EXHIBIT 1
BANKUNITED CAPITAL II
(a Delaware business trust)
1,600,000 Preferred Securities
[ ]% Cumulative Trust Preferred Securities
(Liquidation Amount $25 per Preferred Security)
UNDERWRITING AGREEMENT
May ____, 1997
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc.
▇▇▇▇, ▇▇▇▇ & Co.
c/o Ryan, ▇▇▇▇ & Co
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
BankUnited Capital II (the "Trust"), a statutory business trust
organized under the Business Trust Act (the "Delaware Act") of the State of
Delaware (Chapter 38, Title 12, of the Delaware Business Code, 12 Del. C.
Section 3801 et seq.), and BankUnited Financial Corporation, a Florida
corporation (the "Company") as depositor of the Trust and as guarantor
(hereafter the Trust and the Company are referred to collectively as the
"Offerors"), hereby confirm their agreement (the "Agreement") with ▇▇▇▇▇▇▇ ▇▇▇▇▇
& Associates, Inc. and ▇▇▇▇, ▇▇▇▇ & Co. (collectively, the "Underwriters"), with
respect to the issue and sale by the Trust and the purchase by the Underwriters
in such amounts as are set forth in Schedule A hereto opposite the name of each
such Underwriter, of 1,600,000 (the "Initial Securities") of the Trust's _____%
Cumulative Trust Preferred Securities (the "Preferred Securities"). The Trust
also proposes to issue and sell to the Underwriters, at the Underwriters'
option, up to an additional 240,000 Preferred Securities (the "Option
Securities") as set forth herein. The term "Preferred Securities" as used
herein, unless indicated otherwise, shall mean the Initial Securities and the
Option Securities.
The Preferred Securities and the Common Securities (as defined herein)
are to be issued pursuant to the terms of an Amended and Restated Trust
Agreement dated as of May ___, 1997 (the "Trust Agreement"), among the Company,
as depositor, The Bank of New York ("BONY"), a New York banking corporation, as
property trustee (the "Property Trustee"), The Bank of New York (Delaware), a
Delaware banking corporation, as Delaware trustee (the "Delaware Trustee") and
the Administrative Trustees named therein (the "Administrators," and together
with the
Property Trustee and the Delaware Trustee, the "Trustees") and the
holders from time to time of undivided interests in the assets of the Trust. The
Preferred Securities will be guaranteed by the Company, on a subordinated basis
and subject to certain limitations, with respect to distributions and payments
upon liquidation, redemption or otherwise (the "Guarantee") pursuant to the
Guarantee Agreement dated as of May ____, 1997 (the "Guarantee Agreement"),
between the Company and BONY, as guarantee trustee (the "Guarantee Trustee").
The assets of the Trust will consist of ____% junior subordinated deferrable
interest debentures due ____________, 2027 (the "Junior Subordinated
Debentures") of the Company which will be issued under the Indenture dated as of
____________, 1997 (the "Indenture"), between the Company and BONY, as trustee
(the "Indenture Trustee"). Under certain circumstances, the Junior Subordinated
Debentures will be distributable to the holders of undivided beneficial
interests in the assets of the Trust. The entire proceeds from the sale of the
Preferred Securities will be combined with the entire proceeds from the sale by
the Trust to the Company of the Trust's common securities (the "Common
Securities"), and will be used by the Trust to purchase an equivalent amount of
Junior Subordinated Debentures.
The initial public offering price for the Preferred Securities, the
purchase price to be paid by the Underwriters for the Preferred Securities, the
commission per Preferred Security to be paid by the Company to the Underwriters
and the rate of interest to be paid on the Preferred Securities shall be agreed
upon by the Company and the Underwriters, and such agreement shall be set forth
in a separate written instrument substantially in the form of Exhibit A hereto
(the "Price Determination Agreement"). The Price Determination Agreement may
take the form of an exchange of any standard form of written telecommunication
between the Company and the Underwriters and shall specify such applicable
information as is indicated in Exhibit A hereto. The offering of the Preferred
Securities will be governed by this Agreement, as supplemented by the Price
Determination Agreement. From and after the date of the execution and delivery
of the Price Determination Agreement, this Agreement shall be deemed to
incorporate, and all references herein to "this Agreement" shall be deemed to
include, the Price Determination Agreement.
The Offerors have prepared and filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-2 (File No.
333-_____) covering the registration of the Preferred Securities, the Guarantee
and the Junior Subordinated Debentures under the Securities Act of 1933, as
amended (the "1933 Act"), including the related preliminary prospectus, and, if
such registration statement has not become effective, the Company will prepare
and file, prior to the effective date of such registration statement, an
amendment to such registration statement, including a final prospectus. Each
prospectus used before the time such registration statement becomes effective is
herein called a "preliminary prospectus". Such registration statement, including
the exhibits thereto and the documents incorporated by reference therein
pursuant to Item 12 of Form S-2 under the 1933 Act, at the time it becomes
effective and including documents filed after such effective time under the
Securities Exchange Act of 1934, as amended (the "1934 Act") is herein called
the "Registration Statement," and the prospectus, including the documents
incorporated by reference therein pursuant to Item 12 of Form S-2 under the 1933
Act, included in the Registration Statement at the time it becomes effective is
herein
2
called the "Prospectus" except that, if any revised prospectus provided to the
Underwriters by the Company for use in connection with the offering of the
Preferred Securities differs from the prospectus included in the Registration
Statement at the time it becomes effective (whether or not such prospectus is
required to be filed pursuant to Rule 424(b)), the term "Prospectus" shall refer
to such revised prospectus from and after the time it is first furnished to the
Underwriters for such use.
The Company understands that the Underwriters propose to make a public
offering of the Preferred Securities (the "Offering") as soon as possible after
the Registration Statement becomes effective. The Underwriters may assemble and
manage a selling group of broker-dealers that are members of the National
Association of Securities Dealers, Inc. ("NASD") to participate in the
solicitation of purchase orders for the Preferred Securities under a selected
dealer agreement, the form of which is set forth as Exhibit B to this Agreement.
Section 1. REPRESENTATIONS AND WARRANTIES.
(a) The Offerors jointly and severally represent and warrant
to and agree with each of the Underwriters that:
(i) The Company meets the requirements for use of Form
S-2 under the 1933 Act and when the Registration Statement on such form
shall become effective and at all times subsequent thereto up to the
Closing Time referred to below and with respect to Option Securities,
up to the Option Closing Date referred to below, (A) the Registration
Statement and any amendments and supplements thereto will comply in all
material respects with the requirements of the 1933 Act and the rules
and regulations of the Commission promulgated thereunder (the "1933 Act
Regulations"); (B) neither the Registration Statement nor any amendment
or supplement thereto will contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; and (C)
neither the Prospectus nor any amendment or supplement thereto will
include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading,
except that this representation and warranty does not apply to
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Offerors by the Underwriters
expressly for use in the Registration Statement or the Prospectus, or
any information contained in any Form T-1 which is an exhibit to the
Registration Statement. The statements contained under the caption
"Underwriting" in the Prospectus constitute the only information
furnished to the Offerors in writing by the Underwriters expressly for
use in the Registration Statement or the Prospectus.
(ii) The documents incorporated by reference in the
Prospectus pursuant to Item 12 of Form S-2 under the 1933 Act, at the
time they were filed with the Commission, complied in all material
respects with the requirements of the 1934 Act, and the rules and
regulations of the Commission promulgated thereunder (the "1934 Act
Regulations") and, when read together and with the other information
contained in the
3
Prospectus, at the time the Registration Statement becomes effective
and at all times subsequent thereto up to the Closing Time or the
Option Closing Date, as the case may be, will not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary in order to make the statements
therein not misleading, in each case after excluding any statement that
does not constitute a part of the Registration Statement or the
Prospectus pursuant to Rule 412 of the 1933 Act Regulations.
(iii) Price Waterhouse LLP, who are reporting upon the
audited financial statements included or incorporated by reference in
the Registration Statement, are independent public accountants as
required by the 1933 Act and the 1933 Act Regulations.
(iv) This Agreement has been duly authorized, executed
and delivered by each of the Offerors and, when duly executed by the
Underwriters, will constitute the valid and binding agreement of the
Offerors enforceable against the Offerors in accordance with its terms,
except as enforcement thereof may be limited by bankruptcy, insolvency,
or reorganization, moratorium or other similar laws relating to or
affecting creditors' rights generally or by general equitable
principles. The Guarantee Agreement, the Junior Subordinated
Debentures, the Trust Agreement and the Indenture have each been duly
authorized and when validly executed and delivered by the Company and,
in the case of the Guarantee, by the Guarantee Trustee, in the case of
the Trust Agreement, by the Trustees, and in the case of the Indenture,
by the Indenture Trustee, will constitute valid and legally binding
obligations of the Company enforceable in accordance with their
respective terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency, or reorganization, moratorium or other similar
laws relating to or affecting creditors' rights generally or general
equitable principles; the Junior Subordinated Debentures are entitled
to the benefits of the Indenture; and the Guarantee Agreement, the
Junior Subordinated Debentures, the Trust Agreement and the Indenture
conform to the descriptions thereof in the Prospectus. The Trust
Agreement, the Guarantee Agreement, and the Indenture have been duly
qualified under the Trust Indenture Act.
(v) The consolidated financial statements, audited and
unaudited (including the Notes thereto), of the Company and its
subsidiaries included or incorporated by reference in the Registration
Statement present fairly the consolidated financial position of the
Company and its subsidiaries as of the dates indicated and the
consolidated results of operations and cash flows of the Company and
its subsidiaries for the periods specified. The financial statements,
audited and unaudited (including the Notes thereto), of Suncoast
Savings and Loan Association, FSA ("Suncoast") included or incorporated
by reference in the Registration Statement present fairly the financial
position of Suncoast as of the dates indicated and the results of
operations and cash flows of Suncoast for the periods specified. All of
such financial statements have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis
throughout the periods involved, except as otherwise stated therein.
The financial
4
statement schedules, if any, included in the Registration Statement
present fairly the information required to be stated therein. The
selected financial, pro forma and statistical data included in the
Prospectus are accurate in all material respects and present fairly the
information shown therein and have been compiled on a basis consistent
with that of the audited consolidated financial statements included or
incorporated by reference in the Registration Statement.
(vi) The Company is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Florida with the requisite corporate power and authority under such
laws to own, lease and operate its properties and conduct its business
as described in the Prospectus. The Company is duly qualified to
transact business as a foreign corporation and is in good standing in
each other jurisdiction in which it owns or leases property of a
nature, or transacts business of a type, that would make such
qualification necessary, except to the extent that the failure to so
qualify or be in good standing would not have a material adverse effect
on the condition, financial or otherwise, or earnings, business
affairs, assets or business prospects of the Company and its
subsidiaries, considered as one enterprise.
(vii) The Company is duly registered under the Bank
Holding Company Act of 1956, as amended; each subsidiary of the Company
that conducts business as a savings bank is duly authorized to conduct
such business in each jurisdiction in which such business is currently
conducted, except to the extent that the failure to be so authorized
would not have a material adverse effect on the Company and its
subsidiaries, considered as one enterprise; and the deposit accounts of
BankUnited, FSB (the "Bank") are insured by the Savings Association
Insurance Fund of the Federal Deposit Insurance Corporation ("FDIC"),
up to the maximum allowable limits thereof. The Offerors have all such
power, authority, authorization, approvals and orders as may be
required to enter into this Agreement, to carry out the provisions and
conditions hereof and to issue and sell the Preferred Securities.
(viii) The Bank is a federally chartered stock savings
bank duly organized and validly existing under the laws of the United
States with the requisite corporate power and authority under such laws
to own, lease and operate its properties and conduct its business; the
Bank is duly qualified to transact business as a foreign corporation
and is in good standing in each other jurisdiction in which it owns or
leases property of a nature, or transacts business of a type, that
would make such qualification necessary, except to the extent that the
failure to so qualify or be in good standing would not have a material
adverse effect on the Bank and its subsidiaries, if any, considered as
one enterprise. All of the outstanding shares of capital stock of the
Bank have been duly authorized and validly issued and are fully paid
and non-assessable and are owned by the Company, free and clear of any
pledge, lien, security interest, charge, claim, equity or encumbrance
of any kind.
5
(ix) Except for the Bank, the only other significant
subsidiaries of the Company are the Trust and BankUnited Capital, a
Delaware trust.
(x) The Company had at the date indicated a duly
authorized and outstanding capitalization as set forth in the
Prospectus under the caption "Capitalization"; the capital stock of the
Company and the Preferred Securities conform in all material respects
to the description thereof contained or incorporated by reference in
the Prospectus and such description conforms to the rights set forth in
the instruments defining the same. Subsequent to such date, the Company
has not issued and, other than under the Company's existing option
plans, is not obligated to issue, any other shares of capital stock;
without limiting the generality of the foregoing and except for options
to purchase ________ shares of Common Stock granted pursuant to the
Company's ___________________ and except for options to purchase in the
aggregate ________ shares of Common Stock granted pursuant to the
Company's other option plans there are no options, warrants, calls,
employee benefit or other plans, preemptive rights or commitments of
any character relating to the authorized but unissued capital stock or
any other equity security of the Company or the Bank, except as
disclosed in Note ____ to the consolidated financial statements in the
Prospectus.
(xi) The Preferred Securities have been duly and validly
authorized by the Trust for issuance and sale to the Underwriters
pursuant to this Agreement and, when executed and authenticated in
accordance with the terms of the Trust Agreement and delivered by the
Trust to the Underwriters pursuant to this Agreement against payment of
the consideration set forth herein, will be validly issued and fully
paid and non-assessable. The Trust Agreement has been duly authorized
and, when executed by the proper officers of the Trust and delivered by
the Trust, will have been duly executed and delivered by the Trust and
will constitute the valid and legally binding instrument of the Trust,
enforceable in accordance with its terms, except as enforcement thereof
may be limited by bankruptcy, insolvency or other laws relating to or
affecting enforcement of creditors' rights generally or by general
principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law). The Preferred Securities conform to
the statements relating thereto contained in the Prospectus and such
description conforms to the rights set forth in the instruments
defining the same; the holders of the Preferred Securities (the
"Securityholders") will be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of Delaware;
and the issuance of the Preferred Securities is not subject to the
preemptive or other similar rights of any securityholder of the
Company.
(xii) The Common Securities have been duly and validly
authorized by the Trust and upon delivery by the Trust to the Company
against payment therefor as described in the Prospectus, will be duly
and validly issued and fully paid and non-assessable undivided
beneficial interests in the assets of the Trust and will conform to the
description thereof contained in the Prospectus; the issuance of the
Common Securities is not subject to preemptive or other similar rights;
and at the Closing Time and
6
the Option Closing Date, as the case may be, all of the issued and
outstanding Common Securities of the Trust will be directly owned by
the Company free and clear of any security interest, mortgage, pledge,
lien, encumbrance, claim or equity.
(xiii) The Trust has been duly created and is validly
existing as a statutory business trust in good standing under the
Delaware Act with the power and authority to own, lease and operate its
properties and conduct its business as described in the Prospectus, and
the Trust has conducted no business to date, and it will conduct no
business in the future that would be inconsistent with the description
of the Trust set forth in the Prospectus; the Trust is not a party to
or bound by any agreement or instrument other than this Agreement, the
Trust Agreement and the agreements and instruments contemplated by the
Trust Agreement or described in the Prospectus; the Trust has no
liabilities or obligations other than those arising out of the
transactions contemplated by this Agreement and the Trust Agreement and
described in the Prospectus; and the Trust is not a party to or subject
to any action, suit or proceeding of any nature.
(xiv) The issuance and sale of the Preferred Securities
and the Common Securities by the Trust, the compliance by the Trust
with all of the provisions of this Agreement, the purchase of the
Junior Subordinated Debentures by the Trust, and the consummation of
the transactions herein and therein contemplated will not conflict with
or result in a breach of any of the terms or provisions of, or
constitute a default under, any indenture, loan agreement, mortgage,
deed of trust or other agreement or instrument to which the Trust is a
party or by which the Trust is bound or to which any of the property or
assets of the Trust is subject, nor will such action result in any
violation of the provisions of the Trust Agreement or any statute or
any order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Trust or any of its properties; and
no consent, approval, authorization, order, license, certificate,
permit, registration or qualification of or with any such court or
other governmental agency or body is required to be obtained by the
Trust for the issuance and sale of the Preferred Securities and the
Common Securities by the Trust, the purchase of the Junior Subordinated
Debentures by the Trust or the consummation by the Trust of the
transactions contemplated by this Agreement and the Trust Agreement,
except for such consents, approvals, authorizations, licenses,
certificates, permits, registrations or qualifications as have already
been obtained, or as may be required under the 1933 Act or the 1933 Act
Regulations, 1934 Act or 1934 Act Regulations, state securities laws or
under the Trust Indenture Act of 1939, as amended (the "TIA").
The issuance by the Company of the Guarantee and the Junior
Subordinated Debentures, the compliance by the Company with all of the
provisions of this Agreement, the execution, delivery and performance
by the Company of the Trust Agreement, the Junior Subordinated
Debentures, the Guarantee Agreement and the Indenture, and the
consummation of the transactions herein and therein contemplated will
not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any indenture,
loan agreement, mortgage, deed of trust, or other material
7
agreement or instrument to which the Company is a party or by which the
Company is bound or to which any of the property or assets of the
Company is subject, nor will such action result in any violation of the
provisions of the Articles of Incorporation or by-laws of the Company
or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any
of its properties; and no consent, approval, authorization, order,
license, certificate, permit, registration or qualification of or with
any such court or other governmental agency or body is required for the
issuance of the Guarantee and the Junior Subordinated Debentures or the
consummation by the Company of the other transactions contemplated by
this Agreement, except for such consents, approvals, authorizations,
licenses, certificates, permits, registrations or qualifications as
have already been obtained, or as may be required under the 1933 Act or
the 1933 Act Regulations, 1934 Act or 1934 Act Regulations, state
securities laws or under the TIA.
(xv) The Trust is not, and after giving effect to the
offering and sale of the Preferred Securities will not be, an
"investment company," or an entity "controlled" by an "investment
company," as such terms are defined in the Investment Company Act of
1940, as amended (the "Investment Company Act").
(xvi) All of the outstanding shares of capital stock
of 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 were issued in violation of the preemptive rights of any
shareholder of the Company or, except as disclosed in writing to the
Underwriters, was offered or sold in violation of the 1933 Act.
(xvii) Since the respective dates as of which
information is given or incorporated by reference in the Registration
Statement and the Prospectus, except as otherwise stated therein, there
has not been (A) any material adverse change in the condition
(financial or otherwise), earnings, business affairs, assets or
business prospects of the Company and its subsidiaries, considered as
one enterprise, whether or not arising in the ordinary course of
business, (B) any transaction entered into by the Company or any
subsidiary, other than in the ordinary course of business, that is
material to the Company and its subsidiaries, considered as one
enterprise, or (C) any dividend or distribution of any kind declared,
paid or made by the Company on its capital stock, excluding regular
dividends paid on the Company's (i) 8% Noncumulative Convertible
Preferred Stock, Series 1996, (ii) 8% Noncumulative Convertible
Preferred Stock, Series 1993 and (iii) 9% Cumulative Perpetual
Preferred Stock. Neither the Company nor the Bank has any material
liability of any nature, contingent or otherwise, except as set forth
in the Prospectus.
(xviii) Neither the Company nor the Bank is in violation
of any provision 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, loan
agreement, note, lease or other agreement or instrument to which it is
a
8
party or by which it may be bound or to which any of its properties may
be subject, except for such defaults that would not have a material
adverse effect on the condition (financial or otherwise), earnings,
business affairs, assets or business prospects of the Company and its
subsidiaries, considered as one enterprise.
(xix) Except as disclosed in the Prospectus, there is
no action, suit or proceeding before or by any government, governmental
instrumentality or court, domestic or foreign, now pending or, to the
knowledge of the Company, threatened against the Company or the Bank
that is required to be disclosed in the Prospectus or that could
reasonably be expected to result in any material adverse change in the
condition (financial or otherwise), earnings, business affairs, assets
or business prospects of the Company and its subsidiaries, considered
as one enterprise, or that could reasonably be expected to materially
and adversely affect the properties or assets of the Company and its
subsidiaries, considered as one enterprise, or that could reasonably be
expected to materially and adversely affect the consummation of the
transactions contemplated in this Agreement; all pending legal or
governmental proceedings to which the Company or the Bank is a party
that are not described in the Prospectus or incorporated by reference
therein, including ordinary routine litigation incidental to its
business, if decided in a manner adverse to the Company, would not have
a material adverse effect on the condition (financial or otherwise),
earnings, business affairs or business prospects of the Company and its
subsidiaries, considered as one enterprise.
(xx) There are no material contracts or documents of a
character required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement
that are not described and filed as required.
(xxi) The Company and the Bank each has good and
marketable title to all its respective properties and assets described
in the Prospectus or any document incorporated by reference therein as
owned by it, free and clear of all liens, charges, encumbrances or
restrictions, except such as (A) are described in the Prospectus or in
any document incorporated by reference therein or (B) are neither
material in amount nor materially significant in relation to the
business of the Company and its subsidiaries, considered as one
enterprise; 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 the Bank holds properties described in the
Prospectus or in any document incorporated by reference therein, are in
full force and effect, and neither the Company nor the Bank has any
notice of any material claim that has been asserted by anyone adverse
to the rights of the Company or the Bank under any of the leases or
subleases mentioned above, or affecting or questioning the rights of
such corporation to the continued possession of the leased or subleased
premises under any such lease or sublease.
(xxii) Each of the Company and the Bank owns, possesses
or has obtained all material governmental licenses, permits,
certificates, consents, orders, approvals and other authorizations
necessary to own or lease, as the case may be, and to
9
operate its properties and to carry on its business as presently
conducted, and neither the Company nor the Bank has received any notice
of any restriction upon, or any notice of proceedings relating to
revocation or modification of, any such licenses, permits,
certificates, consents, orders, approvals or authorizations.
(xxiii) Except as disclosed in the Prospectus, no labor
problem exists with the employees of the Company or with the employees
of the Bank or any subsidiary of the Company or to the best knowledge
of the Company, is imminent that could materially adversely affect the
Company and its subsidiaries, considered as one enterprise, and the
Company is not aware of any existing or imminent labor disturbance by
the employees of any of its, the Bank's or any subsidiary's principal
suppliers, contractors or customers that could reasonably be expected
to materially adversely affect the condition (financial or otherwise),
earnings, business affairs or business prospects of the Company and its
subsidiaries, considered as one enterprise.
(xxiv) There are no persons with registration or other
similar rights to have any securities of the Company registered
pursuant to the Registration Statement or otherwise registered by the
Company under the 1933 Act.
(xxv) Except as disclosed in the Prospectus, the
Company, the Bank and each of the subsidiaries of the Company own or
possess all patents, patent rights, licenses, inventions, copyrights,
know-how (including trade secrets or other unpatented and/or
unpatentable proprietary or confidential information systems or
procedures), trademarks, servicemarks and tradenames (collectively,
"patent and proprietary rights") currently employed by them in
connection with the business now operated by them except where the
failure to so own, possess or acquire such patent and proprietary
rights would not have a material adverse effect on the condition,
financial or otherwise, or the earnings, business affairs, assets or
business prospects of the Company and its subsidiaries considered as
one enterprise, and neither the Company, the Bank nor any subsidiary of
the Company has received any notice or is otherwise aware of any
infringement of or conflict with asserted rights of others with respect
to any patent or proprietary rights, and which infringement or conflict
(if the subject of any unfavorable decision, rule and refinement,
singly or in the aggregate) could reasonably be expected to result in
any material adverse change in the condition, financial or otherwise,
or in the earnings, business affairs, assets or business prospects of
the Company and its subsidiaries considered as one enterprise.
(xxvi) The Company and each subsidiary of the Company
have filed all Federal, state and local income, franchise or other tax
returns required to be filed and have made timely payments of all taxes
due and payable in respect of such returns and no material deficiency
has been asserted with respect thereto by any taxing authority.
(xxvii) The Company has filed with the NASD all
documents and notices required by the NASD of companies that have
issued securities that are traded in the over-the-counter market and
quotations for which are reported by the National Market of The Nasdaq
Stock Market, Inc. ("Nasdaq Stock Market").
10
(xxviii) Neither the Trust nor the Company or any
subsidiary of the Company has taken or will take, directly or
indirectly, any action designed to cause or result in, or which has
constituted or which might reasonably be expected to constitute, the
stabilization or manipulation, under the Exchange Act or otherwise, of
the price of the Preferred Securities.
(xxix) Neither the Company, the Bank nor any
subsidiary of the Company is or has been (by virtue of any action,
omission to act, contract to which it is a party or by which it is
bound, or any occurrence or state of facts whatsoever) in violation of
any applicable Federal, state, municipal, or local statutes, laws,
ordinances, rules, regulations and/or orders issued pursuant to
foreign, federal, state, municipal, or local statutes, laws,
ordinances, rules, or regulations (including those relating to any
aspect of banking, bank holding companies, environmental protection,
occupational safety and health, and equal employment practices)
heretofore or currently in effect, except such violation that has been
fully cured or satisfied without recourse or that is not reasonably
likely to have a material adverse effect.
(xxx) The Company and the Bank have no agreement or
understanding with any entity concerning the future acquisition by the
Company or the Bank of a controlling interest in any entity that is
required by the 1933 Act or the 1933 Act Regulations to be disclosed by
the Company that is not disclosed in the Prospectus; the Company and
the Bank have no agreement or understanding with any entity concerning
the future acquisition of a controlling interest in the Company or the
Bank by any entity that is required by the 1933 Act or the 1933 Act
Regulations to be disclosed by the Company that is not disclosed in the
Prospectus.
(b) Any certificate signed by any authorized officer of the
Company or the Bank and delivered to the Underwriters or to counsel for the
Underwriters pursuant to this Agreement shall be deemed a representation and
warranty by the Company to the Underwriters as to the matters covered thereby.
Section 2. SALE AND DELIVERY TO THE UNDERWRITERS; CLOSING
(a) On the basis of the representations and warranties herein
contained, and subject to the terms and conditions herein set forth, the Trust
agrees to sell to the Underwriters, and the Underwriters agree to purchase from
the Trust 1,600,000 Initial Securities at the purchase price and terms set forth
herein and in the Price Determination Agreement.
In addition, on the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Trust
hereby grants an option to the Underwriters to purchase up to an additional
240,000 Option Securities in accordance with the terms set forth herein and in
the Price Determination Agreement. The option hereby granted will expire at 5:00
p.m. on the 30th day after the date the Registration Statement is declared
effective by the Commission (or at 5:00 p.m. on the next business day if such
30th day is not a business day) and may be exercised, on one occasion only,
solely for the purpose of covering over-allotments which
11
may be made in connection with the offering and distribution of the Initial
Securities upon notice by you to the Company setting forth the number of Option
Securities as to which the Underwriters are exercising the option and the time,
date and place of payment and delivery for the Option Securities. Such time and
date of delivery (the "Option Closing Date") shall be determined by the
Underwriters but shall not be later than five full business days after the
exercise of said option, nor in any event prior to Closing Time, as hereinafter
defined, nor earlier than the second business day after the date on which the
notice of the exercise of the option shall have been given.
(b) Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of [▇▇▇▇,
▇▇▇▇ & Co.], or at such other place as shall be agreed upon by the Company and
the Underwriters, at 10:00 a.m. on the third full business day after the
effective date of the Registration Statement, or at such other time not more
than seven full business days thereafter as you and the Company shall determine
(such date and time of payment and delivery being herein called the "Closing
Time"). In addition, in the event that any or all of the Option Securities are
purchased by the Underwriters, payment of the purchase price for, and delivery
of certificates for, such Option Securities shall be made at the above-mentioned
office of [▇▇▇▇, ▇▇▇▇ & Co.], or at such other place as shall be agreed upon by
the Company and the Underwriters, on the Option Closing Date as specified in the
notice from the Underwriters to the Company. Payment for the Initial Securities
and the Option Securities, if any, shall be made to the Company by wire transfer
of immediately available funds, against delivery to the Underwriters for the
account of the Underwriters of Preferred Securities to be purchased by them. The
purchase price may be paid by a single wire transfer from the Underwriters from
which the Underwriters deduct the Commissions and fees owed to the Underwriters,
which shall be deemed to be the equivalent of simultaneous wire transfers from
the various parties due hereunder.
(c) The Initial Securities shall be issued in the form of one or
more fully registered global securities (the "Global Securities") in book-entry
form in such denominations and registered in the name of the nominee of The
Depository Trust Company (the "DTC") or in such names as the Underwriters may
request in writing at least two business days before the Closing Time or the
Option Closing Date, as the case may be. The Global Securities representing the
Initial Securities or the Option Securities to be purchased will be made
available in [New York City] for examination by the Underwriters and counsel to
the Underwriters not later than 10:00 a.m. on the business day prior to the
Closing Time or the Option Closing Date, as the case may be.
Section 3. CERTAIN COVENANTS OF THE OFFERORS. Each of the Offerors
covenants jointly and severally with the Underwriters as follows:
(a) The Offerors will use their best efforts to cause the
Registration Statement to become effective and will notify the Underwriters
immediately, and confirm the notice in writing, (i) when the Registration
Statement, or any post-effective amendment to the Registration Statement, shall
have become effective, or any supplement to the Prospectus or any amended
Prospectus shall have been filed, (ii) of the receipt of any comments from the
Commission or
12
notice from the Commission that it will not review the Registration Statement
(iii) of any request of the Commission to amend the Registration Statement or
amend or supplement the Prospectus or for additional information and (iv) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or of any order preventing or suspending the use of any
preliminary prospectus, or of the suspension of the qualification of the
Preferred Securities or capital stock, for offering or sale in any jurisdiction,
or of the institution or threatening of any proceedings for any of such
purposes. The Offerors will use every reasonable effort to prevent the issuance
of any such stop order or of any order preventing or suspending such use and, if
any such order is issued, to obtain the lifting thereof at the earliest possible
moment.
(b) The Offerors will not at any time file or make any amendment
to the Registration Statement, or any amendment or supplement if the Offerors
have elected to rely upon Rule 430A, to the Prospectus (including documents
incorporated by reference into such prospectus or to the Prospectus) of which
the Underwriters shall not have previously been advised and have previously been
furnished a copy, or to which the Underwriters or counsel for the Underwriters
shall reasonably object.
(c) The Offerors have furnished or will furnish to the
Underwriters as many signed and conformed copies of the Registration Statement
as originally filed and of each amendment thereto, whether filed before or after
the Registration Statement becomes effective, copies of all exhibits and
documents filed therewith (including documents incorporated by reference into
the Prospectus pursuant to Item 12 of Form S-2 under the ▇▇▇▇ ▇▇▇) and signed
copies of all consents and certificates of experts as the Underwriters may
reasonably request.
(d) The Offerors will deliver or cause to be delivered to the
Underwriters, without charge, from time to time until the effective date of the
Registration Statement, as many copies of each preliminary prospectus as the
Underwriters may reasonably request, and the Offerors hereby consent to the use
of such copies for purposes permitted by the 1933 Act. The Offerors will deliver
or cause to be delivered to the Underwriters, without charge, as soon as the
Registration Statement shall have become effective (or, if the Offerors have
elected to rely upon Rule 430A, as soon as practicable after the Price
Determination Agreement has been executed and delivered) and thereafter from
time to time as requested during the period when the Prospectus is required to
be delivered under the 1933 Act, such number of copies of the Prospectus (as
supplemented or amended) as the Underwriters may reasonably request.
(e) The Company will comply with the 1933 Act and the 1933 Act
Regulations, and the 1934 Act and the 1934 Act Regulations, so as to permit the
completion of the distribution of the Preferred Securities as contemplated in
this Agreement and in the Prospectus. If, at any time when a Prospectus is
required by the 1933 Act to be delivered in connection with sales of the
Preferred Securities, any event shall occur or condition exist as a result of
which it is necessary, in the reasonable opinion of counsel for the Underwriters
or counsel for the Offerors, to amend the Registration Statement or amend or
supplement the Prospectus in order that the Prospectus will not include an
untrue statement of a material fact or
13
omit to state a material fact necessary in order to make the statements therein
not misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in the reasonable opinion
of either such counsel, at any such time to amend the Registration Statement or
amend or supplement the Prospectus in order to comply with the requirements of
the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and
file with the Commission, subject to Section 3(b), such amendment or supplement
as may be necessary to correct such untrue statement or omission or to make the
Registration Statement or the Prospectus comply with such requirements.
(f) The Offerors will use their best efforts, in cooperation with
the Underwriters, to qualify the Preferred Securities and the Junior
Subordinated Debentures, for offering and sale under the applicable securities
laws of such states and other jurisdictions as the Underwriters may designate
and to maintain such qualifications in effect for a period of not less than one
year from the effective date of the Registration Statement; PROVIDED HOWEVER,
that the Company shall not be obligated to file any general consent to service
of process or to qualify as a foreign corporation or as a dealer in securities
in any jurisdiction in which it is not so qualified or to subject itself to
taxation in respect of doing business in any jurisdiction in which it is not
otherwise so subject. The Company will file such statements and reports as may
be required by the laws of each jurisdiction in which the Preferred Securities
have been qualified as above provided.
(g) The Company will make generally available (within the meaning
of Rule 158 of the 1933 Act Regulations) to its securityholders, the
Underwriters and the Securityholders as soon as practicable, but not later than
90 days after the close of the period covered thereby, an earnings statement of
the Company and its subsidiaries (in form complying with the provisions of Rule
158 of the 1933 Act Regulations) covering a period of at least 12 months
beginning after the effective date of the Registration Statement but not later
than the first day of the Company's fiscal quarter next following such effective
date.
(h) The Trust shall apply the proceeds from its sale of the
Preferred Securities, combined with the entire proceeds from the issuance by the
Trust to the Company of the Trust's Common Securities, to purchase an equivalent
amount of Junior Subordinated Debentures. The Company and the Bank will use the
net proceeds received by them from the sale of the Junior Subordinated
Debentures in the manner specified in the Prospectus under the caption "Use of
Proceeds".
(i) The Offerors, during the period when the Prospectus is
required to be delivered under the 1933 Act, will file promptly all documents
required to be filed with the Commission pursuant to Section 13 or 14 of the
1934 Act subsequent to the time the Registration Statement becomes effective.
(j) For a period of five years after the Closing Time, the Company
will furnish to the Underwriters, copies of all annual reports, quarterly
reports and current reports filed with the Commission on Forms 10-K, 10-Q and
8-K, or such other similar forms as may be designated
14
by the Commission, and such other documents, reports, Proxy Statements, and
information as shall be furnished by the Company to its shareholders generally.
(k) The Offerors will file with the Nasdaq Stock Market all
documents and notices required by the Nasdaq Stock Market of companies that have
issued securities that are traded in the over-the-counter market and quotations
for which are reported by the Nasdaq Stock Market.
(l) The Company shall pay for the legal fees and related filing
fees of counsel to the Underwriters to prepare one or more "blue sky" surveys
(each, a "Blue Sky Survey") for use in connection with the offering of the
Preferred Securities as contemplated by the Prospectus and a copy of such Blue
Sky Survey or surveys shall be delivered to each of the Company and the
Underwriters.
(m) If, at the time the Registration Statement becomes effective,
any information shall have been omitted therefrom in reliance upon Rule 430A of
the 1933 Act Regulations, then the Offerors will prepare, and file or transmit
for filing with the Commission in accordance with such Rule 430A and Rule
424(b), copies of an amended Prospectus, or, if required by such Rule 430A, a
post-effective amendment to the Registration Statement (including an amended
Prospectus), containing all information so omitted.
(n) The Company will, at its expense, subsequent to the issuance
of the Preferred Securities, prepare and distribute to each of the Underwriters
and counsel to the Underwriters, a hard-bound copy of the documents used in
connection with the issuance of the Preferred Securities.
(o) The Offerors will not, prior to the Option Closing Date or
thirty (30) days after the date of this Agreement, whichever occurs first, incur
any material liability or obligation, direct or contingent, or enter into any
material transaction, other than in the ordinary course of business, or any
transaction with a related party which is required to be disclosed in the
Prospectus pursuant to Item 404 of Regulation S-K promulagated under the 1933
Act, except as contemplated by the Prospectus.
(p) During a period of forty-five days from the date of the
Prospectus, neither the Trust nor the Company will, without the prior written
consent of the Underwriters, directly or indirectly, offer, sell, offer to sell,
or otherwise dispose of any Preferred Securities, any other beneficial interests
in the assets of the Trust, or any preferred securities or other securities of
the Trust or the Company which are substantially similar to the Preferred
Securities, including any guarantee of such securities. The foregoing sentence
shall not apply to any of the Preferred Securities to be sold hereunder.
Section 4. PAYMENT OF EXPENSES.
(a) The Company will pay and bear all costs and expenses incident
to the performance of its and the Trust's obligations under this Agreement,
including (a) the preparation,
15
printing and filing of the Registration Statement (including financial
statements and exhibits), as originally filed and as amended, the preliminary
prospectuses and the Prospectus and any amendments or supplements thereto, and
the cost of furnishing copies thereof to the Underwriters, (b) the preparation,
printing and distribution of this Agreement, the Preferred Securities and the
Blue Sky Survey, (c) the issuance and delivery of the Preferred Securities to
the Underwriters, including any transfer taxes payable upon the sale of the
Preferred Securities to the Underwriters, (d) the fees and disbursements of the
Company's counsel and accountants, (e) NASD filing fees, (f) fees and
disbursements of the Underwriters' counsel in connection with the Blue Sky
Survey, (g) the qualification of the Preferred Securities under the applicable
securities laws in accordance with Section 3(f) and any filing fee for review of
the offering with the NASD, (h) the legal fees and expenses of the Underwriters'
counsel (such counsel's fees shall not exceed $65,000 (exclusive of
out-of-pocket expenses of counsel) and general out-of-pocket expenses of the
Underwriters not to exceed $______, (i) the fees and expenses of the Indenture
Trustee, including the fees and disbursements of counsel for the Indenture
Trustee, in connection with the Indenture and the Junior Subordinated
Debentures; (j) the fees and expenses of the Property Trustee and Delaware
Trustee, including the fees and disbursements of counsel for the Property
Trustee and the Delaware Trustee, in connection with the Trust Agreement and the
Certificate of Trust, and (k) all other costs incident to the performance of the
Offerors' obligations hereunder.
If (i) the Closing Time does not occur on or before December 31, 1997,
(ii) the Company abandons or terminates the offering, or (iii) this Agreement is
terminated by the Underwriters in accordance with the provisions of Section 5 or
9(a) hereof, the Company shall reimburse the Underwriters for all their
reasonable out-of-pocket expenses, as set forth in this Section 4, including the
reasonable fees and disbursements of counsel for the Underwriters.
Section 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations of
the Underwriters to purchase and pay for the Preferred Securities that they have
respectively agreed to purchase pursuant to this Agreement are subject to the
accuracy of the representations and warranties of the Offerors contained herein
or in certificates of the officers or trustees of the Offerors or any subsidiary
delivered pursuant to the provisions hereof, to the performance by the Offerors
of their obligations hereunder and to the following further conditions:
(a) The Registration Statement shall have become effective not
later than 5:30 P.M. on the date of this Agreement or, with your consent, at a
later time and date not later, however, than 5:30 P.M. on the first business day
following the date hereof, or at such later time or on such later date as you
may agree to in writing; at the Closing Time no stop order suspending the
effectiveness of the Registration Statement shall have been issued under the
1933 Act and no proceedings for that purpose shall have been instituted or shall
be pending or, to the Underwriters' knowledge or the knowledge of the Offerors
shall be contemplated by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to the
satisfaction of counsel for the Underwriters. If the Offerors have elected to
rely upon Rule 430A, a prospectus containing the Rule 430A Information shall
have been filed with the Commission in accordance with Rule 424(b) (or a
post-effective amendment
16
providing such information shall have been filed and declared effective in
accordance with the requirements of Rule 430A).
(b) At the Closing Time, the Underwriters shall have received:
(i) The favorable opinion, dated as of Closing Time, of
Stuzin and Camner, P.A., counsel for the Company, in form and substance
reasonably satisfactory to counsel for the Underwriters, substantially
in the form set forth in Exhibit C.
(ii) The favorable opinion, dated as of Closing Time, of
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, special Delaware counsel for the Offerors,
in form and substance satisfactory to counsel for the Underwriters,
substantially in the form set forth in Exhibit D.
(iii) The favorable opinion, dated as of Closing Time, of
Greenberg, Traurig, Hoffman, Lipoff, ▇▇▇▇▇ & Quentel, P.A., counsel for
the Underwriters, in form and substance satisfactory to the
Underwriters.
(iv) The favorable opinion, dated as of Closing Time, of
Kronish, Lieb, Weiner & ▇▇▇▇▇▇▇ LLP, special tax counsel for the
Offerors, in form and substance satisfactory to the Underwriters.
In giving such opinion, such counsel may rely, as to all matters
governed by the laws of jurisdictions other than the federal law of the United
States, upon opinions of other counsel, who shall be counsel satisfactory to
counsel for the Underwriters (the Underwriters agree and acknowledge that Stuzin
and Camner, P.A. and Greenberg, Traurig, Hoffman, Lipoff, ▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.A.
will rely on the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger with respect to matters of
Delaware law), in which case the opinion shall state that counsel believes that
you and your counsel are entitled to so rely. Such counsel may also state that,
insofar as such opinion involves factual matters, they have relied, to the
extent they deem proper, upon certificates of officers of the Company, the Bank
and the Trust and certificates of public officials.
(c) At the Closing Time and again at the Option Closing Date, (i)
the Registration Statement and the Prospectus, as they may then be amended or
supplemented, shall contain all statements that are required to be stated
therein under the 1933 Act and the 1933 Act Regulations and in all material
respects shall conform to the requirements of the 1933 Act and the 1933 Act
Regulations, the Offerors shall have complied in all material respects with Rule
430A (if they shall have elected to rely thereon) and neither the Registration
Statement nor the Prospectus, as they may then be amended or supplemented, shall
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading, (ii) there shall not have been, since the respective dates as of
which information is given in the Registration Statement, any material adverse
change in the condition (financial or otherwise), earnings, business affairs,
assets or business prospects of the Company and its subsidiaries, considered as
one enterprise, whether or not arising in the ordinary course of business, (iii)
no action, suit or proceeding at law or in equity shall be pending or, to the
knowledge of the Offerors, threatened against the Company or any subsidiary or
the Trust that would be required to be set forth in the Prospectus other than as
set forth therein and no proceedings shall be pending or, to the
17
knowledge of the Offerors, threatened against the Offerors or any subsidiary
before or by any federal, state or other commission, board or administrative
agency wherein an unfavorable decision, ruling or finding could reasonably be
expected to materially and adversely affect the condition (financial or
otherwise), earnings, business affairs, assets or business prospects of the
Company and its subsidiaries, considered as one enterprise, other than as set
forth in the Prospectus, (iv) each of the Offerors shall have complied with all
agreements and satisfied all conditions on its part to be performed or satisfied
at or prior to the Closing Time, (v) the other representations and warranties of
the Offerors set forth in Section l(a) shall be accurate in all material
respects as though expressly made at and as of the Closing Time, and (vi) no
stop order suspending the effectiveness of the Registration Statement shall have
been issued and no proceeding for that purpose been initiated or to the best
knowledge of the Offerors threatened by the Commission. At the Closing Time, the
Underwriters shall have received a certificate of the Chairman or the President,
and the Chief Financial Officer or Controller, of the Company, dated as of the
Closing Time, to such effect.
(d) At the time that this Agreement is executed by the Company,
you shall have received from Price Waterhouse LLP a letter or letters, dated
such date, in form and substance satisfactory to you, confirming that they are
independent certified public accountants with respect to the Company (and
Suncoast, as applicable) within the meaning of the 1933 Act and the published
1933 Act Regulations, and stating in effect that:
With respect to the Company:
(i) in their opinion, the consolidated financial statements
as of September 30, 1996 and 1995, and for each of the years in the
three year period ended September 30, 1996 and the related financial
statement schedules, if any, included or incorporated by reference in
the Registration Statement and the Prospectus and covered by their
opinions included therein comply as to form in all material respects
with the applicable accounting requirements of the 1933 Act and the
published 1933 Act Regulations;
(ii) on the basis of a reading of the minutes of all meetings
of the shareholders of the Company and the Bank, of the Board of
Directors of the Company and the Bank and of the Audit and Executive
Committees of the Board of Directors of the Bank since September 30,
1996, inquiries of certain officials of the Company and its
subsidiaries responsible for financial and accounting matters, and such
other inquiries and procedures as may be specified in such letter,
nothing came to their attention that caused them to believe that:
(A) at a specified date not more than three days prior
to the date of this Agreement, there was any increase in notes or
subordinated debentures payable, real estate owned, or allowance
for loan losses of the Company and its consolidated subsidiaries
or any decrease in total assets, total deposits or
18
stockholders' equity of the Company and its consolidated
subsidiaries or any increase in the number of outstanding shares
of capital stock of the Company and its consolidated subsidiaries,
in each case as compared with amounts shown in the financial
statements at September 30, 1996 included in the Registration
Statement; or
(B) for the period from March 31, 1997 to a specified
date not more than three days prior to the date of this Agreement,
there was any decrease in consolidated net interest income,
non-interest income or net income or the total or fully diluted
per share amounts of net income or any increase in the
consolidated provision for loan losses or non-interest expense, in
each case as compared with the comparable period in the preceding
year.
(iii) in addition to the procedures referred to in clause
(ii) above, they have performed other specified procedures, not
constituting an audit, with respect to certain amounts, percentages,
numerical data and financial information appearing in the Registration
Statement (including the Selected Consolidated Financial Data) (having
compared such items with, and have found such items to be in agreement
with, the financial statements of the Company or general accounting
records of the Company, as applicable, which are subject to the
Company's internal accounting controls or other data and schedules
prepared by the Company from such records).
(iv) on the basis of a review of schedules provided to them
by the Company, nothing came to their attention that caused them to
believe that the pro forma information, set forth in the Prospectus
under the headings "Capitalization" on page _____ had not been
correctly calculated on the basis described therein.
With respect to Suncoast:
(i) in their opinion, the consolidated financial statements
as of June 30, 1996 and 1995, and for each of the years in the
three year period ended June 30, 1996 and the related financial
statement schedules, if any, included or incorporated by reference
in the Registration Statement and the Prospectus and covered by
their opinions included therein comply as to form in all material
respects with the applicable accounting requirements of the 1933
Act and the published 1933 Act Regulations;
(e) At the Closing Time, the Underwriters shall have received from
Price Waterhouse LLP letters, in form and substance satisfactory to the
Underwriters and dated as of the Closing Time, to the effect that they reaffirm
the statements made in the letter(s) furnished pursuant to Section 5(d), except
that the inquiries specified in Section 5(d) shall be made based upon the latest
available unaudited interim consolidated financial statements and the specified
date referred to shall be a date not more than two days prior to the Closing
Time.
19
(f) At the Closing Time, counsel for the Underwriters shall have
been furnished with all such documents, certificates and opinions as they may
request for the purpose of enabling them to pass upon the issuance and sale of
the Preferred Securities as contemplated in this Agreement and the matters
referred to in Section 5(c) and in order to evidence the accuracy and
completeness of any of the representations, warranties or statements of the
Offerors, the performance of any of the covenants of the Offerors, or the
fulfillment of any of the conditions herein contained; all proceedings taken by
the Company at or prior to the Closing Time in connection with the
authorization, issuance and sale of the Preferred Securities and the Junior
Subordinated Debentures as contemplated in this Agreement shall be satisfactory
in form and substance to the Underwriters and to counsel for the Underwriters.
(g) Between the date of this Agreement and the Closing Time, (i)
no downgrading shall have occurred in the rating accorded any securities of the
Company or any deposit instruments of the Bank by any "nationally recognized
statistical rating organization," as that term is defined by the Commission for
purposes of Rule 436(g) (2) under the 1933 Act and (ii) no such organization
shall have given any notice of any intended or potential downgrading or of any
surveillance or review, with possible negative implications, of its rating of
any of the Company's securities or any deposit instruments of the Bank.
(h) The Company shall have paid, or made arrangements satisfactory
to the Underwriters for the payment of, all such expenses as may be required by
Section 4 hereof.
(i) In the event the Underwriters exercise their option provided
in Section 2 hereof to purchase all or any portion of the Option Securities, the
obligations of the Underwriters to purchase the Option Securities that it has
agreed to purchase shall be subject to the accuracy of the representations and
warranties of the Offerors contained herein and of the statements in any
certificates furnished by the Offerors hereunder as of such Option Closing Date
(as if made on such date), to the performance by the Offerors of their
obligations hereunder and to the receipt by you on the Option Closing Date of:
(1) A certificate, dated the Option Closing Date, of the
Chairman or the President and the Chief Financial Officer or
Controller of the Company confirming that the certificate
delivered on the Closing Time pursuant to Section 5(c) hereof
remains true as of the Option Closing Date;
(2) The favorable opinion of Stuzin and Camner, P.A., counsel
for the Company, addressed to you and dated the Option Closing
Date, in form satisfactory to Greenberg, Traurig, Hoffman, Lipoff,
▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.A., your counsel, relating to the Option
Securities and otherwise to the same effect as the opinion
required by Section 5(b) hereof;
(3) The favorable opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger,
special Delaware counsel for the Offerors and counsel for the
Indenture Trustee, addressed to you and dated the Option Closing
Date, in form satisfactory to Greenberg, Traurig, Hoffman, Lipoff,
▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.A., your
20
counsel, relating to the Option Securities and otherwise to the
same effect as the opinion required by Section 5(b) hereof.
(4) The favorable opinion of Greenberg, Traurig, Hoffman,
Lipoff, ▇▇▇▇▇ & Quentel, P.A., dated the Option Closing Date,
relating to the Option Shares and otherwise to the same effect as
the opinion required by Section 5(b) hereof; and
(5) Letters from Price Waterhouse LLP addressed to the
Underwriters and dated the Option Closing Date, in form and
substance satisfactory to the Underwriters and substantially the
same in form and substance as the letters furnished to the
Underwriters pursuant to Section 5(d) hereof.
(j) The Preferred Securities, the Guarantee and the Junior
Subordinated Debentures shall have been qualified or registered for sale, or
subject to an available exemption from such qualification or registration, under
the Blue Sky Laws of such jurisdictions as shall have been reasonably specified
by the Underwriters and the offering contemplated by this Agreement shall have
been cleared by the NASD.
If any of the conditions specified in this Section 5 shall not have
been fulfilled when and as required by this Agreement to be fulfilled, this
Agreement may be terminated by the Underwriters on notice to the Offerors at any
time at or prior to the Closing Time, and such termination shall be without
liability of any party to any other Party, except as provided in Section 4.
Notwithstanding any such termination, the provisions of Sections 6, 7, and 9
shall remain in effect.
Section 6. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless the
Underwriters, officers, directors, employees, agents, and counsel of the
Underwriters, and each person, if any, who controls the Underwriters within the
meaning of Section 15 of the 1933 Act or Section 20(a) of the 1934 Act, against
any loss, liability, claim, damage, and expense whatsoever (which shall include,
but not be limited to amounts incurred in investigating, preparing, or defending
against any litigation, commenced or threatened, or any claim or investigation
whatsoever and any and all amounts paid in settlement of any claim or
litigation), as and when incurred, arising out of, based upon, or in connection
with (i) any untrue statement or alleged untrue statement of a material fact or
any omission or alleged omission to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, contained in
(A) any Preliminary Prospectus, the Registration Statement, or the Prospectus
(as from time to time amended and supplemented), or any amendment or supplement
thereto or in any document incorporated by reference therein or required to be
delivered with any Preliminary Prospectus or the Prospectus or (B) in any
application or other document or communication (collectively called an
"application") executed by or on behalf of the Company or based upon written
information furnished by or on behalf of the Company filed in any jurisdiction
in order to qualify the Preferred Securities under the "blue sky" or securities
laws thereof or filed with the Commission or any securities exchange;
21
unless such statement or omission or alleged statement or omission was made in
reliance upon and in conformity with written information concerning the
Underwriters, the Underwriting Agreement or the compensation of the Underwriters
furnished to the Company by or on behalf of the Underwriters expressly for
inclusion in any Preliminary Prospectus, the Registration Statement or the
Prospectus, or any amendment or supplement thereto, or in any application, as
the case may be, or (ii) any breach of any representation, warranty, covenant,
or agreement of the Company contained in the Underwriting Agreement. The
foregoing indemnification with respect to any preliminary prospectus shall not
inure to the benefit of the Underwriters if the person asserting any such
losses, claims, damages or liabilities purchased Preferred Securities and a copy
of the Prospectus (as then amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) was not sent or given by or on
behalf of the Underwriters to such person, if such is required by law, in
connection with the written confirmation of the sale of such Preferred
Securities to such person and if the Prospectus (as so amended or supplemented)
would have cured the defect giving rise to such loss, claim, damage or
liability, provided that the Company delivered the Prospectus, as amended or
supplemented, to the Underwriters on a timely basis to permit such delivery or
sending. For purposes of this section, the term "expense" shall include, but not
be limited to, counsel fees and costs, court costs, out-of-pocket costs and
compensation for the time spent by the Underwriters' directors, officers,
employees and counsel according to his or her normal hourly billing rates. The
indemnification provisions shall also extend to all affiliates of the
Underwriters, their respective directors, officers, employees, legal counsel,
agents and controlling persons within the meaning of the federal securities
laws. The foregoing agreement to indemnify shall be in addition to any liability
the Company may otherwise have to the Underwriters or the persons entitled to
the benefit of these indemnification provisions.
(b) The Underwriters agree to indemnify and hold harmless the
Offerors, their directors, officers who signed the Registration Statement, and
each person, if any, who controls the Offerors within the meaning of Section 15
of the 1933 Act or Section 20(a) of the 1934 Act, against any and all loss,
liability, claim, damage and expense described in the indemnity contained in
subsection (a) above, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto) or any Preliminary Prospectus or the
Prospectus (or any amendment or supplement thereto) or any application in
reliance upon and in conformity with written information about the Underwriters,
the Underwriting Agreement, or the compensation of the Underwriters, furnished
to either of the Offerors by the Underwriters expressly for use in the
Registration Statement (or any amendment thereto) or such Preliminary Prospectus
or the Prospectus (or any amendment or supplement thereto) or in any
application.
(c) An indemnified party shall give prompt notice to the
indemnifying party if any action, suit, proceeding or investigation is commenced
in respect of which indemnity may be sought hereunder, but failure to so notify
an indemnifying party shall not relieve the indemnifying party from its
obligations to indemnify hereunder, except to the extent that the indemnifying
party has been prejudiced in any material respect by such failure. If it so
elects within a reasonable time after receipt of such notice, an indemnifying
party may assume the defense of such action, including the employment of counsel
satisfactory to the indemnified parties and payment of all
22
expenses of the indemnified party in connection with such action. Such
indemnified party or parties shall have the right to employ its or their own
counsel in any such case, but the fees and expenses of such counsel shall be at
the expense of such indemnified party or parties unless the employment of such
counsel shall have been authorized in writing by the indemnifying party in
connection with the defense of such action or the indemnifying party shall not
have promptly employed counsel satisfactory to such indemnified party or parties
or such indemnified party or parties shall have reasonably concluded that there
may be one or more legal defenses available to it or them or to other
indemnified parties which are different from or additional to those available to
one or more of the indemnifying parties, in any of which events such fees and
expenses shall be borne by the indemnifying party and the indemnifying party
shall not have the right to direct the defense of such action on behalf of the
indemnified party or parties. The Company shall be liable for any settlement of
any claim against the Underwriters (or its directors, officers, employees,
affiliates or controlling persons), made with the Company's written consent,
which consent shall not be unreasonably withheld. The Company shall not, without
the written consent of the Underwriters, settle or compromise any claim against
it based upon circumstances giving rise to an indemnification claim against the
Company hereunder unless such settlement or compromise provides that the
Underwriters and the other indemnified parties shall be unconditionally and
irrevocably released from all liability in respect to such claim.
(d) In order to provide for just and equitable contribution, if a
claim for indemnification pursuant to these indemnification provisions is made
but it is found in a final judgment by a court that such indemnification may not
be enforced in such case, even though the express provisions hereof provide for
indemnification in such case, then the Company, on the one hand, and the
Underwriters, on the other hand, shall contribute to the amount paid or payable
by such indemnified persons as a result of such loss, liability, claim, damage
and expense in such proportion as is appropriate to reflect the relative
benefits received by the Company, on the one hand, and the Underwriters, on the
other hand, from the underwriting, and also the relative fault of the Company,
on the one hand, and the Underwriters, on the other hand, in connection with the
statements, acts or omissions which resulted in such loss, liability claim,
damage and expense, and any other relevant equitable considerations shall also
be considered. No person found liable for a fraudulent misrepresentation or
omission shall be entitled to contribution from any person who is not also found
liable for such fraudulent misrepresentation or omission. Notwithstanding the
foregoing, the Underwriters shall not be obligated to contribute any amount
hereunder that exceeds the amount of the underwriting commission paid by the
Company to the Underwriters with respect discount retained by it applicable to
the Preferred Securities purchased by the Underwriters.
(e) The indemnity and contribution agreements contained herein are
in addition to any liability which the Company may otherwise have to the
Underwriters.
(f) Neither termination nor completion of the engagement of the
Underwriters nor any investigation made by or on behalf of the Underwrite shall
effect the indemnification obligations of the Company or the Underwriters
hereunder, which shall remain and continue to be operative and in full force and
effect.
23
Section 7. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY. The representations, warranties, indemnities, agreements and other
statements of the Offerors or its officers or trustees set forth in or made
pursuant to this Agreement will remain operative and in full force and effect
regardless of any investigation made by or on behalf of the Offerors or the
Underwriters or any controlling person and will survive delivery of and payment
for the Preferred Securities.
Section 8. OFFERING BY THE UNDERWRITERS. The Trust and the Company are
advised by the Underwriters that the Underwriters propose to make a public
offering of the Preferred Securities, on the terms and conditions set forth in
the Registration Statement from time to time as and when the Underwriters deem
advisable after the Registration Statement becomes effective. Because the NASD
is expected to view the Preferred Securities as interests in a direct
participation program, the offering of the Preferred Securities is being made in
compliance with the applicable provisions of Rule 2810 of the NASD's Conduct
Rules.
Section 9. TERMINATION OF AGREEMENT.
(a) You may terminate this Agreement, by notice to the Offerors,
at any time at or prior to the Closing Time (i) if there has been, since the
respective dates as of which information is given in the Registration Statement,
any material adverse change in the condition (financial or otherwise), earnings,
business affairs or business prospects of the Company and its subsidiaries,
considered as one enterprise, whether or not arising in the ordinary course of
business, or (ii) if there has occurred any outbreak or escalation of existing
hostilities or other national or international calamity or crisis the effect of
which on the financial markets of the United States is such as to make it, in
the Underwriters' reasonable judgment, impracticable to market the Preferred
Securities or enforce contracts for the sale of the Preferred Securities, or
(iii) if trading in any securities of the Company has been suspended by the
Commission or the National Association of Securities Dealers, Inc., or if
trading generally on the New York Stock Exchange or in the over-the-counter
market has been suspended, or minimum or maximum prices for trading have been
fixed, or maximum ranges for prices for securities have been required, by such
exchange or by order of the Commission, the National Association of Securities
Dealers, Inc. or any other governmental authority with appropriate jurisdiction
over such matters, or (iv) if a banking moratorium has been declared by either
federal or State of Florida authorities, or (v) if there shall have been such
material and substantial change in the market for securities in general or in
political, financial or economic conditions as in your reasonable judgment makes
it inadvisable to proceed with the offering, sale and delivery of the Preferred
Securities on the terms contemplated by the Prospectus, or (vi) if you
reasonably determine (which determination shall be in good faith) that there has
not been satisfactory disclosure of all relevant financial information relating
to the Offerors in the Offerors' disclosure documents and that the sale of the
Preferred Securities is unreasonable given such disclosures.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party, except
to the extent provided in Section 4. Notwithstanding any such termination, the
provisions of Sections 6 and 7 shall remain in effect.
24
Section 10. NOTICES. All notices and other communications under this
Agreement shall be in writing and shall be deemed to have been duly given if
delivered, mailed or transmitted by any standard form of telecommunication.
Notices shall be addressed as follows:
If to the Underwriters: ▇▇▇▇, ▇▇▇▇ & Co.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Senior Vice President
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Van ▇. ▇▇▇▇▇▇,
Senior Vice President
with a copy to: ▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
Greenberg, Traurig, Hoffman,
Lipoff, ▇▇▇▇▇ & Quentel, P.A.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
If to the Company or the Trust: BankUnited Financial Corporation
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
with a copy to: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Stuzin and Camner, P.A.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Section 11. PARTIES. This Agreement is made solely for the benefit of
the Underwriters, and the officers, directors, employees, agents and counsel of
the Underwriters specified in Section 6, the Trust and the Company and, to the
extent expressed, any person controlling the Trust, the Company or the
Underwriters, and the directors of the Company, or trustees of the Trust, their
respective officers who have signed the Registration Statement, and their
respective executors, administrators, successors and assigns and no other person
shall acquire or have any right under or by virtue of this Agreement. The term
"successors and assigns" shall not include any purchaser, as such purchaser,
from the Underwrite of the Preferred Securities.
Section 12. ARBITRATION. Any claims, controversies, demands, disputes
or differences between or among the parties hereto or any persons bound hereby
arising out of, or by virtue of, or in connection with, or otherwise relating to
this Agreement shall be submitted to and settled by arbitration conducted in
Newark, New Jersey before one or three arbitrators, each of whom shall be
knowledgeable in the field of securities law and investment banking. Such
arbitration shall otherwise be conducted in accordance with the rules then
obtaining of the American Arbitration
25
Association. The parties hereto agree to share equally the responsibility for
all fees of the arbitrators, abide by any decision rendered as final and
binding, and waive the right to appeal the decision or otherwise submit the
dispute to a court of law for a jury or nonjury trial. The parties hereto
specifically agree that neither party may appeal or subject to the award or
decision of any such arbitrator to appeal or review in any court of law or in
equity or in any other tribunal, arbitration system or otherwise. Judgment upon
any award granted by such arbitrator may be enforced in any court having
jurisdiction thereof
Section 13. GOVERNING LAW AND TIME. This Agreement shall be governed by
the laws of the State of New Jersey. Specified times of the day refer to New
York City time.
Section 14. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, and when a counterpart has been executed by each party, all such
counterparts taken together shall constitute one and the same agreement.
26
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
instrument will become a binding agreement between the Company and the
Underwriters in accordance with its terms.
Very truly yours,
BANKUNITED CAPITAL II
By:____________________________
Name:__________________________
Title: Administrative Trustee
BANKUNITED FINANCIAL CORPORATION
By:_____________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chairman of the Board
Confirmed and accepted as of the date first
above written:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & ASSOCIATES, INC.
▇▇▇▇, ▇▇▇▇ & CO.
BY: ▇▇▇▇, ▇▇▇▇ & CO.
By:_________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
27
EXHIBIT A
BANKUNITED CAPITAL II
(a Delaware business trust)
1,600,000 Preferred Securities
[ ]% Cumulative Trust Preferred Securities
(Liquidation Amount $25 per preferred Security)
PRICE DETERMINATION AGREEMENT
_________,1997
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc.
▇▇▇▇, ▇▇▇▇ & Co.
c/o Ryan, ▇▇▇▇ & Co.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:.
Reference is made to the Underwriting Agreement dated the date hereof
(the "Underwriting Agreement") among BankUnited Capital 11, a Delaware business
trust, (the "Trust"), BankUnited Financial Corporation (the "Company" and
together with the Trust, the "Offerors") and the Underwriters named above (the
"Underwriters"). The Underwriting Agreement provides for the purchase by the
Underwriters from the Trust, subject to the terms and conditions set forth
therein, of 1,600,000 shares, subject to a 240,000 adjustment (to cover
over-allotments, if any), of the ____% Cumulative Trust Preferred Securities of
the Trust (the "Preferred Securities"). This Agreement is the Price
Determination, Agreement referred to in the Underwriting Agreement.
Pursuant to Section 2 of the Underwriting Agreement, the Offerors agree
with the Underwriters as follows:
1. The public offering price per Preferred Security shall be $________.
2. The purchase price for the Preferred Securities to be paid by the
Underwriters shall be $____ per Preferred Security.
3. The commission per Preferred Security to be paid by the Company to
the Underwriters for their commitments hereunder shall be $______
per Preferred Security.
4. The interest rate on the Preferred Securities shall be ____% per
annum.
The Offerors represent and warrant to each of the Underwriters that the
representations and warranties of the Offerors set forth in Section l(a) of the
Underwriting Agreement are accurate as though expressly made at and as of the
date hereof.
This Agreement shall be governed by the laws of the State of New
Jersey
If the foregoing is in accordance with the understanding of the
Underwriters of the agreement between the Underwriters and the Offerors, please
sign and return to the Company a counterpart hereof, whereupon this instrument,
along with all counterparts and together with the Underwriting Agreement, shall
be a binding agreement between the Underwriters and the Offerors in accordance
with its terms and the terms of the Underwriting Agreement.
Very truly yours,
BANKUNITED CAPITAL II
By:
-----------------------
Name:
Title: Administrative Trustee
BANKUNITED FINANCIAL CORPORATION
By:
-----------------------
Chairman of the Board
Chief Executive Officer
Confirmed and accepted as of
the date first above written:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & ASSOCIATES, INC.
▇▇▇▇, ▇▇▇▇ & CO.
By: ▇▇▇▇ ▇▇▇▇ & CO.
By:
--------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Senior Vice President
2
EXHIBIT C
The opinion of counsel to the Company to be delivered pursuant to
Section 5(b)(i) of the Underwriting Agreement shall be substantially to the
effect that:
1. The Company is a corporation existing and in good standing under the laws of
the State of Florida, with requisite corporate power and authority to own
its properties and conduct its business as described in the Prospectus.
2. The Company is qualified to transact business as a foreign corporation and
is in good standing in each jurisdiction in which it owns or leases property
of a nature, or transact, business of a type, that would make such
qualification necessary, except to the extent that the failure to so qualify
or be in good standing would not have a material adverse effect on the
Company and its subsidiary, considered as one enterprise.
3. The Bank is a federally chartered stock savings bank duly organized and
validly existing under the laws of the United States, with corporate power
and authority under such laws to own, lease and operate its properties and
conduct its business as now being conducted.
4. The deposit accounts of the Bank are insured by the Savings Association
Insurance Fund of the FDIC up to the maximum amount allowable under
applicable law.
5. To such counsel's knowledge, the Bank is qualified to transact business as a
foreign corporation in each other jurisdiction in which it owns or leases
property of a nature, or transacts business of a type, that would make such
qualification necessary, except to the extent that the failure to so qualify
would not have a material adverse effect on the Company and its
subsidiaries, considered as one enterprise.
6. The Company is registered as a bank holding company under the Bank Holding
Company Act of 1956, as amended.
7. None of the outstanding shares of capital stock of the Company and none of
the Securities was issued in violation of the preemptive rights of any
stockholder of the Company.
8. The authorized capital stock of the Company at March 31, 1997 is as set
forth, in the Prospectus under the heading "Capitalization".
9. To such counsel's knowledge, all of the outstanding shares of capital stock
of the Bank have been authorized and validly issued and are fully paid and
non-assessable; all of such shares are owned by the Company, to such
counsel's knowledge, free and clear of any pledge, lien, security interest,
charge, claim, equity or encumbrance of any kind and none of such shares was
issued in violation of the preemptive rights of any stockholder of the Bank.
10. The Company and the Trust each has full corporate power and authority to
execute, deliver, and perform the Underwriting Agreement and to issue, sell,
and deliver the Preferred Securities to be sold by it to the Underwriters,
as provided herein, the Underwriting Agreement has been duly authorized,
executed and delivered by the Company and the Trust, and constitutes a
legal, valid, and binding obligation of each of the Company and the Trust
and is enforceable against each of the Company and the Trust in accordance
with its terms, except as enforceability of this Agreement may be limited by
bankruptcy, insolvency, reorganization, moratorium, or similar laws
affecting creditors' rights generally, and by equitable principles limiting
the right to specific performance or other equitable relief and except as
the obligations of the Company under the indemnification and contribution
provisions of Section 6 of the Agreement may be limited by laws or
unenforceable as against public policy, as to which no opinion is expressed,
and an implied covenant of good faith and fair dealing.
11. The Trust Agreement has been duly authorized, executed and delivered by the
Company, and is a valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, receivership, readjustment of debt, moratorium, fraudulent
conveyance or similar laws relating to or affecting creditors' rights
generally, general equity principles (whether considered in a proceeding in
equity or at law) and an implied covenant of good faith and fair dealing.
12. The Guarantee Agreement has been duly authorized, executed and delivered by
the Company and is a valid and binding obligation of the Company enforceable
against the Company in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, receivership, readjustment of debt, moratorium, fraudulent
conveyance or similar laws relating to or affecting creditors' rights
generally, general equity principles (whether considered in a proceeding in
equity or at law) and an implied covenant of good faith and fair dealing.
13. The Indenture has been duly authorized, executed and delivered by the
Company, has been duly qualified under the Trust Indenture Act, and is a
valid and binding agreement of the Company, enforceable against the Company
in accordance with its terms, except as such enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, receivership,
readjustment of debt, moratorium, fraudulent conveyance or similar laws
affecting creditors' rights generally, general equity principles (whether
considered in a proceeding in equity or at law).
14. The Junior Subordinated Debentures have been duly authorized, executed and
delivered by the Company and when duly authenticated in accordance with the
Indenture and delivered and paid for in accordance with the Underwriting
Agreement, will be valid and binding obligations of the Company, entitled to
the benefits of the Indenture and enforceable against the Company in
accordance with their terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization,
2
receivership, readjustment of debt, moratorium, fraudulent conveyance or
similar laws affecting creditors' rights generally, general equity
principles (whether considered in a proceeding in equity or at law).
15. The Trust is not an "investment company" or an entity "controlled" by an
"investment company," as such terms are defined in Investment Company Act of
1940, as amended.
16. The statements set forth in the Registration Statement "Description of the
Preferred Securities, Description of the Junior Subordinated Debentures,"
"Description of the Guarantee" and "Relationship Among the Preferred
Securities, the Junior Subordinated Debentures, the Expense Agreement and
the Guarantee," to the extent that they constitute matters of law or legal
conclusions, have been reviewed by such counsel and are correct in all
material respects.
17. The statements of law or legal conclusions and opinions set forth in the
Registration Statement under the caption "Certain Federal Income Tax
Consequences," subject to the assumptions and conditions described therein,
constitute such counsel's opinion.
18. The Registration Statement is effective under the, 1933 Act, any required
filing of the Prospectus or any supplement thereto pursuant to Rule 424(b)
has been made in the manner and within the time period required by Rule
424(b) and, to such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or are pending or
threatened under the 1933 Act,
19. The Registration Statement (including the Rule 430A Information, if
applicable) and the Prospectus and any amendment or supplement thereto
(except for the financial statements and other financial and statistical
data included therein or omitted therefrom, as to which such counsel need
express no opinion), as of their respective effective or issue dates, comply
or complied as to form in all material respects to the applicable
requirements of the 1933 Act and the 1933 Act Regulations.
20. To such counsel's knowledge, there are no pending or threatened legal or
governmental proceedings, required under the 1993 Act and the 1933 Act
Regulations to be described in the Prospectus that are not described as
required other than litigation, incidental to the business of the Company or
the Bank which is, considered in the aggregate, not material to the Company
and its subsidiaries, considered as one enterprise, and to such counsel's
knowledge, there are no material contracts or documents of a character
required to be described or referred to in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement that are
not described, referred to or filed as required.
21. Such counsel knows of no contracts, indentures, mortgages, loan agreements,
notes, leases or other instruments required to be described in the
Registration Statement or to be filed as exhibits thereto other than those
described therein or filed or incorporated by
3
reference as exhibits thereto, and such instruments as are summarized in the
Registration Statement are fairly summarized in all material respects,
22. No approval, authorization, consent, registration, qualification, or other
order of any public board or body is required in connection with the
execution and delivery of this Agreement, the Trust Agreement, the Guarantee
Agreement, and the Indenture or the issuance and sale of the Preferred
Securities or the consummation by the Company of the other transactions
contemplated by this Agreement, the Trust Agreement, the Guarantee
Agreement, or the Indenture, except such as have been obtained under the
Securities Act, the Exchange Act and the Trust Indenture Act or such as may
be required under the blue sky or securities laws of various states in
connection with the offering and sale of the Preferred Securities (as to
which such counsel need express no opinion).
23. The execution and delivery of this Agreement, the Trust Agreement, the
Guarantee Agreement, and the Indenture, the issuance and sale of the
Preferred Securities and the Junior Subordinated Debentures, the compliance
by the Company with the provisions of the Preferred Securities, the Junior
Subordinated Debentures, the Indenture and this Agreement and the
consummation of the transactions herein and therein contemplated will not
conflict with or constitute a breach of, or default under, the articles of
incorporation or by-laws of the Company or a breach or default under any
contract, Indenture, mortgage, loan agreement, note, lease or other
instrument known to such counsel to which either the Company or any
Subsidiary is a party or by which either of them or any of their respective
properties may be bound except for such breaches as would not have a
material adverse effect on the Company and its Subsidiaries considered as
one enterprise, nor will such action result in a violation on the part of
the Company or any Subsidiary of any applicable law or regulation or of any
administrative, regulatory or court decree known to such counsel.
Counsel will supplementally provide a written statement that such counsel
has participated in the preparation of the Registration Statement and
Prospectus and has reviewed the documents incorporated by reference in the
Prospectus and no facts have come to the attention of such counsel to lead it to
believe (A) that the Registration Statement (including the Rule 430A
Information, if applicable) or any amendment thereto (except for the financial
statements and other financial or statistical data included therein or omitted
therefrom, as to which such counsel need express no opinion), at the time the
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 (B) that the Prospectus or any amendment or supplement thereto (except for
the financial statements and other financial or statistical data included
therein or omitted therefrom, as to which such counsel need express no opinion),
at the time the Prospectus was issued, at the time any such amended or
supplemented prospectus was issued or at the Closing Time, 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 are made, not misleading or (C) that the
documents incorporated by reference in the Prospectus (except for the
4
financial Statements and other financial or statistical data contained therein
or omitted therefrom, as to which such counsel need express no opinion, and
except to the extent that any statement therein is modified or superseded in the
Prospectus), as of the dates they were filed with the Commission, 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.
5
EXHIBIT D
The opinion of counsel, as special Delaware counsel to the Company and the
Trust to be delivered pursuant to Section 5(b)(ii) of the Underwriting Agreement
shall be substantially to the effect that:
1. The Trust has been duly created and is validly existing in good standing as
a business trust under the Delaware Business Trust Act, 12 Del. C. Section
3801, et seq. (the "Delaware Act"), and all filings required under the laws
of the State of Delaware with respect to the creation, and valid existence
of the Trust as a business trust have been made.
2. Under the Delaware Act and Trust Agreement the Trust has the trust power and
authority to own its property and to its conduct its business, all as
described in the Prospectus.
3. The Trust Agreement constitutes a valid and binding obligation of the
Company and the Property Trustee and the Delaware Trustee, and is
enforceable against the Company and the Trustees, in accordance with its
terms.
4. Under the Delaware Act and the Trust Agreement, the Trust has the trust
power and authority to execute and deliver, and to perform its obligations
under, the Underwriting Agreement and to issue and perform its obligations
under the Preferred Securities and the Common Securities.
5. Under the Delaware Act and the Trust Agreement, the execution and delivery
by the Trust of the Underwriting Agreement, and the performance by the Trust
of its obligations thereunder, have been duly authorized by all necessary
trust action on the part of the Trust.
6. The Preferred Securities have been duly authorized by the Trust Agreement
and are duly and validly issued and, subject to the qualifications set forth
herein, fully paid and nonassessable undivided beneficial interests in the
assets of the Trust and are entitled to the benefits of the Trust Agreement.
The Holders, as beneficial owners of the Trust, will be entitled to the same
limitations of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law of the
State of Delaware. We note that the Holders may be obligated pursuant to the
Trust Agreement (i) to provide indemnity and/or security in connection with
and pay taxes or governmental charges arising from transfers or exchanges of
Preferred Securities Certificates and the issuance of replacement Preferred
Securities Certificates, and (ii) to provide security or indemnity in
connection with requests of or directions to the Property Trustee to
exercise its rights and powers under the Trust Agreement.
7. Under the Delaware Act and the Trust Agreement, the issuance of the
Preferred Securities and Common Securities is not subject to preemptive
rights.
8. The Common Securities have been duly authorized by the Trust Agreement
and are duly and validly issued undivided beneficial interests in the assets
of the Trust and are entitled to the benefits of the Trust Agreement.
9. The issuance and sale by the Trust of the Preferred Securities and Common
Securities, the purchase by the Trust of the Junior Subordinated Debentures,
the execution, delivery and performance by the Trust of the Underwriting
Agreement, the consummation by the Trust of the transactions contemplated by
the Underwriting Agreement and the compliance by the Trust with its
obligations thereunder will not violate (i) any of the provisions of the
Certificate of Trust or the Trust Agreement or (ii) any applicable Delaware
law or administrative regulation.
2
EXHIBIT E
The opinion of counsel to the Trust to be delivered pursuant to Section
5(b)(iii) of the Underwriting Agreement shall be substantially to the effect
that:
1. The Trust Company is duly incorporated and is validly existing in good
standing as a banking corporation with trust powers under the laws of the
State of Delaware.
2. The Indenture Trustee has the requisite power and authority to execute,
deliver and perform its obligations under the Indenture, and has taken all
necessary corporate action to authorize the execution, delivery and
performance by it of the Indenture.
3. The Guarantee Trustee has the requisite power and authority to execute,
deliver and perform its obligations under the Guarantee Agreement, and has
taken all necessary corporate action to authorize the execution, delivery
and performance by it of the Guarantee Agreement.
4. The Property Trustee has the requisite power and authority to execute and
deliver the Trust Agreement, and has taken all necessary corporate action to
authorize the execution and delivery of the Trust Agreement.
5. Each of the Indenture and the Guarantee Agreement has been duly executed
and delivered by the Indenture Trustee and the Guarantee Trustee,
respectively, and constitute, a legal, valid and binding obligation of the
Indenture Trustee and the Guarantee Trustee, respectively, enforceable
against the Indenture Trustee and the Guarantee Trustee, respectively in
accordance with its respective terms, except that certain payment
obligations may be enforceable solely against the assets of the Trust and
except that such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium, liquidation, fraudulent conveyance and transfer
or other similar laws affecting the enforcement of creditors' rights
generally, and by general principles of equity, including, without
limitation, concepts of materiality, reasonableness, good faith and fair
dealing (regardless of whether such enforceability is considered in a
proceeding in equity or at law), and by the effect of applicable public
policy on the enforceability of provisions relating to indemnification or
contribution.
6. The Junior Subordinated Debentures delivered on the date hereof have been
duty authenticated by the Indenture Trustee in accordance with the terms of
the Indenture.