EXHIBIT 1.3
BANK UNITED CORP.
2,000,000 PREMIUM INCOME EQUITY SECURITIESSM ("PIES(SM)")*
CONSISTING OF 2,000,000 CORPORATE PIES
UNDERWRITING AGREEMENT
August , 1999
LEHMAN BROTHERS INC.
Three World Financial Center
New York, New York 10285
Ladies and Gentlemen:
Bank United Corp., a Delaware corporation (the "Company"), confirms
its agreement with Lehman Brothers Inc. (the "Underwriter"), with respect to the
issue and sale by the Company and purchase by the Underwriter of 2,000,000
Premium Income Equity Securities ("PIES") (the "Firm PIES"). In addition, the
Company proposes to grant to the Underwriter an option to purchase up to an
additional 450,000, PIES on the terms and for the purposes set forth in Section
2 (the "Option PIES"). The Firm PIES and the Option PIES, if purchased, are
hereinafter collectively called the "PIES." Capitalized terms used herein
without definition shall be used as defined in the Final Prospectus (as
hereinafter defined).
Each PIES will initially consist of a unit (a "Corporate PIES")
comprised of (a) a stock purchase contract (a "Purchase Contract") under which
(i) the holder will purchase from the Company no later than [ ], 2002, for $50,
a number of shares of common stock, par value $0.01 per share, of the Company
(the "Common Stock"), equal to the Settlement Rate as set forth in the Purchase
Contract Agreement (as hereinafter defined) and (ii) the Company will pay to the
holder contract adjustment payments and (b) a share of the Company's Series B
Preferred Stock, liquidation preference $50 per share (the "Preferred Stock").
In accordance with the terms of a Purchase Contract Agreement (the "Purchase
Contract Agreement") to be entered into between the Company and [ ], as Purchase
Contract Agent (the "Purchase Contract Agent"), the holders of the PIES will
pledge the Preferred Stock to [ ], as Collateral Agent (the "Collateral Agent"),
pursuant to a Pledge Agreement (the "Pledge Agreement") to be entered into among
the Company, the Purchase Contract Agent, [ ], as Securities Intermediary (the
"Securities Intermediary"), and the Collateral Agent, to secure the holders'
obligations to purchase Common Stock under the Purchase Contracts.
This is to confirm the agreement concerning the purchase of the
PIES by the Underwriter.
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* "Premium Income Equity Securities" and "PIES" are service marks owned
by Lehman Brothers Inc.
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1. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY.
The Company represents, warrants and agrees that:
(a) A registration statement on Form S-3 (File No. 333-75937)
and an amendment or amendments thereto with respect to the PIES have
(i) been prepared by the Company in conformity with the requirements
of the Securities Act of 1933, as amended (the "Securities Act"),
and the rules and regulations (the "Rules and Regulations") of the
Securities and Exchange Commission (the "Commission") thereunder,
(ii) been filed with the Commission under the Securities Act and
(iii) become effective under the Securities Act. The registration
statement, as amended at the date of this Agreement, meets the
requirements set forth in Rule 415(a)(1)(x) under the Securities Act
and complies in all other material respects with such Rule. The
Company proposes to file with the Commission pursuant to Rule 424(b)
under the Securities Act ("Rule 424(b)") a supplement to the form of
prospectus included in the registration statement relating to the
initial offering of the PIES and the plan of distribution thereof
and has previously advised you of all further information (financial
and other) with respect to the Company to be set forth therein. The
term "Registration Statement" means the registration statement, as
amended at the date of this Agreement and as amended from time to
time hereafter, including the exhibits thereto, and all documents
incorporated therein by reference pursuant to Item 12 of Form S-3
(the "Incorporated Documents"), and such prospectus as then amended,
including the Incorporated Documents, is hereinafter referred to as
the "Basic Prospectus"; and such supplemented form of prospectus, in
the form in which it shall be filed with the Commission pursuant to
Rule 424(b) (including the Basic Prospectus as so supplemented), is
hereinafter called the "Final Prospectus". The Basic Prospectus, as
the same may be amended or supplemented from time to time,
including, without limitation, by any preliminary form of prospectus
supplement relating to the Corporate PIES, which has heretofore been
filed pursuant to Rule 424(b) or included in any amendment to the
registration statement prior to the effective date thereof is
hereinafter called the "Interim Prospectus". Any reference herein to
the Registration Statement, any Interim Prospectus or the Final
Prospectus shall be deemed to refer to and include the Incorporated
Documents which were filed under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), on or before the date of this
Agreement, the issue date of any Interim Prospectus or the issue
date of the Final Prospectus, as the case may be; and any reference
herein to the terms "amend", "amendment" or "supplement" with
respect to the Registration Statement, any Interim Prospectus or the
Final Prospectus shall be deemed to refer to and include the filing
of any Incorporated Documents under the Exchange Act after the date
of this Agreement or the issue date of the Basic Prospectus, any
Interim Prospectus or the Final Prospectus, as the case may be, and
deemed to be incorporated therein by reference. Copies of the
Registration Statement (including any amendment or amendments to
such Registration Statement) have been delivered by the Company to
the Underwriter.
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(b) (i) Each document, if any, filed or to be filed pursuant
to the Exchange Act and incorporated by reference in the Interim
Prospectus or Final Prospectus complied or will comply when so filed
in all material respects with the Exchange Act and the applicable
rules and regulations of the Commission thereunder, (ii) each part
of the Registration Statement, when such part became effective, did
not contain and each such part, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, (iii) any
Interim Prospectus complied and the Registration Statement and the
Final Prospectus comply, and, as amended or supplemented, if
applicable, will comply in all material respects with the Securities
Act and the Rules and Regulations and (iv) any Interim Prospectus
did not contain and the Final Prospectus does not contain and, as it
may be amended or supplemented, will not contain an untrue statement
of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they are made, not misleading; PROVIDED
THAT no representation and warranty is made as to information
contained in or omitted from the Registration Statement, any Interim
Prospectus or the Final Prospectus in reliance upon and in
conformity with written information concerning the Underwriter
furnished to the Company by the Underwriter specifically for
inclusion therein; and the Commission has not issued an order
preventing or suspending the use of the Registration Statement, any
Interim Prospectus or the Final Prospectus.
(c) The shares of Common Stock to be issued and sold by the
Company pursuant to the Purchase Contracts have been duly and
validly authorized and reserved for issuance and, when issued and
delivered in accordance with the provisions of the Purchase
Contracts, will be duly and validly issued, fully paid and
non-assessable and will not be subject to any preemptive rights of
any person.
(d) The Corporate PIES have been duly authorized by the
Company, and when duly executed by the Company (assuming due
execution by the Purchase Contract Agent as attorney-in-fact for the
holders thereof and due authentication by the Purchase Contract
Agent) and delivered by the Company and upon payment therefor as set
forth herein, will be duly and validly issued and outstanding, and
will constitute valid and binding obligations of the Company
entitled to the benefits of the Purchase Contract Agreement and
enforceable against the Company in accordance with their terms,
except as the enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights generally or by
general equitable principles (regardless of whether enforcement is
considered in a proceeding in equity or at law) (the "Bankruptcy
Exceptions") and an implied covenant of good faith and fair dealing.
(e) The shares of Preferred Stock have been duly authorized by
the Company and, when issued and delivered against payment therefor
as provided herein, will be
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duly and validly issued, fully paid and non-assessable and will
not be subject to any preemptive rights of any person.
(f) The Purchase Contract Agreement has been duly authorized
by the Company and, when duly executed by the proper officers of the
Company (assuming due execution and delivery by the Purchase
Contract Agent) and delivered by the Company, will constitute a
valid and binding agreement of the Company enforceable against the
Company in accordance with its terms, except as the enforcement
thereof may be limited by the Bankruptcy Exceptions and an implied
covenant of good faith and fair dealing.
(g) The Pledge Agreement has been duly authorized by the
Company and, when duly executed by the proper officers of the
Company (assuming due execution and delivery by the Purchase
Contract Agent, the Securities Intermediary and the Collateral
Agent) and delivered by the Company, will constitute a valid and
binding agreement of the Company enforceable against the Company in
accordance with its terms, except as the enforcement thereof may be
limited by the Bankruptcy Exceptions and an implied covenant of good
faith and fair dealing.
(h) This Agreement has been duly authorized, executed and
delivered by the Company; and the Remarketing Agreement (the
"Remarketing Agreement") to be entered into by the Company and
Lehman Brothers Inc., as Remarketing Agent, has been duly authorized
by the Company and, when executed and delivered by the Company, will
constitute a valid and binding agreement of the Company enforceable
against the Company in accordance with its terms, except as the
enforcement thereof may be limited by the Bankruptcy Exceptions and
an implied covenant of good faith and fair dealing.
(i) The Corporate PIES, the Preferred Stock, the Common Stock
to be issued and sold pursuant to the Purchase Contracts, the
Purchase Contract Agreement, the Pledge Agreement and the
Remarketing Agreement, when the Corporate PIES are delivered
pursuant to this Agreement, will conform to the descriptions thereof
contained in the Final Prospectus.
(j) The accountants who certified the financial statements and
any supporting schedules thereto included or incorporated by
reference in the Registration Statement and the Final Prospectus,
and who delivered the letters referred to in Section 7(g) of this
Agreement, are independent public accountants as required by the
Securities Act and the Rules and Regulations.
(k) The consolidated financial statements included in the
Registration Statement and the Final Prospectus, together with the
related schedules and notes, present fairly in all material respects
the consolidated financial position of the Company and its
consolidated subsidiaries at the dates indicated and the results of
operations, changes in stockholders' equity and cash flows of the
Company and its
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consolidated subsidiaries for the periods specified; said financial
statements have been prepared in conformity with generally accepted
accounting principles ("GAAP") applied on a consistent basis
throughout the periods involved, except as may be noted therein. The
selected financial data and the summary financial information
included in the Final Prospectus present fairly in all material
respects the information shown therein and have been compiled on a
basis consistent with that of the audited financial statements
included in the Registration Statement. The information contained in
the Final Prospectus that constitutes "forward-looking statements"
within the meaning of Section 21E(i)(1) of the Exchange Act has been
prepared on the basis of the Company's best current judgments and
estimations as to future operating plans and results.
(l) Since the respective dates as of which information is
given in the Registration Statement and the Final Prospectus, except
as otherwise stated therein, (i) there has been no material adverse
change in the condition, financial or otherwise, or in the earnings,
stockholders' equity, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether
or not arising in the ordinary course of business (a "Material
Adverse Effect"), (ii) there have been no transactions entered into
by the Company or any of its subsidiaries, other than those in the
ordinary course of business, which are material with respect to the
Company and its subsidiaries considered as one enterprise, and (iii)
except for regular quarterly dividends on the Common Stock or on the
Series A Preferred Stock of Bank United (the "Bank") in amounts per
share that are consistent with past practice, there has been no
dividend or distribution of any kind declared, paid or made by the
Bank or the Company on any class of its capital stock.
(m) The Company, and each of its subsidiaries including the
Bank, has been duly organized and is validly existing as a
corporation or as a federal savings association, as the case may be,
in good standing under the laws of its jurisdiction and has all
necessary corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the Final
Prospectus; the Company has all necessary corporate power and
authority to enter into and perform its obligations under this
Agreement, the Purchase Contract Agreement, the Pledge Agreement and
the Remarketing Agreement; and the Company and each of its
subsidiaries is duly qualified as a foreign corporation to transact
business and is in good standing in each other jurisdiction in which
such qualification is required, whether by reason of the ownership
or leasing of property or the conduct of business, except where the
failure so to qualify or to be in good standing would not result in
a Material Adverse Effect.
(n) (i) The Bank is the only "significant subsidiary" of the
Company (as such term is defined in Rule 1-02 of Regulation S-X).
The only subsidiaries of the Company other than the Bank are the
wholly-owned subsidiaries of the Bank listed on Schedule 1 hereto
which, considered in the aggregate as a single subsidiary, do not
constitute a "significant subsidiary" as defined in Rule 1-02 of
Regulation S-X. The
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activities of all of the Bank's subsidiaries are permitted to
subsidiaries of a federally chartered savings bank, the deposits of
which are insured by the Savings Association Insurance Fund
("SAIF"), which is administered by the Federal Deposit Insurance
Corporation (the "FDIC").
(ii) All of the issued and outstanding capital stock of the
Bank and each subsidiary of the Bank has been duly authorized and
validly issued, is fully paid and non-assessable and, except as
otherwise disclosed in the Final Prospectus, and, other than the
Series A Preferred Stock, is owned by the Company, directly or
through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity; none of the
outstanding shares of capital stock of any subsidiary was issued in
violation of the preemptive or similar rights of any securityholder
of such subsidiary.
(o) The authorized, issued and outstanding capital stock of
the Company is as set forth in the Final Prospectus under the
caption "Capitalization" (except for subsequent issuances, if any,
pursuant to reservations, agreements or employee benefit plans
referred to in the Final Prospectus). The shares of issued and
outstanding capital stock have been duly authorized and validly
issued and are fully paid and non-assessable; none of the
outstanding shares of capital stock was issued in violation of the
preemptive or other similar rights of any securityholder of the
Company.
(p) Neither the Company nor any of its subsidiaries is in
violation of its charter or by-laws or in default in the performance
or observance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, deed of trust, loan
or credit agreement, note, lease or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by which
it or any of them may be bound, or to which any of the assets,
properties or operations of the Company or any of its subsidiaries
is subject (collectively, "Agreements and Instruments"), except for
such defaults that would not result in a Material Adverse Effect.
The execution, delivery and performance of this Agreement, the
Purchase Contract Agreement, the Pledge Agreement and the
Remarketing Agreement and any other agreement or instrument entered
into or issued or to be entered into or issued by the Company in
connection with the transactions contemplated hereby or thereby and
the consummation of the transactions contemplated herein (including
the issuance and sale of the Corporate PIES, the Preferred Stock and
the Common Stock to be issued and sold pursuant to the Purchase
Contract and the use of the proceeds from the sale of the Corporate
PIES as described in the Final Prospectus under the caption "Use of
Proceeds" (collectively, the "Transactions") and compliance by the
Company with its obligations hereunder and thereunder have been duly
authorized by all necessary corporate action and do not and will
not, whether with or without the giving of notice or passage of time
or both, conflict with or constitute a breach of, or default or
Repayment Event (as defined below) under, or result in the creation
or imposition of any lien, charge or encumbrance upon any assets,
properties or
7
operations of the Company or any of its subsidiaries pursuant to,
any Agreements and Instruments (except for such conflicts, breaches
or defaults or liens, charges or encumbrances that would not result
in a Material Adverse Effect), nor will such action result in any
violation of the provisions of the charter or by-laws of the Company
or any of its subsidiaries or (except for such violations that would
not result in a Material Adverse Effect) any applicable law,
statute, rule, regulation, judgment, order, writ or decree of any
government, government instrumentality or court, domestic or
foreign, having jurisdiction over the Company or any of its
subsidiaries or any of their assets, properties or operations. As
used herein, a "Repayment Event" means any event or condition which
gives the holder of any note, debenture or other evidence of
indebtedness (or any person acting on such holder's behalf) the
right to require (whether with or without the giving of notice or
passage of time or both) the repurchase, redemption or repayment of
all or a portion of such indebtedness by the Company or any of its
subsidiaries.
(q) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent,
and the Company is not aware of any existing or imminent labor
disturbance by the employees of any of its or any subsidiary's
principal suppliers, manufacturers, customers or contractors, which,
in either case, may reasonably be expected to result in a Material
Adverse Effect.
(r) There is no action, suit, proceeding, inquiry or
investigation before or brought by any court or governmental agency
or body, domestic or foreign, now pending, or, to the knowledge of
the Company, threatened, against or affecting the Company, the Bank,
or any of their respective subsidiaries, which individually or in
the aggregate for all such actions, suits, proceedings, inquiries or
investigations is required to be disclosed in the Registration
Statement (other than as disclosed therein), or which might
reasonably be expected to result in a Material Adverse Effect, or
which might reasonably be expected to materially and adversely
affect the consummation of the Transactions or the performance by
the Company of its obligations hereunder and thereunder; the
aggregate of all pending legal or governmental proceedings to which
the Company, the Bank, or any of their respective subsidiaries is a
party or of which any of their respective property or assets is the
subject which are not described in the Registration Statement,
including ordinary routine litigation incidental to the business of
the Company, the Bank, or any of their respective subsidiaries,
could not reasonably be expected to result in a Material Adverse
Effect. Neither the Company nor any of its subsidiaries is a party
to any written agreement or memorandum of understanding with, or
commitment letter or similar undertaking to, or subject to any order
or directive issued by, or a recipient of any extraordinary
supervisory letter from, or has adopted any board resolutions at the
request of, any federal or state government agency or authority with
responsibility for the supervision or regulation of depository
institutions or their holding companies or the insurance of
deposits, which in any such case materially restricts the conduct of
its business or in any manner relates to its capital adequacy,
8
its credit policies or its management, nor has the Company or any of
its subsidiaries been advised by any such regulatory authority that
it is contemplating issuing or requesting any such order, decree,
written agreement, memorandum of understanding, extraordinary
supervisory letter, commitment letter or similar undertakings or
board resolutions.
(s) There are no contracts or documents which are required to
be described in the Registration Statement, the Final Prospectus or
the documents incorporated by reference therein or to be filed as
exhibits thereto which have not been so described and filed as
required.
(t) The Company and its subsidiaries own or possess, or can
acquire on reasonable terms, adequate patents, patent rights,
licenses, inventions, copyrights, know-how (including trade secrets
and other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures), trademarks, service marks,
trade names or other intellectual property (collectively,
"Intellectual Property") necessary to carry on the business now
operated by them, and neither the Company nor any of its
subsidiaries has received any notice or is otherwise aware of any
infringement of or conflict with asserted rights of others with
respect to any Intellectual Property or of any facts or
circumstances which would render any Intellectual Property invalid
or inadequate to protect the interest of the Company or any of its
subsidiaries therein, and which infringement or conflict (if the
subject of any unfavorable decision, ruling or finding) or
invalidity or inadequacy, singly or in the aggregate, would result
in a Material Adverse Effect.
(u) No filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any court
or governmental authority or agency, including, without limitation,
the OTS and the FDIC, is necessary or required for the due
authorization, execution and delivery by the Company of this
Agreement or for the performance by the Company of the Transactions,
except such as have been already obtained or will have been obtained
or made prior to the Closing Date (as defined below) or as may be
required under the Securities Act or the Rules and Regulations or
state securities laws.
(v) The Company and its subsidiaries possess such permits,
licenses, approvals, consents and other authorizations
(collectively, "Governmental Licenses") issued by the appropriate
federal, state, local or foreign regulatory agencies or bodies
necessary to conduct the business now operated by them; the Company
and its subsidiaries are in compliance with the terms and conditions
of all such Governmental Licenses, except where the failure so to
comply would not, singly or in the aggregate, have a Material
Adverse Effect; all of the Governmental Licenses are valid and in
full force and effect, except when the invalidity of such
Governmental Licenses or the failure of such Governmental Licenses
to be in full force and effect would not have a Material Adverse
Effect; and neither the Company nor any of its subsidiaries has
received any notice of proceedings relating to the
9
revocation or modification of any such Governmental Licenses which,
singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would result in a Material Adverse
Effect.
(w) The Company and its subsidiaries have good and marketable
title to all real, tangible and intangible property reflected in the
most recent balance sheet included in the Final Prospectus as owned
by the Company and its subsidiaries and good title to all other
properties reflected in the most recent balance sheet included in
the Final Prospectus as owned by them, in each case, free and clear
of all mortgages, pledges, liens, security interests, claims,
restrictions or encumbrances of any kind except such as (i) are
described in the Final Prospectus or (ii) do not, singly or in the
aggregate, materially affect the value of such property and do not
interfere with the use made and proposed to be made of such property
by the Company or any of its subsidiaries; or, with respect to any
such real property, render title unmarketable as to a material part
thereof and all of the leases and subleases material to the business
of the Company and its subsidiaries, considered as one enterprise,
and under which the Company or any of its subsidiaries holds
properties described in the Final Prospectus, are in full force and
effect, and neither the Company nor any subsidiary has any notice of
any material claim of any sort that has been asserted by anyone
adverse to the rights of the Company or any subsidiary under any of
the leases or subleases mentioned above, or affecting or questioning
the rights of the Company or such subsidiary to the continued
possession of the leased or subleased premises under any such lease
or sublease.
(x) The PIES, upon issuance, will be excluded or exempted
under, or beyond the purview of, the Commodity Exchange Act, as
amended, and the rules and regulations of the Commodity Futures
Trading Commission under the Commodity Exchange Act.
(y) The Company is not, and upon the issuance and sale of the
PIES as herein contemplated and the application of the net proceeds
therefrom as described in the Final Prospectus will not be, an
"investment company" within the meaning of the Investment Company
Act of 1940, as amended (the "1940 Act").
(z) Except as described in the Final Prospectus, and except as
would not, singly or in the aggregate, result in a Material Adverse
Effect, (A) neither the Company nor any of its subsidiaries is in
violation of any federal, state, local or foreign statute, law,
rule, regulation, ordinance, code, policy or rule of common law or
any judicial or administrative interpretation thereof including any
judicial or administrative order, consent, decree or judgment,
relating to pollution or protection of human health, the environment
(including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife,
including, without limitation, laws and regulations relating to the
release or threatened release of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances,
petroleum or petroleum products (collectively, "Hazardous
Materials") or to the
10
manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Hazardous Materials
(collectively, "Environmental Laws"), (B) the Company and its
subsidiaries have all permits, authorizations and approvals required
under any applicable Environmental Laws and are each in compliance
with their requirements, (C) there are no pending, or to the
knowledge of the Company, or threatened administrative, regulatory
or judicial actions, suits, demands, demand letters, claims, liens,
notices of noncompliance or violation, investigation or proceedings
relating to any Environmental Law against the Company or any of its
subsidiaries and (D) to the knowledge of the Company, there are no
events or circumstances that might reasonably be expected to form
the basis of an order for clean-up or remediation, or an action,
suit or proceeding by any private party or governmental body or
agency, against or affecting the Company or any of its subsidiaries
relating to Hazardous Materials or any Environmental Laws.
(aa) Except as described in the Registration Statement or as
set forth in any document or agreement described in the Registration
Statement as containing such rights, there are no persons with
registration rights or other similar rights to have any securities
registered pursuant to the Registration Statement or otherwise
registered by the Company or the Bank, under the Securities Act or
otherwise.
(bb) Each of the Company and the Bank maintains a system of
internal accounting controls sufficient to provide reasonable
assurances that (i) transactions are executed in accordance with
management's general or specific authorization; (ii) transactions
are recorded as necessary to permit preparation of financial
statements in conformity with GAAP and to maintain accountability
for assets; (iii) access to assets is permitted only in accordance
with management's general or specific authorization; and (iv) the
recorded accountability for assets is compared with existing assets
at reasonable intervals and appropriate action is taken with respect
to any differences.
(cc) To the knowledge of the Company, neither the Company, the
Bank nor any employee or agent of the Company or the Bank has made
any payment of funds of the Company or the Bank or received or
retained any funds in violation of any law, rule or regulation,
which payment, receipt or retention of funds is of a character
required to be disclosed in the Final Prospectus.
(dd) Each of the Company and the Bank has filed all tax
returns required to be filed, which returns are complete and correct
in all material respects, and each of the Company and the Bank is
not in default in the payment of any taxes which were payable
pursuant to said returns or any assessments with respect thereto.
(ee) In the event the Company shall become either directly or
indirectly a bank holding company for purposes of the Bank Holding
Company Act of 1956, as amended (the "BHC Act") and the rules and
regulations of the Board of Governors of the Federal Reserve System
thereunder (the "BHC Rules"), the current activities
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of the Company and its subsidiaries (as defined in the BHC Rules)
would be activities permissible for a bank holding company under the
BHC Act and the BHC Rules.
(ff) The Company has not taken and will not take, directly or
indirectly, any action designed to, or that might be reasonably
expected to, cause or result in stabilization or manipulation of the
price of the PIES.
(gg) The Company has satisfied the conditions for use of Form
S-3, as set forth in the General Instructions thereto.
2. PURCHASE OF THE PIES BY THE UNDERWRITER. On the basis of the
representations and warranties contained in, and subject to the terms and
conditions of, this Agreement, the Company agrees to sell 2,000,000 Firm PIES to
the Underwriter and the Underwriter agrees to purchase 2,000,000 Firm PIES.
In addition, the Company grants to the Underwriter an option to
purchase up to 450,000 Option PIES. Such option is granted solely for the
purpose of covering over-allotments in the sale of the Firm PIES and is
exercisable as provided in Section 4 hereof.
The price of both the Firm PIES and any Option PIES shall be $[ ]
per PIES.
The Company shall not be obligated to deliver any of the PIES to be
delivered on the First Delivery Date (as hereinafter defined) or the Second
Delivery Date (as hereinafter defined), as the case may be, except upon payment
for all the PIES to be purchased on such Delivery Date as provided herein.
3. OFFERING OF PIES BY THE UNDERWRITER. The Underwriter proposes to
offer the Firm PIES for sale upon the terms and conditions set forth in the
Final Prospectus.
4. DELIVERY OF AND PAYMENT FOR THE PIES. Delivery of and payment for
the PIES shall be made at the office of Simpson Thacher & Bartlett at 425
Lexington Avenue, New York, New York, at 8:30 A.M., New York City time, on the
third full business day following the date of this Agreement (unless the sale of
the PIES hereunder has been priced after 4:30 p.m. Eastern time on the date of
this Agreement, in which case the fourth full business day following the date of
this Agreement) or at such other date or place as shall be determined by
agreement between the Underwriter and the Company. This date and time are
sometimes referred to as the "First Delivery Date." On the First Delivery Date,
the Company, through the facilities of The Depository Trust Company ("DTC"),
shall deliver or cause to be delivered a securities entitlement with respect to
the Firm PIES to the Underwriter against payment to or upon the order of the
Company of the purchase price by wire transfer of same-day funds to a bank
account designated by the Company. Time shall be of the essence, and delivery at
the time and place specified pursuant to this Agreement is a further condition
of the obligation of the Underwriter hereunder. Upon delivery, the Firm PIES
shall be registered in the name of Cede & Co., as nominee for DTC.
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At any time on or before the thirtieth day after the date of this
Agreement the option granted in Section 2 may be exercised by written notice
being given to the Company by the Underwriter. Such notice shall set forth the
aggregate number of Option PIES as to which the option is being exercised, the
names in which the Option PIES are to be registered, the denominations in which
the Option PIES are to be issued and the date and time, as determined by the
Underwriter, when the Option PIES are to be delivered; PROVIDED, HOWEVER, that
this date and time shall not be earlier than the First Delivery Date nor earlier
than the second business day after the date on which the option shall have been
exercised nor later than the fifth business day after the date on which the
option shall have been exercised. The date and time the Option PIES are
delivered are sometimes referred to as the "Second Delivery Date" and the First
Delivery Date and the Second Delivery Date are sometimes each referred to as a
"Delivery Date".
Delivery of and payment for the Option PIES shall be made at the
place specified in the first sentence of the first paragraph of this Section 4
(or at such other place as shall be determined by agreement between the
Underwriter and the Company) at 8:30 A.M., New York City time, on the Second
Delivery Date. On the Second Delivery Date, the Company, through the facilities
of DTC, shall deliver or cause to be delivered a securities entitlement with
respect to the Option PIES to the Underwriter against payment to or upon the
order of the Company of the purchase price by wire transfer of same-day funds to
a bank account designated by the Company. Time shall be of the essence, and
delivery at the time and place specified pursuant to this Agreement is a further
condition of the obligation of the Underwriter hereunder. Upon delivery, the
Option PIES shall be registered in the name of Cede & Co., as nominee of DTC.
The Preferred Stock underlying the PIES will be pledged with the
Collateral Agent to secure the holders' obligations to purchase Common Stock
under the Purchase Contracts. Such pledge shall be effected by the transfer to
the Securities Intermediary of the Preferred Stock to be pledged to the
Collateral Agent in accordance with the Pledge Agreement.
5. FURTHER AGREEMENTS OF THE COMPANY. The Company agrees:
(a) To prepare the Final Prospectus in a form approved by the
Underwriter and to file such Prospectus pursuant to Rule 424(b)
under the Securities Act not later than 10:00 A.M., New York City
time, on the second business day following the execution and
delivery of this Agreement; to make no further amendment or any
supplement to the Registration Statement or the Final Prospectus
except as permitted herein; to advise the Underwriter, promptly
after it receives notice thereof, of the time when any amendment to
the Registration Statement has been filed or becomes effective or
any supplement to the Final Prospectus or any amended Final
Prospectus has been filed and to furnish the Underwriter with copies
thereof; to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act subsequent to the date of the Final Prospectus and for
so long as the delivery of a prospectus is required in connection
with the offering or sale of the PIES; to advise the Underwriter,
promptly after it receives notice thereof, of the issuance by the
Commission of any stop order or of any order preventing or
13
suspending the use of the Final Prospectus, of the suspension of the
qualification of the PIES for offering or sale in any jurisdiction,
of the initiation or threatening of any proceeding for any such
purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or the Final Prospectus
or for additional information; and, in the event of the issuance of
any stop order or of any order preventing or suspending the use of
the Final Prospectus or suspending any such qualification, to use
promptly its best efforts to obtain its withdrawal.
(b) To furnish promptly to the Underwriter and to counsel for
the Underwriter a signed copy of the Registration Statement as
originally filed with the Commission, and each amendment thereto
filed with the Commission, including all consents and exhibits filed
therewith.
(c) To deliver promptly to the Underwriter such number of the
following documents as the Underwriter shall reasonably request: (i)
conformed copies of the Registration Statement as originally filed
with the Commission and each amendment thereto (in each case
excluding exhibits other than this Agreement, the Purchase Contract
Agreement, the Pledge Agreement and the Remarketing Agreement) and,
(ii) the Final Prospectus (not later than 10:00 A.M., New York City
time, of the day following the execution and delivery of this
Agreement) and any amended or supplemented Final Prospectus (not
later than 10:00 A.M., New York City time, on the day following the
date of such amendment or supplement) and (iii) any document
incorporated by reference in any Interim Prospectus or Final
Prospectus (excluding exhibits thereto); and, if the delivery of a
prospectus is required at any time after the date hereof in
connection with the offering or sale of the PIES (or any other
securities relating thereto) and if at such time any event shall
have occurred as a result of which the Final Prospectus as then
amended or supplemented would include any untrue statement of a
material fact or omit to state any material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made when the Final Prospectus is delivered,
not misleading, or, if for any other reason it shall be necessary
during such same period to amend or supplement the Final Prospectus
or to file under the Exchange Act any document incorporated by
reference in the Final Prospectus in order to comply with the
Securities Act or the Exchange Act, to notify the Underwriter and,
upon its request, to prepare and to file such amendment, supplement
or document, to cause any amendment of the Registration Statement
containing an amended Final Prospectus to be made effective as soon
as possible and to prepare and furnish without charge to the
Underwriter and to any dealer in securities as many copies as the
Underwriter may from time to time reasonably request of an amended
or supplemented Final Prospectus which will correct such statement
or omission or effect such compliance.
(d) To file promptly with the Commission any amendment to the
Registration Statement or the Final Prospectus or any supplement to
the Final Prospectus that may, in the judgment of the Company or the
Underwriter, be required by the Securities Act or requested by the
Commission.
14
(e) Prior to filing with the Commission any amendment to the
Registration Statements or supplement to the Final Prospectus,
including any document incorporated by reference in the Final
Prospectus, to furnish a copy thereof to the Underwriter and counsel
for the Underwriter and obtain the consent of the Underwriter to the
filing.
(f) Timely file such reports pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), as are
necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the
purposes of, and to provide the benefits contemplated by, the last
paragraph of Section 11(a) of the Securities Act.
(g) For a period of five years following the effective date of
the Registration Statement, to furnish to the Underwriter copies of
all materials furnished by the Company to its shareholders and all
public reports and all reports and financial statements furnished by
the Company to the principal national securities exchange upon which
the Company's common stock or the PIES may be listed pursuant to
requirements of or agreements with such exchange or to the
Commission pursuant to the Exchange Act or any rule or regulation of
the Commission thereunder.
(h) Promptly from time to time to take such action as the
Underwriter may reasonably request to qualify the Preferred Stock,
the Purchase Contracts, the Common Stock and the Corporate PIES for
offering and sale under the securities laws of such jurisdictions as
the Underwriter may request and to comply with such laws so as to
permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the
distribution of the Preferred Stock, the Purchase Contracts, the
Common Stock and the Corporate PIES; provided that in connection
therewith, the Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in
any jurisdiction.
(i) [lockup language to come]
(j) To use its best efforts to complete the listing of the
Corporate PIES and the Common Stock to be issued and sold pursuant
to the Purchase Contracts on the New York Stock Exchange, Inc.,
subject only to official notice of issuance and evidence of
satisfactory distribution.
(k) To use the net proceeds received by it from the sale of
the PIES pursuant to this Agreement in the manner specified in the
Final Prospectus under the caption "Use of Proceeds."
6. EXPENSES. The Company agrees to pay (a) the fees, disbursements
and expenses of the Company's counsel and accountants in connection with the
registration of the PIES under the Securities Act and all other expenses in
connection with the preparation, printing and filing of the
15
Registration Statement, any Interim Prospectus and the Final Prospectus and
amendments and supplements thereto; (b) the costs incident to the authorization,
issuance, sale and delivery of the Preferred Stock, Purchase Contracts, Common
Stock to be issued and sold pursuant to the Purchase Contracts and PIES and any
taxes payable in connection therewith; (c) the costs incident to the
preparation, printing and filing under the Securities Act of the Registration
Statement and any amendments and exhibits thereto; (d) the costs of distributing
the Registration Statement as originally filed and each amendment thereto and
any post-effective amendments thereof (including, in each case, exhibits), any
Interim Prospectus, the Final Prospectus and any amendment or supplement to any
such prospectus or any document incorporated by reference therein, all as
provided in this Agreement; (e) the costs of reproducing and distributing this
Agreement and any other related documents in delivery of the PIES; (f) any
applicable listing or other fees; (g) the fees and expenses of qualifying the
Preferred Stock, Purchase Contracts, Common Stock and PIES under the securities
laws of the several jurisdictions as provided in Section 5(h) and of preparing,
printing and distributing a Blue Sky Memorandum (including related fees and
expenses of counsel to the Underwriter ); (h) the filing fees and any expenses
of legal counsel incident to any required review by the National Association of
Securities Dealers, Inc. of the terms of the sale of the PIES; (i) any fees
charged by securities rating services for rating the PIES (or any related
security); (j) the fees and expenses of the Purchase Contract Agent, the
Collateral Agent, the Securities Intermediary and their respective counsel; (k)
any transfer taxes payable in connection with the sale of the PIES to the
Underwriter; and (l) all other costs and expenses incident to the performance of
the obligations of the Company under this Agreement; PROVIDED that, except as
provided in this Section 6, the Underwriter shall pay its own costs and
expenses, including the costs and expenses of its counsel, any transfer taxes on
the PIES which it may sell and the expenses of advertising any offering of the
PIES made by the Underwriter.
7. CONDITIONS OF UNDERWRITER'S OBLIGATIONS. The obligations of the
Underwriter hereunder are subject to the accuracy, when made and on each
Delivery Date, of the representations and warranties of the Company contained
herein or in certificates of any officer of the Company or any subsidiary of the
Company delivered pursuant to the provisions hereof, to the performance by the
Company of its covenants and other obligations hereunder, and to each of the
following additional terms and conditions:
(a) As of each Delivery Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued under
the Securities Act, and no proceedings for that purpose shall have been
instituted or be pending or threatened by the Commission, and any request
on the part of the Commission for additional information shall have been
complied with. The Final Prospectus shall have been filed with the
Commission in accordance with Section 5(a) hereof.
(b) On each Delivery Date, the Underwriter shall have received the
favorable opinion, dated as of such Delivery Date, of Wachtell, Lipton,
Rosen & Katz, counsel for the Company, in form and substance satisfactory
to counsel for the Underwriter to the effect set forth in Exhibit A
hereto.
16
(c) On each Delivery Date, the Underwriter shall have received the
favorable opinion, dated as of such Delivery Date, of Jonathon K. Heffron,
Esq., General Counsel for the Company, in form and substance satisfactory
to counsel for the Underwriter, to the effect set forth in Exhibit B
hereto.
(d) On each Delivery Date, the Underwriter shall have received the
favorable opinion, dated as of such Delivery Date, of Simpson Thacher &
Bartlett, counsel for the Underwriter, with respect to the Registration
Statement, Final Prospectus, the validity of the Preferred Stock, Purchase
Contract, Common Stock to be issued pursuant to the Purchase Contracts and
other related matters as the Underwriter may reasonably request.
(e) [ ] shall have furnished to the Underwriter its written opinion,
as counsel to [ ], as Purchase Contract Agent, dated such Delivery Date,
in form and substance satisfactory to counsel for the
Underwriter, to the effect that:
(i) The Purchase Contract Agent is duly incorporated as a [ ]
banking corporation with all necessary power and authority to
execute, deliver and perform its obligations under the Purchase
Contract Agreement and the Pledge Agreement.
(ii) The execution, delivery and performance by the Purchase
Contract Agent of the Purchase Contract Agreement and the Pledge
Agreement, and the authentication and delivery of the PIES, have
been duly authorized by all necessary corporate action on the part
of the Purchase Contract Agent. The Purchase Contract Agreement and
the Pledge Agreement have been duly executed and delivered by the
Purchase Contract Agent, and constitute the valid and binding
agreements of the Purchase Contract Agent, enforceable against the
Purchase Contract Agent in accordance with their terms, except as
the enforcement thereof may be limited by the Bankruptcy Exceptions
and an implied covenant of good faith and fair dealing.
(iii) The execution, delivery and performance of the Purchase
Contract Agreement and the Pledge Agreement by the Purchase Contract
Agent does not conflict with or constitute a breach of the charter
or by-laws of the Purchase Contract Agent.
(iv) No consent, approval or authorization of, or registration
with or notice to, any state or federal governmental authority or
agency is required for the execution, delivery or performance by the
Purchase Contract Agent of the Purchase Contract Agreement and the
Pledge Agreement.
(f) The Underwriter shall not have discovered and disclosed to the
Company on or prior to such Delivery Date that the Registration Statement
or the Final Prospectus or any amendment or supplement thereto contains
any untrue statement of a fact which, in the opinion of Simpson Thacher &
Bartlett, counsel for the Underwriter, is material or omits to
17
state any fact which, in the opinion of such counsel, is material and is
required to be stated therein or is necessary to make the statements
therein not misleading.
(g) All corporate proceedings and other legal matters incident to
the authorization, form and validity of this Agreement, the Purchase
Contract Agreement, the Pledge Agreement, the Remarketing Agreement, the
Purchase Contracts, the Common Stock to be issues and sold pursuant to the
Purchase Contracts, the Registration Statement and the Final Prospectus,
and all other legal matters relating to this Agreement and the
transactions contemplated hereby, shall be reasonably satisfactory in all
material respects to counsel for the Underwriter, and the Company shall
have furnished to such counsel all documents and information that they may
reasonably request to enable them to pass upon such matters.
(h) At the time of execution of this Agreement, the Underwriter
shall have received letters from each of Deloitte & Touche LLP and KPMG
Peat Marwick LLP, in form and substance satisfactory to the Underwriter,
addressed to the Underwriter and dated the date hereof (i) confirming that
they are independent public accountants within the meaning of the
Securities Act and are in compliance with the applicable requirements
relating to the qualification of accountants under Rule 2-01 of Regulation
S-X of the Commission, (ii) stating, as of the date hereof (or, with
respect to matters involving changes or developments since the respective
dates as of which specified financial information is given in the Final
Prospectus, as of a date not more than five days prior to the date
hereof), the conclusions and findings of such firm with respect to the
financial information and other matters ordinarily covered by accountants'
"comfort letters" to underwriters in connection with registered public
offerings.
(i) With respect to the letters of Deloitte & Touche LLP and of KPMG
Peat Marwick LLP referred to in the preceding paragraph and delivered to
the Underwriter concurrently with the execution of this Agreement (the
"initial letters"), the Company shall have furnished to the Underwriter
letters (the "bring-down letters") of such accountants, addressed to the
Underwriter and dated as of such Delivery Date confirming in all material
respects the conclusions and findings set forth in the initial letter.
(j) The Company shall have furnished to the Underwriter a
certificate, dated such Delivery Date, of its Chairman of the Board or its
President and its chief financial officer stating that:
(i) The representations, warranties and agreements of the Company in
Section 1 are true and correct as of such Delivery Date; the Company has
complied with all its agreements contained herein; and the conditions set
forth in Section 7(a) have been fulfilled;
(ii) (A) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Final Prospectus any loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree, otherwise than as set
forth or contemplated in the
18
Prospectus or (B) since such date there has not been any change in the
capital stock or long-term debt of the Company or any of its subsidiaries
or any change, or any development involving a prospective change, in or
affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the Final
Prospectus; and
(iii) They have carefully examined the Registration Statement and
the Final Prospectus and, in their opinion (A) the Registration Statement
and the Final Prospectus, as of such Delivery Date, did not include any
untrue statement of a material fact and did not omit to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading, and (B) since the date of this Agreement, no event
has occurred which should have been set forth in a supplement or amendment
to the Registration Statement or the Final Prospectus.
(k) On each Delivery Date, counsel for the Underwriter shall have
been furnished with such documents and opinions as they may require for
the purpose of enabling them to pass upon the issuance and sale of the
PIES as herein contemplated, or other legal matters incident to the
authorization, form and validity of this Agreement, the Purchase Contract
Agreement, the Pledge Agreement, the Remarketing Agreement, the Purchase
Contracts, the Common Stock to be issued and sold pursuant to the Purchase
Contracts, the Registration Statement, any Interim Prospectus and the
Final Prospectus or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the
conditions, herein contained, and all proceedings taken by the Company in
connection with the issuance and sale of the PIES as herein contemplated
shall be satisfactory in form and substance to the Underwriter and counsel
for the Underwriter.
(l) There shall not have been, since the date hereof or since the
respective dates as of which information is given in the Final Prospectus,
any material adverse change in the condition, financial or otherwise, or
in the consolidated financial position, stockholders' equity, results of
operations, business or prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary
course of business.
(m) Subsequent to the execution and delivery of this Agreement (i)
no downgrading shall have occurred in the rating accorded the Company's or
any significant subsidiary's debt securities or preferred stock by any
"nationally recognized statistical rating organization", as that term is
defined by the Commission for purposes of Rule 436(g)(2) of the Rules and
Regulations and (ii) no such organization shall have publicly announced
that it has under surveillance or review, with possible negative
implications, its rating of any of the Company's or any significant
subsidiary's debt securities or preferred stock.
(n) Subsequent to the execution and delivery of this Agreement there
shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange or the American Stock Exchange or
in the over-the-counter market, or trading in any securities of the
Company on any exchange or in the over-the-counter market, shall have been
suspended or minimum prices shall have been established on any such
exchange or such
19
market by the Commission, by such exchange or by any other regulatory body
or governmental authority having jurisdiction, (ii) a banking moratorium
shall have been declared by Federal or state authorities, (iii) the United
States shall have become engaged in hostilities, there shall have been an
escalation in hostilities involving the United States or there shall have
been a declaration of a national emergency or war by the United States or
(iv) there shall have occurred such a material adverse change in general
economic, political or financial conditions (or the effect of
international conditions on the financial markets in the United States
shall be such) as to make it, in the judgment of the Underwriter,
impracticable or inadvisable to proceed with the public offering or
delivery of the PIES on the terms and in the manner contemplated in the
Final Prospectus.
(o) The New York Stock Exchange, Inc. shall have approved the
Corporate PIES for listing, subject only to official notice of issuance.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably
satisfactory to counsel for the Underwriter.
8. INDEMNIFICATION AND CONTRIBUTION
(a) The Company shall indemnify and hold harmless the Underwriter,
its officers and employees and each person, if any, who controls the
Underwriter within the meaning of the Securities Act, from and against any
loss, claim, damage or liability, joint or several, or any action in
respect thereof (including, but not limited to, any loss, claim, damage,
liability or action relating to purchases and sales of the PIES), to which
the Underwriter, officer, employee or controlling person may become
subject, under the Securities Act or otherwise, insofar as such loss,
claim, damage, liability or action arises out of, or is based upon, (i)
any untrue statement or alleged untrue statement of a material fact
contained (A) in the Registration Statement, any Interim Prospectus or the
Final Prospectus, or in any amendment or supplement thereto, or (B) in any
blue sky application or other document prepared or executed by the Company
(or based upon any written information furnished by the Company)
specifically for the purpose of qualifying any or all of the PIES under
the securities laws of any state or other jurisdiction (any such
application, document or information being hereinafter called a "Blue Sky
Application"), or (ii) the omission or alleged omission to state in the
Registration Statement, any Interim Prospectus or the Final Prospectus, or
in any amendment or supplement thereto, or in any Blue Sky Application any
material fact required to be stated therein or necessary to make the
statements therein not misleading, and shall reimburse the Underwriter and
each such officer, employee or controlling person promptly upon demand for
any legal or other expenses reasonably incurred by the Underwriter,
officer, employee or controlling person in connection with investigating
or defending or preparing to defend against any such loss, claim, damage,
liability or action as such expenses are incurred; PROVIDED, HOWEVER, that
the Company shall not be liable under this Section 8(a) in any such case
to the extent that any such loss, claim, damage, liability or action
arises out of, or is based upon, any untrue statement or alleged untrue
statement or omission or alleged omission made in the Registration
Statement, any Interim Prospectus or the Final Prospectus,
20
or in any such amendment or supplement, or in any Blue Sky Application in
reliance upon and in conformity with written information concerning the
Underwriter furnished to the Company by or on behalf of the Underwriter
specifically for inclusion therein. The foregoing indemnity agreement is
in addition to any liability which the Company may otherwise have to the
Underwriter or to any officer, employee or controlling person of the
Underwriter.
(b) The Underwriter shall indemnify and hold harmless the Company,
its officers and employees, each of its directors and each person, if any,
who controls the Company within the meaning of the Securities Act, from
and against any loss, claim, damage or liability, joint or several, or any
action in respect thereof, to which, the Company or any such director,
officer or controlling person may become subject, under the Securities Act
or otherwise, insofar as such loss, claim, damage, liability or action
arises out of, or is based upon, (i) any untrue statement or alleged
untrue statement of a material fact contained (A) in the Registration
Statement, any Interim Prospectus or the Final Prospectus, or in any
amendment or supplement thereto, or (B) in any Blue Sky Application or
(ii) the omission or alleged omission to state in the Registration
Statement, any Interim Prospectus or the Final Prospectus, or in any
amendment or supplement thereto, or in any Blue Sky Application any
material fact required to be stated therein or necessary to make the
statements therein not misleading, but in each case only to the extent
that the untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with written
information concerning the Underwriter furnished to the Company by or on
behalf of the Underwriter specifically for inclusion therein, and shall
reimburse the Company and any such director, officer or controlling person
for any legal or other expenses reasonably incurred by the Company or any
such director, officer or controlling person in connection with
investigating or defending or preparing to defend against any such loss,
claim, damage, liability or action as such expenses are incurred. The
foregoing indemnity agreement is in addition to any liability which the
Underwriter may otherwise have to the Company or any such director,
officer, employee or controlling person.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under this Section 8, notify the
indemnifying party in writing of the claim or the commencement of that
action; PROVIDED, HOWEVER, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may have under this
Section 8 except to the extent it has been materially prejudiced by such
failure. If any such claim or action shall be brought against an
indemnified party, and it shall notify the indemnifying party thereof, the
indemnifying party shall be entitled to participate therein and, to the
extent that it wishes, jointly with any other similarly notified
indemnifying party, to assume the defense thereof with counsel reasonably
satisfactory to the indemnified party. After notice from the indemnifying
party to the indemnified party of its election to assume the defense of
such claim or action, the indemnifying party shall not be liable to the
indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the
defense thereof other than reasonable costs of investigation; PROVIDED,
HOWEVER, that the Underwriter shall have the right to employ counsel to
represent jointly the Underwriter and its officers, employees
21
and controlling persons who may be subject to liability arising out of any
claim in respect of which indemnity may be sought by the Underwriter
against the Company under this Section 8 if, in the reasonable judgment of
the Underwriter, it is advisable for the Underwriter and its officers,
employees and controlling persons to be jointly represented by separate
counsel, and in that event the fees and expenses of such separate counsel
shall be paid by the Company. No indemnifying party shall (i) without the
prior written consent of the indemnified parties (which consent shall not
be unreasonably withheld), settle or compromise or consent to the entry of
any judgment with respect to any pending or threatened claim, action, suit
or proceeding in respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each
indemnified party from all liability arising out of such claim, action,
suit or proceeding, or (ii) be liable for any settlement of any such
action effected without its written consent (which consent shall not be
unreasonably withheld), but if settled with the written consent of the
indemnifying party or if there be a final judgment of the plaintiff in any
such action, the indemnifying party agrees to indemnify and hold harmless
any indemnified party from and against any loss or liability by reason of
such settlement or judgment.
(d) If the indemnification provided for in this Section 8 shall for
any reason be unavailable to or insufficient to hold harmless an
indemnified party under Section 8(a) or 8(b) in respect of any loss,
claim, damage or liability, or any action in respect thereof, referred to
therein, then each indemnifying party shall, in lieu of indemnifying such
indemnified party under Section 8(a) or 8(b), as the case may be, in
respect of any loss, claim damage or liability or any action in respect
thereof, referred to therein, contribute to the amount paid or payable by
such indemnified party as a result of such loss, claim, damage or
liability, or action in respect thereof referred to in Section 8(a) or
8(b), as the case may be, (i) in such proportion as shall be appropriate
to reflect the relative benefits received by the Company on the one hand
and the Underwriter on the other from the offering of the PIES or (ii) if
the allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of
the Company on the one hand and the Underwriter on the other with respect
to the statements or omissions which resulted in such loss, claim, damage
or liability, or action in respect thereof, as well as any other relevant
equitable considerations. The relative benefits received by the Company on
the one hand and the Underwriter on the other with respect to such
offering shall be deemed to be in the same proportion as the total net
proceeds from the offering of the PIES purchased under this Agreement
(before deducting expenses) received by the Company on the one hand, and
the total underwriting discounts and commissions received by the
Underwriter with respect to the PIES purchased under this Agreement, on
the other hand, bear to the total gross proceeds from the offering of the
PIES under this Agreement, in each case as set forth on the cover of the
Final Prospectus. The relative fault shall be determined by reference to
whether the untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to
information supplied by the Company or the Underwriter, the intent of the
parties and their relative knowledge, access to information and
opportunity to correct
22
or prevent such statement or omission. The Company and the Underwriter
agree that it would not be just and equitable if contributions pursuant to
this Section 8(d) were to be determined by pro rata allocation or by any
other method of allocation which does not take into account the equitable
considerations referred to in this Section 8(d). The amount paid or
payable by an indemnified party as a result of the loss, claim, damage or
liability, or action in respect thereof, referred to above in this Section
8(d) shall be deemed to include, for purposes of this Section 8(d), any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 8(d) the Underwriter shall
not be required to contribute any amount in excess of the amount by which
the total price at which the PIES underwritten by it and distributed to
the public was offered to the public exceeds the amount of any damages
which the Underwriter has otherwise paid or become liable to pay by reason
of any untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
(e) The Underwriter confirms and the Company acknowledges that the
statements with respect to the public offering of the PIES set forth on
the cover page of and under the caption "Underwriting" in, the Final
Prospectus are correct and constitute the only information concerning the
Underwriter furnished in writing to the Company specifically for inclusion
in the Registration Statement and the Final Prospectus.
9. TERMINATION. The obligations of the Underwriter hereunder may be
terminated by the Underwriter by notice given to and received by the
Company prior to delivery of any payment for the Firm PIES if, prior to
that time, any of the events described in Sections 7(l), 7(m) or 7(n)
shall have occurred or if the Underwriter shall decline to purchase the
PIES for any reason permitted under this Agreement.
10. NOTICES, ETC. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Underwriter, shall be delivered or sent by mail,
telex or facsimile transmission to Lehman Brothers Inc., Three World
Financial Center, New York, New York 10285, Attention: Syndicate
Department (Fax: 212-526-6588) with a copy, in the case of any
notice pursuant to Section 8(c), to the Director of Litigation,
Office of the General Counsel, Lehman Brothers Inc., Three World
Financial Center, 10th Floor, New York, New York 10285;
(b) if to the Company, shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Company set
forth in the Registration Statement, Attention: Jonathon K. Heffron,
Esq. (Fax: 713-543-6469);
Any such statements, requests, notices or agreements shall take effect at the
time of receipt thereof.
23
11. PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement shall
inure to the benefit of and be binding upon the Underwriter, the Company,
and their respective successors and assigns. This Agreement and the terms
and provisions hereof are for the sole benefit of only those persons,
except that (A) the representations, warranties, indemnities and
agreements of the Company contained in this Agreement shall also be deemed
to be for the benefit of the person or persons, if any, who control the
Underwriter within the meaning of Section 15 of the Securities Act and (B)
the indemnity agreement of the Underwriter contained in Section 8(b) of
this Agreement shall be deemed to be for the benefit of directors of the
Company and officers of the Company who have signed the Registration
Statement and any person controlling the Company within the meaning of
Section 15 of the Securities Act. Nothing in this Agreement is intended or
shall be construed to give any person, other than the persons referred to
in this Section 11, any legal or equitable right, remedy or claim under or
in respect of this Agreement or any provision contained herein.
12. SURVIVAL. The respective indemnities, representations,
warranties and agreements of the Company and the Underwriter contained in
this Agreement or made by or on behalf of them, respectively, pursuant to
this Agreement, shall survive the delivery of and payment for the PIES and
shall remain in full force and effect, regardless of any investigation
made by or on behalf of any of them or any person controlling any of them.
13. DEFINITION OF THE TERMS "BUSINESS DAY" AND "SUBSIDIARY". For
purposes of this Agreement, (a) "business day" means each Monday, Tuesday,
Wednesday, Thursday or Friday which is not a day on which banking
institutions in New York are generally authorized or obligated by law or
executive order to close and (b) "subsidiary" has the meaning set forth in
Rule 405 of the Rules and Regulations.
14. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF NEW YORK.
15. COUNTERPARTS. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such
counterparts shall together constitute one and the same instrument.
16. HEADINGS. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the
meaning or interpretation of, this Agreement.
24
If the foregoing correctly sets forth the agreement between the
Company and the Underwriter, please indicate your acceptance in the space
provided for that
purpose below.
Very truly yours,
BANK UNITED CORP.
By: _______________________
Title:
Accepted:
LEHMAN BROTHERS INC.
By: _________________________
AUTHORIZED REPRESENTATIVE
SCHEDULE 1
LIST OF SUBSIDIARIES
Exhibit A
FORM OF OPINION OF
WACHTELL, LIPTON, ROSEN & KATZ
TO BE DELIVERED PURSUANT TO SECTION 7(b)
(i) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware.
(ii) The Company has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the Final
Prospectus, and to enter into and perform its obligations under the Underwriting
Agreement. The activities of each of the Company's subsidiaries are permitted to
subsidiaries of a savings and loan holding company.
(iii) The Bank is the only "significant subsidiary" of the Company (as
such term is defined in Rule 1-02 of Regulation S-X). The only subsidiaries of
the Company other than the Bank are the wholly-owned subsidiaries of the Bank
listed on Exhibit _ to the Registration Statement which, considered in the
aggregate as a single subsidiary, do not constitute a "significant subsidiary"
as defined in Rule 1-02 of Regulation S-X.
(iv) The Company has an authorized capitalization as set forth in the
Final Prospectus. The shares of issued and outstanding capital stock of the
Company, including the shares of Preferred Stock being delivered on such
Delivery Date , have been duly authorized and validly issued and are fully paid
and non-assessable; and none of the outstanding shares of capital stock of the
Company, including the shares of Preferred Stock being delivered on such
Delivery Date, was issued in violation of any preemptive or other similar rights
of any securityholder of the Company.
(v) The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
(vi) The unissued shares of Common Stock to be issued and sold by the
Company pursuant to the Purchase Contracts have been duly and validly authorized
and reserved for issuance and when issued and delivered in accordance with the
provisions of the Purchase Contracts, will be duly and validly issued, fully
paid and non-assessable.
(vii) The Corporate PIES have been duly authorized, executed and delivered
by the Company and (assuming due execution by the Purchase Contract Agent as
attorney-in-fact of the holders thereof and due authentication by the Purchase
Contract Agent) upon payment therefor as set forth herein, will be duly and
validly issued and outstanding, and will constitute valid and binding
obligations of the Company entitled to the benefits of the Purchase Contract
Agreement and enforceable against the Company in accordance with their terms,
except as enforceability may be limited by the Bankruptcy Exceptions and an
implied covenant of good faith and fair dealing.
(viii) The Purchase Contract Agreement and the Pledge Agreement have been
duly authorized, executed and delivered by the Company and (assuming due
execution and delivery by the Purchase Contract Agent and, in the case of the
Pledge Agreement, the Securities Intermediary and the Collateral Agent)
constitute valid and binding agreements of the Company enforceable against the
Company in accordance with their respective terms, except as the enforceability
thereof may be limited by the Bankruptcy Exceptions and an implied covenant of
good faith and fair dealing; PROVIDED, HOWEVER, that based on a review of
applicable case law, upon the occurrence of a Termination Event, Section
365(e)(1) of the Bankruptcy Code (11 U.S.C. ss.ss. 101-1330, as amended) should
not substantively limit the provisions of Sections [3.15 and 5.8] of the
Purchase Contract Agreement and Section [5.4] of the Pledge Agreement that
require termination of the Purchase Contracts and release of the Collateral
Agent's security interest in the Preferred Stock or the Treasury Securities.
(ix) The Remarketing Agreement has been duly authorized, executed and
delivered by the Company.
(x) The provisions of the Pledge Agreement are effective to create, in
favor of the Collateral Agent for the benefit of the Company, a valid and
perfected security interest under the Uniform Commercial Code as in effect on
the date of such opinion in the State of New York (the "New York UCC") in the
Pledged Preferred Stock and Pledged Treasury Securities from time to time
credited to the Collateral Account in accordance with the Pledge Agreement. For
purposes of such counsel's opinion, capitalized terms used in this clause (x)
shall have the meanings ascribed to such terms in the Pledge Agreement.
(xi) There are no preemptive or other rights to subscribe for or to
purchase, nor any restriction upon the voting or transfer of, (A) any shares of
Common Stock issuable pursuant to the Purchase Contracts or (B) the Preferred
Stock pursuant to the Company's charter, by-laws, the certificate of designation
relating to the Preferred Stock or any agreement or other instrument known to
such counsel.
(xii) The Registration Statement has been declared effective under the
Securities Act; the Final Prospectus was filed with the Commission pursuant to
Rule 424(b) in the manner and within the time period required by Rule 424(b);
and, to the best of our knowledge, no stop order suspending the effectiveness of
the Registration Statement has been issued under the Securities Act and no
proceedings for that purpose have been instituted or are pending or threatened
by the Commission.
(xiii) The Registration Statements, the Final Prospectus, and each
amendment or supplement to the Registration Statement and the Final Prospectus,
as of their respective effective or issue dates (other than the financial
statements and supporting schedules included therein or omitted therefrom, as to
which we express no opinion) complied as to form in all material respects with
the requirements of the Securities Act and the Rules and Regulations; the
documents incorporated by reference in the Final Prospectus and any further
amendment or supplement to any such incorporated document made by the Company
prior to the Closing Date (other than the financial statements and related
schedules contained therein, as to which such counsel need express no opinion),
when they became effective or were filed with the Commission, as the case may
be, complied as to form in all material respects with the requirements of the
Securities Act or the Exchange Act, as applicable, and the rules and regulations
of the Commission thereunder.
(xiv) The statements contained in the Final Prospectus under the captions
(A) "Description of Offered Securities," in the Basic Prospectus and (B)
"Prospectus Supplement Summary-The Offering," "Description of the PIES,"
"Description of the Purchase Contracts," "Certain Provisions of the Purchase
Contracts, the Purchase Contract Agreement and the Pledge Agreement," and
"Description of the Preferred Stock" in the Prospectus Supplement insofar as
they purport to constitute summaries of certain terms of documents referred to
therein, constitute accurate summaries of the terms of such documents in all
material respects.
(xv) The statements set forth in the Final Prospectus under the caption
"United States Federal Income Tax Consequences" insofar as they purport to
constitute summaries of matters of United States federal tax laws and
regulations or legal conclusions with respect thereto, constitute accurate
summaries of the matters described therein in all material respects.
(xvi) To the best of our knowledge, there are no statutes or regulations
that are required to be described in the Final Prospectus that are not described
as required.
(xvii) Neither the Company, the Bank nor any of their respective
subsidiaries is in violation of its charter or by-laws and, to the best of our
knowledge, no default by the Company, the Bank or any of their respective
subsidiaries exists in the due performance or observance of any material
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument that is described or referred to in the Registration Statement or the
Final Prospectus or filed as an exhibit to the Registration Statement.
(xviii) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency, domestic or foreign including, without limitation, the OTS
and FDIC (other than under the Securities Act and the Rules and Regulations,
which have been obtained, or as may be required under the securities or blue sky
laws of the various states, as to which we express no opinion) is necessary or
required in connection with the due authorization, execution and delivery of the
Underwriting Agreement, the offering, issuance, sale or delivery of the PIES,
the performance of the Transactions, or the performance by the Company of its
obligations pursuant to the Underwriting Agreement, the Purchase Contract
Agreements, the Pledge Agreement, the Remarketing Agreement, the Purchase
Contracts, the Preferred Stock or the PIES.
(xix) The execution, delivery and performance of the Underwriting
Agreement, the Purchase Contract Agreement, the Pledge Agreement and the
Remarketing Agreement, and the consummation by the Company of the Transactions
contemplated thereby and in the Registration Statement have been duly authorized
by all necessary corporate action and do not and will not result in any
violation of the provisions of the charter or by-laws of the Company or any of
its subsidiaries, or any applicable law, statute, rule, regulation, judgment,
order, writ or decree, known to us, of any government, governmental
instrumentality or court, domestic or foreign, having jurisdiction over the
Company. The issuance and sale of the PIES do not contravene the Commodity
Exchange Act or the regulations of the Commodity Futures Trading Commission.
(xx) To the best of our knowledge, there are no persons with registration
rights or other similar rights to have any securities registered pursuant to the
Registration Statement or otherwise registered by the Company under the
Securities Act, except as described in
Registration Statement or as set forth in any agreement described therein as
containing such rights.
(xxi) The Company is not, and upon the sale of the PIES as contemplated in
the Underwriting Agreement and the application of the net proceeds therefrom as
described in the Final Prospectus will not be, an "investment company" or an
entity "controlled" by an "investment company," as such terms are defined in the
1940 Act.
Nothing has come to our attention that would lead us to believe that the
Registration Statement or any amendment thereto (except for financial statements
and schedules and other financial data included therein or omitted therefrom, as
to which we make no statement), at the time such Registration Statement or any
such amendment became effective, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or that the Final
Prospectus or any amendment or supplement thereto (except for financial
statements and schedules and other financial data included therein or omitted
therefrom, as to which we make no statement), at the time the Final Prospectus
was issued, at the time any such amended or supplemented Final Prospectus was
issued or at the Closing Date, included or includes an untrue statement of a
material fact or omitted or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
In rendering such opinion, such counsel may rely as to matters of fact
(but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company and public officials. Such
opinion shall not state that it is to be governed or qualified by, or that it is
otherwise subject to, any treatise, written policy or other document relating to
legal opinions, including, without limitation, the Legal Opinion Accord of the
ABA Section of Business Law (1991). All terms used but not defined in this
exhibit should have the meanings ascribed to them in the Underwriting Agreement
and should be defined accordingly in the form of opinion to be delivered.
Exhibit B
FORM OF OPINION OF
JONATHON K. HEFFRON
GENERAL COUNSEL OF THE COMPANY,
TO BE DELIVERED PURSUANT TO SECTION 7(c)
(i) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware.
(ii) The Company has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the Final
Prospectus, and to enter into and perform its obligations under the Underwriting
Agreement. The activities of each of the Company's subsidiaries are permitted to
subsidiaries of a savings and loan company.
(iii) The Bank is the only "significant subsidiary" of the Company (as
such term is defined in Rule 1-02 of Regulation S-X). The only subsidiaries of
the Company other than the Bank are the wholly-owned subsidiaries of the Bank
listed on Exhibit _ to the Registration Statement, which, considered in the
aggregate as a single subsidiary, do not constitute a "significant subsidiary"
as defined in Rule 1-02 of Regulation S-X. The activities of all of the Bank's
subsidiaries are permitted to subsidiaries of a federally chartered savings
bank, the deposits of which are insured by the SAIF, which is administered by
the FDIC.
(iv) The Bank is a federally chartered stock savings bank, duly
incorporated and validly existing under the laws of the United States, and the
Bank's charter is in full force and effect. The Bank is a member of the Federal
Home Loan Bank of Dallas and has been duly issued a certificate stating that its
savings accounts are insured by the FDIC in accordance with applicable law, and
no proceedings for the termination or revocation of such membership or insurance
are pending or, to the best of my knowledge, threatened.
(v) The Bank has corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the Final Prospectus.
(vi) Each subsidiary of the Bank has been duly organized and is validly
existing as a corporation in good standing under the laws of the jurisdiction of
its incorporation and has the power and authority to own, lease and operate its
properties and to conduct its business as described in the Final Prospectus. The
activities described in the Final Prospectus of each of the Bank's subsidiaries
are permitted activities of subsidiaries of a federally chartered savings bank,
the deposits of which are insured by the SAIF, which is administered by the
FDIC.
(vii) The Company, the Bank and each subsidiary of the Company or the Bank
is duly qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the conduct of business,
except where the failure so to qualify or to be in good standing would not
result in a Material Adverse Effect.
(viii) All of the issued and outstanding capital stock of the Bank and
each subsidiary of the Bank has been duly authorized and validly issued, is
fully paid and non-assessable and, except as otherwise disclosed in the
Registration Statement, is owned by the Company, directly
or through subsidiaries, to the best of my knowledge, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or equity; none of
the outstanding shares of capital stock of any subsidiary was issued in
violation of the preemptive or similar rights of any securityholder of such
subsidiary.
(ix) The Company has an authorized capitalization as set forth in the
Final Prospectus. The shares of issued and outstanding capital stock of the
Company, including the shares of Preferred Stock being delivered on such
Delivery Date , have been duly authorized and validly issued and are fully paid
and non-assessable; and none of the outstanding shares of capital stock of the
Company, including the shares of Preferred Stock being delivered on such
Delivery Date, was issued in violation of any preemptive or other similar rights
of any securityholder of the Company.
(x) There is not pending or, to my knowledge, threatened any action, suit,
proceeding, inquiry or investigation, to which the Company or the Bank or any of
their respective subsidiaries is a party, or to which the property of the
Company or the Bank or any of their respective subsidiaries is subject, before
or brought by any court or governmental agency or body, domestic or foreign,
which might reasonably be expected to result in a Material Adverse Effect, or
which might reasonably be expected to materially and adversely affect the
properties or assets thereof or the consummation of the Transactions or the
performance by the Company of its obligations thereunder. The aggregate of all
pending legal or governmental proceedings to which the Company, the Bank, or any
of their respective subsidiaries is known by me to be a party or of which any of
their respective property or assets is the subject which are not described in
the Registration Statement, including ordinary routine litigation incidental to
the business, could not reasonably be expected to result in a Material Adverse
Effect. To the best of my knowledge, neither the Company nor any of its
subsidiaries is a party to any written agreement or memorandum of understanding
with, or commitment letter or similar undertaking to, or subject to any order or
directive issued by, or a recipient of any extraordinary supervisory letter
from, or has adopted any board resolutions at the request of, any federal or
state government agency or authority with responsibility for the supervision or
regulation of depository institutions or their holding companies or the
insurance of deposits, which in any such case materially restricts the conduct
of its business or in any manner relates to its capital adequacy, its credit
policies or its management, nor has the Company or any of its subsidiaries been
advised by any such regulatory authority that it is contemplating issuing or
requesting any such order, decree, written agreement, memorandum of
understanding, extraordinary supervisory letter, commitment letter or similar
undertakings or board resolutions. No labor dispute with the employees of the
Company or any subsidiary exists or, to the knowledge of the Company, is
imminent, and the Company is not aware of any existing or imminent labor
disturbance by the employees of any of its or any subsidiary's principal
suppliers, manufacturers, customers or contractors, which, in either case, may
reasonably be expected to result in a Material Adverse Effect.
(xiii) To the best of my knowledge, there are no statutes or regulations
that are required to be described in the Final Prospectus that are not described
as required.
(xiv) All descriptions in the Registration Statement of contracts and
other documents to which the Company or its subsidiaries are a party are
accurate in all material respects; to the best of my knowledge, there are no
franchises, contracts, indentures, mortgages, loan agreements, notes, leases or
other instruments required to be described or referred to in the Registration
Statement or to be filed as exhibits thereto other than those described or
referred to therein or
filed or incorporated by reference as exhibits thereto, and the descriptions
thereof or references thereto are correct in all material respects.
(xv) Neither the Company, the Bank nor any of their respective
subsidiaries is in violation of its charter or by-laws and no default by the
Company, the Bank or any of their respective subsidiaries exists in the due
performance or observance of any material obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan agreement, note,
lease or other agreement or instrument that is described or referred to in the
Registration Statement or the Final Prospectus or filed as an exhibit to the
Registration Statement.
(xvi) The execution, delivery and performance of the Underwriting
Agreement, the Purchase Contract Agreement, the Pledge Agreement and the
Remarketing Agreement, and the consummation by the Company of the Transactions
contemplated thereby and in the Registration Statement has been duly authorized
by all necessary corporate action and do not and will not, whether with or
without the giving of notice or lapse of time or both, conflict with or
constitute a breach of, or default or Repayment Event (as defined in Section
l(p) of the Underwriting Agreement) under or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of the
Company or any subsidiary pursuant to any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, lease or any other agreement or
instrument, known to me, to which the Company or any subsidiary is a party or by
which it or any of them may be bound, or to which any of the property or assets
of the Company, the Bank or any of their respective subsidiaries is subject
(except for such conflicts, breaches or defaults or liens, charges or
encumbrances that would not result in a Material Adverse Effect), nor will such
action result in any violation of the provisions of the charter or by-laws of
the Company, the Bank or any of their respective subsidiaries, or any applicable
law, statute, rule, regulation, judgment, order, writ or decree, known to me, of
any government, governmental instrumentality or court, domestic or foreign,
having jurisdiction over the Company, the Bank, or any of their respective
subsidiaries or any of their respective properties, assets or operations.
(xvii) There are no persons with registration rights or other similar
rights to have any securities registered pursuant to the Registration Statement
or otherwise registered by the Company or the Bank under the Securities Act,
except as described in Registration Statement or as set forth in any agreement
described therein as containing such rights.
(xviii) The Company, the Bank and each of its subsidiaries possess such
Governmental Licenses issued by the appropriate federal, state, local or foreign
regulatory agencies or bodies necessary to conduct the business now operated by
them; the Company, the Bank and each of its subsidiaries are in compliance with
the terms and conditions of all such Governmental Licenses, except where the
failure so to comply would not, singly or in the aggregate, have a Material
Adverse Effect; all of the Governmental Licenses are valid and in full force and
effect, except when the invalidity of such Governmental Licenses or the failure
of such Governmental Licenses to be in full force and effect would not have a
Material Adverse Effect; and neither the Company, the Bank nor any of their
respective subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses which, singly or in
the aggregate, if the subject of an unfavorable decision, ruling or finding,
would result in a Material Adverse Effect.
(xix) The Company, the Bank and each of their respective subsidiaries have
good and marketable title to all real, tangible and intangible property
reflected in the most recent balance sheet included in the Final Prospectus as
owned by the Company, the Bank and its subsidiaries and good title to all other
properties reflected in the most recent balance sheet included in the Final
Prospectus as owned by them, in each case, free and clear of all mortgages,
pledges, liens, security interests, claims, restrictions or encumbrances of any
kind except such as (A) are described in the Final Prospectus or (a) do not,
singly or in the aggregate, materially affect the value of such property and do
not interfere with the use made and proposed to be made of such property by the
Company, the Bank or any of their respective subsidiaries; or, with respect to
any such real property, render title unmarketable as to a material part thereof
and all of the leases and subleases material to the business of the Company, the
Bank and of their respective subsidiaries, considered as one enterprise, and
under which the Company, the Bank or any of their respective subsidiaries holds
properties described in the Final Prospectus, are in full force and effect, and
neither the Company, the Bank nor any of their respective subsidiaries has any
notice of any material claim of any sort that has been asserted by anyone
adverse to the rights of the Company, the sank or any of their respective
subsidiaries under any of the leases or subleases mentioned above, or affecting
or questioning the rights of the Company, the Bank or such subsidiary to the
continued possession of the leased or subleased premises under any such lease or
sublease.
(xx) Except as described in the Registration Statement or except as would
not, singly or in the aggregate, result in a Material Adverse Effect, (A) the
Company, the Bank and each of their respective subsidiaries is not in violation
of any Environmental Laws, (B) the Company, the Bank and each of their
respective subsidiaries have all permits, authorizations and approvals required
under any applicable Environmental Laws and are each in compliance with their
requirements, (C) there are no pending or, to the knowledge of the Company,
threatened administrative, regulatory or judicial actions, suits, demands,
demand letters, claims, liens, notices of noncompliance or violation,
investigation or proceedings relating to any Environmental Law against the
Company, the Bank or any of their respective subsidiaries and (D) to the
knowledge of the Company there are no events or circumstances that might
reasonably be expected to form the basis of an order for clean-up or
remediation, or an action, suit or proceeding by any private party or
governmental body or agency, against or affecting the Company, the sank or any
of their respective subsidiaries relating to Hazardous Materials or any
Environmental Laws.
(xxi) In the event the Company shall become either directly or indirectly
a bank holding company for purposes of the BHC Act and the BHC Rules, the
current activities of the Company and its subsidiaries (as defined in the BHc
Rules) would be activities permissible for a bank holding company under the BHC
Act and the BHC Rules.
(xxii) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency, domestic or foreign including, without limitation, the OTS
and FDIC is necessary or required by federal banking laws and regulations in
connection with the due authorization, execution and delivery of the
Underwriting Agreement, the offering, issuance, sale or delivery of the PIES,
the performance of the Transactions, or the performance by the Company of its
obligations pursuant to the Underwriting Agreement, the Purchase Contract
Agreements, the Pledge Agreement, the Remarketing Agreement, the Purchase
Contracts, the Preferred Stock or the PIES.
Nothing has come to my attention that would lead me to believe that the
Registration Statement or any amendment thereto, including the information
included in any prospectus that was omitted from such Registration Statement at
the time it became effective but that is deemed to be part of such Registration
Statement at the time it became effective (except for financial statements and
schedules and other financial data included therein or omitted therefrom, as to
which I make no statement), at the time such Registration Statement or any such
amendment became effective, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or that the Final Prospectus or any
amendment or supplement thereto (except for financial statements and schedules
and other financial data included therein or omitted therefrom, as to which I
make no statement), at the time the Final Prospectus was issued, at the time any
such amended or supplemented Final Prospectus was issued or at either Delivery
Date, included or includes an untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
In rendering such opinion, such counsel may rely as to matters of fact
(but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company and public officials. Such
opinion shall not state that it is to be governed or qualified by, or that it is
otherwise subject to, any treatise, written policy or other document relating to
legal opinions, including, without limitation, the Legal Opinion Accord of the
ABA Section of Business Law (1991). All terms used but not defined in this
exhibit should have the meanings ascribed to them in the Underwriting Agreement
and should be defined accordingly in the form of opinion to be delivered.