise of an
over-allotment option, pursuant to the Underwriting Agreement, dated
___________, 1997 (the "Underwriting Agreement"), by and among the Company and
you, as the Representatives of the several Underwriters named in Schedule A to
the Underwriting Agreement. We are rendering this opinion pursuant to Section
6(c)(i) of the Underwriting Agreement. Unless otherwise defined herein, each
capitalized term used herein shall have the same meaning ascribed to such term
in the Underwriting Agreement.
As counsel to the Company, we have reviewed the Registration Statement
on Form S-3 (Registration No. 333-35781) filed by the Company on September 17,
1997 with the Commission pursuant to the Act, [AS WELL AS AMENDMENT NO. 1
THERETO FILED BY THE COMPANY WITH THE COMMISSION ON _________, 1997] for the
purpose of registering the Shares under the Act. The Registration Statement,
together with all exhibits thereto, as amended and existing at __________, 1997,
the effective date thereof, is hereinafter referred to as the "Registration
Statement."
In our capacity as such counsel, we have examined, among other things,
original, certified copies or copies otherwise identified to our satisfaction as
being true copies, of the following:
(1) The Registration Statement;
33
(2) The Prospectus dated ___________, 1997 included in the
Registration Statement (the "Prospectus");
(3) The Preliminary Prospectus dated ___________, 1997;
(4) Advice from the Commission that (a) the Registration Statement
was declared effective under the Act by the Commission on
____________, 1997 and (b) as of ____________, 1997, no stop
order relating to the Registration Statement had been issued;
(5) The Articles of Incorporation of the Company as in effect on
the date hereof;
(6) The Bylaws of the Company as in effect on the date hereof;
(7) Resolutions adopted by the Board of Directors of the Company
in connection with the registration of the Shares under the
Act, the issuance of the Shares and other matters;
(8) A Certificate of the Secretary of the Company dated
___________, 1997, relating to the Bylaws of the Company,
certain resolutions, incumbency of officers and certain other
matters;
(9) The Underwriting Agreement;
(10) Certificate of the Chairman of the Board or President and
Chief Financial or Accounting Officer of the Company pursuant
to Section 6(c)(iv) of the Underwriting Agreement;
(11) Certificates and advice relating to the good standing of the
Company;
(12) A Certificate of the Federal Deposit Insurance Corporation
dated ___________________ certifying that the Company is an
insured depository institution under the Federal Deposit
Insurance Act; and
(13) A specimen of the certificate representing the Common Shares
filed through incorporation by reference as Exhibit 4.3 to the
Registration Statement.
In addition, we have obtained from public officials and from officers
and representatives of the Company such other certificates and assurances as we
consider necessary for the purpose of rendering this opinion. On the basis of
the foregoing and our examination of such other matters of fact and questions of
law as we have deemed relevant under the circumstances, and in reliance thereon,
we are of the opinion that:
(A) Each of the Company and T&D Properties of South Florida,
Inc., Bay Holdings, Inc. and BU Ventures, Inc., has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation and the Bank is
duly organized under the laws of the United States and each is duly
qualified to do business as a foreign corporation and is in good
standing in all other jurisdictions where the ownership or leasing of
properties or the conduct of its business requires such qualification,
34
except where the failure to be so qualified would not have a Material
Adverse Effect on the Company and Subsidiaries, taken as a whole, and
the Company and the Subsidiaries have all necessary corporate power and
authority to own their properties and conduct their business as
described in the Registration Statement and Prospectus; the Bank is a
wholly owned savings and loan subsidiary of the Company;
(B) To the best of our knowledge, the authorized, issued and
outstanding capital stock of the Company is as set forth under the
caption "Capitalization" in the Prospectus at the dates indicated
therein; the outstanding shares of the Company's capital stock conform
in all material respects to the description thereof contained in the
Prospectus; all necessary and proper corporate proceedings have been
taken in order to authorize validly the Common Shares; the shares of
capital stock outstanding prior to the issuance of the Common Shares
have been duly and validly issued and are fully paid and nonassessable;
the Common Shares have been duly authorized and, when issued and
delivered in accordance with the terms of this Agreement, will be
validly issued and outstanding and will constitute the valid and
legally binding obligations of the Company, except as enforcement
thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance, receivership, conservatorship or
other similar laws, regulations or procedures of general applicability
relating to or effecting enforcement of the rights of creditors of the
Company or savings and loan holding companies, the accounts of whose
subsidiaries are insured by the FDIC, or by general equity principles
and the discretion of the court before which any proceeding is brought
(regardless of whether enforceability is considered in a proceeding in
equity or at law); the Common Shares will not be issued in violation of
or subject to any statutory preemptive rights or any preemptive rights
set forth in the certificate of incorporation or by-laws of the Company
or, to the best of our knowledge, other rights to subscribe for or
purchase any securities; without limiting the foregoing, there are no
statutory preemptive or any preemptive rights set forth in the
certificate of incorporation or by-laws of the Company or, to the best
of our knowledge, other rights to subscribe for or purchase any of the
Common Shares;
(C) All of the issued and outstanding shares of capital stock
of the Subsidiaries have been duly and validly authorized and issued
and are fully paid and nonassessable and are owned of record, and to
the best of our knowledge beneficially, by the Company with respect to
the Bank and by the Bank with respect to T&D Properties of South
Florida, Inc., Bay Holdings, Inc. and BU Ventures, Inc., free and clear
of all perfected and, to the best of our knowledge, other liens,
encumbrances, equities, claims, security interests, voting trusts or
other defects of title whatsoever and, to our knowledge, except as
disclosed in the Prospectus neither the Company nor the Subsidiaries
own any equity interests in any other equity;
(D) Except as disclosed in or specifically contemplated by the
Prospectus to the best of our knowledge, there are no outstanding
options, warrants or other rights calling for the issuance of, and no
commitments, plans or arrangements to issue, any shares of capital
stock of the Company or any securities convertible into or exchangeable
for capital stock of the Company and to the best of our knowledge, no
options, warrants or other rights to purchase, agreements or other
obligations to issue or other rights to convert any obligations into
shares of capital stock or ownership interests in the Subsidiaries are
outstanding;
35
(E)(1) The Registration Statement has become
effective under the Act, and, to the best of our knowledge, no
stop order suspending the effectiveness of the Registration
Statement or preventing the use of the Prospectus has been
issued and no proceedings for that purpose have been
instituted or are pending or contemplated by the Commission;
any required filing of the Prospectus and any supplement
thereto pursuant to Rule 424(b) of the Rules and Regulations
has been made in the manner and within the time period
required by such Rule 424(b);
(2) The Registration Statement, the Prospectus and
each amendment or supplement thereto (except for the financial
statements, schedules and other financial or statistical
information contained or included therein as to which we need
express no opinion) comply as to form in all material respects
with the requirements of the Act and the Rules and
Regulations;
(3) To the best of our knowledge, there are no
franchises, leases, contracts, agreements or documents of a
character required to be disclosed in the Registration
Statement on Form S-3 or Prospectus or to be filed as exhibits
to the Registration Statement or to the Company's Annual
Report on Form 10-K which are not disclosed or filed, as
required;
(4) To the best of our knowledge, there are no legal
or governmental actions, suits or proceedings pending or
threatened against the Company which are required to be
described in the Prospectus which are not described as
required;
(5) To the best of our knowledge, there are no
material cease and desist orders, memoranda of understanding
or other regulatory agreement, order or understanding to which
the Company or the Subsidiaries is a part or by which the
Company or the Subsidiaries is bound or to which any of the
properties or assets of the Company or any subsidiary is
subject, which are required to be described in the
Registration Statement and the Prospectus that are not
described as required;
(6) To our knowledge, the Company and the
Subsidiaries have obtained all material licenses, permits and
other governmental authorizations currently required for the
conduct of their business except where the failure to obtain
the same would not have a Material Adverse Effect on the
Company; and to such counsel's knowledge, all material
licenses, permits and other governmental authorizations,
leases and subleases are in full force and effect and the
Company is in all material respects complying therewith.
(7) We do not know of any statutes or regulations
required to be described in the Prospectus which are not so
described. Except as disclosed in the Prospectus, to our
knowledge, there are no legal or governmental proceedings
pending to which the Company or any Subsidiary is a party or
of which any property of the Company or any Subsidiary is the
subject which, if determined adversely to the Company or any
such Subsidiary, would individually or in the aggregate have a
Material Adverse Effect on the Company; and, except as
disclosed in the Prospectus, to our knowledge, no such
proceedings are threatened or contemplated by governmental
authorities or threatened by others.
36
(F) The Company has all necessary corporate power and
authority to enter into the Underwriting Agreement and to sell and
deliver the Common Shares to be sold by it to you or the Underwriters,
as the case may be; the Underwriting Agreement has been duly and
validly authorized by all necessary corporate action of the Company,
has been duly and validly executed and delivered by and on behalf of
the Company, and is a valid and binding agreement of the Company
enforceable in accordance with its terms, except as enforcement thereof
may be limited by bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance, receivership, conservatorship or other similar
laws, regulations or procedures of general applicability relating to or
effecting enforcement of the rights of creditors of the Company or
savings and loan holding companies, the accounts of whose subsidiaries
are insured by the FDIC, or by general equity principles and the
discretion of the court before which any proceeding is brought
(regardless of whether enforceability is considered in a proceeding in
equity or at law) and, with respect to the Underwriting Agreement,
except as to those provisions relating to indemnity or contribution for
liabilities arising under the Act as to which no opinion need be
expressed; and no approval, authorization, order, consent,
registration, filing, qualification, license or permit of or with any
court, regulatory, administrative or other governmental body is
required for the execution and delivery of the Underwriting Agreement
by the Company or the consummation of the transactions contemplated by
the Underwriting Agreement, except such as have been obtained and are
in full force and effect under the Act and such as may be required
under applicable blue sky laws in connection with the purchase and
distribution of the Common Shares by the Underwriters, the clearance of
such offering with the NASD, and the listing of the Common Shares by
the Nasdaq Stock Market.
(G) The execution and performance of the Underwriting
Agreement and the consummation of the transactions therein contemplated
will not conflict with, result in the breach of, or constitute, either
by themselves or upon notice or the passage of time or both, a default
under, any agreement, mortgage, deed of trust, lease, franchise,
license, indenture, permit or other instrument known to us to which the
Company or any of the Subsidiaries is a party or by which the Company
or any of the Subsidiaries or any of its or their property may be bound
or affected or, so fare as is known to such counsel, violated any
statute, judgment, decree, order, rule or regulation of any court or
governmental body having jurisdiction over the Company or the
Subsidiaries or any of its or their property; which conflict, breach,
default or violation would have a Material Adverse Effect on the
Company and the Subsidiaries, taken as a whole, or violate any of the
provisions of the Certificate or Articles of Incorporation or by-laws
of the Company or the Subsidiaries or the Bank's charter or by-laws;
(H) To the best of our knowledge, there is no regulatory cease
and desist order or other order, memorandum of understanding or
agreement between the Company or the Subsidiaries and any regulatory
authority which would govern, limit or prohibit the Company from
entering into and performing its obligations under the Underwriting
Agreement;
(I) Neither the Company nor any Subsidiary is in violation nor
will the Company's performance of its obligations under this Agreement
result in a violation of its Certificate or Articles of Incorporation
or by-laws or the Bank's charter or by-laws, or to the best of our
knowledge, be in breach of or default with respect to any provision of
any agreement, mortgage, deed of trust, lease, franchise, license,
indenture, permit or other instrument filed
37
as an exhibit to the Registration Statement to which the Company or any
of the Subsidiaries is a party or by which it or any of its properties
may be bound or affected, except where such breach or default would not
have a Material Adverse Effect on the Company and the Subsidiaries,
taken as a whole; and, to the best of our knowledge, the Company and
the Subsidiaries are in compliance with all laws, rules, regulations,
judgments, decrees, orders and statutes of any court or jurisdiction to
which they are subject, except where noncompliance would not have a
Material Adverse Effect on the Company and the Subsidiaries, taken as a
whole; neither the Company nor any of its affiliates (including the
Subsidiaries) is a bank holding company within the meaning of the Bank
Holding Company Act of 1956, as amended, or applicable regulations
promulgated thereunder; and the Bank is an insured depository
institution within the meaning of the Federal Deposit Insurance Act, as
amended;
(J) The Company is duly registered as a savings and loan
holding company under the Home Owners' Loan Act;
(K) To the best of our knowledge, except as set forth in the
Prospectus under the caption "Description of Capital Stock," no holders
of securities of the Company have rights which have not lapsed or been
waived to the registration of shares of Class A Common Stock or other
securities of the Company, because of the filing of the Registration
Statement by the Company or the offering contemplated hereby;
(L) The Company's Common Stock, including the Shares, have
been approved for quotation on the Nasdaq National Market upon notice
of issuance.
(M) The form of share certificate evidencing the Common
Shares, as filed through incorporation by reference as Exhibit 4.3 to
the Registration Statement, is in due and proper form under the laws of
the State of Florida.
(N) The Company is not an "investment company" as such term is
defined in the Investment Company Act.
(O) No transfer taxes are required to be paid by the
Underwriters in connection with the sale and delivery of the Common
Shares by the Company to the Underwriters pursuant to the Underwriting
Agreement.
We have participated in conferences with officers and other
representatives of the Company and the Company's independent public accountants
and with your representatives and your counsel, at which conferences the
contents of the Registration Statement, the Prospectus and related matters were
discussed. We have advised the Company, concerning the requirements of the Act
and the Rules and Regulations but have not independently verified the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or Prospectus. Because the purpose of our professional engagement was
not to establish or confirm factual matters and because the scope of our
examination of the affairs of the Company did not permit us to verify the
accuracy, completeness or fairness of the statements set forth in the
Registration Statement or Prospectus, we are not passing upon, and do not assume
any responsibility for, the accuracy, completeness or fairness of such
statements. However, no facts have come to our attention that would lead us to
believe that the Registration Statement, at the time it was declared effective
by the Commission, or the Prospectus as of the date it was filed with the
Commission, contained any untrue statement of
38
a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading or that, as of the date
hereof, the Registration Statement or Prospectus contains an untrue statement of
a material fact, or that the Registration Statement or the Prospectus omits to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they are made, not
misleading, it being understood that we make no comment with respect to the
financial statements, the notes thereto and related schedules or any other
financial or statistical data included in the Registration Statement or
Prospectus.
Whenever our opinion herein with respect to the existence or absence of
facts is stated to be based upon our knowledge or awareness, it is intended to
signify that during the course of our representation of the Company, no
information has come to our attention that would give us actual knowledge of the
existence or absence of such facts. However, except to the extent expressly set
forth herein, we have not undertaken any independent investigation to determine
the existence or absence of such facts, and no inference as to our knowledge of
the existence or absence of such facts should be drawn from our representation
of the Company or from our participation in the referenced transaction.
We render no opinion herein as to matters involving the laws of any
jurisdiction other than the State of Florida and the United States of America.
This opinion is limited to the effect of the present state of the laws of the
State of Florida and of the United States of America, to present judicial
interpretations thereof and to facts as they presently exist. In rendering this
opinion, we assume no obligation to revise or supplement it should the current
laws of the State of Florida and the United States be changed by legislative
action, judicial decision or otherwise.
We have assumed that the signatures on all documents examined by us are
genuine, which fact we have not independently verified. We have also assumed the
due authorization, execution and delivery of the Underwriting Agreement by the
Underwriters.
This letter is furnished by us as counsel for the Company to you in
connection with the Underwriting Agreement and the transactions contemplated
thereby and may not be relied upon by any other party other than your counsel,
and may not be relied upon by you or them in any other context or for any other
purpose. This opinion may not be quoted in whole or in part or delivered to any
other person without our prior written consent.
Very truly yours,
[DRAFT]
STUZIN AND CAMNER,
PROFESSIONAL ASSOCIATION
39
BANKUNITED FINANCIAL CORPORATION
Class A Common Stock
AGREEMENT AMONG UNDERWRITERS
____________, 1997
FRIEDMAN, BILLINGS, XXXXXX & CO., INC.
As Representative of the
Several Underwriters
0000 Xxxxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Dear Sirs:
1. UNDERWRITING AGREEMENT. The undersigned Underwriters
("Underwriters") agree among themselves as follows with reference to their
proposed purchases severally from BankUnited Financial Corporation (the
"Company") of 3,200,000 shares of Class A Common Stock, par value $.01 per
share, of the Company (the "Firm Shares") and the proposed purchase, severally
of up to an additional 480,000 shares of Common Stock (the "Option Shares") from
the Company. The Firm Shares and the Option Shares are collectively referred to
herein as the "Shares." Each Underwriter will agree to purchase (a) the number
of Firm Shares set forth opposite its name in Schedule A to the Underwriting
Agreement, and (b) that portion of the Option Shares as to which the option is
exercised equal to the proportion which such Underwriter's share of the number
of the Firm Shares bears to the total number of Firm Shares.
2. REGISTRATION STATEMENT AND PROSPECTUS. The Shares are more
particularly described in a registration statement (Registration No. 333-_____)
filed with the Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended (the "1933 Act"). Amendments to such
registration statement have been or are being filed in which, with our consent
hereby confirmed, we have been named as one of the Underwriters of the Shares. A
copy of the registration statement as filed and a copy of each amendment as
filed (excluding exhibits) have heretofore been delivered to us. We confirm that
we have examined the registration statement, including amendments thereto,
relating to the Shares, as filed with the Commission, that we are willing to
accept the responsibilities of an Underwriter under the 1933 Act in respect of
the registration statement and we are willing to proceed with a public offering
of the Shares in the manner described in the registration statement. The
registration statement and the related prospectus may be further amended, but no
such amendment or change shall release or affect our obligations hereunder or
under the Underwriting Agreement. As used herein, the terms "Registration
Statement" and "Prospectus" shall have the same meaning as that specified in the
Underwriting Agreement.
3. AUTHORITY OF THE REPRESENTATIVE. We hereby authorize you, acting on
our behalf, as our representatives (the "Representatives") (a) to complete,
execute and deliver the Underwriting Agreement, to determine the public offering
price of the Shares and the underwriting discount with respect thereto and to
make such variations, if any, as in your judgment are appropriate and are not
40
material, provided that the respective aggregate number of Firm Shares set forth
opposite our respective names in Schedule A thereto shall not be increased
without our consent, except as provided herein, (b) to waive performance or
satisfaction by the Company of obligations or conditions included in the
Underwriting Agreement if in your judgment such waiver will not have a material
adverse effect upon the interests of the Underwriters and (c) to take such
actions as in your discretion may be necessary or advisable to carry out the
Underwriting Agreement, this Agreement and the transactions for the accounts of
the several Underwriters contemplated thereby and hereby. We also authorize you
to determine all matters relating to the public advertisement of the Shares. The
parties on whose behalf you execute the Underwriting Agreement are herein called
the "Underwriters."
4. PUBLIC OFFERING. We authorize you, with respect to any Shares which
we so agree to purchase, to reserve for sale, and on our behalf to sell, to
dealers selected by you (including you or any of the other Underwriters, such
dealers so selected being hereinafter called "Selected Dealers") and to others
all or part of our Shares as you may determine. Reservations for sales to
persons other than Selected Dealers shall be as nearly as practicable in
proportion to the respective underwriting obligations of the Underwriters,
unless you agree to a smaller proportion at the request of an Underwriter.
Reservations for sales to Selected Dealers need not be in such proportion. All
sales of reserved Shares shall be as nearly as practicable in proportion to the
respective reservations as calculated from day to day.
In your discretion, from time to time, you may add to the reserved
Shares any Shares retained by us remaining unsold, and you may upon our request
release to us any of our Shares reserved but not sold. Any Shares so released
shall not thereafter be deemed to have been reserved. Upon termination of this
Agreement, or prior thereto at your discretion, you shall deliver to us any of
our Shares reserved but not sold and delivered, except that if the aggregate of
all reserved but unsold and undelivered Shares is less than 10%, you are
authorized to sell such Shares for the accounts of the several Underwriters at
such price or prices as you may determine. Sales of reserved Shares shall be
made to Selected Dealers at the public offering price less a concession
initially not in excess of $.__ per share (the "Selected Dealers' Concession")
and to others at the public offering price. Underwriters and Selected Dealers
may reallow a portion of such concession not in excess of $___ per share to any
other members of the National Association of Securities Dealers, Inc. ("NASD"),
acting as principal or buyer's agent, provided such member agrees that the
reallowance is to be retained and not reallowed in whole or in part and also
agrees in writing to comply with Section 24 of Article III of the Rules of Fair
Practice of the NASD.
After advice from you that the Shares are released for sale to the
public, we will offer to the public in conformity with the terms of the offering
set forth in the Prospectus such of our Shares as you advise us are not
reserved. We authorize you after the Shares are released for sale to the public,
in your discretion, to change the public offering price of the Shares and the
concession, and to buy Shares for our account from Selected Dealers at the
public offering price less such amount not in excess of the Selected Dealers'
Concession as you may determine.
Sales of Shares between Underwriters may be made with your prior
consent, or as you deem advisable for state securities laws purposes.
We agree that we will not sell to any accounts over which we exercise
discretionary authority any Shares which we have agreed to purchase under the
Underwriting Agreement.
41
5. ADDITIONAL PROVISIONS REGARDING SALES. Any Shares sold by us
(otherwise than through you) which you contract for or purchase in the open
market or otherwise for the account of any Underwriter shall be repurchased by
us on demand at the cost of such purchase plus commissions and taxes on
redelivery. Shares delivered on such repurchase need not be the identical Shares
purchased by you. In lieu of demanding repurchase by us, you may in your
discretion (a) sell for our account the Shares so purchased by you, at such
price and upon such terms as you may determine, and debit or credit our account
with the loss and expense or net profit resulting from such sale or (b) charge
our account with an amount not in excess of the Selected Dealers' Concession
with respect to such Shares. If we are a member of, or clear through a member
of, the Depository Trust Company ("DTC"), you, in your discretion, may deliver
our Shares through the facilities of DTC.
6. PAYMENT AND DELIVERY. At or before the First Closing Date (as
defined in the Underwriting Agreement) and on the Second Closing Date (as
defined in the underwriting Agreement), we will deliver to you at DTC or at your
office at 0000 Xxxxxxxxxx Xxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx 00000, a certified
or bank cashiers' check payable to your order, in clearing house funds, in the
amount equal to the offering price set forth in the Prospectus less the Selected
Dealers' Concession in respect of the number of Firm Shares or Option Shares, as
the case may be, to be purchased by us pursuant to the Underwriting Agreement.
We authorize you for our account to make payment of the purchase price for the
Firm Shares or Option Shares, as the case may be, to be purchased by us against
delivery to you of such Shares, and the difference between such price and the
amount of our check delivered to you therefor shall be credited to our account.
Unless we notify you at least three (3) full business days prior to such First
Closing Date or Second Closing Date, as appropriate, to make other arrangements,
you may, in your discretion, advise the Company to prepare our certificates in
our name. If you have not received our funds as requested, you may in your
discretion make such payment on our behalf, in which even we will reimburse you
promptly. Any such payment by you shall not relieve us from any of our
obligations hereunder or under the Underwriting Agreement.
We authorize you for our account to accept delivery of our Shares from
the Company to hold such of our Shares as you have reserved for sale to Selected
Dealers and others and to deliver such Shares against such sales. You will
deliver to us our unreserved Shares as promptly as practicable.
Notwithstanding the foregoing provisions of this Section 6, payment for
our Shares may be made through the facilities of DTC, if we are a member, unless
we have otherwise notified you prior to a date to be specified by you, or, if we
are not a member, settlement may be made through a correspondent who is a member
pursuant to instructions we may send to you prior to such specified date.
As promptly as practicable after you receive payment for reserved
Shares sold for our account, you will remit to us the purchase price paid by us
for such Shares and credit or debit our account with the difference between the
sale price and such purchase price.
7. AUTHORITY TO BORROW. In connection with the transactions
contemplated in the Underwriting Agreement or this Agreement, we authorize you,
in your discretion, to advance your own funds for our account, charging current
interest rates, to arrange loans for our account and in connection therewith to
execute and deliver any notes or other instruments and hold or pledge as
security therefor any of our Shares purchased for our account. Any lender may
rely upon your instructions in all matters relating to any such loan.
42
Any of our Shares purchased for our account held by you may from time
to time be delivered to us for carrying purposes, and any such securities will
be redelivered to you upon demand.
8. STABILIZATION AND OTHER MATTERS. We authorize you in your discretion
to make purchases and sales of the Shares for our account in the open market or
otherwise, for long or short account, on such terms as you deem advisable and in
arranging sales to over-allot. If you have purchased Shares for stabilizing
purposes prior to the execution of this Agreement, such purchases shall be
treated as having been made pursuant to the foregoing authorization. We also
authorize you, either before or after the termination of the offering provisions
of this Agreement, to cover any short position incurred pursuant to this Section
8 on such terms as you deem advisable. All such purchases and sales and
over-allotments shall be made for the accounts of the several Underwriters as
nearly as practicable in proportion to their respective underwriting
obligations. Our net commitment under this Section 8 (excluding any commitment
incurred under the Underwriting Agreement upon exercise of the right to purchase
Option Shares) shall not, at the end of any business day, exceed [15%] of our
underwriting obligation. We will on your demand take up and pay for at cost any
Shares so purchased or sold or overalloted for our account, and, if any other
Underwriter defaults in its corresponding obligation, we will assume our
proportionate share of such obligation without relieving the defaulting
Underwriter from liability. We will be obligated in respect of purchases and
sales made for our account hereunder whether or not any proposed purchase of
Shares is consummated. The existence of this provision is no assurance that the
price of the Shares will be stabilized or that if stabilizing is commenced, it
may not be discontinued at any time.
We agree to advise you, from time to time upon your request, during the
term of this Agreement, of the number of Shares retained by us remaining unsold,
and will, upon your request, sell to you for the accounts of one or more of the
several Underwriters such number of such Shares as you may designate at such
prices, not less than the net price to Selected Dealers nor more than the public
offering price, as you may determine.
If you effect any stabilizing purchase pursuant to this Section 8, you
will notify us promptly of the date and time when the first stabilizing purchase
was effected and the date and time when stabilizing was terminated. We authorize
you on our behalf to file any reports required to be filed with the Commission
in connection with any transactions made by you for our account pursuant to this
Section 8 and we agree to furnish you with any information needed for such
reports. We agree to transmit to you for filing with the Commission any and all
reports required to be made by us pursuant to paragraph (c) of Rule 17a-2 under
the Securities Exchange Act of 1934, as amended (the "1934 Act"), as a result of
any transactions in connection with the offering of the Shares.
With respect to the Underwriting Agreement, you are also authorized in
your discretion (a) to exercise the option therein as to all or any part of the
Option Shares, and to terminate such option in whole or in part prior to its
expiration, (b) to postpone either or both the First Closing Date and the Second
Closing Date referred to in the Underwriting Agreement, and any other time or
date specified therein, (c) to exercise any right of cancellation or
termination, (d) to arrange for the purchase by other persons (including
yourself or any other Underwriter) of any Shares not taken up by any defaulting
Underwriter and (e) to consent to such other changes in the Underwriting
Agreement as in your judgment do not materially adversely affect the substance
of our rights and obligations thereunder.
43
We further agree that (a) prior to the termination of this Agreement we
will not, directly or indirectly, bid for or purchase any Shares for our own
account, except as provided in this Agreement and in the Underwriting Agreement
and (b) prior to the completion (as defined in Rule 10b-6 under the 0000 Xxx) of
our participation in the distribution, we will otherwise comply with Rule 10b-6
under the 1934 Act.
9. ALLOCATION OF EXPENSES AND SETTLEMENT. We authorize you to charge
our account with (a) all transfer taxes on Shares purchased by us pursuant to
the Underwriting Agreement and sold by you for our account, (b) Selected
Dealers' Concessions in connection with the purchase, marketing and sale of the
Shares for our account and (c) our proportionate share (based upon our
underwriting obligation) of all other expenses incurred by the Underwriters in
connection with the purchase, carrying, sale and distribution of the Shares.
Your determination of the amount and allocation of such expenses shall be
conclusive. In the event of the default of any Underwriter in carrying out its
obligations hereunder, the expenses chargeable to such Underwriter pursuant to
this Agreement and not paid by it, as well as any additional losses or expenses
arising from such default, may be proportionately charged by you against the
other Underwriters not so defaulting, without, however, relieving such
defaulting Underwriter from its liability therefor.
As soon as practicable after termination of this Agreement, the
accounts hereunder will be settled, but you may reserve from distribution such
amount as you deem necessary to cover possible additional expenses. You may at
any time make partial distributions of credit balances or call for payment of
debt balances. Any of our funds in your hands may be held with your general
funds without accountability for interest. Notwithstanding the termination of
this Agreement or any settlement, we will pay on demand (a) our proportionate
share (based on our underwriting obligation) of all expenses and liabilities
which may be incurred by or for the accounts of the Underwriters, including any
liability based on the claim that the Underwriters constitute an association,
unincorporated business or other separate entity, and of any expenses incurred
by you or any other Underwriter with your approval in contesting any such claim
or liability and (b) any transfer taxes paid after such settlement on account of
any sale or transfer for our account.
10. TERMINATION. This Agreement shall terminate thirty (30) days after
the Shares are released by you for sale to the public unless extended by you.
You may extend said provisions for a period or periods not exceeding an
additional thirty (30) days in the aggregate, provided the Selected Dealer
Agreements, if any, are similarly extended. Whether said provisions may be
terminated in whole or in party by notice from you, you may, in your discretion,
on notice to us prior to such time, terminate the effectiveness of this
Agreement or any portion of it.
11. DEFAULT BY UNDERWRITERS. Default by one or more Underwriters in
respect of their obligations hereunder or under the Underwriting Agreement shall
not release us from any of our obligations or in any way affect the liability of
any defaulting Underwriter to the other Underwriters for damages resulting from
such default. In case of such default by one or more Underwriters for damages
resulting from such default, you are authorized to increase PRO RATA with other
non-defaulting Underwriters, the number of Shares which we shall obligated to
purchase pursuant to the Underwriting Agreement, provided that the aggregate
amount of all such increases for our account shall not exceed our pro rata
shares (together with other non-defaulting Underwriters) of 3,200,000 Shares;
and you are further authorized to arrange, but shall not be obligated to
arrange, for the purchase by other persons, who may include yourselves or other
Underwriters, of all or a portion of any aggregate number not taken up. If any
such arrangements are made, the amount of Shares
44
to be purchased by the non-defaulting Underwriters and by any such other persons
shall be taken as the basis for the underwriting obligations under this
Agreement.
12. POSITION OF THE REPRESENTATIVE. Except as in this Agreement
otherwise specifically provided, you shall have full authority to take such
action as you may deem advisable in respect of all matters pertaining to the
Underwriting Agreement and this Agreement and in connection with the purchase,
carrying, sale and distribution of the Shares (including authority to terminate
the Underwriting Agreement as provided therein). You shall be under no liability
to us for or in respect of the value of the Shares or the validity or the form
thereof, the Registration Statement, the Prospectus, the Underwriting Agreement
or other instruments executed by the Company or others; or for in respect of the
issuance, transfer or delivery of the Shares; or for the performance by the
Company or others of any agreement on its or their part; nor shall you, as
Representatives or otherwise, be liable under any of the provisions hereof or
for any matters connected herewith, except for your own want of good faith, for
obligations expressly assumed by you in this Agreement and for any liabilities
imposed upon you by the 1933 Act. No obligations on your part shall be implied
or inferred herefrom. Authority with respect to matters to be determined by you,
or by you and the Company, pursuant to the Underwriting Agreement, shall survive
the termination of this Agreement.
In taking all actions hereunder, except in the performance of your own
obligations hereunder and under the Underwriting Agreement, you shall act only
as Representatives of each of the Underwriters. The commitments and liabilities
of each of the several Underwriters are several in accordance with their
respective purchase obligations and are not joint or joint and several. Nothing
contained herein shall constitute the Underwriters partners or render any of
them liable to make payments otherwise than as herein provided. If for federal
income tax purposes the Underwriters should be deemed to constitute a
partnership, then each Underwriter elects to be excluded from the application of
Subchapter & Chapter 1, Subtitle A, of the Internal Revenue Code of 1986, as
amended, and agrees not to take any position inconsistent with such election.
You, as Representative of the several Underwriters, are authorized, in your
discretion, to execute such evidence of such election as may be required by the
Internal Revenue Service.
13. COMPENSATION TO THE REPRESENTATIVES. As compensation for the
services of the managing underwriter in connection with the purchase of the
Shares and the management of the public offering of the Shares we agree to pay
you and authorize you to charge our account with an amount equal to [$___] for
each Share which we have agreed to purchase pursuant to the Underwriting
Agreement.
14. INDEMNIFICATION AND FUTURE CLAIMS. Each Underwriter, including
yourselves, agrees to indemnify, hold harmless and reimburse each other
Underwriter and each person, if any, who controls any other Underwriter within
the meaning of Section 15 of the 1933 Act, and any successor of any other
Underwriter, to the extent that, and upon the terms upon which, each Underwriter
agrees to indemnify, hold harmless and reimburse the Company and other specified
persons as set forth in the Underwriting Agreement.
In the event that at any time any person other than an Underwriter
asserts a claim against one or more of the Underwriters or against you as
Representatives of the Underwriters arising out of an alleged untrue statement
or omission in the Registration Statement (or any amendment thereto) or in the
Prospectus (or any amendment or supplement thereto) or any Blue Sky Application
or relating to any transaction contemplated by this Agreement, we authorize you
to make such investigation, to retain such counsel for the Underwriters and to
take such action in the defense of such claim as
45
you may deem necessary or advisable. You may settle such claim with the approval
of a majority in interest of the Underwriters. We will pay our proportionate
share (based upon our underwriting obligation) of all expenses incurred by you
(including the fees and expenses of counsel for the Underwriters) in
investigating and defending against such claim and our proportionate share of
the aggregate liability incurred by all Underwriters in respect of such claim
(after deducting any contribution or indemnification obtained pursuant to the
Underwriting Agreement, or otherwise, from persons other than Underwriters),
whether such liability is the result of a judgment against one or more of the
Underwriters or the result of any such settlement there shall be credited
against any amount paid or payable by us pursuant to this paragraph any loss,
damage, liability or expense which is incurred by us as a result of any such
claim asserted against us, and if such loss, claim, damage, liability or expense
which is incurred by us as a result of any such claim asserted against us, and
if such loss, claim, damage, liability or expense is incurred by us subsequent
to any payment by us pursuant to this paragraph, appropriate provisions shall be
made to effect such credit, by refund or otherwise. Any Underwriter may retain
separate counsel at its own expense. A claim against or liability incurred by a
person who controls an Underwriter shall be deemed to have been made against or
incurred by such Underwriter. In the event of default by any Underwriter in
respect of its obligations under this Section 14, the non-defaulting
Underwriters shall be obligated to pay the full amount thereof in the
proportions that their respective underwriting obligations bear to the
underwriting obligations of all non-defaulting Underwriters, without relieving
such defaulting Underwriter of its liability hereunder. Our agreements contained
in this Section 14 will remain in full force and effect regardless of any
investigation made by or on behalf of such other Underwriter or controlling
person and will survive the delivery of and payment for the Shares and the
termination of this Agreement and the similar agreements entered into with the
other Underwriters. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 0000 Xxx) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
15. BLUE SKY AND OTHER MATTERS. You will not have any responsibility
with respect to the right of any Underwriter or other person to sell the Shares
in any jurisdiction notwithstanding any information you may furnish in that
connection. We authorize you to file a New York Further State Notice, if
required, and to make and carry out on our behalf any agreements which you may
deem necessary in order to procure registration or qualification of any of the
Shares in any jurisdiction, and we will at your request make such payments, and
furnish to you such information, as you may deem required by reason of any such
agreements.
We authorize you to file on behalf of the several Underwriters with the
NASD such documents and information, if any, which are available or have been
furnished to you for filing pursuant to applicable rules, statements and
interpretations of the NASD.
16. TITLE OF SHARES. The Shares purchased by the respective
Underwriters and any other securities purchased by you hereunder for their
respective accounts shall remain the property of such Underwriters until sold an
no title to any such Shares or other securities shall in any event pass to you,
as Representatives, by virtue of any of the provisions of this Agreement.
17. CAPITAL REQUIREMENTS. We confirm that our net capital and the ratio
of our aggregate indebtedness to our net capital is such that we may, in
accordance with and pursuant to Rule 15c3-1 under the 1934 Act, obligate
ourselves to purchase, and purchase, the Shares which we agree to purchase under
the Underwriting Agreement and hereunder.
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18. LIABILITY FOR FUTURE CLAIMS. Neither any statement by you, as
Representatives of the several Underwriters, of any credit or debit balance in
our account nor any reservation from distribution to cover possible additional
expenses relating to the Shares will constitute any representation by you as to
the existence or nonexistence of possible unforeseen expenses or liabilities of
or charges against the several Underwriters. Notwithstanding the distribution of
any net credit balance to us, we will be and remain liable for, and will pay on
demand, (a) our proportionate share (based upon our underwriting obligation) of
all expenses and liabilities which may be incurred by or for the accounts of the
Underwriters, including any liability which may be incurred by the Underwriters
or any of them based on the claim that the Underwriters constitute an
association, unincorporated business, partnership or any separate entity, and
(b) any transfer taxes paid after such settlement on account of any sale or
transfer for our account.
19. ACKNOWLEDGMENT OF REGISTRATION STATEMENT, ETC. We hereby confirm
that we have examined the Registration Statement (including any amendments or
supplements thereto) relating to the Shares filed with the Commission, that we
are willing to accept the responsibilities of an underwriter thereunder and that
we are willing to proceed as therein contemplated. We confirm that we have
authorized you to advise the Company on our behalf (a) as to the statements to
be included in the Prospectus relating to the Shares under the heading
"Underwriting," insofar as they relate to us, and (b) that there is no
information about us required to be stated in said Registration Statement or the
Prospectus other than as set forth in the Underwriters' Questionnaire previously
delivered by us to you. We understand that the aforementioned documents are
subject to further change and that we will be supplied with copies of any
amendment or amendments to such documents promptly, if and when received by you,
but the making of such changes and amendments will not release us or affect our
obligations hereunder or under the Underwriting Agreement.
20. NOTICES AND GOVERNING LAW. Any notice from you to us shall be
mailed, telephoned, sent by facsimile or telegraphed to us at our address as set
forth in the Underwriters' Questionnaire. Any notice from us to you shall be
deemed to have been duly given if mailed, telephoned, sent by facsimile or
telegraphed to you at 0000 Xxxxxxxxxx Xxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx 00000,.
This Agreement shall be governed by and construed in accordance with the laws of
the State of Virginia.
21. OTHER PROVISIONS. We represent that we are actually engaged in the
investment banking and securities business and are a member in good standing of
the NASD or, if we are not such a member, that we are a foreign dealer not
eligible for membership in said Association and that we will not offer or sell
any Shares in, or to persons who are nationals or residents of, the United
States of America. In making sales of Shares, if we are such a member, we agree
to comply will all applicable rules of the NASD, including, without limitation,
the NASD's Interpretation With Respect to Free-Riding and Withholding and
Section 24 of Article III of the NASD's Rules of Fair Practice, or if we are a
foreign bank, dealer or institution, we agree to comply with such Interpretation
and Sections 8, 24, 25 (as such Section applies to foreign nonmembers) and 36 of
the Article III as that Section applies to a non-member broker or dealer in a
foreign country. We confirm that we have complied or will comply with
requirements of the 1933 Act concerning delivery of the Prospectus. We are aware
of our statutory responsibilities under the 1933 Act, and you are authorized on
our behalf to so advise the Commission.
2. COUNTERPARTS. This Agreement may be signed in any number of
counterparts which, taken together, shall constitute one and the same
instrument.
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Very truly yours,
As Attorney-in-Fact for each of the several
Underwriters named in Schedule A to the
Underwriting Agreement
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Confirmed as of the date first above written.
As Representative of the
Several Underwriters:
FRIEDMAN, BILLINGS, XXXXXX & CO., INC.
By:
Title: Managing Director
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