EXHIBIT 1.4
2,000,000 SHARES
BANK UNITED CORP.
SERIES A PREFERRED STOCK
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") proposes
to sell an aggregate of 2,000,000 shares (the "Firm Stock") of the Company's
Series A preferred stock, liquidation preference $50 per share (the "Preferred
Stock"). In addition, the Company proposes to grant to Lehman Brothers Inc. (the
"Underwriter") an option to purchase up to an additional 300,000 shares of the
Preferred Stock on the terms and for the purposes set forth in Section 2 (the
"Option Stock"). The Firm Stock and the Stock, if purchased, are hereinafter
collectively called the "Stock." This is to confirm the agreement concerning the
purchase of the Stock from the Company by the Underwriter. Capitalized terms
used herein without definition shall be used as defined in the Final Prospectus
(as hereinafter defined).
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 Stock 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 Stock 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
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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 Stock, 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 and the amendment or amendments to such
Registration Statement have been delivered by the Company to the
Underwriter.
(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 accountants who certified the financial statements and any
supporting schedules thereto included or incorporated by reference in the
Registration Statement and the
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Final Prospectus, and who delivered the letter referred to in Section 7(g)
of this Agreement, are independent public accountants as required by the
Securities Act and the Rules and Regulations.
(d) 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 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.
(e) 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 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,
(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 of the Company 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.
(f) 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; 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 have a material adverse effect
on the consolidated financial position, stockholders' equity, results of
operations, business or prospects of the Company and its subsidiaries
considered as one enterprise (a "Material Adverse Effect").
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(g) (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 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 of the Bank,] 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.
(h) 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.
(i) This Agreement has been duly authorized, executed and delivered
by the Company.
(j) The Stock has been duly authorized by the Company and, when
issued and delivered against payment therefor as provided herein, will be
duly and validly issued, fully paid and non-assessable and not subject to
the preemptive or other similar rights of any person; and the Stock
conforms to all statements relating thereto contained in the Final
Prospectus and such description conforms to the rights set forth in the
instruments defining the same.
(k) 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; and the execution, delivery and performance of
this Agreement and the consummation of the transactions contemplated
hereby and compliance by the Company with its obligations hereunder have
been duly authorized by all necessary corporate
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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 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.
(l) 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.
(m) 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 or any of its subsidiaries, which
individually or in the aggregate for all such actions, suits, proceedings,
inquiries or investigations is required to be disclosed in the
Registration Statement (other than as disclosed therein), or which might
reasonably be expected to result in a Material Adverse Effect, or which
might reasonably be expected to materially and adversely affect the
consummation of the transactions contemplated by this Agreement or the
performance by the Company of its obligations hereunder; the aggregate of
all pending legal or governmental proceedings to which the Company or any
of its subsidiaries is a party or of which any of its 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 or any of its 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, 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,
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decree, written agreement, memorandum of understanding, extraordinary
supervisory letter, commitment letter or similar undertakings or board
resolutions.
(n) 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.
(o) 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.
(p) 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 Office of Thrift
Supervision (the "OTS") and the FDIC, is necessary or required for the
performance by the Company of its obligations hereunder in connection with
the offering or sale of the Stock hereunder, for the consummation of the
transactions contemplated hereby or for the other transactions described
in the Registration Statement, 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.
(q) The Company and its subsidiaries possess such permits, licenses,
approvals, consents and other authorizations (collectively, "Governmental
Licenses") issued by the appropriate federal, state, local or foreign
regulatory agencies or bodies necessary to conduct the business now
operated by them; the Company and its subsidiaries are in compliance with
the terms and conditions of all such Governmental Licenses, except where
the failure so to comply would not, singly or in the aggregate, have a
Material Adverse Effect; all of the Governmental Licenses are valid and in
full force and effect, except when the invalidity of such Governmental
Licenses or the failure of such Governmental Licenses to be in full force
and effect would not have a Material Adverse Effect; and neither the
Company nor any of its subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such 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.
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(r) 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.
(s) The Company is not, and upon the sale of the Stock as
contemplated herein and the application of the net proceeds therefrom as
described in the Final Prospectus will not be, an "investment company" or
an entity "controlled" by an "investment company" as such terms are
defined in the U.S. Investment Company Act of 1940, as amended (the "1940
Act").
(t) Except as described in the Final Prospectus and Registration
Statement or except as would not, singly or in the aggregate, result in a
Material Adverse Effect, (i) 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 manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of Hazardous
Materials (collectively, "Environmental Laws"), (ii) the Company and each
of its subsidiaries have all permits, authorizations and approvals
required under any applicable Environmental Laws and are each in
compliance with their requirements, (iii) there are no pending or, to the
knowledge of the Company, threatened administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens, notices
of noncompliance or violation, investigation or proceedings relating to
any Environmental Law against the Company or any of its subsidiaries and
(iv) to the knowledge of the Company there are no events or circumstances
that might reasonably be expected to form the basis of an order for
clean-up or remediation, or an action, suit or proceeding by any private
party or governmental body or agency, against or affecting the
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Company or any of its subsidiaries relating to Hazardous Materials or
any Environmental
Laws.
(u) 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.
(v) 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.
(w) 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.
(x) 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.
(y) In the event the Company shall become either directly or
indirectly a bank holding company for purposes of the Bank Holding Company
Act of 1956, as amended (the "BHC Act") and the rules and regulations of
the Board of Governors of the Federal Reserve System thereunder (the "BHC
Rules"), the current activities of the Company and its subsidiaries (as
defined in the BHC Rules) would be activities permissible for a bank
holding company under the BHC Act and the BHC Rules.
(z) 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 Stock.
(aa) The Company has satisfied the conditions for use of Form
S-3, as set forth in the General Instructions thereto.
2. PURCHASE OF THE STOCK 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
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agrees to sell 2,000,000 shares of the Firm Stock to the Underwriter and the
Underwriter agrees to purchase 2,000,000 shares of the Firm Stock.
In addition, the Company grants to the Underwriter an option to
purchase up to _______ shares of Option Stock. Such option is granted solely for
the purpose of covering over-allotments in the sale of Firm Stock and is
exercisable as provided in Section 4 hereof.
The price of both the Firm Stock and any Option Stock shall be
$_____ per share.
The Company shall not be obligated to deliver any of the Stock 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 Stock to be purchased on such Delivery Date as provided herein.
3. OFFERING OF STOCK BY THE UNDERWRITER. The Underwriter proposes to
offer the Firm Stock for sale upon the terms and conditions set forth in the
Final Prospectus.
4. DELIVERY OF AND PAYMENT FOR THE STOCK. Delivery of and payment
for the Firm Stock 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 Stock 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 Stock to the Underwriter against payment to or upon the order of the
Company of the purchase price by wire transfer of immediately available funds.
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 Stock shall be registered in the
name of Cede & Co., as nominee for DTC.
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 shares of Option Stock as to which the option is being
exercised, the names in which the shares of Option Stock are to be registered,
the denominations in which the shares of Option Stock are to be issued and the
date and time, as determined by the Underwriter, when the shares of Option Stock
are to be delivered; PROVIDED, HOWEVER, that this date and time shall not be
earlier than the First Delivery Date nor earlier than the second business day
after the date on which the option shall have been exercised nor later than the
fifth business day after the date on which the option shall have been exercised.
The date and time the shares of Option Stock are delivered are sometimes
referred to as the "Second Delivery Date" and the First Delivery Date and the
Second Delivery Date are sometimes each referred to as a "Delivery Date").
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Delivery of and payment for the Option Stock shall be made at the
place specified in the first sentence of the first paragraph of this Section 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 Stock to the Underwriter against payment to or upon the
order of the Company of the purchase price by wire transfer of immediately
available funds. 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 Stock shall
be registered in the name of Cede & Co., a nominee for DTC.
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 Stock; 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 suspending the use of the Final Prospectus, of the
suspension of the qualification of the Stock for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any
such purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or the 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 computation of the ratio of earnings to
fixed charges and the computation of per share earnings), (ii) the Final
Prospectus (not later than 10:00 A.M., New York City time, of the day
following the execution and delivery of
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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 the 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 Stock 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 an untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made when
the Final Prospectus is delivered, not misleading, or, if for any other
reason it shall be necessary 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 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;
(e) Prior to filing with the Commission any amendment to the
Registration Statement 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 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 Stock for offering and
sale under the securities laws of such
12
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 Stock; PROVIDED that in connection therewith the Company shall not
be required to qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction;
(i) For a period from the date of this Agreement to the later of (A)
the First Delivery Date and (B) the date on which selling restrictions
have terminated, not to, directly or indirectly, (1) offer for sale, sell,
pledge or otherwise dispose of (or enter into any transaction or device
which is designed to, or could be expected to, result in the disposition
by any person at any time in the future of) (i) any Preferred Stock, (ii)
any securities that are substantially similar to the Stock, or (iii) any
securities that are convertible into, or exchangeable or exercisable for,
any of the foregoing, or (2) enter into any swap or other derivatives
transaction that transfers to another, in whole or in part, any of the
economic benefits or risks of ownership of the Stock or other Preferred
Stock or similar securities, whether any such transaction described in
clause (1) or (2) above is to be settled by delivery of the Stock or other
Preferred Stock or similar securities or other securities, in cash or
otherwise, in each case without the prior written consent of the
Underwriter, other than pursuant to this Agreement or the Underwriting
Agreement between the Company and Lehman Brothers Inc. relating to
2,000,000 Corporate Premium Income Equity Securities; and
(j) To use the net proceeds received by it from the sale of the
Stock 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 Stock under the Securities Act and all other expenses in
connection with the preparation, printing and filing of the 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 Stock 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
Stock; (f) any applicable listing or other fees; (g) the fees and expenses of
qualifying the Stock 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 Stock; (i) any fees charged by securities rating services for
rating the Stock (or any related security); (j) transfer taxes payable in
connection with the sale of the Stock to the Underwriter; and (k) all other
13
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 Stock which it may sell and
the expenses of advertising any offering of the Stock 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.
(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 and other related matters as the Underwriter
may reasonably request.
(e) 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 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.
(f) All corporate proceedings and other legal matters incident to
the authorization, form and validity of this Agreement, the Stock, 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
14
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.
(g) 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.
(h) 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 letters.
(i) 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 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
15
(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.
(j) 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
Stock as herein contemplated, or other legal matters incident to the
authorization, form and validity of this Agreement, the Stock, 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 Stock as herein contemplated shall be satisfactory in form
and substance to the Underwriter and counsel for the Underwriter.
(k) 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.
(l) 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.
(m) Subsequent to the execution and delivery of this Agreement there
shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange or the American Stock Exchange or
in the over-the-counter market, or trading in any securities of the
Company on any exchange or in the over-the-counter market, shall have been
suspended or minimum prices shall have been established on any such
exchange or such market by the Commission, by such exchange or by any
other regulatory body or governmental authority having jurisdiction, (ii)
a banking moratorium shall have been declared by Federal or state
authorities, (iii) the United States shall have become engaged in
hostilities, there shall have been an escalation in hostilities involving
the United States or there shall have been a declaration of a national
emergency or war by the United States or (iv) there shall have occurred
such a material adverse change in general economic, political or financial
conditions (or the effect of international conditions on the financial
markets in the United States shall be such) as to make it, in the judgment
of the Underwriter,
16
impracticable or inadvisable to proceed with the public offering or
delivery of the Stock on the terms and in the manner contemplated in the
Final Prospectus.
(n) The closing and issuance of the 2,000,000 PIES contemplated by
the underwriting agreement of even date hereof between the Company and the
Underwriter shall have occurred concurrently with or prior to the issuance
of the Stock on the First Delivery Date.
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 Stock), 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 Stock
under the securities laws of any state or other jurisdiction (any such
application, document or information being hereinafter called a "Blue Sky
Application") 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, 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.
17
(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 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
18
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), 8(b) or 8(c) 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), 8(b) or 8(c), as the case may be, in respect of any loss, claim
damage or liability or any action in respect thereof, referred to therein,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof referred
to in Section 8(a), 8(b) or 8(c), 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 Stock or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company 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
Stock 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 shares of the Stock purchased
under this Agreement, on the other hand, bear to the total gross proceeds from
the offering of the shares of the Stock under this Agreement, in each case as
set forth 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 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 Stock 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
19
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 Stock 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 and payment for the Stock if, prior to that time, any of
the events described in Sections 7(k), 7(l) or 7(m) shall have occurred or if
the Underwriter shall decline to purchase the Stock 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.
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 ans 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.
20
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 Stock and shall
remain in full force and effect, regardless of any investigation made by or on
behalf of any of them or any person controlling any of them.
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.
17. CONSENT TO JURISDICTION. Each party irrevocably agrees that any
legal suit, action or proceeding arising out of or based upon this Agreement or
the transactions contemplated hereby may be instituted in the federal courts of
the United States of America located in the City of New York or the courts of
the State of New York in each case located in the Borough of Manhattan in the
City of New York (collectively, the "Specified Courts"), and irrevocably submits
to the exclusive jurisdiction (except for proceedings instituted in regard to
the enforcement of a judgment of any such court, as to which such jurisdiction
is non-exclusive) of such courts in any such suit, action or proceeding. The
parties further agree that service of any process, summons, notice or document
by mail to such party's address as set forth in Section 10 hereof shall be
effective service of process for any lawsuit, action or other proceeding brought
in any such court. The parties hereby irrevocably and unconditionally waive any
objection to the laying of venue of any lawsuit, action or other proceeding in
the Specified Courts, and hereby further irrevocably and unconditionally waive
and agree not to plead or claim in any such court that any such lawsuit, action
or other proceeding brought in any such court has been brought in an
inconvenient forum.
21
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_________________________
Name:
Title:
Accepted:
LEHMAN BROTHERS INC.
By _____________________________
Name:
Title:
22
SCHEDULE 1
LIST OF SUBSIDIARIES
1
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 Stock to be purchased by the Underwriter from
the Company, 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 Stock to be purchased by the Underwriter from
the Company, was issued in violation of any preemptive or other similar rights
of any securityholder of the Company.
(v) The Stock has been duly authorized by the Company and, when issued and
delivered against payment therefor as provided herein, will be duly and validly
issued, fully paid and non-assessable and not subject to the preemptive or other
similar rights of any person; and the Stock conforms to all statements relating
thereto contained in the Final Prospectus and such description conforms to the
rights set forth in the instruments defining the same.
(vi) 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.
(vii) The Registration Statement, 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
2
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.
(viii) The information in the Final Prospectus under the captions
"Description of the Preferred Stock," "Description of Offered Securities" and
"Federal Income Taxes," and in the Registration Statement under "Part II.
Information Not Required in Prospectus--Item 14. Indemnification of Directors
and Officers," to the extent that such information constitutes summaries of
certain terms of documents referred to therein, constitute accurate summaries of
the terms of such documents in all material respects.
(ix) The information in the Final Prospectus under the caption "Federal
Income Taxes," to the extent that such information purports 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.
(x) 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.
(xi) 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.
(xii) 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
for the performance by the Company of its obligations under the Underwriting
Agreement in connection with the offering or sale of the Stock by the Company
under the Underwriting Agreement, for the consummation by the Company of the
transactions contemplated by the Underwriting Agreement.
(xiii) The execution, delivery and performance of the Underwriting
Agreement by the Company, the consummation of the transactions contemplated
thereby, and compliance by the Company with its obligations under the
Underwriting Agreement have been duly authorized by all necessary corporate
action and do not and will not result in any violation of the provisions of the
charter or by-laws of the Company 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 Underwriting Agreement has been duly
authorized, executed and delivered by the Company.
3
(xiv) 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.
(xv) The Company is not, and upon the sale of the Stock 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.
1
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.
2
(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 Stock to be purchased by the Underwriter from
the Company, 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 Stock to be purchased by the Underwriter from
the Company, was issued in violation of any preemptive or other similar rights
of any securityholder of the Company.
(x) The sale of the Stock to the Underwriter by the Company is not subject
to the preemptive or other similar rights of any securityholder of the Company.
The Stock conforms to all statements relating thereto contained in the Final
Prospectus and such description conforms to the rights set forth in the
instruments defining the same.
(xi) There is not pending or, to my knowledge, threatened any action,
suit, proceeding, inquiry or investigation, to which the Company or the Bank or
any of their respective subsidiaries is a party, or to which the property of the
Company or the Bank or any of their respective subsidiaries is subject, before
or brought by any court or governmental agency or body, domestic or foreign,
which might reasonably be expected to result in a Material Adverse Effect, or
which might reasonably be expected to materially and adversely affect the
properties or assets thereof or the consummation of the transactions
contemplated in the Underwriting Agreement 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,
3
manufacturers, customers or contractors, which, in either case, may reasonably
be expected to result in a Material Adverse Effect.
(xvi) The information in the Final Prospectus under the captions
"Description of the Preferred Stock," "Description of Offered Securities" and
"Federal Income Taxes," and in the Registration Statement under "Part II.
Information Not Required in Prospectus--Item 14. Indemnification of Directors
and Officers," to the extent that such information constitutes summaries of
certain terms of documents referred to therein, constitute accurate summaries of
the terms of such documents in all material respects.
(xiii) To the best of my knowledge, there are no statutes or regulations
that are required to be described in the 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 by the Company, and the consummation of the transactions contemplated
thereby and compliance by the Company with its obligations under the
Underwriting Agreement has been duly authorized by all necessary corporate
action and do not and will not, whether with or without the giving of notice or
lapse of time or both, conflict with or constitute a breach of, or default or
Repayment Event (as defined in Section l(k) 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.
4
(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
5
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 for
the performance by the Company of its obligations under the Underwriting
Agreement in connection with the offering or sale of the Stock by the Company
under the Underwriting Agreement or the consummation by the Company of the
transactions contemplated by the Underwriting Agreement.
Nothing has come to my attention that would lead me to believe that the
Registration Statement or any amendment thereto, including the information
included in any prospectus that was omitted from such Registration Statement at
the time it became effective but that is deemed to be part of such Registration
Statement at the time it became effective (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.