EXHIBIT 1.1
FORM OF SALES AGENCY AGREEMENT
August , 1997
Xxxxxx Brothers Inc.
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
In connection with the agreement of Xxxxxx Brothers Inc. ("Xxxxxx") to
act as broker in connection with the sale of up to shares (the
"Shares") of Class A Common Stock of Bank United Corp. (the "Company") owned
by the undersigned participating selling stockholders named below (the "Selling
Stockholders") in transactions in the over-the-counter market at prices
relating to market prices for the common stock prevailing at the time of sale:
1. The Company represents and warrants that a registration statement on Form S-1
(Registration No. 333-19237) with respect to the offer and sale of the Shares
has been prepared by the Company in conformity with the requirements of the
U.S. Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder (the "Securities Act"), has been filed with the
Securities and Exchange Commission (the "SEC") thereunder and has been
declared effective under the Securities Act. As used herein, "Registration
Statement" means such registration statement, as amended, including any
documents incorporated by reference therein and exhibits thereto, and
including all information contained in the prospectus dated May 14, 1997 and
any Prospectus Supplement (collectively, the "Prospectus") filed with the
SEC and deemed to be a part thereof. No order suspending the effectiveness of
the Registration Statement or otherwise preventing or suspending the use of
the Prospectus has been issued by the SEC and no proceedings for that purpose
are pending before or, to our knowledge, threatened by, the SEC.
2. The Company represents and warrants that the Registration Statement and the
Prospectus conform, and any further amendments or supplements to the
Registration Statement or the Prospectus will, when they become effective or
are filed with the SEC, as the case may be, conform in all material respects
to the requirements of the Securities Act and do not and will not, as of the
applicable date of any sale of any of the Shares, contain an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
3. Each Selling Stockholder represents and warrants (as to the Shares owned by
such Selling Stockholder only) that such Selling Stockholder now has, and on
the settlement date of any sale of the Shares will have, good and marketable
title to such Shares, free and clear of any and all liens, encumbrances,
restrictions, preemptive rights and any other claims of any third party, with
full right and authority to sell and deliver such Shares. Upon delivery of
and payment for such Shares, the purchaser will receive good and marketable
title to such Shares purchased from such Selling Shareholder, free and clear
of any and all liens, encumbrances, restrictions, preemptive rights and other
claims of any third party.
4. If during the period when Xxxxxx may be acting as broker in connection with
the sale of the Shares any event relating to or affecting the Company shall
occur which should be set forth in a supplement to or as amendment of the
Prospectus to correct a material misstatement or omission therein or in order
to make the Prospectus not misleading when it is delivered, or if for any
other reason it shall be necessary during such period to amend or supplement
the Prospectus or to file under the Securities Exchange Act of 1934 and the
rules and regulations promulgated thereunder (the "Exchange Act") any
document incorporated by reference in the Prospectus in order to comply with
the Securities Act or the Exchange Act, the Company will immediately (i)
notify Xxxxxx to suspend all sales of the Shares and (ii) prior to any
further sales of the Shares, cause the preparation and filing with the SEC of
a supplement or supplements or an amendment or amendments to the Prospectus
which will supplement or amend the Prospectus so that, as supplemented or
amended, it will not contain any untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements therein,
in the light of the circumstances existing at the time the Prospectus is
delivered, not misleading or which will affect any other necessary
compliance.
5. By participating as a broker in connection with the sale of the Shares,
Xxxxxx may be deemed to be an underwriter with respect to the sale of the
Shares. As a material inducement for Xxxxxx to participate as an
agent in the sale of the Shares, the Company hereby agrees to indemnify
Xxxxxx with respect to losses, claims, damages, liabilities, costs and
expenses (including the reasonable fees and expenses of counsel incurred in
connection with defending any such claims) arising out of or based upon (i)
any untrue or alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus or any amendment or supplement
thereto or (ii) any omission of a material fact required to be stated therein
or necessary to make the statements therein not misleading. Xxxxxx agrees to
indemnify the Company on the same basis as the Company is indemnifying
Xxxxxx, but only to the extent that any such loss, claim, damage, liability,
or action arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in reliance upon and
conformity with the information set forth under the captions "Plan of
Distribution" and "Derivative Transactions" of the Prospectus Supplement
furnished to the Company by Xxxxxx specifically for inclusion in such
Registration Statement or Prospectus. Procedural aspects with respect to the
indemnification provided for in this paragraph 5 shall be governed by section
10(d) of the U.S. Underwriting Agreement dated February 5, 1997 between the
Company and Xxxxxx, as representative of the several U.S. Underwriters party
thereto;
Xxxxxx shall be entitled to rely on the above representations, warranties,
covenants and indemnities in acting as broker in connection with the sale of the
Shares, and such representations, warranties, covenants and indemnities shll
remain operative and in full force and effect regardless of any investigation
made by or on behalf of Xxxxxx and shall survive the sale the the Shares. Xxxxxx
shall act as broker hereunder and in no event shall be obligated to purchase the
Shares for its own account or the accounts of its customers. For its efforts,
Xxxxxx shall be entitled to receive a commission from the Selling Stockholders
of $ per share (an aggregate of $ if all shares are sold).
This agreement may be signed in various counterparts, which together shall
constitute one and the same agreement.
Sincerely yours,
BANK UNITED CORP.
By:_________________
Name:
Title:
SELLING STOCKHOLDERS
By:_________________
By:_________________
By:_________________
By:_________________
By:_________________
By:_________________
Acknowledged:
XXXXXX BROTHERS INC.
By:_________________
Name:
Title:
