Exhibit 1
BankAtlantic Bancorp, Inc.
Shares of Class A Common Stock
UNDERWRITING AGREEMENT
June 28, 2001
FRIEDMAN, BILLINGS, ▇▇▇▇▇▇ & CO., INC.
▇▇▇▇▇▇▇▇ INC.
▇▇▇▇, ▇▇▇▇ & CO., LLC
as Representatives of the several Underwriters
c/o Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc.
▇▇▇▇ ▇▇/▇▇/ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
BankAtlantic Bancorp, Inc., a Florida corporation (the "Company"), confirms
its agreement with each of the Underwriters listed on Schedule I hereto
(collectively, the "Underwriters"), for whom Friedman, Billings, ▇▇▇▇▇▇ & Co.,
Inc., ▇▇▇▇▇▇▇▇ Inc. and ▇▇▇▇, ▇▇▇▇ & Co., LLC are acting as representatives (in
such capacity, the "Representatives"), with respect to (i) the sale by the
Company of 4,500,000 shares (the "Initial Shares") of Class A Common Stock, par
value $0.01 per share, of the Company (the "Common Stock") and the purchase by
the Underwriters, acting severally and not jointly, of the respective number of
shares of Common Stock set forth opposite the names of the Underwriters in
Schedule I hereto, and (ii) the grant of the option described in Section 1(b)
hereof to purchase all or any part of 675,000 additional shares of Common Stock
to cover over-allotments (the "Option Shares"), if any, from the Company in the
respective numbers of shares of Common Stock set forth opposite the names of the
Underwriters in Schedule I hereto. The Initial Shares of Common Stock to be
purchased by the Underwriters and all or any part of the Option Shares of Common
Stock subject to the option described in Section l(b) hereof are hereinafter
called, collectively, the "Shares."
The Company understands that the Underwriters propose to make a public
offering of the Shares as soon as the Underwriters deem advisable after this
Agreement has been executed and delivered.
The Company has filed with the Securities and Exchange Commission (the
"Commission"), a registration statement on Form S-3 (No. 333-62264) and a
related preliminary prospectus for the registration of the Shares under the
Securities Act of 1933, as amended (the "Securities Act"), and the rules and
regulations thereunder (the "Securities Act Regulations"). The Company has
prepared and filed such amendments thereto, if any, and such amended preliminary
prospectuses, if any, as may have been required to the date hereof, and will
file such additional amendments thereto and such amended
prospectuses as may hereafter be required. The registration statement has been
declared effective under the Securities Act by the Commission. The registration
statement as amended at the time it became effective (including all information
deemed (whether by incorporation by reference or otherwise) to be a part of the
registration statement at the time it became effective pursuant to Rule 430A(b)
of the Securities Act Regulations) is hereinafter called the "Registration
Statement," except that, if the Company files a post-effective amendment to such
registration statement which becomes effective prior to the Closing Time (as
defined below), "Registration Statement" shall refer to such registration
statement as so amended. Any registration statement filed pursuant to Rule
462(b) of the Securities Act Regulations is hereinafter called the "Rule 462(b)
Registration Statement," and after such filing the term "Registration Statement"
shall include the 462(b) Registration Statement. Each prospectus included in the
Registration Statement, or amendments thereof or supplements thereto, before it
became effective under the Securities Act and any prospectus filed with the
Commission by the Company with the consent of the Underwriters pursuant to Rule
424(a) of the Securities Act Regulations is hereinafter called the "Preliminary
Prospectus." The term "Prospectus" means the final prospectus, as first filed
with the Commission pursuant to paragraph (1) or (4) of Rule 424(b) of the
Securities Act Regulations, and any amendments thereof or supplements thereto.
The Commission has not issued any order preventing or suspending the use of any
Preliminary Prospectus.
The Company and the Underwriters agree as follows:
1. Sale and Purchase.
-----------------
(a) Initial Shares. Upon the basis of the warranties and
representations and other terms and conditions herein set forth, at the purchase
price per share of $________, the Company agrees to sell to the Underwriters and
each Underwriter agrees, severally and not jointly, to purchase from the Company
the number of Initial Shares set forth in Schedule I opposite such Underwriter's
name, plus any additional number of Initial Shares which such Underwriter may
become obligated to purchase pursuant to the provisions of Section 8 hereof,
subject in each case, to such adjustments among the Underwriters (which shall
not in any case reduce the aggregate number of Initial Shares set forth on
Schedule I hereto) as the Representatives in their sole discretion shall make to
eliminate any sales or purchases of fractional shares.
(b) Option Shares. In addition, upon the basis of the warranties and
representations and other terms and conditions herein set forth, at the purchase
price per share set forth in paragraph (a), the Company hereby grants an option
to the Underwriters, acting severally and not jointly, to purchase from the
Company all or any part of the Option Shares, plus any additional number of
Option Shares which such Underwriter may become obligated to purchase pursuant
to the provisions of Section 8 hereof. The option hereby granted will expire 30
days after the date hereof and may be exercised in whole or in part on one
occasion only for the purpose of covering over-allotments which may be made in
connection with the offering and distribution of the Initial Shares upon notice
by the Representatives to the Company setting forth the number of Option Shares
as to
2
which the several Underwriters are exercising the option and the time and date
of payment and delivery for such Option Shares. Any such time and date of
delivery shall be determined by the Representatives, but shall not be later than
three full business days (or earlier, without the consent of the Company, than
two full business days) after the exercise of such option, nor in any event
prior to the Closing Time. If the option is exercised as to all or any portion
of the Option Shares, the Company will sell to the Underwriters, and each of the
Underwriters, acting severally and not jointly, will purchase that proportion of
the total number of Option Shares being purchased which the number of Initial
Shares set forth in Schedule I opposite the name of such Underwriter bears to
the total number of Initial Shares, subject in each case to such adjustments
among the Underwriters as the Representatives in their sole discretion shall
make to eliminate any sales or purchases of fractional shares.
2. Payment and Delivery.
--------------------
(a) Initial Shares. The Shares to be purchased by each Underwriter
hereunder, in definitive form, and in such authorized denominations and
registered in such names as the Representatives may request upon at least forty-
eight hours' prior notice to the Company shall be delivered by or on behalf of
the Company to the Representatives, including, at the option of the
Representatives, through the facilities of The Depository Trust Company ("DTC")
for the account of such Underwriter, against payment by or on behalf of such
Underwriter of the purchase price therefor by wire transfer of Federal (same-
day) funds to the account specified to the Representatives by the Company upon
at least forty-eight hours' prior notice. The Company will cause the
certificates representing the Initial Shares to be made available for checking
and packaging at least twenty-four hours prior to the Closing Time with respect
thereto at the office of the Representatives, 1001 ▇▇/▇▇/ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at the office of DTC or its designated custodian,
as the case may be (the "Designated Office"). The time and date of such delivery
and payment shall be 9:30 a.m., New York City time, on the third (fourth, if
pricing occurs after 4:30 p.m., New York City time) business day after the date
hereof (unless another time and date shall be agreed to by the Representatives
and the Company). The time at which any such payment and delivery are actually
made is hereinafter sometimes called the "Closing Time" and the date of delivery
of both Initial Shares and Option Shares is hereinafter sometimes called the
"Date of Delivery." The closing of the sale and purchase of the Shares, other
than the physical delivery of the Shares, shall be held at the offices of ▇▇▇▇▇▇
& Bird LLP, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇/▇▇/ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇-▇▇▇▇.
(b) Option Shares. Any Option Shares to be purchased by each
Underwriter hereunder, in definitive form, and in such authorized denominations
and registered in such names as the Representatives may request upon at least
forty-eight hours' prior notice to the Company shall be delivered by or on
behalf of the Company to the Representatives, including, at the option of the
Representatives, through the facilities of DTC for the account of such
Underwriter, against payment by or on behalf of such Underwriter of the purchase
price therefor by wire transfer of Federal (same-day) funds to the account
specified to the Representatives by the Company upon at least forty-eight
3
hours' prior notice. The Company will cause the certificates representing the
Option Shares to be made available for checking and packaging at least twenty-
four hours prior to the Date of Delivery with respect thereto at the Designated
Office. The time and date of such delivery and payment shall be 9:30 a.m., New
York City time, on the date specified by the Representatives in the notice given
by the Representatives to the Company of the Underwriters' election to purchase
such Option Shares or on such other time and date as the Company and the
Representatives may agree upon in writing.
3. Representations and Warranties of the Company.
---------------------------------------------
The Company represents and warrants to the Underwriters that:
(a) the Company has an authorized and outstanding capitalization as
set forth in the Prospectus; the outstanding shares of capital stock of the
Company and each subsidiary of the Company (for purposes of this Agreement, a
"Subsidiary" shall only refer to any company or other entity in which the
Company owns, directly or through one or more Subsidiaries, more than 50% of the
equity interests in such company or other entity) have been duly and validly
authorized and issued and are fully paid and non-assessable, and all of the
outstanding shares of capital stock of the Subsidiaries are directly or
indirectly owned of record and beneficially by the Company; except as disclosed
in the Prospectus, there are no outstanding (i) securities or obligations of the
Company or any of the Subsidiaries convertible into or exchangeable for any
capital stock of the Company or any such Subsidiary, (ii) warrants, rights or
options to subscribe for or purchase from the Company or any such Subsidiary any
such capital stock or any such convertible or exchangeable securities or
obligations, or (iii) obligations of the Company or any such Subsidiary to issue
any shares of capital stock, any such convertible or exchangeable securities or
obligation, or any such warrants, rights or options;
(b) each of the Company and the Subsidiaries (all of which are named
in Exhibit 21 to the Company's Annual Report on Form 10-K) has been duly
organized and is validly existing organization in good standing under the laws
of its respective jurisdiction of organization with full power and authority to
own its respective properties and to conduct its respective businesses as
described in the Registration Statement and Prospectus and, in the case of the
Company, to execute and deliver this Agreement and to consummate the
transactions contemplated herein;
(c) all of the material rights and characteristics of the Company's
Class A Common Stock and Class B Common Stock are as described in the
Prospectus; all of the rights and characteristics of the Company's Class A
Common Stock and Class B Common Stock are consistent with the laws of the State
of Florida and have been duly authorized and approved by proper corporate action
of the Company;
(d) the Company and all of the Subsidiaries are duly qualified or
licensed and are in good standing in each jurisdiction in which they conduct
their respective businesses or in which they own or lease real property or
otherwise maintain an office and in which the failure, individually or in the
aggregate, to be so qualified or licensed is reasonably likely to result in a
material adverse effect on the assets, business, operations,
4
earnings, prospects, properties or condition (financial or otherwise) of the
Company and the Subsidiaries taken as a whole (a "Material Adverse Effect");
except as disclosed in the Prospectus or as may be limited or restricted by law
or restrictions that may apply under bankruptcy, insolvency, reorganization or
similar laws, no Subsidiary is prohibited or restricted, directly or indirectly,
from paying dividends to the Company, or from making any other distribution with
respect to such Subsidiary's capital stock or from repaying to the Company or
any other Subsidiary any amounts which may from time to time become due under
any loans or advances to such Subsidiary from the Company or such other
Subsidiary, or from transferring any such Subsidiary's property or assets to the
Company or to any other Subsidiary; except as disclosed in the Prospectus,
including capital stock or equity securities reflected in the Company's
financial statements, the Company does not own, directly or indirectly, any
capital stock or other equity securities of any other corporation or any
ownership interest in any partnership, joint venture or other association;
(e) the Company is duly registered with the Office of Thrift
Supervision as a savings and loan holding company under the Home Owners Loan
Act, as amended; BankAtlantic, A Federal Savings Bank (the "Bank"), is duly
organized and validly existing as a federal savings bank under the laws of the
United States and continues to hold a valid charter to do business as a federal
savings bank; the Bank meets the qualified thrift lender test under Section
10(m) of the Home Owners Loan Act, as amended; and the Company is a
grandfathered unitary savings and loan holding company under Section 10 of the
Home Owners Loan Act, as amended;
(f) The Bank (i) has paid all premiums, fees and related charges due
and owing which are required to maintain, and currently maintain, federal
deposit insurance, up to applicable limits on all deposits held by the Bank, and
(ii) has complied with all rules and regulations of the Office of Thrift
Supervision and the Federal Deposit Insurance Corporation, except for violations
of which are not reasonably likely to result in a Material Adverse Effect. The
Company and the Bank are not subject to any memorandum of understanding or other
regulatory agreements and have not been assessed any civil money penalty by any
federal or state regulatory body, including, without limitation, the Office of
Thrift Supervision, and are not, to the best knowledge of the Company, subject
to any investigation, audit or other examination which is likely to lead to the
imposition of any civil money penalty or to the Company or any Subsidiary
entering into any memorandum of understanding or other regulatory agreements
with any federal or state regulatory body, including, without limitation, the
Office of Thrift Supervision;
(g) the Company and the Subsidiaries are in compliance in all
material respects with all applicable laws, rules, regulations, orders, decrees
and judgments, including those relating to transactions with affiliates, except
for such non-compliance as is not reasonably likely to result in a Material
Adverse Effect;
(h) neither the Company nor any Subsidiary is in breach of or in
default under (nor has any event occurred which with notice, lapse of time, or
both would
5
constitute a breach of, or default under), its respective organizational
documents, or in the performance or observance of any obligation, agreement,
covenant or condition contained in any license, indenture, mortgage, deed of
trust, loan or credit agreement or other agreement or instrument to which the
Company or any Subsidiary is a party or by which any of them or their respective
properties is bound, or in violation of any statute, law, rule, regulation,
judgment, order or decree of any court, regulatory body, administrative agency,
governmental, arbitrator or other authority having jurisdiction over the Company
or such Subsidiary or any of its properties, as applicable, except for such
breaches, defaults, or violations which are not reasonably likely to result in a
Material Adverse Effect;
(i) the execution, delivery and performance of this Agreement, and
consummation of the transactions contemplated herein will not (A) conflict with,
or result in any breach of, or constitute a default under (nor constitute any
event which with notice, lapse of time, or both would constitute a breach of, or
default under), (i) any provision of the organizational documents of the Company
or any Subsidiary, or (ii) any provision of any license, indenture, mortgage,
deed of trust, loan or credit agreement or other agreement or instrument to
which the Company or any Subsidiary is a party or by which any of them or their
respective properties may be bound or affected, or under any federal, state,
local or foreign law, regulation or rule or any decree, judgment or order
applicable to the Company or any Subsidiary except in the case of this clause
(ii) for such conflicts, breaches, or defaults which would not be reasonably
likely to result in a Material Adverse Effect; or (B) result in the creation or
imposition of any material lien, charge, claim or encumbrance upon any property
or asset of the Company or any Subsidiary;
(j) the Company has full power and authority (corporate and other) to
enter into this Agreement and perform its obligations hereunder; this Agreement
has been duly authorized, executed and delivered by the Company and, upon the
execution by the other parties hereto, will be a legal, valid and binding
agreement of the Company enforceable against the Company in accordance with its
terms, except as may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights generally, and by general
equitable principles, and except to the extent that the indemnification and
contribution provisions of Section 9 hereof may be limited by federal or state
securities laws and public policy considerations in respect thereof;
(k) no approval, authorization, consent or order of or filing with
any federal, state or local governmental or regulatory commission, board, body,
authority or agency is required in connection with the Company's execution,
delivery and performance of this Agreement, its consummation of the transactions
contemplated herein, and its sale and delivery of the Shares, other than (A)
such as have been obtained, or will have been obtained at the Closing Time or
the relevant Date of Delivery, as the case may be, under the Securities Act and
the Securities Exchange Act of 1934 (the "Exchange Act"), (B) such approvals as
have been obtained in connection with the approval of the listing of the Shares
on the New York Stock Exchange ("NYSE") upon official notice of issuance, and
(C) any necessary qualification under the securities or blue
6
sky laws of the various jurisdictions in which the Shares are being offered by
the Underwriters;
(l) each of the Company and the Subsidiaries has all necessary
licenses, authorizations, consents and approvals and has made all necessary
filings required under any federal, state or local law, regulation or rule, and
has obtained all necessary authorizations, consents and approvals from other
persons, required in order to conduct their respective businesses as described
in the Prospectus, except to the extent that any failure to have any such
licenses, authorizations, consents or approvals, to make any such filings or to
obtain any such authorizations, consents or approvals are not, individually or
in the aggregate, reasonably likely to result in a Material Adverse Effect;
(m) each of the Registration Statement and any Rule 462(b)
Registration Statement has become effective under the Securities Act, or if the
Registration Statement has not become effective under the Securities Act, the
Company will file an amendment to the Registration Statement, including a form
of prospectus, a copy of which amendment has been provided to and approved by
the Representatives prior to the execution of this Agreement, and the Company
shall use its reasonable best efforts to cause such Registration Statement to be
declared effective within one business day from the date of this Agreement; and
no stop order suspending the effectiveness of the Registration Statement or any
Rule 462(b) Registration Statement has been issued under the Securities Act and
no proceedings for that purpose have been instituted or are pending or, to the
knowledge of the Company are threatened by the Commission, and, to the knowledge
of the Company, the Company has complied to the Commission's satisfaction with
any request on the part of the Commission for additional information;
(n) the Preliminary Prospectus and the Registration Statement comply,
and the Prospectus and any further amendments or supplements thereto will, when
they have become effective or are filed with the Commission, as the case may be,
comply, in all material respects with the requirements of the Securities Act and
the Securities Act Regulations; the Registration Statement did not, and any
post-effective amendment thereto will not, in each case as of the applicable
effective date, 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, in the light of the circumstances under which they were
made, not misleading; and the Preliminary Prospectus contained in the
Registration Statement does not, and the Prospectus or any amendment or
supplement thereto will not, as of the applicable filing date and at the Closing
Time and on each Date of Delivery (if any), 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, in the light of the circumstances
under which they were made, not misleading; provided, however, that the Company
makes no warranty or representation with respect to any statement contained in
the Registration Statement, the Preliminary Prospectus, or the Prospectus in
reliance upon and in conformity with the information and furnished in writing by
or on behalf of the Underwriters through the Representatives to the Company
expressly for use in the Registration Statement, the Preliminary Prospectus, or
the Prospectus (that
7
information being limited to that described in the penultimate sentence of the
first paragraph of Section 9(c) hereof);
(o) each document incorporated by reference in the Prospectus, when
it became effective or was filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the Exchange Act and
the rules and regulations promulgated under the Exchange Act (the "Exchange Act
Regulations"), and none of such documents contained, and at the Closing Time,
will not contain an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; and any further documents so filed and incorporated by
reference in the Prospectus or any further amendment or supplement thereto, when
such documents become effective or are filed with the Commission, as the case
may be, will conform in all material respects to the requirements of the
Exchange Act and the Exchange Act Regulations and will not include 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, in the
light of the circumstances under which they were made, not misleading;
(p) the Preliminary Prospectus was and the Prospectus delivered to
the Underwriters for use in connection with this offering will be identical in
all material respects to the versions of the Preliminary Prospectus and
Prospectus created to be transmitted to the Commission for filing via the
Electronic Data Gathering Analysis and Retrieval System ("▇▇▇▇▇"), except to the
extent permitted by Regulation S-T;
(q) other than as disclosed in the Prospectus, there are no actions,
suits, proceedings, inquiries or investigations pending or, to the knowledge of
the Company threatened against the Company or any Subsidiary or any of their
respective officers and directors or to which the properties, assets or rights
of any such entity are subject, at law or in equity, before or by any federal,
state, local or foreign governmental or regulatory commission, board, body,
authority, arbitral panel or agency which is reasonably likely to result in a
judgment, decree, award or order having a Material Adverse Effect;
(r) the financial statements, including the notes thereto, included
in (or incorporated by reference into) the Registration Statement and the
Prospectus present fairly the consolidated financial position of the Company as
of the dates indicated and the consolidated results of operations and changes in
financial position and cash flows of the Company for the periods specified; such
financial statements have been prepared in conformity with generally accepted
accounting principles as applied in the United States and on a consistent basis
during the periods involved and in accordance with Regulation S-X promulgated by
the Commission; the financial statement schedules included or incorporated by
reference in the Registration Statement and the amounts in the Prospectus under
the captions "Summary -- Summary Selected Financial Data" fairly present the
information shown therein and, except for the line item "Diluted Cash Flow
Earnings (Loss) Per Share" contained in the "Summary Selected Financial Data,"
have been
8
compiled on a basis consistent with the financial statements included or
incorporated by reference in the Registration Statement and the Prospectus; no
other financial statements or supporting schedules are required to be included
in the Registration Statement; the Company believes that the assumptions
underlying the as adjusted financial information (including the related notes)
included in the Prospectus and any Preliminary Prospectus are reasonable; such
adjustments have been properly applied to the historical amounts in the
compilation of the information and such information fairly presents with respect
to the Company and the Subsidiaries, the financial position and other
information purported to be shown therein as of the respective dates
specified;
(s) KPMG LLP, whose reports on the consolidated financial statements
of the Company and the Subsidiaries are filed with the Commission as part of the
Registration Statement and Prospectus or are incorporated by reference therein,
are, and were during the periods covered by their reports, independent public
accountants as required by the Securities Act and the Exchange Act and the
Securities Act Regulations and the Exchange Act Regulations;
(t) since the date of the most recent audited financial statements
included or incorporated by reference in the Prospectus, neither the Company nor
any of its Subsidiaries has sustained any Material Adverse Effect, whether or
not arising from transactions in the ordinary course of business, fire,
explosion, flood or other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or decree, except as
described in the Prospectus;
(u) subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, and except as disclosed
in the Registration Statement or Prospectus, there has not been (A) any Material
Adverse Effect or any development that is reasonably likely to result in a
Material Adverse Effect, whether or not arising in the ordinary course of
business, (B) any transaction outside of the ordinary course of business that is
material to the Company and the Subsidiaries taken as a whole, contemplated or
entered into by the Company or any of the Subsidiaries, (C) any obligation,
contingent or otherwise, incurred by the Company or any Subsidiary outside of
the ordinary course of business that is material to the Company and Subsidiaries
taken as a whole, (D) any dividend or distribution of any kind declared, paid or
made by the Company on any class of its capital stock, (E) any purchase by the
Company of any of its outstanding capital stock or (F) any change in the capital
stock (except as may result from the exercise of any currently outstanding
convertible securities or options), long-term debt or , outside the ordinary
course of business, short-term debt of the Company or any of its Subsidiaries;
(v) there are no persons with registration or other similar rights to
have any equity or debt securities, including securities which are convertible
into or exchangeable for equity securities, registered pursuant to the
Registration Statement or otherwise registered by the Company under the
Securities Act, except for those registration or similar rights which have been
waived with respect to the offering
9
contemplated by this Agreement, all of which registration or similar rights are
fairly summarized in the Prospectus;
(w) the Shares have been duly authorized and, when issued and duly
delivered against payment therefor as contemplated by this Agreement, will be
validly issued, fully paid and non-assessable, free and clear of any pledge,
lien, encumbrance, security interest or other claim, and the issuance and sale
of the Shares by the Company is not subject to preemptive or other similar
rights arising by operation of law, under the organizational documents of the
Company or under any agreement to which the Company or any Subsidiary is a party
or otherwise;
(x) the Shares have been approved for listing on the NYSE, subject to
official notice of issuance;
(y) neither the Company nor any of its directors, officers or
affiliates has taken, and will not take, directly or indirectly, any action
which is designed to or which has constituted or which might reasonably be
expected to cause or result in stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Shares;
(z) each executive officer, director and BFC has executed or will
have executed by Closing Time an agreement substantially in the form attached
hereto as Exhibit A (the "Lock-Up Agreements"); the Company has provided, or
---------
will provide prior to Closing Time, to counsel for the Underwriters true,
accurate and complete copies of all of the Lock-Up Agreements presently in
effect or effected hereby;
(aa) except as disclosed in the Prospectus or as disclosed in the
"NASD Questionnaire," neither the Company nor any of its affiliates (i) is
required to register as a "broker" or "dealer" in accordance with the provisions
of the Exchange Act or the Exchange Act Regulations, or (ii) directly, or
indirectly through one or more intermediaries, controls or has any other
association with (within the meaning of Article I of the By-laws of the National
Association of Securities Dealers, Inc. (the "NASD")) any member firm of the
NASD;
(bb) the Company has not relied upon the Representatives or legal
counsel for the Representatives for any legal, tax or accounting advice in
connection with the offering and sale of the Shares;
(cc) any certificate signed by any officer of the Company or any
Subsidiary delivered to the Representatives or to counsel for the Underwriters
pursuant to or in connection with this Agreement shall be deemed a
representation and warranty by the Company to each Underwriter as to the matters
covered thereby;
(dd) the form of certificate used to evidence the Common Stock
complies in all material respects with all applicable statutory requirements,
with any applicable requirements of the organizational documents of the Company
and the requirements of the NYSE;
10
(ee) the Company and the Subsidiaries have good and marketable title
in fee simple to all real property, if any, and good title to all personal
property owned by them, in each case free and clear of all liens, security
interests, pledges, charges, encumbrances, mortgages and defects, except such as
are disclosed in the Prospectus or such as are not material in amount or do not
materially and adversely affect the value of such property and do not interfere
with the use made or proposed to be made of such property by the Company and the
Subsidiaries or as do not interfere with the ability of the Company and the
Subsidiaries to operate their respective businesses as currently operated; and
any real property and buildings held under lease (all such owned and leased real
property, the "Properties") by the Company or any Subsidiary are held under
valid, existing and enforceable leases, with such exceptions as are disclosed in
the Prospectus or are not material and do not interfere with the use made or
proposed to be made of such property and buildings by the Company or such
Subsidiary;
(ff) the descriptions in the Registration Statement and the Prospectus
of the legal or governmental proceedings, contracts, leases and other legal
documents therein described present fairly the information required to be shown,
and there are no legal or governmental proceedings, contracts, leases, or other
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 which
are not described or filed as required; all agreements between the Company or
any of the Subsidiaries and third parties expressly referenced in the Prospectus
are legal, valid and binding obligations of the Company or one or more of the
Subsidiaries, enforceable in accordance with their respective terms, except to
the extent enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights generally
and by general equitable principles, or except where the non-enforceability of
any such agreements is not reasonably likely to result in a Material Adverse
Effect;
(gg) the Company and each Subsidiary owns or possesses adequate
licenses or other rights to use all material patents, trademarks, service marks,
trade names, copyrights, software and design licenses, trade secrets,
manufacturing processes, other intangible property rights and know-how
(collectively "Intangibles") necessary to entitle the Company and each
Subsidiary to conduct its business as described in the Prospectus, and neither
the Company nor any Subsidiary has received notice of infringement of or
conflict with (and the Company knows of no such infringement of or conflict
with) asserted rights of others with respect to any Intangibles which would be
reasonably likely to result in a Material Adverse Effect;
(hh) the Company and each of the Subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed substantially in accordance with management's general
or specific authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally accepted
accounting principles as applied in the United States and to maintain asset
accountability; (iii) access to assets is permitted only in accordance with
management's general or specific authorization; and
11
(iv) the recorded accountability for assets is compared with the existing assets
at reasonable intervals and appropriate action is taken with respect to any
differences;
(ii) each of the Company and the Subsidiaries has filed on a timely
basis all necessary federal, state, local and foreign income and franchise tax
returns required to be filed through the date hereof and have paid all taxes
shown as due thereon; and no tax deficiency has been asserted against any such
entity, nor does any such entity know of any tax deficiency which is likely to
be asserted against any such entity which, if determined adversely to any such
entity, is not reasonably likely to result in a Material Adverse Effect; and all
material tax liabilities are adequately provided for on the respective books of
such entities;
(jj) each of the Company and the Subsidiaries maintains insurance
(issued by insurers of recognized financial responsibility) of the types and in
the amounts generally deemed adequate for their respective businesses and
consistent with insurance coverage maintained by similar companies in similar
businesses, including, but not limited to, insurance covering real and personal
property owned or leased by the Company and the Subsidiaries against theft,
damage, destruction, acts of vandalism and all other risks customarily insured
against, all of which insurance is in full force and effect; except as disclosed
in the Prospectus, neither the Company nor any of its Subsidiaries has any
reason to believe that it will not be able to renew its existing insurance
coverage in all material respects as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue its
business at a comparable cost; except as disclosed in the Prospectus, neither
the Company nor any of its Subsidiaries have been denied any material insurance
coverage which it has sought or for which it has applied for;
(kk) neither the Company nor any of the Subsidiaries is in violation,
or has received notice of any violation with respect to, any material
environmental, safety or similar law applicable to the business of the Company
or any of the Subsidiaries; the Company and the Subsidiaries have received all
material permits, licenses or other approvals required of them under applicable
federal and state occupational safety and health and environmental laws and
regulations to conduct their respective businesses, and the Company and the
Subsidiaries are in compliance with all terms and conditions of any such permit,
license or approval, except for any such violation of law or regulation, failure
to receive required permits, licenses or other approvals or failure to comply
with the terms and conditions of such permits, licenses or approvals which is
not reasonably likely to result in a Material Adverse Effect;
(ll) neither the Company nor any Subsidiary is in material violation
of or has received notice of any material violation with respect to any federal
or state law relating to discrimination in the hiring, promotion or pay of
employees, nor any applicable federal or state wages and hours law, nor any
state law precluding the denial of credit due to the neighborhood in which a
property is situated, except for such violations which are not reasonably likely
to result in a Material Adverse Effect;
12
(mm) the Company and each of the Subsidiaries or their "ERISA
Affiliates" (as defined below) are in compliance in all material respects with
all presently applicable provisions of the Employee Retirement Income Security
Act of 1974, as amended, including the regulations and published interpretations
thereunder ("ERISA"); no "reportable event" (as defined in ERISA) has occurred
with respect to any "employee benefit plan" (as defined in ERISA) for which the
Company or any of the Subsidiaries or ERISA Affiliates would have any liability;
the Company and each of the Subsidiaries or their ERISA Affiliates have not
incurred and do not expect to incur liability under (i) Title IV of ERISA with
respect to termination of, or withdrawal from, any "employee benefit plan" or
(ii) Sections 412, 4971, 4975 or 4980B of the Internal Revenue Code of 1986, as
amended, and the regulations and published interpretations thereunder
(collectively the "Code"); and each "employee benefit plan" for which the
Company and each of its Subsidiaries or any of their ERISA Affiliates would have
any liability that is intended to be qualified under Section 401(a) of the Code
is so qualified in all material respects and nothing has occurred, whether by
action or by failure to act, which would cause the loss of such qualification.
"ERISA Affiliate" means, with respect to the Company or a Subsidiary, any member
of any group of organizations described in Sections 414(b), (c), (m) or (o) of
the Code of which the Company or such Subsidiary is a member;
(nn) neither the Company nor any of the Subsidiaries nor, to the
knowledge of the Company, any executive officer or director purporting to act on
behalf of the Company or any of the Subsidiaries has at any time (i) made any
contributions to any candidate for political office, or failed to disclose fully
any such contributions, in violation of law, (ii) made any payment to any state,
federal or foreign governmental officer or official, or other person charged
with similar public or quasi-public duties, other than payments required or
allowed by applicable law, (iii) made any payment outside the ordinary course of
business to any investment officer or loan broker or person charged with similar
duties of any entity to which the Company or any of the Subsidiaries sells or
from which the Company or any of the Subsidiaries buys loans or servicing
arrangements for the purpose of influencing such agent, officer, broker or
person to buy loans or servicing arrangements from or sell loans to the Company
or any of the Subsidiaries, or (iv) engaged in any transactions, maintained any
bank account or used any corporate funds except for transactions, bank accounts
and funds which have been and are reflected in the normally maintained books and
records of the Company and the Subsidiaries;
(oo) except as disclosed in the Prospectus, there are no material
outstanding loans or advances or material guarantees of indebtedness by the
Company or any of the Subsidiaries to or for the benefit of any of the executive
officers or directors of the Company or any of the Subsidiaries or any of the
members of the families of any of them;
(pp) neither the Company nor any of the Subsidiaries nor, to the
knowledge of the Company, any director, officer, employee or agent of the
Company or any of the Subsidiaries, has made any payment of funds of the Company
or of any
13
Subsidiary or received or retained any funds in violation of any law, rule
or regulation or of a character required to be disclosed in the Prospectus;
(qq) all securities issued by the Company, any of the Subsidiaries or
any trusts established by the Company or any Subsidiary, have been issued and
sold in material compliance with (i) all applicable federal and state securities
laws, (ii) the laws of the applicable jurisdiction of incorporation of the
issuing entity and (iii) to the extent applicable to the issuing entity, the
requirements of NYSE or exempt from the registration requirements of the
Securities Act and were duly registered or the subject of an available exemption
from the registration requirements of the applicable state securities or blue
sky laws;
(rr) neither the Company nor any Subsidiary knows of any violation of
any material municipal, state or federal law, rule or regulation (including
those pertaining to environmental matters) concerning: (A) the Properties or any
part thereof which is reasonably likely to result in a Material Adverse Effect;
(B) each of the Properties complies in all material respects with all applicable
zoning laws, ordinances, regulations and deed restrictions or other covenants
and, if and to the extent there is a failure to comply, such failure does not
materially impair the value of any of the Properties and will not result in a
forfeiture or reversion of title; and (C) neither the Company nor any Subsidiary
has received from any governmental authority any written notice of any
condemnation of or zoning change affecting the Properties or any part thereof,
and neither the Company nor any Subsidiary knows of any such condemnation or
zoning change which is threatened and which if consummated would have a Material
Adverse Effect;
(ss) except as disclosed in the Prospectus, the most recent
Preliminary Prospectus or in the Phase I Environmental Audits previously
delivered to the Underwriters (the "Audits"), or as would not have a Material
Adverse Effect (i) neither the Company nor any of the Subsidiaries, has at any
time, handled, stored, treated, transported, manufactured, spilled, leaked, or
discharged, dumped, transferred or otherwise disposed of or dealt with,
Hazardous Materials (as hereinafter defined) on, to or from the Properties,
other than by any such action taken in compliance in all material respects with
all applicable Environmental Statutes (as hereinafter defined) or by the Company
or any of the Subsidiaries in connection with the ordinary use of the
Properties; (ii) neither the Company nor any of its Subsidiaries intend to use
the Properties, for the purpose of handling, storing, treating, transporting,
manufacturing, spilling, leaking, discharging, dumping, transferring or
otherwise disposing of or dealing with Hazardous Materials other than by any
such action taken in compliance in all material respects with all applicable
Environmental Statues or by the Company or any of the Subsidiaries in connection
with the ordinary use of the Properties; (iii) neither the Company, nor any of
the Subsidiaries knows of any seepage, leak, discharge, release, emission,
spill, or dumping of Hazardous Materials into waters on or adjacent to the
Properties or onto lands from which Hazardous Materials might seep, flow or
drain into such waters; (iv) neither the Company, nor any of the Subsidiaries
has received any written notice of, or has any knowledge of any occurrence or
circumstance which, with notice or passage of time or both, would give rise to a
claim under or pursuant to any federal, state or local
14
environmental statute or regulation or under common law, pertaining to Hazardous
Materials on or originating from any of the Properties or any assets described
in the Prospectus (or, the most recent Preliminary Prospectus) (v) the
Properties, are not included or, to the best of the Company's knowledge,
proposed for inclusion on the National Priorities List issued pursuant to CERCLA
(as hereinafter defined) by the United States Environmental Protection Agency
or, to the best of the Company's knowledge, proposed for inclusion on any
similar list or inventory issued pursuant to any other Environmental Statute or
issued by any other Governmental Authority (as hereinafter defined);
As used herein, "Hazardous Material" shall include, without limitation
any flammable explosives, radioactive materials, hazardous materials, hazardous
wastes, toxic substances, or related materials, asbestos or any hazardous
material as defined by any federal, state or local environmental law, ordinance,
rule or regulation including without limitation the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C.
Sections 9601-9675 ("CERCLA"), the Hazardous Materials Transportation Act, as
amended, 49 U.S.C. Sections 1801-1819, the Resource Conservation and Recovery
Act, as amended, 42 U.S.C. Sections 6901-6992K, the Emergency Planning and
Community Right-to-Know Act of 1986, 42 U.S.C. Sections 11001-11050, the Toxic
Substances Control Act, 15 U.S.C. Sections 2601-2671, the Federal Insecticide,
Fungicide and Rodenticide Act, 7 U.S.C. Sections 136-136y, the Clean Air Act, 42
U.S.C. Sections 7401-7642, the Clean Water Act (Federal Water Pollution Control
Act), 33 U.S.C. Sections 1251-1387, the Safe Drinking Water Act, 42 U.S.C.
Sections 300f-300j-26, and the Occupational Safety and Health Act, 29 U.S.C.
Sections 651-678, as any of the above statutes may be amended from time to time,
and in the regulations promulgated pursuant to each of the foregoing
(individually, an "Environmental Statute") or by any federal, state or local
governmental authority having or claiming jurisdiction over the properties and
assets described in the Prospectus (a "Governmental Authority");
(tt) in connection with this offering, the Company has not offered and
will not offer its Common Stock or any other securities convertible into or
exchangeable or exercisable for Common Stock in a manner in violation of the
Securities Act. The Company has not distributed and will not distribute any
Prospectus or other offering material in connection with the offer and sale of
the Shares;
(uu) the Company has complied and will comply in all material respects
with all the provisions of Florida Statutes, Section 517.075 (Chapter 92-198,
Laws of Florida); and neither the Company nor any of the Subsidiaries or
affiliates does business with the government of Cuba or, to the knowledge of the
Company, with any person or affiliate located in Cuba which would require
disclosure under or would be a violation of such law;
(vv) the Company has not incurred any liability for any finder's fees
or similar payments in connection with the transactions herein contemplated
other than to the Underwriters;
15
(ww) no relationship, direct or indirect, exists between or among the
Company or any of the Subsidiaries on the one hand, and the directors, officers,
stockholders, customers or suppliers of the Company or any of the Subsidiaries
on the other hand, which is required by the Securities Act and the Securities
Act Regulations to be described in the Registration Statement and the Prospectus
and which is not so described;
(xx) neither the Company nor any of the Subsidiaries is and, after
giving effect to the offering and sale of the Shares, will 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"); and
(yy) there are no existing or, to the knowledge of the Company,
threatened labor disputes with the employees of the Company or any of the
Subsidiaries which would be reasonably likely to result in a Material Adverse
Effect.
4. Certain Covenants.
-----------------
The Company hereby covenants and agrees with each Underwriter:
(a) to furnish such information as may be required and otherwise to
cooperate in qualifying the Shares for offering and sale under the securities or
blue sky laws of such jurisdictions (both domestic and foreign) as the
Representatives may designate and to maintain such qualifications in effect as
long as requested by the Representatives for the distribution of the Shares,
provided that the Company shall not be required to qualify as a foreign
corporation or to consent to the service of process under the laws of any such
state (except service of process with respect to the offering and sale of the
Shares);
(b) if, at the time this Agreement is executed and delivered, it is
necessary for a post-effective amendment to the Registration Statement to be
declared effective before the offering of the Shares may commence, the Company
will endeavor to cause such post-effective amendment to become effective as soon
as possible and will advise the Representatives promptly and, if requested by
the Representatives, will confirm such advice in writing, when such post-
effective amendment has become effective;
(c) to prepare the Prospectus in a form approved by the Underwriters
and timely file such Prospectus (or a term sheet as permitted by Rule 434) with
the Commission pursuant to Rule 424(b) under the Securities Act and to furnish
promptly on the day following the execution and delivery of this Agreement or on
such other day as the parties may mutually agree) to the Underwriters copies of
the Prospectus (or of the Prospectus as amended or supplemented if the Company
shall have made any amendments or supplements thereto after the effective date
of the Registration Statement) in such quantities and at such locations as the
Underwriters may reasonably request for the purposes contemplated by the
Securities Act Regulations, which Prospectus and any amendments or supplements
thereto furnished to the Underwriters will be identical to the
16
version created to be transmitted to the Commission for filing via ▇▇▇▇▇, except
to the extent permitted by Regulation S-T;
(d) to advise the Representatives promptly and (if requested by the
Representatives) to confirm such advice in writing, when the Registration
Statement has become effective, if not effective prior to the execution and
delivery of this Agreement, and when any post-effective amendment thereto
becomes effective under the Securities Act Regulations;
(e) to advise the Representatives immediately, confirming such advice
in writing, of (i) the receipt of any comments from, or any request by, the
Commission for amendments or supplements to the Registration Statement or
Prospectus or for additional information with respect thereto, or (ii) 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 the Prospectus, or of the suspension of the
qualification of the Shares for offering or sale in any jurisdiction, or of the
initiation or threatening of any proceedings for any of such purposes and, if
the Commission or any other government agency or authority should issue any such
order, to make every reasonable effort to obtain the lifting or removal of such
order as soon as possible; to advise the Representatives promptly of any
proposal to amend or supplement the Registration Statement or Prospectus and to
file no such amendment or supplement to which the Representatives shall
reasonably object in writing;
(f) to furnish to the Underwriters for a period of five years from
the date of this Agreement (i) as soon as available, copies of all annual,
quarterly and current reports or other communications supplied to holders of
shares of Common Stock, and (ii) as soon as practicable after the filing
thereof, copies of all reports filed by the Company with the Commission, the
NYSE or any securities exchange;
(g) to advise the Underwriters promptly of the happening of any event
known to the Company within the time during which a Prospectus relating to the
Shares is required to be delivered under the Securities Act Regulations which,
in the judgment of the Company or in the reasonable opinion of the
Representatives or counsel for the Underwriters, would require the making of any
change in the Prospectus then being used so that the Prospectus would not
include 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, in
the light of the circumstances under which they were made, not misleading, or if
it is necessary at any time to amend or supplement the Prospectus to comply with
any law and, during such time, to promptly prepare and furnish to the
Underwriters copies of the proposed amendment or supplement before filing any
such amendment or supplement with the Commission and thereafter promptly furnish
at the Company's own expense to the Underwriters and to dealers, copies in such
quantities and at such locations as the Representatives may from time to time
reasonably request of an appropriate amendment to the Registration Statement or
supplement to the Prospectus so that the Prospectus as so amended or
supplemented will not, in the light of the circumstances when it is so
delivered, be misleading, or so that the Prospectus will comply with the law;
17
(h) to file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the Prospectus
that may, in the judgment of the Company or the Representatives, be required by
the Securities Act or requested by the Commission;
(i) the Company will not file with the Commission the Prospectus or
any amendment or supplement to the Prospectus or any amendment to the
Registration Statement unless the Representatives received a reasonable period
of time to review any such proposed amendment or supplement and consented to the
filing thereof, which consent shall not be unreasonably withheld, and will use
its best efforts to cause any such amendment to the Registration Statement to be
declared effective as promptly as possible; upon the request of the
Representatives or counsel for the Underwriters, the Company will promptly
prepare and file with the Commission, in accordance with the rules and
regulations of the Commission, any amendments to the Registration Statement or
amendments or supplements to the Prospectus that may be necessary or advisable
in connection with the distribution of the Shares by the several Underwriters
and will use its best efforts to cause any such amendment to the Registration
Statement to be declared effective as promptly as possible; if required, the
Company will file any amendment or supplement to the Prospectus with the
Commission in the manner and within the time period required by Rule 424(b)
under the Securities Act; the Company has not and will not distribute, prior to
the later of the final Closing Time or the completion of the Underwriters'
distribution of the Shares, any offering material in connection with the
offering and sale of the Shares other than a Preliminary Prospectus, the
Prospectus or the Registration Statement;
(j) to furnish promptly to each Representative, without charge, a
signed copy of the Registration Statement, as initially filed with the
Commission, and of all amendments or supplements thereto (including all exhibits
filed therewith or incorporated by reference therein) and such number of
conformed copies of the foregoing as the Representatives may reasonably request
and so long as a prospectus relating to the Shares is required to be delivered
under the Securities Act, copies of each Preliminary Prospectus or the
Prospectus or any amendment or supplement thereto in such quantities and at such
places as the Representatives may reasonably request;
(k) to apply the net proceeds of the sale of the Shares in accordance
with its statements under the caption "Use of Proceeds" in the Prospectus;
(l) to make generally available to its security holders and to
deliver to the Representatives as soon as practicable, but in any event not
later than the last day of the thirteenth month after the effective date of the
Registration Statement an earnings statement complying with the provisions of
Section 11(a) of the Securities Act (in form, at the option of the Company,
complying with the provisions of Rule 158 of the Securities Act Regulations),
covering a period of 12 months beginning after the effective date of the
Registration Statement;
(m) to list the Shares on the NYSE and, so long as the Company is
publicly held, to use its best efforts to maintain the listing or quotation of
the Shares on
18
the NYSE, the Nasdaq National Market or a comparable national securities
exchange or automated quotation system and file with such entity all documents
and notices required of companies that have securities that are listed for
trading or quoted on such exchange or automated quotation system;
(n) to engage and maintain, at its expense, a registrar and transfer
agent for the Shares;
(o) to refrain during a period of 135 days from the date of the
Prospectus, without the prior written consent of the Representatives, from,
directly or indirectly, (i) offering, pledging, selling, contracting to sell,
selling any option or contract to purchase, purchasing any option or contract to
sell, granting any option for the sale of, or otherwise disposing of or
transferring (or entering into any transaction or device which is designed to,
or could be expected to, result in the disposition by any person at any time in
the future of), any share of Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock, or filing any registration
statement under the Securities Act with respect to any of the foregoing, or (ii)
entering into any swap or any other agreement or any transaction that transfers,
in whole or in part, directly or indirectly, the economic consequence of
ownership of the Common Stock, whether any such swap or transaction described in
clause (i) or (ii) above is to be settled by delivery of Common Stock or such
other securities, in cash or otherwise. The foregoing sentence shall not apply
to (A) the Shares to be sold hereunder, (B) any shares of Common Stock issued by
the Company upon the exercise of an option outstanding on the date hereof, or
(C) the issuance by the Company of shares of Common Stock to employees or
directors of the Company or any Subsidiary or as dividends on the Common Stock
or the Company's Class B Common Stock, (D) the issuance by the Company of any
options pursuant to the Company's currently effective stock option and incentive
plans, (E) the issuance by the Company of shares of Common Stock as
consideration for the purchase of any business or assets by the Company or any
Subsidiary, or (F) any shares of Common Stock issued by the Company upon the
conversion of the Company's 5-5/8% Convertible Subordinated Debentures due 2007
or the Company's 6-3/4% Convertible Subordinated Debentures due 2006;
(p) not to, and to use its best efforts to cause its officers,
directors and affiliates not to, (i) take, directly or indirectly prior to
termination of the underwriting syndicate contemplated by this Agreement, any
action designed to stabilize or manipulate the price of any security of the
Company, or which may cause or result in, or which might in the future
reasonably be expected to cause or result in, the stabilization or manipulation
of the price of any security of the Company, to facilitate the sale or resale of
any of the Shares, (ii) sell, bid for, purchase or pay anyone any compensation
for soliciting purchases of the Shares or (iii) pay or agree to pay to any
person any compensation for soliciting any order to purchase any other
securities of the Company;
(q) to cause each executive officer, and director and use its best
efforts to cause BFC to furnish to the Representatives, prior to the first Date
of Delivery, their respective Lock-Up Agreement;
19
(r) if at any time during the 90-day period after the Registration
Statement becomes effective, any rumor, publication or event relating to or
affecting the Company shall occur as a result of which, in the reasonable
opinion of the Representatives, the market price of the Common Stock has been or
is likely to be materially affected (regardless of whether such rumor,
publication or event necessitates a supplement to or amendment of the
Prospectus) and after written notice from the Representatives advising the
Company to the effect set forth above, to forthwith prepare, consult with the
Representatives concerning the substance of, and disseminate a press release or
other public statement, reasonably satisfactory to the Representatives,
responding to or commenting on such rumor, publication or event; and
(s) that the Company will comply with all of the provisions of any
undertakings in the Registration Statement.
5. Payment of Expenses.
-------------------
(a) The Company agrees to pay all costs and expenses incident to the
performance of its obligations under this Agreement, whether or not the
transactions contemplated hereunder are consummated or this Agreement is
terminated, including expenses, fees and taxes in connection with (i) the
preparation and filing of the Registration Statement, each Preliminary
Prospectus, the Prospectus, and any amendments or supplements thereto, and the
printing and furnishing of copies of each thereof to the Underwriters and to
dealers (including costs of mailing and shipment), (ii) the preparation,
issuance and delivery of the certificates for the Shares to the Underwriters,
including any stock or other transfer taxes or duties payable upon the sale of
the Shares to the Underwriters, (iii) the printing of this Agreement and any
dealer agreements and furnishing of copies of each to the Underwriters and to
dealers (including costs of mailing and shipment), (iv) the qualification of the
Shares for offering and sale under state laws that the Company and the
Representatives have mutually agreed are appropriate and the determination of
their eligibility for investment under state law as aforesaid (including the
legal fees and filing fees and other disbursements of counsel for the
Underwriters and the printing and furnishing of copies of any blue sky surveys
or legal investment surveys to the Underwriters and to dealers), (v) filing for
review of the public offering of the Shares by the NASD (including the legal
fees and filing fees and other disbursements of counsel for the Underwriters
relating thereto), (vi) the fees and expenses of any transfer agent or registrar
for the Shares and miscellaneous expenses referred to in the Registration
Statement, (vii) the fees and expenses incurred in connection with the inclusion
of the Shares in NYSE, (viii) making road show presentations with respect to the
offering of the Shares, (ix) preparing and distributing bound volumes of
transaction documents for the Representatives and its legal counsel and (x) the
performance of the Company's other obligations hereunder. Upon the request of
the Representatives, the Company will provide funds in advance for filing fees.
(b) The Company agrees to reimburse the Representatives for up to
$115,000 of their reasonable out-of-pocket expenses in connection with the
performance of its activities under this Agreement, including, but not limited
to, the fees and expenses
20
of the Underwriters' outside legal counsel, costs such as printing, facsimile,
courier service, direct computer expenses, accommodations and travel, but
excluding the fees and expenses of other advisors, accountants, appraisers, etc.
(c) If this Agreement shall be terminated by the Underwriters, or any
of them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for up
to $115,000 in the aggregate to all Underwriters for their reasonable out-of-
pocket expenses (such as printing, facsimile, courier service, direct computer
expenses, accommodations, travel and the fees and disbursements of Underwriters'
counsel) and any other advisors, accountants, appraisers, etc. reasonably
incurred by such Underwriters in connection with this Agreement or the
transactions contemplated herein.
6. Conditions of the Underwriters' Obligations.
-------------------------------------------
(a) The obligations of the Underwriters hereunder to purchase Shares
at the Closing Time or on each Date of Delivery, as applicable, are subject to
the accuracy of the representations and warranties on the part of the Company
hereunder on the date hereof and at the Closing Time and on each Date of
Delivery, as applicable, the performance by the Company of its obligations
hereunder and to the satisfaction of the following further conditions at the
Closing Time or on each Date of Delivery, as applicable:
(b) The Company shall furnish to the Underwriters at the Closing Time
and on each Date of Delivery an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, P.A., counsel for the Company and the Subsidiaries,
addressed to the Underwriters and dated the Closing Time and each Date of
Delivery and in form and substance reasonably satisfactory to ▇▇▇▇▇▇ & Bird LLP,
counsel for the Underwriters, stating that:
(i) the Company has an authorized capitalization as set forth
in the Prospectus; the outstanding shares of capital stock of the Company
and the Subsidiaries have been duly and validly authorized and issued and
are, to such counsel's knowledge, fully paid and non-assessable, and all of
the outstanding shares of capital stock of the Subsidiaries are directly or
indirectly owned of record and, to such counsel's knowledge, beneficially
by the Company;
(ii) each of the Company and the Subsidiaries has been duly
organized and is validly existing and in good standing under the laws of
its respective jurisdiction of organization with full power and authority
to own its respective properties and to conduct its respective businesses
as described in the Registration Statement and Prospectus and, in the case
of the Company, to
21
execute and deliver this Agreement and to consummate the transactions
described in this Agreement;
(iii) to such counsel's knowledge, the Company and the
Subsidiaries are duly qualified or licensed by each jurisdiction in which
they conduct their respective businesses and are in good standing, in each
jurisdiction in which they own or lease real property or maintain an office
and in which such qualification is necessary except where the failure to be
so qualified and in good standing would not have a Material Adverse Effect;
(iv) the Company is duly registered with the Office of Thrift
Supervision as a savings and loan holding company under the Home Owners
Loan Act, as amended; BankAtlantic, A Federal Savings Bank (the "Bank"), is
organized and validly existing as a federal savings bank under the laws of
the United States and continues to hold a valid charter to do business as a
federal savings bank; and the Company is a grandfathered unitary savings
and loan holding company under Section 10 of the Home Owners Loan Act, as
amended;
(v) to such counsel's knowledge, neither the Company nor any
of the Subsidiaries is in violation of any term or provision of its
organizational documents;
(vi) the execution, delivery and performance of this Agreement
by the Company and the consummation by the Company of the transactions
contemplated by this Agreement do not and will not (A) conflict with, or
result in any breach of, or constitute a default under (nor constitute any
event which with notice, lapse of time, or both would constitute a breach
of or default under), (i) any provisions of the articles of incorporation,
charter or by-laws of the Company or any Subsidiary or, (ii) to such
counsel's knowledge, (1) any provision of any material license, indenture,
mortgage, deed of trust, loan, credit or other agreement or to which the
Company or any Subsidiary is a party or by which any of them or their
respective properties or assets may be bound or affected, (2) any law or
regulation binding upon or applicable to the Company or any Subsidiary or
any of their respective properties or assets, or (3) any decree, judgment
or order applicable to the Company or any Subsidiary, except such
conflicts, breaches or defaults that would not have a Material Adverse
Effect; or (B) to such counsel's knowledge, result in the creation or
imposition of any material lien, charge, claim or encumbrance upon any
material property or assets of the Company or the Subsidiaries;
(vii) this Agreement has been duly authorized, executed and
delivered by the Company and is a legal, valid and binding agreement of the
Company enforceable in accordance with its terms;
(viii) no approval, authorization, consent or order of or filing
with any federal or state governmental or regulatory commission, board,
body, authority or agency is required in connection with the execution,
delivery and
22
performance of this Agreement, the consummation of the transactions
contemplated herein, and the sale and delivery of the Shares by the Company
as contemplated herein, other than such as have been obtained or made under
the Securities Act and the Securities Act Regulations, the Exchange Act and
Exchange Act Regulations, and the rules and regulations of the NYSE, and
except that such counsel need express no opinion as to any necessary
qualification under the state securities or blue sky laws of the various
jurisdictions in which the Shares are being offered by the Underwriters;
(ix) to such counsel's knowledge, each of the Company and the
Subsidiaries has all material licenses, authorizations, consents and
approvals and has made all material filings required under any federal,
state or local law, regulation or rule, required to conduct their
respective businesses, as described in the Prospectus except where the
failure to acquire same would not have a Material Adverse Effect; to such
counsel's knowledge, neither the Company nor any Subsidiary is in violation
of, in default under, or has received any written notice regarding a
possible violation, default or revocation of any such license,
authorization, consent or approval or any federal, state, local or foreign
law, regulation or decree, order or judgment applicable to the Company or
any of the Subsidiaries, except any such violation, default or revocation
that would not have a Material Adverse Effect;
(x) the Company is not subject to registration as an
investment company under the Investment Company Act of 1940, as amended,
and the transactions contemplated by this Agreement will not cause the
Company to become an investment company subject to registration under the
Investment Company Act of 1940;
(xi) the Shares have been duly authorized and when the Shares
have been issued and duly delivered against payment therefor as
contemplated by this Agreement, the Shares will be validly issued, fully
paid and non-assessable, and, to such counsel's knowledge, the Company will
issue the Shares, free and clear of any pledge, lien, encumbrance, security
interest, or other claim;
(xii) the issuance and sale of the Shares by the Company is not
subject to preemptive or other similar rights arising by operation of law,
under the articles of incorporation, charter or by-laws of the Company, or,
to such counsel's knowledge, under any agreement to which the Company or
any of the Subsidiaries is a party;
(xiii) to such counsel's knowledge, there are no persons with
registration or other similar rights to have any equity or debt securities,
including securities that are convertible into or exchangeable for equity
securities, registered pursuant to the Registration Statement, except for
those registration or similar rights which have been waived with respect to
the offering contemplated by this Agreement;
23
(xiv) the Shares conform in all material respects to the
descriptions thereof contained in the Registration Statement and
Prospectus;
(xv) the form of certificate used to evidence the Common
Stock complies in all material respects with all applicable statutory
requirements, with any applicable requirements of the organizational
documents of the Company and the requirements of the NYSE;
(xvi) to such counsel's knowledge, the Registration Statement
has become effective under the Securities Act and no stop order suspending
the effectiveness of the Registration Statement has been issued and no
proceedings with respect thereto have been commenced or threatened;
(xvii) as of the effective date of the Registration Statement,
the Registration Statement, the Prospectus and all documents incorporated
by reference into the Registration Statement (except as to the financial
statements and other financial and statistical data contained therein, as
to which such counsel need express no opinion) complied as to form in all
material respects with the requirements of the Securities Act, the Exchange
Act, the Securities Act Regulations and the Exchange Act Regulations;
(xviii) the statements under the caption "Description of Capital
Stock" in the Registration Statement and the Prospectus, insofar as such
statements constitute a summary of the legal matters referred to therein,
constitute accurate summaries thereof in all material respects;
(xix) to such counsel's knowledge, there are no actions, suits
or proceedings, inquiries, or investigations pending or threatened against
the Company or any of the Subsidiaries or any of their respective officers
and directors or to which the properties, assets or rights of any such
entity are subject, at law or in equity, before or by any federal, state,
local or foreign governmental or regulatory commission, board, body,
authority, arbitral panel or agency which are required to be described in
the Prospectus but are not so described, other than litigation incidental
to the business of the Company and the Subsidiaries which is, individually
or in the aggregate, not material to the Company and the Subsidiaries,
considered as one enterprise; and
(xx) to such counsel's knowledge, there are no contracts or
documents of a character which are required to be filed as exhibits to the
Registration Statement or required to be described or summarized in the
Prospectus which have not been so filed, summarized or described, and all
such summaries and descriptions, in all material respects, fairly and
accurately set forth the material provisions of such contracts and
documents.
In addition, such counsel shall state that they have participated in
conferences with officers and other representatives of the Company, independent
public accountants of the Company, representatives of the Representatives, at
which the contents of the
24
Registration Statement and Prospectus were discussed and, although such counsel
is not passing upon and does not assume responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or Prospectus (except as and to the extent stated in subparagraphs
(xii), (xiv) and (xviii) above), that no facts have come to such counsel's
attention which would lead it to believe that the Registration Statement, the
Preliminary Prospectus or the Prospectus, as of their respective effective or
issue date, and as of the date of such counsel's opinion, contained or contains
an untrue statement of a material fact or omitted or omits to state a material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading (it
being understood that, in each case, such counsel need express no view with
respect to the financial statements and other financial and statistical data
included in the Registration Statement, Preliminary Prospectus or Prospectus).
(c) The Representatives shall have received from KPMG LLP, letters
dated, respectively, as of the date of this Agreement, the Closing Time and each
Date of Delivery, as the case may be, addressed to the Representatives, in form
and substance satisfactory to the Representatives, relating to the financial
statements, including any pro forma financial statements, of the Company and the
Subsidiaries, and such other matters customarily covered by comfort letters
issued in connection with registered public offerings.
In the event that the letters referred to above set forth any material
changes in indebtedness, decreases in total assets, retained earnings or capital
or increases in borrowings, it shall be a further condition to the obligations
of the Underwriters that (A) such letters shall be accompanied by a written
explanation of the Company as to the significance thereof, unless the
Representatives deems such explanation unnecessary, and (B) such changes,
decreases or increases do not, in the sole judgment of the Representatives, make
it impractical or inadvisable to proceed with the purchase and delivery of the
Shares as contemplated by the Registration Statement.
(d) The Representatives shall have received at the Closing Time and
on each Date of Delivery the favorable opinion of ▇▇▇▇▇▇ & Bird LLP, dated the
Closing Time or such Date of Delivery, addressed to the Representatives and in
form and substance satisfactory to the Representatives.
(e) No amendment or supplement to the Registration Statement or
Prospectus shall have been filed to which the Underwriters shall have objected
in writing.
(f) Prior to the Closing Time and each Date of Delivery (i) no stop
order suspending the effectiveness of the Registration Statement or any order
preventing or suspending the use of any Preliminary Prospectus or Prospectus has
been issued, and no proceedings for such purpose shall have been initiated or
threatened, by the Commission, and no suspension of the qualification of the
Shares for offering or sale in any jurisdiction, or the initiation or
threatening of any proceedings for any of such purposes, has occurred; (ii) all
requests for additional information on the part of the Commission shall have
been complied with to the reasonable satisfaction of the
25
Representatives; and (iii) the Registration Statement and the Prospectus shall
not 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,
in the light of the circumstances under which they were made, not misleading.
(g) All filings with the Commission required by Rule 424 under the
Securities Act to have been filed by the Closing Time shall have been made
within the applicable time period prescribed for such filing by such Rule.
(h) Between the time of execution of this Agreement and the Closing
Time or the relevant Date of Delivery there shall not have been any Material
Adverse Effect, and no transaction which is material and unfavorable to the
Company shall have been entered into by the Company or any of the Subsidiaries,
in each case, which in the Representatives' sole judgment, makes it
impracticable or inadvisable to proceed with the public offering of the Shares
as contemplated by the Registration Statement.
(i) The Shares shall have been approved for listing on the NYSE.
(j) The NASD shall not have raised any objection with respect to the
fairness and reasonableness of the underwriting terms and arrangements.
(k) The Representatives shall have received Lock-Up Agreements from
each executive officer, director and BFC and such Lock-Up Agreements shall be in
full force and effect.
(l) The Company will, at the Closing Time and on each Date of
Delivery, deliver to the Underwriters a certificate of its Chairman of the
Board, Chief Executive Officer, President, Chief Operating Officer or Vice
President and Chief Accounting Officer or Chief Financial Officer, to the effect
that:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects, as if made on and
as of the date hereof, and the Company has complied in all material
respects with all the agreements and satisfied all the conditions on its
part to be performed or satisfied at or prior to the date hereof;
(ii) no stop order suspending the effectiveness of the
Registration Statement or any post-effective amendment thereto and no order
directed at any document incorporated by reference therein ("Incorporated
Document") has been issued and no proceedings for that purpose have been
instituted or are pending or threatened under the Securities Act;
(iii) when the Registration Statement became effective and at
all times subsequent thereto up to the date hereof, the Registration
Statement and the Prospectus, and any amendments or supplements thereto and
any Incorporated Documents, when such Incorporated Documents became
effective or were filed with the Commission, contained all material
information required to be included
26
therein by the Securities Act and the Securities Act Regulations or the
Exchange Act and the Exchange Act Regulations, as the case may be, and in
all material respects conformed to the requirements of the Securities Act
and the Securities Act Regulations or the Exchange Act and Exchange Act
Regulations, as the case may be; the Registration Statement and the
Prospectus, and any amendments or supplements thereto, did not and do not
include any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; and, since the effective date of the Registration Statement,
there has occurred no event required to be set forth in an amendment or
supplemented Prospectus which has not been so set forth; and
(iv) subsequent to the respective dates as of which
information is given in the Registration Statement and Prospectus, there
has not been (a) any Material Adverse Effect, (b) any transaction that is
material to the Company and the Subsidiaries taken as a whole, except
transactions entered into in the ordinary course of business, (c) any
obligation, direct or contingent, that is material to the Company and the
Subsidiaries taken as a whole, incurred by the Company or the Subsidiaries,
except obligations incurred in the ordinary course of business, (d) any
change in the capital stock or outstanding indebtedness of the Company or
any Subsidiary that is material to the Company and the Subsidiaries taken
as a whole, (e) any dividend or distribution of any kind declared, paid or
made on the capital stock of the Company or any Subsidiary, or (f) any loss
or damage (whether or not insured) to the property of the Company or any
subsidiary which has been sustained or will have been sustained which is
reasonably likely to result in a Material Adverse Effect.
(m) The Company shall have furnished to the Underwriters such other
documents and certificates as to the accuracy and completeness of any statement
in the Registration Statement and the Prospectus, the representations,
warranties and statements of the Company contained herein and the performance by
the Company of its covenants contained herein, and the fulfillment of any
conditions contained herein, as of the Closing Time or any Date of Delivery, as
the Underwriters may reasonably request.
7. Termination.
-----------
The obligations of the several Underwriters hereunder shall be subject to
termination in the absolute discretion of the Representatives, at any time prior
to the Closing Time or any Date of Delivery, (i) if any of the conditions
specified in Section 6 shall not have been fulfilled when and as required by
this Agreement to be fulfilled, or (ii) if there has been since the respective
dates as of which information is given in the Registration Statement, any
Material Adverse Effect, or any development involving a prospective Material
Adverse Effect, or material change in management of the Company or any
Subsidiary, whether or not arising in the ordinary course of business, or (iii)
if there has occurred any outbreak or escalation of hostilities or other
national or international calamity or crisis or change in economic, political or
other conditions the effect of which on the financial
27
markets of the United States is such as to make it, in the reasonable judgment
of the Representatives, impracticable to market the Shares or enforce contracts
for the sale of the Shares, or (iv) if trading in any securities of the Company
has been suspended by the Commission or by the NYSE, or if trading generally on
the NYSE has been suspended (including an automatic halt in trading pursuant to
market-decline triggers, other than those in which solely program trading is
temporarily halted), or limitations on prices for trading (other than
limitations on hours or numbers of days of trading) have been fixed, or maximum
ranges for prices for securities have been required, by such exchange or by
order of the Commission or any other governmental authority, or (v) if there has
been any downgrade in the rating of any of the Company's debt securities or
preferred stock by any "nationally recognized statistical rating organization"
(as defined for purposes of Rule 436(g) under the Securities Act), or (vi) any
federal or state statute, regulation, rule or order of any court or other
governmental authority has been enacted, published, decreed or otherwise
promulgated which, in the reasonable opinion of the Representatives, materially
adversely affects or will materially adversely affect the business or operations
of the Company, or (vii) any action has been taken by any federal, state or
local government or agency in respect of its monetary or fiscal affairs which,
in the reasonable opinion of the Representatives, has a material adverse effect
on the securities markets in the United States so as to make it inadvisable to
proceed with the sale of the Shares.
If the Representatives elect to terminate this Agreement as provided in
this Section 7, the Company and the Underwriters shall be notified promptly by
telephone, promptly confirmed by facsimile.
If the sale to the Underwriters of the Shares, as contemplated by this
Agreement, is not carried out by the Underwriters for any reason permitted under
this Agreement or if such sale is not carried out because the Company shall be
unable to comply in all material respects with any of the terms of this
Agreement, the Company shall not be under any obligation or liability under this
Agreement (except to the extent provided in Sections 5 and 9 hereof) and the
Underwriters shall be under no obligation or liability to the Company under this
Agreement (except to the extent provided in Section 9 hereof) or to one another
hereunder.
8. Increase in Underwriters' Commitments.
-------------------------------------
If any Underwriter shall default at the Closing Time or on a Date of
Delivery in its obligation to take up and pay for the Shares to be purchased by
it under this Agreement on such date, the Representatives shall have the right,
within 36 hours after such default, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to purchase all, but not
less than all, of the Shares which such Underwriter shall have agreed but failed
to take up and pay for (the "Defaulted Shares"). Absent the completion of such
arrangements within such 36-hour period, (i) if the total number of Defaulted
Shares does not exceed 10% of the total number of Shares to be purchased on such
date, each non-defaulting Underwriter shall take up and pay for (in addition to
the number of Shares which it is otherwise obligated to purchase on such date
pursuant to this Agreement) the portion of the total number of Shares agreed to
be purchased by the
28
defaulting Underwriter on such date in the proportion that its underwriting
obligations hereunder bears to the underwriting obligations of all non-
defaulting Underwriters; and (ii) if the total number of Defaulted Shares
exceeds 10% of such total, the Representatives may terminate this Agreement by
notice to the Company, without liability of any party (except a defaulting
Underwriter) to any other party except that the provisions of Sections 5 and 9
hereof shall at all times be effective and shall survive such termination.
Without relieving any defaulting Underwriter from its obligations
hereunder, the Company agrees with the non-defaulting Underwriters that it will
not sell any Shares hereunder on such date unless all of the Shares to be
purchased on such date are purchased on such date by the Underwriters (or by
substituted Underwriters selected by the Representatives with the approval of
the Company or selected by the Company with the approval of the
Representatives).
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
If a new Underwriter or Underwriters are substituted for a defaulting
Underwriter in accordance with the foregoing provision, the Company or the non-
defaulting Underwriters shall have the right to postpone the Closing Time or the
relevant Date of Delivery for a period not exceeding five business days in order
that any necessary changes in the Registration Statement and Prospectus and
other documents may be effected.
The term "Underwriter" as used in this Agreement shall refer to and include
any Underwriter substituted under this Section 8 with the same effect as if such
substituted Underwriter had originally been named in this Agreement.
9. Indemnity and Contribution by the Company and the Underwriters.
----------------------------------------- --------------------
(a) The Company agrees to indemnify, defend and hold harmless each
Underwriter and any person who controls any Underwriter within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act, from and
against any loss, expense, liability, damage or claim (including the reasonable
cost of investigation) which, jointly or severally, any such Underwriter or
controlling person may incur under the Securities Act, the Exchange Act, the
Securities Act Regulations, the Exchange Act Regulations or otherwise, but only
insofar as such loss, expense, liability, damage or claim arises out of or is
based upon (A) any breach of any representation, warranty or covenant of the
Company contained herein, (B) any failure on the part of the Company to comply
with any applicable law, rule or regulation relating to the offering of
securities being made pursuant to the Prospectus, (C) any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement (or in the Registration Statement as amended by any post-effective
amendment thereof by the Company), the Preliminary Prospectus, the Prospectus
and the Prospectus as amended or supplemented by the Company ), (D) any
application or other document, or any amendment or supplement thereto, executed
by the Company or based upon written information furnished by or on behalf of
the Company filed in any jurisdiction (domestic or foreign)
29
in order to qualify the Shares under the securities or blue sky laws thereof or
filed with the Commission or any securities association or securities exchange
(each an "Application"), or (E) any omission or alleged omission to state a
material fact required to be stated in any such Registration Statement,
Prospectus or any Application or necessary to make the statements made therein,
in the light of the circumstances under which they were made, not misleading;
provided, however, that the Company will not be liable in any such case insofar
as any such loss, expense, liability, damage or claim arises out of or is based
upon any untrue statement or alleged untrue statement or omission or alleged
omission of a material fact contained in and in conformity with information
furnished in writing by the Underwriters through the Representatives to the
Company expressly for use in such Registration Statement, Preliminary
Prospectus, Prospectus, or any amendment or supplement thereto, or Application,
provided, further, that the foregoing indemnity with respect to any Preliminary
Prospectus shall not inure to the benefit of any Underwriter from whom the
person asserting any such loss, claim, damage, or liability purchased the Shares
that are the subject thereof, if the Company delivered the Prospectus (or the
Prospectus as supplemented) to the Underwriters promptly as provided in Section
4(c) or in the case of the initial delivery not later than 12:00 a.m. (New York
City time) on the day following the execution and delivery of this Agreement and
such person did not receive a copy of the Prospectus (or the Prospectus as
supplemented) at or prior to the confirmation of the sale to such person in any
case where such delivery is required by the Act and the untrue statement or
omission of a material fact contained in such Preliminary Prospectus was
corrected in the Prospectus (or the Prospectus as supplemented). The indemnity
agreement set forth in this Section 9(a) shall be in addition to any liability
which the Company may otherwise have.
(b) If any action is brought against an Underwriter or controlling
person in respect of which indemnity may be sought against the Company pursuant
to subsection (a) above, such Underwriter shall promptly notify the Company in
writing of the institution of such action, and the Company shall assume the
defense of such action, including the employment of counsel and payment of
expenses; provided, however, that any failure or delay to so notify the Company
will not relieve the Company of any obligation hereunder, except to the extent
that its ability to defend is actually impaired by such failure or delay. Such
Underwriter or controlling person 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 Underwriter or such controlling person unless the
employment of such counsel shall have been authorized in writing by the Company
in connection with the defense of such action, or the Company shall not have
employed counsel to have charge of the defense of such action within a
reasonable time or such indemnified party or parties shall have reasonably
concluded (based on the written advice of counsel) that there may be defenses
available to it or them which are different from or additional to those
available to the Company (in which case the Company shall not have the right to
direct the defense of such action on behalf of the indemnified party or
parties), in any of which events such fees and expenses shall be borne by the
Company and paid on a monthly basis (it being understood, however, that the
Company shall not be liable for the expenses of more than one separate firm of
attorneys for the Underwriters or controlling persons in any one action or
series of related actions in the same jurisdiction
30
(other than local counsel in any such jurisdiction) representing the indemnified
parties who are parties to such action). Anything in this paragraph to the
contrary notwithstanding, the Company shall not be liable for any settlement of
any such claim or action effected without its consent.
(c) Each Underwriter agrees, severally and not jointly, to indemnify,
defend and hold harmless the Company, the Company's directors, the Company's
officers that signed the Registration Statement, and any person who controls the
Company within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act, from and against any loss, expense, liability, damage or claim
(including the reasonable cost of investigation) which, jointly or severally,
the Company, or any such person may incur under the Securities Act, the Exchange
Act, the Securities Act Regulations, the Exchange Act Regulations or otherwise,
but only insofar as such loss, expense, liability, damage or claim arises out of
or is based upon (A) any untrue statement or alleged untrue statement of a
material fact contained in and in conformity with information furnished in
writing by such Underwriter through the Representatives to the Company expressly
for use in the Registration Statement (or in the Registration Statement as
amended by any post-effective amendment thereof by the Company),the Preliminary
Prospectus, the Prospectus, the Prospectus as amended or supplemented by the
Company, or any Application, or (B) any omission or alleged omission to state a
material fact in connection with such information required to be stated either
in such Registration Statement, Preliminary Prospectus, Prospectus and
Prospectus as amended or supplemented by the Company or any Application or
necessary to make such information, in the light of the circumstances under
which made, not misleading. The Company and the Underwriters acknowledge that
the statements set forth in the last paragraph of the cover page regarding the
delivery of the Shares, the information under the caption "Business -
Description of Business - BankAtlantic - Florida" relating to population figures
and population growth and, under the caption "Underwriting" (i) the list of
Underwriters and their respective participation in the sale of the Shares, (ii)
the sentences related to concessions and reallowances and the manner in which
the Underwriters propose to offer the Shares, and (iii) the paragraph related to
stabilization, syndicate covering transactions and penalty bids in any
Preliminary Prospectus, the Prospectus and the Prospectus as amended or
supplemented by the Company constitute the only information furnished in writing
by or on behalf of the several Underwriters for inclusion in any Preliminary
Prospectus, the Prospectus and the Prospectus as amended or supplemented by the
Company.
If any action is brought against the Company or any such person in respect
of which indemnity may be sought against any Underwriter pursuant to the
foregoing paragraph, the Company, or such person shall promptly notify the
Representatives in writing of the institution of such action and the
Representatives, on behalf of the Underwriters, shall assume the defense of such
action, including the employment of counsel and payment of expenses. The
Company or such person shall have the right to employ its own counsel in any
such case, but the fees and expenses of such counsel shall be at the expense of
the Company or such person unless the employment of such counsel shall have been
authorized in writing by the Representatives in connection with the defense of
such action or the Representatives shall not have employed counsel to have
charge of the
31
defense of such action within a reasonable time or such indemnified party or
parties shall have reasonably concluded (based on the written advice of counsel)
that there may be defenses available to it or them which are different from or
additional to those available to the Underwriters (in which case the
Representatives shall not have the right to direct the defense of such action on
behalf of the indemnified party or parties), in any of which events such fees
and expenses shall be borne by such Underwriter and paid as incurred (it being
understood, however, that the Underwriters shall not be liable for the expenses
of more than one separate firm of attorneys in any one action or series of
related actions in the same jurisdiction (other than local counsel in any such
jurisdiction) representing the indemnified parties who are parties to such
action). Anything in this paragraph to the contrary notwithstanding, no
Underwriter shall be liable for any settlement of any such claim or action
effected without the written consent of the Representatives.
(d) If the indemnification provided for in this Section 9 is
unavailable or insufficient to hold harmless an indemnified party under
subsections (a), (b) and (c) of this Section 9 in respect of any losses,
expenses, liabilities, damages or claims referred to therein, then each
applicable indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, expenses, liabilities, damages or claims (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Underwriters from the offering of the Shares or (ii) if (but
only if) the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company and of the Underwriters in connection with the statements or
omissions which resulted in such losses, expenses, liabilities, damages or
claims, as well as any other relevant equitable considerations. The relative
benefits received by the Company and the Underwriters shall be deemed to be in
the same proportion as the total proceeds from the offering (net of underwriting
discounts and commissions but before deducting expenses) received by the Company
bear to the underwriting discounts and commissions received by the Underwriters.
The relative fault of the Company and of the Underwriters shall be determined by
reference to, among other things, whether the untrue statement or alleged untrue
statement of a material fact or omission or alleged omission relates to
information supplied by the Company or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The amount paid or payable by a party as a
result of the losses, claims, damages and liabilities referred to above shall be
deemed to include any legal or other fees or expenses reasonably incurred by
such party in connection with investigating or defending any claim or action.
(e) The Company and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 9 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in subsection (d)(i) and, if applicable
(ii), above. Notwithstanding the provisions of this Section 9, no Underwriter
shall be required to contribute any amount in excess of the underwriting
discounts and commissions applicable to the Shares purchased by such
32
Underwriter. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant to this
Section 9 are several in proportion to their respective underwriting commitments
and not joint.
10. Survival.
--------
Except as specifically set forth herein, the respective agreements,
covenants, indemnities and other statements set forth in Sections 3, 4, 5, 6, 9,
10 and 11 hereof shall remain in full force and effect, regardless of any
termination or cancellation of this Agreement or any investigation made by or on
behalf of any Underwriter, or any person who controls any Underwriter within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act,
or by or on behalf of the Company, its directors and officers, or any person who
controls the Company within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act, and shall survive any termination of this
Agreement or the sale and delivery of the Shares. The Company and each
Underwriter agree promptly to notify the others of the commencement of any
litigation or proceeding against it and, in the case of the Company, against any
of the Company's officers and directors, in connection with the sale and
delivery of the Shares, or in connection with the Registration Statement or
Prospectus.
11. Notices.
-------
Except as otherwise herein provided, all statements, requests, notices and
agreements shall be in writing or by telegram and, if to the Underwriters, shall
be sufficient in all respects if delivered to Friedman, Billings, ▇▇▇▇▇▇ & Co.,
▇▇▇▇ ▇▇/▇▇/ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Syndicate
Department; if to the Company, shall be sufficient in all respects if delivered
to the Company at the offices of the Company at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Chief Executive Officer.
12. Governing Law; Headings.
-----------------------
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE COMMONWEALTH OF VIRGINIA, WITHOUT REGARD TO CONFLICTS OF LAWS
PRINCIPLES. The section headings in this Agreement have been inserted as a
matter of convenience of reference and are not a part of this Agreement.
13. Parties at Interest.
-------------------
The Agreement herein set forth has been and is made solely for the benefit
of the Underwriters, the Company and the controlling persons, directors and
officers referred to in Sections 9 and 10 hereof, and their respective
successors, assigns, executors and administrators. No other person,
partnership, association or corporation (including a
33
purchaser, as such purchaser, from any of the Underwriters) shall acquire or
have any right under or by virtue of this Agreement.
14. Counterparts and Facsimile Signatures.
-------------------------------------
This Agreement may be signed by the parties in counterparts which together
shall constitute one and the same agreement among the parties. A facsimile
signature shall constitute an original signature for all purposes.
15. General Provisions.
------------------
This Agreement constitutes the entire agreement of the parties to this
Agreement and supersedes all prior written or oral and all contemporaneous oral
agreements, understandings and negotiations with respect to the subject matter
hereof. This Agreement may not be amended or modified unless in writing by all
of the parties hereto, and no condition herein (express or implied) may be
waived unless waived in writing by each party whom the condition is meant to
benefit.
34
If the foregoing correctly sets forth the understanding among the Company
and the Underwriters, please so indicate in the space provided below for the
purpose, whereupon this Agreement shall constitute a binding agreement among the
Company and the Underwriters.
Very truly yours,
BANKATLANTIC BANCORP, INC.
By:_____________________________
By:
Title:
Accepted and agreed to as
of the date first above written:
FRIEDMAN, BILLINGS, ▇▇▇▇▇▇ & CO., INC.
By:_______________________________
Title:
For itself and as Representatives of the other
Underwriters named on Schedule I hereto.
35
Schedule I
Number of Initial
Underwriter Shares to be Purchased
-------------------------------------------------------
Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. [ ]
▇▇▇▇▇▇▇▇ Inc. [ ]
▇▇▇▇ ▇▇▇▇ & Co. [ ]
------------
Total......................................... X,XXX,XXX
==========
36