Exhibit 1.1
3,000,000 Shares of Class A Common Stock
BANKUNITED FINANCIAL CORPORATION
UNDERWRITING AGREEMENT
May 21, 2003
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
▇▇▇▇▇▇▇ ▇▇▇▇▇ & ASSOCIATES, INC.
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, INC.
▇▇▇▇▇▇ ▇▇▇▇▇▇ & CO., INC.
SANDLER ▇'▇▇▇▇▇ & PARTNERS, L.P.
As Representatives of the
several Underwriters named in
Schedule I attached hereto (the "Representatives")
c/o Bear, ▇▇▇▇▇▇▇ & Co. Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies/Gentlemen:
BankUnited Financial Corporation, a corporation organized and existing
under the laws of Florida (the "Company"), proposes, subject to the terms and
conditions stated herein, to issue and sell to the several underwriters named in
Schedule I hereto (the "Underwriters") an aggregate of 3,000,000 shares (the
"Firm Shares") of its Class A Common Stock, par value $0.01 per share (the
"Common Stock") and, for the sole purpose of covering over-allotments in
connection with the sale of the Firm Shares, at the option of the Underwriters,
up to an additional 450,000 shares (the "Additional Shares") of Common Stock.
The Firm Shares and any Additional Shares purchased by the Underwriters are
referred to herein as the "Shares". The Shares are more fully described in the
Registration Statement and Prospectus referred to below. Bear, ▇▇▇▇▇▇▇ & Co.
Inc. ("Bear ▇▇▇▇▇▇▇") is acting as lead manager (the "Lead Manager") in
connection with the offering and sale of the Shares contemplated herein (the
"Offering").
1. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, each of the Underwriters that:
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No.
333-104970), and amendments thereto, and related preliminary prospectuses for
the registration under the Securities Act of 1933, as amended (the "Securities
Act"), of the Shares which registration statement, as so amended (including
post-effective amendments, if any), has been declared effective by the
Commission and copies of which have heretofore been delivered to the
Underwriters. The registration statement, as amended at the time it became
effective, including the prospectus, financial statements, schedules, exhibits
and other information (if any) deemed to be part of the registration statement
at the time of effectiveness pursuant to Rule 430A or 434(d) under the
Securities Act, is hereinafter referred to as the "Registration Statement." If
the Company has filed or is required pursuant to the terms hereof to file a
registration statement pursuant to Rule 462(b) under the Securities Act
registering additional shares of Common Stock (a "Rule 462(b) Registration
Statement"), then, unless otherwise specified, any reference herein to the term
"Registration Statement" shall be deemed to include such Rule 462(b)
Registration Statement. Other than a Rule 462(b) Registration Statement, which,
if filed, becomes effective upon filing, no other document with respect to the
Registration Statement has heretofore been filed with the Commission. All of the
Shares have been registered under the Securities Act pursuant to the
Registration Statement or, if any Rule 462(b) Registration Statement is filed,
will be duly registered under the Securities Act with the filing of such Rule
462(b) Registration Statement. Based on communications from the Commission, no
stop order suspending the effectiveness of either the Registration Statement or
the Rule 462(b) Registration Statement, if any, has been issued and no
proceeding for that purpose has been initiated or threatened by the Commission.
The Company, if required by the Securities Act and the rules and regulations of
the Commission (the "Rules and Regulations"), proposes to file the Prospectus
with the Commission pursuant to Rule 424(b) under the Securities Act ("Rule
424(b)"). The prospectus, in the form in which it is to be filed with the
Commission pursuant to Rule 424(b), or, if the prospectus is not to be filed
with the Commission pursuant to Rule 424(b), the prospectus in the form included
as part of the Registration Statement at the time the Registration Statement
became effective, is hereinafter referred to as the "Prospectus," except that if
any revised prospectus or prospectus supplement shall be provided to the
Underwriters by the Company for use in connection with the Offering which
differs from the Prospectus (whether or not such revised prospectus or
prospectus supplement is required to be filed by the Company pursuant to Rule
424(b)), the term "Prospectus" shall also refer to such revised prospectus or
prospectus supplement, as the case may be, from and after the time it is first
provided to the Underwriters for such use. Any preliminary prospectus or
prospectus subject to completion included in the Registration Statement or filed
with the Commission pursuant to Rule 424 under the Securities Act is hereafter
called a "Preliminary Prospectus." Any reference herein to the Registration
Statement, any Preliminary Prospectus or the Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein pursuant to Item
12 of Form S-3 which were filed under the Exchange Act (as defined below) on or
before the effective date of the Registration Statement, the date of such
Preliminary Prospectus or the date of the Prospectus, as the case may be, and
any reference herein to the terms "amend", "amendment" or "supplement" with
respect to the Registration Statement, any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include (i) the filing of any
document under the Exchange Act after the effective date of the Registration
Statement, the date of such Preliminary Prospectus or the date of the
Prospectus, as the case may be, which is incorporated therein by reference and
(ii) any such document so filed. All references in this Agreement to the
Registration Statement, the Rule 462(b) Registration Statement, a Preliminary
Prospectus and the Prospectus, or any amendments or supplements to any of the
foregoing shall be deemed to include any copy thereof filed with the Commission
pursuant to its Electronic Data Gathering, Analysis and Retrieval System
("▇▇▇▇▇").
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(b) At the time of the effectiveness of the Registration Statement or
any Rule 462(b) Registration Statement or the effectiveness of any
post-effective amendment to the Registration Statement, when the Prospectus is
first filed with the Commission pursuant to Rule 424(b), when any supplement to
or amendment of the Prospectus is filed with the Commission, when any document
filed under the Exchange Act was or is filed and at the Closing Date and the
Additional Closing Date, if any (as hereinafter respectively defined), the
Registration Statement and the Prospectus and any amendments thereof and
supplements thereto complied or will comply in all material respects with the
applicable provisions of the Securities Act, the Exchange Act and the Rules and
Regulations and did not and will not contain an untrue statement of a material
fact and did not and will not omit to state any material fact required to be
stated therein or necessary in order to make the statements therein (i) in the
case of the Registration Statement, not misleading and (ii) in the case of the
Prospectus or any related Preliminary Prospectus in light of the circumstances
under which they were made, not misleading. When any Preliminary Prospectus was
first filed with the Commission (whether filed as part of the registration
statement for the registration of the Shares or any amendment thereto or
pursuant to Rule 424(a) under the Securities Act) and when any amendment thereof
or supplement thereto was first filed with the Commission, such Preliminary
Prospectus and any amendments thereof and supplements thereto complied in all
material respects with the applicable provisions of the Securities Act, the
Exchange Act and the Rules and Regulations and did not contain an untrue
statement of a material fact and did not omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. No representation and warranty is made in this subsection (b),
however, with respect to any information contained in or omitted from the
Registration Statement or the Prospectus or any related Preliminary Prospectus
or any amendment thereof or supplement thereto in reliance upon and in
conformity with information furnished in writing to the Company by or on behalf
of any Underwriter through the Lead Manager specifically for use therein. The
parties acknowledge and agree that such information provided by or on behalf of
any Underwriter consists solely of paragraphs 3, 12, 13 and 15 under the caption
"Underwriting" in the Prospectus.
(c) PricewaterhouseCoopers LLP, who have certified the financial
statements and supporting schedules and information of the Company that are
included or incorporated by reference in the Registration Statement, are
independent public accountants as required by the Securities Act, the Securities
Exchange Act of 1934, as amended (the "Exchange Act") and the Rules and
Regulations.
(d) Subsequent to the respective dates as of which information is given
in the Registration Statement and the Prospectus, except as disclosed in the
Registration Statement and the Prospectus, the Company has not declared, paid or
made any dividends or other distributions of any kind on or in respect of its
capital stock and there has been no material adverse change or any development
involving a prospective material adverse change, whether or not arising from
transactions in the ordinary course of business, in or affecting (i) the
business, condition (financial or otherwise), results of operations,
stockholders' equity, properties or prospects of the Company and each subsidiary
of the Company listed on Exhibit A hereto (the "Subsidiaries"), taken as a
whole; (ii) the long-term debt or capital stock of the Company or any of its
Subsidiaries; or (iii) the Offering or consummation of any of the other
transactions contemplated by this Agreement, the Registration Statement or the
Prospectus (a "Material
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Adverse Change"). Since the date of the latest balance sheet presented, or
incorporated by reference, in the Registration Statement and the Prospectus,
neither the Company nor any Subsidiary has incurred or undertaken any
liabilities or obligations, whether direct or indirect, liquidated or
contingent, matured or unmatured, or entered into any transactions, including
any acquisition or disposition of any business or asset, which are material to
the Company and the Subsidiaries taken as a whole, except for liabilities,
obligations and transactions which are disclosed in the Registration Statement
and the Prospectus.
(e) The authorized, issued and outstanding capital stock of the Company
is as set forth in the Prospectus in the column headed "Actual" under the
caption "Capitalization" and, after giving effect to the Offering and the other
transactions contemplated by this Agreement, the Registration Statement and the
Prospectus, will be as set forth in the column headed "As Adjusted" under the
caption "Capitalization". All of the issued and outstanding shares of capital
stock of the Company are fully paid and non-assessable and have been duly and
validly authorized and issued, in compliance with all applicable state, federal
and foreign securities laws and not in violation of or subject to any preemptive
or similar right that does or will entitle any person, upon the issuance or sale
of any security, to acquire from the Company or any Subsidiary any "Relevant
Security," which is defined as any Common Stock or other security of the Company
or any Subsidiary that is convertible into, or exercisable or exchangeable for
Common Stock or equity securities, or that holds the right to acquire any Common
Stock or equity securities of the Company or any Subsidiary or any other such
Relevant Security, except for such rights as may have been fully satisfied or
waived prior to the effectiveness of the Registration Statement.
(f) The Shares have been duly and validly authorized and, when
delivered in accordance with this Agreement, will be duly and validly issued,
fully paid and non-assessable, will have been issued in compliance with all
applicable state, federal and foreign securities laws and will not have been
issued in violation of or subject to any preemptive or similar right that does
or will entitle any person to acquire any Relevant Security from the Company or
any Subsidiary upon issuance or sale of Shares in the Offering. The Common Stock
and the Shares conform to the descriptions thereof contained in the Registration
Statement and the Prospectus. Except as disclosed in the Registration Statement
and the Prospectus, neither the Company nor any Subsidiary has outstanding
warrants, options to purchase, or any preemptive rights or other rights to
subscribe for or to purchase, or any contracts or commitments to issue or sell,
any Relevant Security.
(g) The Subsidiaries are the only subsidiaries of the Company within
the meaning of Rule 405 under the Securities Act. Except for the Subsidiaries
and as otherwise disclosed in the Registration Statement and the Prospectus, the
Company holds no ownership or other interest, nominal or beneficial, direct or
indirect, in any corporation, partnership, joint venture or other business
entity. All of the issued shares of capital stock of or other ownership
interests in each Subsidiary have been duly and validly authorized and issued
and are fully paid and non-assessable and are owned directly or indirectly by
the Company free and clear of any lien, charge, mortgage, pledge, security
interest, claim, equity, trust or other encumbrance, preferential arrangement,
defect or restriction of any kind whatsoever (any "Lien").
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(h) Each of the Company and the Subsidiaries has been duly organized
and validly exists as a corporation, partnership or limited liability company in
good standing under the laws of its jurisdiction of organization. Each of the
Company and the Subsidiaries has all requisite power and authority to carry on
its business as it is currently being conducted and as described in the
Prospectus, and to own, lease and operate its respective properties. Each of the
Company and the Subsidiaries is duly qualified to do business and is in good
standing as a foreign corporation, partnership or limited liability company in
each jurisdiction in which the character or location of its properties (owned,
leased or licensed) or the nature or conduct of its business makes such
qualification necessary, except for those failures to be so qualified or in good
standing which (individually and in the aggregate) could not reasonably be
expected to have a material adverse effect on (i) the business, condition
(financial or otherwise), results of operations, stockholders' equity,
properties or prospects of the Company and the Subsidiaries, taken as a whole;
(ii) the long-term debt or capital stock of the Company or any Subsidiary; or
(iii) the Offering or consummation of any of the other transactions contemplated
by this Agreement, the Registration Statement or the Prospectus (any such effect
being a "Material Adverse Effect").
(i) Each of the Company and the Subsidiaries has all necessary
consents, approvals, authorizations, orders, registrations, qualifications,
licenses, filings and permits of, with and from all judicial, regulatory and
other legal or governmental agencies and bodies and all third parties, foreign
and domestic (collectively, the "Consents"), to own, lease and operate its
properties and conduct its business as it is now being conducted and as
disclosed in the Registration Statement and the Prospectus, and each such
Consent is valid and in full force and effect, and neither the Company nor any
Subsidiary has received notice of any investigation or proceedings which results
in or, if decided adversely to the Company or any Subsidiary, could reasonably
be expected to result in, the revocation of, or imposition of a materially
burdensome restriction on, any Consent. Each of the Company and the Subsidiaries
is in compliance with all applicable laws, rules, regulations, ordinances,
directives, judgments, decrees and orders, foreign and domestic, except where
failure to be in compliance could not reasonably be expected to have a Material
Adverse Effect. No Consent contains a materially burdensome restriction not
adequately disclosed in the Registration Statement and the Prospectus.
(j) The Company has full right, power and authority to execute and
deliver this Agreement, to perform its obligations hereunder and to consummate
the transactions contemplated by this Agreement, the Registration Statement and
the Prospectus. This Agreement and the transactions contemplated by this
Agreement, the Registration Statement and the Prospectus have been duly and
validly authorized by the Company. This Agreement has been duly and validly
executed and delivered by the Company and constitutes the legal, valid and
binding obligation of the Company, enforceable in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights generally
and except as enforceability may be subject to general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
(k) The execution, delivery, and performance of this Agreement and
consummation of the transactions contemplated by this Agreement, the
Registration Statement and the Prospectus do not and will not (i) conflict with,
require consent under or result in a
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breach of any of the terms and provisions of, or constitute a default (or an
event which with notice or lapse of time, or both, would constitute a default)
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any Subsidiary
pursuant to, any indenture, mortgage, deed of trust, loan agreement or other
agreement, instrument, franchise, license or permit to which the Company or any
Subsidiary is a party or by which the Company or any Subsidiary or their
respective properties, operations or assets may be bound or (ii) violate or
conflict with any provision of the certificate or articles of incorporation,
by-laws, certificate of formation, limited liability company agreement,
partnership agreement or other organizational documents of the Company or any
Subsidiary, or (iii) violate or conflict with any law, rule, regulation,
ordinance, directive, judgment, decree or order of any judicial, regulatory or
other legal or governmental agency or body, domestic or foreign, except (in the
case of clauses (i) and (iii) above) as could not reasonably be expected to have
a Material Adverse Effect.
(l) No Consent of, with or from any judicial, regulatory or other legal
or governmental agency or body or any third party, foreign or domestic, is
required for the execution, delivery and performance of this Agreement or
consummation of the transactions contemplated by this Agreement, the
Registration Statement and the Prospectus, including the issuance, sale and
delivery of the Shares to be issued, sold and delivered hereunder, except the
registration under the Securities Act of the Shares, which has become effective,
and such Consents as may be required under state securities or blue sky laws or
the by-laws and rules of the National Association of Securities Dealers, Inc.
(the "NASD") or NASD Regulation, Inc. ("NASDR") in connection with the purchase
and distribution of the Shares by the Underwriters, each of which has been
obtained and is in full force and effect.
(m) Except as disclosed in the Registration Statement and the
Prospectus, there is no judicial, regulatory, arbitral or other legal or
governmental proceeding or other litigation or arbitration, domestic or foreign,
pending to which the Company or any Subsidiary is a party or of which any
property, operations or assets of the Company or any Subsidiary is the subject
which, individually or in the aggregate, if determined adversely to the Company
or any Subsidiary, could reasonably be expected to have a Material Adverse
Effect; to the best of the Company's knowledge, no such proceeding, litigation
or arbitration is threatened or contemplated; and the defense of all such
proceedings, litigation and arbitration against or involving the Company or any
Subsidiary could not reasonably be expected to have a Material Adverse Effect.
(n) The financial statements, including the notes thereto, and the
supporting schedules included or incorporated by reference in the Registration
Statement and the Prospectus present fairly the financial position as of the
dates indicated and the cash flows and results of operations for the periods
specified of the Company and its consolidated subsidiaries and the other
entities for which financial statements are included or incorporated by
reference in the Registration Statement and the Prospectus; except as otherwise
stated in the Registration Statement and the Prospectus, said financial
statements have been prepared in conformity with United States generally
accepted accounting principles applied on a consistent basis throughout the
periods involved; and the supporting schedules included or incorporated by
reference in the Registration Statement and the Prospectus present fairly the
information required to be stated therein. No other financial statements or
supporting schedules are required to be included in the
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Registration Statement. The other financial and statistical information included
or incorporated by reference in the Registration Statement and the Prospectus
present fairly the information included therein and have been prepared on a
basis consistent with that of the financial statements that are included or
incorporated by reference in the Registration Statement and the Prospectus and
the books and records of the respective entities presented therein.
(o) There are no pro forma or as adjusted financial statements which
are required to be included or incorporated by reference in the Registration
Statement and the Prospectus in accordance with Regulation S-X.
(p) The statistical, industry-related and market-related data included
in the Registration Statement and the Prospectus are based on or derived from
sources which the Company reasonably and in good faith believes are reliable and
accurate, and such data agree with the sources from which they are derived.
(q) The Company is subject to the reporting requirements of Section 13
or 15(d) of the Exchange Act and files reports with the Commission on the ▇▇▇▇▇
System. The Common Stock is registered pursuant to Section 12(b) of the Exchange
Act and the outstanding shares of Common Stock (including the Shares) are listed
for quotation on the NASDAQ (as defined in Section 11(b) below, and the Company
has taken no action designed to, or likely to have the effect of, terminating
the registration of the Common Stock under the Exchange Act or de-listing the
Common Stock from the NASDAQ, nor has the Company received any notification that
the Commission or the NASDAQ is contemplating terminating such registration or
listing.
(r) The Company and the Subsidiaries maintain a system of internal
accounting and other controls sufficient to provide reasonable assurances that
(i) transactions are executed in accordance with management's general or
specific authorizations, (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with United States generally
accepted accounting principles and to maintain accountability for assets, (iii)
access to assets is permitted only in accordance with management's general or
specific authorization, and (iv) the recorded accounting for assets is compared
with existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
(s) Neither the Company nor any of its affiliates (within the meaning
of Rule 144 under the Securities Act) has taken, directly or indirectly, any
action which constitutes or is designed to cause or result in, or which could
reasonably be expected to constitute, cause or result in, the stabilization or
manipulation of the price of any security to facilitate the sale or resale of
the Shares.
(t) Neither the Company nor any of its affiliates has, prior to the
date hereof, made any offer or sale of any securities which could be
"integrated" for purposes of the Securities Act or the Rules and Regulations
with the offer and sale of the Shares pursuant to the Registration Statement.
Except as disclosed in the Registration Statement and the Prospectus, neither
Company nor any of its affiliates has sold or issued any Relevant Security
during the six-month period preceding the date of the Prospectus, including but
not limited to any sales pursuant to Rule 144A or Regulation D or S under the
Securities Act, other than shares of
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Common Stock issued pursuant to employee benefit plans, qualified stock option
plans or the employee compensation plans or pursuant to outstanding options,
rights or warrants as described in the Registration Statement and the
Prospectus.
(u) Except as disclosed in the Registration Statement and the
Prospectus, no holder of any Relevant Security has any rights to require
registration of any Relevant Security as part or on account of, or otherwise in
connection with, the offer and sale of the Shares contemplated hereby, and any
such rights so disclosed have either been fully complied with by the Company or
effectively waived by the holders thereof, and any such waivers remain in full
force and effect.
(v) The conditions for use of Form S-3 to register the Offering under
the Securities Act, as set forth in the General Instructions to such Form, have
been satisfied.
(w) The documents incorporated or deemed to be incorporated by
reference in the Prospectus, at the time they were or hereafter are filed with
the Commission, complied and will comply in all material respects with the
requirements of the Securities Act, the Exchange Act and the Rules and
Regulations, and, when read together with the other information in the
Prospectus, do 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.
(x) The Company is not and, at all times up to and including
consummation of the transactions contemplated by this Agreement, the
Registration Statement and the Prospectus, and after giving effect to
application of the net proceeds of the Offering, will not be, subject to
registration as an "investment company" under the Investment Company Act of
1940, as amended, and is not and will not be an entity "controlled" by an
"investment company" within the meaning of such act.
(y) There are no contracts or other documents (including, without
limitation, any voting agreement), which are required to be described in the
Registration Statement and the Prospectus or filed as exhibits to the
Registration Statement by the Securities Act, the Exchange Act or the Rules and
Regulations and which have not been so described or filed.
(z) No relationship, direct or indirect, exists between or among any of
the Company or any affiliate of the Company, on the one hand, and any director,
officer, stockholder, customer or supplier of the Company or any affiliate of
the Company, on the other hand, which is required by the Securities Act , the
Exchange Act or the Rules and Regulations to be described in the Registration
Statement or the Prospectus which is not so described and described as required.
There are no outstanding loans, advances (except normal advances for business
expenses in the ordinary course of business) or guarantees of indebtedness by
the Company to or for the benefit of any of the officers or directors of the
Company or any of their respective family members, except as disclosed in the
Registration Statement and the Prospectus. The Company has not, in violation of
the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act, directly or indirectly, including through a Subsidiary
(other than as permitted under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act for depositary
institutions), extended or maintained credit, arranged for the extension of
credit, or renewed an
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extension of credit, in the form of a personal loan to or for any director or
executive officer of the Company.
(aa) Except as disclosed in the Registration Statement and the
Prospectus, there are no contracts, agreements or understandings between the
Company and any person that would give rise to a valid claim against the Company
or any Underwriter for a brokerage commission, finder's fee or other like
payment in connection with the transactions contemplated by this Agreement, the
Registration Statement and the Prospectus or, to the Company's knowledge, any
arrangements, agreements, understandings, payments or issuance with respect to
the Company or any of its officers, directors, shareholders, partners,
employees, Subsidiaries or affiliates that may affect the Underwriters'
compensation as determined by the NASD.
(bb) The Company and each Subsidiary owns or leases all such properties
as are necessary to the conduct of its business as presently operated and as
proposed to be operated as described in the Registration and the Prospectus. The
Company and the Subsidiaries have good and marketable title in fee simple to all
real property and good and marketable title to all personal property owned by
them, in each case free and clear of all Liens except such as are described in
the Registration Statement and the Prospectus or such as do not (individually or
in the aggregate) materially affect the value of such property or interfere with
the use made or proposed to be made of such property by the Company and the
Subsidiaries; and any real property and buildings held under lease or sublease
by the Company and the Subsidiaries are held by them under valid, subsisting and
enforceable leases with such exceptions as are not material to, and do not
interfere with, the use made and proposed to be made of such property and
buildings by the Company and the Subsidiaries. Neither the Company nor any
Subsidiary has received any notice of any claim adverse to its ownership of any
real or personal property or of any claim against the continued possession of
any real property, whether owned or held under lease or sublease by the Company
or any Subsidiary.
(cc) The Company and each Subsidiary (i) owns or possesses adequate
right to use all patents, patent applications, trademarks, service marks, trade
names, trademark registrations, service ▇▇▇▇ registrations, copyrights,
licenses, formulae, customer lists, and know-how and other intellectual property
(including trade secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures, "Intellectual Property")
necessary for the conduct of their respective businesses as being conducted and
as described in the Registration Statement and Prospectus and (ii) does not
believe that the conduct of their respective businesses does or will conflict
with, and have not received any notice of any claim of conflict with, any such
right of others. To the best of the Company's knowledge, all material technical
information developed by and belonging to the Company or or any Subsidiary which
has not been patented has been kept confidential. Neither the Company nor any
Subsidiary has granted or assigned to any other person or entity any right to
manufacture, have manufactured, assemble or sell the current products and
services of the Company and its Subsidiaries or those products and services
described in the Registration Statement and Prospectus. To the Company's best
knowledge, there is no infringement by third parties of any such Intellectual
Property; there is no pending or, to the Company's knowledge, threatened action,
suit, proceeding or claim by others challenging the Company's or any
Subsidiary's rights in or to any such Intellectual Property, and the Company is
unaware of any facts which would
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form a reasonable basis for any such claim; and there is no pending or, to the
Company's knowledge, threatened action, suit, proceeding or claim by others that
the Company or any Subsidiary infringes or otherwise violates any patent,
trademark, copyright, trade secret or other proprietary rights of others, and
the Company is unaware of any other fact which would form a reasonable basis for
any such claim.
(dd) The Company and the Subsidiaries maintain insurance in such
amounts and covering such risks as the Company reasonably considers adequate for
the conduct of its business and the value of its properties and as is customary
for companies engaged in similar businesses in similar industries, all of which
insurance is in full force and effect, except where the failure to maintain such
insurance could not reasonably be expected to have a Material Adverse Effect.
There are no material claims by the Company or any Subsidiary under any such
policy or instrument as to which any insurance company is denying liability or
defending under a reservation of rights clause. The Company reasonably believes
that it will be able to renew its existing insurance as and when such coverage
expires or will be able to obtain replacement insurance adequate for the conduct
of the business and the value of its properties at a cost that could not
reasonably be expected to have a Material Adverse Effect.
(ee) The Company has in effect insurance covering the Company, its
directors and officers for liabilities or losses arising in connection with
this Offering, including, without limitation, liabilities or losses arising
under the Securities Act, the Exchange Act, the Rules and Regulations and
applicable foreign securities laws.
(ff) Each of the Company and the Subsidiaries has accurately prepared
and timely filed all federal, state, foreign and other tax returns that are
required to be filed by it and has paid or made provision for the payment of all
taxes, assessments, governmental or other similar charges, including without
limitation, all sales and use taxes and all taxes which the Company or any
Subsidiary is obligated to withhold from amounts owing to employees, creditors
and third parties, with respect to the periods covered by such tax returns
(whether or not such amounts are shown as due on any tax return). No deficiency
assessment with respect to a proposed adjustment of the Company's or any
Subsidiary' federal, state, local or foreign taxes is pending or, to the best of
the Company's knowledge, threatened. The accruals and reserves on the books and
records of the Company and the Subsidiaries in respect of tax liabilities for
any taxable period not finally determined are adequate to meet any assessments
and related liabilities for any such period and, since the date of the Company's
most recent audited financial statements, the Company and the Subsidiaries have
not incurred any liability for taxes other than in the ordinary course of its
business. There is no tax lien, whether imposed by any federal, state, foreign
or other taxing authority, outstanding against the assets, properties or
business of the Company or any Subsidiary.
(gg) No labor disturbance by the employees of the Company or any
Subsidiary exists or, to the best of the Company's knowledge, is imminent which
(individually or in the aggregate) could reasonably be expected to have a
Material Adverse Effect.
(hh) No "prohibited transaction" (as defined in either Section 406 of
the Employee Retirement Income Security Act of 1974, as amended, including the
regulations and published interpretations thereunder ("ERISA") or Section 4975
of the Internal Revenue Code of
10
1986, as amended from time to time (the "Code")), "accumulated funding
deficiency" (as defined in Section 302 of ERISA) or other event of the kind
described in Section 4043(b) of ERISA (other than events with respect to which
the 30-day notice requirement under Section 4043 of ERISA has been waived) has
occurred with respect to any employee benefit plan for which the Company or any
Subsidiary would have any liability which could (individually or in the
aggregate) reasonably be expected to have a Material Adverse Effect; each
employee benefit plan for which the Company or any Subsidiary would have any
liability is in compliance in all material respects with applicable law,
including (without limitation) ERISA and the Code; the Company has not incurred
and does not expect to incur liability under Title IV of ERISA with respect to
the termination of, or withdrawal from any "pension plan"; and each plan for
which the Company would have any liability that is intended to be qualified
under Section 401(a) of the Code is so qualified and nothing has occurred,
whether by action or by failure to act, which could cause the loss of such
qualification.
(ii) Neither the Company, any Subsidiary nor, to the Company's
knowledge, any of its employees or agents has at any time during the last five
years (i) made any unlawful contribution to any candidate for foreign office, or
failed to disclose fully any contribution in violation of law, or (ii) made any
payment to any federal or state governmental officer or official, or other
person charged with similar public or quasi-public duties, other than payments
required or permitted by the laws of the United States of any jurisdiction
thereof.
(jj) Neither the Company nor any Subsidiary (i) is in violation of its
certificate or articles of incorporation, by-laws, certificate of formation,
limited liability company agreement, partnership agreement or other
organizational documents, (ii) is in default under, and no event has occurred
which, with notice or lapse of time or both, would constitute a default under or
result in the creation or imposition of any lien, charge or encumbrance upon any
of its property or assets pursuant to, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which it is a party or by
which it is bound or to which any of its property or assets is subject or (iii)
is in violation in any respect of any law, rule, regulation, ordinance,
directive, judgment, decree or order of any judicial, regulatory or other legal
or governmental agency or body, foreign or domestic, except (in the case clauses
(ii) and (iii) above) violations or defaults that could not (individually or in
the aggregate) reasonably be expected to have a Material Adverse Effect and
except (in the case of clause (ii) alone) for any lien, charge or encumbrance
disclosed in the Registration Statement and the Prospectus.
(kk) The Company is duly registered as a savings and loan holding
company under the Home Owners' Loan Act, as amended; the deposit accounts of the
Company's depository institution subsidiary is insured by the Federal Deposit
Insurance Corporation (the "FDIC") to the fullest extent permitted by law and
the rules and regulations of the FDIC, and no proceedings for the termination of
such insurance are pending or, to the best of the Company's knowledge,
threatened; and neither the Company nor any of its subsidiaries is party to or
otherwise the subject of any consent decree, memorandum of understanding,
written commitment or other written supervisory agreement with the Office of
Thrift Supervision (the "OTS"), the FDIC or any other federal or state authority
or agency charged with the supervision or insurance of depository institutions
or their holding companies.
11
Any certificate signed by or on behalf of the Company and delivered to the
Representatives or to counsel for the Underwriters' shall be deemed to be a
representation and warranty by the Company to each Underwriter as to the matters
covered thereby.
2. Purchase, Sale and Delivery of the Shares.
(a) On the basis of the representations, warranties, covenants and
agreements herein contained, but subject to the terms and conditions herein set
forth, the Company agrees to sell to each Underwriter and each Underwriter,
severally and not jointly, agrees to purchase from the Company, at a purchase
price per share of $_______, the number of Firm Shares set forth opposite their
respective names on Schedule I hereto together with any additional number of
Shares which such Underwriter may become obligated to purchase pursuant to the
provisions of Section 9 hereof.
(b) Payment of the purchase price for, and delivery of certificates
representing, the Firm Shares shall be made at the office of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("Underwriters'
Counsel"), or at such other place as shall be agreed upon by the Lead Manager
and the Company, at 10:00 A.M., New York City time, on the third or (as
permitted under Rule 15c6-1 under the Exchange Act) fourth business day (unless
postponed in accordance with the provisions of Section 9 hereof) following the
date of the effectiveness of the Registration Statement (or, if the Company has
elected to rely upon Rule 430A under the Securities Act, the third or (as
permitted under Rule 15c6-1 under the Exchange Act) fourth business day after
the determination of the public offering price of the Shares), or such other
time not later than ten business days after such date as shall be agreed upon by
the Lead Manager and the Company (such time and date of payment and delivery
being herein called the "Closing Date").
Payment of the purchase price for the Firm Shares shall be made by wire
transfer in same day funds to or as directed by the Company upon delivery of
certificates for the Firm Shares to the Representatives through the facilities
of The Depository Trust Company for the respective accounts of the several
Underwriters. Certificates for the Firm Shares shall be registered in such name
or names and shall be in such denominations as the Lead Manager may request at
least two business days before the Closing Date. The Company will permit the
Lead Manager to examine and package such certificates for delivery at least one
full business day prior to the Closing Date.
(c) In addition, on the basis of the representations, warranties,
covenants and agreements herein contained, but subject to the terms and
conditions herein set forth, the Company hereby grants to the Underwriters,
acting severally and not jointly, the option to purchase up to 450,000
Additional Shares at the same purchase price per share to be paid by the
Underwriters for the Firm Shares as set forth in Section 2(a) above, for the
sole purpose of covering over-allotments in the sale of Firm Shares by the
Underwriters. This option may be exercised at any time and from time to time, in
whole or in part on one or more occasions, on or before the thirtieth day
following the date of the Prospectus, by written notice from the Lead Manager to
the Company. Such notice shall set forth the aggregate number of Additional
Shares as to which the option is being exercised and the date and time, as
reasonably determined by Bear ▇▇▇▇▇▇▇, when the Additional Shares are to be
delivered (any such date and time being
12
herein sometimes referred to as the "Additional Closing Date"); provided,
however, that no Additional Closing Date shall occur earlier than the Closing
Date or earlier than the second full business day after the date on which the
option shall have been exercised nor later than the eighth full business day
after the date on which the option shall have been exercised (unless such time
and date are postponed in accordance with the provisions of Section 9 hereof).
Upon any exercise of the option as to all or any portion of the Additional
Shares, each Underwriter, acting severally and not jointly, agrees to purchase
from the Company the number of Additional Shares that bears the same proportion
of the total number of Additional Shares then being purchased as the number of
Firm Shares set forth opposite the name of such Underwriter in Schedule I hereto
(or such number increased as set forth in Section 9 hereof) bears to the total
number of Firm Shares that the Underwriters have agreed to purchased hereunder,
subject, however, to such adjustments to eliminate fractional shares as Bear
▇▇▇▇▇▇▇ in its sole discretion shall make.
(d) Payment of the purchase price for, and delivery of certificates
representing, the Additional Shares shall be made at the office of Underwriters'
Counsel, or at such other place as shall be agreed upon by the Lead Manager and
the Company, at 10:00 A.M., New York City time, on the Additional Closing Date
(unless postponed in accordance with the provisions of Section 9 hereof), or
such other time as shall be agreed upon by Bear ▇▇▇▇▇▇▇ and the Company.
Payment of the purchase price for the Additional Shares shall be made by
wire transfer in same day funds to or as directed by the Company upon delivery
of certificates for the Additional Shares to the Representatives through the
facilities of The Depository Trust Company for the respective accounts of the
several Underwriters. Certificates for the Additional Shares shall be registered
in such name or names and shall be in such denominations as the Lead Manager may
request at least two business days before the Additional Closing Date. The
Company will permit the Lead Manager to examine and package such certificates
for delivery at least one full business day prior to the Additional Closing
Date.
3. Offering. Upon authorization of the release of the Firm Shares by the
Lead Manager, the Underwriters propose to offer the Shares for sale to the
public upon the terms and conditions set forth in the Prospectus.
4. Covenants of the Company. The Company covenants and agrees with the
Underwriters that:
(a) The Registration Statement and any amendments thereto have been
declared effective, and if Rule 430A is used or the filing of the Prospectus is
otherwise required under Rule 424(b), the Company will file the Prospectus
(properly completed if Rule 430A has been used) pursuant to Rule 424(b) within
the prescribed time period and will provide evidence satisfactory to the Lead
Manager of such timely filing.
The Company will notify you immediately (and, if requested by the Lead
Manager, will confirm such notice in writing) (i) when the Registration
Statement and any amendments thereto become effective, (ii) of any request by
the Commission for any amendment of or supplement to the Registration Statement
or the Prospectus or for any additional information, (iii) of the Company's
intention to file or prepare any supplement or amendment to
13
the Registration Statement or the Prospectus, (iv) of the mailing or the
delivery to the Commission for filing of any amendment of or supplement to the
Registration Statement or the Prospectus, including but not limited to Rule
462(b) under the Securities Act, (v) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or any
post-effective amendment thereto or of the initiation, or the threatening, of
any proceedings therefor, it being understood that the Company shall make every
effort to avoid the issuance of any such stop order, (vi) of the receipt of any
comments from the Commission, and (vii) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the Shares
for sale in any jurisdiction or the initiation or threatening of any proceeding
for that purpose. If the Commission shall propose or enter a stop order at any
time, the Company will make every reasonable effort to prevent the issuance of
any such stop order and, if issued, to obtain the lifting of such order as soon
as possible. The Company will not file any amendment to the Registration
Statement or any amendment of or supplement to the Prospectus (including the
prospectus required to be filed pursuant to Rule 424(b)) that differs from the
prospectus on file at the time of the effectiveness of the Registration
Statement or file any document under the Exchange Act if such document would be
deemed to be incorporated by reference into the Prospectus to which the Lead
Manager shall object in writing after being timely furnished in advance a copy
thereof. The Company will provide the Lead Manager with copies of all such
amendments, filings and other documents a sufficient time prior to any filing or
other publication thereof to permit the Lead Manager a reasonable opportunity to
review and comment thereon.
(b) The Company shall comply with the Securities Act and the Exchange
Act to permit completion of the distribution as contemplated in this Agreement,
the Registration Statement and the Prospectus. If at any time when a prospectus
relating to the Shares is required to be delivered under the Securities Act or
the Exchange Act in connection with the sales of Shares, any event shall have
occurred as a result of which the Prospectus as then amended or supplemented
would, in the judgment of the Underwriters or the Company, include an untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances existing at the time of delivery to the purchaser, not misleading,
or if to comply with the Securities Act, the Exchange Act or the Rules and
Regulations it shall be necessary at any time to amend or supplement the
Prospectus or Registration Statement, or to file any document incorporated by
reference in the Registration Statement or the Prospectus or in any amendment
thereof or supplement thereto, the Company will notify you promptly and prepare
and file with the Commission, subject to Section 4(a) hereof, an appropriate
amendment or supplement (in form and substance satisfactory to the Lead Manager)
which will correct such statement or omission or which will effect such
compliance and will use its best efforts to have any amendment to the
Registration Statement declared effective as soon as possible.
(c) The Company will promptly deliver to each of you and Underwriters'
Counsel a signed copy of the Registration Statement, as initially filed and all
amendments thereto, including all consents and exhibits filed therewith, and
will maintain in the Company's files manually signed copies of such documents
for at least five years after the date of filing. The Company will promptly
deliver to each of the Underwriters such number of copies of any Preliminary
Prospectus, the Prospectus, the Registration Statement, and all amendments of
and supplements to such documents, if any, and all documents incorporated by
reference in
14
the Registration Statement and Prospectus or any amendment thereof or supplement
thereto, as you may reasonably request. Prior to 10:00 A.M., New York time, on
the business day next succeeding the date of this Agreement and from time to
time thereafter, the Company will furnish the Underwriters with copies of the
Prospectus in New York City in such quantities as you may reasonably request.
(d) The Company consents to the use and delivery of the Preliminary
Prospectus by the Underwriters in accordance with Rule 430 and Section 5(b) of
the Securities Act.
(e) The Company will use its best efforts, in cooperation with the Lead
Manager, at or prior to the time of effectiveness of the Registration Statement,
to qualify the Shares for offering and sale under the securities laws relating
to the offering or sale of the Shares of such jurisdictions, domestic or
foreign, as the Lead Manager may designate and to maintain such qualification in
effect for so long as required for the distribution thereof; except that in no
event shall the Company be obligated in connection therewith to qualify as a
foreign corporation or to execute a general consent to service of process.
(f) The Company will make generally available to its security holders
and to the Underwriters as soon as practicable, but in any event not later than
twelve months after the effective date of the Registration Statement (as defined
in Rule 158(c) under the Securities Act), an earnings statement of the Company
and the Subsidiaries (which need not be audited) complying with Section 11(a) of
the Securities Act and the Rules and Regulations (including, at the option of
the Company, Rule 158).
(g) During the period of 90 days from the date of the Prospectus,
without the prior written consent of the Lead Manager the Company (i) will not,
directly or indirectly, issue, offer, sell, agree to issue, offer or sell,
solicit offers to purchase, grant any call option, warrant or other right to
purchase, purchase any put option or other right to sell, pledge, borrow or
otherwise dispose of any Relevant Security, or make any announcement of any of
the foregoing, (ii) will not establish or increase any "put equivalent position"
or liquidate or decrease any "call equivalent position" (in each case within the
meaning of Section 16 of the Exchange Act and the rules and regulations
promulgated thereunder) with respect to any Relevant Security, and (iii) will
not otherwise enter into any swap, derivative or other transaction or
arrangement that transfers to another, in whole or in part, any economic
consequence of ownership of a Relevant Security, whether or not such transaction
is to be settled by delivery of Relevant Securities, other securities, cash or
other consideration; and the Company will obtain an undertaking in substantially
the form of Annex II hereto of each of its officers, directors and its
stockholders listed on Schedule II attached hereto not to engage in any of the
aforementioned transactions on their own behalf, other than the sale of Shares
as contemplated by this Agreement and the Company's issuance of Common Stock
upon (i) the conversion or exchange of convertible or exchangeable securities
outstanding on the date hereof; (ii) the exercise of currently outstanding
options; and (iii) the grant and exercise of options under, or the issuance and
sale of shares pursuant to, employee stock option plans in effect on the date
hereof, each as described in the Registration Statement and the Prospectus. The
Company will not file a registration statement under the Securities Act in
connection with any transaction by the Company or any person that is prohibited
pursuant to the foregoing, except for registration
15
statements on Form S-8 relating to employee benefit plans or Form S-4 relating
to corporate reorganizations or other transactions under Rule 145.
(h) During the period of five years from the effective date of the
Registration Statement, the Company will furnish to you copies of all reports or
other communications (financial or other) furnished to security holders or from
time to time published or publicly disseminated by the Company, and will deliver
to you (i) as soon as they are available, copies of any reports, financial
statements and proxy or information statements furnished to or filed with the
Commission or any national securities exchange on which any class of securities
of the Company is listed; and (ii) such additional information concerning the
business and financial condition of the Company as you may from time to time
reasonably request (such financial information to be on a consolidated basis to
the extent the accounts of the Company and the Subsidiaries are consolidated in
reports furnished to its security holders generally or to the Commission).
(i) The Company will apply the net proceeds from the sale of the Shares
as set forth under the caption "Use of Proceeds" in the Prospectus.
(j) The Company will use its best efforts to effect and maintain the
listing of the Shares on the NASDAQ.
(k) The Company, during the period when the Prospectus is required to
be delivered under the Securities Act or the Exchange Act, will file all
documents required to be filed with the Commission pursuant to the Securities
Act, the Exchange Act and the Rules and Regulations within the time periods
required thereby.
(l) The Company will use its best efforts to do and perform all things
required to be done or performed under this Agreement by the Company prior to
the Closing Date or the Additional Date, as the case may be, and to satisfy all
conditions precedent to the delivery of the Firm Shares and the Additional
Shares.
(m) The Company will not take, and will cause its affiliates (within
the meaning of Rule 144 under the Securities Act) not to take, directly or
indirectly, any action which constitutes or is designed to cause or result in,
or which could reasonably be expected to constitute, cause or result in, the
stabilization or manipulation of the price of any security to facilitate the
sale or resale of the Shares.
5. Payment of Expenses. Whether or not the transactions contemplated by
this Agreement, the Registration Statement and the Prospectus are consummated or
this Agreement is terminated, the Company hereby agrees to pay all costs and
expenses incident to the performance of its obligations hereunder, including the
following: (i) all expenses in connection with the preparation, printing and
filing of the Registration Statement, any Preliminary Prospectus and the
Prospectus and any and all amendments and supplements thereto and the mailing
and delivering of copies thereof to the Underwriters and dealers; (ii) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Shares under the Securities Act and the
Offering; (iii) the cost of producing this Agreement and any agreement among
Underwriters, blue sky survey, closing documents and
16
other instruments, agreements or documents (including any compilations thereof)
in connection with the Offering; (iv) all expenses in connection with the
qualification of the Shares for offering and sale under state or foreign
securities or blue sky laws as provided in Section 4(e) hereof, including the
fees and disbursements of counsel for the Underwriters in connection with such
qualification and in connection with any blue sky survey; (v) the filing fees
incident to, and the fees and disbursements of counsel for the Underwriters in
connection with, securing any required review by the NASD of the terms of the
Offering; (vi) all fees and expenses in connection with listing the Shares on
the NASDAQ; (vii) all travel expenses of the Company's officers and employees
and any other expense of the Company incurred in connection with attending or
hosting meetings with prospective purchasers of the Shares; and (viii) any stock
transfer taxes incurred in connection with this Agreement or the Offering. The
Company also will pay or cause to be paid: (x) the cost of preparing stock
certificates representing the Shares; (y) the cost and charges of any transfer
agent or registrar for the Shares; and (z) all other costs and expenses incident
to the performance of its obligations hereunder which are not otherwise
specifically provided for in this Section 5. It is understood, however, that
except as provided in this Section, and Sections 7, 8 and 11 hereof, the
Underwriters will pay all of their own costs and expenses, including the fees of
their counsel and stock transfer taxes on resale of any of the Shares by them.
Notwithstanding anything to the contrary in this Section 5, in the event that
this Agreement is terminated pursuant to Section 6 or 11(b) hereof, or
subsequent to a Material Adverse Change, the Company will pay all out-of pocket
expenses of the Underwriters (including but not limited to fees and
disbursements of counsel to the Underwriters) incurred in connection herewith.
6. Conditions of Underwriters' Obligations. The obligations of the
Underwriters to purchase and pay for the Firm Shares and the Additional Shares,
as provided herein, shall be subject to the accuracy of the representations and
warranties of the Company herein contained, as of the date hereof and as of the
Closing Date (for purposes of this Section 6 "Closing Date" shall refer to the
Closing Date for the Firm Shares and any Additional Closing Date, if different,
for the Additional Shares), to the absence from any certificates, opinions,
written statements or letters furnished to you or to Underwriters' Counsel
pursuant to this Section 6 of any misstatement or omission, to the performance
by the Company of its obligations hereunder, and to each of the following
additional conditions:
(a) The Registration Statement shall have become effective and all
necessary regulatory or stock exchange approvals shall have been received not
later than 5:30 P.M., New York time, on the date of this Agreement, or at such
later time and date as shall have been consented to in writing by the Lead
Manager; if the Company shall have elected to rely upon Rule 430A under the
Securities Act, the Prospectus shall have been filed with the Commission in a
timely fashion in accordance with Section 4(a) hereof and a form of the
Prospectus containing information relating to the description of the Shares and
the method of distribution and similar matters shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time period; and, at or
prior to the Closing Date no stop order suspending the effectiveness of the
Registration Statement or any post-effective amendment thereof shall have been
issued and no proceedings therefor shall have been initiated or threatened by
the Commission.
17
(b) At the Closing Date you shall have received the favorable written
opinion of Camner, ▇▇▇▇▇▇▇ & Poller, P.A., counsel for the Company, dated the
Closing Date addressed to the Underwriters in the form attached hereto as Annex
I.
(c) All proceedings taken in connection with the sale of the Firm
Shares and the Additional Shares as herein contemplated shall be satisfactory in
form and substance to the Lead Manager and to Underwriters' Counsel, and the
Underwriters shall have received from Underwriters' Counsel a favorable written
opinion, dated as of the Closing Date, with respect to the issuance and sale of
the Shares, the Registration Statement and the Prospectus and such other related
matters as the Lead Manager may require, and the Company shall have furnished to
Underwriters' Counsel such documents as they may reasonably request for the
purpose of enabling them to pass upon such matters.
(d) At the Closing Date you shall have received a certificate of the
Chief Executive Officer and Chief Financial Officer of the Company, dated the
Closing Date to the effect that (i) the condition set forth in subsection (a) of
this Section 6 has been satisfied, (ii) as of the date hereof and as of the
Closing Date, the representations and warranties of the Company set forth in
Section 1 hereof are accurate, (iii) as of the Closing Date all agreements,
conditions and obligations of the Company to be performed or complied with
hereunder on or prior thereto have been duly performed or complied with, (iv)
the Company and the Subsidiaries have not sustained any material loss or
interference with their respective businesses or properties from fire, flood,
hurricane, accident or other calamity, whether or not covered by insurance, or
from any labor dispute or any legal or governmental proceeding, (v) no stop
order suspending the effectiveness of the Registration Statement or any
post-effective amendment thereof has been issued and no proceedings therefor
have been initiated or threatened by the Commission, (vi) there are no pro forma
or as adjusted financial statements that are required to be included in the
Registration Statement and the Prospectus pursuant to the Rules and Regulations
and (vii) subsequent to the respective dates as of which information is given in
the Registration Statement and the Prospectus there has not been any material
adverse change or any development involving a prospective material adverse
change, whether or not arising from transactions in the ordinary course of
business, in or affecting (x) the business, condition (financial or otherwise),
results of operations, stockholders' equity, properties or prospects of the
Company and the Subsidiaries, taken as a whole; (y) the long-term debt or
capital stock of the Company or any of its Subsidiaries; or (z) the Offering or
consummation of any of the other transactions contemplated by this Agreement,
the Registration Statement and the Prospectus.
(e) At the time this Agreement is executed and at the Closing Date, you
shall have received a comfort letter, from PricewaterhouseCoopers LLP,
independent public accountants for the Company, dated, respectively, as of the
date of this Agreement and as of the Closing Date addressed to the Underwriters
and in form and substance satisfactory to the Underwriters, Underwriters'
Counsel and PricewaterhouseCoopers LLP.
(f) Subsequent to the execution and delivery of this Agreement or, if
earlier, the dates as of which information is given in the Registration
Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of
any supplement thereto), there shall not have been any change in the capital
stock or long-term debt of the Company or any Subsidiary or any change or
development involving a change, whether or not arising from transactions in the
18
ordinary course of business, in the business, condition (financial or
otherwise), results of operations, stockholders' equity, properties or prospects
of the Company and the Subsidiaries, taken as a whole, including but not limited
to the occurrence of any fire, flood, storm, explosion, accident or other
calamity at any of the properties owned or leased by the Company or any of its
Subsidiaries, the effect of which, in any such case described above, is, in the
judgment of the Lead Manager, so material and adverse as to make it
impracticable or inadvisable to proceed with the Offering on the terms and in
the manner contemplated in the Prospectus (exclusive of any supplement).
(g) No downgrading shall have occurred in the Company's corporate
credit rating or the rating accorded 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) and no such organization
shall have publicly announced that it has under surveillance or review, with
possible negative implications, its rating of any of the Company's debt
securities.
(h) You shall have received a duly executed lock-up agreement from each
person who is a director or executive officer of the Company and each
shareholder listed on Schedule II hereto, in each case substantially in the form
attached hereto as Annex II.
(i) At the Closing Date, the Shares shall have been approved for
quotation on the NASDAQ.
(j) At the Closing Date, the NASD shall have confirmed that it has not
raised any objection with respect to the fairness and reasonableness of the
underwriting terms and arrangements.
(k) No action shall have been taken and no statute, rule, regulation or
order shall have been enacted, adopted or issued by any federal, state or
foreign governmental or regulatory authority that would, as of the Closing Date,
prevent the issuance or sale of the Shares; and no injunction or order of any
federal, state or foreign court shall have been issued that would, as of the
Closing Date, prevent the issuance or sale of the Shares.
(l) The Company shall have furnished the Underwriters and Underwriters'
Counsel with such other certificates, opinions or other documents as they may
have reasonably requested.
If any of the conditions specified in this Section 6 shall not have been
fulfilled when and as required by this Agreement, or if any of the certificates,
opinions, written statements or letters furnished to you or to Underwriters'
Counsel pursuant to this Section 6 shall not be satisfactory in form and
substance to the Lead Manager and to Underwriters' Counsel, all obligations of
the Underwriters hereunder may be cancelled by the Lead Manager at, or at any
time prior to, the Closing Date and the obligations of the Underwriters to
purchase the Additional Shares may be cancelled by the Lead Manager at, or at
any time prior to, the Additional Closing Date. Notice of such cancellation
shall be given to the Company in writing, or by telephone. Any such telephone
notice shall be confirmed promptly thereafter in writing.
7. Indemnification.
19
(a) The Company shall indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act, against any and all
losses, liabilities, claims, damages and expenses whatsoever as incurred
(including but not limited to attorneys' fees and any and all expenses
whatsoever incurred in investigating, preparing or defending against any
litigation, commenced or threatened, or any claim whatsoever, and any and all
amounts paid in settlement of any claim or litigation), joint or several, to
which they or any of them may become subject under the Securities Act, the
Exchange Act or otherwise, insofar as such losses, liabilities, claims, damages
or expenses (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement, as originally filed or any amendment thereof, or any
related Preliminary Prospectus or the Prospectus, or in any supplement thereto
or amendment thereof, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided, however, that
the Company will not be liable in any such case to the extent but only to the
extent that any such loss, liability, claim, damage or expense arises out of or
is based upon any such untrue statement or alleged untrue statement or omission
or alleged omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Underwriter through
the Lead Manager expressly for use therein. The parties agree that such
information provided by or on behalf of any Underwriter through the Lead Manager
consists solely of the material referred to in the last sentence of Section 1(b)
hereof. This indemnity agreement will be in addition to any liability which the
Company may otherwise have, including but not limited to other liability under
this Agreement.
(b) Each Underwriter, severally and not jointly, shall indemnify and
hold harmless the Company, each of the directors of the Company, each of the
officers of the Company who shall have signed the Registration Statement, and
each other person, if any, who controls the Company within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act, against any
losses, liabilities, claims, damages and expenses whatsoever as incurred
(including but not limited to attorneys' fees and any and all expenses
whatsoever incurred in investigating, preparing or defending against any
litigation, commenced or threatened, or any claim whatsoever, and any and all
amounts paid in settlement of any claim or litigation), joint or several, to
which they or any of them may become subject under the Securities Act, the
Exchange Act or otherwise, insofar as such losses, liabilities, claims, damages
or expenses (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement, as originally filed or any amendment thereof, or any
related Preliminary Prospectus or the Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that any such loss, liability, claim, damage or
expense arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with information furnished in writing to the Company by or on
behalf of any Underwriter through the Lead Manager specifically for use therein;
provided, however, that in no case shall any Underwriter be liable or
responsible for any amount in excess of the underwriting discount applicable to
the Shares to be purchased by such Underwriter hereunder. The parties agree that
such information provided by or on behalf of any Underwriter through the
20
Lead Manager consists solely of the material referred to in the last sentence of
Section 1(b) hereof. This indemnity will be in addition to any liability which
any Underwriter may otherwise have, including but not limited to other liability
under this Agreement.
(c) Promptly after receipt by an indemnified party under subsection (a)
or (b) above of notice of any claims or the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify each party against whom
indemnification is to be sought in writing of the claim or the commencement
thereof (but the failure so to notify an indemnifying party shall not relieve
the indemnifying party from any liability which it may have under this Section 7
to the extent that it is not materially prejudiced as a result thereof and in
any event shall not relieve it from any liability that such indemnifying party
may have otherwise than on account of the indemnity agreement hereunder). In
case any such claim or action is brought against any indemnified party, and it
notifies an indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate, at its own expense in the defense of such
action, and to the extent it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof with counsel satisfactory to
such indemnified party; provided however, that counsel to the indemnifying party
shall not (except with the written consent of the indemnified party) also be
counsel to the indemnified party. Notwithstanding the foregoing, the indemnified
party or parties shall have the right to employ its or their own counsel in any
such case, but the fees and expenses of such counsel shall be at the expense of
such indemnified party or parties unless (i) the employment of such counsel
shall have been authorized in writing by one of the indemnifying parties in
connection with the defense of such action, (ii) the indemnifying parties shall
not have employed counsel to have charge of the defense of such action within a
reasonable time after notice of commencement of the action, (iii) the
indemnifying party does not diligently defend the action after assumption of the
defense, or (iv) such indemnified party or parties shall have reasonably
concluded that there may be defenses available to it or them which are different
from or additional to those available to one or all of the indemnifying parties
(in which case the indemnifying parties 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 indemnifying parties.
No indemnifying party shall, without the prior written consent of the
indemnified parties, effect any settlement or compromise of, or consent to the
entry of judgment with respect to, any pending or threatened claim,
investigation, action or proceeding in respect of which indemnity or
contribution may be or could have been sought by an indemnified party under this
Section 7 or Section 8 hereof (whether or not the indemnified party is an actual
or potential party thereto), unless (x) such settlement, compromise or judgment
(i) includes an unconditional release of the indemnified party from all
liability arising out of such claim, investigation, action or proceeding and
(ii) does not include a statement as to or an admission of fault, culpability or
any failure to act, by or on behalf of the indemnified party, and (y) the
indemnifying party confirms in writing its indemnification obligations hereunder
with respect to such settlement, compromise or judgment.
8. Contribution. In order to provide for contribution in circumstances in
which the indemnification provided for in Section 7 hereof is for any reason
held to be unavailable from any indemnifying party or is insufficient to hold
harmless a party indemnified thereunder, the Company and the Underwriters shall
contribute to the aggregate losses, claims, damages,
21
liabilities and expenses of the nature contemplated by such indemnification
provision (including any investigation, legal and other expenses incurred in
connection with, and any amount paid in settlement of, any action, suit or
proceeding or any claims asserted, but after deducting in the case of losses,
claims, damages, liabilities and expenses suffered by the Company, any
contribution received by the Company from persons, other than the Underwriters,
who may also be liable for contribution, including persons who control the
Company within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act, officers of the Company who signed the Registration Statement
and directors of the Company) as incurred to which the Company and one or more
of the Underwriters may be subject, in such proportions as is appropriate to
reflect the relative benefits received by the Company and the Underwriters from
the Offering or, if such allocation is not permitted by applicable law, in such
proportions as are appropriate to reflect not only the relative benefits
referred to above but also the relative fault of the Company and the
Underwriters in connection with the statements or omissions which resulted in
such losses, claims, damages, liabilities or expenses, 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 (x) the
total proceeds from the Offering (net of underwriting discounts and commissions
but before deducting expenses) received by the Company bears to (y) the
underwriting discount or commissions received by the Underwriters, in each case
as set forth in the table on the cover page of the Prospectus. The relative
fault of each of the Company and of the Underwriters shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and the Underwriters
agree that it would not be just and equitable if contribution pursuant to this
Section 8 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 above in
this Section. The aggregate amount of losses, liabilities, claims, damages and
expenses incurred by an indemnified party and referred to above in this Section
8 shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any judicial, regulatory or
other legal or governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue or alleged untrue statement or
omission or alleged omission. Notwithstanding the provisions of this Section 8,
(i) no Underwriter shall be required to contribute any amount in excess of the
amount by which the discounts and commissions applicable to the Shares
underwritten by it and distributed to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission and (ii)
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. For purposes of this
Section 8, each person, if any, who controls an Underwriter within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have
the same rights to contribution as such Underwriter, and each person, if any,
who controls the Company within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act, each officer of the Company who shall have
signed the Registration Statement and each director of the Company shall have
the same rights to
22
contribution as the Company, subject in each case to clauses (i) and (ii) of the
immediately preceding sentence. Any party entitled to contribution will,
promptly after receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim for contribution may
be made against another party or parties, notify each party or parties from whom
contribution may be sought, but the omission to so notify such party or parties
shall not relieve the party or parties from whom contribution may be sought from
any obligation it or they may have under this Section 8 or otherwise. The
obligations of the Underwriters to contribute pursuant to this Section 8 are
several in proportion to the respective number of Shares to be purchased by each
of the Underwriters hereunder and not joint.
9. Underwriter Default.
(a) If any Underwriter or Underwriters shall default in its or their
obligation to purchase Firm Shares or Additional Shares hereunder, and if the
Firm Shares or Additional Shares with respect to which such default relates (the
"Default Shares") do not (after giving effect to arrangements, if any, made by
the Lead Manager pursuant to subsection (b) below) exceed in the aggregate 10%
of the number of Firm Shares or Additional Shares, each non-defaulting
Underwriter, acting severally and not jointly, agrees to purchase from the
Company that number of Default Shares that bears the same proportion of the
total number of Default Shares then being purchased as the number of Firm Shares
set forth opposite the name of such Underwriter in Schedule I hereto bears to
the aggregate number of Firm Shares set forth opposite the names of the
non-defaulting Underwriters, subject, however, to such adjustments to eliminate
fractional shares as the Lead Manager in its sole discretion shall make.
(b) In the event that the aggregate number of Default Shares exceeds
10% of the number of Firm Shares or Additional Shares, as the case may be, the
Lead Manager may in its discretion arrange for itself or for another party or
parties (including any non-defaulting Underwriter or Underwriters who so agree)
to purchase the Default Shares on the terms contained herein. In the event that
within five calendar days after such a default the Lead Manager does not arrange
for the purchase of the Default Shares as provided in this Section 9, this
Agreement or, in the case of a default with respect to the Additional Shares,
the obligations of the Underwriters to purchase and of the Company to sell the
Additional Shares shall thereupon terminate, without liability on the part of
the Company with respect thereto (except in each case as provided in Sections 5,
7, 8, 10 and 11(d)) or the Underwriters, but nothing in this Agreement shall
relieve a defaulting Underwriter or Underwriters of its or their liability, if
any, to the other Underwriters and the Company for damages occasioned by its or
their default hereunder.
(c) In the event that any Default Shares are to be purchased by the
non-defaulting Underwriters, or are to be purchased by another party or parties
as aforesaid, the Lead Manager or the Company shall have the right to postpone
the Closing Date or Additional Closing Date, as the case may be for a period,
not exceeding five business days, in order to effect whatever changes may
thereby be made necessary in the Registration Statement or the Prospectus or in
any other documents and arrangements, and the Company agrees to file promptly
any amendment or supplement to the Registration Statement or the Prospectus
which, in the opinion of Underwriters' Counsel, may thereby be made necessary or
advisable. The term "Underwriter" as used in this Agreement shall include any
party substituted under this Section 9
23
with like effect as if it had originally been a party to this Agreement with
respect to such Firm Shares and Additional Shares.
10. Survival of Representations and Agreements. All representations and
warranties, covenants and agreements of the Underwriters and the Company
contained in this Agreement or in certificates of officers of the Company or any
Subsidiary submitted pursuant hereto, including the agreements contained in
Section 5, the indemnity agreements contained in Section 7 and the contribution
agreements contained in Section 8, shall remain operative and in full force and
effect regardless of any investigation made by or on behalf of any Underwriter
or any controlling person thereof or by or on behalf of the Company, any of its
officers and directors or any controlling person thereof, and shall survive
delivery of and payment for the Shares to and by the Underwriters. The
representations contained in Section 1 and the agreements contained in Sections
5, 7, 8, 10 and 11 hereof shall survive any termination of this Agreement,
including termination pursuant to Section 9 or 11 hereof.
11. Effective Date of Agreement; Termination.
(a) This Agreement shall become effective upon the later of (i) receipt
by the Lead Manager and the Company of notification of the effectiveness of the
Registration Statement or (ii) the execution of this Agreement. Notwithstanding
any termination of this Agreement, the provisions of this Section 11 and of
Sections 1, 5, 7, 8 and 12 through 17, inclusive, shall remain in full force and
effect at all times after the execution hereof.
(b) The Lead Manager shall have the right to terminate this Agreement
at any time prior to the Closing Date or to terminate the obligations of the
Underwriters to purchase the Additional Shares at any time prior to the
Additional Closing Date, as the case may be, if (i) any domestic or
international event or act or occurrence has materially disrupted, or in the
opinion of the Lead Manager will in the immediate future materially disrupt, the
market for the Company's securities or securities in general; or (ii) trading on
NYSE, The NASDAQ National Market (the "NASDAQ") or the American Stock Exchange
shall have been suspended or been made subject to material limitations, or
minimum or maximum prices for trading shall have been fixed, or maximum ranges
for prices for securities shall have been required, on the NYSE or the NASDAQ or
the American Stock Exchange or by order of the Commission or any other
governmental authority having jurisdiction; or (iii) a banking moratorium has
been declared by any state or federal authority or if any material disruption in
commercial banking or securities settlement or clearance services shall have
occurred; (iv) any downgrading shall have occurred in the Company's corporate
credit rating or the rating accorded the Company's debt securities or trust
preferred stock by any "nationally recognized statistical rating organization"
(as defined for purposes of Rule 436(g) under the Securities Act) or if any such
organization shall have been publicly announced that it has under surveillance
or review, with possible negative implications, its rating of any of the
Company's debt securities; or (v) (A) there shall have occurred any outbreak or
escalation of hostilities or acts of terrorism involving the United States or
there is a declaration of a national emergency or war by the United States or
(B) there shall have been any other calamity or crisis or any change in
political, financial or economic conditions if the effect of any such event in
(A) or (B), in the judgment of the Lead Manager, makes it impracticable or
inadvisable to proceed with the offering, sale and delivery of the Firm
24
Shares or the Additional Shares, as the case may be, on the terms and in the
manner contemplated by the Prospectus.
(c) Any notice of termination pursuant to this Section 11 shall be in
writing.
(d) If this Agreement shall be terminated pursuant to any of the
provisions hereof (other than pursuant to Section 9(b) hereof), or if the sale
of the Shares provided for herein is not consummated because any condition to
the obligations of the Underwriters set forth herein is not satisfied or because
of any refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof, the Company will, subject
to demand by the Lead Manager, reimburse the Underwriters for all out-of-pocket
expenses (including the fees and expenses of their counsel), incurred by the
Underwriters in connection herewith.
12. Notices. All communications hereunder, except as may be otherwise
specifically provided herein, shall be in writing, and:
(a) if sent to any Underwriter, shall be mailed, delivered, or faxed
and confirmed in writing, to such Underwriter c/o Bear, ▇▇▇▇▇▇▇ & Co. Inc., ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ Parish, Senior
Managing Director, Equity Capital Markets, with a copy to Underwriter's Counsel
at ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇,
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.;
(b) if sent to the Company, shall be mailed, delivered, or faxed and
confirmed in writing to the Company and its counsel at the addresses set forth
in the Registration Statement, Attention: ___________;
provided, however, that any notice to an Underwriter pursuant to Section 7 shall
be delivered or sent by mail or facsimile transmission to such Underwriter at
its address set forth in its acceptance facsimile to Bear ▇▇▇▇▇▇▇, which address
will be supplied to any other party hereto by Bear ▇▇▇▇▇▇▇ upon request. Any
such notices and other communications shall take effect at the time of receipt
thereof.
13. Parties. This Agreement shall inure solely to the benefit of, and shall
be binding upon, the Underwriters and the Company and the controlling persons,
directors, officers, employees and agents referred to in Sections 7 and 8
hereof, and their respective successors and assigns, and no other person shall
have or be construed to have any legal or equitable right, remedy or claim under
or in respect of or by virtue of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the parties hereto and said
controlling persons and their respective successors, officers, directors, heirs
and legal representatives, and it is not for the benefit of any other person,
firm or corporation. The term "successors and assigns" shall not include a
purchaser, in its capacity as such, of Shares from any of the Underwriters.
14. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York. The Company irrevocably (a)
submits to the jurisdiction of any court of the State of New York or the United
State District Court for the
▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ of the State of New York for the purpose of any suit, action,
or other proceeding arising out of this Agreement, or any of the agreements or
transactions contemplated by this Agreement, the Registration Statement and the
Prospectus (each, a "Proceeding"), (b) agrees that all claims in respect of any
Proceeding may be heard and determined in any such court, (c) waives, to the
fullest extent permitted by law, any immunity from jurisdiction of any such
court or from any legal process therein, (d) agrees not to commence any
Proceeding other than in such courts, and (e) waives, to the fullest extent
permitted by law, any claim that such Proceeding is brought in an inconvenient
forum. THE COMPANY (ON BEHALF OF ITSELF AND, TO THE FULLEST EXTENT PERMITTED BY
LAW, ON BEHALF OF ITS RESPECTIVE EQUITY HOLDERS AND CREDITORS) HEREBY WAIVES ANY
RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM BASED UPON, ARISING
OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED BY
THIS AGREEMENT, THE REGISTRATION STATEMENT AND THE PROSPECTUS.
15. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same instrument. Delivery of
a signed counterpart of this Agreement by facsimile transmission shall
constitute valid and sufficient delivery thereof.
16. Headings. The headings herein are inserted for convenience of reference
only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
17. Time is of the Essence. Time shall be of the essence of this Agreement.
As used herein, the term "business day" shall mean any day when the Commission's
office in Washington, D.C. is open for business.
[signature page follows]
26
If the foregoing correctly sets forth your understanding, please so
indicate in the space provided below for that purpose, whereupon this letter
shall constitute a binding agreement among us.
Very truly yours,
BANKUNITED FINANCIAL CORPORATION
By:________________________________
Name:
Title:
Accepted as of the date first above written
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
▇▇▇▇▇▇▇ ▇▇▇▇▇ & ASSOCIATES, INC.
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, INC.
▇▇▇▇▇▇ ▇▇▇▇▇▇ & CO., INC.
SANDLER O'NEIL & PARTNERS, L.P.
By: BEAR, ▇▇▇▇▇▇▇ & CO. INC.
By:_______________________________________
Name:
Title:
On behalf of itself and the other
Underwriters named in Schedule I hereto.
SCHEDULE I
Number of Additional
Total Number of Firm Shares to be Purchased if
Underwriter Shares to be Purchased Option is Fully Exercised
----------- ---------------------- -------------------------
Bear, ▇▇▇▇▇▇▇ & Co. Inc.
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc.
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, Inc.
▇▇▇▇▇▇ ▇▇▇▇▇▇ & Co., Inc.
RBC Capital Markets, Inc.
Sandler ▇'▇▇▇▇▇ & Partners, L.P.
Total ........... ====================== =========================
SCHEDULE II
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
EXHIBIT A
Subsidiaries
BankUnited, FSB
BankUnited Financial Services, Incorporated
CRE America Corporation
BankUnited Capital
BankUnited Capital II
BankUnited Capital III
BankUnited Statutory Trust I
BankUnited Statutory Trust II
BankUnited Statutory Trust III
BankUnited Statutory Trust IV
BankUnited Statutory Trust V
BankUnited Statutory Trust VI
BankUnited Statutory Trust VII
ANNEX I
Form of Opinion of Company Counsel
1. Each of the Company and its Subsidiaries has been duly organized and
validly exists as a corporation in good standing under the laws of its
jurisdiction of incorporation, with full power and authority to own its
properties and conduct its business as described in the Registration Statement
and the Prospectus. Each of the Company and its Subsidiaries is duly qualified
and in good standing as a foreign corporation in each jurisdiction in which the
character or location of its properties (owned, leased or licensed) or the
nature or conduct of its business makes such qualification necessary, except for
those failures to be so qualified or in good standing which will not in the
aggregate have a Material Adverse Effect.
2. The Company has an authorized capitalization as set forth in the
Registration Statement and the Prospectus. All of the issued shares of capital
stock of the Company have been duly and validly authorized and issued, are fully
paid and non-assessable and are not in violation of or subject to any preemptive
or, to the best of such counsel's knowledge, similar rights that entitle or will
entitle any person to acquire any Shares from the Company upon issuance or sale
thereof. The Shares to be delivered on the Closing Date and the Additional
Closing Date, if any, have been duly and validly authorized and, when delivered
in accordance with the Underwriting Agreement, will be duly and validly issued,
fully paid and non-assessable and will not have been issued in violation of or
subject to preemptive or, to the best of such counsel's knowledge, similar
rights that entitle or will entitle any person to acquire any Shares from the
Company upon issuance or sale thereof. All of the issued shares of capital stock
of each Subsidiary of the Company have been duly and validly authorized and
issued and are fully paid and non-assessable and owned directly or indirectly by
the Company, free and clear of all Liens. The Common Stock, the Firm Shares and
the Additional Shares conform to the descriptions thereof contained in the
Registration Statement and the Prospectus.
3. The Common Stock currently outstanding is listed, and the Shares are
duly authorized for listing on the NASDAQ.
4. The Underwriting Agreement has been duly and validly authorized,
executed and delivered by the Company and constitutes the legal, valid and
binding obligation of the Company, enforceable in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights generally
and except as enforceability may be subject to general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
5. To the best of such counsel's knowledge and other than as set forth
in the Prospectus, there are no judicial, regulatory or other legal or
governmental proceedings pending to which the Company or any of its Subsidiaries
is a party or of which any property of the Company or any of its Subsidiaries is
the subject which, if determined adversely to the Company or any of its
Subsidiaries, would individually or in the aggregate have a Material Adverse
Effect; and, to the best of such counsel's knowledge, no such proceedings are
threatened or contemplated.
1
6. The execution, delivery, and performance of the Underwriting
Agreement and consummation of the transactions contemplated by Underwriting
Agreement, the Registration Statement and the Prospectus do not and will not (A)
conflict with or result in a breach of any of the terms and provisions of, or
constitute a default (or an event which with notice or lapse of time, or both,
would constitute a default) under, or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of the Company or
any of its Subsidiaries pursuant to, any indenture, mortgage, deed of trust,
loan agreement or any other agreement, instrument, franchise, license or permit
known to such counsel to which the Company or any of its Subsidiaries is a party
or by which any of the Company or any of its Subsidiaries or their respective
properties or assets may be bound or (B) violate or conflict with any provision
of the certificate of incorporation or by-laws of the Company or any of its
Subsidiaries, or, to the best knowledge of such counsel, any judgment, decree,
order, statute, rule or regulation of any court or any judicial, regulatory or
other legal or governmental agency or body.
7. No consent, approval, authorization, order, registration, filing,
qualification, license or permit of or with any court or any judicial,
regulatory or other legal or governmental agency or body is required for the
execution, delivery and performance of this Agreement or consummation of the
transactions contemplated by the Underwriting Agreement, the Registration
Statement and the Prospectus, except for (1) such as may be required under state
securities or blue sky laws in connection with the purchase and distribution of
the Shares by the Underwriters (as to which such counsel need express no
opinion), (2) such as have been made or obtained under the Securities Act and
(3) such as are required by the NASD.
8. The Registration Statement and the Prospectus and any amendments
thereof or supplements thereto (other than the financial statements and
schedules and other financial data included or incorporated by reference
therein, as to which no opinion need be rendered) comply as to form in all
material respects with the requirements of the Securities Act, the Exchange Act
and the Rules and Regulations. The documents filed under the Exchange Act and
incorporated by reference in the Registration Statement and the Prospectus or
any amendment thereof or supplement thereto (other than the financial statements
and schedules and other financial data included or incorporated by reference
therein, as to which no opinion need be rendered) when they became effective or
were filed with the Commission, as the case may be, complied as to form in all
material respects with the Securities Act or the Exchange Act, as applicable,
and the Rules and Regulations.
9. The statements under the captions "Description of Capital Stock"
and "Underwriting" in the Prospectus and Items 14 and 15 of Part II of the
Registration Statement, insofar as such statements constitute a summary of the
legal matters, documents or proceedings referred to therein, fairly present the
information called for with respect to such legal matters, documents and
proceedings.
10. The Company is not and, after giving effect to the offering and
sale of the Shares and the application of the proceeds thereof as described in
the Registration Statement and the Prospectus, will not be, an "investment
company" as such term is defined in the Investment Company Act of 1940, as
amended.
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11. The Registration Statement is effective under the Securities Act,
and, to the best knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement or any post-effective amendment
thereof has been issued and no proceedings therefor have been initiated or
threatened by the Commission and all filings required by Rule 424(b) and Rule
430A under the Securities Act have been made.
12. The Company has full right, power and authority to execute and
deliver this Agreement and the Shares and to perform its obligations hereunder,
and all corporate action required to be taken for the due and proper
authorization, execution and delivery of this Agreement and the Shares and
consummation of the transactions contemplated by Underwriting Agreement, the
Registration Statement and the Prospectus and as described in the Registration
Statement and the Prospectus have been duly and validly taken.
13. To the best knowledge of such counsel, no contract or agreement is
required to be filed as an exhibit to the Registration Statement that is not so
filed.
14. The Company is duly registered as a savings and loan holding
company under the Home Owners' Loan Act and the deposit accounts of the
Company's depository institution subsidiary are insured by the FDIC to the
fullest extent permitted by law and the rules and regulations of the FDIC, and
no proceedings for the termination of such insurance are pending or, to our
knowledge, threatened.
15. Neither the Company nor any of its Subsidiaries is in violation of
its respective charter or by-laws and, to the best of such counsel's knowledge
after due inquiry, neither the Company nor any of its Subsidiaries is in default
in the performance of any obligation, agreement, covenant or condition contained
in any indenture, loan agreement, mortgage, lease or other agreement or
instrument that is material to the Company and its Subsidiaries, taken as a
whole, to which the Company or any of its Subsidiaries is a party or by which
the Company or any of its Subsidiaries or their respective property is bound.
16. Neither the Company nor any of its Subsidiaries has violated any
environmental law, any provisions of the Employee Retirement Income Security Act
of 1974, as amended, or any provisions of the Foreign Corrupt Practices Act, or
the rules and regulations promulgated thereunder, except for such violations
which, singly or in the aggregate, would not have a Material Adverse Effect.
17. Each of the Company and its Subsidiaries has such authorizations
of, and has made all filings with and notices to, all governmental or regulatory
authorities and self-regulatory organizations and all courts and other
tribunals, including, without limitation, under any applicable environmental
laws, as are necessary to own, lease, license and operate its respective
properties and to conduct its business, except where the failure to have any
such authorization or to make any such filing or notice would not, singly or in
the aggregate, have a Material Adverse Effect; each such authorization is valid
and in full force and effect and each of the Company and its Subsidiaries is in
compliance with all the terms and conditions thereof and with the rules and
regulations of the authorities and governing bodies having jurisdiction with
respect thereto; and no event has occurred (including, without limitation, the
receipt of any notice from any authority or governing body) which allows or,
after notice or lapse of time or both, would allow, revocation, suspension or
termination of any such authorization or results or,
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after notice or lapse of time or both, would result in any other impairment of
the rights of the holder of any such authorization; and such authorizations
contain no restrictions that are burdensome to the Company or any of its
Subsidiaries; except where such failure to be valid and in full force and effect
or to be in compliance, the occurrence of any such event or the presence of any
such restriction would not, singly or in the aggregate, have a Material Adverse
Effect.
In addition, such opinion shall also contain a statement that such
counsel has participated in conferences with officers and representatives of the
Company, representatives of the independent public accountants for the Company
and the Underwriters at which the contents of the Registration Statement and the
Prospectus and related matters were discussed and, no facts have come to the
attention of such counsel which would lead such counsel to believe that either
the Registration Statement, at the time it became effective (including the
information deemed to be part of the Registration Statement at the time of
effectiveness pursuant to Rule 430A(b) or Rule 434, if applicable), or any
amendment thereof made prior to the Closing Date, as of the date of such
amendment, contained or incorporated by reference any untrue statement of a
material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading or that the
Prospectus (including the documents incorporated by reference therein), as of
its date (or any amendment thereof or supplement thereto made prior to the
Closing Date as of the date of such amendment or supplement) and as of the
Closing Date, contained or contains an untrue statement of a material fact or
omitted or omits to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading (it being understood that such counsel need
express no belief or opinion with respect to the financial statements and
schedules and other financial data included or incorporated by reference
therein).
Such counsel will state that ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ is entitled to
rely on the opinion as to matters relating to Florida law.
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ANNEX II
Form of Lock-Up Agreement
May _, 2003
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
▇▇▇▇▇▇▇ ▇▇▇▇▇ & ASSOCIATES, INC.
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, INC.
▇▇▇▇▇▇ ▇▇▇▇▇▇ & CO., INC.
SANDLER ▇'▇▇▇▇▇ & PARTNERS, L.P.
As Representatives of the several
Underwriters referred to below
c/o Bear, ▇▇▇▇▇▇▇ & Co. Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Equity Capital Markets
BankUnited Financial Corporation Lock-Up Agreement
Ladies and Gentlemen:
This letter agreement (this "Agreement") relates to the proposed public
offering (the "Offering") by BankUnited Financial Corporation, a Florida
corporation (the "Company"), of its Class A Common Stock, $0.01 par value (the
"Stock").
In order to induce you and the other underwriters for which you act as
representatives (the "Underwriters") to underwrite the Offering, the undersigned
hereby agrees that, without the prior written consent of Bear, ▇▇▇▇▇▇▇ & Co.
Inc. ("Bear ▇▇▇▇▇▇▇"), during the period from the date hereof until ninety (90)
days from the date of the final prospectus for the Offering (the "Lock-Up
Period"), the undersigned (a) will not, directly or indirectly, offer, sell,
agree to offer or sell, solicit offers to purchase, grant any call option or
purchase any put option with respect to, pledge, borrow or otherwise dispose of
any Relevant Security (as defined below), and (b) will not establish or increase
any "put equivalent position" or liquidate or decrease any "call equivalent
position" with respect to any Relevant Security (in each case within the meaning
of Section 16 of the Securities Exchange Act of 1934, as amended, and the rules
and regulations promulgated thereunder), or otherwise enter into any swap,
derivative or other transaction or arrangement that transfers to another, in
whole or in part, any economic consequence of ownership of a Relevant Security,
whether or not such transaction is to be settled by delivery of Relevant
Securities, other securities, cash or other consideration. As used herein
"Relevant Security" means any common stock or other security of the Company or
any subsidiary that is convertible into, or exercisable or exchangeable for
common stock or equity securities or that holds the right to acquire any common
stock or equity securities of the Company or any subsidiary or any other such
Relevant Security, except for such rights as may have been fully satisfied or
waived prior to the effectiveness of the Registration Statement.
The undersigned hereby authorizes the Company during the Lock-Up Period
to cause any transfer agent for the Relevant Securities to decline to transfer,
and to note stop transfer restrictions on the stock register and other records
relating to, Relevant Securities for which the undersigned is the record holder
and, in the case of Relevant Securities for which the undersigned is the
beneficial but not the record holder, agrees during the Lock-Up Period to cause
the record holder to cause the relevant transfer agent to decline to transfer,
and to note stop transfer restrictions on the stock register and other records
relating to, such Relevant Securities. The undersigned hereby further agrees
that, without the prior written consent of Bear ▇▇▇▇▇▇▇, during the Lock-Up
Period the undersigned (x) will not file or participate in the filing with the
Securities and Exchange Commission of any registration statement, or circulate
or participate in the circulation of any preliminary or final prospectus or
other disclosure document with respect to any proposed offering or sale of a
Relevant Security and (y) will not exercise any rights the undersigned may have
to require registration with the Securities and Exchange Commission of any
proposed offering or sale of a Relevant Security.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to enter into this Agreement and that this Agreement
constitutes the legal, valid and binding obligation of the undersigned,
enforceable in accordance with its terms. Upon request, the undersigned will
execute any additional documents necessary in connection with enforcement
hereof. Any obligations of the undersigned shall be binding upon the successors
and assigns of the undersigned from the date first above written.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York. Delivery of a signed copy of this letter by
facsimile transmission shall be effective as delivery of the original hereof.
Very truly yours,
By: _____________________________
Print Name: _______________________
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