UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): August 10, 1999
0-21017
(Commission File Number)
BANK UNITED CORP.
(Exact name of Registrant as specified in its charter)
DELAWARE 13-3528556
(State of incorporation) (I.R.S. Employer
Identification Number)
3200 Southwest Freeway, Suite 2600, Houston, Texas
(Address of Registrant's principal executive office)
(713) 543-6500
(Registrant's telephone number)
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ITEM 5. OTHER EVENTS
Bank United Corp. (the "Company") is filing this Current Report on
Form 8-K in connection with the issuance of up to 2,300,000 Premium Income
Equity Securities ("PIES") and 1,200,000 shares of its Series A Preferred Stock
(the "Preferred Stock"), pursuant to the shelf registration statement on Form
S-3 under the Securities Act of 1933, as amended, filed with the Securities and
Exchange Commission (the "Commission") on July 27, 1999 (File Nos. 333-75937
and 333-83797), as amended by Amendment No. 1 filed with the Commission on July
29, 1999, and as amended by Amendment No. 2 filed with the Commission on August
4, 1999 (as so amended, the "Registration Statement"). The exhibits listed below
are being listed herewith in lieu of filing them as an exhibit to the
Registration Statement, and, since this form is incorporated by reference in the
Registration Statement, such exhibits are set forth in full in the Registration
Statement.
ITEM 7. EXHIBITS
The following exhibits are filed herewith:
Exhibit
Number Title
1.1 Underwriting Agreement relating to PIES.
1.2 Underwriting Agreement relating to Series A Preferred Stock.
4.1 Certificate of designation with respect to Series A Preferred Stock
4.2 Certificate of designation with respect to Series B Preferred Stock.
4.3 Certificate evidencing Corporate PIES.
4.4 Certificate evidencing Treasury PIES.
4.5 Purchase Contract Agreement.
4.6 Pledge Agreement.
4.7 Remarketing Agreement.
5.1 Opinion of Wachtell, Lipton, Rosen & Katz.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this Form 8-K to be signed on its behalf by
the undersigned, thereunto duly authorized.
BANK UNITED CORP.
By: /s/ Randolph C. Henson
-------------------------
Name: Randolph C. Henson
Title: Associate General Counsel and Secretary
Date: August 10, 1999
-3-
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EXHIBIT INDEX
Exhibit
Number Title
1.1 Underwriting Agreement relating to PIES.
1.2 Underwriting Agreement relating to Series A Preferred Stock.
4.1 Certificate of designation with respect to Series A Preferred Stock.
4.2 Certificate of designation with respect to Series B Preferred Stock.
4.3 Certificate evidencing Corporate PIES.
4.4 Certificate evidencing Treasury PIES.
4.5 Purchase Contract Agreement.
4.6 Pledge Agreement.
4.7 Remarketing Agreement.
5.1 Opinion of Wachtell, Lipton, Rosen & Katz.
-4-
Exhibit 1.1
BANK UNITED CORP.
2,000,000 PREMIUM INCOME EQUITY SECURITIES SM ("PIES SM")*
CONSISTING OF 2,000,000 CORPORATE PIES
UNDERWRITING AGREEMENT
August 4, 1999
LEHMAN BROTHERS INC.
Three World Financial Center
New York, New York 10285
Ladies and Gentlemen:
Bank United Corp., a Delaware corporation (the "Company"), confirms its
agreement with Lehman Brothers Inc. (the "Underwriter"), with respect to the
issue and sale by the Company and purchase by the Underwriter of 2,000,000
Premium Income Equity Securities ("PIES") (the "Firm PIES"). In addition, the
Company proposes to grant to the Underwriter an option to purchase up to an
additional 300,000 PIES on the terms and for the purposes set forth in Section 2
(the "Option PIES"). The Firm PIES and the Option PIES, if purchased, are
hereinafter collectively called the "PIES." Capitalized terms used herein
without definition shall be used as defined in the Final Prospectus (as
hereinafter defined).
Each PIES will initially consist of a unit (a "Corporate PIES") comprised
of (a) a stock purchase contract (a "Purchase Contract") under which (i) the
holder will purchase from the Company no later than August 15, 2002, for $50, a
number of shares of common stock, par value $0.01 per share, of the Company (the
"Common Stock"), equal to the Settlement Rate as set forth in the Purchase
Contract Agreement (as hereinafter defined) and (ii) the Company will pay to the
holder contract adjustment payments and (b) a share of the Company's Series B
Preferred Stock, liquidation preference $50 per share (the "Preferred Stock").
In accordance with the terms of a Purchase Contract Agreement (the "Purchase
Contract Agreement") to be entered into between the Company and The First
National Bank of Chicago, as Purchase Contract Agent (the "Purchase Contract
Agent"), the holders of the PIES will pledge the Preferred Stock to The Bank of
New York, as Collateral Agent (the "Collateral Agent"), pursuant to a Pledge
Agreement (the "Pledge Agreement") to be entered into among the Company, the
Purchase Contract Agent, The Bank of New York, as Securities Intermediary (the
"Securities Intermediary"), and the Collateral Agent, to secure the holders'
obligations to purchase Common Stock under the Purchase Contracts.
This is to confirm the agreement concerning the purchase of the PIES by the
Underwriter.
___________________
* "Premium Income Equity Securities" and "PIES" are service marks owned by
Lehman Brokers Inc.
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2
1. Representations, Warranties and Agreements of the Company. The Company
represents, warrants and agrees that:
(a) A registration statement on Form S-3 (File No. 333-75937) and an
amendment or amendments thereto with respect to the offering and sale of
securities of the Company, including the PIES have (i) been prepared by the
Company in conformity with the requirements of the Securities Act of 1933,
as amended (the "Securities Act"), and the rules and regulations (the
"Rules and Regulations") of the Securities and Exchange Commission (the
"Commission") thereunder, (ii) been filed with the Commission under the
Securities Act and (iii) become effective under the Securities Act. The
registration statement, as amended at the date of this Agreement, meets the
requirements set forth in Rule 415(a)(1)(x) under the Securities Act and
complies in all other material respects with such Rule. The Company
proposes to file with the Commission pursuant to Rule 424(b) under the
Securities Act ("Rule 424(b)") a supplement to the form of prospectus
included in the registration statement relating to the initial offering of
the PIES and the plan of distribution thereof and has previously advised
you of all further information (financial and other) with respect to the
Company to be set forth therein. The term "Registration Statement" means
the registration statement, as amended at the date of this Agreement and as
amended from time to time hereafter, including the exhibits thereto, and
all documents incorporated therein by reference pursuant to Item 12 of Form
S-3 (the "Incorporated Documents"), and the prospectus, in the form in
which it appeared in the Registration Statement at the time the
Registration Statement became effective, including the Incorporated
Documents, is hereinafter referred to as the "Basic Prospectus"; and such
supplemented form of prospectus, in the form in which it shall be filed
with the Commission pursuant to Rule 424(b) (including the Basic Prospectus
as so supplemented), is hereinafter called the "Final Prospectus". The form
of preliminary prospectus included in Amendment No. 1 to the registration
statement as filed with the Commission on July 29, 1999, including the form
of preliminary prospectus supplement dated July 29, 1999 relating to the
PIES which was also included therein, is hereinafter referred to as the
"Preliminary Prospectus". Any reference herein to the Registration
Statement, the Preliminary Prospectus or the Final Prospectus shall be
deemed to refer to and include the Incorporated Documents which were filed
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
on or before the date of this Agreement, the issue date of the Preliminary
Prospectus or the issue date of the Final Prospectus, as the case may be;
and any reference herein to the terms "amend", "amendment" or "supplement"
with respect to the Registration Statement, the Preliminary Prospectus or
the Final Prospectus shall be deemed to refer to and include the filing of
any Incorporated Documents under the Exchange Act after the date of this
Agreement or the issue date of the Basic Prospectus, the Preliminary
Prospectus or the Final Prospectus, as the case may be, and deemed to be
incorporated therein by reference. Copies of the Registration Statement
(including any amendment or amendments to such Registration Statement) have
been delivered by the Company to the Underwriter.
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(b) (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Interim Prospectus or
Final Prospectus complied or will comply when so filed in all material
respects with the Exchange Act and the applicable rules and regulations of
the Commission thereunder, (ii) the Registration Statement, when it became
effective, did not contain and, as amended or supplemented, if applicable,
will not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, (iii) the Preliminary Prospectus
complied and the Registration Statement and the Final Prospectus comply,
and, as amended or supplemented, if applicable, will comply in all material
respects with the Securities Act and the Rules and Regulations and (iv) the
Preliminary Prospectus did not contain and the Final Prospectus does not
contain and, as it may be amended or supplemented, will not contain an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they are made, not misleading; provided that no
representation and warranty is made as to information contained in or
omitted from the Registration Statement, the Preliminary Prospectus or the
Final Prospectus in reliance upon and in conformity with written
information concerning the Underwriter furnished to the Company by the
Underwriter or on behalf of the Underwriter specifically for inclusion
therein; and the Commission has not issued an order preventing or
suspending the use of the Registration Statement, the Preliminary
Prospectus or the Final Prospectus.
(c) The shares of Common Stock to be issued and sold by the Company
pursuant to the Purchase Contracts have been duly and validly authorized
and reserved for issuance and, when issued and delivered in accordance with
the provisions of the Purchase Contracts, will be duly and validly issued,
fully paid and non-assessable and will not be subject to any preemptive
rights of any person.
(d) The Corporate PIES have been duly authorized by the Company, and
when duly executed by the Company (assuming due execution by the Purchase
Contract Agent as attorney-in-fact for the holders thereof and due
authentication by the Purchase Contract Agent) and delivered by the Company
and upon payment therefor as set forth herein, will be duly and validly
issued and outstanding, and will constitute valid and binding obligations
of the Company entitled to the benefits of the Purchase Contract Agreement
and enforceable against the Company in accordance with their terms, except
as the enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or other similar laws affecting the enforcement
of creditors' rights generally or by general equitable principles
(regardless of whether enforcement is considered in a proceeding in equity
or at law) (the "Bankruptcy Exceptions") and an implied covenant of good
faith and fair dealing.
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(e) The shares of Preferred Stock have been duly authorized by the
Company and, when issued and delivered against payment therefor as provided
herein, will be duly and validly issued, fully paid and non-assessable and
will not be subject to any preemptive rights of any person.
(f) The Purchase Contract Agreement has been duly authorized by the
Company and, when duly executed by the proper officers of the Company
(assuming due execution and delivery by the Purchase Contract Agent) and
delivered by the Company, will constitute a valid and binding agreement of
the Company enforceable against the Company in accordance with its terms,
except as the enforcement thereof may be limited by the Bankruptcy
Exceptions and an implied covenant of good faith and fair dealing.
(g) The Pledge Agreement has been duly authorized by the Company and,
when duly executed by the proper officers of the Company (assuming due
execution and delivery by the Purchase Contract Agent, the Securities
Intermediary and the Collateral Agent) and delivered by the Company, will
constitute a valid and binding agreement of the Company enforceable against
the Company in accordance with its terms, except as the enforcement thereof
may be limited by the Bankruptcy Exceptions and an implied covenant of good
faith and fair dealing.
(h) This Agreement has been duly authorized, executed and delivered by
the Company; and the Remarketing Agreement (the "Remarketing Agreement") to
be entered into by the Company and Lehman Brothers Inc., as Remarketing
Agent, has been duly authorized by the Company and, when executed and
delivered by the Company, will constitute a valid and binding agreement of
the Company enforceable against the Company in accordance with its terms,
except as the enforcement thereof may be limited by the Bankruptcy
Exceptions and an implied covenant of good faith and fair dealing.
(i) The Corporate PIES, the Preferred Stock, the Common Stock to be
issued and sold pursuant to the Purchase Contracts, the Purchase Contract
Agreement, the Pledge Agreement and the Remarketing Agreement, when the
Corporate PIES are delivered pursuant to this Agreement, will conform to
the descriptions thereof contained in the Final Prospectus.
(j) The accountants who certified the financial statements and any
supporting schedules thereto included or incorporated by reference in the
Registration Statement and the Final Prospectus, and who delivered the
letters referred to in Section 7(g) of this Agreement, are independent
public accountants as required by the Securities Act and the Rules and
Regulations.
(k) Neither the Company nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included or
incorporated by reference
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in the Final Prospectus any loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order
or decree, otherwise than as set forth or contemplated in the Prospectus or
as would not have a material adverse effect on the consolidated financial
position, stockholders' equity, results of operations, business or
prospects of the Company (a "Material Adverse Effect"); and, since such
date there has not been any material change in the capital stock or
long-term debt of the Company or any of its subsidiaries or any material
adverse change, or any development involving a prospective material adverse
change, in or affecting the general affairs, management, financial
position, stockholders' equity or results of operations of the Company and
its subsidiaries, otherwise than as set forth or contemplated in the Final
Prospectus.
(l) The consolidated financial statements included in the Registration
Statement and the Final Prospectus, together with the related schedules and
notes, present fairly in all material respects the consolidated financial
position of the Company and its consolidated subsidiaries at the dates
indicated and the results of operations, changes in stockholders' equity
and cash flows of the Company and its consolidated subsidiaries for the
periods specified; said financial statements have been prepared in
conformity with generally accepted accounting principles ("GAAP") applied
on a consistent basis throughout the periods involved, except as may be
noted therein. The selected financial data and the summary financial
information included in the Final Prospectus present fairly in all material
respects the information shown therein and have been compiled on a basis
consistent with that of the audited financial statements included in the
Registration Statement.
(m) Since the respective dates as of which information is given in the
Registration Statement and the Final Prospectus, except as otherwise stated
therein, (i) there has been no material adverse change in the condition,
financial or otherwise, or in the earnings, stockholders' equity, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course
of business, (ii) there have been no transactions entered into by the
Company or any of its subsidiaries, other than those in the ordinary course
of business, which are material with respect to the Company and its
subsidiaries considered as one enterprise, and (iii) except for regular
quarterly dividends on the Common Stock or on the Series A Preferred Stock
of Bank United (the "Bank") or on the Series B Preferred Stock of the Bank
or on the Common Stock of the Bank in amounts per share that are consistent
with past practice, there has been no dividend or distribution of any kind
declared, paid or made by the Bank or the Company on any class of its
capital stock.
(n) The Company, and each of its subsidiaries including the Bank, has
been duly organized and is validly existing as a corporation or as a
federal savings bank, as the case may be, in good standing under the laws
of its jurisdiction and has all necessary corporate power and authority to
own, lease and operate its properties and to conduct its business as
described in the Final Prospectus; the Company has all
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6
necessary corporate power and authority to enter into and perform its
obligations under this Agreement, the Purchase Contract Agreement, the
Pledge Agreement and the Remarketing Agreement; and the Company and each of
its subsidiaries is duly qualified as a foreign corporation to transact
business and is in good standing in each other jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to qualify
or to be in good standing would not result in a Material Adverse Effect.
(o) (i) The Bank is the only "significant subsidiary" of the Company (as
such term is defined in Rule 1-02 of Regulation S-X). The only subsidiaries
of the Company other than the Bank are the wholly-owned subsidiaries of the
Bank listed on Schedule 1 hereto which, considered in the aggregate as a
single subsidiary, do not constitute a "significant subsidiary" as defined
in Rule 1-02 of Regulation S-X. The activities of all of the Bank's
subsidiaries are permitted to subsidiaries of a federally chartered savings
bank, the deposits of which are insured by the Savings Association
Insurance Fund ("SAIF"), which is administered by the Federal Deposit
Insurance Corporation (the "FDIC").
(ii) All of the issued and outstanding capital stock of the Bank and
each subsidiary of the Bank has been duly authorized and validly issued, is
fully paid and non-assessable and, except as otherwise disclosed in the
Final Prospectus, and, other than the Series A Preferred Stock of the Bank
and the Series B Preferred Stock of the Bank, is owned by the Company,
directly or through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity; none of the
outstanding shares of capital stock of any subsidiary was issued in
violation of the preemptive or similar rights of any securityholder of such
subsidiary.
(p) The authorized, issued and outstanding capital stock of the
Company is as set forth in the Final Prospectus under the caption
"Capitalization" (except for subsequent issuances, if any, pursuant to
reservations, agreements or employee benefit plans referred to in the Final
Prospectus). The shares of issued and outstanding capital stock have been
duly authorized and validly issued and are fully paid and non-assessable;
none of the outstanding shares of capital stock was issued in violation of
the preemptive or other similar rights of any securityholder of the
Company.
(q) Neither the Company nor any of its subsidiaries is in violation of
its charter or by-laws or in default in the performance or observance of
any obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note, lease
or other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which it or any of them may be bound, or to
which any of the assets, properties or operations of the
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7
Company or any of its subsidiaries is subject (collectively, "Agreements
and Instruments"), except for such defaults that would not result in a
Material Adverse Effect. The execution, delivery and performance of this
Agreement, the Purchase Contract Agreement, the Pledge Agreement and the
Remarketing Agreement and any other agreement or instrument entered into or
issued or to be entered into or issued by the Company in connection with
the transactions contemplated hereby or thereby and the consummation of the
transactions contemplated herein (including the issuance and sale of the
Corporate PIES, the Preferred Stock and the Common Stock to be issued and
sold pursuant to the Purchase Contract and the use of the proceeds from the
sale of the Corporate PIES as described in the Final Prospectus under the
caption "Use of Proceeds" (collectively, the "Transactions") and compliance
by the Company with its obligations hereunder and thereunder have been duly
authorized by all necessary corporate action and do not and will not,
whether with or without the giving of notice or passage of time or both,
conflict with or constitute a breach of, or default or Repayment Event (as
defined below) under, or result in the creation or imposition of any lien,
charge or encumbrance upon any assets, properties or operations of the
Company or any of its subsidiaries pursuant to, any Agreements and
Instruments (except for such conflicts, breaches or defaults or liens,
charges or encumbrances that would not result in a Material Adverse
Effect), nor will such action result in any violation of the provisions of
the charter or by-laws of the Company or any of its subsidiaries or (except
for such violations that would not result in a Material Adverse Effect) any
applicable law, statute, rule, regulation, judgment, order, writ or decree
of any government, government instrumentality or court, domestic or
foreign, having jurisdiction over the Company or any of its subsidiaries or
any of their assets, properties or operations. As used herein, a "Repayment
Event" means any event or condition which gives the holder of any note,
debenture or other evidence of indebtedness (or any person acting on such
holder's behalf) the right to require (whether with or without the giving
of notice or passage of time or both) the repurchase, redemption or
repayment of all or a portion of such indebtedness by the Company or any of
its subsidiaries.
(r) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent, and the
Company is not aware of any existing or imminent labor disturbance by the
employees of any of its or any subsidiary's principal suppliers,
manufacturers, customers or contractors, which, in either case, may
reasonably be expected to result in a Material Adverse Effect.
(s) There is no action, suit, proceeding, inquiry or investigation
before or brought by any court or governmental agency or body, domestic or
foreign, now pending, or, to the knowledge of the Company, threatened,
against or affecting the Company or any of its subsidiaries, which
individually or in the aggregate for all such actions, suits, proceedings,
inquiries or investigations is required to be disclosed in the Registration
Statement (other than as disclosed therein), or which might
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8
reasonably be expected to result in a Material Adverse Effect, or which
might reasonably be expected to materially and adversely affect the
consummation of the Transactions or the performance by the Company of its
obligations hereunder and thereunder; the aggregate of all pending legal or
governmental proceedings to which the Company or any of its subsidiaries is
a party or of which any of their respective property or assets is the
subject which are not described in the Registration Statement, including
ordinary routine litigation incidental to the business of the Company or
any of its subsidiaries, could not reasonably be expected to result in a
Material Adverse Effect. Neither the Company nor any of its subsidiaries is
a party to any written agreement or memorandum of understanding with, or
commitment letter or similar undertaking to, or subject to any order or
directive issued by, or a recipient of any extraordinary supervisory letter
from, or has adopted any board resolutions at the request of, any federal
or state government agency or authority with responsibility for the
supervision or regulation of depository institutions or their holding
companies or the insurance of deposits, which in any such case materially
restricts the conduct of its business or in any manner relates to its
capital adequacy, its credit policies or its management, nor has the
Company or any of its subsidiaries been advised by any such regulatory
authority that it is contemplating issuing or requesting any such order,
decree, written agreement, memorandum of understanding, extraordinary
supervisory letter, commitment letter or similar undertakings or board
resolutions.
(t) There are no contracts or documents which are required to be
described in the Registration Statement, the Final Prospectus or the
documents incorporated by reference therein or to be filed as exhibits
thereto which have not been so described and filed as required.
(u) The Company and its subsidiaries own or possess, or can acquire on
reasonable terms, adequate patents, patent rights, licenses, inventions,
copyrights, know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks, trade names or other intellectual
property (collectively, "Intellectual Property") necessary to carry on the
business now operated by them, and neither the Company nor any of its
subsidiaries has received any notice or is otherwise aware of any
infringement of or conflict with asserted rights of others with respect to
any Intellectual Property or of any facts or circumstances which would
render any Intellectual Property invalid or inadequate to protect the
interest of the Company or any of its subsidiaries therein, and which
infringement or conflict (if the subject of any unfavorable decision,
ruling or finding) or invalidity or inadequacy, singly or in the aggregate,
would result in a Material Adverse Effect.
(v) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency, including, without limitation, the OTS and the FDIC,
is necessary or
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9
required for the due authorization, execution and delivery by the Company
of this Agreement or for the performance by the Company of the
Transactions, except such as have been already obtained or will have been
obtained or made prior to the Closing Date (as defined below) or as may be
required under the Securities Act or the Rules and Regulations or state
securities laws.
(w) The Company and its subsidiaries possess such permits, licenses,
approvals, consents and other authorizations (collectively, "Governmental
Licenses") issued by the appropriate federal, state, local or foreign
regulatory agencies or bodies necessary to conduct the business now
operated by them; the Company and its subsidiaries are in compliance with
the terms and conditions of all such Governmental Licenses, except where
the failure so to comply would not, singly or in the aggregate, have a
Material Adverse Effect; all of the Governmental Licenses are valid and in
full force and effect, except when the invalidity of such Governmental
Licenses or the failure of such Governmental Licenses to be in full force
and effect would not have a Material Adverse Effect; and neither the
Company nor any of its subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such Governmental
Licenses which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would result in a Material Adverse
Effect.
(x) The Company and its subsidiaries have good and marketable title to
all real, tangible and intangible property reflected in the most recent
balance sheet included in the Final Prospectus as owned by the Company and
its subsidiaries and good title to all other properties reflected in the
most recent balance sheet included in the Final Prospectus as owned by
them, in each case, free and clear of all mortgages, pledges, liens,
security interests, claims, restrictions or encumbrances of any kind except
such as (i) are described in the Final Prospectus or (ii) do not, singly or
in the aggregate, materially affect the value of such property and do not
interfere with the use made and proposed to be made of such property by the
Company or any of its subsidiaries; or, with respect to any such real
property, render title unmarketable as to a material part thereof and all
of the leases and subleases material to the business of the Company and its
subsidiaries, considered as one enterprise, and under which the Company or
any of its subsidiaries holds properties described in the Final Prospectus,
are in full force and effect, and neither the Company nor any subsidiary
has any notice of any material claim of any sort that has been asserted by
anyone adverse to the rights of the Company or any subsidiary under any of
the leases or subleases mentioned above, or affecting or questioning the
rights of the Company or such subsidiary to the continued possession of the
leased or subleased premises under any such lease or sublease.
(y) The Company is not, and upon the issuance and sale of the PIES as
herein contemplated and the application of the net proceeds therefrom as
described
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10
in the Final Prospectus will not be, an "investment company" within the
meaning of the Investment Company Act of 1940, as amended (the "1940 Act").
(z) Except as described in the Final Prospectus, and except as would
not, singly or in the aggregate, result in a Material Adverse Effect, (A)
neither the Company nor any of its subsidiaries is in violation of any
federal, state, local or foreign statute, law, rule, regulation, ordinance,
code, policy or rule of common law or any judicial or administrative
interpretation thereof including any judicial or administrative order,
consent, decree or judgment, relating to pollution or protection of human
health, the environment (including, without limitation, ambient air,
surface water, groundwater, land surface or subsurface strata) or wildlife,
including, without limitation, laws and regulations relating to the release
or threatened release of chemicals, pollutants, contaminants, wastes, toxic
substances, hazardous substances, petroleum or petroleum products
(collectively, "Hazardous Materials") or to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
Hazardous Materials (collectively, "Environmental Laws"), (B) the Company
and its subsidiaries have all permits, authorizations and approvals
required under any applicable Environmental Laws and are each in compliance
with their requirements, (C) there are no pending or, to the knowledge of
the Company, threatened administrative, regulatory or judicial actions,
suits, demands, demand letters, claims, liens, notices of noncompliance or
violation, investigation or proceedings relating to any Environmental Law
against the Company or any of its subsidiaries and (D) to the knowledge of
the Company, there are no events or circumstances that might reasonably be
expected to form the basis of an order for clean-up or remediation, or an
action, suit or proceeding by any private party or governmental body or
agency, against or affecting the Company or any of its subsidiaries
relating to Hazardous Materials or any Environmental Laws.
(aa) Except as described in the Registration Statement or as set forth
in any document or agreement described in the Registration Statement as
containing such rights, there are no persons with registration rights or
other similar rights to have any securities registered pursuant to the
Registration Statement or otherwise registered by the Company or the Bank,
under the Securities Act or otherwise.
(ab) Each of the Company and the Bank maintains a system of internal
accounting controls sufficient to provide reasonable assurances that (i)
transactions are executed in accordance with management's general or
specific authorization; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with GAAP and to
maintain accountability for assets; (iii) access to assets is permitted
only in accordance with management's general or specific authorization; and
(iv) the recorded accountability for assets is compared with existing
assets at reasonable intervals and appropriate action is taken with respect
to any differences.
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(ac) To the knowledge of the Company, neither the Company, the Bank
nor any employee or agent of the Company or the Bank has made any payment
of funds of the Company or the Bank or received or retained any funds in
violation of any law, rule or regulation, which payment, receipt or
retention of funds is of a character required to be disclosed in the Final
Prospectus.
(ad) Each of the Company and the Bank has filed all tax returns
required to be filed, which returns are complete and correct in all
material respects, and each of the Company and the Bank is not in default
in the payment of any taxes which were payable pursuant to said returns or
any assessments with respect thereto.
(ae) In the event the Company shall become either directly or
indirectly a bank holding company for purposes of the Bank Holding Company
Act of 1956, as amended (the "BHC Act") and the rules and regulations of
the Board of Governors of the Federal Reserve System thereunder (the "BHC
Rules"), the current activities of the Company and its subsidiaries (as
defined in the BHC Rules) would be activities permissible for a bank
holding company under the BHC Act and the BHC Rules.
(af) The Company has not taken and will not take, directly or
indirectly, any action designed to, or that might be reasonably expected
to, cause or result in stabilization or manipulation of the price of the
PIES.
(ag) The Company has satisfied the conditions for use of Form S-3, as
set forth in the General Instructions thereto.
2. Purchase of the PIES by the Underwriter. On the basis of the
representations and warranties contained in, and subject to the terms and
conditions of, this Agreement, the Company agrees to sell 2,000,000 Firm PIES to
the Underwriter and the Underwriter agrees to purchase 2,000,000 Firm PIES.
In addition, the Company grants to the Underwriter an option to purchase up
to 300,000 Option PIES. Such option is granted solely for the purpose of
covering over-allotments in the sale of the Firm PIES and is exercisable as
provided in Section 4 hereof.
The price of both the Firm PIES and any Option PIES shall be $48.50 per
PIES.
The Company shall not be obligated to deliver any of the PIES to be
delivered on the First Delivery Date (as hereinafter defined) or the Second
Delivery Date (as hereinafter defined), as the case may be, except upon payment
for all the PIES to be purchased on such Delivery Date as provided herein.
3. Offering of PIES by the Underwriter. The Underwriter proposes to offer
the Firm PIES for sale upon the terms and conditions set forth in the Final
Prospectus.
<PAGE>
12
4. Delivery of and Payment for the PIES. Delivery of and payment for the
PIES shall be made at the office of Simpson Thacher & Bartlett at 425 Lexington
Avenue, New York, New York, at 8:30 A.M., New York City time, on the third full
business day following the date of this Agreement (unless the sale of the PIES
hereunder has been priced after 4:30 p.m. Eastern time on the date of this
Agreement, in which case the fourth full business day following the date of this
Agreement) or at such other date or place as shall be determined by agreement
between the Underwriter and the Company. This date and time are sometimes
referred to as the "First Delivery Date." On the First Delivery Date, the
Company, through the facilities of The Depository Trust Company ("DTC"), shall
deliver or cause to be delivered a securities entitlement with respect to the
Firm PIES to the Underwriter against payment to or upon the order of the Company
of the purchase price by wire transfer of same-day funds to a bank account
designated by the Company. Time shall be of the essence, and delivery at the
time and place specified pursuant to this Agreement is a further condition of
the obligation of the Underwriter hereunder. Upon delivery, the Firm PIES shall
be registered in the name of Cede & Co., as nominee for DTC.
At any time on or before the thirtieth day after the date of this Agreement
the option granted in Section 2 may be exercised by written notice being given
to the Company by the Underwriter. Such notice shall set forth the aggregate
number of Option PIES as to which the option is being exercised, the names in
which the Option PIES are to be registered, the denominations in which the
Option PIES are to be issued and the date and time, as determined by the
Underwriter, when the Option PIES are to be delivered; provided, however, that
this date and time shall not be earlier than the First Delivery Date nor earlier
than the second business day after the date on which the option shall have been
exercised nor later than the fifth business day after the date on which the
option shall have been exercised. The date and time the Option PIES are
delivered are sometimes referred to as the "Second Delivery Date" and the First
Delivery Date and the Second Delivery Date are sometimes each referred to as a
"Delivery Date".
Delivery of and payment for the Option PIES shall be made at the place
specified in the first sentence of the first paragraph of this Section 4 (or at
such other place as shall be determined by agreement between the Underwriter and
the Company) at 8:30 A.M., New York City time, on the Second Delivery Date. On
the Second Delivery Date, the Company, through the facilities of DTC, shall
deliver or cause to be delivered a securities entitlement with respect to the
Option PIES to the Underwriter against payment to or upon the order of the
Company of the purchase price by wire transfer of same-day funds to a bank
account designated by the Company. Time shall be of the essence, and delivery at
the time and place specified pursuant to this Agreement is a further condition
of the obligation of the Underwriter hereunder. Upon delivery, the Option PIES
shall be registered in the name of Cede & Co., as nominee of DTC.
The Preferred Stock underlying the PIES will be pledged with the Collateral
Agent to secure the holders' obligations to purchase Common Stock under the
Purchase Contracts. Such pledge shall be effected by the transfer to the
Securities Intermediary of the Preferred Stock to be pledged to the Collateral
Agent in accordance with the Pledge Agreement.
<PAGE>
13
5. Further Agreements of the Company. The Company agrees:
(a) To prepare the Final Prospectus in a form approved by the
Underwriter and to file such Prospectus pursuant to Rule 424(b) under the
Securities Act not later than the Commission's close of business on the
second business day following the execution and delivery of this Agreement;
to make no further amendment or any supplement to the Registration
Statement or the Final Prospectus except as permitted herein; to advise the
Underwriter, promptly after it receives notice thereof, of the time when
any amendment to the Registration Statement has been filed or becomes
effective or any supplement to the Final Prospectus or any amended Final
Prospectus has been filed and to furnish the Underwriter with copies
thereof; to timely file all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission pursuant
to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the
date of the Final Prospectus and for so long as the delivery of a
prospectus is required in connection with the offering or sale of the PIES;
to advise the Underwriter, promptly after it receives notice thereof, of
the issuance by the Commission of any stop order or of any order preventing
or suspending the use of the Final Prospectus, of the suspension of the
qualification of the PIES for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such purpose, or of any
request by the Commission for the amending or supplementing of the
Registration Statement or the Final Prospectus or for additional
information; and, in the event of the issuance of any stop order or of any
order preventing or suspending the use of the Final Prospectus or
suspending any such qualification, to use promptly its best efforts to
obtain its withdrawal.
(b) To furnish promptly to the Underwriter and to counsel for the
Underwriter a signed copy of the Registration Statement as originally filed
with the Commission, and each amendment thereto filed with the Commission,
including all consents and exhibits filed therewith.
(c) To deliver promptly to the Underwriter such number of the
following documents as the Underwriter shall reasonably request: ()
conformed copies of the Registration Statement as originally filed with the
Commission and each amendment thereto (in each case excluding exhibits
other than this Agreement, the Purchase Contract Agreement, the Pledge
Agreement and the Remarketing Agreement) and, () the Final Prospectus (not
later than 5:00 P.M., New York City time, of the day following the
execution and delivery of this Agreement) and any amended or supplemented
Final Prospectus (not later than 5:00 P.M., New York City time, on the day
following the date of such amendment or supplement) and () any document
incorporated by reference in the Preliminary Prospectus or Final Prospectus
(excluding exhibits thereto); and, if the delivery of a prospectus is
required at any time after the date hereof in connection with the offering
or sale of the PIES (or any other securities relating thereto) and if at
such time any event shall have occurred as a result of which the Final
Prospectus as then amended or supplemented would
<PAGE>
14
include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made when the Final
Prospectus is delivered, not misleading, or, if for any other reason it
shall be necessary during such same period to amend or supplement the Final
Prospectus or to file under the Exchange Act any document incorporated by
reference in the Final Prospectus in order to comply with the Securities
Act or the Exchange Act, to notify the Underwriter and, upon its request,
to prepare and to file such amendment, supplement or document, to cause any
amendment of the Registration Statement containing an amended Final
Prospectus to be made effective as soon as possible and to prepare and
furnish without charge to the Underwriter and to any dealer in securities
as many copies as the Underwriter may from time to time reasonably request
of an amended or supplemented Final Prospectus which will correct such
statement or omission or effect such compliance.
(d) To file promptly with the Commission any amendment to the
Registration Statement or the Final Prospectus or any supplement to the
Final Prospectus that may, in the judgment of the Company or the
Underwriter, be required by the Securities Act or requested by the
Commission.
(e) Prior to filing with the Commission any amendment to the
Registration Statement or supplement to the Final Prospectus, including any
document incorporated by reference in the Final Prospectus, to furnish a
copy thereof to the Underwriter and counsel for the Underwriter and obtain
the consent of the Underwriter to the filing.
(f) Timely file such reports pursuant to the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), as are necessary in order to make
generally available to its securityholders as soon as practicable an
earnings statement for the purposes of, and to provide the benefits
contemplated by, the last paragraph of Section 11(a) of the Securities Act.
(g) For a period of five years following the effective date of the
Registration Statement, to furnish to the Underwriter copies of all
materials furnished by the Company to its shareholders and all public
reports and all reports and financial statements furnished by the Company
to the principal national securities exchange upon which the Company's
common stock or the PIES may be listed pursuant to requirements of or
agreements with such exchange or to the Commission pursuant to the Exchange
Act or any rule or regulation of the Commission thereunder.
(h) Promptly from time to time to take such action as the Underwriter
may reasonably request to qualify the Preferred Stock, the Purchase
Contracts, the Common Stock and the Corporate PIES for offering and sale
under the securities laws of such jurisdictions as the Underwriter may
request and to comply with such laws so as to permit the continuance of
sales and dealings therein in such
<PAGE>
15
jurisdictions for as long as may be necessary to complete the distribution
of the Preferred Stock, the Purchase Contracts, the Common Stock and the
Corporate PIES; provided that in connection therewith, the Company shall
not be required to qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction.
(i) For a period of 90 days from the date of the Final Prospectus, not
to, directly or indirectly, offer for sale, pledge, sell, contract to sell,
sell any option or contract to purchase, purchase any option or contract to
sell, grant any option, right or warrant to purchase or otherwise transfer
or dispose of or otherwise dispose of (or enter into any transaction or
device which is designed to, or could be expected to, result in the
disposition or purchase by any person at any time in the future of) or file
any registration statement under the Securities Act with respect to, any
PIES, common stock, purchase contracts or preferred stock of any series
other than the series of preferred stock of the Company which is the
subject of a concurrent offering described in the Final Prospectus, or any
securities of the Company similar to the PIES, purchase contracts or
preferred stock of any such series (other than (i) the PIES offered hereby,
(ii) Treasury PIES or Corporate PIES that may be created or recreated upon
substitution of pledged securities or common stock issuable upon early
settlement of the Corporate PIES or Treasury PIES, (iii) shares of common
stock, or options to purchase shares of common stock, issued in a merger
involving the Company or in connection with an acquisition transaction,
(iv) shares of common stock issued, or options to purchase shares of common
stock granted pursuant to employee benefit plans existing on the date
hereof or (v) shares of common stock issued under any non-employee director
stock plan or dividend reinvestment plan), without the prior written
consent of the Underwriter.
(j) To use its best efforts to complete the (i) listing of the
Corporate PIES on the New York Stock Exchange, Inc., subject only to
official notice of issuance and evidence of satisfactory distribution and
(ii) listing or quotation of the Common Stock to be issued and sold
pursuant to the Purchase Contracts on the exchange or quotation system on
which the Company's Common Stock is listed or quoted at the time of such
issuance and sale.
(k) To use the net proceeds received by it from the sale of the PIES
pursuant to this Agreement in the manner specified in the Final Prospectus
under the caption "Use of Proceeds."
6. Expenses. The Company agrees to pay (a) the fees, disbursements and
expenses of the Company's counsel and accountants in connection with the
registration of the PIES under the Securities Act and all other expenses in
connection with the preparation, printing and filing of the Registration
Statement, the Preliminary Prospectus and the Final Prospectus and amendments
and supplements thereto; (b) the costs incident to the authorization, issuance,
sale and delivery of the Preferred Stock, Purchase Contracts, Common Stock to be
issued and sold pursuant to the Purchase
<PAGE>
16
Contracts and PIES and any taxes payable in connection therewith; (c) the
costs incident to the preparation, printing and filing under the Securities
Act of the Registration Statement and any amendments and exhibits thereto;
(d) the costs of distributing the Registration Statement as originally
filed and each amendment thereto and any post-effective amendments thereof
(including, in each case, exhibits), the Preliminary Prospectus, the Final
Prospectus and any amendment or supplement to any such prospectus or any
document incorporated by reference therein, all as provided in this
Agreement; (e) the costs of reproducing and distributing this Agreement and
any other related documents in delivery of the PIES; (f) any applicable
listing or other fees; (g) the fees and expenses of qualifying the
Preferred Stock, Purchase Contracts, Common Stock and PIES under the
securities laws of the several jurisdictions as provided in Section 5(h)
and of preparing, printing and distributing a Blue Sky Memorandum
(including related fees and expenses of counsel to the Underwriter); (h)
the filing fees and any expenses of legal counsel incident to any required
review by the National Association of Securities Dealers, Inc. of the terms
of the sale of the PIES; (i) any fees charged by securities rating services
for rating the PIES (or any related security); (j) the fees and expenses of
the Purchase Contract Agent, the Collateral Agent, the Securities
Intermediary and their respective counsel; (k) any transfer taxes payable
in connection with the sale of the PIES to the Underwriter; and (l) all
other costs and expenses incident to the performance of the obligations of
the Company under this Agreement; provided that, except as provided in this
Section 6, the Underwriter shall pay its own costs and expenses, including
the costs and expenses of its counsel, any transfer taxes on the PIES which
it may sell and the expenses of advertising any offering of the PIES made
by the Underwriter.
7. Conditions of Underwriter's Obligations. The obligations of the
Underwriter hereunder are subject to the accuracy, when made and on each
Delivery Date, of the representations and warranties of the Company contained
herein or in certificates of any officer of the Company or any subsidiary of the
Company delivered pursuant to the provisions hereof, to the performance by the
Company of its covenants and other obligations hereunder, and to each of the
following additional terms and conditions:
(a) As of each Delivery Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued under
the Securities Act, and no proceedings for that purpose shall have been
instituted or be pending or threatened by the Commission, and any request
on the part of the Commission for additional information shall have been
complied with. The Final Prospectus shall have been filed with the
Commission in accordance with Section 5(a) hereof.
(b) On each Delivery Date, the Underwriter shall have received the
favorable opinion, dated as of such Delivery Date, of Wachtell, Lipton,
Rosen & Katz, counsel for the Company, in form and substance satisfactory
to counsel for the Underwriter to the effect set forth in Exhibit A hereto.
(c) On each Delivery Date, the Underwriter shall have received the
favorable opinion, dated as of such Delivery Date, of Jonathon K. Heffron,
Esq., General Counsel for
<PAGE>
17
the Company, in form and substance satisfactory to counsel for the
Underwriter, to the effect set forth in Exhibit B hereto.
(d) On each Delivery Date, the Underwriter shall have received the
favorable opinion, dated as of such Delivery Date, of Simpson Thacher &
Bartlett, counsel for the Underwriter, with respect to the Registration
Statement, Final Prospectus, the validity of the Preferred Stock, Purchase
Contract, Common Stock to be issued pursuant to the Purchase Contracts and
other related matters as the Underwriter may reasonably request.
(e) The Law Department of Bank One Corporation shall have furnished to
the Underwriter its written opinion, as counsel to The First National Bank
of Chicago, as Purchase Contract Agent, dated such Delivery Date, in form
and substance satisfactory to counsel for the Underwriter, to the effect
that:
(i) The Purchase Contract Agent is duly incorporated as a
national banking corporation with all necessary power and authority to
execute, deliver and perform its obligations under the Purchase
Contract Agreement and the Pledge Agreement.
(ii) The execution, delivery and performance by the Purchase
Contract Agent of the Purchase Contract Agreement and the Pledge
Agreement, and the authentication and delivery of the PIES, have been
duly authorized by all necessary corporate action on the part of the
Purchase Contract Agent. The Purchase Contract Agreement and the
Pledge Agreement have been duly executed and delivered by the Purchase
Contract Agent, and constitute the valid and binding agreements of the
Purchase Contract Agent, enforceable against the Purchase Contract
Agent in accordance with their terms, except as the enforcement
thereof may be limited by the Bankruptcy Exceptions and an implied
covenant of good faith and fair dealing.
(iii)The execution, delivery and performance of the Purchase
Contract Agreement and the Pledge Agreement by the Purchase Contract
Agent does not conflict with or constitute a breach of the charter or
by-laws of the Purchase Contract Agent.
(iv) No consent, approval or authorization of, or registration
with or notice to, any state or federal governmental authority or
agency is required for the execution, delivery or performance by the
Purchase Contract Agent of the Purchase Contract Agreement and the
Pledge Agreement.
(f) The Underwriter shall not have discovered and promptly disclosed
to the Company on or prior to such Delivery Date that the Registration
Statement or the Final Prospectus or any amendment or supplement thereto
contains any untrue statement of a fact which, in the opinion of Simpson
Thacher & Bartlett, counsel for the Underwriter, is material or omits to
state any fact which, in the opinion of such counsel, is material and (i)
is required to be stated therein or (ii) is necessary to make the
statements therein not misleading.
<PAGE>
18
(g) All corporate proceedings and other legal matters incident to the
authorization, form and validity of this Agreement, the Purchase Contract
Agreement, the Pledge Agreement, the Remarketing Agreement, the Purchase
Contracts, the Common Stock to be issues and sold pursuant to the Purchase
Contracts, the Registration Statement and the Final Prospectus, and all
other legal matters relating to this Agreement and the transactions
contemplated hereby, shall be reasonably satisfactory in all material
respects to counsel for the Underwriter, and the Company shall have
furnished to such counsel all documents and information that they may
reasonably request to enable them to pass upon such matters.
(h) At the time of execution of this Agreement, the Underwriter shall
have received letters from each of Deloitte & Touche LLP and KPMG Peat
Marwick LLP, in form and substance satisfactory to the Underwriter,
addressed to the Underwriter and dated the date hereof (i) confirming that
they are independent public accountants within the meaning of the
Securities Act and are in compliance with the applicable requirements
relating to the qualification of accountants under Rule 2-01 of Regulation
S-X of the Commission, (ii) stating, as of the date hereof (or, with
respect to matters involving changes or developments since the respective
dates as of which specified financial information is given in the Final
Prospectus, as of a date not more than five days prior to the date hereof),
the conclusions and findings of such firm with respect to the financial
information and other matters ordinarily covered by accountants' "comfort
letters" to underwriters in connection with registered public offerings.
(i) With respect to the letters of Deloitte & Touche LLP and of KPMG
Peat Marwick LLP referred to in the preceding paragraph and delivered to
the Underwriter concurrently with the execution of this Agreement (the
"initial letters"), the Company shall have furnished to the Underwriter
letters (the "bring-down letters") of such accountants, addressed to the
Underwriter and dated as of such Delivery Date confirming in all material
respects the conclusions and findings set forth in the initial letter.
(j) The Company shall have furnished to the Underwriter a certificate,
dated such Delivery Date, of its Chairman of the Board or its President and
its chief financial officer stating that:
(i) The representations, warranties and agreements of the Company in
Section 1 are true and correct as of such Delivery Date; the Company has
complied with all its agreements contained herein; and the conditions set
forth in Section 7(a) have been fulfilled;
(ii) They have carefully examined the Registration Statement and the
Final Prospectus and, in their opinion (A) the Registration Statement and
the Final Prospectus, as of such Delivery Date, did not include any untrue
statement of a material fact and did not omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading, and (B) since the date of this Agreement, no event has
occurred which should have been set forth in a supplement or amendment to
the Registration Statement or the Final Prospectus.
<PAGE>
19
(k) On each Delivery Date, counsel for the Underwriter shall have been
furnished with such documents as they may require for the purpose of
enabling them to pass upon the issuance and sale of the PIES as herein
contemplated, or other legal matters incident to the authorization, form
and validity of this Agreement, the Purchase Contract Agreement, the Pledge
Agreement, the Remarketing Agreement, the Purchase Contracts, the Common
Stock to be issued and sold pursuant to the Purchase Contracts, the
Registration Statement, the Preliminary Prospectus and the Final Prospectus
or in order to evidence the accuracy of any of the representations or
warranties, or the fulfillment of any of the conditions, herein contained,
and all proceedings taken by the Company in connection with the issuance
and sale of the PIES as herein contemplated shall be satisfactory in form
and substance to the Underwriter and counsel for the Underwriter.
(l) There shall not have been, since the date hereof or since the
respective dates as of which information is given in the Final Prospectus,
any material adverse change in the condition, financial or otherwise, or in
the consolidated financial position, stockholders' equity, results of
operations, business or prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course
of business.
(m) Subsequent to the execution and delivery of this Agreement (i) no
downgrading shall have occurred in the rating accorded the Company's or any
significant subsidiary's debt securities or preferred stock by any
"nationally recognized statistical rating organization", as that term is
defined by the Commission for purposes of Rule 436(g)(2) of the Rules and
Regulations and (ii) no such organization shall have publicly announced
that it has under surveillance or review, with possible negative
implications, its rating of any of the Company's or any significant
subsidiary's debt securities or preferred stock.
(n) Subsequent to the execution and delivery of this Agreement there
shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange or the American Stock Exchange or
in the over-the-counter market, or trading in any securities of the Company
on any exchange or in the over-the-counter market, shall have been
suspended or minimum prices shall have been established on any such
exchange or such market by the Commission, by such exchange or by any other
regulatory body or governmental authority having jurisdiction, (ii) a
banking moratorium shall have been declared by Federal or state
authorities, (iii) the United States shall have become engaged in
hostilities, there shall have been an escalation in hostilities involving
the United States or there shall have been a declaration of a national
emergency or war by the United States or (iv) there shall have occurred
such a material adverse change in general economic, political or financial
conditions (or the effect of international conditions on the financial
markets in the United States shall be such) as to make it, in the judgment
of the Underwriter, impracticable or inadvisable to proceed with the public
offering or delivery of the PIES on the terms and in the manner
contemplated in the Final Prospectus.
(o) The New York Stock Exchange, Inc. shall have approved the
Corporate PIES for listing, subject only to official notice of issuance.
<PAGE>
20
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriter.
8. Indemnification and Contribution
(a) The Company shall indemnify and hold harmless the Underwriter, its
officers and employees and each person, if any, who controls the Underwriter
within the meaning of the Securities Act, from and against any loss, claim,
damage or liability, joint or several, or any action in respect thereof
(including, but not limited to, any loss, claim, damage, liability or action
relating to purchases and sales of the PIES), to which the Underwriter, officer,
employee or controlling person may become subject, under the Securities Act or
otherwise, insofar as such loss, claim, damage, liability or action arises out
of, or is based upon, (i) any untrue statement or alleged untrue statement of a
material fact contained (A) in the Registration Statement, the Preliminary
Prospectus or the Final Prospectus, or in any amendment or supplement thereto,
or (B) in any blue sky application or other document prepared or executed by the
Company (or based upon any written information furnished by the Company)
specifically for the purpose of qualifying any or all of the PIES under the
securities laws of any state or other jurisdiction (any such application,
document or information being hereinafter called a "Blue Sky Application"), or
(ii) the omission or alleged omission to state in the Registration Statement,
the Preliminary Prospectus or the Final Prospectus, or in any amendment or
supplement thereto, or in any Blue Sky Application any material fact required to
be stated therein or necessary to make the statements therein not misleading,
and shall reimburse the Underwriter and each such officer, employee or
controlling person promptly upon demand for any legal or other expenses
reasonably incurred by the Underwriter, officer, employee or controlling person
in connection with investigating or defending or preparing to defend against any
such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that the Company shall not be liable under this Section 8(a)
in any such case to the extent that any such loss, claim, damage, liability or
action arises out of, or is based upon, any untrue statement or alleged untrue
statement or omission or alleged omission made in the Registration Statement,
the Preliminary Prospectus or the Final Prospectus, or in any such amendment or
supplement, or in any Blue Sky Application in reliance upon and in conformity
with written information concerning the Underwriter furnished to the Company by
or on behalf of the Underwriter specifically for inclusion therein; and provided
further that as to the Preliminary Prospectus this indemnity agreement shall not
inure to the benefit of the Underwriter, its officers or employees or any person
controlling the Underwriter on account of any loss, claim, damage, liability or
action arising from the sale of PIES to any person by the Underwriter if the
Underwriter failed to send or give a copy of the Final Prospectus to that person
within the time required by the Securities Act, and the untrue statement or
alleged untrue statement of any material fact or omission or alleged omission to
state a material fact in the Preliminary Prospectus was corrected in the Final
Prospectus, unless such failure resulted from non-compliance by the Company with
Section 5(c). The foregoing indemnity agreement is in addition to any liability
which the Company may
<PAGE>
21
otherwise have to the Underwriter or to any officer, employee or controlling
person of the Underwriter.
(b) The Underwriter shall indemnify and hold harmless the Company, its
officers and employees, each of its directors and each person, if any, who
controls the Company within the meaning of the Securities Act, from and against
any loss, claim, damage or liability, joint or several, or any action in respect
thereof, to which the Company or any such director, officer or controlling
person may become subject, under the Securities Act or otherwise, insofar as
such loss, claim, damage, liability or action arises out of, or is based upon,
(i) any untrue statement or alleged untrue statement of a material fact
contained (A) in the Registration Statement, the Preliminary Prospectus or the
Final Prospectus, or in any amendment or supplement thereto, or (B) in any Blue
Sky Application or (ii) the omission or alleged omission to state in the
Registration Statement, the Preliminary Prospectus or the Final Prospectus, or
in any amendment or supplement thereto, or in any Blue Sky Application any
material fact required to be stated therein or necessary to make the statements
therein not misleading, but in each case only to the extent that the untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with written information concerning the
Underwriter furnished to the Company by or on behalf of the Underwriter
specifically for inclusion therein, and shall reimburse the Company and any such
director, officer or controlling person for any legal or other expenses
reasonably incurred by the Company or any such director, officer or controlling
person in connection with investigating or defending or preparing to defend
against any such loss, claim, damage, liability or action as such expenses are
incurred. The foregoing indemnity agreement is in addition to any liability
which the Underwriter may otherwise have to the Company or any such director,
officer, employee or controlling person.
(c) Promptly after receipt by an indemnified party under this Section 8 of
notice of any claim or the commencement of any action, the indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under this Section 8, notify the indemnifying party in writing of the
claim or the commencement of that action; provided, however, that the failure to
notify the indemnifying party shall not relieve it from any liability which it
may have under this Section 8 except to the extent it has been materially
prejudiced by such failure. If any such claim or action shall be brought against
an indemnified party, and it shall notify the indemnifying party thereof, the
indemnifying party shall be entitled to participate therein and, to the extent
that it wishes, jointly with any other similarly notified indemnifying party, to
assume the defense thereof with counsel reasonably satisfactory to the
indemnified party. After notice from the indemnifying party to the indemnified
party of its election to assume the defense of such claim or action, the
indemnifying party shall not be liable to the indemnified party under this
Section 8 for any legal or other expenses subsequently incurred by the
indemnified party in connection with the defense thereof other than reasonable
costs of investigation; provided, however, that the Underwriter shall have the
right to employ counsel to represent jointly the Underwriter and its officers,
employees and controlling persons who may be subject to liability arising out of
any claim in respect of which indemnity may be sought by the Underwriter against
the
<PAGE>
22
Company under this Section 8 if, in the reasonable judgment of the
Underwriter, it is advisable for the Underwriter and its officers, employees and
controlling persons to be jointly represented by separate counsel, and in that
event the fees and expenses of such separate counsel shall be paid by the
Company. No indemnifying party shall (i) without the prior written consent of
the indemnified parties (which consent shall not be unreasonably withheld),
settle or compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding, or (ii) be liable for any settlement of any such action
effected without its written consent (which consent shall not be unreasonably
withheld), but if settled with the written consent of the indemnifying party or
if there be a final judgment of the plaintiff in any such action, the
indemnifying party agrees to indemnify and hold harmless any indemnified party
from and against any loss or liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 8 shall for any
reason be unavailable to or insufficient to hold harmless an indemnified party
under Section 8(a) or 8(b) in respect of any loss, claim, damage or liability,
or any action in respect thereof, referred to therein, then each indemnifying
party shall, in lieu of indemnifying such indemnified party under Section 8(a)
or 8(b), as the case may be, in respect of any loss, claim damage or liability
or any action in respect thereof, referred to therein, contribute to the amount
paid or payable by such indemnified party as a result of such loss, claim,
damage or liability, or action in respect thereof referred to in Section 8(a) or
8(b), as the case may be, (i) in such proportion as shall be appropriate to
reflect the relative benefits received by the Company on the one hand and the
Underwriter on the other from the offering of the PIES or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and the Underwriter on the other with respect to the statements or
omissions which resulted in such loss, claim, damage or liability, or action in
respect thereof, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Underwriter on
the other with respect to such offering shall be deemed to be in the same
proportion as the total net proceeds from the offering of the PIES purchased
under this Agreement (before deducting expenses) received by the Company on the
one hand, and the total underwriting discounts and commissions received by the
Underwriter with respect to the PIES purchased under this Agreement, on the
other hand, bear to the total gross proceeds from the offering of the PIES under
this Agreement, in each case as set forth on the cover of the Final Prospectus.
The relative fault shall be determined by reference to whether the untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by the Company or the
Underwriter, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriter agree that it
<PAGE>
23
would not be just and equitable if contributions pursuant to this Section 8(d)
were to be determined by pro rata allocation or by any other method of
allocation which does not take into account the equitable considerations
referred to in this Section 8(d). The amount paid or payable by an indemnified
party as a result of the loss, claim, damage or liability, or action in respect
thereof, referred to above in this Section 8(d) shall be deemed to include, for
purposes of this Section 8(d), any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 8(d) the
Underwriter shall not be required to contribute any amount in excess of the
amount by which the total price at which the PIES underwritten by it and
distributed to the public was offered to the public exceeds the amount of any
damages which the Underwriter has otherwise paid or become liable to pay by
reason of any untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
(e) The Underwriter confirms and the Company acknowledges that the
statements with respect to the public offering of the PIES set forth on the
cover page of and under the caption "Underwriting" in, the Final Prospectus are
correct and constitute the only information concerning the Underwriter furnished
in writing to the Company specifically for inclusion in the Registration
Statement and the Final Prospectus.
9. Termination. The obligations of the Underwriter hereunder may be
terminated by the Underwriter by notice given to and received by the Company
prior to delivery of any payment for the Firm PIES if, prior to that time, any
of the events described in Sections 7(l), 7(m) or 7(n) shall have occurred or if
the Underwriter shall decline to purchase the PIES for any reason permitted
under this Agreement.
10. Notices, etc. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Underwriter, shall be delivered or sent by mail, telex
or facsimile transmission to Lehman Brothers Inc., Three World Financial
Center, New York, New York 10285, Attention: Syndicate Department (Fax:
212-526-6588) with a copy, in the case of any notice pursuant to Section
8(c), to the Director of Litigation, Office of the General Counsel, Lehman
Brothers Inc., Three World Financial Center, 10th Floor, New York, New York
10285;
(b) if to the Company, shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Company set forth in the
Registration Statement, Attention: Jonathon K. Heffron, Esq. (Fax:
713-543-7744);
Any such statements, requests, notices or agreements shall take effect at the
time of receipt thereof.
<PAGE>
24
11. Persons Entitled to Benefit of Agreement. This Agreement shall inure to
the benefit of and be binding upon the Underwriter, the Company, and their
respective successors and assigns. This Agreement and the terms and provisions
hereof are for the sole benefit of only those persons, except that (A) the
representations, warranties, indemnities and agreements of the Company contained
in this Agreement shall also be deemed to be for the benefit of the person or
persons, if any, who control the Underwriter within the meaning of Section 15 of
the Securities Act and (B) the indemnity agreement of the Underwriter contained
in Section 8(b) of this Agreement shall be deemed to be for the benefit of
directors of the Company and officers of the Company who have signed the
Registration Statement and any person controlling the Company within the meaning
of Section 15 of the Securities Act. Nothing in this Agreement is intended or
shall be construed to give any person, other than the persons referred to in
this Section 11, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision contained herein.
12. Survival. The respective indemnities, representations, warranties and
agreements of the Company and the Underwriter contained in this Agreement or
made by or on behalf of them, respectively, pursuant to this Agreement, shall
survive the delivery of and payment for the PIES and shall remain in full force
and effect, regardless of any investigation made by or on behalf of any of them
or any person controlling any of them.
13. Definition of the Terms "Business Day" and "Subsidiary". For purposes
of this Agreement, (a) "business day" means each Monday, Tuesday, Wednesday,
Thursday or Friday which is not a day on which banking institutions in New York
are generally authorized or obligated by law or executive order to close and (b)
"subsidiary" has the meaning set forth in Rule 405 of the Rules and Regulations.
14. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF NEW YORK.
15. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
16. Headings. The headings herein are inserted for convenience of reference
only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
17. Consent to Jurisdiction. Each party irrevocably agrees that any legal
suit, action or proceeding arising out of or based upon this Agreement or the
transactions contemplated hereby may be instituted in the federal courts of the
United States of America located in the City of New York or the courts of the
State of New York in each case located in the Borough of Manhattan in the City
of New York (collectively, the "Specified Courts"), and irrevocably submits to
the exclusive jurisdiction (except for proceedings instituted in regard to the
<PAGE>
25
enforcement of a judgment of any such court, as to which such jurisdiction is
non-exclusive) of such courts in any such suit, action or proceeding. The
parties further agree that service of any process, summons, notice or document
by mail to such party's address as set forth in Section 10 hereof shall be
effective service of process for any lawsuit, action or other proceeding brought
in any such court. The parties hereby irrevocably and unconditionally waive any
objection to the laying of venue of any lawsuit, action or other proceeding in
the Specified Courts, and hereby further irrevocably and unconditionally waive
and agree not to plead or claim in any such court that any such lawsuit, action
or other proceeding brought in any such court has been brought in an
inconvenient forum.
<PAGE>
26
If the foregoing correctly sets forth the agreement between the Company and
the Underwriter, please indicate your acceptance in the space provided for that
purpose below.
Very truly yours,
BANK UNITED CORP.
By:/s/ Barry C. Burkholder
--------------------------
Title: President and CEO
Accepted:
LEHMAN BROTHERS INC.
By:/s/ Mark H. Burton
---------------------
AUTHORIZED REPRESENTATIVE
Managing Director
<PAGE>
SCHEDULE 1
List of Subsidiaries
BANK UNITED CORP. SUBSIDIARIES
BNKU Holdings, Inc.
BUC Reinsurance Company
BUC Acquisition II Corporation
BNKU HOLDINGS, INC. SUBSIDIARIES
Bank United
BUC Title Ventures, Inc.
BANK UNITED SUBSIDIARIES
Commonwealth United Mortgage Company
United Agency Corporation
United Capital Management Corporation
United Greenway Securities Services, Inc.
United Mortgage Securities Corporation
United Mortgage Securities, Inc.
USAT Mortgage Securities, Inc.
Bank United Securities Corp.
UNITED AGENCY CORPORATION SUBSIDIARY
Commonwealth General Services Agency, Inc.
<PAGE>
Exhibit A
FORM OF OPINION OF
WACHTELL, LIPTON, ROSEN & KATZ
TO BE DELIVERED PURSUANT TO SECTION 7(b)
(i) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware.
(ii) The Company has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the Final
Prospectus, and to enter into and perform its obligations under the Underwriting
Agreement. The activities of each of the Company's subsidiaries are permitted to
subsidiaries of a savings and loan holding company.
(iii) The Bank is the only "significant subsidiary" of the Company (as such
term is defined in Rule 1-02 of Regulation S-X). The only subsidiaries of the
Company other than the Bank are the wholly-owned subsidiaries of the Bank listed
on Schedule 1 to the Underwriting Agreement which, considered in the aggregate
as a single subsidiary, do not constitute a "significant subsidiary" as defined
in Rule 1-02 of Regulation S-X.
(iv) The Company has an authorized capitalization as set forth in the Final
Prospectus. The shares of issued and outstanding capital stock of the Company,
including the shares of Preferred Stock being delivered on such Delivery Date,
have been duly authorized and validly issued and are fully paid and
non-assessable; and none of the outstanding shares of capital stock of the
Company, including the shares of Preferred Stock being delivered on such
Delivery Date, was issued in violation of any preemptive or other similar rights
of any securityholder of the Company.
(v) The Underwriting Agreement has been duly authorized, executed
and delivered by the Company.
(vi) The unissued shares of Common Stock to be issued and sold by the
Company pursuant to the Purchase Contracts have been duly and validly authorized
and reserved for issuance and when issued and delivered in accordance with the
provisions of the Purchase Contracts, will be duly and validly issued, fully
paid and non-assessable.
(vii) The Corporate PIES have been duly authorized, executed and
delivered by the Company and (assuming due execution by the Purchase Contract
Agent as attorney-in-fact of the holders thereof and due authentication by the
Purchase Contract Agent) upon payment therefor as set forth in the Underwriting
Agreement, will be duly and validly issued and outstanding, and will constitute
valid and binding obligations of the Company entitled to the benefits of the
Purchase Contract Agreement and enforceable against the Company in accordance
with their terms, except as enforceability may be limited by the Bankruptcy
Exceptions and an implied covenant of good faith and fair dealing.
<PAGE>
(viii) The Purchase Contract Agreement and the Pledge Agreement have been
duly authorized, executed and delivered by the Company and (assuming due
execution and delivery by the Purchase Contract Agent and, in the case of the
Pledge Agreement, the Securities Intermediary and the Collateral Agent)
constitute valid and binding agreements of the Company enforceable against the
Company in accordance with their respective terms, except as the enforceability
thereof may be limited by the Bankruptcy Exceptions and an implied covenant of
good faith and fair dealing. While the matter is not free from doubt, if a
Termination Event occurs by reason of the Company's becoming a debtor in a case
under the Bankruptcy Code, Section 365(e)(1) of the Bankruptcy Code should not
deprive the Purchase Contract Agent of the substantive benefit of the provisions
of Sections 3.15 and 5.8 of the Purchase Contract Agreement and Section 5.4 of
the Pledge Agreement that require termination of the Purchase Contracts and
release of the Collateral Agent's security interest in the Pledged Shares and
Pledged Treasury Securities; provided, however, that exercise of the rights
afforded to the Purchase Contract Agent under such provisions may require relief
from the automatic stay arising in such Bankruptcy Code case.
(ix) The Remarketing Agreement has been duly authorized, executed and
delivered by the Company.
(x) The provisions of the Pledge Agreement are effective to create,
in favor of the Collateral Agent for the benefit of the Company, a valid and
perfected security interest under the Uniform Commercial Code as in effect on
the date of such opinion in the State of New York (the "New York UCC") in the
Pledged Preferred Stock and under applicable regulation of the United States
Treasury as in effect on such date in the Pledged Treasury Securities from time
to time credited to the Collateral Account in accordance with the Pledge
Agreement. For purposes of such counsel's opinion, capitalized terms used in
this clause (x) shall have the meanings ascribed to such terms in the Pledge
Agreement.
(xi) There are no preemptive or other rights to subscribe for or to
purchase, nor any restriction upon the voting or transfer of, (A) any shares of
Common Stock issuable pursuant to the Purchase Contracts or (B) the Preferred
Stock pursuant to the Company's charter, by-laws, the certificate of designation
relating to the Preferred Stock or any agreement or other instrument known to
such counsel.
(xii) The Registration Statement has been declared effective under the
Securities Act; the Final Prospectus was filed with the Commission pursuant to
Rule 424(b) in the manner and within the time period required by Rule 424(b);
and, to the best of our knowledge, no stop order suspending the effectiveness of
the Registration Statement has been issued under the Securities Act and no
proceedings for that purpose have been instituted or are pending or threatened
by the Commission.
(xiii) The Registration Statements, the Final Prospectus, and each
amendment or supplement to the Registration Statement and the Final Prospectus,
as of their respective effective or issue dates (other than the financial
statements and supporting schedules included therein or omitted therefrom, as to
which we express no opinion) complied as to form in all material respects with
the requirements of the Securities Act and the Rules and Regulations.
<PAGE>
(xiv) The statements contained in the Final Prospectus under the
captions (A) "Description of Offered Securities," in the Basic Prospectus and
(B) "Prospectus Supplement Summary--The Offering," "Description of the PIES,"
"Description of the Purchase Contracts," "Certain Provisions of the Purchase
Contracts, the Purchase Contract Agreement and the Pledge Agreement," and
"Description of the Preferred Stock" in the Prospectus Supplement insofar as
they purport to constitute summaries of certain terms of documents referred to
therein, constitute accurate summaries of the terms of such documents in all
material respects.
(xv) The statements set forth in the Final Prospectus under the
caption "United States Federal Income Tax Consequences" insofar as they purport
to constitute summaries of matters of United States federal tax laws and
regulations or legal conclusions with respect thereto, constitute accurate
summaries of the matters described therein in all material respects.
(xvi) To the best of our knowledge, there are no statutes or regulations
that are required to be described in the Final Prospectus that are not described
as required.
(xvii) Neither the Company, the Bank nor any of their respective
subsidiaries is in violation of its charter or by-laws and, to the best of our
knowledge, no default by the Company, the Bank or any of their respective
subsidiaries exists in the due performance or observance of any material
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument that is described or referred to in the Registration Statement or the
Final Prospectus or filed as an exhibit to the Registration Statement.
(xviii) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency, domestic or foreign including, without limitation, the OTS
and FDIC (other than under the Securities Act and the Rules and Regulations,
which have been obtained, or as may be required under the securities or blue sky
laws of the various states, as to which we express no opinion) is necessary or
required in connection with the due authorization, execution and delivery of the
Underwriting Agreement, the offering, issuance, sale or delivery of the PIES,
the performance of the Transactions, or the performance by the Company of its
obligations pursuant to the Underwriting Agreement, the Purchase Contract
Agreements, the Pledge Agreement, the Remarketing Agreement, the Purchase
Contracts, the Preferred Stock or the PIES.
(xix) The execution, delivery and performance of the Underwriting
Agreement, the Purchase Contract Agreement, the Pledge Agreement and the
Remarketing Agreement, and the consummation by the Company of the Transactions
contemplated thereby and in the Registration Statement have been duly authorized
by all necessary corporate action and do not and will not result in any
violation of the provisions of the charter or by-laws of the Company or any of
its subsidiaries, or any applicable law, statute, rule, regulation, judgment,
order, writ or decree, known to us, of any government, governmental
instrumentality or court, domestic or foreign, having jurisdiction over the
Company.
(xx) To the best of our knowledge, there are no persons with registration
rights or other similar rights to have any securities registered pursuant to the
Registration Statement or otherwise registered by the Company under the
Securities Act, except as described in the
<PAGE>
Registration Statement or as set forth in any agreement described therein as
containing such rights.
(xxi) The Company is not, and upon the sale of the PIES as contemplated in
the Underwriting Agreement and the application of the net proceeds therefrom as
described in the Final Prospectus will not be, an "investment company" or an
entity "controlled" by an "investment company," as such terms are defined in the
1940 Act.
Nothing has come to our attention that would lead us to believe that the
Registration Statement or any amendment thereto (except for financial statements
and schedules and other financial data included therein or omitted therefrom, as
to which we make no statement), at the time such Registration Statement or any
such amendment became effective, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or that the Final
Prospectus or any amendment or supplement thereto (except for financial
statements and schedules and other financial data included therein or omitted
therefrom, as to which we make no statement), at the time the Final Prospectus
was issued, at the time any such amended or supplemented Final Prospectus was
issued or at the Closing Date, included or includes an untrue statement of a
material fact or omitted or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
In rendering such opinion, such counsel may rely as to matters of fact (but
not as to legal conclusions), to the extent they deem proper, on certificates of
responsible officers of the Company and public officials. Such opinion shall not
state that it is to be governed or qualified by, or that it is otherwise subject
to, any treatise, written policy or other document relating to legal opinions,
including, without limitation, the Legal Opinion Accord of the ABA Section of
Business Law (1991). All terms used but not defined in this exhibit should have
the meanings ascribed to them in the Underwriting Agreement and should be
defined accordingly in the form of opinion to be delivered.
<PAGE>
Exhibit B
FORM OF OPINION OF
JONATHON K. HEFFRON
GENERAL COUNSEL OF THE COMPANY,
TO BE DELIVERED PURSUANT TO SECTION 7(c)
(i) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware.
(ii) The Company has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the Final
Prospectus, and to enter into and perform its obligations under the Underwriting
Agreement. The activities of each of the Company's subsidiaries are permitted to
subsidiaries of a savings and loan company.
(iii) The Bank is the only "significant subsidiary" of the Company (as such
term is defined in Rule 1-02 of Regulation S-X). The only subsidiaries of the
Company other than the Bank are the wholly-owned subsidiaries of the Bank listed
on Schedule 1 to the Underwriting Agreement, which, considered in the aggregate
as a single subsidiary, do not constitute a "significant subsidiary" as defined
in Rule 1-02 of Regulation S-X. The activities of all of the Bank's subsidiaries
are permitted to subsidiaries of a federally chartered savings bank, the
deposits of which are insured by the SAIF, which is administered by the FDIC.
(iv) The Bank is a federally chartered stock savings bank, duly
incorporated and validly existing under the laws of the United States, and the
Bank's charter is in full force and effect. The Bank is a member of the Federal
Home Loan Bank of Dallas and has been duly issued a certificate stating that its
savings accounts are insured by the FDIC in accordance with applicable law, and
no proceedings for the termination or revocation of such membership or insurance
are pending or, to the best of my knowledge, threatened.
(v) The Bank has corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the Final Prospectus.
(vi) Each subsidiary of the Bank has been duly organized and is validly
existing as a corporation in good standing under the laws of the jurisdiction of
its incorporation and has the power and authority to own, lease and operate its
properties and to conduct its business as described in the Final Prospectus. The
activities described in the Final Prospectus of each of the Bank's subsidiaries
are permitted activities of subsidiaries of a federally chartered savings bank,
the deposits of which are insured by the SAIF, which is administered by the
FDIC.
(vii) The Company, the Bank and each subsidiary of the Company or the Bank
is duly qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the conduct of business,
except where the failure so to qualify or to be in good standing would not
result in a Material Adverse Effect.
(viii) All of the issued and outstanding capital stock of the Bank and each
subsidiary of the Bank has been duly authorized and validly issued, is fully
paid and non-assessable and,
<PAGE>
except as otherwise disclosed in the Registration Statement, is owned by the
Company, directly or through subsidiaries, to the best of my knowledge, free and
clear of any security interest, mortgage, pledge, lien, encumbrance, claim or
equity; none of the outstanding shares of capital stock of any subsidiary was
issued in violation of the preemptive or similar rights of any securityholder of
such subsidiary.
(ix) The Company has an authorized capitalization as set forth in the Final
Prospectus. The shares of issued and outstanding capital stock of the Company,
including the shares of Preferred Stock being delivered on such Delivery Date,
have been duly authorized and validly issued and are fully paid and
non-assessable; and none of the outstanding shares of capital stock of the
Company, including the shares of Preferred Stock being delivered on such
Delivery Date, was issued in violation of any preemptive or other similar rights
of any securityholder of the Company.
(x) The documents incorporated by reference in the Final Prospectus and any
further amendment or supplement to any such incorporated document made by the
Company prior to the Closing Date (other than the financial statements and
related schedules contained therein, as to which such counsel need express no
opinion), when they became effective or were filed with the Commission, as the
case may be, complied as to form in all material respects with the requirements
of the Securities Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder.
(xi) There is not pending or, to my knowledge, threatened any action, suit,
proceeding, inquiry or investigation, to which the Company or the Bank or any of
their respective subsidiaries is a party, or to which the property of the
Company or the Bank or any of their respective subsidiaries is subject, before
or brought by any court or governmental agency or body, domestic or foreign,
which might reasonably be expected to result in a Material Adverse Effect, or
which might reasonably be expected to materially and adversely affect the
properties or assets thereof or the consummation of the transactions
contemplated in the Underwriting Agreement or the performance by the Company of
its obligations thereunder. The aggregate of all pending legal or governmental
proceedings to which the Company, the Bank, or any of their respective
subsidiaries is known by me to be a party or of which any of their respective
property or assets is the subject which are not described in the Registration
Statement, including ordinary routine litigation incidental to the business,
could not reasonably be expected to result in a Material Adverse Effect. To the
best of my knowledge, neither the Company nor any of its subsidiaries is a party
to any written agreement or memorandum of understanding with, or commitment
letter or similar undertaking to, or subject to any order or directive issued
by, or a recipient of any extraordinary supervisory letter from, or has adopted
any board resolutions at the request of, any federal or state government agency
or authority with responsibility for the supervision or regulation of depository
institutions or their holding companies or the insurance of deposits, which in
any such case materially restricts the conduct of its business or in any manner
relates to its capital adequacy, its credit policies or its management, nor has
the Company or any of its subsidiaries been advised by any such regulatory
authority that it is contemplating issuing or requesting any such order, decree,
written agreement, memorandum of understanding, extraordinary supervisory
letter, commitment letter or similar undertakings or board resolutions. No labor
dispute with the employees of the Company or any subsidiary exists or, to the
knowledge of the Company, is imminent, and the Company is not aware of any
existing or imminent labor disturbance by the employees of any of its or any
subsidiary's principal suppliers,
<PAGE>
manufacturers, customers or contractors, which, in either case, may reasonably
be expected to result in a Material Adverse Effect.
(xii) To the best of my knowledge, there are no statutes or regulations
that are required to be described in the Final Prospectus that are not described
as required.
(xiii) All descriptions in the Registration Statement of contracts and
other documents to which the Company or its subsidiaries are a party are
accurate in all material respects; to the best of my knowledge, there are no
franchises, contracts, indentures, mortgages, loan agreements, notes, leases or
other instruments required to be described or referred to in the Registration
Statement or to be filed as exhibits thereto other than those described or
referred to therein or filed or incorporated by reference as exhibits thereto,
and the descriptions thereof or references thereto are correct in all material
respects.
(xiv) Neither the Company, the Bank nor any of their respective
subsidiaries is in violation of its charter or by-laws and no default by the
Company, the Bank or any of their respective subsidiaries exists in the due
performance or observance of any material obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan agreement, note,
lease or other agreement or instrument that is described or referred to in the
Registration Statement or the Final Prospectus or filed as an exhibit to the
Registration Statement.
(xv) The execution, delivery and performance of the Underwriting Agreement,
the Purchase Contract Agreement, the Pledge Agreement and the Remarketing
Agreement, and the consummation by the Company of the Transactions contemplated
thereby and in the Registration Statement has been duly authorized by all
necessary corporate action and do not and will not, whether with or without the
giving of notice or lapse of time or both, conflict with or constitute a breach
of, or default or Repayment Event (as defined in Section l(p) of the
Underwriting Agreement) under or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the Company or any
subsidiary pursuant to any contract, indenture, mortgage, deed of trust, loan or
credit agreement, note, lease or any other agreement or instrument, known to me,
to which the Company or any subsidiary is a party or by which it or any of them
may be bound, or to which any of the property or assets of the Company, the Bank
or any of their respective subsidiaries is subject (except for such conflicts,
breaches or defaults or liens, charges or encumbrances that would not result in
a Material Adverse Effect), nor will such action result in any violation of the
provisions of the charter or by-laws of the Company, the Bank or any of their
respective subsidiaries, or any applicable law, statute, rule, regulation,
judgment, order, writ or decree, known to me, of any government, governmental
instrumentality or court, domestic or foreign, having jurisdiction over the
Company, the Bank, or any of their respective subsidiaries or any of their
respective properties, assets or operations.
(xvi) There are no persons with registration rights or other similar rights
to have any securities registered pursuant to the Registration Statement or
otherwise registered by the Company or the Bank under the Securities Act, except
as described in Registration Statement or as set forth in any agreement
described therein as containing such rights.
(xvii) The Company, the Bank and each of its subsidiaries possess such
Governmental Licenses issued by the appropriate federal, state, local or foreign
regulatory agencies or bodies
<PAGE>
necessary to conduct the business now operated by them; the Company, the Bank
and each of its subsidiaries are in compliance with the terms and conditions of
all such Governmental Licenses, except where the failure so to comply would not,
singly or in the aggregate, have a Material Adverse Effect; all of the
Governmental Licenses are valid and in full force and effect, except when the
invalidity of such Governmental Licenses or the failure of such Governmental
Licenses to be in full force and effect would not have a Material Adverse
Effect; and neither the Company, the Bank nor any of their respective
subsidiaries has received any notice of proceedings relating to the revocation
or modification of any such Governmental Licenses which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding, would
result in a Material Adverse Effect.
(xviii) The Company, the Bank and each of their respective subsidiaries
have good and marketable title to all real, tangible and intangible property
reflected in the most recent balance sheet included in the Final Prospectus as
owned by the Company, the Bank and its subsidiaries and good title to all other
properties reflected in the most recent balance sheet included in the Final
Prospectus as owned by them, in each case, free and clear of all mortgages,
pledges, liens, security interests, claims, restrictions or encumbrances of any
kind except such as (A) are described in the Final Prospectus or (a) do not,
singly or in the aggregate, materially affect the value of such property and do
not interfere with the use made and proposed to be made of such property by the
Company, the Bank or any of their respective subsidiaries; or, with respect to
any such real property, render title unmarketable as to a material part thereof
and all of the leases and subleases material to the business of the Company, the
Bank and of their respective subsidiaries, considered as one enterprise, and
under which the Company, the Bank or any of their respective subsidiaries holds
properties described in the Final Prospectus, are in full force and effect, and
neither the Company, the Bank nor any of their respective subsidiaries has any
notice of any material claim of any sort that has been asserted by anyone
adverse to the rights of the Company, the Bank or any of their respective
subsidiaries under any of the leases or subleases mentioned above, or affecting
or questioning the rights of the Company, the Bank or such subsidiary to the
continued possession of the leased or subleased premises under any such lease or
sublease.
(xix) Except as described in the Registration Statement or except as would
not, singly or in the aggregate, result in a Material Adverse Effect, (A) the
Company, the Bank and each of their respective subsidiaries is not in violation
of any Environmental Laws, (B) the Company, the Bank and each of their
respective subsidiaries have all permits, authorizations and approvals required
under any applicable Environmental Laws and are each in compliance with their
requirements, (C) there are no pending or, to the knowledge of the Company,
threatened administrative, regulatory or judicial actions, suits, demands,
demand letters, claims, liens, notices of noncompliance or violation,
investigation or proceedings relating to any Environmental Law against the
Company, the Bank or any of their respective subsidiaries and (D) to the
knowledge of the Company there are no events or circumstances that might
reasonably be expected to form the basis of an order for clean-up or
remediation, or an action, suit or proceeding by any private party or
governmental body or agency, against or affecting the Company, the Bank or any
of their respective subsidiaries relating to Hazardous Materials or any
Environmental Laws.
(xx) In the event the Company shall become either directly or indirectly a
bank holding company for purposes of the BHC Act and the BHC Rules, the current
activities of the Company
<PAGE>
and its subsidiaries (as defined in the BHc Rules) would be activities
permissible for a bank holding company under the BHC Act and the BHC Rules.
(xxi) No filing with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any court or governmental authority or
agency, domestic or foreign including, without limitation, the OTS and FDIC is
necessary or required by federal banking laws and regulations in connection with
the due authorization, execution and delivery of the Underwriting Agreement, the
offering, issuance, sale or delivery of the PIES, the performance of the
Transactions, or the performance by the Company of its obligations pursuant to
the Underwriting Agreement, the Purchase Contract Agreements, the Pledge
Agreement, the Remarketing Agreement, the Purchase Contracts, the Preferred
Stock or the PIES.
Nothing has come to my attention that would lead me to believe that the
Registration Statement or any amendment thereto, including the information
included in any prospectus that was omitted from such Registration Statement at
the time it became effective but that is deemed to be part of such Registration
Statement at the time it became effective (except for financial statements and
schedules and other financial data included therein or omitted therefrom, as to
which I make no statement), at the time such Registration Statement or any such
amendment became effective, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or that the Final Prospectus or any
amendment or supplement thereto (except for financial statements and schedules
and other financial data included therein or omitted therefrom, as to which I
make no statement), at the time the Final Prospectus was issued, at the time any
such amended or supplemented Final Prospectus was issued or at either Delivery
Date, included or includes an untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
In rendering such opinion, such counsel may rely as to matters of fact (but
not as to legal conclusions), to the extent they deem proper, on certificates of
responsible officers of the Company and public officials. Such opinion shall not
state that it is to be governed or qualified by, or that it is otherwise subject
to, any treatise, written policy or other document relating to legal opinions,
including, without limitation, the Legal Opinion Accord of the ABA Section of
Business Law (1991). All terms used but not defined in this exhibit should have
the meanings ascribed to them in the Underwriting Agreement and should be
defined accordingly in the form of opinion to be delivered.
Exhibit 1.2
1,200,000 SHARES
BANK UNITED CORP.
SERIES A PREFERRED STOCK
UNDERWRITING AGREEMENT
----------------------
August 6, 1999
LEHMAN BROTHERS INC.
Three World Financial Center
New York, New York 10285
Ladies and Gentlemen:
Bank United Corp., a Delaware corporation (the "Company") proposes
to sell an aggregate of 1,200,000 shares (the " Stock") of the Company's Series
A preferred stock, liquidation preference $50 per share (the "Preferred Stock").
This is to confirm the agreement concerning the purchase of the Stock from the
Company by Lehman Brothers Inc. (the "Underwriter"). Capitalized terms used
herein without definition shall be used as defined in the Final Prospectus (as
hereinafter defined).
1. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY.
The Company represents, warrants and agrees that:
(a) A registration statement on Form S-3 (File No. 333-75937), and
an amendment or amendments thereto, with respect to the offering and sale
of securities of the Company, including the Stock have (i) been prepared
by the Company in conformity with the requirements of the Securities Act
of 1933, as amended (the "Securities Act"), and the rules and regulations
(the "Rules and Regulations") of the Securities and Exchange Commission
(the "Commission") thereunder, (ii) been filed with the Commission under
the Securities Act and (iii) become effective under the Securities Act.
The registration statement, as amended at the date of this Agreement,
meets the requirements set forth in Rule 415(a)(1)(x) under the Securities
Act and complies in all other material respects with such Rule. The
Company proposes to file with the Commission pursuant to Rule 424(b) under
the Securities Act ("Rule 424(b)") a supplement to the form of prospectus
included in the registration statement relating to the initial offering of
the Stock and the plan of distribution thereof and has previously advised
you of all further information (financial and other) with respect to the
Company to be set forth therein. The term "Registration Statement" means
the registration statement, as amended at the date of this Agreement and
as amended from time to time hereafter, including the exhibits thereto,
and all documents incorporated therein by
<PAGE>
2
reference pursuant to Item 12 of Form S-3 (the "Incorporated Documents"),
and the prospectus, in the form in which it appeared in the Registration
Statement at the time the Registration Statement became effective,
including the Incorporated Documents, is hereinafter referred to as the
"Basic Prospectus"; and such supplemented form of prospectus, in the form
in which it shall be filed with the Commission pursuant to Rule 424(b)
(including the Basic Prospectus as so supplemented), is hereinafter called
the "Final Prospectus". The form of preliminary prospectus included in
Amendment No. 1 to the registration statement as filed with the Commission
on July 29, 1999, including the form of preliminary prospectus supplement
dated July 29, 1999 relating to the Stock which was also included therein,
is hereinafter referred to as the "Preliminary Prospectus". Any reference
herein to the Registration Statement, the Preliminary Prospectus or the
Final Prospectus shall be deemed to refer to and include the Incorporated
Documents which were filed under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), on or before the date of this Agreement, the
issue date of the Preliminary Prospectus or the issue date of the Final
Prospectus, as the case may be; and any reference herein to the terms
"amend", "amendment" or "supplement" with respect to the Registration
Statement, the Preliminary Prospectus or the Final Prospectus shall be
deemed to refer to and include the filing of any Incorporated Documents
under the Exchange Act after the date of this Agreement or the issue date
of the Basic Prospectus, the Preliminary Prospectus or the Final
Prospectus, as the case may be, and deemed to be incorporated therein by
reference. Copies of the Registration Statement (including any amendment or
amendments to such Registration Statement have been delivered by the
Company to the Underwriter.
(b) (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Interim Prospectus or
Final Prospectus complied or will comply when so filed in all material
respects with the Exchange Act and the applicable rules and regulations of
the Commission thereunder, (ii) the Registration Statement, when it became
effective, did not contain and, as amended or supplemented, if applicable,
will not contain any untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading, (iii) the Preliminary Prospectus
complied and the Registration Statement and the Final Prospectus comply,
and, as amended or supplemented, if applicable, will comply in all
material respects with the Securities Act and the Rules and Regulations
and (iv) the Preliminary Prospectus did not contain and the Final
Prospectus does not contain and, as it may be amended or supplemented,
will not contain an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they are made, not misleading;
PROVIDED THAT no representation and warranty is made as to information
contained in or omitted from the Registration Statement, the Preliminary
Prospectus or the Final Prospectus in reliance upon and in conformity with
written information concerning the Underwriter furnished to the Company by
the Underwriter or on behalf of the Underwriter specifically for inclusion
therein; and the Commission has not issued an order preventing or
suspending the use of the Registration Statement, the Preliminary
Prospectus or the Final Prospectus.
<PAGE>
3
(c) The accountants who certified the financial statements and any
supporting schedules thereto included or incorporated by reference in the
Registration Statement and the Final Prospectus, and who delivered the
letters referred to in Section 7(g) of this Agreement, are independent
public accountants as required by the Securities Act and the Rules and
Regulations.
(d) The consolidated financial statements included in the
Registration Statement and the Final Prospectus, together with the related
schedules and notes, present fairly in all material respects the
consolidated financial position of the Company and its consolidated
subsidiaries at the dates indicated and the results of operations, changes
in stockholders' equity and cash flows of the Company and its consolidated
subsidiaries for the periods specified; said financial statements have
been prepared in conformity with generally accepted accounting principles
("GAAP") applied on a consistent basis throughout the periods involved,
except as may be noted therein. The selected financial data and the
summary financial information included in the Final Prospectus present
fairly in all material respects the information shown therein and have
been compiled on a basis consistent with that of the audited financial
statements included in the Registration Statement.
(e) Since the respective dates as of which information is given in
the Registration Statement and the Final Prospectus, except as otherwise
stated therein, (i) there has been no material adverse change in the
earnings, stockholders' equity, business affairs or business prospects of
the Company and its subsidiaries considered as one enterprise, whether or
not arising in the ordinary course of business, (ii) there have been no
transactions entered into by the Company or any of its subsidiaries, other
than those in the ordinary course of business, which are material with
respect to the Company and its subsidiaries considered as one enterprise,
and (iii) except for regular quarterly dividends on the common stock of
the Company or on the Series A Preferred Stock of Bank United (the "Bank")
or on the Series B Preferred Stock of the Bank or on the Common Stock of
the Bank in amounts per share that are consistent with past practice,
there has been no dividend or distribution of any kind declared, paid or
made by the Bank or the Company on any class of its capital stock.
(f) The Company and each of its subsidiaries, including the Bank,
has been duly organized and is validly existing as a corporation or as a
federal savings bank, as the case may be, in good standing under the laws
of its jurisdiction and has all necessary corporate power and authority to
own, lease and operate its properties and to conduct its business as
described in the Final Prospectus, the Company has all necessary corporate
power and authority to enter into and perform its obligations under this
Agreement; and the Company and each of its subsidiaries is duly qualified
as a foreign corporation to transact business and is in good standing in
each other jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the conduct of
business, except where the failure so to qualify or to be in good standing
would not have a material adverse effect on the consolidated financial
position, stockholders' equity,
<PAGE>
4
results of operations, business or prospects of the Company and its
subsidiaries considered as one enterprise (a "Material Adverse Effect").
(g) (i) The Bank is the only "significant subsidiary" of the Company
(as such term is defined in Rule 1-02 of Regulation S-X). The only
subsidiaries of the Company other than the Bank are the wholly-owned
subsidiaries of the Bank listed on Schedule 1 hereto which, considered in
the aggregate as a single subsidiary, do not constitute a "significant
subsidiary" as defined in Rule 1-02 of Regulation S-X. The activities of
all of the Bank's subsidiaries are permitted to subsidiaries of a
federally chartered savings bank, the deposits of which are insured by the
Savings Association Insurance Fund ("SAIF"), which is administered by the
Federal Deposit Insurance Corporation (the "FDIC").
(ii) All of the issued and outstanding capital stock of the Bank
and each subsidiary of the Bank has been duly authorized and validly
issued, is fully paid and non-assessable and, except as otherwise
disclosed in the Final Prospectus, and other than the Series A Preferred
Stock of the Bank and the Series B Preferred Stock of the Bank, is owned
by the Company, directly or through subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or equity;
none of the outstanding shares of capital stock of any subsidiary was
issued in violation of the preemptive or similar rights of any
securityholder of such subsidiary.
(h) The authorized, issued and outstanding capital stock of the
Company is as set forth in the Final Prospectus under the caption
"Capitalization" (except for subsequent issuances, if any, pursuant to
reservations, agreements or employee benefit plans referred to in the
Final Prospectus). The shares of issued and outstanding capital stock have
been duly authorized and validly issued and are fully paid and
non-assessable; none of the outstanding shares of capital stock was issued
in violation of the preemptive or other similar rights of any
securityholder of the Company.
(i) This Agreement has been duly authorized, executed and delivered
by the Company.
(j) The Stock has been duly authorized by the Company and, when
issued and delivered against payment therefor as provided herein, will be
duly and validly issued, fully paid and non-assessable and not subject to
the preemptive or other similar rights of any person; and the Stock
conforms to all statements relating thereto contained in the Final
Prospectus and such description conforms to the rights set forth in the
instruments defining the same.
(k) Neither the Company nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included or
incorporated by reference in the Final Prospectus any loss or interference
with its business from fire, explosion, flood or other calamity, whether
or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus or as would not result in a Material
Adverse Effect; and, since such date there
<PAGE>
5
has not been any material change in the capital stock or long-term debt of
the Company or any of its subsidiaries or any material adverse change, or
any development involving a prospective material adverse change, in or
affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the Final
Prospectus.
(l) Neither the Company nor any of its subsidiaries is in violation of
its charter or by-laws or in default in the performance or observance of
any obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note, lease
or other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which it or any of them may be bound, or to
which any of the assets, properties or operations of the Company or any of
its subsidiaries is subject (collectively, "Agreements and Instruments"),
except for such defaults that would not result in a Material Adverse
Effect; and the execution, delivery and performance of this Agreement and
the consummation of the transactions contemplated hereby and compliance by
the Company with its obligations hereunder have been duly authorized by all
necessary corporate action and do not and will not, whether with or without
the giving of notice or passage of time or both, conflict with or
constitute a breach of, or default or Repayment Event (as defined below)
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any assets, properties or operations of the Company or any
of its subsidiaries pursuant to, any Agreements and Instruments (except for
such conflicts, breaches or defaults or liens, charges or encumbrances that
would not result in a Material Adverse Effect), nor will such action result
in any violation of the provisions of the charter or by-laws of the Company
or any of its subsidiaries or (except for such violations that would not
result in a Material Adverse Effect) any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over the
Company or any of its subsidiaries or any of their assets, properties or
operations. As used herein, a "Repayment Event" means any event or
condition which gives the holder of any note, debenture or other evidence
of indebtedness (or any person acting on such holder's behalf) the right to
require (whether with or without the giving of notice or passage of time or
both) the repurchase, redemption or repayment of all or a portion of such
indebtedness by the Company or any of its subsidiaries.
(m) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent, and the
Company is not aware of any existing or imminent labor disturbance by the
employees of any of its or any subsidiary's principal suppliers,
manufacturers, customers or contractors, which, in either case, may
reasonably be expected to result in a Material Adverse Effect.
(n) There is no action, suit, proceeding, inquiry or investigation
before or brought by any court or governmental agency or body, domestic or
foreign, now pending, or, to the knowledge of the Company, threatened,
against or affecting the Company or any of its subsidiaries, which
individually or in the aggregate for all such actions, suits,
<PAGE>
6
proceedings, inquiries or investigations is required to be disclosed in the
Registration Statement (other than as disclosed therein), or which might
reasonably be expected to result in a Material Adverse Effect, or which
might reasonably be expected to materially and adversely affect the
consummation of the transactions contemplated by this Agreement or the
performance by the Company of its obligations hereunder; the aggregate of
all pending legal or governmental proceedings to which the Company or any
of its subsidiaries is a party or of which any of their respective property
or assets is the subject which are not described in the Registration
Statement, including ordinary routine litigation incidental to the business
of the Company or any of its subsidiaries, could not reasonably be expected
to result in a Material Adverse Effect. Neither the Company nor any of its
subsidiaries is a party to any written agreement or memorandum of
understanding with, or commitment letter or similar undertaking to, or
subject to any order or directive issued by, or a recipient of any
extraordinary supervisory letter from, or has adopted any board resolutions
at the request of, any federal or state government agency or authority with
responsibility for the supervision or regulation of depository institutions
or their holding companies or the insurance of deposits, which in any such
case materially restricts the conduct of its business or in any manner
relates to its capital adequacy, its credit policies or its management, nor
has the Company or any of its subsidiaries been advised by any such
regulatory authority that it is contemplating issuing or requesting any
such order, decree, written agreement, memorandum of understanding,
extraordinary supervisory letter, commitment letter or similar undertakings
or board resolutions.
(o) There are no contracts or documents which are required to be
described in the Registration Statement, the Final Prospectus or the
documents incorporated by reference therein or to be filed as exhibits
thereto which have not been so described and filed as required.
(p) The Company and its subsidiaries own or possess, or can acquire on
reasonable terms, adequate patents, patent rights, licenses, inventions,
copyrights, know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks, trade names or other intellectual
property (collectively, "Intellectual Property") necessary to carry on the
business now operated by them, and neither the Company nor any of its
subsidiaries has received any notice or is otherwise aware of any
infringement of or conflict with asserted rights of others with respect to
any Intellectual Property or of any facts or circumstances which would
render any Intellectual Property invalid or inadequate to protect the
interest of the Company or any of its subsidiaries therein, and which
infringement or conflict (if the subject of any unfavorable decision,
ruling or finding) or invalidity or inadequacy, singly or in the aggregate,
would result in a Material Adverse Effect.
(q) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency, including, without limitation, the Office of Thrift
Supervision (the "OTS") and the FDIC, is
<PAGE>
7
necessary or required for the performance by the Company of its obligations
hereunder in connection with the offering or sale of the Stock hereunder,
for the consummation of the transactions contemplated hereby or for the
other transactions described in the Registration Statement, except such as
have been already obtained or will have been obtained or made prior to the
Closing Date (as defined below) or as may be required under the Securities
Act or the Rules and Regulations or state securities laws.
(r) The Company and its subsidiaries possess such permits, licenses,
approvals, consents and other authorizations (collectively, "Governmental
Licenses") issued by the appropriate federal, state, local or foreign
regulatory agencies or bodies necessary to conduct the business now
operated by them; the Company and its subsidiaries are in compliance with
the terms and conditions of all such Governmental Licenses, except where
the failure so to comply would not, singly or in the aggregate, have a
Material Adverse Effect; all of the Governmental Licenses are valid and in
full force and effect, except when the invalidity of such Governmental
Licenses or the failure of such Governmental Licenses to be in full force
and effect would not have a Material Adverse Effect; and neither the
Company nor any of its subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such Governmental
Licenses which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would result in a Material
Adverse Effect.
(s) The Company and its subsidiaries have good and marketable title
to all real, tangible and intangible property reflected in the most recent
balance sheet included in the Final Prospectus as owned by the Company and
its subsidiaries and good title to all other properties reflected in the
most recent balance sheet included in the Final Prospectus as owned by
them, in each case, free and clear of all mortgages, pledges, liens,
security interests, claims, restrictions or encumbrances of any kind
except such as (i) are described in the Final Prospectus or (ii) do not,
singly or in the aggregate, materially affect the value of such property
and do not interfere with the use made and proposed to be made of such
property by the Company or any of its subsidiaries; or, with respect to
any such real property, render title unmarketable as to a material part
thereof and all of the leases and subleases material to the business of
the Company and its subsidiaries, considered as one enterprise, and under
which the Company or any of its subsidiaries holds properties described in
the Final Prospectus, are in full force and effect, and neither the
Company nor any subsidiary has any notice of any material claim of any
sort that has been asserted by anyone adverse to the rights of the Company
or any subsidiary under any of the leases or subleases mentioned above, or
affecting or questioning the rights of the Company or such subsidiary to
the continued possession of the leased or subleased premises under any
such lease or sublease.
(t) The Company is not, and upon the issuance and sale of the
Stock as contemplated herein and the application of the net proceeds
therefrom as described in the Final Prospectus will not be, an
"investment company" or an entity "controlled" by an "investment
company" as such terms are defined in the U.S. Investment Company Act
of 1940, as amended (the "1940 Act").
<PAGE>
8
(u) Except as described in the Final Prospectus and Registration
Statement or except as would not, singly or in the aggregate, result in a
Material Adverse Effect, (i) neither the Company nor any of its
subsidiaries is in violation of any federal, state, local or foreign
statute, law, rule, regulation, ordinance, code, policy or rule of common
law or any judicial or administrative interpretation thereof, including
any judicial or administrative order, consent, decree or judgment,
relating to pollution or protection of human health, the environment
(including, without limitation, ambient air, surface water, groundwater,
land surface or subsurface strata) or wildlife, including, without
limitation, laws and regulations relating to the release or threatened
release of chemicals, pollutants, contaminants, wastes, toxic substances,
hazardous substances, petroleum or petroleum products (collectively,
"Hazardous Materials") or to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of Hazardous
Materials (collectively, "Environmental Laws"), (ii) the Company and each
of its subsidiaries have all permits, authorizations and approvals
required under any applicable Environmental Laws and are each in
compliance with their requirements, (iii) there are no pending or, to the
knowledge of the Company, threatened administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens, notices
of noncompliance or violation, investigation or proceedings relating to
any Environmental Law against the Company or any of its subsidiaries and
(iv) to the knowledge of the Company there are no events or circumstances
that might reasonably be expected to form the basis of an order for
clean-up or remediation, or an action, suit or proceeding by any private
party or governmental body or agency, against or affecting the Company or
any of its subsidiaries relating to Hazardous Materials or any
Environmental Laws.
(v) Except as described in the Registration Statement or as set forth
in any document or agreement described in the Registration Statement as
containing such rights, there are no persons with registration rights or
other similar rights to have any securities registered pursuant to the
Registration Statement or otherwise registered by the Company or the Bank,
under the Securities Act or otherwise.
(w) Each of the Company and the Bank maintains a system of internal
accounting controls sufficient to provide reasonable assurances that (i)
transactions are executed in accordance with management's general or
specific authorization; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with GAAP and to
maintain accountability for assets; (iii) access to assets is permitted
only in accordance with management's general or specific authorization;
and (iv) the recorded accountability for assets is compared with existing
assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(x) To the knowledge of the Company, neither the Company, the Bank
nor any employee or agent of the Company or the Bank has made any payment
of funds of the Company or the Bank or received or retained any funds in
violation of any law, rule or regulation, which payment, receipt or
retention of funds is of a character required to be disclosed in the Final
Prospectus.
<PAGE>
9
(y) Each of the Company and the Bank has filed all tax returns
required to be filed, which returns are complete and correct in all
material respects, and each of the Company and the Bank is not in default
in the payment of any taxes which were payable pursuant to said returns or
any assessments with respect thereto.
(z) In the event the Company shall become either directly or
indirectly a bank holding company for purposes of the Bank Holding Company
Act of 1956, as amended (the "BHC Act") and the rules and regulations of
the Board of Governors of the Federal Reserve System thereunder (the "BHC
Rules"), the current activities of the Company and its subsidiaries (as
defined in the BHC Rules) would be activities permissible for a bank
holding company under the BHC Act and the BHC Rules.
(aa) The Company has not taken and will not take, directly or
indirectly, any action designed to, or that might be reasonably expected
to, cause or result in stabilization or manipulation of the price of the
Stock.
(aa) The Company has satisfied the conditions for use of Form S-3,
as set forth in the General Instructions thereto.
2. PURCHASE OF THE STOCK BY THE UNDERWRITER. On the basis of the
representations and warranties contained in, and subject to the terms and
conditions of, this Agreement, the Company agrees to sell 1,200,000 shares of
the Stock to the Underwriter and the Underwriter agrees to purchase 1,200,000
shares of the Stock.
The price of the Stock shall be $49.30 per share.
The Company shall not be obligated to deliver any of the Stock to be
delivered on the Delivery Date (as hereinafter defined) except upon payment for
all the Stock to be purchased on the Delivery Date as provided herein.
3. OFFERING OF STOCK BY THE UNDERWRITER. The Underwriter proposes to
offer the Stock for sale upon the terms and conditions set forth in the Final
Prospectus.
4. DELIVERY OF AND PAYMENT FOR THE STOCK. Delivery of and payment
for the Stock shall be made at the office of Simpson Thacher & Bartlett at 425
Lexington Avenue, New York, New York at 8:30 A.M., New York City time, on the
second full business day following the date of this Agreement or at such other
date or place as shall be determined by agreement between the Underwriter and
the Company. This date and time are sometimes referred to as the "Delivery
Date." On the Delivery Date, the Company, through the facilities of The
Depository Trust Company ("DTC"), shall deliver, or cause to be delivered, a
securities entitlement with respect to the Stock to the Underwriter against
payment to or upon the order of the Company of the purchase price by wire
transfer of same-day funds to a bank account designated by the Company. Time
shall be of the essence, and delivery at the time and place specified pursuant
to this
<PAGE>
10
Agreement is a further condition of the obligation of the Underwriter hereunder.
Upon delivery, the Stock shall be registered in the name of Cede & Co., as
nominee for DTC.
5. FURTHER AGREEMENTS OF THE COMPANY. The Company agrees:
(a) To prepare the Final Prospectus in a form approved by the
Underwriter and to file such Prospectus pursuant to Rule 424(b) under the
Securities Act not later than the Commission's close of business on the
second business day following the execution and delivery of this
Agreement; to make no further amendment or any supplement to the
Registration Statement or the Final Prospectus except as permitted herein;
to advise the Underwriter, promptly after it receives notice thereof, of
the time when any amendment to the Registration Statement has been filed
or becomes effective or any supplement to the Final Prospectus or any
amended Final Prospectus has been filed and to furnish the Underwriter
with copies thereof; to timely file all reports and any definitive proxy
or information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act subsequent to the date of the Final Prospectus and for so long as the
delivery of a prospectus is required in connection with the offering or
sale of the Stock; to advise the Underwriter, promptly after it receives
notice thereof, of the issuance by the Commission of any stop order or of
any order preventing or suspending the use of the Final Prospectus, of the
suspension of the qualification of the Stock for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any
such purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or the Final Prospectus or for
additional information; and, in the event of the issuance of any stop
order or of any order preventing or suspending the use of the Final
Prospectus or suspending any such qualification, to use promptly its best
efforts to obtain its withdrawal;
(b) To furnish promptly to the Underwriter and to counsel for the
Underwriter a signed copy of the Registration Statement as originally
filed with the Commission, and each amendment thereto filed with the
Commission, including all consents and exhibits filed therewith;
(c) To deliver promptly to the Underwriter such number of the
following documents as the Underwriter shall reasonably request: (i)
conformed copies of the Registration Statement as originally filed with
the Commission and each amendment thereto (in each case excluding exhibits
other than this Agreement, the computation of the ratio of earnings to
fixed charges and the computation of per share earnings), (ii) the Final
Prospectus (not later than 5:00 P.M., New York City time, of the day
following the execution and delivery of this Agreement) and any amended or
supplemented Final Prospectus (not later than 5:00 P.M. New York City
time, on the day following the date of such amendment or supplement) and
(iii) any document incorporated by reference in the Preliminary Prospectus
or the Final Prospectus (excluding exhibits thereto); and, if the delivery
of a prospectus is required at any time after the date hereof in
connection with the offering or sale of the Stock or any other securities
relating thereto and if at such time any event shall have occurred as a
result of which the Final Prospectus as then
<PAGE>
11
amended or supplemented would include any untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made when the Final Prospectus is delivered, not misleading, or, if for any
other reason it shall be necessary during such same period to amend or
supplement the Final Prospectus or to file under the Exchange Act any
document incorporated by reference in the Final Prospectus in order to
comply with the Securities Act or the Exchange Act, to notify the
Underwriter and, upon its request, to prepare and to file such amendment,
supplement or document, to cause any amendment of the Registration
Statement containing an amended Final Prospectus to be made effective as
soon as possible and to prepare and furnish without charge to the
Underwriter and to any dealer in securities as many copies as the
Underwriter may from time to time reasonably request of an amended or
supplemented Final Prospectus which will correct such statement or omission
or effect such compliance;
(d) To file promptly with the Commission any amendment to the
Registration Statement or the Final Prospectus or any supplement to the
Final Prospectus that may, in the judgment of the Company or the
Underwriter, be required by the Securities Act or requested by the
Commission;
(e) Prior to filing with the Commission any amendment to the
Registration Statement or supplement to the Final Prospectus, including
any document incorporated by reference in the Final Prospectus, to furnish
a copy thereof to the Underwriter and counsel for the Underwriter and
obtain the consent of the Underwriter to the filing;
(f) Timely file such reports pursuant to the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), as are necessary in order to
make generally available to its securityholders as soon as practicable an
earnings statement for the purposes of, and to provide the benefits
contemplated by, the last paragraph of Section 11(a) of the Securities
Act;
(g) For a period of five years following the effective date of the
Registration Statement, to furnish to the Underwriter copies of all
materials furnished by the Company to its shareholders and all public
reports and all reports and financial statements furnished by the Company
to the principal national securities exchange upon which the Company's
common stock may be listed pursuant to requirements of or agreements with
such exchange or to the Commission pursuant to the Exchange Act or any
rule or regulation of the Commission thereunder;
(h) Promptly from time to time to take such action as the Underwriter
may reasonably request to qualify the Stock for offering and sale under
the securities laws of such jurisdictions as the Underwriter may request
and to comply with such laws so as to permit the continuance of sales and
dealings therein in such jurisdictions for as long as may be necessary to
complete the distribution of the Stock; PROVIDED that in connection
therewith the Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in any
jurisdiction;
<PAGE>
12
(i) For a period from the date of this Agreement to the later of (A)
the Delivery Date and (B) the date on which selling restrictions have
terminated (and in no event ending later than 30 days from the date of the
Final Prospectus), not to, directly or indirectly, (1) offer for sale,
sell, pledge or otherwise dispose of (or enter into any transaction or
device which is designed to, or could be expected to, result in the
disposition by any person at any time in the future of) (i) any Preferred
Stock, (ii) any securities that are substantially similar to the Stock, or
(iii) any securities that are convertible into, or exchangeable or
exercisable for, any of the foregoing, or (2) enter into any swap or other
derivatives transaction that transfers to another, in whole or in part,
any of the economic benefits or risks of ownership of the Stock or other
Preferred Stock or similar securities, whether any such transaction
described in clause (1) or (2) above is to be settled by delivery of the
Stock or other Preferred Stock or similar securities or other securities,
in cash or otherwise, in each case without the prior written consent of
the Underwriter, other than pursuant to this Agreement or the Underwriting
Agreement between the Company and Lehman Brothers Inc. relating to
2,000,000 Corporate Premium Income Equity Securities; and
(j) To use the net proceeds received by it from the sale of the
Stock pursuant to this Agreement in the manner specified in the Final
Prospectus under the caption "Use of Proceeds."
6. EXPENSES. The Company agrees to pay (a) the fees, disbursements
and expenses of the Company's counsel and accountants in connection with the
registration of the Stock under the Securities Act and all other expenses in
connection with the preparation, printing and filing of the Registration
Statement, the Preliminary Prospectus and the Final Prospectus and amendments
and supplements thereto; (b) the costs incident to the authorization, issuance,
sale and delivery of the Stock and any taxes payable in connection therewith;
(c) the costs incident to the preparation, printing and filing under the
Securities Act of the Registration Statement and any amendments and exhibits
thereto; (d) the costs of distributing the Registration Statement as originally
filed and each amendment thereto and any post-effective amendments thereof
(including, in each case, exhibits), the Preliminary Prospectus, the Final
Prospectus and any amendment or supplement to any such prospectus or any
document incorporated by reference therein, all as provided in this Agreement;
(e) the costs of reproducing and distributing this Agreement and any other
related documents in delivery of the Stock; (f) any applicable listing or other
fees; (g) the fees and expenses of qualifying the Stock under the securities
laws of the several jurisdictions as provided in Section 5(h) and of preparing,
printing and distributing a Blue Sky Memorandum (including related fees and
expenses of counsel to the Underwriter ); (h) the filing fees and any expenses
of legal counsel incident to any required review by the National Association of
Securities Dealers, Inc. of the terms of the sale of the Stock; (i) any fees
charged by securities rating services for rating the Stock (or any related
security); (j) transfer taxes payable in connection with the sale of the Stock
to the Underwriter; and (k) all other costs and expenses incident to the
performance of the obligations of the Company under this Agreement; PROVIDED
that, except as provided in this Section 6, the Underwriter shall pay its own
costs and
<PAGE>
13
expenses, including the costs and expenses of its counsel, any transfer taxes on
the Stock which it may sell and the expenses of advertising any offering of the
Stock made by the Underwriter.
7. CONDITIONS OF UNDERWRITER'S OBLIGATIONS. The obligations of the
Underwriter hereunder are subject to the accuracy, when made and on the Delivery
Date, of the representations and warranties of the Company contained herein or
in certificates of any officer of the Company or any subsidiary of the Company
delivered pursuant to the provisions hereof, to the performance by the Company
of its covenants and other obligations hereunder, and to each of the following
additional terms and conditions:
(a) As of the Delivery Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued under
the Securities Act, and no proceedings for that purpose shall have been
instituted or be pending or threatened by the Commission, and any request
on the part of the Commission for additional information shall have been
complied with. The Final Prospectus shall have been filed with the
Commission in accordance with Section 5(a) hereof.
(b) On the Delivery Date, the Underwriter shall have received the
favorable opinion, dated as of the Delivery Date, of Wachtell, Lipton,
Rosen & Katz, counsel for the Company, in form and substance satisfactory
to counsel for the Underwriter to the effect set forth in Exhibit A
hereto.
(c) On the Delivery Date, the Underwriter shall have received the
favorable opinion, dated as of such Delivery Date, of Jonathon K. Heffron,
Esq., General Counsel for the Company, in form and substance satisfactory
to counsel for the Underwriter, to the effect set forth in Exhibit B
hereto.
(d) On the Delivery Date, the Underwriter shall have received the
favorable opinion, dated as of such Delivery Date, of Simpson Thacher &
Bartlett, counsel for the Underwriter, with respect to the Registration
Statement, Final Prospectus and other related matters as the Underwriter
may reasonably request.
(e) The Underwriter shall not have discovered and promptly disclosed
to the Company on or prior to such Delivery Date that the Registration
Statement or the Final Prospectus or any amendment or supplement thereto
contains any untrue statement of a fact which, in the opinion of Simpson
Thacher & Bartlett, counsel for the Underwriter, is material or omits to
state any fact which, in the opinion of such counsel, is material and (i)
is required to be stated therein or (ii) is necessary to make the
statements therein not misleading.
(f) All corporate proceedings and other legal matters incident to the
authorization, form and validity of this Agreement, the Stock, the
Registration Statement and the Final Prospectus, and all other legal
matters relating to this Agreement and the transactions contemplated
hereby, shall be reasonably satisfactory in all material respects to
counsel for the Underwriter, and the Company shall have furnished to such
counsel all documents
<PAGE>
14
and information that they may reasonably request to enable them to pass
upon such matters.
(g) At the time of execution of this Agreement, the Underwriter shall
have received letters from each of Deloitte & Touche LLP and KPMG Peat
Marwick LLP, in form and substance satisfactory to the Underwriter,
addressed to the Underwriter and dated the date hereof (i) confirming that
they are independent public accountants within the meaning of the
Securities Act and are in compliance with the applicable requirements
relating to the qualification of accountants under Rule 2-01 of Regulation
S-X of the Commission, (ii) stating, as of the date hereof (or, with
respect to matters involving changes or developments since the respective
dates as of which specified financial information is given in the Final
Prospectus, as of a date not more than five days prior to the date
hereof), the conclusions and findings of such firm with respect to the
financial information and other matters ordinarily covered by accountants'
"comfort letters" to underwriters in connection with registered public
offerings.
(h) With respect to the letters of Deloitte & Touche LLP and of KPMG
Peat Marwick LLP referred to in the preceding paragraph and delivered to
the Underwriter concurrently with the execution of this Agreement (the
"initial letters"), the Company shall have furnished to the Underwriter
letters (the "bring-down letters") of such accountants, addressed to the
Underwriter and dated as of such Delivery Date confirming in all material
respects the conclusions and findings set forth in the initial letters.
(i) The Company shall have furnished to the Underwriter a
certificate, dated such Delivery Date, of its Chairman of the Board or its
President and its chief financial officer stating that:
(i) The representations, warranties and agreements of the
Company in Section 1 are true and correct as of such Delivery Date;
the Company has complied with all its agreements contained herein;
and the conditions set forth in Section 7(a) have been fulfilled;
(ii) They have carefully examined the Registration Statement
and the Final Prospectus and, in their opinion (A) the Registration
Statement and the Final Prospectus, as of such Delivery Date, did
not include any untrue statement of a material fact and did not omit
to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and (B)
since the date of this Agreement, no event has occurred which should
have been set forth in a supplement or amendment to the Registration
Statement or the Final Prospectus.
(j) On the Delivery Date, counsel for the Underwriter shall have been
furnished with such documents as they may require for the purpose of
enabling them to pass upon the issuance and sale of the Stock as herein
contemplated, or other legal matters incident to the authorization, form
and validity of this Agreement, the Stock, the Registration
<PAGE>
15
Statement, the Preliminary Prospectus and the Final Prospectus or in order
to evidence the accuracy of any of the representations or warranties, or
the fulfillment of any of the conditions, herein contained, and all
proceedings taken by the Company in connection with the issuance and sale
of the Stock as herein contemplated shall be satisfactory in form and
substance to the Underwriter and counsel for the Underwriter.
(k) There shall not have been, since the date hereof or since the
respective dates as of which information is given in the Final Prospectus,
any material adverse change in the condition, financial or otherwise, or
in the consolidated financial position, stockholders' equity, results of
operations, business or prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary
course of business.
(l) Subsequent to the execution and delivery of this Agreement (i) no
downgrading shall have occurred in the rating accorded the Company's or
any significant subsidiary's debt securities or preferred stock by any
"nationally recognized statistical rating organization", as that term is
defined by the Commission for purposes of Rule 436(g)(2) of the Rules and
Regulations and (ii) no such organization shall have publicly announced
that it has under surveillance or review, with possible negative
implications, its rating of any of the Company's or any significant
subsidiary's debt securities or preferred stock.
(m) Subsequent to the execution and delivery of this Agreement there
shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange or the American Stock Exchange or
in the over-the-counter market, or trading in any securities of the
Company on any exchange or in the over-the-counter market, shall have been
suspended or minimum prices shall have been established on any such
exchange or such market by the Commission, by such exchange or by any
other regulatory body or governmental authority having jurisdiction, (ii)
a banking moratorium shall have been declared by Federal or state
authorities, (iii) the United States shall have become engaged in
hostilities, there shall have been an escalation in hostilities involving
the United States or there shall have been a declaration of a national
emergency or war by the United States or (iv) there shall have
occurred such a material adverse change in general economic, political or
financial conditions (or the effect of international conditions on the
financial markets in the United States shall be such) as to make it, in
the judgment of the Underwriter, impracticable or inadvisable to
proceed with the public offering or delivery of the Stock on the terms
and in the manner contemplated in the Final Prospectus.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriter.
8. INDEMNIFICATION AND CONTRIBUTION.
<PAGE>
16
(a) The Company shall indemnify and hold harmless the Underwriter, its
officers and employees and each person, if any, who controls the Underwriter
within the meaning of the Securities Act, from and against any loss, claim,
damage or liability, joint or several, or any action in respect thereof
(including, but not limited to, any loss, claim, damage, liability or action
relating to purchases and sales of the Stock), to which the Underwriter,
officer, employee or controlling person may become subject, under the Securities
Act or otherwise, insofar as such loss, claim, damage, liability or action
arises out of, or is based upon, (i) any untrue statement or alleged untrue
statement of a material fact contained (A) in the Registration Statement, the
Preliminary Prospectus or the Final Prospectus, or in any amendment or
supplement thereto, or (B) in any blue sky application or other document
prepared or executed by the Company (or based upon any written information
furnished by the Company) specifically for the purpose of qualifying any or all
of the Stock under the securities laws of any state or other jurisdiction (any
such application, document or information being hereinafter called a "Blue Sky
Application") Blue Sky Application, or (ii) the omission or alleged omission to
state in the Registration Statement, the Preliminary Prospectus or the Final
Prospectus, or in any amendment or supplement thereto, or in any Blue Sky
Application any material fact required to be stated therein or necessary to make
the statements therein not misleading, and shall reimburse the Underwriter and
each such officer, employee or controlling person promptly upon demand for any
legal or other expenses reasonably incurred by the Underwriter, officer,
employee or controlling person in connection with investigating or defending or
preparing to defend against any such loss, claim, damage, liability or action as
such expenses are incurred; PROVIDED, HOWEVER, that the Company shall not be
liable under this Section 8(a) in any such case to the extent that any such
loss, claim, damage, liability or action arises out of, or is based upon, any
untrue statement or alleged untrue statement or omission or alleged omission
made in the Registration Statement, the Preliminary Prospectus or the Final
Prospectus, or in any such amendment or supplement, or in any Blue Sky
Application in reliance upon and in conformity with written information
concerning the Underwriter furnished to the Company by or on behalf of the
Underwriter specifically for inclusion therein; and PROVIDED FURTHER that as to
the Preliminary Prospectus this indemnity agreement shall not inure to the
benefit of the Underwriter, its officers or employees or any person controlling
the Underwriter on account of any loss, claim, damage, liability or action
arising from the sale of the Stock to any person by the Underwriter if the
Underwriter failed to send or give a copy of the Final Prospectus to that person
within the time required by the Securities Act, and the untrue statement or
alleged untrue statement of any material fact or omission or alleged omission to
state a material fact in the Preliminary Prospectus was corrected in the Final
Prospectus, unless such failure resulted from non-compliance by the Company with
Section 5(c). The foregoing indemnity agreement is in addition to any liability
which the Company may otherwise have to the Underwriter or to any officer,
employee or controlling person of the Underwriter.
(b) The Underwriter shall indemnify and hold harmless the Company, its
officers and employees, each of its directors and each person, if any, who
controls the Company within the meaning of the Securities Act, from and against
any loss, claim, damage or liability, joint or several, or any action in respect
thereof, to which the Company or any such director, officer or controlling
person may become subject, under the Securities Act or otherwise, insofar as
such loss, claim, damage, liability or action arises out of, or is based upon,
(i) any untrue
<PAGE>
17
statement or alleged untrue statement of a material fact contained (A) in the
Registration Statement, the Preliminary Prospectus or the Final Prospectus, or
in any amendment or supplement thereto, or (B) in any Blue Sky Application or
(ii) the omission or alleged omission to state in the Registration Statement,
the Preliminary Prospectus or the Final Prospectus, or in any amendment or
supplement thereto, or in any Blue Sky Application any material fact required to
be stated therein or necessary to make the statements therein not misleading,
but in each case only to the extent that the untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information concerning the Underwriter furnished to the
Company by or on behalf of the Underwriter specifically for inclusion therein,
and shall reimburse the Company and any such director, officer or controlling
person for any legal or other expenses reasonably incurred by the Company or any
such director, officer or controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim, damage, liability
or action as such expenses are incurred. The foregoing indemnity agreement is in
addition to any liability which the Underwriter may otherwise have to the
Company or any such director, officer, employee or controlling person.
(c) Promptly after receipt by an indemnified party under this Section 8 of
notice of any claim or the commencement of any action, the indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under this Section 8, notify the indemnifying party in writing of the
claim or the commencement of that action; PROVIDED, HOWEVER, that the failure to
notify the indemnifying party shall not relieve it from any liability which it
may have under this Section 8 except to the extent it has been materially
prejudiced by such failure. If any such claim or action shall be brought against
an indemnified party, and it shall notify the indemnifying party thereof, the
indemnifying party shall be entitled to participate therein and, to the extent
that it wishes, jointly with any other similarly notified indemnifying party, to
assume the defense thereof with counsel reasonably satisfactory to the
indemnified party. After notice from the indemnifying party to the indemnified
party of its election to assume the defense of such claim or action, the
indemnifying party shall not be liable to the indemnified party under this
Section 8 for any legal or other expenses subsequently incurred by the
indemnified party in connection with the defense thereof other than reasonable
costs of investigation; PROVIDED, HOWEVER, that the Underwriter shall have the
right to employ counsel to represent jointly the Underwriter and its officers,
employees and controlling persons who may be subject to liability arising out of
any claim in respect of which indemnity may be sought by the Underwriter against
the Company under this Section 8 if, in the reasonable judgment of the
Underwriter, it is advisable for the Underwriter and its officers, employees and
controlling persons to be jointly represented by separate counsel, and in that
event the fees and expenses of such separate counsel shall be paid by the
Company. No indemnifying party shall (i) without the prior written consent of
the indemnified parties (which consent shall not be unreasonably withheld),
settle or compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding, or (ii) be liable for any settlement of any such action
effected without its written consent (which consent shall not be unreasonably
withheld), but if settled with the
<PAGE>
18
written consent of the indemnifying party or if there be a final judgment of the
plaintiff in any such action, the indemnifying party agrees to indemnify and
hold harmless any indemnified party from and against any loss or liability by
reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 8 shall for any
reason be unavailable to or insufficient to hold harmless an indemnified party
under Section 8(a) or 8(b) in respect of any loss, claim, damage or liability,
or any action in respect thereof, referred to therein, then each indemnifying
party shall, in lieu of indemnifying such indemnified party under Section 8(a)
or 8(b), as the case may be, in respect of any loss, claim damage or liability
or any action in respect thereof, referred to therein, contribute to the amount
paid or payable by such indemnified party as a result of such loss, claim,
damage or liability, or action in respect thereof referred to in Section 8(a) or
8(b), as the case may be, (i) in such proportion as shall be appropriate to
reflect the relative benefits received by the Company on the one hand and the
Underwriter on the other from the offering of the Stock or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and the Underwriter on the other with respect to the statements or
omissions which resulted in such loss, claim, damage or liability, or action in
respect thereof, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Underwriter on
the other with respect to such offering shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Stock purchased
under this Agreement (before deducting expenses) received by the Company on the
one hand, and the total underwriting discounts and commissions received by the
Underwriter with respect to the shares of the Stock purchased under this
Agreement, on the other hand, bear to the total gross proceeds from the offering
of the shares of the Stock under this Agreement, in each case as set forth on
the cover of the Final Prospectus. The relative fault shall be determined by
reference to whether the untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Company or the Underwriter, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company and the Underwriter agree that it would
not be just and equitable if contributions pursuant to this Section 8(d) were to
be determined by pro rata allocation or by any other method of allocation which
does not take into account the equitable considerations referred to in this
Section 8(d). The amount paid or payable by an indemnified party as a result of
the loss, claim, damage or liability, or action in respect thereof, referred to
above in this Section 8(d) shall be deemed to include, for purposes of this
Section 8(d), any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Section 8(d), the Underwriter
shall not be required to contribute any amount in excess of the amount by which
the total price at which the Stock underwritten by it and distributed to the
public was offered to the public exceeds the amount of any damages which the
Underwriter has otherwise paid or become liable to pay by reason of any untrue
or alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
<PAGE>
19
(e) The Underwriter confirms and the Company acknowledges that the
statements with respect to the public offering of the Stock set forth on the
cover page of, and under the caption "Underwriting" in, the Final Prospectus
are correct and constitute the only information concerning the Underwriter
furnished in writing to the Company specifically for inclusion in the
Registration Statement and the Final Prospectus.
9. TERMINATION. The obligations of the Underwriter hereunder may be
terminated by the Underwriter by notice given to and received by the Company
prior to delivery of and payment for the Stock if, prior to that time, any of
the events described in Sections 7(k), 7(l) or 7(m) shall have occurred or if
the Underwriter shall decline to purchase the Stock for any reason permitted
under this Agreement.
10. NOTICES, ETC. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Underwriter, shall be delivered or sent by mail, telex
or facsimile transmission to Lehman Brothers Inc., Three World Financial
Center, New York, New York 10285, Attention: Syndicate Department (Fax:
212-526-6588) with a copy, in the case of any notice pursuant to Section
8(c), to the Director of Litigation, Office of the General Counsel, Lehman
Brothers Inc., Three World Financial Center, 10th Floor, New York, New
York 10285;
(b) if to the Company, shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Company set forth in the
Registration Statement, Attention: Jonathon K. Heffron, Esq. (Fax:
713-543-7744);
Any such statements, requests, notices or agreements shall take effect at the
time of receipt thereof.
11. PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement shall
inure to the benefit of and be binding upon the Underwriter, the Company and
their respective successors ans assigns. This Agreement and the terms and
provisions hereof are for the sole benefit of only those persons, except that
(A) the representations, warranties, indemnities and agreements of the Company
contained in this Agreement shall also be deemed to be for the benefit of the
person or persons, if any, who control the Underwriter within the meaning of
Section 15 of the Securities Act and (B) the indemnity agreement of the
Underwriter contained in Section 8(b) of this Agreement shall be deemed to be
for the benefit of directors of the Company and officers of the Company who have
signed the Registration Statement and any person controlling the Company within
the meaning of Section 15 of the Securities Act. Nothing in this Agreement is
intended or shall be construed to give any person, other than the persons
referred to in this Section 11, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision contained herein.
12. SURVIVAL. The respective indemnities, representations, warranties
and agreements of the Company and the Underwriter contained in this
Agreement or made by or on
<PAGE>
20
behalf of them, respectively, pursuant to this Agreement, shall survive the
delivery of and payment for the Stock and shall remain in full force and effect,
regardless of any investigation made by or on behalf of any of them or any
person controlling any of them.
13. DEFINITION OF THE TERMS "BUSINESS DAY" AND "SUBSIDIARY". For
purposes of this Agreement, (a) "business day" means each Monday, Tuesday,
Wednesday, Thursday or Friday which is not a day on which banking institutions
in New York are generally authorized or obligated by law or executive order to
close and (b) "subsidiary" has the meaning set forth in Rule 405 of the Rules
and Regulations.
14. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF NEW YORK.
15. COUNTERPARTS. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
16. HEADINGS. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
17. CONSENT TO JURISDICTION. Each party irrevocably agrees that any
legal suit, action or proceeding arising out of or based upon this Agreement or
the transactions contemplated hereby may be instituted in the federal courts of
the United States of America located in the City of New York or the courts of
the State of New York in each case located in the Borough of Manhattan in the
City of New York (collectively, the "Specified Courts"), and irrevocably submits
to the exclusive jurisdiction (except for proceedings instituted in regard to
the enforcement of a judgment of any such court, as to which such jurisdiction
is non-exclusive) of such courts in any such suit, action or proceeding. The
parties further agree that service of any process, summons, notice or document
by mail to such party's address as set forth in Section 10 hereof shall be
effective service of process for any lawsuit, action or other proceeding brought
in any such court. The parties hereby irrevocably and unconditionally waive any
objection to the laying of venue of any lawsuit, action or other proceeding in
the Specified Courts, and hereby further irrevocably and unconditionally waive
and agree not to plead or claim in any such court that any such lawsuit, action
or other proceeding brought in any such court has been brought in an
inconvenient forum.
<PAGE>
21
If the foregoing correctly sets forth the agreement between the
Company and the Underwriter, please indicate your acceptance in the space
provided for that purpose below.
Very truly yours,
BANK UNITED CORP.
By /s/ Barry C. Burkholder
-------------------------
Name: Barry C. Burkholder
Title: President and CEO
Accepted:
LEHMAN BROTHERS INC.
By /s/ Mark H. Burton
------------------------
Name: Mark H. Burton
Title: Managing Director
AUTHORIZED REPRESENTATIVE
<PAGE>
22
SCHEDULE 1
List of Subsidiaries
BANK UNITED CORP. SUBSIDIARIES
BNKU Holdings, Inc.
BUC Reinsurance Company
BUC Acquisition II Corporation
BNKU HOLDINGS, INC. SUBSIDIARIES
Bank United
BUC Title Ventures, Inc.
BANK UNITED SUBSIDIARIES
Commonwealth United Mortgage Company
United Agency Corporation
United Capital Management Corporation
United Greenway Securities Services, Inc.
United Mortgage Securities Corporation
United Mortgage Securities, Inc.
USAT Mortgage Securities, Inc.
Bank United Securities Corp.
UNITED AGENCY CORPORATION SUBSIDIARY
Commonwealth General Services Agency, Inc.
<PAGE>
1
Exhibit A
FORM OF OPINION OF
WACHTELL, LIPTON, ROSEN & KATZ
TO BE DELIVERED PURSUANT TO SECTION 7(b)
(i) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware.
(ii) The Company has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the Final
Prospectus, and to enter into and perform its obligations under the Underwriting
Agreement. The activities of each of the Company's subsidiaries are permitted to
subsidiaries of a savings and loan holding company.
(iii) The Bank is the only "significant subsidiary" of the Company (as such
term is defined in Rule 1-02 of Regulation S-X). The only subsidiaries of the
Company other than the Bank are the wholly-owned subsidiaries of the Bank listed
on Schedule 1 to the Underwriting Agreement which, considered in the aggregate
as a single subsidiary, do not constitute a "significant subsidiary" as defined
in Rule 1-02 of Regulation S-X.
(iv) The Company has an authorized capitalization as set forth in the
Final Prospectus. The shares of issued and outstanding capital stock of the
Company, including the shares of Stock to be purchased by the Underwriter from
the Company, have been duly authorized and validly issued and are fully paid and
non-assessable; and none of the outstanding shares of capital stock of the
Company, including the shares of Stock to be purchased by the Underwriter from
the Company, was issued in violation of any preemptive or other similar rights
of any securityholder of the Company.
(v) The Stock has been duly authorized by the Company and, when issued and
delivered against payment therefor as provided herein, will be duly and validly
issued, fully paid and non-assessable and not subject to the preemptive or other
similar rights of any person; and the Stock conforms to all statements relating
thereto contained in the Final Prospectus and such description conforms to the
rights set forth in the instruments defining the same.
(vi) The Registration Statement has been declared effective under the
Securities Act; the Final Prospectus was filed with the Commission pursuant to
Rule 424(b) in the manner and within the time period required by Rule 424(b);
and, to the best of our knowledge, no stop order suspending the effectiveness of
the Registration Statement has been issued under the Securities Act and no
proceedings for that purpose have been instituted or are pending or threatened
by the Commission.
(vii) The Registration Statement, the Final Prospectus, and each amendment
or supplement to the Registration Statement and the Final Prospectus, as of
their respective effective or issue dates (other than the financial statements
and supporting schedules included
<PAGE>
2
therein or omitted therefrom, as to which we express no opinion) complied as to
form in all material respects with the requirements of the Securities Act and
the Rules and Regulations.
(viii) The information in the Final Prospectus under the captions
"Description of the Preferred Stock," "Description of Offered Securities" and in
the Registration Statement under "Part II. Information Not Required in
Prospectus--Item 14. Indemnification of Directors and Officers," to the extent
that such information constitutes summaries of certain terms of documents
referred to therein, constitute accurate summaries of the terms of such
documents in all material respects.
(ix) The information in the Final Prospectus under the caption "United
States Federal Income Tax Consequences," to the extent that such information
purports to constitute summaries of matters of United States federal tax laws
and regulations or legal conclusions with respect thereto, constitute accurate
summaries of the matters described therein in all material respects.
(x) To the best of our knowledge, there are no statutes or regulations
that are required to be described in the Final Prospectus that are not described
as required.
(xi) Neither the Company, the Bank nor any of their respective
subsidiaries is in violation of its charter or by-laws and, to the best of our
knowledge, no default by the Company, the Bank or any of their respective
subsidiaries exists in the due performance or observance of any material
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument that is described or referred to in the Registration Statement or the
Final Prospectus or filed as an exhibit to the Registration Statement.
(xii) No filing with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any court or governmental authority or
agency, domestic or foreign including, without limitation, the OTS and FDIC
(other than under the Securities Act and the Rules and Regulations, which have
been obtained, or as may be required under the securities or blue sky laws of
the various states, as to which we express no opinion) is necessary or required
for the performance by the Company of its obligations under the Underwriting
Agreement in connection with the offering or sale of the Stock by the Company
under the Underwriting Agreement, for the consummation by the Company of the
transactions contemplated by the Underwriting Agreement.
(xiii) The execution, delivery and performance of the Underwriting
Agreement by the Company, the consummation of the transactions contemplated
thereby, and compliance by the Company with its obligations under the
Underwriting Agreement have been duly authorized by all necessary corporate
action and do not and will not result in any violation of the provisions of the
charter or by-laws of the Company or any of its subsidiaries, or any applicable
law, statute, rule, regulation, judgment, order, writ or decree, known to us, of
any government, governmental instrumentality or court, domestic or foreign,
having jurisdiction over the Company. The Underwriting Agreement has been duly
authorized, executed and delivered by the Company.
(xiv) To the best of our knowledge, there are no persons with registration
rights or other similar rights to have any securities registered pursuant to the
Registration Statement or otherwise registered by the Company under the
Securities Act, except as described in
<PAGE>
3
Registration Statement or as set forth in any agreement described therein as
containing such rights.
(xv) The Company is not, and upon the sale of the Stock as contemplated in
the Underwriting Agreement and the application of the net proceeds therefrom as
described in the Final Prospectus will not be, an "investment company" or an
entity "controlled" by an "investment company," as such terms are defined in the
1940 Act.
Nothing has come to our attention that would lead us to believe that the
Registration Statement or any amendment thereto (except for financial statements
and schedules and other financial data included therein or omitted therefrom, as
to which we make no statement), at the time such Registration Statement or any
such amendment became effective, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or that the Final
Prospectus or any amendment or supplement thereto (except for financial
statements and schedules and other financial data included therein or omitted
therefrom, as to which we make no statement), at the time the Final Prospectus
was issued, at the time any such amended or supplemented Final Prospectus was
issued or at the Closing Date, included or includes an untrue statement of a
material fact or omitted or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
In rendering such opinion, such counsel may rely as to matters of fact
(but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company and public officials. Such
opinion shall not state that it is to be governed or qualified by, or that it is
otherwise subject to, any treatise, written policy or other document relating to
legal opinions, including, without limitation, the Legal Opinion Accord of the
ABA Section of Business Law (1991). All terms used but not defined in this
exhibit should have the meanings ascribed to them in the Underwriting Agreement
and should be defined accordingly in the form of opinion to be delivered.
<PAGE>
1
Exhibit B
FORM OF OPINION OF
JONATHON K. HEFFRON
GENERAL COUNSEL OF THE COMPANY,
TO BE DELIVERED PURSUANT TO SECTION 7(c)
(i) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware.
(ii) The Company has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the Final
Prospectus, and to enter into and perform its obligations under the Underwriting
Agreement. The activities of each of the Company's subsidiaries are permitted to
subsidiaries of a savings and loan company.
(iii) The Bank is the only "significant subsidiary" of the Company (as
such term is defined in Rule 1-02 of Regulation S-X). The only subsidiaries of
the Company other than the Bank are the wholly-owned subsidiaries of the Bank
listed on Schedule 1 to the Underwriting Agreement, which, considered in the
aggregate as a single subsidiary, do not constitute a "significant subsidiary"
as defined in Rule 1-02 of Regulation S-X. The activities of all of the Bank's
subsidiaries are permitted to subsidiaries of a federally chartered savings
bank, the deposits of which are insured by the SAIF, which is administered by
the FDIC.
(iv) The Bank is a federally chartered stock savings bank, duly
incorporated and validly existing under the laws of the United States, and the
Bank's charter is in full force and effect. The Bank is a member of the Federal
Home Loan Bank of Dallas and has been duly issued a certificate stating that its
savings accounts are insured by the FDIC in accordance with applicable law, and
no proceedings for the termination or revocation of such membership or insurance
are pending or, to the best of my knowledge, threatened.
(v) The Bank has corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the Final Prospectus.
(vi) Each subsidiary of the Bank has been duly organized and is validly
existing as a corporation in good standing under the laws of the jurisdiction of
its incorporation and has the power and authority to own, lease and operate its
properties and to conduct its business as described in the Final Prospectus. The
activities described in the Final Prospectus of each of the Bank's subsidiaries
are permitted activities of subsidiaries of a federally chartered savings bank,
the deposits of which are insured by the SAIF, which is administered by the
FDIC.
(vii) The Company, the Bank and each subsidiary of the Company or the Bank
is duly qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the conduct of business,
except where the failure so to qualify or to be in good standing would not
result in a Material Adverse Effect.
<PAGE>
2
(viii) All of the issued and outstanding capital stock of the Bank and
each subsidiary of the Bank has been duly authorized and validly issued, is
fully paid and non-assessable and, except as otherwise disclosed in the
Registration Statement, is owned by the Company, directly or through
subsidiaries, to the best of my knowledge, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity; none of the
outstanding shares of capital stock of any subsidiary was issued in violation of
the preemptive or similar rights of any securityholder of such subsidiary.
(ix) The Company has an authorized capitalization as set forth in the
Final Prospectus; the shares of issued and outstanding capital stock of the
Company, including the shares of Stock to be purchased by the Underwriter from
the Company, have been duly authorized and validly issued and are fully paid and
non-assessable; and none of the outstanding shares of capital stock of the
Company, including the shares of Stock to be purchased by the Underwriter from
the Company, was issued in violation of any preemptive or other similar rights
of any securityholder of the Company.
(x) The documents incorporated by reference in the Final Prospectus and
any further amendment or supplement to any such incorporated document made by
the Company prior to the Closing Date (other than the financial statements and
related schedules contained therein, as to which such counsel need express no
opinion), when they became effective or were filed with the Commission, as the
case may be, complied as to form in all material respects with the requirements
of the Securities Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder.
(xi) The sale of the Stock to the Underwriter by the Company is not
subject to the preemptive or other similar rights of any securityholder of the
Company. The Stock conforms to all statements relating thereto contained in the
Final Prospectus and such description conforms to the rights set forth in the
instruments defining the same.
(xii) There is not pending or, to my knowledge, threatened any action,
suit, proceeding, inquiry or investigation, to which the Company or the Bank or
any of their respective subsidiaries is a party, or to which the property of the
Company or the Bank or any of their respective subsidiaries is subject, before
or brought by any court or governmental agency or body, domestic or foreign,
which might reasonably be expected to result in a Material Adverse Effect, or
which might reasonably be expected to materially and adversely affect the
properties or assets thereof or the consummation of the transactions
contemplated in the Underwriting Agreement or the performance by the Company of
its obligations thereunder. The aggregate of all pending legal or governmental
proceedings to which the Company, the Bank, or any of their respective
subsidiaries is known by me to be a party or of which any of their respective
property or assets is the subject which are not described in the Registration
Statement, including ordinary routine litigation incidental to the business,
could not reasonably be expected to result in a Material Adverse Effect. To the
best of my knowledge, neither the Company nor any of its subsidiaries is a party
to any written agreement or memorandum of understanding with, or commitment
letter or similar undertaking to, or subject to any order or directive issued
by, or a recipient of any
<PAGE>
3
extraordinary supervisory letter from, or has adopted any board resolutions at
the request of, any federal or state government agency or authority with
responsibility for the supervision or regulation of depository institutions or
their holding companies or the insurance of deposits, which in any such case
materially restricts the conduct of its business or in any manner relates to its
capital adequacy, its credit policies or its management, nor has the Company or
any of its subsidiaries been advised by any such regulatory authority that it is
contemplating issuing or requesting any such order, decree, written agreement,
memorandum of understanding, extraordinary supervisory letter, commitment letter
or similar undertakings or board resolutions. No labor dispute with the
employees of the Company or any subsidiary exists or, to the knowledge of the
Company, is imminent, and the Company is not aware of any existing or imminent
labor disturbance by the employees of any of its or any subsidiary's principal
suppliers, manufacturers, customers or contractors, which, in either case, may
reasonably be expected to result in a Material Adverse Effect.
(xiii) To the best of my knowledge, there are no statutes or regulations
that are required to be described in the Final Prospectus that are not described
as required.
(xiv) All descriptions in the Registration Statement of contracts and
other documents to which the Company or its subsidiaries are a party are
accurate in all material respects; to the best of my knowledge, there are no
franchises, contracts, indentures, mortgages, loan agreements, notes, leases or
other instruments required to be described or referred to in the Registration
Statement or to be filed as exhibits thereto other than those described or
referred to therein or filed or incorporated by reference as exhibits thereto,
and the descriptions thereof or references thereto are correct in all material
respects.
(xv) Neither the Company, the Bank nor any of their respective
subsidiaries is in violation of its charter or by-laws and no default by the
Company, the Bank or any of their respective subsidiaries exists in the due
performance or observance of any material obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan agreement, note,
lease or other agreement or instrument that is described or referred to in the
Registration Statement or the Final Prospectus or filed as an exhibit to the
Registration Statement.
(xvi) The execution, delivery and performance of the Underwriting
Agreement by the Company, and the consummation of the transactions contemplated
thereby and compliance by the Company with its obligations under the
Underwriting Agreement has been duly authorized by all necessary corporate
action and do not and will not, whether with or without the giving of notice or
lapse of time or both, conflict with or constitute a breach of, or default or
Repayment Event (as defined in Section l(k) of the Underwriting Agreement) under
or result in the creation or imposition of any lien, charge or encumbrance upon
any property or assets of the Company or any subsidiary pursuant to any
contract, indenture, mortgage, deed of trust, loan or credit agreement, note,
lease or any other agreement or instrument, known to me, to which the Company or
any subsidiary is a party or by which it or any of them may be bound, or to
which any of the property or assets of the Company, the Bank or any of their
respective subsidiaries is subject (except for such conflicts, breaches or
defaults or liens, charges or encumbrances that
<PAGE>
4
would not result in a Material Adverse Effect), nor will such action result in
any violation of the provisions of the charter or by-laws of the Company, the
Bank or any of their respective subsidiaries, or any applicable law, statute,
rule, regulation, judgment, order, writ or decree, known to me, of any
government, governmental instrumentality or court, domestic or foreign, having
jurisdiction over the Company, the Bank, or any of their respective subsidiaries
or any of their respective properties, assets or operations.
(xvii) There are no persons with registration rights or other similar
rights to have any securities registered pursuant to the Registration Statement
or otherwise registered by the Company or the Bank under the Securities Act,
except as described in Registration Statement or as set forth in any agreement
described therein as containing such rights.
(xviii) The Company, the Bank and each of its subsidiaries possess such
Governmental Licenses issued by the appropriate federal, state, local or foreign
regulatory agencies or bodies necessary to conduct the business now operated by
them; the Company, the Bank and each of its subsidiaries are in compliance with
the terms and conditions of all such Governmental Licenses, except where the
failure so to comply would not, singly or in the aggregate, have a Material
Adverse Effect; all of the Governmental Licenses are valid and in full force and
effect, except when the invalidity of such Governmental Licenses or the failure
of such Governmental Licenses to be in full force and effect would not have a
Material Adverse Effect; and neither the Company, the Bank nor any of their
respective subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses which, singly or in
the aggregate, if the subject of an unfavorable decision, ruling or finding,
would result in a Material Adverse Effect.
(xix) The Company, the Bank and each of their respective subsidiaries have
good and marketable title to all real, tangible and intangible property
reflected in the most recent balance sheet included in the Final Prospectus as
owned by the Company, the Bank and its subsidiaries and good title to all other
properties reflected in the most recent balance sheet included in the Final
Prospectus as owned by them, in each case, free and clear of all mortgages,
pledges, liens, security interests, claims, restrictions or encumbrances of any
kind except such as (A) are described in the Final Prospectus or (a) do not,
singly or in the aggregate, materially affect the value of such property and do
not interfere with the use made and proposed to be made of such property by the
Company, the Bank or any of their respective subsidiaries; or, with respect to
any such real property, render title unmarketable as to a material part thereof
and all of the leases and subleases material to the business of the Company, the
Bank and of their respective subsidiaries, considered as one enterprise, and
under which the Company, the Bank or any of their respective subsidiaries holds
properties described in the Final Prospectus, are in full force and effect, and
neither the Company, the Bank nor any of their respective subsidiaries has any
notice of any material claim of any sort that has been asserted by anyone
adverse to the rights of the Company, the bank any of their respective
subsidiaries under any of the leases or subleases mentioned above, or affecting
or questioning the rights of the Company, the Bank or such subsidiary to the
continued possession of the leased or subleased premises under any such lease or
sublease.
<PAGE>
5
(xx) Except as described in the Registration Statement or except as would
not, singly or in the aggregate, result in a Material Adverse Effect, (A) the
Company, the Bank and each of their respective subsidiaries is not in violation
of any Environmental Laws, (B) the Company, the Bank and each of their
respective subsidiaries have all permits, authorizations and approvals required
under any applicable Environmental Laws and are each in compliance with their
requirements, (C) there are no pending or, to the knowledge of the Company,
threatened administrative, regulatory or judicial actions, suits, demands,
demand letters, claims, liens, notices of noncompliance or violation,
investigation or proceedings relating to any Environmental Law against the
Company, the Bank or any of their respective subsidiaries and (D) to the
knowledge of the Company there are no events or circumstances that might
reasonably be expected to form the basis of an order for clean-up or
remediation, or an action, suit or proceeding by any private party or
governmental body or agency, against or affecting the Company, the sank or any
of their respective subsidiaries relating to Hazardous Materials or any
Environmental Laws.
(xxi) In the event the Company shall become either directly or indirectly
a bank holding company for purposes of the BHC Act and the BHC Rules, the
current activities of the Company and its subsidiaries (as defined in the BHC
Rules) would be activities permissible for a bank holding company under the BHC
Act and the BHC Rules.
(xxii) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency, domestic or foreign including, without limitation, the OTS
and FDIC is necessary or required by federal banking laws and regulations for
the performance by the Company of its obligations under the Underwriting
Agreement in connection with the offering or sale of the Stock by the Company
under the Underwriting Agreement or the consummation by the Company of the
transactions contemplated by the Underwriting Agreement.
Nothing has come to my attention that would lead me to believe that the
Registration Statement or any amendment thereto, including the information
included in any prospectus that was omitted from such Registration Statement at
the time it became effective but that is deemed to be part of such Registration
Statement at the time it became effective (except for financial statements and
schedules and other financial data included therein or omitted therefrom, as to
which I make no statement), at the time such Registration Statement or any such
amendment became effective, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or that the Final Prospectus or any
amendment or supplement thereto (except for financial statements and schedules
and other financial data included therein or omitted therefrom, as to which I
make no statement), at the time the Final Prospectus was issued, at the time any
such amended or supplemented Final Prospectus was issued or at either Delivery
Date, included or includes an untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
<PAGE>
6
In rendering such opinion, such counsel may rely as to matters of fact
(but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company and public officials. Such
opinion shall not state that it is to be governed or qualified by, or that it is
otherwise subject to, any treatise, written policy or other document relating to
legal opinions, including, without limitation, the Legal Opinion Accord of the
ABA Section of Business Law (1991). All terms used but not defined in this
exhibit should have the meanings ascribed to them in the Underwriting Agreement
and should be defined accordingly in the form of opinion to be delivered.
Exhibit 4.1
CERTIFICATE OF DESIGNATIONS
OF
SERIES A PREFERRED STOCK
OF
BANK UNITED CORP.
------------------------------------
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
------------------------------------
BANK UNITED CORP., a corporation organized and existing under the laws
of the State of Delaware (the "Corporation"), HEREBY CERTIFIES that the
following resolutions were duly adopted by the Board of Directors of the
Corporation on August 5, 1999, pursuant to authority conferred upon the Board of
Directors by the provisions of the Restated Certificate of Incorporation of the
Corporation which authorize the issuance of up to 10,000,000 shares of preferred
stock of $0.01 par value per share (the "Preferred Stock"):
RESOLVED that, pursuant to resolutions of the Board of
Directors of Bank United Corp. (the "Corporation") adopted on August 5, 1999,
the issue of 1,200,000 shares of Series A Preferred Stock, $50 liquidation
preference per share ($0.01 par value), is hereby authorized and the
designation, preferences and privileges, voting rights, relative, participating,
optional and other special rights, and qualifications, limitations and
restrictions of all 1,200,000 shares of this Series, in addition to those set
forth in the Restated Certificate of Incorporation of the Corporation, are
hereby fixed as follows:
1. Designation. The designation of this Series shall be Series A
Preferred Stock (hereinafter referred to as this "Series"), and the number of
shares constituting this Series shall be 1,200,000. Shares of this Series shall
have a liquidation preference of $50. The number of authorized shares of this
Series may be reduced (but not below the number then issued and outstanding) by
further resolution duly adopted by the Board of Directors of the Corporation or
by any duly authorized committee of the Board of Directors (collectively, the
"Board of Directors") and by the filing of a certificate pursuant to the
provisions of the General Corporation Law of the State of Delaware stating that
such reduction has been so authorized, but the number of authorized shares of
this Series shall not be increased.
2. Dividends. (a) The holders of shares of this Series shall be
entitled to receive cash dividends, when, as and if declared by the Board of
Directors, out of funds legally available for
<PAGE>
2
that purpose, at the rates set forth below in this Section 2. Dividends on the
shares of this Series shall be payable, when, as and if declared by the Board of
Directors, quarterly in arrears on February 15, May 15, August 15 and November
15 of each year (each, a "Dividend Payment Date"), commencing on November 15,
1999, or if such date is not a Business Day (as defined below), the next
succeeding Business Day. Each such dividend shall be paid to the holders of
record of shares of this Series as they appear on the stock register of the
Corporation on the applicable Record Date, as shall be fixed by the Board of
Directors; provided, however, that holders of shares of this Series called for
redemption on a Redemption Date falling between the record date associated with
a Dividend Payment Date and such Dividend Payment Date shall receive the
applicable dividend payment, together with all other accumulated and unpaid
dividends on such date as shall be fixed for redemption. Dividends on the shares
of this Series shall accumulate and be cumulative from the date of original
issuance. "Business Day" shall mean any day other than a Saturday or Sunday or a
day on which banking institutions in New York City are authorized or required by
law or executive order to remain closed.
(b) Dividends payable on the shares of this Series for the period from
August 10, 1999 through and including November 14, 1999 (the "Initial Dividend
Period") shall be $1.017 per share. For each quarterly dividend period after the
Initial Dividend Period (each such quarterly dividend period and the Initial
Dividend Period being hereinafter referred to individually as a "Dividend
Period") through and including the Dividend Period ending February 15, 2000,
dividends payable on the shares of this Series shall be payable at a rate per
annum of the liquidation preference thereof equal to 7.55%. For each Dividend
Period beginning on or after February 15, 2000, dividends payable on the shares
of this Series shall be payable at a rate per annum of the liquidation
preference thereof equal to 8.55%. The amount of dividends per share for each
Dividend Period shall be computed by dividing the applicable rate for such
Dividend Period by four and applying the resulting rate to the liquidation
preference per share of this Series. Each Dividend Period (other than the
Initial Dividend Period) shall commence on a Dividend Payment Date and shall end
on and include the day next preceding the next Dividend Payment Date.
(c) Dividends payable on this Series for any period greater or less
than a full Dividend Period, other than the Initial Dividend Period, shall be
computed on the basis of a 360-day year consisting of twelve 30-day months and,
for any period less than one month, the actual number of days elapsed in the
period.
(d) No full dividends shall be declared or paid or set apart for
payment on the Preferred Stock of any series ranking, as to dividends, on a
parity with or junior to this Series for any period unless full cumulative
dividends on the shares of this Series for all full Dividend Periods ending on
or prior to the date of such dividends on such other series of Preferred Stock
have been or contemporaneously are declared and paid or declared and a sum
sufficient for the payment thereof set apart for such payment. When dividends
are not paid in full, as aforesaid, upon the shares of this Series and any other
series of Preferred Stock ranking on a parity as to dividends with this Series,
all dividends declared upon shares of this Series and any other series of
Preferred Stock ranking on a parity as to dividends with this Series shall be
declared pro rata
<PAGE>
3
so that the amount of dividends declared per share on this Series and such other
Preferred Stock shall in all cases bear to each other the same ratio that
accrued and unpaid dividends per share on the shares of this Series and such
other Preferred Stock bear to each other. No interest, or sum of money in lieu
of interest, shall be payable in respect of any dividend payment or payments on
this Series which may be in arrears.
(e) So long as any shares of this Series are outstanding, no dividend
(other than a dividend in Common Stock or in any other stock ranking junior to
this Series as to dividends and upon liquidation and other than as provided in
paragraph (d) of this Section 2) shall be declared or paid or set aside for
payment or other distribution declared or made upon the Common Stock or upon any
other stock ranking junior to or on a parity with this Series as to dividends or
upon liquidation, nor shall any Common Stock or any other stock of the
Corporation ranking junior to or on a parity with this Series as to dividends or
upon liquidation be redeemed, purchased or otherwise acquired for any
consideration (or any moneys be paid to or made available for a sinking fund for
the redemption of any shares of any such stock) by the Corporation (except by
conversion into or exchange for stock of the Corporation ranking junior to this
Series as to dividends and upon liquidation), unless, in each case, full
cumulative dividends on all outstanding shares of this Series for all full
Dividend Periods ending on or prior to the date of such other dividend,
distribution, redemption, purchase or other acquisition, shall have been or
contemporaneously are paid or declared and a sum sufficient for the payment
thereof set aside for such payment.
(f) If any dividends payable on this Series with respect to any fiscal
year of the Corporation are not eligible for the dividends-received deduction
set forth in Section 243(a)(1) of the Internal Revenue Code of 1986, as amended
(the "Code") (or any successor provision), solely because this Series is treated
as indebtedness pursuant to a final determination within the meaning of Section
1313(a) of the Code to which the Corporation or any U.S. corporate holder is a
party ("Applicable Distribution(s)"), the Corporation shall, within 45 days
after the receipt by the Corporation of such determination, provide notice
thereof to the transfer agent. The transfer agent shall mail a copy of such
notice to each Qualified Investor (as defined below) at the address specified in
the records of the transfer agent as promptly as practicable after its receipt
of such notice from the Corporation, together with instructions for furnishing
the certifications referred to below to the transfer agent. The Corporation
shall, within fifteen days after such notice is given to the transfer agent, pay
to the transfer agent an amount equal to the aggregate Additional Amounts (as
defined below) with respect to all Applicable Distributions during such fiscal
year. Upon receipt of such aggregate Additional Amounts and receipt of an
affidavit from each Qualified Investor, on a form provided by Bank United,
certifying that (i) the Qualified Investor is a domestic taxable corporation and
(ii) if the preferred stock had been treated as debt for U.S. income tax
purposes, the dividends-received deduction with respect to each Applicable
Distribution would have been allowed and available to the Qualified Investor, in
light of its particular facts and circumstances, under all relevant Sections of
the Internal Revenue Code, including, without limitation, Section 246(c),
Section 246A and Section 1059, the transfer agent shall distribute to each such
Qualified Investor the Additional Amount to which such Qualified Investor is
entitled with respect to each Applicable Distribution received by such Qualified
<PAGE>
4
Investor during such fiscal year. Any portion of the aggregate Additional
Amounts not distributed by the transfer agent shall be returned to the
Corporation within 90 days of the transfer agent's receipt of those amounts.
"Qualified Investor" means a U.S. corporate holder of record
during any fiscal year which was entitled to receive an Applicable Distribution
during such fiscal year.
"Additional Amount(s)" means payment with respect to any
Applicable Distribution of an amount which, when taken together with such
Applicable Distribution, would cause the net yield in dollars (after federal
income tax consequences) from the aggregate of both the Applicable Distributions
and the Additional Amount, to be equal to the net yield in dollars (after
federal income tax consequences) that would have been realized if the amount of
the aggregate Applicable Distributions not treated as a dividend instead had
been treated as a dividend, giving effect to the dividends-received deduction,
for federal income tax purposes. Such Additional Amount shall be calculated with
consideration being given to the time value of money, applying the corporate
underpayment rate as defined in Section 6622(a)(2) of the Code as the interest
factor, assuming the Additional Amount is subject to tax as ordinary income, and
using the maximum marginal corporate federal tax rate applicable to ordinary
income.
The foregoing provisions shall apply to the Initial Dividend
Period and each subsequent Dividend Period.
3. Redemption. (a) Optional Redemption. The shares of this Series are
not redeemable prior to February 15, 2000. The Corporation, at its option, may
redeem shares of this Series, as a whole or in part, at any time or from time to
time, on or after February 15, 2000 at a redemption price of $50 per share plus
accrued and unpaid cumulative dividends thereon (whether or not declared) to the
date fixed for redemption.
(b) Mandatory Redemption. The Corporation shall redeem, from any source
of funds legally available therefor, all issued and outstanding shares of this
Series, in whole and not in part, on August 15, 2004, at a redemption price of
$50 per share plus accrued and unpaid cumulative dividends thereon (whether or
not declared) to the date fixed for redemption.
(c) Redemption Procedures.
(i) In the event that, pursuant to paragraph (a) above, fewer
than all the outstanding shares of this Series are to be redeemed, the
number of shares to be redeemed shall be determined by the Board of
Directors and the shares to be redeemed shall be determined by lot or
pro rata as may be determined by the Board of Directors or by any other
method as may be determined by the Board of Directors in its sole
discretion to be equitable, provided that such method satisfies any
applicable requirements of any securities exchange on which this Series
is listed.
<PAGE>
5
(ii) In the event the Corporation shall redeem shares of this
Series, notice of such redemption shall be given by first class mail,
postage prepaid, mailed not less than 30 or more than 60 days prior to
the redemption date, to each holder of record of the shares to be
redeemed, at such holder's address as the same appears on the stock
register of the Corporation. Each such notice shall state: (i) the
redemption date; (ii) the number of shares of this Series to be
redeemed and, if fewer than all the shares held by such holder are to
be redeemed, the number of such shares to be redeemed from such holder;
(iii) the redemption price; (iv) the place or places where certificates
for such shares are to be surrendered for payment of the redemption
price; and (v) that dividends on the shares to be redeemed shall cease
to accrue on the redemption date.
(iii) Notice having been mailed as aforesaid, from and after
the redemption date (unless default shall be made by the Corporation in
providing money for the payment of the redemption price) dividends on
the shares of this Series so called for redemption shall cease to
accrue, and said shares shall no longer be deemed to be outstanding,
and all rights of the holders thereof as stockholders of the
Corporation (except the right to receive from the Corporation the
redemption price) shall cease. Upon surrender in accordance with said
notice of the certificates for any shares so redeemed (properly
endorsed or assigned for transfer, if the Board of Directors shall so
require and the notice shall so state), such shares shall be redeemed
by the Corporation at the redemption price aforesaid. In case fewer
than all the shares represented by any such certificate are redeemed, a
new certificate shall be issued representing the unredeemed shares
without cost to the holder thereof.
(iv) Any shares of this Series which shall at any time have
been redeemed shall, after such redemption, have the status of
authorized but unissued shares of Preferred Stock, without designation
as to series until such shares are once more designated as part of a
particular series by the Board of Directors.
(v) Notwithstanding the foregoing provisions of this Section
3, if full cumulative dividends on all outstanding shares of this
Series are in arrears, no shares of this Series shall be redeemed
unless all outstanding shares of this Series are simultaneously
redeemed, and the Corporation shall not purchase or otherwise acquire
any shares of this Series; provided, however, that the foregoing shall
not prevent the purchase or acquisition of shares of this Series
pursuant to a purchase or exchange offer made on the same terms to
holders of all outstanding shares of this Series.
4. Conversion. The holders of shares of this Series shall not have any
rights to convert such shares into shares of any other class or series of
capital stock of the Corporation.
5. Liquidation Rights. (a) Upon the voluntary or involuntary
dissolution, liquidation or winding up of the Corporation, the holders of the
shares of this Series shall be entitled to receive and to be paid out of the
assets of the Corporation available for distribution to its stockholders, before
any payment or distribution shall be made on the Common Stock or on
<PAGE>
6
any other class of stock ranking junior to this Series upon liquidation, the
amount of $50 per share, plus accrued and unpaid cumulative dividends (whether
or not declared) to the date of the liquidating distribution.
(b) After the payment to the holders of the shares of this Series of
the full preferential amounts provided for in this Section 5, the holders of
this Series as such shall have no right or claim to any of the remaining assets
of the Corporation.
(c) If, upon any voluntary or involuntary dissolution, liquidation, or
winding up of the Corporation, the amounts payable with respect to the shares of
this Series and any other shares of stock of the Corporation ranking as to any
such distribution on a parity with the shares of this Series are not paid in
full, the holders of the shares of this Series and of such other shares shall
share ratably in any such distribution of assets of the Corporation in
proportion to the full respective distributions to which they are entitled.
(d) Neither the sale of all or substantially all the property or
business of the Corporation, nor the merger or consolidation of the Corporation
into or with any other corporation or the merger or consolidation of any other
corporation into or with the Corporation, shall be deemed to be a dissolution,
liquidation or winding up, voluntary or involuntary, for the purposes of this
Section 5.
6. Ranking. For purposes of this resolution, any stock of any class or
classes of the Corporation shall be deemed to rank:
(a) prior to the shares of this Series, either as to dividends or upon
liquidation, if the holders of such class or classes shall be entitled to the
receipt of dividends or of amounts distributable upon dissolution, liquidation
or winding up of the Corporation, as the case may be, in preference or priority
to the holders of shares of this Series;
(b) on a parity with shares of this Series, either as to dividends or
upon liquidation, whether or not the dividend rates, dividend payment dates or
redemption or liquidation prices per share or sinking fund provisions, if any,
be different from those of this Series (and whether or not such dividends shall
accumulate), if the holders of such stock shall be entitled to the receipt of
dividends or of amounts distributable upon dissolution, liquidation or winding
up of the Corporation, as the case may be, without preference or priority, one
over the other, as between the holders of such stock and the holders of shares
of this Series; and
(c) junior to shares of this Series, either as to dividends or upon
liquidation, if such class shall be Common Stock or if the holders of shares of
this Series shall be entitled to receipt of dividends or of amounts
distributable upon dissolution, liquidation or winding up of the Corporation, as
the case may be, in preference or priority to the holders of shares of such
class or classes.
(d) The shares of Series B Preferred Stock of the Corporation shall
rank on a parity with the shares of this Series.
<PAGE>
7
7. Voting Rights. The holders of the shares of this Series shall have
the following voting rights:
(a) Each share of this Series will have the right to vote, with each
share of this Series having 0.10 vote, in connection with matters submitted
generally to the holders of the common stock and other capital stock of the
Corporation entitled to vote in respect of matters submitted to the stockholders
of the Corporation generally. For these purposes, the holders of the shares of
this Series and the holders of the common stock and such other capital stock of
the Corporation, so entitled to vote, shall vote as a single class.
(b) Unless the vote or consent of the holders of a greater number of
shares shall then be required by law, the approval of the holders of at least
two-thirds of the then-outstanding shares of this Series, given in person or by
proxy, either in writing or by a vote at a meeting called for the purpose at
which the holders of shares of this Series shall vote together as a separate
class, shall be required for authorizing, effecting or validating any amendment,
alteration or repeal, whether by merger, consolidation or otherwise, of any of
the provisions of the Restated Certificate of Incorporation of the Corporation
or of any certificate amendatory thereof or supplemental thereto (including any
Certificate of Designations or any similar document relating to any series of
Preferred Stock) that adversely affect the powers, preferences, privileges or
rights of this Series; provided, however, that the creation and issuance of any
other class or series of Preferred Stock, or any increase in the number of
authorized shares of any Preferred Stock of any other class or series, in each
case ranking on a parity with or junior to this Series with respect to the
payment of dividends and the distribution of assets upon liquidation,
dissolution or winding up of the affairs of the Corporation shall not be deemed
to adversely affect such powers, preferences or other special rights.
(c) Unless the vote or consent of the holders of a greater number of
shares shall then be required by law, the approval of the holders of at least
two-thirds of all of the then-outstanding shares of this Series and all other
series of preferred stock ranking on a parity with shares of this Series, either
as to dividends or upon liquidation, given in person or by proxy, either in
writing or by a vote at a meeting called for the purpose at which the holders of
shares of this Series and such other series of Preferred Stock shall vote
together as a single class without regard to series, shall be necessary for
authorizing, effecting or validating (i) the creation, authorization or issuance
of, (ii) the reclassification of any authorized stock of the Corporation into,
or (iii) the creation, authorization or issuance of any obligation or security
convertible into or evidencing the right to purchase, any additional class or
series of stock ranking prior to this Series, either as to dividends or upon
liquidation.
(d) (i) If at any time dividends on this Series shall be in arrears in
an amount equal to six quarterly dividends thereon, the occurrence of such
contingency shall mark the beginning of a period (herein called a "default
period") which shall extend until such time as all accrued and unpaid dividends
for all previous dividend periods and for the current dividend period on all
shares of this Series then outstanding shall have been declared and paid or set
apart for payment.
<PAGE>
8
During each default period, the holders of shares of this Series and other
shares of Preferred Stock on which dividends are in arrears and as to which
similar voting rights have been conferred, voting as a class, irrespective of
series, shall have the right to elect two Directors to the Board of Directors of
the Corporation.
(ii) During any default period, such voting right of the
holders of this Series may be exercised by written consent, at a
special meeting called pursuant to Section 7(d)(iii) hereof or at any
annual meeting of stockholders. The absence of a quorum of the holders
of Common Stock at any such special or annual meeting shall not affect
the exercise by the holders of Preferred Stock of such voting right. At
any meeting at which the holders of Preferred Stock shall exercise such
voting right initially during an existing default period, they shall
have the right, voting as a class, to elect Directors to fill such
vacancies, if any, in the Board of Directors as may then exist up to
two Directors or, if such right is exercised at an annual meeting, to
elect two Directors. If the number which may be so elected at any
special meeting does not amount to the required number, the holders of
Preferred Stock shall have the right to make such increase in the
number of Directors as shall be necessary to permit the election by
them of the required number. After the holders of the Preferred Stock
shall have exercised their right to elect Directors in any default
period and during the continuance of such period, the number of
Directors shall not be increased or decreased except by vote of the
holders of Preferred Stock as herein provided. Any Director elected by
a vote of the holders of Preferred Stock may be removed from office,
with or without cause, only by the affirmative vote of the requisite
percentage of holders of Preferred Stock required to elect Directors as
specified in this Section 7(d).
(iii) Unless the holders of Preferred Stock, during an
existing default period, shall have previously exercised their right to
elect Directors, the Board of Directors may order, or any shareholder
or shareholders owning in the aggregate not less than ten percent (10%)
of the total number of shares of Preferred Stock outstanding,
irrespective of series, on which dividends are in arrears and as to
which similar voting rights have been conferred, may request, the
calling of a special meeting of the holders of Preferred Stock, which
meeting shall thereupon be called by the Chairman, a Vice Chairman or
the Secretary of the Corporation. Notice of such meeting and of any
annual meeting at which holders of Preferred Stock are entitled to vote
pursuant to this Section 7(d)(iii) shall be given to each holder of
record of Preferred Stock entitled to vote thereat by mailing a copy of
such notice to him at his last address as the same appears on the books
of the Corporation on such record date, not more than 45 days prior to
the date of such notice, as the Board of Directors may fix for this
purpose. Such meeting shall be called for a time not earlier than 10
days and not later than 60 days after such order or request or, in
default of the calling of such meeting within 60 days after such order
or request, such meeting may be called on similar notice by any
shareholder or shareholders owning in the aggregate not less than 10%
of the total number of shares of Preferred Stock outstanding,
irrespective of series, entitled to vote thereat.
<PAGE>
9
(iv) In any default period the holders of Common Stock, and
other classes of stock of the Corporation if applicable, shall continue
to be entitled to elect the whole number of Directors constituting the
Board of Directors until the holders of Preferred Stock, voting as a
class, shall have exercised their right to elect two Directors, after
the exercise of which right (A) the Directors so elected by the holders
of Preferred Stock shall continue in office until their successors
shall have been elected by such holders or until the expiration of the
default period, and (B) any vacancy on the Board of Directors may
(except as provided in Section 7(d)(ii) hereof) be filled by vote of a
majority of the remaining Directors theretofore elected by the holders
of the class of stock which elected the Director whose office shall
have become vacant. References in this Section 7(d) to Directors
elected by the holders of a particular class of stock shall include
Directors elected by such Directors to fill vacancies as provided in
clause (B) of the foregoing sentence.
(v) Immediately upon the expiration of a default period, (A)
the right of the holders of Preferred Stock as a class to elect
Directors shall cease, (B) the term of any Directors elected by the
holders of Preferred Stock as a class shall terminate, and (C) the
number of Directors shall be such number as may be provided for in the
Restated Certificate of Incorporation or Bylaws of the Corporation or
by resolution of the Board of Directors, irrespective of any increase
made pursuant to the provisions of Section 7(d)(ii) hereof (such number
being subject, however, to change thereafter in any manner provided by
law or in the Restated Certificate of Incorporation or Bylaws of the
Corporation). Any vacancies on the Board of Directors effected by the
provisions of clauses (B) and (C) in the preceding sentence may be
filled by a majority of the remaining Directors.
(e) Except as set forth herein or required by applicable law, holders
of shares of this Series shall have no voting rights and their consent shall not
be required for taking any corporate action.
[Signature appears on subsequent page.]
<PAGE>
10
IN WITNESS WHEREOF, Bank United Corp. has caused its corporate
seal to be hereunto affixed and this Certificate to be signed by its Corporate
Secretary, Randolph C. Henson, this 9th day of August, 1999.
BANK UNITED CORP.
By: /s/ Randolph C. Henson
-----------------------
Randolph C. Henson
Corporate Secretary
EXHIBIT 4.2
CERTIFICATE OF DESIGNATIONS
OF
SERIES B PREFERRED STOCK
OF
BANK UNITED CORP.
------------------------------------
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
------------------------------------
BANK UNITED CORP., a corporation organized and existing under the laws
of the State of Delaware (the "Corporation"), HEREBY CERTIFIES that the
following resolutions were duly adopted by the Board of Directors of the
Corporation on August 5, 1999, pursuant to authority conferred upon the Board of
Directors by the provisions of the Restated Certificate of Incorporation of the
Corporation which authorize the issuance of up to 10,000,000 shares of preferred
stock of $0.01 par value per share (the "Preferred Stock"):
RESOLVED that, pursuant to resolutions of the Board of
Directors of Bank United Corp. (the "Corporation") adopted on August 5, 1999,
the issue of 2,300,000 shares of Series B Preferred Stock, $50 liquidation
preference per share ($0.01 par value), is hereby authorized and the
designation, preferences and privileges, voting rights, relative, participating,
optional and other special rights, and qualifications, limitations and
restrictions of all 2,300,000 shares of such Series, in addition to those set
forth in the Restated Certificate of Incorporation of the Corporation, are
hereby fixed as follows:
1. Designation. The designation of this Series shall be Series B
Preferred Stock (hereinafter referred to as this "Series"), and the number of
shares constituting this Series shall be 2,300,000. Shares of this Series shall
have a liquidation preference of $50. The number of authorized shares of this
Series may be reduced (but not below the number then issued and outstanding) by
further resolution duly adopted by the Board of Directors of the Corporation or
by any duly authorized committee of the Board of Directors (collectively, the
"Board of Directors") and by the filing of a certificate pursuant to the
provisions of the General Corporation Law of the State of Delaware stating that
such reduction has been so authorized, but the number of authorized shares of
this Series shall not be increased.
2. Dividends. (a) The holders of shares of this Series shall be
entitled to receive cash dividends, when, as and if declared by the Board of
Directors, out of funds legally available for that purpose, at the rates set
forth below in this Section 2. Dividends on the shares of this Series
<PAGE>
2
shall be payable, when, as and if declared by the Board of Directors, quarterly
in arrears on February 16, May 16, August 16 and November 16 of each year (each,
a "Dividend Payment Date"), commencing on November 16, 1999, or if such date is
not a Business Day (as defined below), the next succeeding Business Day. Each
such dividend shall be paid to the holders of record of shares of this Series as
they appear on the stock register of the Corporation on the applicable Record
Date, as shall be fixed by the Board of Directors; provided, however, that
holders of shares of this Series called for redemption on a Redemption Date
falling between the record date associated with a Dividend Payment Date and such
Dividend Payment Date shall receive the applicable dividend payment, together
with all other accumulated and unpaid dividends on such date as shall be fixed
for redemption. Dividends on the shares of this Series shall accumulate and be
cumulative from the date of original issuance. "Business Day" shall mean any day
other than a Saturday or Sunday or a day on which banking institutions in New
York City are authorized or required by law or executive order to remain closed.
(b) For each quarterly dividend period (each, a "Dividend Period") from
August 10, 1999 through and including the Dividend Period ending August 16,
2002, dividends payable on the shares of this Series shall be payable at a rate
per annum of the liquidation preference thereof equal to 7.25% (the "Initial
Rate Period"). For each Dividend Period after the Initial Rate Period, dividends
payable on the shares of this Series shall be payable at a rate per annum of the
liquidation preference thereof equal to the Reset Rate (as defined below). The
amount of dividends per share for each Dividend Period shall be computed by
dividing the applicable rate for such Dividend Period by four and applying the
resulting rate to the liquidation preference per share of this Series. Each
Dividend Period (other than the Initial Dividend Period) shall commence on a
Dividend Payment Date and shall end on and include the day next preceding the
next Dividend Payment Date.
(c) Dividends payable on this Series for any period greater or less
than a full Dividend Period, other than the Initial Dividend Period, shall be
computed on the basis of a 360-day year consisting of twelve 30-day months and,
for any period less than one month, the actual number of days elapsed in the
period.
(d) No full dividends shall be declared or paid or set apart for
payment on the Preferred Stock of any series ranking, as to dividends, on a
parity with or junior to this Series for any period unless full cumulative
dividends on the shares of this Series for all full Dividend Periods ending on
or prior to the date of such dividends on such other series of Preferred Stock
have been or contemporaneously are declared and paid or declared and a sum
sufficient for the payment thereof set apart for such payment. When dividends
are not paid in full, as aforesaid, upon the shares of this Series and any other
series of Preferred Stock ranking on a parity as to dividends with this Series,
all dividends declared upon shares of this Series and any other series of
Preferred Stock ranking on a parity as to dividends with this Series shall be
declared pro rata so that the amount of dividends declared per share on this
Series and such other Preferred Stock shall in all cases bear to each other the
same ratio that accrued and unpaid dividends per share on the shares of this
Series and such other Preferred Stock bear to each other. No interest, or sum of
<PAGE>
3
money in lieu of interest, shall be payable in respect of any dividend payment
or payments on this Series which may be in arrears.
(e) So long as any shares of this Series are outstanding, no dividend
(other than a dividend in Common Stock or in any other stock ranking junior to
this Series as to dividends and upon liquidation and other than as provided in
paragraph (d) of this Section 2) shall be declared or paid or set aside for
payment or other distribution declared or made upon the Common Stock or upon any
other stock ranking junior to or on a parity with this Series as to dividends or
upon liquidation, nor shall any Common Stock or any other stock of the
Corporation ranking junior to or on a parity with this Series as to dividends or
upon liquidation be redeemed, purchased or otherwise acquired for any
consideration (or any moneys be paid to or made available for a sinking fund for
the redemption of any shares of any such stock) by the Corporation (except by
conversion into or exchange for stock of the Corporation ranking junior to this
Series as to dividends and upon liquidation), unless, in each case, full
cumulative dividends on all outstanding shares of this Series for all full
Dividend Periods ending on or prior to the date of such other dividend,
distribution, redemption, purchase or other acquisition, shall have been or
contemporaneously are paid or declared and a sum sufficient for the payment
thereof set aside for such payment.
3. Remarketing. (a) The dividend rate on this Series shall be reset to
the Reset Rate on the Purchase Contract Settlement Date (as defined below). The
Corporation shall request, not later than 15 nor more than 30 calendar days
prior to the Remarketing Date (as defined below), that the Depositary (as
defined below) notify the Holders of shares of this Series and the holders of
Corporate PIES of the Remarketing and of the procedures that must be followed if
a Holder of Corporate PIES wishes to make a cash settlement of its obligation to
purchase Common Stock of the Corporation pursuant to the Purchase Contract
Agreement.
(b) Not later than 5:00 p.m., New York City time, on the
seventh Business Day preceding the Purchase Contract Settlement Date, each
Holder may elect to have the shares of this Series held by such Holder
remarketed in the Remarketing. Holders of Corporate PIES that do not give notice
of their intention to make a cash settlement of the purchase contract component
of their Corporate PIES prior to such time in the manner specified in the
Purchase Contract Agreement, or that give such notice but fail to deliver cash
prior to 11:00 a.m., New York City time, on or prior to the fifth Business Day
preceding the Purchase Contract Settlement Date, shall be deemed to have
consented to the disposition of the shares of this Series that are a component
of their Corporate PIES in the Remarketing. Holders of the shares of this Series
that are not a component of Corporate PIES wishing to have their shares of this
Series remarketed shall give to the Purchase Contract Agent notice of their
election prior to 11:00 a.m., New York City time on such fifth Business Day. Any
such notice shall be irrevocable and may not be conditioned upon the level at
which the Reset Rate is established in the Remarketing. Promptly after 11:00
a.m., New York City time, on such fifth Business Day, the Purchase Contract
Agent, based on the notices received by it prior to such time (including notices
from the Purchase Contract Agent as to purchase contracts for which cash
settlement has been elected and cash received), shall notify the Remarketing
Agent of the number of shares of this Series to be tendered for purchase in the
Remarketing.
<PAGE>
4
(c) If any Holder of shares of this Series does not give a
notice of its intention to make a cash settlement or gives such notice but fails
to deliver cash as described in Section 3(b) above, or gives a notice of
election to have shares of this Series that are not a component of Corporate
PIES remarketed, then the shares of this Series of such Holder shall be deemed
tendered for purchase in the Remarketing, notwithstanding any failure by such
Holder to deliver or properly deliver such shares to the Remarketing Agent for
purchase.
(d) The right of each Holder to have shares of this Series
tendered for purchase shall be limited to the extent that (i) the Remarketing
Agent conducts a remarketing pursuant to the terms of the Remarketing Agreement,
(ii) the shares of this Series tendered have not been called for redemption,
(iii) the Remarketing Agent is able to find a purchaser or purchasers for the
tendered shares of this Series and (iv) such purchaser or purchasers deliver the
purchase price therefor to the Remarketing Agent.
(e) On the Remarketing Date, the Remarketing Agent shall use
commercially reasonable efforts to remarket, at a price equal to 100.50% of the
aggregate liquidation preference thereof, the shares of this Series tendered or
deemed tendered for purchase.
(f) If, as a result of the efforts described in Section 3(e),
the Remarketing Agent determines that it will be able to remarket all of the
shares of this Series tendered or deemed tendered for purchase at a price of
100.50% of the aggregate liquidation preference of such shares prior to 4:00
p.m., New York City time, on the Remarketing Date, the Remarketing Agent shall
determine the Reset Rate, which shall be the rate per annum (rounded to the
nearest one-thousandth (0.001) of one percent per annum) that the Remarketing
Agent determines, in its sole judgment, to be the lowest rate per annum that
will enable it to remarket all of the shares of this Series tendered or deemed
tendered for Remarketing.
(g) If none of the Holders of the shares of this Series or the
holders of the Corporate PIES elects to have shares of this Series remarketed in
the Remarketing, the Reset Rate shall be the rate determined by the Remarketing
Agent, in its sole discretion, as the rate that would have been established had
a Remarketing of all the shares of this Series been held on the Remarketing
Date.
(h) If, by 4:00 p.m., New York City time, on the Remarketing
Date, the Remarketing Agent is unable to remarket all of the Preferred
Securities tendered or deemed tendered for purchase, a "Failed Remarketing"
shall be deemed to have occurred and the Remarketing Agent shall so advise by
telephone the Depositary and the Corporation. In the event of a Failed
Remarketing, the Reset Rate shall equal (1) the "AA" Composite Commercial Paper
Rate (as defined below), plus (2) the Applicable Margin (as defined below).
(i) By approximately 4:30 p.m., New York City time, on the
Remarketing Date, provided that there has not been a Failed Remarketing, the
Remarketing Agent shall advise, by telephone (i) the Depositary and the
Corporation of the Reset Rate determined in the
<PAGE>
5
Remarketing and the number of shares of this Series sold in the Remarketing,
(ii) each purchaser (or the Depositary Participant thereof) of the Reset Rate
and the number of shares of this Series such purchaser is to purchase and (iii)
each purchaser to give instructions to its Depositary Participant to pay the
purchase price on the Purchase Contract Settlement Date in same day funds
against delivery of the shares of this Series purchased through the facilities
of the Depositary.
(j) In accordance with the Depositary's normal procedures, on
the Purchase Contract Settlement Date, the transactions described above with
respect to each Preferred Security tendered for purchase and sold in the
Remarketing shall be executed through the Depositary, and the accounts of the
respective Depositary Participants shall be debited and credited and such shares
of this Series delivered by book-entry as necessary to effect purchases and
sales of such shares of this Series. The Depositary shall make payment in
accordance with its normal procedures.
(k) If any Holder of shares of this Series selling shares of
this Series in the Remarketing fails to deliver such shares, the Depositary
Participant of such selling holder and of any other Person that was to have
purchased shares of this Series in the Remarketing may deliver to any such other
Person a number of shares of this Series that is less than the number of shares
of this Series that otherwise was to be purchased by such Person. In such event,
the number of shares of this Series to be so delivered shall be determined by
such Depositary Participant, and delivery of such lesser number of shares of
this Series shall constitute good delivery.
(l) Under the Remarketing Agreement, the Corporation shall be
liable for, and shall pay, any and all costs and expenses incurred in connection
with the Remarketing.
(m) The tender and settlement procedures set in this Section
3, including provisions for payment by purchasers of the shares of this Series
in the Remarketing, shall be subject to modification to the extent required by
the Depositary or if the book-entry system is no longer available for the shares
of this Series at the time of the Remarketing, to facilitate the tendering and
remarketing of the shares of this Series in certificated form. In addition, the
Remarketing Agent may modify the settlement procedures set forth herein in order
to facilitate the settlement process.
(n) Definitions:
"'AA' Composite Commercial Paper Rate" on any date shall mean (i) the
interest equivalent of the 60-day rate on commercial paper placed on behalf of
issuers whose corporate bonds are rated "AA" by S&P or the equivalent of such
rating by S&P or the equivalent of such rating by S&P or another rating agency,
as made available on a discount basis or otherwise by the Federal Reserve Board
for the business day immediately preceding such date or (ii) if the Federal
Reserve Board does not make available any such rate, then the arithmetic average
of those rates, as quoted on a discount basis or otherwise, by the Commercial
Paper Dealers to the Remarketing Agent for the close of business on the Business
Day next preceding such date. If any Commercial Paper Dealer does not quote a
rate required to determine the "AA" Composite
<PAGE>
6
Commercial Paper Rate, the "AA" Composite Commercial Paper Rate will be
determined on the basis of the quotation or quotations furnished by the
remaining Commercial Paper Dealer or Commercial Paper Dealers and any substitute
commercial paper dealer or substitute commercial paper dealers selected by the
Remarketing Agent or, if the Remarketing Agent does not select any such
substitute commercial paper dealer or substitute commercial paper dealers, by
the remaining Commercial Paper Dealer or Commercial Paper Dealers.
"Applicable Margin" shall mean the spread determined as set forth
below, based on the prevailing rating of the Remarketed shares of this Series in
effect at the close of business on the Business Day immediately preceding the
date of a Failed Remarketing:
Prevailing Rating Spread
AA/"aa" ............................................ 3.00%
A/"a" .............................................. 4.00%
BBB/ "baa" ......................................... 5.00%
Below BBB/ "baa" ................................... 7.00%
For purposes of this definition, the "prevailing rating" of the
Remarketed shares of this Series shall be:
(i) AA/ aa if such shares have a credit rating of AA-
or better by S&P and "aa3" or better by Moody's or the
equivalent of such ratings by such agencies or a substitute
rating agency or substitute rating agencies selected by the
Remarketing Agent;
(ii) if not under clause (i) above, then A/ a if the
Remarketed Securities have a credit rating of A- or better by
S&P and "a3" or better by Moody's or the equivalent of such
ratings by such agencies or a substitute rating agency or
substitute rating agencies selected by the Remarketing Agent;
(iii) if not under clauses (i) or (ii) above, then
BBB/ "baa" if the Remarketed Securities have a credit rating
of BBB- or better by S&P and "baa3" or better by Moody's or
the equivalent of such ratings by such agencies or a
substitute rating agency or substitute rating agencies
selected by the Remarketing Agent; or
(iv) if not under clauses (i) - (iii) above, then
Below BBB/ "baa."
"Certificate" shall mean a Corporate PIES Certificate.
"Commercial Paper Dealers" shall mean Lehman Commercial Paper Inc.,
Goldman, Sachs & Co. and Merrill Lynch, Pierce, Fenner & Smith Incorporated or
their affiliates or successors, if such affiliates or successors are commercial
paper dealers.
<PAGE>
7
"Common Stock" shall mean the Common Stock, par value $0.01 per share,
of the Corporation.
"Corporate PIES" shall mean a stock purchase unit consisting of (A) a
stock purchase contract under which (i) the holder of the unit will purchase
from the Corporation, for $50.00 in cash, a certain number of shares of common
stock of the Corporation and (ii) the Corporation will pay such holder contract
adjustment payments and (B) beneficial ownership of a shares of this Series.
"Corporate PIES Certificate" means a certificate evidencing the rights
and obligations of a Holder in respect of the number of Corporate PIES specified
on such certificate.
"Depositary" shall mean, with respect to shares of this Series issuable
in whole or in part in the form of one or more Global Securities, a clearing
agency registered under the Exchange Act that is designated to act as depositary
for such shares, and initially shall be The Depository Trust Company.
"Depositary Participant" shall mean a member of, or participant in, the
Depositary.
"Exchange Act" shall mean the Securities Exchange Act of 1934 and any
statute successor thereto, in each case as amended from time to time, and the
rules and regulations promulgated thereunder.
"Global Certificate" means a Certificate that evidences all or part of
the shares of this Series and is registered in the name of a clearing agency or
a nominee thereof.
"Global Security" shall mean a global Series B Preferred Stock
Certificate registered in the name of a Depositary or its nominee.
"Holder" shall mean any holder of shares of this Series.
"Moody's" shall mean Moody's Investors Service, Inc.
"Purchase Contract Agent" shall mean the purchase contract agent under
the Purchase Contract Agreement, including successor purchase contract agents.
"Purchase Contract Agreement" shall mean the Purchase Contract
Agreement dated as of August 10, 1999 between the Corporation and The First
National Bank of Chicago, as Purchase Contract Agent.
"Purchase Contract Settlement Date" shall mean August 16, 2002.
<PAGE>
8
"Record Date" for dividends on the shares of this Series on any Payment
Date shall mean, as to any Global Certificate, the Business Day next preceding
such Payment Date, and as to any other Certificate, 15 Business Days prior to
such Payment Date.
"Remarketing Agent" shall mean the remarketing agent selected by the
Corporation, including any successor remarketing agents selected by the
Corporation.
"Remarketing Date" shall mean the third Business Day preceding the
Purchase Contract Settlement Date.
"Reset Rate" shall mean shall mean the distribution rate per annum that
results from the Remarketing pursuant this Section 3.
"S&P" shall mean Standard & Poor's Ratings Services, a division of
McGraw-Hill Corporation.
4. Redemption. (a) Optional Redemption. The shares of this Series are
not redeemable prior to October 16, 2002. The Corporation, at its option, may
redeem shares of this Series, as a whole or in part, at any time or from time to
time, on or after October 16, 2002 at a redemption price of $50 per share plus
accrued and unpaid cumulative dividends thereon (whether or not declared) to the
date fixed for redemption.
(b) Mandatory Redemption. The Corporation shall redeem, from any source
of funds legally available therefor, all issued and outstanding shares of this
Series, in whole and not in part, on August 16, 2004, at a redemption price of
$50 per share plus accrued and unpaid cumulative dividends thereon (whether or
not declared) to the date fixed for redemption.
(c) Redemption Procedures.
(i) In the event that, pursuant to paragraph (a) above, fewer
than all the outstanding shares of this Series are to be redeemed, the
number of shares to be redeemed shall be determined by the Board of
Directors and the shares to be redeemed shall be determined by lot or
pro rata as may be determined by the Board of Directors or by any other
method as may be determined by the Board of Directors in its sole
discretion to be equitable, provided that such method satisfies any
applicable requirements of any securities exchange on which this Series
is listed.
(ii) In the event the Corporation shall redeem shares of this
Series, notice of such redemption shall be given by first class mail,
postage prepaid, mailed not less than 30 or more than 60 days prior to
the redemption date, to each holder of record of the shares to be
redeemed, at such holder's address as the same appears on the stock
register of the Corporation. Each such notice shall state: (i) the
redemption date; (ii) the number of shares of this Series to be
redeemed and, if fewer than all the shares held by such holder are to
be redeemed, the number of such shares to be redeemed from such holder;
(iii) the redemption price; (iv) the place or places where certificates
for such shares are to
<PAGE>
9
be surrendered for payment of the redemption price; and (v) that
dividends on the shares to be redeemed shall cease
to accrue on the redemption date.
(iii) Notice having been mailed as aforesaid, from and after
the redemption date (unless default shall be made by the Corporation in
providing money for the payment of the redemption price) dividends on
the shares of this Series so called for redemption shall cease to
accrue, and said shares shall no longer be deemed to be outstanding,
and all rights of the holders thereof as stockholders of the
Corporation (except the right to receive from the Corporation the
redemption price) shall cease. Upon surrender in accordance with said
notice of the certificates for any shares so redeemed (properly
endorsed or assigned for transfer, if the Board of Directors shall so
require and the notice shall so state), such shares shall be redeemed
by the Corporation at the redemption price aforesaid. In case fewer
than all the shares represented by any such certificate are redeemed, a
new certificate shall be issued representing the unredeemed shares
without cost to the holder thereof.
(iv) Any shares of this Series which shall at any time have
been redeemed shall, after such redemption, have the status of
authorized but unissued shares of Preferred Stock, without designation
as to series until such shares are once more designated as part of a
particular series by the Board of Directors.
(v) Notwithstanding the foregoing provisions of this Section
4, if full cumulative dividends on all outstanding shares of this
Series are in arrears, no shares of this Series shall be redeemed
unless all outstanding shares of this Series are simultaneously
redeemed, and the Corporation shall not purchase or otherwise acquire
any shares of this Series; provided, however, that the foregoing shall
not prevent the purchase or acquisition of shares of this Series
pursuant to a purchase or exchange offer made on the same terms to
holders of all outstanding shares of this Series.
5. Conversion. The holders of shares of this Series shall not have any
rights to convert such shares into shares of any other class or series of
capital stock of the Corporation.
6. Liquidation Rights. (a) Upon the voluntary or involuntary
dissolution, liquidation or winding up of the Corporation, the holders of the
shares of this Series shall be entitled to receive and to be paid out of the
assets of the Corporation available for distribution to its stockholders, before
any payment or distribution shall be made on the Common Stock or on any other
class of stock ranking junior to this Series upon liquidation, the amount of $50
per share, plus accrued and unpaid cumulative dividends (whether or not
declared) to the date of the liquidating distribution.
(b) After the payment to the holders of the shares of this Series of
the full preferential amounts provided for in this Section 6, the holders of
this Series as such shall have no right or claim to any of the remaining assets
of the Corporation.
<PAGE>
10
(c) If, upon any voluntary or involuntary dissolution, liquidation, or
winding up of the Corporation, the amounts payable with respect to the shares of
this Series and any other shares of stock of the Corporation ranking as to any
such distribution on a parity with the shares of this Series are not paid in
full, the holders of the shares of this Series and of such other shares shall
share ratably in any such distribution of assets of the Corporation in
proportion to the full respective distributions to which they are entitled.
(d) Neither the sale of all or substantially all the property or
business of the Corporation, nor the merger or consolidation of the Corporation
into or with any other corporation or the merger or consolidation of any other
corporation into or with the Corporation, shall be deemed to be a dissolution,
liquidation or winding up, voluntary or involuntary, for the purposes of this
Section 6.
7. Ranking. For purposes of this resolution, any stock of
any class or classes of the Corporation shall be deemed to rank:
(a) prior to the shares of this Series, either as to dividends or upon
liquidation, if the holders of such class or classes shall be entitled to the
receipt of dividends or of amounts distributable upon dissolution, liquidation
or winding up of the Corporation, as the case may be, in preference or priority
to the holders of shares of this Series;
(b) on a parity with shares of this Series, either as to dividends or
upon liquidation, whether or not the dividend rates, dividend payment dates or
redemption or liquidation prices per share or sinking fund provisions, if any,
be different from those of this Series (and whether or not such dividends shall
accumulate), if the holders of such stock shall be entitled to the receipt of
dividends or of amounts distributable upon dissolution, liquidation or winding
up of the Corporation, as the case may be, without preference or priority, one
over the other, as between the holders of such stock and the holders of shares
of this Series; and
(c) junior to shares of this Series, either as to dividends or upon
liquidation, if such class shall be Common Stock or if the holders of shares of
this Series shall be entitled to receipt of dividends or of amounts
distributable upon dissolution, liquidation or winding up of the Corporation, as
the case may be, in preference or priority to the holders of shares of such
class or classes.
(d) The shares of Series A Preferred Stock of the Corporation shall
rank on a parity with the shares of this Series.
8. Voting Rights. The holders of the shares of this Series shall have
the following voting rights:
(a) Each share of this Series will have the right to vote, with each
share of this Series having 0.10 vote, in connection with matters submitted
generally to the holders of the common stock and other capital stock of the
Corporation entitled to vote in respect of matters submitted to
<PAGE>
11
the stockholders of the Corporation generally. For these purposes, the holders
of the shares of this Series and the holders of the common stock and such other
capital stock of the Corporation, so entitled to vote, shall vote as a single
class.
(b) Unless the vote or consent of the holders of a greater number of
shares shall then be required by law, the approval of the holders of at least
two-thirds of the then-outstanding shares of this Series, given in person or by
proxy, either in writing or by a vote at a meeting called for the purpose at
which the holders of shares of this Series shall vote together as a separate
class, shall be required for authorizing, effecting or validating any amendment,
alteration or repeal, whether by merger, consolidation or otherwise, of any of
the provisions of the Restated Certificate of Incorporation of the Corporation
or of any certificate amendatory thereof or supplemental thereto (including any
Certificate of Designations or any similar document relating to any series of
Preferred Stock) that adversely affect the powers, preferences, privileges or
rights of this Series; provided, however, that the creation and issuance of any
other class or series of preferred stock, or any increase in the number of
authorized shares of any Preferred Stock of any other class or series, in each
case ranking on a parity with or junior to this Series with respect to the
payment of dividends and the distribution of assets upon liquidation,
dissolution or winding up of the affairs of the Corporation shall not be deemed
to adversely affect such powers, preferences or other special rights.
(c) Unless the vote or consent of the holders of a greater number of
shares shall then be required by law, the approval of the holders of at least
two-thirds of all of the then-outstanding shares of this Series and all other
series of preferred stock ranking on a parity with shares of this Series, either
as to dividends or upon liquidation, given in person or by proxy, either in
writing or by a vote at a meeting called for the purpose at which the holders of
shares of this Series and such other series of Preferred Stock shall vote
together as a single class without regard to series, shall be necessary for
authorizing, effecting or validating (i) the creation, authorization or issuance
of, (ii) the reclassification of any authorized stock of the Corporation into,
or (iii) the creation, authorization or issuance of any obligation or security
convertible into or evidencing the right to purchase, any additional class or
series of stock ranking prior to this Series, either as to dividends or upon
liquidation.
(d) (i) If at any time dividends on this Series shall be in arrears in
an amount equal to six quarterly dividends thereon, the occurrence of such
contingency shall mark the beginning of a period (herein called a "default
period") which shall extend until such time as all accrued and unpaid dividends
for all previous dividend periods and for the current dividend period on all
shares of this Series then outstanding shall have been declared and paid or set
apart for payment. During each default period, the holders of shares of this
Series and other shares of Preferred Stock on which dividends are in arrears and
as to which similar voting rights have been conferred, voting as a class,
irrespective of series, shall have the right to elect two Directors to the Board
of Directors of the Corporation.
(ii) During any default period, such voting right of the
holders of this Series may be exercised by written consent, at a
special meeting called pursuant to Section
<PAGE>
12
7(d)(iii) hereof or at any annual meeting of stockholders.
The absence of a quorum of the holders of Common Stock at
any such special or annual meeting shall not affect the exercise
by the holders of Preferred Stock of such voting right. At
any meeting at which the holders of Preferred Stock shall exercise such
voting right initially during an existing default period, they shall
have the right, voting as a class, to elect Directors to fill such
vacancies, if any, in the Board of Directors as may then exist up to
two Directors or, if such right is exercised at an annual meeting, to
elect two Directors. If the number which may be so elected at any
special meeting does not amount to the required number, the holders of
Preferred Stock shall have the right to make such increase in the
number of Directors as shall be necessary to permit the election by
them of the required number. After the holders of the Preferred Stock
shall have exercised their right to elect Directors in any default
period and during the continuance of such period, the number of
Directors shall not be increased or decreased except by vote of the
holders of Preferred Stock as herein provided. Any Director elected by
a vote of the holders of Preferred Stock may be removed from office,
with or without cause, only by the affirmative vote of the requisite
percentage of holders of Preferred Stock required to elect Directors as
specified in this Section 8(d).
(iii) Unless the holders of Preferred Stock, during an
existing default period, shall have previously exercised their right to
elect Directors, the Board of Directors may order, or any shareholder
or shareholders owning in the aggregate not less than ten percent (10%)
of the total number of shares of Preferred Stock outstanding,
irrespective of series, on which dividends are in arrears and as to
which similar voting rights have been conferred, may request, the
calling of a special meeting of the holders of Preferred Stock, which
meeting shall thereupon be called by the Chairman, a Vice Chairman or
the Secretary of the Corporation. Notice of such meeting and of any
annual meeting at which holders of Preferred Stock are entitled to vote
pursuant to this Section 7(d)(iii) shall be given to each holder of
record of Preferred Stock entitled to vote thereat by mailing a copy of
such notice to him at his last address as the same appears on the books
of the Corporation on such record date, not more than 45 days prior to
the date of such notice, as the Board of Directors may fix for this
purpose. Such meeting shall be called for a time not earlier than 10
days and not later than 60 days after such order or request or, in
default of the calling of such meeting within 60 days after such order
or request, such meeting may be called on similar notice by any
shareholder or shareholders owning in the aggregate not less than 10%
of the total number of shares of Preferred Stock outstanding,
irrespective of series, entitled to vote thereat.
(iv) In any default period the holders of Common Stock, and
other classes of stock of the Corporation if applicable, shall continue
to be entitled to elect the whole number of Directors constituting the
Board of Directors until the holders of Preferred Stock, voting as a
class, shall have exercised their right to elect two Directors, after
the exercise of which right (A) the Directors so elected by the holders
of Preferred Stock shall continue in office until their successors
shall have been elected by such holders or until the expiration of the
default period, and (B) any vacancy on the Board of Directors
<PAGE>
13
may(except as provided in Section 8(d)(ii) hereof) be filled by vote
of a majority of the remaining Directors theretofore elected by the
holders of the class of stock which elected the Director whose office
shall have become vacant. References in this Section 8(d) to Directors
elected by the holders of a particular class of stock shall include
Directors elected by such Directors to fill vacancies as provided in
clause (B) of the foregoing sentence.
(v) Immediately upon the expiration of a default period, (A)
the right of the holders of Preferred Stock as a class to elect
Directors shall cease, (B) the term of any Directors elected by the
holders of Preferred Stock as a class shall terminate, and (C) the
number of Directors shall be such number as may be provided for in the
Restated Certificate of Incorporation or Bylaws of the Corporation or
by resolution of the Board of Directors, irrespective of any increase
made pursuant to the provisions of Section 8(d)(ii) hereof (such number
being subject, however, to change thereafter in any manner provided by
law or in the Restated Certificate of Incorporation or Bylaws of the
Corporation). Any vacancies on the Board of Directors effected by the
provisions of clauses (B) and (C) in the preceding sentence may be
filled by a majority of the remaining Directors.
(e) Except as set forth herein or required by applicable law, holders
of shares of this Series shall have no voting rights and their consent shall not
be required for taking any corporate action.
[Signature appears on subsequent page.]
<PAGE>
14
IN WITNESS WHEREOF, Bank United Corp. has caused its corporate
seal to be hereunto affixed and this Certificate to be signed by its Corporate
Secretary, Randolph C. Henson, this 9th day of August, 1999.
BANK UNITED CORP.
By: /s/ Randolph C. Henson
----------------------
Randolph C. Henson
Corporate Secretary
Exhibit 4.3
FACE OF CORPORATE PIES CERTIFICATE
"THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE
PURCHASE CONTRACT AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED IN THE
NAME OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (THE "DEPOSITARY"),
OR A NOMINEE OF THE DEPOSITARY. THIS CERTIFICATE IS EXCHANGEABLE FOR
CERTIFICATES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS
NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE PURCHASE CONTRACT
AGREEMENT AND NO TRANSFER OF THIS CERTIFICATE (OTHER THAN A TRANSFER OF THIS
CERTIFICATE AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A
NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITARY FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN."
NO. 1 CUSIP NO. 065412 30 6
NUMBER OF CORPORATE PIES 2,000,000
BANK UNITED CORP.
CORPORATE PIES
This Corporate PIES Certificate certifies that Cede & Co. is the registered
Holder of the number of Corporate PIES set forth above. Each Corporate PIES
consists of (i) the beneficial ownership by the Holder of one share of Series B
Preferred Stock (the "Preferred Stock") of Bank United Corp., a Delaware
corporation (the "Company"), having a liquidation preference of $50, subject to
the Pledge of such Preferred Stock by such Holder pursuant to the Pledge
Agreement, and (ii) the rights and obligations of the Holder under one Purchase
Contract with the Company. All capitalized terms used herein which are defined
in the Purchase Contract Agreement (as defined on the reverse hereof) have the
meaning set forth therein.
Pursuant to the Pledge Agreement, the Preferred Stock constituting part of
each Corporate PIES evidenced hereby has been pledged to the Collateral Agent,
for the benefit of the Company, to secure the obligations of the Holder under
the Purchase Contract comprising a portion of such Corporate PIES.
<PAGE>
2
The Pledge Agreement provides that all payments of the liquidation
preference with respect to any of the Pledged Preferred Stock or cash dividends
on any Pledged Preferred Stock (as defined in the Pledge Agreement) constituting
part of the Corporate PIES received by the Securities Intermediary shall be paid
by wire transfer in same day funds (i) in the case of (A) cash dividends with
respect to Pledged Preferred Stock and (B) any payments of the liquidation
preference with respect to any Preferred Stock or security entitlements thereto
that have been released from the Pledge pursuant to the Pledge Agreement, to the
Agent to the account designated by the Agent, no later than 12:00 p.m., New York
City time, on the Business Day such payment is received by the Securities
Intermediary (provided that in the event such payment is received by the
Securities Intermediary on a day that is not a Business Day or after 12:30 p.m.,
New York City time, on a Business Day, then such payment shall be made no later
than 10:30 a.m., New York City time, on the next succeeding Business Day) and
(ii) in the case of Proceeds from the Remarketing with respect to any of the
Pledged Preferred Stock or security entitlements thereto, to the Company on the
Purchase Contract Settlement Date (as described herein) in accordance with the
terms of the Pledge Agreement, in full satisfaction of the respective
obligations of the Holders of the Corporate PIES of which such Pledged Preferred
Stock is a part under the Purchase Contracts forming a part of such Corporate
PIES. Dividends on any Preferred Stock forming part of a Corporate PIES
evidenced hereby, which is payable quarterly in arrears on February 16, May 16,
August 16 and November 16 of each year, commencing November 16, 1999 (a "Payment
Date"), shall, subject to receipt thereof by the Agent from the Securities
Intermediary, be paid to the Person in whose name this Corporate PIES
Certificate (or a Predecessor Corporate PIES Certificate) is registered at the
close of business on the Record Date for such Payment Date.
Each Purchase Contract evidenced hereby obligates the Holder of this
Corporate PIES Certificate to purchase, and the Company to sell, on August 16,
2002 (the "Purchase Contract Settlement Date"), at a price equal to $50 in cash
(the "Stated Amount"), a number of Common Shares, par value $0.01 ("Common
Stock"), of the Company, equal to the Settlement Rate, unless on or prior to the
Purchase Contract Settlement Date there shall have occurred a Termination Event
or an Early Settlement with respect to the Corporate PIES of which such Purchase
Contract is a part, all as provided in the Purchase Contract Agreement and more
fully described on the reverse hereof. The purchase price (the "Purchase Price")
for the shares of Common Stock purchased pursuant to each Purchase Contract
evidenced hereby, if not paid earlier, shall be paid on the Purchase Contract
Settlement Date by separate cash or by application of payment received, pursuant
to the Remarketing, in respect of the liquidation preference with respect to any
Pledged Preferred Stock pledged to secure the obligations under such Purchase
Contract of the Holder of the Corporate PIES of which such Purchase Contract is
a part.
The Company shall pay, on each Payment Date, in respect of each Purchase
Contract forming part of a Corporate PIES evidenced hereby an amount (the
"Contract Adjustment Payments") equal to (a) if a Reset Transaction has not
occurred, 0.75% per annum of the Stated Amount or (b) following the occurrence
of a Reset Transaction, the Adjusted Contract Adjustment Payment Rate related to
such Reset Transaction until any such succeeding Reset Transaction shall occur
(computed on the basis of (i) for any full quarterly period, a 360-day year of
twelve 30-day months and (ii) for any period shorter than a full quarterly
period, a 30-day
<PAGE>
3
month and for periods less than a month, the actual number of days elapsed
per 30-day period). Such Contract Adjustment Payments shall be payable to
the Person in whose name this Corporate PIES Certificate (or a Predecessor
Corporate PIES Certificate) is registered at the close of business on the
Record Date for such Payment Date.
Dividends on the Preferred Stock and Contract Adjustment Payments will be
payable at the office of the Agent in The City of New York or, at the option of
the Company, by check mailed to the address of the Person entitled thereto as
such address appears on the Corporate PIES Register.
Reference is hereby made to the further provisions set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as
if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Agent by manual signature, this Corporate PIES Certificate shall not be entitled
to any benefit under the Pledge Agreement or the Purchase Contract Agreement or
be valid or obligatory for any purpose.
<PAGE>
4
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
BANK UNITED CORP.
By: /s/ Barry C. Burkholder
----------------------------
Name: Barry C. Burkholder
Title:President and CEO
By: /s/ Randolph C. Henson
--------------------------
Name: Randolph C. Henson
Title:Corporate Secretary
HOLDER SPECIFIED ABOVE (as to obligations
of such Holder under the Purchase
Contracts evidenced hereby)
By: THE FIRST NATIONAL BANK OF CHICAGO
not individually but solely as
Attorney-in-Fact of such Holder
By: /s/ Diane Swanson
---------------------
Name: Diane Swanson
Title:Assistant Vice President
Dated: August 10, 1999
AGENT'S CERTIFICATE OF AUTHENTICATION
This is one of the Corporate PIES Certificates referred to in the within
mentioned Purchase Contract Agreement.
By: THE FIRST NATIONAL BANK OF CHICAGO
as Purchase Contract Agent
By: /s/ Diane Swanson
-------------------------------------
Authorized Officer
<PAGE>
5
(FORM OF REVERSE OF CORPORATE PIES CERTIFICATE)
Each Purchase Contract evidenced hereby is governed by a Purchase Contract
Agreement, dated as of August 10, 1999 (as may be supplemented from time to
time, the "Purchase Contract Agreement"), between the Company and The First
National Bank of Chicago, as Purchase Contract Agent (including its successors
hereunder, the "Agent"), to which Purchase Contract Agreement and supplemental
agreements thereto reference is hereby made for a description of the respective
rights, limitations of rights, obligations, duties and immunities thereunder of
the Agent, the Company, and the Holders and of the terms upon which the
Corporate PIES Certificates are, and are to be, executed and delivered.
Each Purchase Contract evidenced hereby obligates the Holder of this
Corporate PIES Certificate to purchase, and the Company to sell, on the Purchase
Contract Settlement Date at a price equal to the Stated Amount (the "Purchase
Price"), a number of shares of Common Stock of the Company equal to the
Settlement Rate, unless, on or prior to the Purchase Contract Settlement Date,
there shall have occurred a Termination Event with respect to the Security of
which such Purchase Contract is a part or an Early Settlement shall have
occurred. The "Settlement Rate" is equal to (a) if the Applicable Market Value
(as defined below) is equal to or greater than $44.9250 (the "Threshold
Appreciation Price"), 1.11297 shares of Common Stock per Purchase Contract, (b)
if the Applicable Market Value is less than the Threshold Appreciation Price but
is greater than $37.4375 the number of shares of Common Stock per Purchase
Contract equal to the Stated Amount divided by the Applicable Market Value and
(c) if the Applicable Market Amount is less than or equal to $37.4375, 1.33556
shares of Common Stock per Purchase Contract, in each case subject to adjustment
as provided in the Purchase Contract Agreement. No fractional shares of Common
Stock will be issued upon settlement of Purchase Contracts, as provided in the
Purchase Contract Agreement.
Each Purchase Contract evidenced hereby, which is settled either through
Early Settlement or Cash Settlement, shall obligate the Holder of the related
Corporate PIES to purchase at the Purchase Price, and the Company to sell, a
number of newly issued shares of Common Stock equal to the Early Settlement Rate
or the Settlement Rate, as applicable.
The "Applicable Market Value" means the average of the Closing Price per
share of Common Stock on each of the 20 Trading Days ending on the third Trading
Day immediately preceding the Purchase Contract Settlement Date. The "Closing
Price" of the Common Stock on any date of determination means (i) the closing
sale price (or, if no closing price is reported, the last reported sale price)
of the Common Stock on the Nasdaq National Market on such date, (ii) if the
Common Stock is not listed for trading on the Nasdaq National Market on any such
date, the closing sale price as reported in the composite transactions for the
principal United States securities exchange on which the Common Stock is so
listed, (iii) if the Common Stock is not so reported, the last quoted bid price
for the Common Stock in the over-the-counter market as reported by the National
Quotation Bureau or similar organization or (iv) if such bid price is not
available, the average of the mid-point of the last bid and ask prices of the
Common Stock on such date from at least three nationally recognized independent
investment banking firms
<PAGE>
6
retained for this purpose by the Company. A "Trading Day" means a day on
which the Common Stock (A) is not suspended from trading on any national or
regional securities exchange or association or over-the-counter market at the
close of business and (B) has traded at least once on the national or regional
securities exchange or association or over-the-counter market that is the
primary market for the trading of the Common Stock.
In accordance with the terms of the Purchase Contract Agreement, the Holder
of this Corporate PIES Certificate may pay the Purchase Price for the shares of
Common Stock purchased pursuant to each Purchase Contract evidenced hereby by
effecting a Cash Settlement or an Early Settlement or a remarketing of the
related Pledged Preferred Stock. A Holder of Corporate PIES who does not effect,
on or prior to 11:00 a.m. New York City time on the fifth Business Day
immediately preceding the Purchase Contract Settlement Date, an effective Cash
Settlement or an Early Settlement, shall pay the Purchase Price for the shares
of Common Stock to be issued under the related Purchase Contract from the
proceeds of the sale of the related Pledged Preferred Stock held by the
Collateral Agent. Such sale will be made by the Remarketing Agent pursuant to
the terms of the Remarketing Agreement on the third Business Day prior to the
Purchase Contract Settlement Date. If, as provided in the Purchase Contract
Agreement, upon the occurrence of a Failed Remarketing the Collateral Agent, for
the benefit of the Company, exercises its rights as a secured creditor with
respect to the Pledged Preferred Stock related to this Corporate PIES
certificate, any accrued and unpaid dividends on such Pledged Preferred Stock
will become payable by the Company to the holder of this Corporate PIES
Certificate in the manner provided for in the Purchase Contract Agreement.
The Company shall not be obligated to issue any shares of Common Stock in
respect of a Purchase Contract or deliver any certificates therefor to the
Holder unless it shall have received payment of the aggregate purchase price for
the shares of Common Stock to be purchased thereunder in the manner herein set
forth.
Each Purchase Contract evidenced hereby and all obligations and rights of
the Company and the Holder thereunder shall terminate if a Termination Event
shall occur. Upon the occurrence of a Termination Event, the Company shall give
written notice to the Agent and to the Holders, at their addresses as they
appear in the Corporate PIES Register. Upon and after the occurrence of a
Termination Event, the Collateral Agent shall release the Pledged Preferred
Stock forming a part of each Corporate PIES from the Pledge. A Corporate PIES
shall thereafter represent the right to receive the Preferred Stock forming a
part of such Corporate PIES in accordance with the terms of the Purchase
Contract Agreement and the Pledge Agreement.
Under the terms of the Pledge Agreement, the Agent will be entitled to
exercise the voting and any other consensual rights pertaining to the Pledged
Preferred Stock. Upon receipt of notice of any meeting at which holders of
Preferred Stock are entitled to vote or upon the solicitation of consents,
waivers or proxies of holders of Preferred Stock, the Agent shall, as soon as
practicable thereafter, mail to the Corporate PIES Holders a notice (a)
containing such information as is contained in the notice or solicitation, (b)
stating that each Corporate PIES Holder on the record date set by the Agent
therefor (which, to the extent possible, shall be the same date as the record
date for determining the holders of Preferred Stock entitled to vote) shall
<PAGE>
7
be entitled to instruct the Agent as to the exercise of the voting rights
pertaining to the Preferred Stock constituting a part of such Holder's Corporate
PIES and (c) stating the manner in which such instructions may be given. Upon
the written request of the Corporate PIES Holders on such record date, the Agent
shall endeavor insofar as practicable to vote or cause to be voted, in
accordance with the instructions set forth in such requests, the maximum
aggregate liquidation preference of Preferred Stock as to which any particular
voting instructions are received. In the absence of specific instructions from
the Holder of a Corporate PIES, the Agent shall abstain from voting the
Preferred Stock evidenced by such Corporate PIES.
The Corporate PIES Certificates are issuable only in registered form and
only in denominations of a single Corporate PIES and any integral multiple
thereof. The transfer of any Corporate PIES Certificate will be registered and
Corporate PIES Certificates may be exchanged as provided in the Purchase
Contract Agreement. The Corporate PIES Registrar may require a Holder, among
other things, to furnish appropriate endorsements and transfer documents
permitted by the Purchase Contract Agreement. No service charge shall be
required for any such registration of transfer or exchange, but the Company and
the Agent may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith. A holder who elects to
substitute a Treasury Security for Preferred Stock thereby creating Treasury
PIES, shall be responsible for any fees or expenses payable in connection
therewith. Except as provided in the Purchase Contract Agreement, for so long as
the Purchase Contract underlying a Corporate PIES remains in effect, such
Corporate PIES shall not be separable into its constituent parts, and the rights
and obligations of the Holder of such Corporate PIES in respect of the Preferred
Stock and Purchase Contract constituting such Corporate PIES may be transferred
and exchanged only as a Corporate PIES. The holder of a Corporate PIES may
substitute for the Pledged Preferred Stock securing its obligation under the
related Purchase Contract Treasury Securities in an aggregate principal amount
equal to the aggregate liquidation preference of the Pledged Preferred Stock in
accordance with the terms of the Purchase Contract Agreement and the Pledge
Agreement. From and after such Collateral Substitution, the Security for which
such Pledged Treasury Securities secures the holder's obligation under the
Purchase Contract shall be referred to as a "Treasury PIES." A Holder may make
such Collateral Substitution only in integral multiples of 20 Corporate PIES for
20 Treasury PIES. Such Collateral Substitution may cause the equivalent
aggregate amount of this Certificate to be increased or decreased; provided,
however, this Corporate PIES Certificate shall not represent more than 2,000,000
Corporate PIES. All such adjustments to the equivalent amount of this Corporate
PIES Certificate shall be duly recorded by placing an appropriate notation on
the Schedule attached hereto.
A Holder of Treasury PIES may recreate Corporate PIES by delivering to the
Securities Intermediary Preferred Stock with an aggregate liquidation preference
equal to the aggregate principal amount of the Pledged Treasury Securities in
exchange for the release of such Pledged Treasury Securities in accordance with
the terms of the Purchase Contract Agreement and the Pledge Agreement.
The Company shall pay, on each Payment Date, the Contract Adjustment
Payments payable in respect of each Purchase Contract to the Person in whose
name the Corporate PIES Certificate evidencing such Purchase Contract is
registered at the close of business on the Record
<PAGE>
8
Date for such Payment Date. Contract Adjustment Payments will be payable at the
office of the Agent in The City of New York or, at the option of the Company, by
check mailed to the address of the Person entitled thereto at such address as it
appears on the Corporate PIES Register.
The Purchase Contracts and all obligations and rights of the Company and
the Holders thereunder, including, without limitation, the rights of the Holders
to receive and the obligation of the Company to pay any Contract Adjustment
Payments, shall immediately and automatically terminate, without the necessity
of any notice or action by any Holder, the Agent or the Company, if, on or prior
to the Purchase Contract Settlement Date, a Termination Event shall have
occurred. Upon the occurrence of a Termination Event, the Company shall promptly
but in no event later than two Business Days thereafter give written notice to
the Agent, the Collateral Agent and the Holders, at their addresses as they
appear in the Corporate PIES Register. Upon and after the occurrence of a
Termination Event, the Collateral Agent shall release the Preferred Stock from
the Pledge in accordance with the provisions of the Pledge Agreement.
Subject to and upon compliance with the provisions of the Purchase Contract
Agreement, at the option of the Holder thereof, Purchase Contracts underlying
Securities may be settled early (an "Early Settlement") as provided in the
Purchase Contract Agreement. In order to exercise the right to effect Early
Settlement with respect to any Purchase Contracts evidenced by this Corporate
PIES Certificate, the Holder of this Corporate PIES Certificate shall deliver
this Corporate PIES Certificate to the Agent at the Corporate Trust Office duly
endorsed for transfer to the Company or in blank with the form of Election to
Settle Early set forth below duly completed and accompanied by payment in the
form of immediately available funds payable to the order of the Company in an
amount (the "Early Settlement Amount") equal to (i) the product of (A) the
Stated Amount times (B) the number of Purchase Contracts with respect to which
the Holder has elected to effect Early Settlement, plus (ii) if such delivery is
made with respect to any Purchase Contracts during the period from the close of
business on any Record Date for any Payment Date to the opening of business on
such Payment Date, an amount equal to the Contract Adjustment Payments payable
on such Payment Date with respect to such Purchase Contracts. Upon Early
Settlement of Purchase Contracts by a Holder of the related Securities, the
Pledged Preferred Stock underlying such Securities shall be released from the
Pledge as provided in the Pledge Agreement and the Holder shall be entitled to
receive a number of shares of Common Stock on account of each Purchase Contract
forming part of a Corporate PIES as to which Early Settlement is effected equal
to the Early Settlement Rate. The Early Settlement Rate shall initially be equal
to 1.11297 shares of Common Stock and shall be adjusted in the same manner and
at the same time as the Settlement Rate is adjusted as provided in the Purchase
Contract Agreement.
Upon registration of transfer of this Corporate PIES Certificate, the
transferee shall be bound (without the necessity of any other action on the part
of such transferee, except as may be required by the Agent pursuant to the
Purchase Contract Agreement), under the terms of the Purchase Contract Agreement
and the Purchase Contracts evidenced hereby and the transferor shall be released
from the obligations under the Purchase Contracts evidenced by this Corporate
PIES Certificate. The Company covenants and agrees, and the Holder, by its
acceptance hereof, likewise covenants and agrees, to be bound by the provisions
of this paragraph.
<PAGE>
9
The Holder of this Corporate PIES Certificate, by its acceptance hereof,
authorizes the Agent to enter into and perform the related Purchase Contracts
forming part of the Corporate PIES evidenced hereby on its behalf as its
attorney-in-fact, expressly withholds any consent to the assumption (i.e.,
affirmance) of the Purchase Contracts by the Company or its trustee in the event
that the Company becomes the subject of a case under the Bankruptcy Code, agrees
to be bound by the terms and provisions thereof, covenants and agrees to perform
his obligations under such Purchase Contracts, consents to the provisions of the
Purchase Contract Agreement, authorizes the Agent to enter into and perform the
Purchase Contract Agreement and the Pledge Agreement on its behalf as its
attorney-in-fact, and consents to the Pledge of the Shares underlying this
Corporate PIES Certificate pursuant to the Pledge Agreement. The Holder further
covenants and agrees that, to the extent and in the manner provided in the
Purchase Contract Agreement and the Pledge Agreement, but subject to the terms
thereof, Proceeds from the Remarketing with respect to any of the Pledged
Preferred Stock or security entitlements thereto in respect of the aggregate
liquidation preference of the Pledged Preferred Stock on the Purchase Contract
Settlement Date shall be paid by the Collateral Agent to the Company in
satisfaction of such Holder's obligations under such Purchase Contract and such
Holder shall acquire no right, title or interest in such payments.
Subject to certain exceptions, the provisions of the Purchase Contract
Agreement may be amended with the consent of the Holders of a majority of the
Purchase Contracts.
The Purchase Contracts shall for all purposes be governed by, and
construed in accordance with, the laws of the State of New York.
The Company, the Agent and its Affiliates and any agent of the Company or
the Agent may treat the Person in whose name this Corporate PIES Certificate is
registered as the owner of the Corporate PIES evidenced hereby for the purpose
of receiving payments of dividends payable quarterly on the Preferred Stock
receiving payments of Contract Adjustment Payments, performance of the Purchase
Contracts and for all other purposes whatsoever, whether or not any payments in
respect thereof be overdue and notwithstanding any notice to the contrary, and
neither the Company, the Agent nor any such agent shall be affected by notice to
the contrary.
The Purchase Contracts shall not, prior to the settlement thereof,
entitle the Holder to any of the rights of a holder of shares of Common Stock.
A copy of the Purchase Contract Agreement is available for inspection at
the offices of the Agent.
<PAGE>
10
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
UNIF GIFT MIN ACT - ---------------Custodian-------------
(cust) (minor)
Under Uniform Gifts to Minors Act
of __________________________________
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of
survivorship and not as Tenants
in common
Additional abbreviations may also be used though not in the above list.
-------------------------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________________
_______________________________________________________________________________
(Please insert Social Security or Taxpayer I.D. or other
Identifying Number of Assignee)
_______________________________________________________________________________
_______________________________________________________________________________
(Please Print or Type Name and Address Including Postal Zip Code of Assignee)
the within Corporate PIES Certificates and all rights thereunder, hereby
irrevocably constituting and appointing attorney to transfer said Corporate
PIES Certificates on the books of Bank United Corp. with full power of
substitution in the premises.
Dated: ___________________ ______________________________________________
Signature
NOTICE: The signature to this assignment must
correspond with the name as it appears upon the
face of the within Corporate PIES Certificates
in every particular, without alteration or
enlargement or any change whatsoever.
Signature Guarantee: ___________________________________
<PAGE>
11
SETTLEMENT INSTRUCTIONS
The undersigned Holder directs that a certificate for shares of Common
Stock deliverable upon settlement on or after the Purchase Contract Settlement
Date of the Purchase Contracts underlying the number of Corporate PIES evidenced
by this Corporate PIES Certificate be registered in the name of, and delivered,
together with a check in payment for any fractional share, to the undersigned at
the address indicated below unless a different name and address have been
indicated below. If shares are to be registered in the name of a Person other
than the undersigned, the undersigned will pay any transfer tax payable incident
thereto.
Dated: _______________________ _____________________________________
Signature
Signature Guarantee: _________________
(if assigned to another person)
If shares are to be registered in the
name of and delivered to a Person other
than the Holder, please (i) print REGISTERED HOLDER
such Person's name and address and
(ii) provide a guarantee of your
signature:
Please print name and
address of Registered Holder:
_____________________________________ _____________________________________
Name Name
_____________________________________ _____________________________________
Address Address
_____________________________________ _____________________________________
_____________________________________ _____________________________________
_____________________________________ _____________________________________
Social Security or other
Taxpayer Identification _____________________________________
Number, if any
<PAGE>
12
ELECTION TO SETTLE EARLY
The undersigned Holder of this Corporate PIES Certificate hereby
irrevocably exercises the option to effect Early Settlement in accordance with
the terms of the Purchase Contract Agreement with respect to the Purchase
Contracts underlying the number of Corporate PIES evidenced by this Corporate
PIES Certificate specified below. The undersigned Holder directs that a
certificate for shares of Common Stock deliverable upon such Early Settlement be
registered in the name of, and delivered, together with a check in payment for
any fractional share and any Corporate PIES Certificate representing any
Corporate PIES evidenced hereby as to which Early Settlement of the related
Purchase Contracts is not effected, to the undersigned at the address indicated
below unless a different name and address have been indicated below. Pledged
Shares deliverable upon such Early Settlement will be transferred in accordance
with the transfer instructions set forth below. If shares are to be registered
in the name of a Person other than the undersigned, the undersigned will pay any
transfer tax payable incident thereto.
Dated: ______________________ _____________________________________
Signature
Signature Guarantee: _____________________________________
<PAGE>
13
Number of Securities evidenced hereby as to which Early Settlement of
the related Purchase Contracts is being elected:
If shares of Common Stock or Corporate PIES Certificates REGISTERED HOLDER
are to be registered in the name of and delivered to, and
Pledged Preferred Stock are to be transferred to, a
Person other than the Holder, please print such Person's name and address:
Please print name and address of
Registered Holder:
_____________________________________ _____________________________________
Name Name
_____________________________________ _____________________________________
Address Address
_____________________________________ _____________________________________
_____________________________________ _____________________________________
_____________________________________ _____________________________________
Social Security or other
Taxpayer Identification
Number, if any _____________________________________
<PAGE>
14
Transfer Instructions for Pledged Preferred Stock Transferable Upon Early
Settlement or a Termination Event:
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
<PAGE>
1
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL CERTIFICATE
The following increases or decreases in this Global Certificate have been made:
Date Amount of decrease Amount of increase Number of PIES Signature of
in Number of PIES in Number of PIES evidenced by this authorized
evidenced by the evidenced by the Global Certificate officer of
Global Certificate Global Certificate following such Trustee or
decrease or Securities
increase Custodian
- ------- ------------------ ------------------- ------------------ -------------
Exhibit 4.4
FACE OF TREASURY PIES CERTIFICATE
"THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE
PURCHASE CONTRACT AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED IN THE
NAME OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (THE "DEPOSITARY"),
OR A NOMINEE OF THE DEPOSITARY. THIS CERTIFICATE IS EXCHANGEABLE FOR
CERTIFICATES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS
NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE PURCHASE CONTRACT
AGREEMENT AND NO TRANSFER OF THIS CERTIFICATE (OTHER THAN A TRANSFER OF THIS
CERTIFICATE AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A
NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITARY FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN."
NO. 1 CUSIP NO. 065412 50 4
NUMBER OF TREASURY PIES 0
BANK UNITED CORP.
TREASURY PIES
This Treasury PIES Certificate certifies that Cede & Co. is the
registered Holder of the number of Treasury PIES set forth above. Each Treasury
PIES consists of (i) a 1/20 undivided beneficial ownership interest of a
Treasury Security having a principal amount at maturity equal to $1,000, subject
to the Pledge of such Treasury Security by such Holder pursuant to the Pledge
Agreement, and (ii) the rights and obligations of the Holder under one Purchase
Contract with Bank United Corp., a Delaware corporation (the "Company"). All
capitalized terms used herein which are defined in the Purchase Contract
Agreement (as defined on the reverse hereof) have the meaning set forth therein.
Pursuant to the Pledge Agreement, the Treasury Securities constituting
part of each Treasury PIES evidenced hereby have been pledged to the Collateral
Agent, for the benefit of the Company, to secure the obligations of the Holder
under the Purchase Contract comprising a portion of such Treasury PIES.
<PAGE>
Each Purchase Contract evidenced hereby obligates the Holder of this
Treasury PIES Certificate to purchase, and the Company, to sell, on August 16,
2002 (the "Purchase Contract Settlement Date"), at a price equal to $50 in cash
(the "Stated Amount"), a number of Common Shares, par value $0.01 ("Common
Stock"), of the Company equal to the Settlement Rate, unless on or prior to the
Purchase Contract Settlement Date there shall have occurred a Termination Event
or an Early Settlement with respect to the Treasury PIES of which such Purchase
Contract is a part, all as provided in the Purchase Contract Agreement and more
fully described on the reverse hereof. The purchase price for the shares of
Common Stock purchased pursuant to each Purchase Contract evidenced hereby, if
not paid earlier, shall be paid on the Purchase Contract Settlement Date by
application of the Proceeds from the Treasury Securities pledged to secure the
obligations under such Purchase Contract in accordance with the terms of the
Pledge Agreement.
The Company shall pay on each Payment Date in respect of each Purchase
Contract evidenced hereby an amount (the "Contract Adjustment Payments") equal
to (a) if a Reset Transaction has not occurred, 0.75% per annum of the Stated
Amount or (b) following the occurrence of a Reset Transaction, the Adjusted
Contract Adjustment Payment Rate related to such Reset Transaction until any
such succeeding Reset Transaction shall occur (computed on the basis of (i) for
any full quarterly period, a 360-day year of twelve 30-day months and (ii) for
any period shorter than a full quarterly period, a 30-day month and for periods
less than a month, the actual number of days elapsed per 30-day period), as the
case may be. Such Contract Adjustment Payments shall be payable to the Person in
whose name this Treasury PIES Certificate (or a Predecessor Treasury PIES
Certificate) is registered at the close of business on the Record Date for such
Payment Date.
Contract Adjustment Payments will be payable at the office of the Agent
in The City of New York or, at the option of the Company, by check mailed to the
address of the Person entitled thereto as such address appears on the Treasury
PIES Register.
Reference is hereby made to the further provisions set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Agent by manual signature, this Treasury PIES Certificate shall not be entitled
to any benefit under the Pledge Agreement or the Purchase Contract Agreement or
be valid or obligatory for any purpose.
B-2
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
BANK UNITED CORP.
By: /s/ Barry C. Burkholder
_______________________________
Name: Barry C. Burkholder
Title: President
By: /s/ Randolph C. Henson
_______________________________
Name: Randolph C. Henson
Title: Secretary
HOLDER SPECIFIED ABOVE (as to obligations of such
Holder under the Purchase Contracts)
By: THE FIRST NATIONAL BANK OF CHICAGO, not
individually but solely as Attorney-in-Fact of
such Holder
By: /s/ Diane Swanson
_______________________________
Name: Diane Swanson
Title: Assistant Vice President
Dated: August 10, 1999
AGENT'S CERTIFICATE OF AUTHENTICATION
This is one of the Treasury PIES referred to in the within-mentioned
Purchase Contract Agreement.
By: THE FIRST NATIONAL BANK OF CHICAGO, as Purchase
Contract Agent
By: /s/ Diane Swanson
____________________________
Authorized Officer
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<PAGE>
(REVERSE OF TREASURY PIES CERTIFICATE)
Each Purchase Contract evidenced hereby is governed by a Purchase
Contract Agreement, dated as of August 10, 1999 (as may be supplemented from
time to time, the "Purchase Contract Agreement") between the Company and The
First National Bank of Chicago, as Purchase Contract Agent (including its
successors thereunder, herein called the "Agent"), to which the Purchase
Contract Agreement and supplemental agreements thereto reference is hereby made
for a description of the respective rights, limitations of rights, obligations,
duties and immunities thereunder of the Agent, the Company and the Holders and
of the terms upon which the Treasury PIES Certificates are, and are to be,
executed and delivered.
Each Purchase Contract evidenced hereby obligates the Holder of this
Treasury PIES Certificate to purchase, and the Company to sell, on the Purchase
Contract Settlement Date at a price equal to the Stated Amount (the "Purchase
Price") a number of shares of Common Stock of the Company equal to the
Settlement Rate, unless on or prior to the Purchase Contract Settlement Date,
there shall have occurred a Termination Event with respect to the Security of
which such Purchase Contract is a part or an Early Settlement shall have
occurred. The "Settlement Rate" is equal to (a) if the Applicable Market Value
(as defined below) is equal to or greater than $44.9250 (the "Threshold
Appreciation Price"), 1.11297 shares of Common Stock per Purchase Contract, (b)
if the Applicable Market Value is less than the Threshold Appreciation Price but
is greater than $37.4375, the number of shares of Common Stock per Purchase
Contract equal to the Stated Amount divided by the Applicable Market Value and
(c) if the Applicable Market Amount is less than or equal to $37.4375, then
1.33556 shares of Common Stock per Purchase Contract, in each case subject to
adjustment as provided in the Purchase Contract Agreement. No fractional shares
of Common Stock will be issued upon settlement of Purchase Contracts, as
provided in the Purchase Contract Agreement.
Each Purchase Contract evidenced hereby, which is settled either through
Early Settlement or Cash Settlement, shall obligate the Holder of the related
Treasury PIES to purchase at the Purchase Price for cash, and the Company to
sell, a number of newly issued shares of Common Stock equal to the Early
Settlement Rate or the Settlement Rate, as applicable.
The "Applicable Market Value" means the average of the Closing Prices
per share of Common Stock on each of the 20 Trading Days ending on the third
Trading Day immediately preceding the Purchase Contract Settlement Date. The
"Closing Price" of the Common Stock on any date of determination means the (i)
closing sale price (or, if no closing price is reported, the last reported sale
price) of the Common Stock on the Nasdaq National Market on such date, (ii) if
the Common Stock is not listed for trading on the Nasdaq National Market on any
such date, the closing sale price as reported in the composite transactions for
the principal United States securities exchange on which the Common Stock is so
listed, (iii) if the Common Stock is not so reported, the last quoted bid price
for the Common Stock in the over-the-counter market as reported by the National
Quotation Bureau or similar organization or (iv) if such bid price is not
available, the average of the mid-point of the last bid and ask prices of the
Common Stock on such date from at least three nationally recognized independent
investment banking firms retained for this purpose by the Company. A "Trading
Day" means a day on which the Common Stock (A) is not suspended from trading on
any national or regional securities exchange or
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<PAGE>
association or over-the-counter market at the close of business and (B) has
traded at least once on the national or regional securities exchange or
association or over-the-counter market that is the primary market for the
trading of the Common Stock.
In accordance with the terms of the Purchase Contract Agreement, the
Holder of this Treasury PIES shall pay the Purchase Price for the shares of
Common Stock purchased pursuant to each Purchase Contract evidenced hereby
either by effecting a Cash Settlement or an Early Settlement of each such
Purchase Contract or by applying a principal amount of the Pledged Treasury
Securities underlying such Holder's Treasury PIES equal to the Stated Amount of
such Purchase Contract to the purchase of the Common Stock. A Holder of Treasury
PIES who does not effect, on or prior to 11:00 a.m. New York City time on the
Business Day immediately preceding the Purchase Contract Settlement Date, an
effective Cash Settlement or an Early Settlement, shall pay the Purchase Price
for the shares of Common Stock to be issued under the related Purchase Contract
from the proceeds of the Pledged Treasury Securities.
The Company shall not be obligated to issue any shares of Common Stock
in respect of a Purchase Contract or deliver any certificates therefor to the
Holder unless it shall have received payment of the aggregate purchase price for
the shares of Common Stock to be purchased thereunder in the manner herein set
forth.
Each Purchase Contract evidenced hereby and all obligations and rights
of the Company and the Holder thereunder shall terminate if a Termination Event
shall occur. Upon the occurrence of a Termination Event, the Company shall give
written notice to the Agent and to the Holders, at their addresses as they
appear in the Treasury PIES Register. Upon and after the occurrence of a
Termination Event, the Collateral Agent shall release the Pledged Treasury
Securities (as defined in the Pledge Agreement) forming a part of each Treasury
PIES. A Treasury PIES shall thereafter represent the right to receive the
interest in the Treasury Security forming a part of such Treasury PIES, in
accordance with the terms of the Purchase Contract Agreement and the Pledge
Agreement.
The Treasury PIES Certificates are issuable only in registered form and
only in denominations of a single Treasury PIES and any integral multiple
thereof. The transfer of any Treasury PIES Certificate will be registered and
Treasury PIES Certificates may be exchanged as provided in the Purchase Contract
Agreement. The Treasury PIES Registrar may require a Holder, among other things,
to furnish appropriate endorsements and transfer documents permitted by the
Purchase Contract Agreement. No service charge shall be required for any such
registration of transfer or exchange, but the Company and the Agent may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith. A Holder who elects to substitute Preferred
Stock for Treasury Securities, thereby recreating Corporate PIES, shall be
responsible for any fees or expenses associated therewith. Except as provided in
the Purchase Contract Agreement, for so long as the Purchase Contract underlying
a Treasury PIES remains in effect, such Treasury PIES shall not be separable
into its constituent parts, and the rights and obligations of the Holder of such
Treasury PIES in respect of the Treasury Security and the Purchase Contract
constituting such Treasury PIES may be transferred and exchanged only as a
Treasury PIES. A Holder of Treasury PIES may recreate Corporate PIES by
delivering to the Collateral Agent Preferred Stock with an aggregate liquidation
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preference equal to the aggregate principal amount at maturity of the Pledged
Treasury Securities in exchange for the release of such Pledged Treasury
Securities in accordance with the terms of the Purchase Contract Agreement and
the Pledge Agreement. From and after such substitution, the Holder's Security
shall be referred to as an "Corporate PIES." Such substitution may cause the
equivalent aggregate principal amount of this Certificate to be increased or
decreased; provided, however, this Treasury PIES Certificate shall not represent
more than 2,000,000 Treasury PIES. All such adjustments to the equivalent
aggregate principal amount of this Treasury PIES Certificate shall be duly
recorded by placing an appropriate notation on the Schedule attached hereto.
A Holder of a Corporate PIES may recreate a Treasury PIES by delivering
to the Collateral Agent Treasury Securities in an aggregate principal amount
equal to the aggregate liquidation preference of the Pledged Preferred Stock in
exchange for the release of such Pledged Preferred Stock in accordance with the
terms of the Purchase Contract Agreement and the Pledge Agreement. Any such
recreation of a Treasury PIES may be effected only in multiples of 20 Corporate
PIES for 20 Treasury PIES.
The Company shall pay, on each Payment Date, the Contract Adjustment
Payments payable in respect of each Purchase Contract to the Person in whose
name the Treasury PIES Certificate evidencing such Purchase Contract is
registered at the close of business on the Record Date for such Payment Date.
Contract Adjustment Payments will be payable at the office of the Agent in The
City of New York or, at the option of the Company, by check mailed to the
address of the Person entitled thereto at such address as it appears on the
Treasury PIES Register.
The Purchase Contracts and all obligations and rights of the Company and
the Holders thereunder, including, without limitation, the rights of the Holders
to receive and the obligation of the Company to pay Contract Adjustment
Payments, shall immediately and automatically terminate, without the necessity
of any notice or action by any Holder, the Agent or the Company, if, on or prior
to the Purchase Contract Settlement Date, a Termination Event shall have
occurred. Upon the occurrence of a Termination Event, the Company shall promptly
but in no event later than two Business Days thereafter give written notice to
the Agent, the Collateral Agent and the Holders, at their addresses as they
appear in the Treasury PIES Register. Upon the occurrence of a Termination
Event, the Collateral Agent shall release the Treasury Securities from the
Pledge in accordance with the provisions of the Pledge Agreement.
Subject to and upon compliance with the provisions of the Purchase
Contract Agreement, at the option of the Holder thereof, Purchase Contracts
underlying Securities may be settled early (an "Early Settlement") as provided
in the Purchase Contract Agreement. In order to exercise the right to effect
Early Settlement with respect to any Purchase Contracts evidenced by this
Treasury PIES the Holder of this Treasury PIES Certificate shall deliver this
Treasury PIES Certificate to the Agent at the Corporate Trust Office duly
endorsed for transfer to the Company or in blank with the form of Election to
Settle Early set forth below duly completed and accompanied by payment in the
form of immediately available funds payable to the order of the Company in an
amount (the "Early Settlement Amount") equal to (i) the product of (A) $50 times
(B) the number of Purchase Contracts with respect to which the Holder has
elected to effect Early Settlement, plus (ii) if such delivery is made with
respect to any Purchase Contracts during
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the period from the close of business on any Record Date for any Payment Date to
the opening of business on such Payment Date, an amount equal to the Contract
Adjustment Payments payable, if any, on such Payment Date with respect to such
Purchase Contracts. Upon Early Settlement of Purchase Contracts by a Holder of
the related Securities, the Pledged Treasury Securities underlying such
Securities shall be released from the Pledge as provided in the Pledge Agreement
and the Holder shall be entitled to receive a number of shares of Common Stock
on account of each Purchase Contract forming part of a Treasury PIES as to which
Early Settlement is effected equal to 1.11297 shares of Common Stock per
Purchase Contract (the "Early Settlement Rate"). The Early Settlement Rate shall
be adjusted in the same manner and at the same time as the Settlement Rate is
adjusted as provided in the Purchase Contract Agreement.
Upon registration of transfer of this Treasury PIES Certificate, the
transferee shall be bound (without the necessity of any other action on the part
of such transferee, except as may be required by the Agent pursuant to the
Purchase Contract Agreement), under the terms of the Purchase Contract Agreement
and the Purchase Contracts evidenced hereby and the transferor shall be released
from the obligations under the Purchase Contracts evidenced by this Treasury
PIES Certificate. The Company covenants and agrees, and the Holder, by its
acceptance hereof, likewise covenants and agrees, to be bound by the provisions
of this paragraph.
The Holder of this Treasury PIES Certificate, by its acceptance hereof,
authorizes the Agent to enter into and perform the related Purchase Contracts
forming part of the Treasury PIES evidenced hereby on its behalf as its
attorney-in-fact, expressly withholds any consent to the assumption (i.e.,
affirmance) of the Purchase Contracts by the Company or its trustee in the event
that the Company becomes the subject of a case under the Bankruptcy Code, agrees
to be bound by the terms and provisions thereof, covenants and agrees to perform
its obligations under such Purchase Contracts, consents to the provisions of the
Purchase Contract Agreement, authorizes the Agent to enter into and perform the
Purchase Contract Agreement and the Pledge Agreement on its behalf as its
attorney-in-fact, and consents to the Pledge of the Treasury Securities
underlying this Treasury PIES Certificate pursuant to the Pledge Agreement. The
Holder further covenants and agrees, that, to the extent and in the manner
provided in the Purchase Contract Agreement and the Pledge Agreement, but
subject to the terms thereof, payments in respect of the aggregate principal
amount of the Pledged Treasury Securities on the Purchase Contract Settlement
Date shall be paid by the Collateral Agent to the Company in satisfaction of
such Holder's obligations under such Purchase Contract and such Holder shall
acquire no right, title or interest in such payments.
Subject to certain exceptions, the provisions of the Purchase Contract
Agreement may be amended with the consent of the Holders of a majority of the
Purchase Contracts.
The Purchase Contracts shall for all purposes be governed by, and
construed in accordance with, the laws of the State of New York.
The Company, the Agent and its Affiliates and any agent of the Company
or the Agent may treat the Person in whose name this Treasury PIES Certificate
is registered as the owner of the Treasury PIES evidenced hereby for the purpose
of receiving payments of interest on the Treasury Securities, receiving payments
of Contract Adjustment Payments, performance of the
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<PAGE>
Purchase Contracts and for all other purposes whatsoever, whether or not any
payments in respect thereof be overdue and notwithstanding any notice to the
contrary, and neither the Company, the Agent nor any such agent shall be
affected by notice to the contrary.
The Purchase Contracts shall not, prior to the settlement thereof,
entitle the Holder to any of the rights of a holder of shares of Common Stock.
A copy of the Purchase Contract Agreement is available for inspection at
the offices of the Agent.
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
UNIF GIFT MIN ACT - ---------------Custodian-------------
(cust) (minor)
Under Uniform Gifts to Minors Act of
----------------------------------
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of
survivorship and not as
tenants in common
Additional abbreviations may also be used though not in the above list.
-------------------------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto________________________________________________________
________________________________________________________________________
(Please insert Social Security or Taxpayer I.D. or other Identifying
Number of Assignee)
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
(Please Print or Type Name and Address Including Postal Zip
Code of Assignee)
the within Treasury PIES Certificates and all rights
thereunder, hereby irrevocably constituting and appointing ______________
attorney to transfer said Treasury PIES Certificates on the books of
Bank United Corp. with full power of substitution in the premises.
Dated: ___________________ _______________________________________
Signature
NOTICE: The signature to this assignment must
correspond with the name as it appears upon
the face of the within Treasury PIES
Certificates in every particular,
without alteration or enlargement
or any change whatsoever.
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Signature Guarantee: ___________________________________
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<PAGE>
SETTLEMENT INSTRUCTIONS
The undersigned Holder directs that a certificate for shares of Common
Stock deliverable upon settlement on or after the Purchase Contract Settlement
Date of the Purchase Contracts underlying the number of Treasury PIES evidenced
by this Treasury PIES Certificate be registered in the name of, and delivered,
together with a check in payment for any fractional share, to the undersigned at
the address indicated below unless a different name and address have been
indicated below. If shares are to be registered in the name of a Person other
than the undersigned, the undersigned will pay any transfer tax payable incident
thereto.
Dated: _______________________ ____________________________________
Signature
Signature Guarantee: _______________
(if assigned to another person)
If shares are to be registered in the
name of and delivered to a Person other
than the Holder, please (i) REGISTERED HOLDER
print such Person's name and address
and (ii) provide a guarantee of your
signature:
Please print name and address of
Registered Holder:
- --------------------------- -----------------------------
Name Name
- --------------------------- -----------------------------
Address Address
- --------------------------- -----------------------------
- --------------------------- -----------------------------
- --------------------------- -----------------------------
Social Security or other
Taxpayer Identification _____________________________________
Number, if any
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<PAGE>
ELECTION TO SETTLE EARLY
The undersigned Holder of this Treasury PIES Certificate irrevocably
exercises the option to effect Early Settlement in accordance with the terms of
the Purchase Contract Agreement with respect to the Purchase Contracts
underlying the number of Treasury PIES evidenced by this Treasury PIES
Certificate specified below. The option to effect Early Settlement may be
exercised only with respect to Purchase Contracts underlying Treasury PIES with
an aggregate Stated Amount equal to $1,000 or an integral multiple thereof. The
undersigned Holder directs that a certificate for shares of Common Stock
deliverable upon such Early Settlement be registered in the name of, and
delivered, together with a check in payment for any fractional share and any
Treasury PIES Certificate representing any Treasury PIES evidenced hereby as to
which Early Settlement of the related Purchase Contracts is not effected, to the
undersigned at the address indicated below unless a different name and address
have been indicated below. Pledged Treasury Securities deliverable upon such
Early Settlement will be transferred in accordance with the transfer
instructions set forth below. If shares are to be registered in the name of a
Person other than the undersigned, the undersigned will pay any transfer tax
payable incident thereto.
Dated: ______________________ ______________________________
Signature
Signature Guarantee: _____________________________________
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<PAGE>
Number of Securities evidenced hereby as to which Early Settlement of
the related Purchase Contracts is being elected:
If shares of Common Stock of Treasury
PIES Certificates REGISTERED HOLDER
are to be registered in the name of
and delivered to and Pledged Treasury
Securities are to be transferred to a
Person other than the Holder, please
print such Person's name and address:
Please print name and
address of Registered Holder:
- -------------------------- -------------------------------
Name Name
- -------------------------- -------------------------------
Address Address
- -------------------------- -------------------------------
- -------------------------- -------------------------------
- -------------------------- -------------------------------
Social Security or other
Taxpayer Identification
Number, if any _____________________________________
Transfer Instructions for Pledged Treasury Securities Transferable Upon Early
Settlement or a Termination Event:
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[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL CERTIFICATE
The following increases or decreases in this Global
Certificate have been made:
<TABLE>
<S> <C> <C> <C> <C> <C>
Date Amount of decrease Amount of increase Number of PIES Signature of
in Number of PIES in Number of PIES evidenced by this authorized officer
evidenced by the evidenced by the Global Certificate of Trustee or
Global Certificate Global Certificate following such Securities Custodian
decrease or increase
--------- ------------------- ----------------- --------------------- ---------------------
</TABLE>
Exhibit 4.5
- -------------------------------------------------------------------------------
EXECUTION COPY
BANK UNITED CORP.
AND
THE FIRST NATIONAL BANK OF CHICAGO,
As Purchase Contract Agent
PURCHASE CONTRACT AGREEMENT
Dated as of August 10, 1999
- ------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
Page
RECITALS.......................................................................1
ARTICLE I
Definitions and Other Provisions
of General Applications
Section 1.1. Definitions.......................................................1
Section 1.2. Compliance Certificates and Opinions.............................10
Section 1.3. Form of Documents Delivered to Agent.............................11
Section 1.4. Acts of Holders; Record Dates....................................12
Section 1.5. Notices..........................................................13
Section 1.6. Notice to Holders; Waiver........................................14
Section 1.7. Effect of Headings and Table of Contents.........................14
Section 1.8. Successors and Assigns...........................................14
Section 1.9. Separability Clause..............................................15
Section 1.10 Benefits of Agreement............................................15
Section 1.11 Governing Law....................................................15
Section 1.12 Legal Holidays...................................................15
Section 1.13 Counterparts.....................................................15
Section 1.14 Inspection of Agreement..........................................16
ARTICLE II
Certificate Forms
Section 2.1. Forms of Certificates Generally..................................16
Section 2.2. Form of Agent's Certificate of Authentication....................17
ARTICLE III
The Securities
Section 3.1. Amount; Form and Denominations...................................17
Section 3.2. Rights and Obligations Evidenced by the Certificates.............18
Section 3.3. Execution, Authentication, Delivery and Dating...................18
Section 3.4. Temporary Certificates...........................................19
Section 3.5. Registration; Registration of Transfer and Exchange..............20
Section 3.6. Book-Entry Interests.............................................21
Section 3.7. Notices to Holders...............................................21
Section 3.8. Appointment of Successor Clearing Agency.........................22
Section 3.9. Definitive Certificates..........................................22
Section 3.10 Mutilated, Destroyed, Lost and Stolen Certificates...............22
Section 3.11 Persons Deemed Owners............................................23
Section 3.12 Cancellation.....................................................23
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<PAGE>
Section 3.13 Substitution of Securities.......................................24
Section 3.14 Reestablishment of Corporate PIES................................25
Section 3.15 Transfer of Collateral upon Occurrence of Termination Event......26
Section 3.16 No Consent to Assumption.........................................27
ARTICLE IV
The Shares of Preferred Stock
Section 4.1. Payment of Dividends; Rights to Dividends Preserved; Dividend Rate
Reset............................................................27
Section 4.2. Notice and Voting................................................28
ARTICLE V
The Purchase Contracts
Section 5.1. Purchase of Shares of Common Stock...............................28
Section 5.2. Contract Adjustment Payments.....................................30
Section 5.3. [Intentionally omitted]..........................................30
Section 5.4. Payment of Purchase Price........................................30
Section 5.5. Issuance of Shares of Common Stock...............................34
Section 5.6. Adjustment of Settlement Rate....................................34
Section 5.7. Notice of Adjustments and Certain Other Events...................39
Section 5.8. Termination Event; Notice........................................40
Section 5.9. Early Settlement.................................................40
Section 5.10 No Fractional Shares.............................................42
Section 5.11 Charges and Taxes................................................42
ARTICLE VI
Remedies
Section 6.1. Unconditional Right of Holders to Receive Contract Adjustment
Payments and to Purchase Common Stock............................42
Section 6.2. Restoration of Rights and Remedies...............................43
Section 6.3. Rights and Remedies Cumulative...................................43
Section 6.4. Delay or Omission Not Waiver.....................................43
Section 6.5. Undertaking for Costs............................................43
Section 6.6. Waiver of Stay or Extension Laws.................................44
ARTICLE VII
The Agent
Section 7.1. Certain Duties and Responsibilities..............................44
Section 7.2. Notice of Default................................................45
Section 7.3. Certain Rights of Agent..........................................45
Section 7.4. Not Responsible for Recitals or Issuance of Securities...........46
Section 7.5. May Hold Securities..............................................46
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<PAGE>
Page
Section 7.6. Money Held in Custody............................................46
Section 7.7. Compensation and Reimbursement...................................46
Section 7.8. Corporate Agent Required; Eligibility............................47
Section 7.9. Resignation and Removal; Appointment of Successor................47
Section 7.10 Acceptance of Appointment by Successor...........................48
Section 7.11 Merger, Conversion, Consolidation or Succession to Business......49
Section 7.12 Preservation of Information; Communications to Holders...........49
Section 7.13 No Obligations of Agent..........................................49
Section 7.14 Tax Compliance...................................................50
ARTICLE VIII
Supplemental Agreements
Section 8.1. Supplemental Agreements Without Consent of Holders...............50
Section 8.2. Supplemental Agreements With Consent of Holders..................51
Section 8.3. Execution of Supplemental Agreements.............................52
Section 8.4. Effect of Supplemental Agreements................................52
Section 8.5. Reference to Supplemental Agreements.............................52
ARTICLE IX
Consolidation, Merger, Sale or Conveyance
Section 9.1. Covenant Not to Merge, Consolidate, Sell or Convey Property Except
Under Certain Conditions.........................................53
Section 9.2. Rights and Duties of Successor Corporation.......................53
Section 9.3. Opinion of Counsel Given to Agent................................54
ARTICLE X
Covenants
Section 10.1 Performance Under Purchase Contracts.............................54
Section 10.2 Maintenance of Office or Agency..................................54
Section 10.3 Company to Reserve Common Stock..................................55
Section 10.4 Covenants as to Common Stock.....................................55
Section 10.5 Statements of Officers of the Company as to Default..............55
Section 10.6 ERISA............................................................55
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<PAGE>
EXHIBIT A Form of Corporate PIES Certificate
EXHIBIT B Form of Treasury PIES Certificate
EXHIBIT C Instruction to Purchase Contract Agent
EXHIBIT D Notice from Purchase Contract Agent to Holders (Transfer of
Collateral upon Occurrence of a Termination Event)
EXHIBIT E Notice to Settle by Separate Cash
EXHIBIT F Notice from Purchase Contract Agent to Collateral Agent (Payment
of Purchase Contract Settlement Price)
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<PAGE>
PURCHASE CONTRACT AGREEMENT, dated as of August 10, 1999, between
BANK UNITED CORP., a Delaware corporation (the "Company"), and The First
National Bank of Chicago, a national banking association acting as purchase
contract agent for the Holders of Securities from time to time (the "Agent").
RECITALS
The Company has duly authorized the execution and delivery of this
Agreement and the Certificates evidencing the Securities.
All things necessary to make the Purchase Contracts, when the Certificates
are executed by the Company and authenticated, executed on behalf of the Holders
and delivered by the Agent, as provided in this Agreement, the valid obligations
of the Company, and to constitute these presents a valid agreement of the
Company, in accordance with its terms, have been done.
W I T N E S S E T H :
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed as follows:
ARTICLE I
Definitions and Other Provisions
of General Applications
Section 1.1. Definitions.
For all purposes of this Agreement, except as otherwise expressly provided
or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to them
in this Article and include the plural as well as the singular, and nouns and
pronouns of the masculine gender include the feminine and neuter genders;
(b) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles in
the United States;
(c) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Article, Section, Exhibit or other subdivision;
<PAGE>
(d) the following terms have the meanings given to them in the Remarketing
Agreement: (i) Remarketing; and (ii) Reset Rate; and
(e) the following terms have the meanings given to them in this Section
1.1(e):
"Act," when used with respect to any Holder, has the meaning specified in
Section 1.4.
"Adjusted Contract Adjustment Payment Rate," with respect to any Reset
Transaction, means the rate per annum that is the arithmetic average of the
rates quoted by two Reference Dealers selected by the Company or its successor
as the rate at which Contract Adjustment Payments should accrue so that the fair
market value, expressed in dollars, of a Corporate PIES immediately after the
later of (i) public announcement of such Reset Transaction or (ii) public
announcement of a change in dividend policy in connection with such Reset
Transaction will equal the average Trading Price of a Corporate PIES for the 20
Trading Days immediately preceding the date of public announcement of such Reset
Transaction; provided that the Adjusted Contract Adjustment Payment Rate shall
not be less than 0.75% per annum.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agent" means the Person named as the "Agent" in the first paragraph of
this instrument until a successor Agent shall have become such pursuant to the
applicable provisions of this Agreement, and thereafter "Agent" shall mean such
Person.
"Agreement" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more agreements supplemental
hereto entered into pursuant to the applicable provisions hereof.
"Applicable Market Value" has the meaning specified in Section 5.1.
"Bankruptcy Code" means title 11 of the United States Code, or any other
law of the United States that from time to time provides a uniform system of
bankruptcy laws.
"Beneficial Owner" means, with respect to a Global Certificate, a Person
who is the beneficial owner of such Book-Entry Interest as reflected on the
books of the Clearing Agency or on the books of a Person maintaining an account
with such Clearing Agency (directly as a Clearing Agency Participant or as an
indirect participant, in each case in accordance with the rules of such Clearing
Agency).
"Board of Directors" means the board of directors of the Company or a duly
authorized committee of that board.
<PAGE>
"Board Resolution" means one or more resolutions of the Board of
Directors, a copy of each of which has been certified by the Secretary or an
Assistant Secretary of the Company to have been duly adopted by the Board of
Directors and to be in full force and effect on the date of such certification
and delivered to the Agent.
"Book-Entry Interest" means a beneficial interest in a Global Certificate,
ownership and transfers of which shall be maintained and made through book
entries by a Clearing Agency as described in Section 3.6.
"Business Day" means any day other than a Saturday or Sunday or a day on
which federal reserve banks are closed or banking institutions in the City of
New York or Chicago, Illinois are authorized or required by law or executive
order to remain closed; provided that for purposes of the second paragraph of
Section 1.12 only, the term "Business Day" shall also be deemed to exclude any
day on which trading on the New York Stock Exchange, Inc. is closed or
suspended.
"Cash Settlement" has the meaning set forth in Section 5.4(a)(i).
"Certificate" means a Corporate PIES Certificate or a Treasury PIES
Certificate.
"Certificate of Designations" means the Certificate of Designations of the
Company under which the Shares are issued.
"Clearing Agency" means an organization registered as a "Clearing Agency"
pursuant to Section 17A of the Exchange Act that is acting as a depositary for
the Securities and in whose name, or in the name of a nominee of that
organization, shall be registered a Global Certificate and which shall undertake
to effect book entry transfers and pledges of the Securities.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time the Clearing
Agency effects book entry transfers and pledges of securities deposited with the
Clearing Agency.
"Closing Price" has the meaning specified in Section 5.1.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collateral" has the meaning specified in Section 1 of the Pledge
Agreement.
"Collateral Account" has the meaning specified in the Pledge Agreement.
"Collateral Agent" means the Bank of New York, as Collateral Agent under
the Pledge Agreement until a successor Collateral Agent shall have become such
pursuant to the applicable provisions of the Pledge Agreement, and thereafter
"Collateral Agent" shall mean the Person who is then the Collateral Agent
thereunder.
"Collateral Substitution" has the meaning specified in Section 3.13.
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"Common Stock" means the shares of Common Stock, par value $0.01, of
the Company.
"Company" means the Person named as the "Company" in the first paragraph
of this instrument until a successor shall have become such pursuant to the
applicable provision of this Agreement, and thereafter "Company" shall mean such
successor.
"Contract Adjustment Payments" means, (a) if a Reset Transaction has not
occurred, the fee payable by the Company in respect of each Purchase Contract,
equal to 0.75% per annum of the Stated Amount, or (b) following the occurrence
of a Reset Transaction, the Adjusted Contract Adjustment Payment Rate related to
such Reset Transaction until any succeeding Reset Transaction shall occur,
computed (i) for any full quarterly period on the basis of a 360-day year of
twelve 30-day months and (ii) for any period shorter than a full quarterly
period for which such payments are calculated, on the basis of a 30-day month
and, for periods of less than a month, the actual number of days elapsed per
30-day month.
"Corporate PIES" means the collective rights and obligations of a Holder
of a Corporate PIES Certificate in respect of the Preferred Stocks, subject to
the Pledge thereof, and the related Purchase Contract.
"Corporate PIES Certificate" means a certificate evidencing the rights and
obligations of a Holder in respect of the number of Corporate PIES specified on
such certificate, substantially in the form of Exhibit A hereto.
"Corporate PIES Register" and "Corporate PIES Registrar" have the
respective meanings specified in Section 3.5.
"Corporate Trust Office" means the principal corporate trust office of
the Agent at which, at any particular time, its corporate trust business
shall be administered, which office at the date hereof is located at One
First National Plaza, Suite 0126, Chicago, IL 60670, Attention: Corporate
Trust Department.
"Current Market Price" has the meaning specified in Section 5.6(a)(8).
"Depositary" means DTC until another Clearing Agency becomes its
successor.
"Dividend Rate" means the percentage rate per annum at which dividends
will be paid on each Share initially.
"Dividend Yield," on any security for any period, means the dividends paid
or proposed to be paid pursuant to an announced dividend policy on such security
for such period divided by, if with respect to dividends paid on such security,
the average Closing Price of such security during such period and, if with
respect to dividends so proposed to be paid on such security, the Closing Price
of such security on the effective date of the related Reset Transaction.
"DTC" means The Depository Trust Company, the initial Clearing Agency.
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"Early Settlement" has the meaning specified in Section 5.9(a).
"Early Settlement Amount" has the meaning specified in Section 5.9(a).
"Early Settlement Date" has the meaning specified in Section 5.9(a).
"Early Settlement Rate" has the meaning specified in Section 5.9(b).
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Exchange Act" means the Securities Exchange Act of 1934 and any statute
successor thereto, in each case as amended from time to time, and the rules and
regulations promulgated thereunder.
"Expiration Date" has the meaning specified in Section 1.4.
"Expiration Time" has the meaning specified in Section 5.6(a)(6).
"Global Certificate" means a Certificate that evidences all or part of the
Securities and is registered in the name of a Clearing Agency or a nominee
thereof.
"Holder," when used with respect to a Security, means the Person in whose
name the Security evidenced by a Corporate PIES Certificate and/or a Treasury
PIES Certificate is registered in the related Corporate PIES Register and/or the
Treasury PIES Register, as the case may be; provided, however, that in
determining whether the Holders of the requisite number of Corporate PIES and/or
Treasury PIES have voted on any matter, then for the purpose of such
determination only (and not for any other purpose hereunder), if the Security
remains in the form of one or more Global Certificates and if the Clearing
Agency which is the holder of such Global Certificate has sent an omnibus proxy
assigning voting rights to the Clearing Agency Participants to whose accounts
the Securities are credited on the record date, the term "Holder" shall mean
such Clearing Agency Participant acting at the direction of the Beneficial
Owners.
"Issuer Order" or "Issuer Request" means a written request or order signed
in the name of the Company by its Chairman of the Board, its President or one of
its Vice Presidents and by its Treasurer, an Assistant Treasurer, its Secretary
or an Assistant Secretary, and delivered to the Agent.
"NYSE" has the meaning specified in Section 5.1.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, its President or one of its Vice Presidents and by the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary, of the Company,
and delivered to the Agent. Any Officers' Certificate delivered with respect to
compliance with a condition or covenant provided for in this Agreement shall
include:
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(a) a statement that each officer signing the Officers' Certificate has
read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers' Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such officer
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether, in the opinion of each such officer, such
condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company (and who may be an employee of the Company), and who
shall be reasonably acceptable to the Agent. An opinion of counsel may rely on
certificates as to matters of fact.
"Outstanding Securities," with respect to any Corporate PIES or Treasury
PIES, means, as of the date of determination, all Corporate PIES or Treasury
PIES evidenced by Certificates theretofore authenticated, executed and delivered
under this Agreement, except:
(i) If a Termination Event has occurred, (A) Treasury PIES and (B)
Corporate PIES for which the underlying Preferred Stock has been
theretofore deposited with the Agent in trust for the Holders of such
Corporate PIES;
(ii) Corporate PIES and Treasury PIES evidenced by Certificates
theretofore cancelled by the Agent or delivered to the Agent for
cancellation or deemed cancelled pursuant to the provisions of this
Agreement; and
(iii) Corporate PIES and Treasury PIES evidenced by Certificates in
exchange for or in lieu of which other Certificates have been
authenticated, executed on behalf of the Holder and delivered pursuant to
this Agreement, other than any such Certificate in respect of which there
shall have been presented to the Agent proof satisfactory to it that such
Certificate is held by a bona fide purchaser in whose hands the Corporate
PIES or Treasury PIES evidenced by such Certificate are valid obligations
of the Company;
provided, however, that in determining whether the Holders of the requisite
number of the Corporate PIES or Treasury PIES have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Corporate PIES or
Treasury PIES owned by the Company or any Affiliate of the Company shall be
disregarded and deemed not to be Outstanding Securities, except that, in
determining whether the Agent shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Corporate PIES or Treasury PIES which a Responsible Officer of the Agent knows
to be so owned shall be so disregarded. Corporate PIES or Treasury PIES so owned
which have been pledged in good faith may be regarded as Outstanding Securities
if the pledgee establishes to the satisfaction of the
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Agent the pledgee's right so to act with respect to such Corporate PIES or
Treasury PIES and that the pledgee is not the Company or any Affiliate of the
Company.
"Payment Date" means each February 16, May 16, August 16 and November 16,
commencing on November 16, 1999.
"Permitted Investments" has the meaning set forth in Section 1 of the
Pledge Agreement.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint-stock company, limited
liability company, trust, unincorporated organization or government or any
agency or political subdivision thereof or any other entity of whatever nature.
"PIES" means the collective reference to the Corporate PIES and the
Treasury PIES.
"Plan" means an employee benefit plan that is subject to ERISA, a plan or
individual retirement account that is subject to Section 4975 of the Code or any
entity whose assets are considered assets of any such plan.
"Pledge" means the pledge under the Pledge Agreement of the Shares or the
Treasury Securities in each case constituting a part of the Securities.
"Pledge Agreement" means the Pledge Agreement, dated as of the date
hereof, by and among the Company, the Collateral Agent, the Securities
Intermediary and the Agent, on its own behalf and as attorney-in-fact for the
Holders from time to time of the Securities.
"Pledged Preferred Stock" has the meaning set forth in the Pledge
Agreement.
"Pledged Treasury Securities" has the meaning set forth in the Pledge
Agreement.
"Predecessor Certificate" means a Predecessor Corporate PIES Certificate
or a Predecessor Treasury PIES Certificate.
"Predecessor Corporate PIES Certificate" of any particular Corporate PIES
Certificate means every previous Corporate PIES Certificate evidencing all or a
portion of the rights and obligations of the Company and the Holder under the
Corporate PIES evidenced thereby; and, for the purposes of this definition, any
Corporate PIES Certificate authenticated and delivered under Section 3.10 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Corporate PIES
Certificate shall be deemed to evidence the same rights and obligations of the
Company and the Holder as the mutilated, destroyed, lost or stolen Corporate
PIES Certificate.
"Predecessor Treasury PIES Certificate" of any particular Treasury PIES
Certificate means every previous Treasury PIES Certificate evidencing all or a
portion of the rights and obligations of the Company and the Holder under the
Treasury PIES evidenced thereby; and, for the purposes of this definition, any
Treasury PIES Certificate authenticated and delivered under Section 3.10 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Treasury PIES
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Certificate shall be deemed to evidence the same rights and obligations of the
Company and the Holder as the mutilated, destroyed, lost or stolen Treasury PIES
Certificate.
"Proceeds" has the meaning set forth in Section 1 of the Pledge
Agreement.
"Purchase Contract," when used with respect to any Security, means the
contract forming a part of such Security and obligating the Company to (i) sell
and the Holder of such Security to purchase Common Stock and (ii) pay the Holder
Contract Adjustment Payments, if any, in each case on the terms and subject to
the conditions set forth in Article Five hereof.
"Purchase Contract Settlement Date" means August 16, 2002.
"Purchase Contract Settlement Fund" has the meaning specified in
Section 5.5.
"Purchase Price" has the meaning specified in Section 5.1.
"Purchased Stocks" has the meaning specified in Section 5.6(a)(6).
"Record Date" for the Contract Adjustment Payments payable on any Payment
Date means, as to any Global Certificate, the Business Day next preceding such
Payment Date, and as to any other Certificate, 15 Business Days prior to such
Payment Date.
"Reference Dealer" means a dealer engaged in the trading of convertible
securities.
"Register" means the Corporate PIES Register and the Treasury PIES
Register.
"Registrar" means the Corporate PIES Registrar and the Treasury PIES
Registrar.
"Remarketing Agent" has the meaning specified in Section 5.4(b).
"Remarketing Agreement" means the Remarketing Agreement, dated as of the
date hereof, between the Company and the Remarketing Agent.
"Reorganization Event" has the meaning specified in Section 5.6(b).
"Reset Transaction" means a merger, consolidation or statutory share
exchange to which the Person that is the issuer of the shares of common stock
for which the Purchase Contracts are then to be settled is a party, a sale of
all or substantially all assets of such Person, a recapitalization of such
shares or a distribution described in Section 5.6(a)(4) by such Person and after
the effective date of such transaction the Purchase Contracts are then to be
settled for shares of common stock of a Person (i) which had a Dividend Yield
for the four fiscal quarters immediately preceding the public announcement
thereof which was, or (ii) that announces a dividend policy prior to the
effective date thereof which policy, if implemented, would result in a Dividend
Yield on such common shares for the next four fiscal quarters which would be,
more than 250 basis points higher than the Dividend Yield on the shares of
common stock for which
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the Purchase Contracts are to be settled prior to such effective date for the
four fiscal quarters immediately preceding such public announcement.
"Responsible Officer," when used with respect to the Agent, means any
officer of the Agent assigned by the Agent to administer its corporate trust
matters.
"Security" means a Corporate PIES or a Treasury PIES.
"Securities Intermediary" means The Bank of New York, as Securities
Intermediary under the Pledge Agreement until a successor Securities
Intermediary shall have become such pursuant to the applicable provisions of the
Pledge Agreement, and thereafter "Securities Intermediary" shall mean such
successor.
"Settlement Rate" has the meaning specified in Section 5.1.
"Stock" means the shares of Series B Preferred Stock to be issued by the
Company under the Certificate of Designations.
"Stated Amount" means $50 in cash.
"Termination Date" means the date, if any, on which a Termination Event
occurs.
"Termination Event" means the occurrence of any of the following events:
(i) at any time on or prior to the Purchase Contract Settlement Date, a
judgment, decree or court order shall have been entered granting relief with
respect to the Company under the Bankruptcy Code or any other similar applicable
Federal or State law, adjudicating the Company to be insolvent, or approving as
properly filed a petition seeking reorganization or liquidation of the Company,
and, unless such judgment, decree or order shall have been entered within 60
days prior to the Purchase Contract Settlement Date, such decree or order shall
have continued undischarged and unstayed for a period of 60 days; or (ii) a
judgment, decree or court order for the appointment of a receiver or liquidator
or trustee or assignee in bankruptcy or insolvency of the Company or of its
property, or for the winding up or liquidation of its affairs, shall have been
entered, and, unless such judgment, decree or order shall have been entered
within 60 days prior to the Purchase Contract Settlement Date, such judgment,
decree or order shall have continued undischarged and unstayed for a period of
60 days; or (iii) at any time on or prior to the Purchase Contract Settlement
Date, the Company shall file a petition for relief under the Bankruptcy Code, or
shall consent to the filing of a bankruptcy proceeding against it, or shall file
a petition or answer or consent seeking reorganization or liquidation of the
Company under the Bankruptcy Code or any other similar applicable Federal or
State law, or shall consent to the filing of any such petition, or shall consent
to the appointment of a receiver or liquidator or trustee or assignee in
bankruptcy or insolvency of it or of its property, or shall make an assignment
for the benefit of its creditors, or shall admit in writing its inability to pay
its debts generally as they become due.
"Threshold Appreciation Price" has the meaning specified in Section 5.1.
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"TIA" means the Trust Indenture Act of 1939, as amended from time to time,
or any successor legislation.
"Trading Day" has the meaning specified in Section 5.1.
"Trading Price" of a security on any date of determination means (i) the
closing sale price (or, if no closing price is reported, the last reported sale
price) of a security (regular way) on the NYSE on such date, (ii) if such
security is not listed for trading on the NYSE on any such date, the closing
sale price as reported in the composite transactions for the principal United
States securities exchange on which such security is so listed, (iii) if such
security is not so listed on a United States national or regional securities
exchange, the closing sale price as reported by The NASDAQ Stock Market, (iv) if
such security is not so reported, the price quoted by Interactive Data
Corporation for such security or, if Interactive Data Corporation is not quoting
such price, a similar quotation service selected by the Company, (v) if such
security is not so quoted, the average of the mid-point of the last bid and ask
prices for such security from at least two dealers recognized as market-makers
for such security or (vi) if such security is not so quoted, the average of the
last bid and ask prices for such security from a Reference Dealer.
"Treasury PIES" means, following the substitution of one or more Treasury
Securities for shares of Preferred Stock as collateral to secure a holder's
obligations under a Purchase Contract, the collective rights and obligations of
a Holder of a Treasury PIES Certificate in respect of such Treasury Securities,
subject in each case to the Pledge thereof, and the related Purchase Contract.
"Treasury PIES Certificate" means a certificate evidencing the rights and
obligations of a Holder in respect of the number of Treasury PIES specified on
such certificate, substantially in the form of Exhibit A hereto.
"Treasury PIES Register" and "Treasury PIES Registrar" have the respective
meanings specified in Section 3.5.
"Treasury Security" means zero-coupon U.S. Treasury Securities (Cusip
Number 91280BE6) which are the principal strip of the 6 3/8% U. S. Treasury
Securities which mature on August 15, 2002.
"Underwriting Agreement" means the Underwriting Agreement, dated as of
August 4, 1999, between the Company and Lehman Brothers Inc.
"Vice President" means any vice president, whether or not designated by a
number or a word or words added before or after the title "vice president."
Section 1.2. Compliance Certificates and Opinions.
Except as otherwise expressly provided by this Agreement, upon any
application or request by the Company to the Agent to take any action in
accordance with any provision of this Agreement, the Company shall furnish to
the Agent an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Agreement relating to the proposed action have
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been complied with and, if requested by the Agent, an Opinion of Counsel stating
that, in the opinion of such counsel, all such conditions precedent, if any,
have been complied with, except that in the case of any such application or
request as to which the furnishing of such documents is specifically required by
any provision of this Agreement relating to such particular application or
request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition
or covenant provided for in this Agreement shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he or
she has made such examination or investigation as is necessary to enable
such individual to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.3. Form of Documents Delivered to Agent.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Agreement, they may, but need not, be consolidated and
form one instrument.
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Section 1.4. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Agreement to be given or taken by Holders may
be embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent duly appointed in writing;
and, except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Agent and,
where it is hereby expressly required, to the Company. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Agreement
and (subject to Section 7.1) conclusive in favor of the Agent and the Company,
if made in the manner provided in this Section.
(b) Absent actual knowledge to the contrary, the fact and date of the
execution by any Person of any such instrument or writing may be assumed to be
valid by the Agent.
(c) The ownership of Securities shall be proved by the Corporate PIES
Register or the Treasury PIES Register, as the case may be.
(d) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Certificate shall bind every future Holder of
the same Certificate and the Holder of every Certificate issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Agent or the
Company in reliance thereon, whether or not notation of such action is made upon
such Certificate.
(e) The Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities entitled to give, make or take
any request, demand, authorization, direction, notice, consent, waiver or other
action provided or permitted by this Agreement to be given, made or taken by
Holders of Securities. If any record date is set pursuant to this paragraph, the
Holders of the Outstanding Corporate PIES and the Outstanding Treasury PIES, as
the case may be, on such record date, and no other Holders, shall be entitled to
take the relevant action with respect to the Corporate PIES or the Treasury
PIES, as the case may be, whether or not such Holders remain Holders after such
record date; provided that no such action shall be effective hereunder unless
taken on or prior to the applicable Expiration Date by Holders of the requisite
number of Outstanding Securities on such record date. Nothing in this paragraph
shall be construed to prevent the Company from setting a new record date for any
action for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall automatically and with
no action by any Person be cancelled and be of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders
of the requisite number of Outstanding Securities on the date such action is
taken. Promptly after any record date is set pursuant to this paragraph, the
Company, at its own expense, shall cause notice of such record date, the
proposed action by Holders and the applicable Expiration Date to be given to the
Agent in writing and to each Holder of Securities in the manner set forth in
Section 1.6.
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With respect to any record date set pursuant to this Section, the Company
may designate any date as the "Expiration Date" and from time to time may change
the Expiration Date to any earlier or later day; provided that no such change
shall be effective unless notice of the proposed new Expiration Date is given to
the Agent in writing, and to each Holder of Securities in the manner set forth
in Section 1.6, on or prior to the existing Expiration Date. If an Expiration
Date is not designated with respect to any record date set pursuant to this
Section, the Company shall be deemed to have initially designated the 180th day
after such record date as the Expiration Date with respect thereto, subject to
its right to change the Expiration Date as provided in this paragraph.
Notwithstanding the foregoing, no Expiration Date shall be later than the 180th
day after the applicable record date.
Section 1.5. Notices.
Any notice or communication is duly given if in writing and delivered in
Person or mailed by first class mail (registered or certified, return receipt
requested), telecopier (with receipt confirmed) or overnight air courier
guaranteeing next day delivery, to the others' address; provided that notice
shall be deemed given to the Agent only upon receipt thereof:
If to the Agent:
The First National Bank of Chicago
One First National Plaza
Suite 0126
Chicago, IL 60670-0126
Telecopier No.: 312-407-1706
Attention: Corporate Trust Department
If to the Company:
Bank United Corp.
3200 Southwest Freeway
Suite 3200
Houston, TX 77027
Telecopier No.: 713-543-7744
Attention: Jonathon K. Heffron, Esq.
If to the Collateral Agent:
The Bank of New York
101 Barclay Street
Floor 21 West
New York, NY 10286
Telecopier No.: 212-815-5915
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Attention: Corporate Trust Administration
Section 1.6. Notice to Holders; Waiver.
Where this Agreement provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at its address as it appears in the applicable Register, not
later than the latest date, and not earlier than the earliest date, prescribed
for the giving of such notice. In any case where notice to Holders is given by
mail, neither the failure to mail such notice, nor any defect in any notice so
mailed to any particular Holder shall affect the sufficiency of such notice with
respect to other Holders. Where this Agreement provides for notice in any
manner, such notice may be waived in writing by the Person entitled to receive
such notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with the
Agent, but such filing shall not be a condition precedent to the validity of any
action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason
of any other cause it shall be impracticable to give such notice by mail, then
such notification as shall be made with the approval of the Agent shall
constitute a sufficient notification for every purpose hereunder.
Section 1.7. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section 1.8. Successors and Assigns.
All covenants and agreements in this Agreement by the Company shall bind
its successors and assigns, whether so expressed or not.
Section 1.9. Separability Clause.
In case any provision in this Agreement or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions hereof and thereof shall not in any way be affected or
impaired thereby.
Section 1.10. Benefits of Agreement.
Nothing in this Agreement or in the Securities, express or implied, shall
give to any Person, other than the parties hereto and their successors hereunder
and, to the extent provided hereby, the Holders, any benefits or any legal or
equitable right, remedy or claim under this Agreement. The Holders from time to
time shall be beneficiaries of this Agreement and shall be bound by all of the
terms and conditions hereof and of the Securities evidenced by their
Certificates by their acceptance of delivery of such Certificates.
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Section 1.11. Governing Law.
This Agreement and the Securities shall be governed by and construed in
accordance with the laws of the State of New York.
Section 1.12. Legal Holidays.
In any case where any Payment Date shall not be a Business Day, then
(notwithstanding any other provision of this Agreement or the Corporate PIES
Certificates or the Treasury PIES Certificates) payment of the Contract
Adjustment Payments, if any, shall not be made on such date, but such payments
shall be made on the next succeeding Business Day with the same force and effect
as if made on such Payment Date, provided that no interest shall accrue or be
payable by the Company or any Holder for the period from and after any such
Payment Date, except that, if such next succeeding Business Day is in the next
succeeding calendar year, such payment shall be made on the immediately
preceding Business Day with the same force and effect as if made on such Payment
Date.
In any case where any Purchase Contract Settlement Date shall not be a
Business Day, then (notwithstanding any other provision of this Agreement, the
Corporate PIES Certificates or the Treasury PIES Certificates) Purchase
Contracts shall not be performed on such date, but the Purchase Contracts shall
be performed on the immediately following Business Day with the same force and
effect as if performed on the Purchase Contract Settlement Date.
Section 1.13. Counterparts.
This Agreement may be executed in any number of counterparts by the
parties hereto on separate counterparts, each of which, when so executed and
delivered, shall be deemed an original, but all such counterparts shall together
constitute one and the same instrument.
Section 1.14. Inspection of Agreement.
A copy of this Agreement shall be available at all reasonable times during
normal business hours at the Corporate Trust Office for inspection by any Holder
or Beneficial Owner.
ARTICLE II
Certificate Forms
Section 2.1. Forms of Certificates Generally.
The Corporate PIES Certificates (including the form of Purchase Contract
forming part of the Corporate PIES evidenced thereby) shall be provided by the
Company and shall be in substantially the form set forth in Exhibit A hereto,
with such letters, numbers or other marks of identification or designation and
such legends or endorsements printed, lithographed or engraved thereon as may be
required by the rules of any securities exchange on which the Corporate PIES
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are listed or any depositary therefor, or as may, consistently herewith, be
determined by the officers of the Company executing such Corporate PIES
Certificates, as evidenced by their execution of the Corporate PIES
Certificates.
The definitive Corporate PIES Certificates shall be provided by the
Company and shall be printed, lithographed or engraved on steel engraved borders
or may be produced in any other manner, all as determined by the officers of the
Company executing the Corporate PIES evidenced by such Corporate PIES
Certificates, consistent with the provisions of this Agreement, as evidenced by
their execution thereof.
The Treasury PIES Certificates (including the form of Purchase Contracts
forming part of the Treasury PIES evidenced thereby) shall be provided by the
Company and shall be in substantially the form set forth in Exhibit B hereto,
with such letters, numbers or other marks of identification or designation and
such legends or endorsements printed, lithographed or engraved thereon as may be
required by the rules of any securities exchange on which the Treasury PIES may
be listed or any depositary therefor, or as may, consistently herewith, be
determined by the officers of the Company executing such Treasury PIES
Certificates, as evidenced by their execution of the Treasury PIES Certificates.
The definitive Treasury PIES Certificates shall be provided by the Company
and shall be printed, lithographed or engraved on steel engraved borders or may
be produced in any other manner, all as determined by the officers of the
Company executing the Treasury PIES evidenced by such Treasury PIES
Certificates, consistent with the provisions of this Agreement, as evidenced by
their execution thereof.
Every Global Certificate authenticated, executed on behalf of the Holders
and delivered hereunder shall bear a legend in substantially the following form:
"THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE
PURCHASE CONTRACT AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED IN
THE NAME OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (THE
"DEPOSITARY"), OR A NOMINEE OF THE DEPOSITARY. THIS CERTIFICATE IS
EXCHANGEABLE FOR CERTIFICATES REGISTERED IN THE NAME OF A PERSON OTHER
THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE PURCHASE CONTRACT AGREEMENT AND NO TRANSFER OF THIS
CERTIFICATE (OTHER THAN A TRANSFER OF THIS CERTIFICATE AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE
REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITARY FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REQUESTED IN THE NAME OF CEDE & CO. OR SUCH OTHER
NAME AS REGISTERED BY
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AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT HEREON IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN."
Section 2.2. Form of Agent's Certificate of Authentication.
The form of the Agent's certificate of authentication of the Corporate
PIES shall be in substantially the form set forth on the form of the Corporate
PIES Certificates.
The form of the Agent's certificate of authentication of the Treasury PIES
shall be in substantially the form set forth on the form of the Treasury PIES
Certificates.
ARTICLE III
The Securities
Section 3.1. Amount; Form and Denominations.
The aggregate number of Securities evidenced by Certificates
authenticated, executed on behalf of the Holders and delivered hereunder is
limited to 2,000,000 except for Certificates authenticated, executed and
delivered upon registration of transfer of, in exchange for, or in lieu of,
other Certificates pursuant to Section 3.4, 3.5, 3.10, 3.13, 3.14, 5.9 or 8.5.
The Certificates shall be issuable only in registered form and only in
denominations of a single Corporate PIES or Treasury PIES and any integral
multiple thereof.
Section 3.2. Rights and Obligations Evidenced by the Certificates.
Each Corporate PIES Certificate shall evidence the number of Corporate
PIES specified therein, with each such Corporate PIES representing the ownership
by the Holder thereof of a beneficial interest in a share of Preferred Stock,
subject to the Pledge of such share of Preferred Stock by such Holder pursuant
to the Pledge Agreement, and the rights and obligations of the Holder thereof
and the Company under one Purchase Contract. The Agent as attorney-in-fact for,
and on behalf of, the Holder of each Corporate PIES shall pledge, pursuant to
the Pledge Agreement, the share of Preferred Stock, forming a part of such
Corporate PIES, to the Collateral Agent and grant to the Collateral Agent a
security interest in the right, title and interest of such Holder in such share
of Preferred Stock for the benefit of the Company, to secure the obligation of
the Holder under each Purchase Contract to purchase the Common Stock of the
Company. Prior to the purchase of shares of Common Stock under each Purchase
Contract, such Purchase Contracts shall not entitle the Holder of a Corporate
PIES Certificate to any of the rights of a holder of shares of Common Stock,
including, without limitation, the right to vote or receive any dividends or
other payments or to consent or to receive notice as a stockholder in respect of
the
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meetings of stockholders or for the election of directors of the Company or
for any other matter, or any other rights whatsoever as a stockholder of the
Company.
Each Treasury PIES Certificate shall evidence the number of Treasury PIES
specified therein, with each such Treasury PIES representing the ownership by
the Holder thereof of a 1/20 undivided beneficial interest in a Treasury
Security with a principal amount equal to $1,000, subject to the Pledge of such
Treasury Security by such Holder pursuant to the Pledge Agreement, and the
rights and obligations of the Holder thereof and the Company under one Purchase
Contract. Prior to the purchase, if any, of shares of Common Stock under each
Purchase Contract, such Purchase Contract shall not entitle the Holder of a
Treasury PIES Certificate to any of the rights of a holder of shares of Common
Stock, including, without limitation, the right to vote or receive any dividends
or other payments or to consent or to receive notice as a stockholder in respect
of the meetings of stockholders or for the election of directors of the Company
or for any other matter, or any other rights whatsoever as a stockholder of the
Company.
Section 3.3. Execution, Authentication, Delivery and Dating.
Subject to the provisions of Sections 3.13 and 3.14 hereof, upon the
execution and delivery of this Agreement, and at any time and from time to time
thereafter, the Company may deliver Certificates executed by the Company to the
Agent for authentication, execution on behalf of the Holders and delivery,
together with its Issuer Order for authentication of such Certificates, and the
Agent in accordance with such Issuer Order shall authenticate, execute on behalf
of the Holders and deliver such Certificates.
The Certificates shall be executed on behalf of the Company by its
Chairman of the Board, its President or one of its Vice Presidents. The
signature of any of these officers on the Certificates may be manual or
facsimile.
Certificates bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Certificates or did not
hold such offices at the date of such Certificates.
No Purchase Contract evidenced by a Certificate shall be valid until such
Certificate has been executed on behalf of the Holder by the manual signature of
an authorized signatory of the Agent, as such Holder's attorney-in-fact. Such
signature by an authorized signatory of the Agent shall be conclusive evidence
that the Holder of such Certificate has entered into the Purchase Contracts
evidenced by such Certificate.
Each Certificate shall be dated the date of its authentication.
No Certificate shall be entitled to any benefit under this Agreement or be
valid or obligatory for any purpose unless there appears on such Certificate a
certificate of authentication substantially in the form provided for herein
executed by an authorized signatory of the Agent by
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manual signature, and such certificate upon any Certificate shall be conclusive
evidence, and the only evidence, that such Certificate has been duly
authenticated and delivered hereunder.
Section 3.4. Temporary Certificates.
Pending the preparation of definitive Certificates, the Company shall
provide and shall execute and deliver to the Agent, and the Agent shall
authenticate, execute on behalf of the Holders, and deliver, in lieu of such
definitive Certificates, temporary Certificates which are in substantially the
form set forth in Exhibit A or Exhibit B hereto, as the case may be, with such
letters, numbers or other marks of identification or designation and such
legends or endorsements printed, lithographed or engraved thereon as may be
required by the rules of any securities exchange on which the Corporate PIES or
Treasury PIES are listed, or as may, consistently herewith, be determined by the
officers of the Company executing such Certificates, as evidenced by their
execution of the Certificates.
If temporary Certificates are issued, the Company will cause definitive
Certificates to be prepared without unreasonable delay. After the preparation of
definitive Certificates, the temporary Certificates shall be exchangeable for
definitive Certificates upon surrender of the temporary Certificates at the
Corporate Trust Office, at the expense of the Company and without charge to the
Holder. Upon surrender for cancellation of any one or more temporary
Certificates, the Company shall execute and deliver to the Agent, and the Agent
shall authenticate, execute on behalf of the Holder, and deliver in exchange
therefor, one or more definitive Certificates of like tenor and denominations
and evidencing a like aggregate number of Corporate PIES or Treasury PIES, as
the case may be, as the temporary Certificate or Certificates so surrendered.
Until so exchanged, the temporary Certificates shall in all respects evidence
the same benefits and the same obligations with respect to the Corporate PIES or
Treasury PIES, as the case may be, evidenced thereby as definitive Certificates.
Section 3.5. Registration; Registration of Transfer and Exchange.
The Agent shall keep at the Corporate Trust Office a register (the
"Corporate PIES Register") in which, subject to such reasonable regulations as
it may prescribe, the Agent shall provide for the registration of Corporate PIES
Certificates and of transfers of Corporate PIES Certificates (the Agent, in such
capacity, the "Corporate PIES Registrar") and a register (the "Treasury PIES
Register") in which, subject to such reasonable regulations as it may prescribe,
the Agent shall provide for the registration of the Treasury PIES Certificates
and transfers of Treasury PIES Certificates (the Agent, in such capacity, the
"Treasury PIES Registrar").
Upon surrender for registration of transfer of any Certificate at the
Corporate Trust Office, the Company shall execute and deliver to the Agent, and
the Agent shall authenticate, execute on behalf of the designated transferee or
transferees, and deliver, in the name of the designated transferee or
transferees, one or more new Certificates of any authorized denominations, like
tenor, and evidencing a like aggregate number of Corporate PIES or Treasury
PIES, as the case may be.
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At the option of the Holder, Certificates may be exchanged for other
Certificates, of any authorized denominations and evidencing a like number of
Corporate PIES or Treasury PIES, as the case may be, upon surrender of the
Certificates to be exchanged at the Corporate Trust Office. Whenever any
Certificates are so surrendered for exchange, the Company shall execute and
deliver to the Agent, and the Agent shall authenticate, execute on behalf of the
Holder, and deliver the Certificates which the Holder making the exchange is
entitled to receive.
All Certificates issued upon any registration of transfer or exchange of a
Certificate shall evidence the ownership of the same aggregate number of
Corporate PIES or Treasury PIES, as the case may be, and be entitled to the same
benefits and subject to the same obligations, under this Agreement as the
Corporate PIES or Treasury PIES, as the case may be, evidenced by the
Certificate surrendered upon such registration of transfer or exchange.
Every Certificate presented or surrendered for registration of transfer or
for exchange shall (if so required by the Agent) be duly endorsed, or be
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Agent duly executed, by the Holder thereof or its attorney duly
authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of a Certificate, but the Company and the Agent may require payment
from the Holder of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer or
exchange of Certificates, other than any exchanges pursuant to Sections 3.6,
3.10 and 8.5 not involving any transfer.
Notwithstanding the foregoing, the Company shall not be obligated to
execute and deliver to the Agent, and the Agent shall not be obligated to
authenticate, execute on behalf of the Holder and deliver any Certificate in
exchange for any other Certificate presented or surrendered for registration of
transfer or for exchange on or after the Business Day immediately preceding the
earlier of the Purchase Contract Settlement Date or the Termination Date. In
lieu of delivery of a new Certificate, upon satisfaction of the applicable
conditions specified above in this Section and receipt of appropriate
registration or transfer instructions from such Holder, the Agent shall (i) if
the Purchase Contract Settlement Date has occurred, deliver the shares of Common
Stock issuable in respect of the Purchase Contracts forming a part of the
Securities evidenced by such other Certificate or (ii) if a Termination Event
shall have occurred prior to the Purchase Contract Settlement Date, transfer the
Preferred Stocks or the Treasury Securities, as the case may be, evidenced
thereby, in each case subject to the applicable conditions and in accordance
with the applicable provisions of Article Five hereof.
Section 3.6. Book-Entry Interests.
The Certificates, on original issuance, will be issued in the form of one
or more fully registered Global Certificates, to be delivered to the Depositary
by, or on behalf of, the Company. Such Global Certificate shall initially be
registered on the books and records of the Company in the name of Cede & Co.,
the nominee of the Depositary, and no Beneficial Owner will receive a definitive
Certificate representing such Beneficial Owner's interest in such Global
Certificate, except as provided in Section 3.9. The Agent shall enter into an
agreement with the Depositary if
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so requested by the Company. Unless and until definitive, fully registered
Certificates have been issued to Beneficial Owners pursuant to Section 3.9:
(a) the provisions of this Section 3.6 shall be in full force and
effect;
(b) the Company and the Agent shall be entitled to deal with the Clearing
Agency for all purposes of this Agreement (including the payment of Contract
Adjustment Payments, if any, and receiving approvals, votes or consents
hereunder and for purposes of Section 3.11 hereof) as the Holder of the
Securities and the sole holder of the Global Certificate(s) and shall have no
obligation to the Beneficial Owners;
(c) to the extent that the provisions of this Section 3.6 conflict
with any other provisions of this Agreement, the provisions of this Section 3.6
shall control; and
(d) the rights of the Beneficial Owners shall be exercised only
through the Clearing Agency and shall be limited to those established by law and
agreements between such Beneficial Owners and the Clearing Agency and/or the
Clearing Agency Participants.
Section 3.7. Notices to Holders.
Whenever a notice or other communication to the Holders is required to be
given under this Agreement, the Company or the Company's agent shall give such
notices and communications to the Holders and, with respect to any Securities
registered in the name of a Clearing Agency or the nominee of a Clearing Agency,
the Company or the Company's agent shall, except as set forth herein, have no
obligations to the Beneficial Owners.
Section 3.8. Appointment of Successor Clearing Agency.
If any Clearing Agency elects to discontinue its services as securities
depositary with respect to the Securities, the Company may, in its sole
discretion, appoint a successor Clearing Agency with respect to the Securities.
Section 3.9. Definitive Certificates.
If (i) a Clearing Agency elects to discontinue its services as securities
depositary with respect to the Securities and a successor Clearing Agency is not
appointed within 90 days after such discontinuance pursuant to Section 3.8 or
(ii) there shall have occurred and be continuing a default by the Company in
respect of its obligations under one or more Purchase Contracts, then upon
surrender of the Global Certificates representing the Securities by the Clearing
Agency, accompanied by registration instructions, the Company shall cause
definitive Certificates to be delivered to Beneficial Owners in accordance with
the instructions of the Clearing Agency. The Company shall not be liable for any
delay in delivery of such instructions and may conclusively rely on and shall be
protected in relying on, such instructions.
Section 3.10. Mutilated, Destroyed, Lost and Stolen Certificates.
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If any mutilated Certificate is surrendered to the Agent, the Company
shall execute and deliver to the Agent, and the Agent shall authenticate,
execute on behalf of the Holder, and deliver in exchange therefor, a new
Certificate, evidencing the same number of Corporate PIES or Treasury PIES, as
the case may be, and bearing a Certificate number not contemporaneously
outstanding.
If there shall be delivered to the Company and the Agent (i) evidence to
their satisfaction of the destruction, loss or theft of any Certificate, and
(ii) such security or indemnity as may be required by them to hold each of them
and any agent of any of them harmless, then, in the absence of notice to the
Company or the Agent that such Certificate has been acquired by a bona fide
purchaser, the Company shall execute and deliver to the Agent, and the Agent
shall authenticate, execute on behalf of the Holder, and deliver to the Holder,
in lieu of any such destroyed, lost or stolen Certificate, a new Certificate,
evidencing the same number of Corporate PIES or Treasury PIES, as the case may
be, and bearing a Certificate number not contemporaneously outstanding.
Notwithstanding the foregoing, the Company shall not be obligated to
execute and deliver to the Agent, and the Agent shall not be obligated to
authenticate, execute on behalf of the Holder, and deliver to the Holder, a
Certificate on or after the Business Day immediately preceding the earlier of
the Purchase Contract Settlement Date or the Termination Date. In lieu of
delivery of a new Certificate, upon satisfaction of the applicable conditions
specified above in this Section and receipt of appropriate registration or
transfer instructions from such Holder, the Agent shall (i) if the Purchase
Contract Settlement Date has occurred, deliver the shares of Common Stock
issuable in respect of the Purchase Contracts forming a part of the Securities
evidenced by such Certificate, or (ii) if a Termination Event shall have
occurred prior to the Purchase Contract Settlement Date, transfer the Preferred
Stock or the Treasury Securities, as the case may be, evidenced thereby, in each
case subject to the applicable conditions and in accordance with the applicable
provisions of Article Five hereof.
Upon the issuance of any new Certificate under this Section, the Company
and the Agent may require the payment by the Holder of a sum sufficient to cover
any tax or other governmental charge that may be imposed in relation thereto and
any other expenses (including the fees and expenses of the Agent) connected
therewith.
Every new Certificate issued pursuant to this Section in lieu of any
destroyed, lost or stolen Certificate shall constitute an original additional
contractual obligation of the Company and of the Holder in respect of the
Security evidenced thereby, whether or not the destroyed, lost or stolen
Certificate (and the Securities evidenced thereby) shall be at any time
enforceable by anyone, and shall be entitled to all the benefits and be subject
to all the obligations of this Agreement equally and proportionately with any
and all other Certificates delivered hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Certificates.
Section 3.11. Persons Deemed Owners.
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Prior to due presentment of a Certificate for registration of transfer,
the Company and the Agent, and any agent of the Company or the Agent, may treat
the Person in whose name such Certificate is registered as the owner of the
Corporate PIES or Treasury PIES evidenced thereby, for the purpose of receiving
dividend payments on the Preferred Stock receiving payments of Contract
Adjustment Payments, performance of the Purchase Contracts and for all other
purposes whatsoever, whether or not any dividend payments on the Preferred Stock
or the Contract Adjustment Payments payable in respect of the Purchase Contracts
constituting a part of the Corporate PIES or Treasury PIES evidenced thereby
shall be overdue and notwithstanding any notice to the contrary, and neither the
Company nor the Agent, nor any agent of the Company or the Agent, shall be
affected by notice to the contrary.
Notwithstanding the foregoing, with respect to any Global Certificate,
nothing herein shall prevent the Company, the Agent or any agent of the Company
or the Agent, from giving effect to any written certification, proxy or other
authorization furnished by any Clearing Agency (or its nominee), as a Holder,
with respect to such Global Certificate or impair, as between such Clearing
Agency and owners of beneficial interests in such Global Certificate, the
operation of customary practices governing the exercise of rights of such
Clearing Agency (or its nominee) as Holder of such Global Certificate.
Section 3.12. Cancellation.
All Certificates surrendered for delivery of shares of Common Stock on or
after the Purchase Contract Settlement Date, upon the transfer of Preferred
Stock or Treasury Securities, as the case may be, after the occurrence of a
Termination Event or pursuant to an Early Settlement, or upon the registration
of a transfer or exchange of a Security, or a Collateral Substitution or the
re-establishment of a Corporate PIES shall, if surrendered to any Person other
than the Agent, be delivered to the Agent and, if not already cancelled, shall
be promptly cancelled by it. The Company may at any time deliver to the Agent
for cancellation any Certificates previously authenticated, executed and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Certificates so delivered shall, upon Issuer Order, be
promptly cancelled by the Agent. No Certificates shall be authenticated,
executed on behalf of the Holder and delivered in lieu of or in exchange for any
Certificates cancelled as provided in this Section, except as expressly
permitted by this Agreement. All cancelled Certificates held by the Agent shall
be destroyed by the Agent unless otherwise directed by Issuer Order.
If the Company or any Affiliate of the Company shall acquire any
Certificate, such acquisition shall not operate as a cancellation of such
Certificate unless and until such Certificate is delivered to the Agent
cancelled or for cancellation.
Section 3.13. Substitution of Securities.
A Holder may separate the shares of Preferred Stock from the related
Purchase Contracts in respect of a Corporate PIES by substituting, for such
shares of Preferred Stock Treasury Securities in an aggregate principal amount
equal to the aggregate liquidation preference of such shares of Preferred stock
(a "Collateral Substitution"), at any time from and after the date of this
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Agreement and on or prior to the seventh Business Day immediately preceding the
Purchase Contract Settlement Date by (a) depositing with the Securities
Intermediary Treasury Securities or securities entitlements thereto having an
aggregate principal amount equal to the aggregate liquidation preference of the
shares of Preferred stock comprising part of such Corporate PIES and (b)
transferring the related Corporate PIES to the Agent accompanied by a notice to
the Agent, substantially in the form of Exhibit C hereto, stating that the
Holder has transferred the relevant amount of Treasury Securities to the
Securities Intermediary and requesting that the Agent instruct the Collateral
Agent to release the share of Preferred Stock underlying such Corporate PIES,
whereupon the Agent shall promptly give such instruction to the Collateral
Agent, substantially in the form of Exhibit A to the Pledge Agreement. Upon
receipt of the Treasury Securities described in clause (a) above and the
instruction described in clause (b) above, in accordance with the terms of the
Pledge Agreement, the Collateral Agent will cause the Securities Intermediary to
release from the Pledge to the Agent, on behalf of the Holder, shares of
Preferred Stock having a corresponding aggregate liquidation preference free and
clear of the Company's security interest therein, and upon receipt thereof the
Agent shall promptly:
(i) cancel the related Corporate PIES;
(ii) transfer the share of Preferred Stock to the Holder; and
(iii) authenticate, execute on behalf of such Holder and
deliver a Treasury PIES Certificate executed by the Company in accordance
with Section 3.3 evidencing the same number of Purchase Contracts as were
evidenced by the cancelled Corporate PIES.
Holders who elect to separate the shares of Preferred Stock from the
related Purchase Contract and to substitute Treasury Securities for such shares
of Preferred Stock shall be responsible for any fees or expenses payable to the
Collateral Agent for its services as Collateral Agent in respect of the
substitution, and the Company shall not be responsible for any such fees or
expenses.
Holders may make Collateral Substitutions only in integral multiples of 20
Corporate PIES if Treasury Securities are being substituted for shares of
Preferred Stock.
In the event a Holder making a Collateral Substitution pursuant to this
Section 3.13 fails to effect a book-entry transfer of the Corporate PIES or
fails to deliver a Corporate PIES Certificate(s) to the Agent after depositing
Treasury Securities with the Collateral Agent, the shares of Preferred Stock ,
constituting a part of such Corporate PIES, and any dividends on such shares of
Preferred Stock, shall be held in the name of the Agent or its nominee in trust
for the benefit of such Holder, until such Corporate PIES is so transferred or
the Corporate PIES Certificate is so delivered, as the case may be, or, with
respect to a Corporate PIES Certificate, such Holder provides evidence
satisfactory to the Company and the Agent that such Corporate PIES Certificate
has been destroyed, lost or stolen, together with any indemnity that may be
required by the Agent and the Company.
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Except as described in this Section 3.13, for so long as the Purchase
Contract underlying a Corporate PIES remains in effect, such Corporate PIES
shall not be separable into its constituent parts, and the rights and
obligations of the Holder in respect of the shares of Preferred Stock and the
Purchase Contract comprising such Corporate PIES may be acquired, and may be
transferred and exchanged, only as a Corporate PIES.
Section 3.14. Reestablishment of Corporate PIES.
A Holder of a Treasury PIES may recreate Corporate PIES at any time on or
prior to the seventh Business Day immediately preceding the Purchase Contract
Settlement Date by (a) depositing with the Securities Intermediary shares of
Preferred stock or security entitlements thereto having an aggregate liquidation
preference equal to the aggregate principal amount at maturity of the Treasury
Securities comprising part of the Treasury PIES and (b) transferring the related
Treasury PIES to the Agent accompanied by a notice to the Agent, substantially
in the form of Exhibit C hereto, stating that the Holder has transferred the
relevant amount of shares of Preferred Stock to the Securities Intermediary and
requesting that the Agent instruct the Collateral Agent to release the Treasury
Securities underlying such Treasury PIES, whereupon the Agent shall promptly
give such instruction to the Collateral Agent, substantially in the form of
Exhibit C to the Pledge Agreement. Upon receipt of the shares of Preferred Stock
described in clause (a) above and the instruction described in clause (b) above,
in accordance with the terms of the Pledge Agreement, the Collateral Agent will
cause the Securities Intermediary to effect the release of the Treasury
Securities having a corresponding aggregate principal amount at maturity from
the Pledge to the Agent free and clear of the Company's security interest
therein, and upon receipt thereof the Agent shall promptly:
(i) cancel the related Treasury PIES;
(ii) transfer the Treasury Securities to the Holder; and
(iii) authenticate, execute on behalf of such Holder and
deliver a Corporate PIES Certificate executed by the Company in accordance
with Section 3.3 evidencing the same number of Purchase Contracts as were
evidenced by the cancelled Treasury PIES.
Holders who elect to recreate Corporate PIES shall be responsible for any
fees or expenses payable to the Collateral Agent for its services as Collateral
Agent in respect of the substitution, and the Company shall not be responsible
for any such fees or expenses.
Holders of Treasury PIES may reestablish Corporate PIES in integral
multiples of 20 Treasury PIES for 20 Corporate PIES.
Except as provided in this Section 3.14, for so long as the Purchase
Contract underlying a Treasury PIES remains in effect, such Treasury PIES shall
not be separable into its constituent parts and the rights and obligations of
the Holder of such Treasury PIES in respect of the 1/20 of a Treasury Security
and the Purchase Contract comprising such Treasury PIES may be acquired, and may
be transferred and exchanged, only as a Treasury PIES.
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Section 3.15. Transfer of Collateral upon Occurrence of Termination Event.
Upon notice to the Agent of the occurrence of a Termination Event and the
transfer to the Agent of the shares of Preferred Stock or the Treasury
Securities, as the case may be, underlying the Corporate PIES and the Treasury
PIES pursuant to the terms of the Pledge Agreement, the Agent shall request
transfer instructions with respect to such Shares or Treasury Securities, as the
case may be, from each Holder by written request, substantially in the form of
Exhibit D hereto, mailed to such Holder at its address as it appears in the
Corporate PIES Register or the Treasury PIES Register, as the case may be. Upon
book-entry transfer of the Corporate PIES or Treasury PIES or delivery of a
Corporate PIES Certificate or Treasury PIES Certificate to the Agent with such
transfer instructions, the Agent shall transfer the shares of Preferred Stock or
Treasury Securities, as the case may be, underlying such Corporate PIES or
Treasury PIES, as the case may be, to such Holder by book-entry transfer, or
other appropriate procedures, in accordance with such instructions. In the event
a Holder of Corporate PIES or Treasury PIES fails to effect such transfer or
delivery, the shares of Preferred Stock or Treasury Securities, as the case may
be, underlying such Corporate PIES or Treasury PIES, as the case may be, and any
dividends or interest thereon, shall be held in the name of the Agent or its
nominee in trust for the benefit of such Holder, until the earlier of (a)
transfer of such Corporate PIES or Treasury PIES or surrender of the Corporate
PIES Certificate or Treasury PIES Certificate or such Holder provides
satisfactory evidence that such Corporate PIES Certificate or Treasury PIES
Certificate has been destroyed, lost or stolen, together with any indemnity that
may be required by the Agent and the Company and (b) the expiration of the time
period specified in the abandoned property laws of the relevant State.
Section 3.16. No Consent to Assumption.
Each Holder of a Security, by acceptance thereof, shall be deemed
expressly to have withheld any consent to the assumption under Section 365 of
the Bankruptcy Code or otherwise, of the Purchase Contract by the Company or its
trustee, receiver, liquidator or a person or entity performing similar functions
in the event that the Company becomes the debtor under the Bankruptcy Code or
subject to other similar state or federal law providing for reorganization or
liquidation.
ARTICLE IV
The Shares of Preferred Stock
Section 4.1. Payment of Dividends; Rights to Dividends Preserved;
Dividend Rate Reset.
Dividends on any share of Preferred Stock which are paid on any Payment
Date shall, subject to receipt thereof by the Agent from the Securities
Intermediary as provided by the terms of the Pledge Agreement together with the
Contract Adjustment Payments, be paid to the Person in whose name the Corporate
PIES Certificate (or one or more Predecessor Corporate PIES
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Certificates) of which such Share is a part is registered at the close of
business on the Record Date for such Payment Date.
Each Corporate PIES Certificate evidencing shares of Preferred Stock
delivered under this Agreement upon registration of transfer of or in exchange
for or in lieu of any other Corporate PIES Certificate shall carry the rights to
accrued and unpaid dividends, and to accrue dividends, which were carried by the
shares of Preferred Stock underlying such other Corporate PIES Certificate.
In the case of any Corporate PIES with respect to which Cash Settlement of
the underlying Purchase Contract is effected on or prior to the fifth Business
Day immediately preceding the Purchase Contract Settlement Date pursuant to
prior notice, or with respect to which Early Settlement of the underlying
Purchase Contract is effected on an Early Settlement Date, or with respect to
which a Collateral Substitution is effected, in each case on a date that is
after any Record Date and on or prior to the next succeeding Payment Date,
dividends on the shares of Preferred Stock underlying such Corporate PIES
otherwise payable on such Payment Date shall be payable on such Payment Date
notwithstanding such Cash Settlement or Early Settlement or Collateral
Substitution, and such dividends shall, subject to receipt thereof by the Agent,
be payable to the Person in whose name the Corporate PIES Certificate (or one or
more Predecessor Corporate PIES Certificates) was registered at the close of
business on the Record Date. Except as otherwise expressly provided in the
immediately preceding sentence, in the case of any Corporate PIES with respect
to which Cash Settlement or Early Settlement of the underlying Purchase Contract
is effected on or prior to the fifth Business Day immediately preceding the
Purchase Contract Settlement Date or an Early Settlement Date, as the case may
be, or with respect to which a Collateral Substitution has been effected,
dividends on the related shares of Preferred Stock that would otherwise be
payable after the Purchase Contract Settlement Date or Early Settlement Date
shall not be payable hereunder to the Holder of such Corporate PIES; provided,
however, that to the extent that such Holder continues to hold the separated
shares of Preferred Stock that formerly comprised a part of such Holder's
Corporate PIES, such Holder shall be entitled to receive the dividends on such
separated shares of Preferred Stock pursuant to their terms.
The applicable dividend rate borne by the shares of Preferred Stock on and
after the Purchase Contract Settlement Date shall be established pursuant to the
Remarketing on the third Business Day immediately preceding the Purchase
Contract Settlement Date to equal to the Reset Rate (such Reset Rate to be in
effect on and after the Purchase Contract Settlement Date).
Section 4.2. Notice and Voting.
Under the terms of the Pledge Agreement, the Agent will be entitled to
exercise the voting and any other consensual rights pertaining to the Pledged
Preferred Stock, as the case may be, but only to the extent instructed in
writing by the Holders as described below. Upon receipt of notice of any meeting
called by the Company or Holders of Shares at which holders of shares of
Preferred stock are entitled to vote or upon any solicitation of consents,
waivers or proxies of holders of shares of Preferred stock, the Agent shall, as
soon as practicable thereafter, mail to the Holders of Corporate PIES a notice
(a) containing such information as is contained in the notice or solicitation,
(b) stating that each Holder on the record date set by the Agent therefor
(which, to
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the extent possible, shall be the same date as the record date for determining
the holders of shares of Preferred Stock, as the case may be, entitled to vote)
shall be entitled to instruct the Agent as to the exercise of the voting rights
pertaining to such shares of Preferred Stock underlying their Corporate PIES and
(c) stating the manner in which such instructions may be given. Upon the written
request of the Holders of Corporate PIES on such record date received by the
Agent at least six days prior to such meeting, the Agent shall endeavor insofar
as practicable to vote or cause to be voted, in accordance with the instructions
set forth in such requests, the maximum liquidation preference of shares of
Preferred Stock as to which any particular voting instructions are received. In
the absence of specific instructions from the Holder of a Corporate PIES, the
Agent shall abstain from voting the shares of Preferred Stock underlying such
Corporate PIES. The Company hereby agrees, if applicable, to solicit Holders of
Corporate PIES to timely instruct the Agent in order to enable the Agent to vote
such shares of Preferred Stock.
ARTICLE V
The Purchase Contracts
Section 5.1. Purchase of Shares of Common Stock.
Each Purchase Contract shall, unless an Early Settlement has occurred in
accordance with Section 5.9 hereof, obligate the Holder of the related Security
to purchase, and the Company to sell, on the Purchase Contract Settlement Date
at a price equal to the Stated Amount (the "Purchase Price"), a number of newly
issued shares of Common Stock equal to the Settlement Rate unless, on or prior
to the Purchase Contract Settlement Date, there shall have occurred a
Termination Event with respect to the Security of which such Purchase Contract
is a part. The "Settlement Rate" is equal to (a) if the Applicable Market Value
(as defined below) is equal to or greater than $44.9250 (the "Threshold
Appreciation Price"), 1.11297 shares of Common Stock per Purchase Contract, (b)
if the Applicable Market Value is less than the Threshold Appreciation Price,
but is greater than $37.4375, the number of shares of Common Stock equal to the
Stated Amount divided by the Applicable Market Value and (c) if the Applicable
Market Value is less than or equal to $37.4375, 1.33556 shares of Common Stock
per Purchase Contract, in each case subject to adjustment as provided in Section
5.6 (and in each case rounded upward or downward to the nearest 1/10,000th of a
share). As provided in Section 5.10, no fractional shares of Common Stock will
be issued upon settlement of Purchase Contracts.
The Company shall determine the Applicable market Value and the Agent may
conclusively rely on such determination.
The "Applicable Market Value" means the average of the Closing Price per
share of Common Stock on each of the 20 Trading Days ending on the third Trading
Day immediately preceding the Purchase Contract Settlement Date. The "Closing
Price" of the Common Stock on any date of determination means (i) the closing
sale price (or, if no closing price is reported, the last reported sale price)
of the Common Stock on the Nasdaq National Market on such date, (ii) if the
Common Stock is not listed for trading on the Nasdaq National Market on any such
date, the
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closing sale price as reported in the composite transactions for the principal
United States securities exchange on which the Common Stock is so listed, (iii)
if the Common Stock is not so reported, the last quoted bid price for the Common
Stock in the over-the-counter market as reported by the National Quotation
Bureau or similar organization or (iv) if such bid price is not available, the
average of the mid-point of the last bid and ask prices of the Common Stock on
such date from at least three nationally recognized independent investment
banking firms retained for this purpose by the Company. A "Trading Day" means a
day on which the Common Stock (A) is not suspended from trading on any national
or regional securities exchange or association or over-the-counter market at the
close of business and (B) has traded at least once on the national or regional
securities exchange or association or over-the-counter market that is the
primary market for the trading of the Common Stock.
Each Holder of a Corporate PIES or a Treasury PIES, by its acceptance
thereof, irrevocably authorizes the Agent to enter into and perform the related
Purchase Contract on its behalf as its attorney-in-fact (including the execution
of Certificates on behalf of such Holder), agrees to be bound by the terms and
provisions thereof, covenants and agrees to perform its obligations under such
Purchase Contracts, and consents to the provisions hereof, irrevocably
authorizes the Agent as its attorney-in-fact to enter into and perform this
Agreement and the Pledge Agreement on its behalf as its attorney-in-fact, and
consents to and agrees to be bound by the Pledge of the shares of Preferred
Stock or the Treasury Securities pursuant to the Pledge Agreement; provided that
upon a Termination Event, the rights of the Holder of such Security under the
Purchase Contract may be enforced without regard to any other rights or
obligations. Each Holder of a Corporate PIES or a Treasury PIES, by its
acceptance thereof, further covenants and agrees, that to the extent and in the
manner provided in Section 5.4 and the Pledge Agreement, but subject to the
terms thereof, Proceeds from the remarketing of the shares of Preferred Stock or
the Proceeds of the Treasury Securities on the Purchase Contract Settlement Date
shall be paid by the Collateral Agent to the Company in satisfaction of such
Holder's obligations under such Purchase Contract and such Holder shall acquire
no right, title or interest in such payments.
Upon registration of transfer of a Certificate, the transferee shall be
bound (without the necessity of any other action on the part of such transferee)
by the terms of this Agreement, the Purchase Contracts underlying such
Certificate and the Pledge Agreement and the transferor shall be released from
the obligations under this Agreement, the Purchase Contracts underlying the
Certificates so transferred and the Pledge Agreement. The Company covenants and
agrees, and each Holder of a Certificate, by its acceptance thereof, likewise
covenants and agrees, to be bound by the provisions of this paragraph.
Section 5.2. Contract Adjustment Payments.
The Company shall pay, on each Payment Date, the Contract Adjustment
Payments payable in respect of each Purchase Contract to the Person in whose
name a Certificate (or one or more Predecessor Certificates) is registered at
the close of business on the Record Date next preceding such Payment Date. The
Contract Adjustment Payments together with the dividends on any Share pursuant
to section 4.1 will be payable at the office of the Agent maintained for that
purpose or, at the option of the Company, by check mailed to the address of the
Person entitled
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thereto at such Person's address as it appears on the Corporate PIES Register or
Treasury PIES Register.
Upon the occurrence of a Termination Event, the Company's obligation to
pay Contract Adjustment Payments (including any accrued Contract Adjustment
Payments) shall cease.
Each Certificate delivered under this Agreement upon registration of
transfer of or in exchange for or in lieu of (including as a result of a
Collateral Substitution or the re-establishment of a Corporate PIES) any other
Certificate shall carry the rights to Contract Adjustment Payments accrued and
unpaid, and to accrue Contract Adjustment Payments, which were carried by the
Purchase Contracts underlying such other Certificates.
Subject to Section 5.9, in the case of any Security with respect to which
Early Settlement of the underlying Purchase Contract is effected on an Early
Settlement Date that is after any Record Date and on or prior to the next
succeeding Payment Date, Contract Adjustment Payments, if any, otherwise payable
on such Payment Date shall be payable on such Payment Date notwithstanding such
Early Settlement, and such Contract Adjustment Payments shall be paid to the
Person in whose name the Certificate evidencing such Security (or one or more
Predecessor Certificates) is registered at the close of business on such Record
Date. Except as otherwise expressly provided in the immediately preceding
sentence, in the case of any Security with respect to which Early Settlement of
the underlying Purchase Contract is effected on an Early Settlement Date,
Contract Adjustment Payments that would otherwise be payable after the Early
Settlement Date with respect to such Purchase Contract shall not be payable.
Section 5.3. [Intentionally omitted].
Section 5.4. Payment of Purchase Price.
(a) (i) Unless a Holder settles the underlying Purchase Contract through
the early delivery of cash to the Purchase Contract Agent in the manner
described in Section 5.9, each Holder of a Corporate PIES who intends to pay in
cash to satisfy such Holder's obligation under the Purchase Contract shall
notify the Agent by use of a notice in substantially the form of Exhibit E
hereto of its intention to pay in cash (the "Cash Settlement") the Purchase
Price for the shares of Common Stock to be purchased pursuant to a Purchase
Contract. Such notice shall be given prior to 5:00 p.m., New York City time, on
the seventh Business Day immediately preceding the Purchase Contract Settlement
Date. Prior to 11:00 a.m., New York City time, on the next succeeding Business
Day, the Agent shall notify the Collateral Agent of the receipt of such notices
from Holders intending to make a Cash Settlement.
(ii) A Holder of a Corporate PIES who has so notified the Agent of its
intention to make a Cash Settlement shall pay the Purchase Price to the
Securities Intermediary for deposit in the Collateral Account prior to 11:00
a.m., New York City time, on the fifth Business Day immediately preceding the
Purchase Contract Settlement Date in lawful money of the United States by
certified or cashiers' check or wire transfer, in each case in immediately
available funds payable to or upon the order of the Securities Intermediary. Any
cash received by the Collateral Agent shall be invested promptly by the
Securities Intermediary in Permitted Investments and paid to the Company on the
Purchase Contract Settlement Date in settlement of
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the Purchase Contract in accordance with the terms of this Agreement and the
Pledge Agreement. Any funds received by the Securities Intermediary in respect
of the investment earnings from the investment in such Permitted Investments
shall be distributed to the Agent when received for payment to the Holder of the
related Corporate PIES on the Purchase Contract Settlement Date.
(iii) If a Holder of a Corporate PIES fails to notify the Agent of its
intention to make a Cash Settlement in accordance with paragraph (a)(i) above,
or does notify the Agent as provided in paragraph (a)(i) above of its intention
to pay the Purchase Price in cash, but fails to make such payment as required by
paragraph (a)(ii) above, such Holder shall be deemed to have consented to the
disposition of the Pledged shares of Preferred Stock pursuant to the remarketing
as described in paragraph (b) below.
(iv) Not later than 15 calendar days nor more than 30 calendar days prior
to the third Business Day immediately preceding the Purchase Contract Settlement
Date, the Company shall request DTC (or any successor Clearing Agency), to
notify the Beneficial Owners or Clearing Agency Participants holding Corporate
PIES or Treasury PIES of the procedures to be followed by Holders of Corporate
PIES who intend to effect the settlement of their obligations under the Purchase
Contracts underlying such Corporate PIES with separate cash on or prior to the
fifth Business Day prior to the Purchase Contract Settlement Date.
(v) Promptly after 11:00 a.m., New York City time, on the fifth Business
Day preceding the Purchase Contract Settlement Date, the Agent, based on notices
received by the Agent pursuant to Section 5.4(a)(i) hereof and notice from the
Securities Intermediary regarding cash received by it prior to such time, shall
notify the Collateral Agent of the aggregate liquidation preference of shares of
Preferred Stock to be tendered for purchase in the Remarketing in a notice
substantially in the form of Exhibit F hereto.
(b) In order to dispose of the shares of Preferred Stock, Corporate PIES
Holders who have not notified the Agent of their intention to effect a Cash
Settlement as provided in paragraph (a)(i) above, or who have so notified the
Agent but fail to make such payment as required by paragraph (a)(ii) above, the
Company shall engage Lehman Brothers Inc. (the "Remarketing Agent") pursuant to
the Remarketing Agreement to sell such shares of Preferred Stock. In order to
facilitate the remarketing, the Agent, based on the notices specified in Section
5.4(a)(v), shall notify the Remarketing Agent, promptly after 11:00 a.m., New
York City time, on the fifth Business Day immediately preceding the Purchase
Contract Settlement Date, of the aggregate principal liquidation preference of
shares of Preferred Stock that are a component of Corporate PIES to be
remarketed. Concurrently, the Collateral Agent, pursuant to the terms of the
Pledge Agreement, shall cause such shares of Preferred Stock to be presented to
the Remarketing Agent for remarketing. Upon receipt of such notice from the
Agent and such shares of Preferred Stock, the Remarketing Agent shall, on the
third Business Day immediately preceding the Purchase Contract Settlement Date,
use commercially reasonable efforts to remarket such Shares on such date at a
price of 100.50% of the aggregate liquidation preference of such shares of
Preferred Stock. The proceeds equal to 100% of the aggregate liquidation
preference of the remarketed shares of Preferred Stock shall automatically be
applied by the Collateral Agent, in accordance with the Pledge Agreement, to
satisfy in full such Corporate PIES Holders' obligations to pay the Purchase
Price for the Common Stock under the related
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Purchase Contracts on the Purchase Contract Settlement Date. The proceeds equal
to .50% of the aggregate liquidation preference of the remarketed shares of
Preferred Stock shall automatically be applied, in accordance with the Pledge
Agreement, to pay the remarketing fee of the Remarketing Agent. Corporate PIES
Holders whose shares of Preferred Stock are so remarketed shall not be
responsible for the payment of any remarketing fee in connection therewith. If,
in spite of using their reasonable efforts, the Remarketing Agent cannot
remarket the related shares of Preferred Stock of such Holders of Corporate PIES
at a price of 100.50% of the aggregate liquidation preference of such shares of
Preferred Stock, the remarketing shall be deemed to have failed (a "Failed
Remarketing") and in accordance with the terms of the Pledge Agreement the
Collateral Agent, for the benefit of the Company, shall be entitled to exercise
its rights as a secured party with respect to such shares of Preferred Stock,
including those actions specified in paragraph (c) below; provided that if upon
a Failed Remarketing the Collateral Agent exercises such rights for the benefit
of the Company with respect to such shares of Preferred Stock, any accrued and
unpaid dividends on such Shares shall become payable by the Company to the Agent
for payment to the Beneficial Owner of the Corporate PIES to which such shares
of Preferred Stock relate. The Company shall cause a notice of such Failed
Remarketing to be published no later than the Business Day immediately preceding
the Purchase Contract Settlement Date in a daily newspaper in the English
language of general circulation in the City of New York, which is expected to be
The Wall Street Journal.
(c) With respect to any shares of Preferred Stock which are subject to a
Failed Remarketing, the Collateral Agent for the benefit of the Company reserves
all of its rights as a secured party with respect thereto and, subject to
applicable law and paragraph (g) below, may, among other things, (i) retain the
shares of Preferred Stock in full satisfaction of the Holders' obligations under
the Purchase Contracts or (ii) sell the shares of Preferred Stock in one or more
public or private sales.
(d) (i) Unless a Holder of Treasury PIES settles the underlying Purchase
Contract through the early delivery of cash to the Purchase Contract Agent in
the manner described in Section 5.9, each Holder of a Treasury PIES who intends
to pay in cash shall notify the Agent by use of a notice in substantially the
form of Exhibit E hereto of its intention to pay in cash the Purchase Price for
the shares of Common Stock to be purchased pursuant to a Purchase Contract. Such
notice shall be given on or prior to 5:00 p.m., New York City time, on the
second Business Day immediately preceding the Purchase Contract Settlement Date.
(ii) A Holder of a Treasury PIES who has so notified the Agent of its
intention to make a Cash Settlement in accordance with paragraph (d)(i) above
shall pay the Purchase Price to the Securities Intermediary for deposit in the
Collateral Account prior to 11:00 a.m., New York City time, on the Business Day
immediately preceding the Purchase Contract Settlement Date in lawful money of
the United States by certified or cashiers' check or wire transfer, in each case
in immediately available funds payable to or upon the order of the Securities
Intermediary. Any cash received by the Collateral Agent shall be invested
promptly by the Securities Intermediary in Permitted Investments and paid to the
Company on the Purchase Contract Settlement Date in settlement of the Purchase
Contract in accordance with the terms of this Agreement and the Pledge
Agreement. Any funds received by the Securities Intermediary in
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respect of the investment earnings from the investment in such Permitted
Investments shall be distributed to the Agent when received for payment to the
Holder.
(iii) If a Holder of a Treasury PIES fails to notify the Agent of its
intention to make a Cash Settlement in accordance with paragraph (d)(i) above,
or does notify the Agent as provided in paragraph (d)(i) above of its intention
to pay the Purchase Price in cash, but fails to make such payment as required by
paragraph (d)(ii) above, then upon the maturity of the Pledged Treasury
Securities held by the Securities Intermediary on the Business Day immediately
prior to the Purchase Contract Settlement Date, the principal amount of the
Treasury Securities received by the Securities Intermediary shall be invested
promptly in Permitted Investments. On the Purchase Contract Settlement Date an
amount equal to the Purchase Price shall be remitted to the Company as payment
thereof without receiving any instructions from the Holder. In the event the sum
of the proceeds from the related Pledged Treasury Securities and the investment
earnings earned from such investments is in excess of the aggregate Purchase
Price of the Purchase Contracts being settled thereby, the Collateral Agent
shall cause the Securities Intermediary to distribute such excess to the Agent
for the benefit of the Holder of the related Treasury PIES when received.
(e) Any distribution to Holders of excess funds and interest described
above shall be payable at the office of the Agent maintained for that purpose
or, at the option of the Holder, by check mailed to the address of the Person
entitled thereto at such address as it appears on the Register.
(f) Upon Cash Settlement of any Purchase Contract, (i) the Collateral
Agent will in accordance with the terms of the Pledge Agreement cause the
Pledged Preferred Stock or the Pledged Treasury Securities, as the case may be,
underlying the relevant Security to be released from the Pledge free and clear
of any security interest of the Company and transferred to the Agent for
delivery to the Holder thereof or its designee as soon as practicable and (ii)
subject to the receipt thereof, the Agent shall, by book-entry transfer, or
other appropriate procedures, in accordance with written instructions provided
by the Holder thereof, transfer such shares of Preferred Stock or such Treasury
Securities, as the case may be (or, if no such instructions are given to the
Agent by the Holder, the Agent shall hold such shares of Preferred Stock or such
Treasury Securities, as the case may be, and any dividends or interest thereon,
as the case may be, in the name of the Agent or its nominee in trust for the
benefit of such Holder until the expiration of the time period specified in the
abandoned property laws of the relevant State).
(g) The obligations of the Holders to pay the Purchase Price are
non-recourse obligations and, except to the extent paid by Early Settlement or
Cash Settlement, are payable solely out of the proceeds of any Collateral
pledged to secure the obligations of the Holders and in no event will Holders be
liable for any deficiency between the proceeds of the disposition of Collateral
and the Purchase Price.
Section 5.5. Issuance of Shares of Common Stock.
Unless a Termination Event or an Early Settlement shall have occurred,
subject to Section 5.6(b), the Company shall issue and deposit with the Agent,
for the benefit of the Holders of the
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Outstanding Securities, one or more certificates representing the newly issued
shares of Common Stock registered in the name of the Agent (or its nominee) as
custodian for the Holders (such certificates for shares of Common Stock,
together with any dividends or distributions for which a record date and payment
date for such dividend or distribution has occurred after the Purchase Contract
Settlement Date, being hereinafter referred to as the "Purchase Contract
Settlement Fund") to which the Holders are entitled hereunder. Subject to the
foregoing, upon surrender of a Certificate to the Agent on or after the Purchase
Contract Settlement Date, together with settlement instructions thereon duly
completed and executed, the Holder of such Certificate shall be entitled to
receive in exchange therefor a certificate representing that number of whole
shares of Common Stock which such Holder is entitled to receive pursuant to the
provisions of this Article Five (after taking into account all Securities then
held by such Holder), together with cash in lieu of fractional shares as
provided in Section 5.10 and any dividends or distributions with respect to such
Shares constituting part of the Purchase Contract Settlement Fund, but without
any interest thereon, and the Certificate so surrendered shall forthwith be
cancelled. Such shares shall be registered in the name of the Holder or the
Holder's designee as specified in the settlement instructions provided by the
Holder to the Agent. If any shares of Common Stock issued in respect of a
Purchase Contract are to be registered to a Person other than the Person in
whose name the Certificate evidencing such Purchase Contract is registered, no
such registration shall be made unless the Person requesting such registration
has paid any transfer and other taxes required by reason of such registration in
a name other than that of the registered Holder of the Certificate evidencing
such Purchase Contract or has established to the satisfaction of the Company
that such tax either has been paid or is not payable.
Section 5.6. Adjustment of Settlement Rate.
(a) Adjustments for Dividends, Distributions, Stock Splits, Etc.
(1) In case the Company shall pay or make a dividend or other
distribution on the Common Stock in Common Stock, the Settlement Rate in effect
at the opening of business on the day following the date fixed for the
determination of stockholders entitled to receive such dividend or other
distribution shall be increased by dividing such Settlement Rate by a fraction
of which the numerator shall be the number of shares of Common Stock outstanding
at the close of business on the date fixed for such determination and the
denominator shall be the sum of such number of shares and the total number of
shares constituting such dividend or other distribution, such increase to become
effective immediately after the opening of business on the day following the
date fixed for such determination. For the purposes of this paragraph (1), the
number of shares of Common Stock at any time outstanding shall not include
shares held in the treasury of the Company but shall include any shares issuable
in respect of any scrip certificates issued in lieu of fractions of shares of
Common Stock. The Company will not pay any dividend or make any distribution on
shares of Common Stock held in the treasury of the Company.
(2) In case the Company shall issue rights, options or warrants to
all holders of its Common Stock (not being available on an equivalent basis to
Holders of the Securities upon settlement of the Purchase Contracts underlying
such Securities) entitling them, for a period expiring within 45 days after the
record date for the determination of stockholders entitled to receive such
rights, options or warrants, to subscribe for or purchase shares of Common Stock
at
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a price per share less than the Current Market Price per share of the Common
Stock on the date fixed for the determination of stockholders entitled to
receive such rights, options or warrants (other than pursuant to a dividend
reinvestment plan), the Settlement Rate in effect at the opening of business on
the day following the date fixed for such determination shall be increased by
dividing such Settlement Rate by a fraction of which the numerator shall be the
number of shares of Common Stock outstanding at the close of business on the
date fixed for such determination plus the number of shares of Common Stock
which the aggregate of the offering price of the total number of shares of
Common Stock so offered for subscription or purchase would purchase at such
Current Market Price and the denominator shall be the number of shares of Common
Stock outstanding at the close of business on the date fixed for such
determination plus the number of shares of Common Stock so offered for
subscription or purchase, such increase to become effective immediately after
the opening of business on the day following the date fixed for such
determination. For the purposes of this paragraph (2), the number of shares of
Common Stock at any time outstanding shall not include shares held in the
treasury of the Company but shall include any shares issuable in respect of any
scrip certificates issued in lieu of fractions of shares of Common Stock. The
Company shall not issue any such rights, options or warrants in respect of
shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided
or split into a greater number of shares of Common Stock, the Settlement Rate in
effect at the opening of business on the day following the day upon which such
subdivision or split becomes effective shall be proportionately increased, and,
conversely, in case outstanding shares of Common Stock shall each be combined
into a smaller number of shares of Common Stock, the Settlement Rate in effect
at the opening of business on the day following the day upon which such
combination becomes effective shall be proportionately reduced, such increase or
reduction, as the case may be, to become effective immediately after the opening
of business on the day following the day upon which such subdivision, split or
combination becomes effective.
(4) In case the Company shall, by dividend or otherwise, distribute
to all holders of its Common Stock evidences of its indebtedness or assets
(including securities, but excluding any rights or warrants referred to in
paragraph (2) of this Section, any dividend or distribution paid exclusively in
cash and any dividend or distribution referred to in paragraph (1) of this
Section), the Settlement Rate shall be adjusted so that the same shall equal the
rate determined by dividing the Settlement Rate in effect immediately prior to
the close of business on the date fixed for the determination of stockholders
entitled to receive such distribution by a fraction of which the numerator shall
be the Current Market Price per share of the Common Stock on the date fixed for
such determination less the then fair market value (as determined by the Board
of Directors, whose determination shall be conclusive and described in a Board
Resolution) of the portion of the assets or evidences of indebtedness so
distributed applicable to one share of Common Stock and the denominator shall be
such Current Market Price per share of the Common Stock, such adjustment to
become effective immediately prior to the opening of business on the day
following the date fixed for the determination of stockholders entitled to
receive such distribution. In any case in which this paragraph (4) is
applicable, paragraph (2) of this Section shall not be applicable.
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(5) In case the Company shall, by dividend or otherwise, distribute
to all holders of its Common Stock (I) cash (excluding any cash that is
distributed in a Reorganization Event to which Section 5.6(b) applies or as part
of a distribution referred to in paragraph (4) of this Section) in an aggregate
amount that, combined together with the aggregate amount of any other
distributions to all holders of its Common Stock made exclusively in cash (other
than in connection with a Reorganization Event) within the 12 months preceding
the date of payment of such distribution and in respect of which no adjustment
pursuant to this paragraph (5) or paragraph (6) of this Section has been made
and (II) the aggregate of any cash plus the fair market value (as determined by
the Board of Directors, whose determination shall be conclusive and described in
a Board Resolution) of consideration payable in respect of any tender or
exchange offer by the Company or any of its subsidiaries for all or any portion
of the Common Stock concluded within the 12 months preceding the date of payment
of the distribution described in Clause (I) above and in respect of which no
adjustment pursuant to this paragraph (5) or paragraph (4) or paragraph (6) of
this Section has been made, exceeds 15% of the product of the Current Market
Price per share of the Common Stock on the date for the determination of holders
of shares of Common Stock entitled to receive such distribution times the number
of shares of Common Stock outstanding on such date, then, and in each such case,
immediately after the close of business on such date for determination, the
Settlement Rate shall be increased so that the same shall equal the rate
determined by dividing the Settlement Rate in effect immediately prior to the
close of business on the date fixed for determination of the stockholders
entitled to receive such distribution by a fraction (i) the numerator of which
shall be equal to the Current Market Price per share of the Common Stock on the
date fixed for such determination less an amount equal to the quotient of (x)
the combined amount distributed or payable in the transactions described in
clauses (I) and (II) above divided by (y) the number of shares of Common Stock
outstanding on such date for determination and (ii) the denominator of which
shall be equal to the Current Market Price per share of the Common Stock on such
date for determination.
(6) In case a tender or exchange offer made by the Company or any
subsidiary of the Company for all or any portion of the Common Stock shall
expire and such tender or exchange offer (as amended upon the expiration
thereof) shall require the payment to stockholders (based on the acceptance (up
to any maximum specified in the terms of the tender or exchange offer) of
Purchased Shares) of (I) an aggregate consideration having a fair market value
(as determined by the Board of Directors, whose determination shall be
conclusive and described in a Board Resolution) that combined together with the
aggregate of the cash plus the fair market value (as determined by the Board of
Directors, whose determination shall be conclusive and described in a Board
Resolution), as of the expiration of such tender or exchange offer, of
consideration payable in respect of any other tender or exchange offer, by the
Company or any subsidiary of the Company for all or any portion of the Common
Stock expiring within the 12 months preceding the expiration of such tender or
exchange offer and in respect of which no adjustment pursuant to paragraph (5)
of this Section or this paragraph (6) has been made and (II) the aggregate
amount of any distributions to all holders of the Company's Common Stock made
exclusively in cash within the 12 months preceding the expiration of such tender
or exchange offer and in respect of which no adjustment pursuant to paragraph
(5) of this Section or this paragraph (6) has been made, exceeds 15% of the
product of the Current Market Price per share of the Common Stock as of the last
time (the "Expiration Time") tenders could have been
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made pursuant to such tender or exchange offer (as it may be amended) times the
number of shares of Common Stock outstanding (including any tendered shares) on
the Expiration Time, then, and in each such case, immediately prior to the
opening of business on the day after the date of the Expiration Time, the
Settlement Rate shall be adjusted so that the same shall equal the rate
determined by dividing the Settlement Rate immediately prior to the close of
business on the date of the Expiration Time by a fraction (i) the numerator of
which shall be equal to (A) the product of (1) the Current Market Price per
share of the Common Stock on the date of the Expiration Time and (2) the number
of shares of Common Stock outstanding (including any tendered shares) on the
Expiration Time less (B) the amount of cash plus the fair market value
(determined as aforesaid) of the aggregate consideration payable to stockholders
based on the transactions described in clauses (I) and (II) above (assuming in
the case of clause (I) the acceptance, up to any maximum specified in the terms
of the tender or exchange offer, of Purchased Shares), and (ii) the denominator
of which shall be equal to the product of (A) the Current Market Price per share
of the Common Stock as of the Expiration Time and (B) the number of shares of
Common Stock outstanding (including any tendered shares) as of the Expiration
Time less the number of all shares validly tendered and not withdrawn as of the
Expiration Time (the shares deemed so accepted, up to any such maximum, being
referred to as the "Purchased Stock").
(7) The reclassification of Common Stock into securities including
securities other than Common Stock (other than any reclassification upon a
Reorganization Event to which Section 5.6(b) applies) shall be deemed to involve
(a) a distribution of such securities other than Common Stock to all holders of
Common Stock (and the effective date of such reclassification shall be deemed to
be "the date fixed for the determination of stockholders entitled to receive
such distribution" and the "date fixed for such determination" within the
meaning of paragraph (4) of this Section), and (b) a subdivision, split or
combination, as the case may be, of the number of shares of Common Stock
outstanding immediately prior to such reclassification into the number of shares
of Common Stock outstanding immediately thereafter (and the effective date of
such reclassification shall be deemed to be "the day upon which such subdivision
or split becomes effective" or "the day upon which such combination becomes
effective", as the case may be, and "the day upon which such subdivision, split
or combination becomes effective" within the meaning of paragraph (3) of this
Section).
(8) The "Current Market Price" per share of Common Stock on any day
means the average of the daily Closing Prices for the five consecutive Trading
Days selected by the Company commencing not more than 30 Trading Days before,
and ending not later than, the earlier of the day in question and the day before
the "ex date" with respect to the issuance or distribution requiring such
computation. For purposes of this paragraph, the term "ex date", when used with
respect to any issuance or distribution, shall mean the first date on which the
Common Stock trades regular way on such exchange or in such market without the
right to receive such issuance or distribution.
(9) All adjustments to the Settlement Rate shall be calculated to
the nearest 1/10,000th of a share of Common Stock (or if there is not a nearest
1/10,000th of a share, to the next lower 1/10,000th of a share). No adjustment
in the Settlement Rate shall be required unless such adjustment would require an
increase or decrease of at least one percent thereof; provided,
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however, that any adjustments which by reason of this subparagraph are not
required to be made shall be carried forward and taken into account in any
subsequent adjustment. If an adjustment is made to the Settlement Rate pursuant
to paragraph (1), (2), (3), (4), (5), (6), (7) or (10) of this Section 5.6(a),
an adjustment shall also be made to the Applicable Market Value solely to
determine which of clauses (a), (b) or (c) of the definition of Settlement Rate
in Section 5.1 will apply on the Purchase Contract Settlement Date. Such
adjustment shall be made by multiplying the Applicable Market Value by a
fraction of which the numerator shall be the Settlement Rate immediately after
such adjustment pursuant to paragraph (1), (2), (3), (4), (5), (6), (7) or (10)
of this Section 5.6(a) and the denominator shall be the Settlement Rate
immediately before such adjustment; provided, however, that if such adjustment
to the Settlement Rate is required to be made pursuant to the occurrence of any
of the events contemplated by paragraph (1), (2), (3), (4), (5), (7) or (10) of
this Section 5.6(a) during the period taken into consideration for determining
the Applicable Market Value, appropriate and customary adjustments shall be made
to the Settlement Rate.
(10) The Company may make such increases in the Settlement Rate, in
addition to those required by this Section, as it considers to be advisable in
order to avoid or diminish any income tax to any holders of shares of Common
Stock resulting from any dividend or distribution of stock or issuance of rights
or warrants to purchase or subscribe for stock or from any event treated as such
for income tax purposes or for any other reason.
(b) Adjustment for Consolidation, Merger or Other Reorganization
Event.
In the event of (i) any consolidation or merger of the Company with
or into another Person (other than a merger or consolidation in which the
Company is the continuing corporation and in which the Common Stock outstanding
immediately prior to the merger or consolidation is not exchanged for cash,
securities or other property of the Company or another corporation), (ii) any
sale, transfer, lease or conveyance to another Person of the property of the
Company as an entirety or substantially as an entirety, (iii) any statutory
exchange of securities of the Company with another Person (other than in
connection with a merger or acquisition) or (iv) any liquidation, dissolution or
winding up of the Company other than as a result of or after the occurrence of a
Termination Event (any such event, a "Reorganization Event"), the Settlement
Rate will be adjusted to provide that each Holder of Securities will receive on
the Purchase Contract Settlement Date with respect to each Purchase Contract
forming a part thereof, the kind and amount of securities, cash and other
property receivable upon such Reorganization Event (without any interest
thereon, and without any right to dividends or distribution thereon which have a
record date that is prior to the Purchase Contract Settlement Date) by a Holder
of the number of shares of Common Stock issuable on account of each Purchase
Contract if the Purchase Contract Settlement Date had occurred immediately prior
to such Reorganization Event assuming such Holder of Common Stock is not a
Person with which the Company consolidated or into which the Company merged or
which merged into the Company or to which such sale or transfer was made, as the
case may be (any such Person, a "Constituent Person"), or an Affiliate of a
Constituent Person to the extent such Reorganization Event provides for
different treatment of Common Stock held by Affiliates of the Company and
non-affiliates and such Holder failed to exercise his rights of election, if
any, as to the kind or amount of securities, cash and other property receivable
upon such Reorganization Event (provided that if the kind or amount of
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securities, cash and other property receivable upon such Reorganization Event is
not the same for each share of Common Stock held immediately prior to such
Reorganization Event by other than a Constituent Person or an Affiliate thereof
and in respect of which such rights of election shall not have been exercised
("non-electing share"), then for the purpose of this Section the kind and amount
of securities, cash and other property receivable upon such Reorganization Event
by each non-electing share shall be deemed to be the kind and amount so
receivable per share by a plurality of the non-electing shares). In the event of
such a Reorganization Event, the Person formed by such consolidation, merger or
exchange or the Person which acquires the assets of the Company or, in the event
of a liquidation or dissolution of the Company, the Company or a liquidating
trust created in connection therewith, shall execute and deliver to the Agent an
agreement supplemental hereto providing that the Holders of each Outstanding
Security shall have the rights provided by this Section 5.6(b). Such
supplemental agreement shall provide for adjustments which, for events
subsequent to the effective date of such supplemental agreement, shall be as
nearly equivalent as may be practicable to the adjustments provided for in this
Section. The above provisions of this Section shall similarly apply to
successive Reorganization Events.
Section 5.7. Notice of Adjustments and Certain Other Events.
(a) Whenever the Settlement Rate is adjusted as herein provided, the
Company shall:
(i) forthwith compute the adjusted Settlement Rate in accordance
with Section 5.6 and prepare and transmit to the Agent an Officers'
Certificate setting forth the Settlement Rate, the method of calculation
thereof in reasonable detail, and the facts requiring such adjustment and
upon which such adjustment is based; and
(ii) within 10 Business Days following the occurrence of an event
that requires an adjustment to the Settlement Rate pursuant to Section 5.6
(or if the Company is not aware of such occurrence, as soon as practicable
after becoming so aware), provide a written notice to the Holders of the
Securities of the occurrence of such event and a statement in reasonable
detail setting forth the method by which the adjustment to the Settlement
Rate was determined and setting forth the adjusted Settlement Rate.
(b) The Agent shall not at any time be under any duty or responsibility to
any Holder of Securities to determine whether any facts exist which may require
any adjustment of the Settlement Rate, or with respect to the nature or extent
or calculation of any such adjustment when made, or with respect to the method
employed in making the same. The Agent shall not be accountable with respect to
the validity or value (or the kind or amount) of any shares of Common Stock, or
of any securities or property, which may at the time be issued or delivered with
respect to any Purchase Contract; and the Agent makes no representation with
respect thereto. The Agent shall not be responsible for any failure of the
Company to issue, transfer or deliver any shares of Common Stock pursuant to a
Purchase Contract or to comply with any of the duties, responsibilities or
covenants of the Company contained in this Article.
Section 5.8. Termination Event; Notice.
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The Purchase Contracts and all obligations and rights of the Company and
the Holders thereunder, including, without limitation, the rights of the Holders
to receive and the obligation of the Company to pay any Contract Adjustment
Payments, if the Company shall have such obligation, and the rights and
obligations of Holders to purchase Common Stock, shall immediately and
automatically terminate, without the necessity of any notice or action by any
Holder, the Agent or the Company, if, on or prior to the Purchase Contract
Settlement Date, a Termination Event shall have occurred. Upon and after the
occurrence of a Termination Event, the Securities shall thereafter represent the
right to receive the shares of Preferred Stock forming a part of such Securities
in the case of Corporate PIES, or Treasury Securities in the case of Treasury
PIES, in accordance with the provisions of Section 5.4 of the Pledge Agreement.
Upon the occurrence of a Termination Event, the Company shall promptly but in no
event later than two Business Days thereafter give written notice to the Agent,
the Collateral Agent and the Holders, at their addresses as they appear in the
Register.
Section 5.9. Early Settlement.
(a) Subject to and upon compliance with the provisions of this Section
5.9, at the option of the Holder thereof, Purchase Contracts underlying
Securities may be settled early (an "Early Settlement") in the case of Corporate
PIES on or prior to the seventh Business Day immediately preceding the Purchase
Contract Settlement Date and in the case of Treasury PIES on or prior to the
second Business Day immediately preceding the Purchase Contract Settlement Date,
in each case, as provided herein. In order to exercise the right to effect Early
Settlement with respect to any Purchase Contracts, the Holder of the Certificate
evidencing Securities shall deliver such Certificate to the Agent at the
Corporate Trust Office duly endorsed for transfer to the Company or in blank
with the form of Election to Settle Early on the reverse thereof duly completed
and accompanied by payment (payable to the Company in immediately available
funds) in an amount (the "Early Settlement Amount") equal to (i) the product of
(A) the Stated Amount times (B) the number of Purchase Contracts with respect to
which the Holder has elected to effect Early Settlement plus (ii) if such
delivery is made with respect to any Purchase Contracts during the period from
the close of business on any Record Date next preceding any Payment Date to the
opening of business on such Payment Date, an amount equal to the sum of (x) the
Contract Adjustment Payments payable on such Payment Date with respect to such
Purchase Contracts plus (y) in the case of a Corporate PIES Certificate, the
distributions on the related shares of Preferred Stock payable on such Payment
Date. Except as provided in the immediately preceding sentence and subject to
the last paragraph of Section 5.2, no payment or adjustment shall be made upon
Early Settlement of any Purchase Contract on account of any Contract Adjustment
Payments accrued on such Purchase Contract or on account of any dividends on the
Common Stock issued upon such Early Settlement. If the foregoing requirements
are first satisfied with respect to Purchase Contracts underlying any Securities
at or prior to 5:00 p.m., New York City time, on a Business Day, such day shall
be the "Early Settlement Date" with respect to such Securities and if such
requirements are first satisfied after 5:00 p.m., New York City time, on a
Business Day or on a day that is not a Business Day, the "Early Settlement Date"
with respect to such Securities shall be the next succeeding Business Day.
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(b) Upon Early Settlement of Purchase Contracts by a Holder of the related
Securities, the Company shall issue, and the Holder shall be entitled to
receive, 1.11297 shares of Common Stock on account of each Purchase Contract as
to which Early Settlement is effected (the "Early Settlement Rate"). The Early
Settlement Rate shall be adjusted in the same manner and at the same time as the
Settlement Rate is adjusted.
(c) No later than the third Business Day after the applicable Early
Settlement Date, the Company shall cause (i) the shares of Common Stock issuable
upon Early Settlement of Purchase Contracts to be issued and delivered, together
with payment in lieu of any fraction of a share, as provided in Section 5.10,
and (ii) the related shares of Preferred Stock, in the case of Corporate PIES,
or the related Treasury Securities, in the case of Treasury PIES, to be released
from the Pledge by the Collateral Agent and transferred, in each case, to the
Agent for delivery to the Holder thereof or its designee.
(d) Upon Early Settlement of any Purchase Contracts, and subject to
receipt of shares of Common Stock from the Company and the shares of Preferred
Stock or Treasury Securities, as the case may be, from the Securities
Intermediary, as applicable, the Agent shall, in accordance with the
instructions provided by the Holder thereof on the applicable form of Election
to Settle Early on the reverse of the Certificate evidencing the related
Securities, (i) transfer to the Holder the shares of Preferred Stock or Treasury
Securities, as the case may be, forming a part of such Securities, and (ii)
deliver to the Holder a certificate or certificates for the full number of
shares of Common Stock issuable upon such Early Settlement, together with
payment in lieu of any fraction of a share, as provided in Section 5.10.
(e) In the event that Early Settlement is effected with respect to
Purchase Contracts underlying less than all the Securities evidenced by a
Certificate, upon such Early Settlement the Company shall execute and the Agent
shall authenticate, countersign and deliver to the Holder thereof, at the
expense of the Company, a Certificate evidencing the Securities as to which
Early Settlement was not effected.
Section 5.10. No Fractional Shares.
No fractional shares or scrip representing fractional shares of Common
Stock shall be issued or delivered upon settlement on the Purchase Contract
Settlement Date or upon Early Settlement of any Purchase Contracts. If
Certificates evidencing more than one Purchase Contract shall be surrendered for
settlement at one time by the same Holder, the number of full shares of Common
Stock which shall be delivered upon settlement shall be computed on the basis of
the aggregate number of Purchase Contracts evidenced by the Certificates so
surrendered. Instead of any fractional share of Common Stock which would
otherwise be deliverable upon settlement of any Purchase Contracts on the
Purchase Contract Settlement Date or upon Early Settlement, the Company, through
the Agent, shall make a cash payment in respect of such fractional interest in
an amount equal to the value of such fractional shares times the Applicable
Market Value. The Company shall provide the Agent from time to time with
sufficient funds to permit the Agent to make all cash payments required by this
Section 5.10 in a timely manner.
Section 5.11. Charges and Taxes.
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The Company will pay all stock transfer and similar taxes attributable to
the initial issuance and delivery of the shares of Common Stock pursuant to the
Purchase Contracts; provided, however, that the Company shall not be required to
pay any such tax or taxes which may be payable in respect of any exchange of or
substitution for a Certificate evidencing a Security or any issuance of a share
of Common Stock in a name other than that of the registered Holder of a
Certificate surrendered in respect of the Securities evidenced thereby, other
than in the name of the Agent, as custodian for such Holder, and the Company
shall not be required to issue or deliver such share certificates or
Certificates unless or until the Person or Persons requesting the transfer or
issuance thereof shall have paid to the Company the amount of such tax or shall
have established to the satisfaction of the Company that such tax has been paid.
ARTICLE VI
Remedies
Section 6.1. Unconditional Right of Holders to Receive Contract
Adjustment Payments and to Purchase Common Stock.
In the event that Contract Adjustment Payments shall constitute a
component of Corporate PIES or Treasury PIES, the Holder of any Corporate PIES
or Treasury PIES shall have the right, which is absolute and unconditional
(subject to the payment by a holder of Contract Adjustment Payments pursuant to
Section 5.9(a)), to receive payment of each installment of the Contract
Adjustment Payments with respect to the Purchase Contract constituting a part of
such Security on the respective Payment Date for such Security and to purchase
Common Stock pursuant to such Purchase Contract and, in each such case, to
institute suit for the enforcement of any such payment and right to purchase
Common Stock, and such rights shall not be impaired without the consent of such
Holder.
Section 6.2. Restoration of Rights and Remedies.
If any Holder has instituted any proceeding to enforce any right or remedy
under this Agreement and such proceeding has been discontinued or abandoned for
any reason, or has been determined adversely to such Holder, then and in every
such case, subject to any determination in such proceeding, the Company and such
Holder shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of such Holder shall continue
as though no such proceeding had been instituted.
Section 6.3. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Certificates in the last paragraph of
Section 3.10, no right or remedy herein conferred upon or reserved to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in
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equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 6.4. Delay or Omission Not Waiver.
No delay or omission of any Holder to exercise any right or remedy upon a
default shall impair any such right or remedy or constitute a waiver of any such
right. Every right and remedy given by this Article or by law to the Holders may
be exercised from time to time, and as often as may be deemed expedient, by such
Holders.
Section 6.5. Undertaking for Costs.
All parties to this Agreement agree, and each Holder of Corporate PIES or
Treasury PIES, by its acceptance of such Corporate PIES or Treasury PIES, shall
be deemed to have agreed, that any court may in its discretion require, in any
suit for the enforcement of any right or remedy under this Agreement, or in any
suit against the Agent for any action taken, suffered or omitted by it as Agent,
the filing by any party litigant in such suit of an undertaking to pay the costs
of such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; provided that the provisions of this Section shall not
apply to any suit instituted by the Company, to any suit instituted by the
Agent, to any suit instituted by any Holder, or group of Holders, holding in the
aggregate more than 10% of the Outstanding Securities, or to any suit instituted
by any Holder for the enforcement of dividends payable on any shares of
Preferred Stock or Contract Adjustment Payments, if any, on any Purchase
Contract on or after the respective Payment Date therefor in respect of any
Security held by such Holder, or for enforcement of the right to purchase shares
of Common Stock under the Purchase Contracts constituting part of any Security
held by such Holder.
Section 6.6. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Agreement; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Agent or the Holders, but will suffer and permit the
execution of every such power as though no such law had been enacted.
ARTICLE VII
The Agent
Section 7.1. Certain Duties and Responsibilities.
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(a) (1) The Agent undertakes to perform, with respect to the Securities,
such duties and only such duties as are specifically set forth in this
Agreement and the Pledge Agreement, and no implied covenants or
obligations shall be read into this Agreement or the Pledge Agreement
against the Agent; and
(2) in the absence of bad faith or gross negligence on its part, the
Agent may, with respect to the Securities, conclusively rely on as valid
and genuine any signature, document or certificate and may conclusively
rely , as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions furnished to the
Agent and conforming to the requirements of this Agreement or the Pledge
Agreement, as applicable, but in the case of any certificates or opinions
which by any provision hereof are specifically required to be furnished to
the Agent, the Agent shall be only under a duty to examine the same to
determine whether or not they conform to the requirements of this
Agreement or the Pledge Agreement, as applicable.
(b) No provision of this Agreement or the Pledge Agreement shall be
construed to relieve the Agent from liability for its own negligent action, its
own negligent failure to act, or its own wilful misconduct, except that
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) the Agent shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it shall be proved that the
Agent was negligent in ascertaining the pertinent facts; and
(3) no provision of this Agreement or the Pledge Agreement shall
require the Agent to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder, or
in the exercise of any of its rights or powers, if adequate indemnity is
not provided to it.
(c) Whether or not therein expressly so provided, every provision of this
Agreement and the Pledge Agreement relating to the conduct or affecting the
liability of or affording protection to the Agent shall be subject to the
provisions of this Section.
(d) The Agent is authorized to execute and deliver the Pledge Agreement in
its capacity as Agent.
Section 7.2. Notice of Default.
Within 30 days after the occurrence of any default by the Company
hereunder of which a Responsible Officer of the Agent has actual knowledge, the
Agent shall transmit by mail to the Company and the Holders of Securities, as
their names and addresses appear in the Register, notice of such default
hereunder, unless such default shall have been cured or waived.
Section 7.3. Certain Rights of Agent.
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Subject to the provisions of Section 7.1:
(a) the Agent may rely and shall be protected in acting or refraining from
acting upon any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document believed by it to be genuine
and believed by it to have been signed or presented by the proper party or
parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by an Officers' Certificate, Issuer Order or Issuer
Request, and any resolution of the Board of Directors of the Company may be
sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Agreement or the Pledge
Agreement the Agent shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action hereunder, the
Agent (unless other evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, rely upon an Officers' Certificate of the
Company;
(d) the Agent may consult with counsel and the written advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon;
(e) the Agent shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or in the genuiness of any
signature, or document, but the Agent, in its discretion, may (but under no
circumstance shall be obligated to) make reasonable further inquiry or
investigation into such facts or matters related to the execution, delivery and
performance of the Purchase Contracts as it may see fit, and, if the Agent shall
determine to make such further inquiry or investigation, it shall be given a
reasonable opportunity to examine the books, records and premises of the
Company, personally or by agent or attorney; and
(f) the Agent may execute any of the powers hereunder or perform any
duties hereunder either directly or by or through agents or attorneys or an
Affiliate and the Agent shall not be responsible for any misconduct or
negligence on the part of any agent or attorney or an Affiliate appointed with
due care by it hereunder.
Section 7.4. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Certificates shall be taken as
the statements of the Company, and the Agent assumes no responsibility for their
accuracy, other than for the Certificate of Authentication contained in the
Certificates. The Agent makes no representations as to the validity or
sufficiency of either this Agreement or of the Securities, or of the Pledge
Agreement or the Pledge. The Agent shall not be accountable for the use or
application by the Company of the proceeds in respect of the Purchase Contracts.
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Section 8.5. May Hold Securities.
Any Registrar or any other agent of the Company, or the Agent and its
Affiliates, in their individual or any other capacity, may become the owner or
pledgee of Securities and may otherwise deal with the Company, the Collateral
Agent or any other Person with the same rights it would have if it were not
Registrar or such other agent, or the Agent.
Section 7.6. Money Held in Custody.
Money held by the Agent in custody hereunder need not be segregated from
the other funds except to the extent required by law or provided herein. The
Agent shall be under no obligation to invest or pay interest on any money
received by it hereunder except as otherwise agreed in writing with the Company.
Section 7.7. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Agent from time to time reasonable compensation
for all services rendered by it hereunder and under the Pledge Agreement;
(2) except as otherwise expressly provided for herein, to reimburse
the Agent upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Agent in accordance with any provision of
this Agreement and the Pledge Agreement (including the reasonable
compensation and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may be
attributable to its gross negligence or bad faith; and
(3) to indemnify the Agent and any predecessor Agent for, and to
hold it harmless against, any loss, liability or expense incurred without
negligence or bad faith on its part, arising out of or in connection with
the acceptance or administration of its duties hereunder including under
the Pledge Agreement, including the costs and expenses of defending itself
against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
Section 7.8. Corporate Agent Required; Eligibility.
There shall at all times be an Agent hereunder which shall be a
corporation organized and doing business under the laws of the United States of
America, any State thereof or the District of Columbia, authorized under such
laws to exercise corporate trust powers, having (or being a member of a bank
holding company having) a combined capital and surplus of at least $50,000,000,
subject to supervision or examination by Federal or State authority and having a
Corporate Trust Office in the Borough of Manhattan, The City of New York, if
there be such a corporation in the Borough of Manhattan, The City of New York,
qualified and eligible under this Article and willing to act on reasonable
terms. If such corporation publishes reports of
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condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. If at any time the Agent shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
Section 7.9. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Agent and no appointment of a
successor Agent pursuant to this Article shall become effective until the
acceptance of appointment by the successor Agent in accordance with the
applicable requirements of Section 7.10.
(b) The Agent may resign at any time by giving written notice thereof to
the Company 60 days prior to the effective date of such resignation. If the
instrument of acceptance by a successor Agent required by Section 7.10 shall not
have been delivered to the Agent within 30 days after the giving of such notice
of resignation, the resigning Agent may petition any court of competent
jurisdiction for the appointment of a successor Agent.
(c) The Agent may be removed at any time by Act of the Holders of a
majority in number of the Outstanding Securities delivered to the Agent and the
Company.
(d) If at any time
(1) the Agent fails to comply with Section 310(b) of the TIA, as if
the Agent were an indenture trustee under an indenture qualified under the
TIA, after written request therefor by the Company or by any Holder who
has been a bona fide Holder of a Security for at least six months, or
(2) the Agent shall cease to be eligible under Section 7.8 and shall
fail to resign after written request therefor by the Company or by any
such Holder, or
(3) the Agent shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Agent or of its property
shall be appointed or any public officer shall take charge or control of
the Agent or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Agent, or (ii) any Holder who has been a bona fide Holder of a Security for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Agent and
the appointment of a successor Agent.
(e) If the Agent shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Agent for any cause, the Company,
by a Board Resolution, shall promptly appoint a successor Agent and shall comply
with the applicable requirements of Section 7.10. If no successor Agent shall
have been so appointed by the Company and accepted
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appointment in the manner required by Section 7.10, any Holder who has been a
bona fide Holder of a Security for at least six months may, on behalf of itself
and all others similarly situated, petition any court of competent jurisdiction
for the appointment of a successor Agent.
(f) The Company shall give, or shall cause such successor Agent to give,
notice of each resignation and each removal of the Agent and each appointment of
a successor Agent by mailing written notice of such event by first-class mail,
postage prepaid, to all Holders as their names and addresses appear in the
applicable Register. Each notice shall include the name of the successor Agent
and the address of its Corporate Trust Office.
Section 7.10. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Agent, every such
successor Agent so appointed shall execute, acknowledge and deliver to the
Company and to the retiring Agent an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Agent shall become
effective and such successor Agent, without any further act, deed or conveyance,
shall become vested with all the rights, powers, agencies and duties of the
retiring Agent; but, on the request of the Company or the successor Agent, such
retiring Agent shall, upon payment of its charges, execute and deliver an
instrument transferring to such successor Agent all the rights, powers and
trusts of the retiring Agent and shall duly assign, transfer and deliver to such
successor Agent all property and money held by such retiring Agent hereunder.
(b) Upon request of any such successor Agent, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Agent all such rights, powers and agencies referred to in
paragraph (a) of this Section.
(c) No successor Agent shall accept its appointment unless at the time of
such acceptance such successor Agent shall be qualified and eligible under this
Article.
Section 7.11. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Agent may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Agent shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Agent, shall be the successor of the Agent hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article, with
the execution or filing of any paper or any further act on the part of any of
the parties hereto. In case any Certificates shall have been authenticated and
executed on behalf of the Holders, but not delivered, by the Agent then in
office, any successor by merger, conversion or consolidation to such Agent may
adopt such authentication and execution and deliver the Certificates so
authenticated and executed with the same effect as if such successor Agent had
itself authenticated and executed such Securities.
Section 7.12. Preservation of Information; Communications to Holders.
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(a) The Agent shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders received by the Agent in its
capacity as Registrar.
(b) If three or more Holders (herein referred to as "applicants") apply in
writing to the Agent, and furnish to the Agent reasonable proof that each such
applicant has owned a Security for a period of at least six months preceding the
date of such application, and such application states that the applicants desire
to communicate with other Holders with respect to their rights under this
Agreement or under the Securities and is accompanied by a copy of the form of
proxy or other communication which such applicants propose to transmit, then the
Agent shall mail to all the Holders copies of the form of proxy or other
communication which is specified in such request, with reasonable promptness
after a tender to the Agent of the materials to be mailed and of payment, or
provision for the payment, of the reasonable expenses of such mailing.
Section 7.13. No Obligations of Agent.
Except to the extent otherwise expressly provided in this Agreement, the
Agent assumes no obligations and shall not be subject to any liability under
this Agreement, the Pledge Agreement or any Purchase Contract in respect of the
obligations of the Holder of any Security thereunder. The Company agrees, and
each Holder of a Certificate, by his acceptance thereof, shall be deemed to have
agreed, that the Agent's execution of the Certificates on behalf of the Holders
shall be solely as agent and attorney-in-fact for the Holders, and that the
Agent shall have no obligation to perform such Purchase Contracts on behalf of
the Holders, except to the extent expressly provided in Article Five hereof.
Anything in this Agreement to the contrary notwithstanding, in no event shall
the Agent or its officers, employees or agents be liable under this Agreement to
any third party for indirect, special, punitive, or consequential loss or damage
of any kind whatsoever, including lost profits, whether or not the likelihood of
such loss or damage was known to the Agent, incurred without any act or deed
that is found to be attributable to gross negligence or willful misconduct on
the part of the Agent.
Section 7.14. Tax Compliance.
(a) The Company will comply with all applicable certification, information
reporting and withholding (including "backup" withholding) requirements imposed
by applicable tax laws, regulations or administrative practice with respect to
(i) any payments made with respect to the Securities or (ii) the issuance,
delivery, holding, transfer, redemption or exercise of rights under the
Securities. Such compliance shall include, without limitation, the preparation
and timely filing of required returns and the timely payment of all amounts
required to be withheld to the appropriate taxing authority or its designated
agent.
(b) The Agent shall comply in accordance with the terms hereof with any
written direction received from the Company with respect to the execution or
certification of any required documentation and the application of such
requirements to particular payments or Holders or in other particular
circumstances, and may for purposes of this Agreement rely on any such direction
in accordance with the provisions of Section 7.1(a)(2) hereof.
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(c) The Agent shall maintain all appropriate records documenting
compliance with such requirements, and shall make such records available, on
written request, to the Company or its authorized representative within a
reasonable period of time after receipt of such request.
ARTICLE VIII
Supplemental Agreements
Section 8.1. Supplemental Agreements Without Consent of Holders.
Without the consent of any Holders, the Company and the Agent, at any time
and from time to time, may enter into one or more agreements supplemental
hereto, in form satisfactory to the Company and the Agent, for any of the
following purposes:
(1) to evidence the succession of another Person to the Company, and
the assumption by any such successor of the covenants of the Company
herein and in the Certificates; or
(2) to add to the covenants of the Company for the benefit of the
Holders, or to surrender any right or power herein conferred upon the
Company; or
(3) to evidence and provide for the acceptance of appointment
hereunder by a successor Agent; or
(4) to make provision with respect to the rights of Holders pursuant
to the requirements of Section 5.6(b); or
(5) except as provided for in Section 5.6, to cure any ambiguity, to
correct or supplement any provisions herein which may be inconsistent with
any other provisions herein, or to make any other provisions with respect
to such matters or questions arising under this Agreement, provided such
action shall not adversely affect the interests of the Holders.
Section 8.2. Supplemental Agreements With Consent of Holders.
With the consent of the Holders of not less than a majority of the
outstanding Purchase Contracts voting together as one class, by Act of said
Holders delivered to the Company and the Agent, the Company, when authorized by
a Board Resolution, and the Agent may enter into an agreement or agreements
supplemental hereto for the purpose of modifying in any manner the terms of the
Purchase Contracts, or the provisions of this Agreement or the rights of the
Holders in respect of the Securities; provided, however, that, except as
contemplated herein, no such supplemental agreement shall, without the unanimous
consent of the Holders of each outstanding Purchase Contract affected thereby,
(1) change any Payment Date;
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(2) change the amount or the type of Collateral required to be
Pledged to secure a Holder's obligations under the Purchase Contract,
impair the right of the Holder of any Purchase Contract to receive
interest on the related Collateral (except for the rights of Holders of
Corporate PIES to substitute the Treasury Securities for the Pledged
Shares or the rights of holders of Treasury PIES to substitute Shares for
the Pledged Treasury Securities) or otherwise adversely affect the
Holder's rights in or to such Collateral or adversely alter the rights in
or to such Collateral;
(3) reduce any Contract Adjustment Payments or change any place
where, or the coin or currency in which, any Contract Adjustment Payment
is payable;
(4) impair the right to institute suit for the enforcement of any
Purchase Contract;
(5) reduce the number of shares of Common Stock to be purchased
pursuant to any Purchase Contract, increase the price to purchase shares
of Common Stock upon settlement of any Purchase Contract, change the
Purchase Contract Settlement Date or otherwise adversely affect the
Holder's rights under any Purchase Contract; or
(6) reduce the percentage of the outstanding Purchase Contracts the
consent of whose Holders is required for any such supplemental agreement;
provided that if any amendment or proposal referred to above would adversely
affect only the Corporate PIES or the Treasury PIES, then only the affected
class of Holder as of the record date for the Holders entitled to vote thereon
will be entitled to vote on such amendment or proposal, and such amendment or
proposal shall not be effective except with the consent of Holders of not less
than a majority of such class; provided that the unanimous consent of the
Holders of each outstanding Purchase Contract of such class affected thereby
shall be required to approve any amendment or proposal specified in clauses (1)
- - (6) above.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental agreement, but it shall
be sufficient if such Act shall approve the substance thereof.
Section 8.3. Execution of Supplemental Agreements.
In executing, or accepting the additional agencies created by, any
supplemental agreement permitted by this Article or the modifications thereby of
the agencies created by this Agreement, the Agent shall be entitled to receive,
and (subject to Section 7.1) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental agreement is
authorized or permitted by this Agreement. The Agent may, but shall not be
obligated to, enter into any such supplemental agreement which affects the
Agent's own rights, duties or immunities under this Agreement or otherwise.
Section 8.4. Effect of Supplemental Agreements.
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Upon the execution of any supplemental agreement under this Article, this
Agreement shall be modified in accordance therewith, and such supplemental
agreement shall form a part of this Agreement for all purposes; and every Holder
of Certificates theretofore or thereafter authenticated, executed on behalf of
the Holders and delivered hereunder, shall be bound thereby.
Section 8.5. Reference to Supplemental Agreements.
Certificates authenticated, executed on behalf of the Holders and
delivered after the execution of any supplemental agreement pursuant to this
Article may, and shall if required by the Agent, bear a notation in form
approved by the Agent as to any matter provided for in such supplemental
agreement. If the Company shall so determine, new Certificates so modified as to
conform, in the opinion of the Agent and the Company, to any such supplemental
agreement may be prepared and executed by the Company and authenticated,
executed on behalf of the Holders and delivered by the Agent in exchange for
Outstanding Certificates.
ARTICLE IX
Consolidation, Merger, Sale or Conveyance
Section 9.1. Covenant Not to Merge, Consolidate, Sell or Convey Property
Except Under Certain Conditions.
The Company covenants that it will not merge or consolidate with any other
Person or sell, assign, transfer, lease or convey all or substantially all of
its properties and assets to any Person or group of affiliated Persons in one
transaction or a series of related transactions, unless (i) either the Company
shall be the continuing corporation, or the successor (if other than the
Company) shall be a corporation organized and existing under the laws of the
United States of America or a State thereof or the District of Columbia and such
corporation shall expressly assume all the obligations of the Company under the
Purchase Contracts, this Agreement and the Pledge Agreement by one or more
supplemental agreements in form reasonably satisfactory to the Agent and the
Collateral Agent, executed and delivered to the Agent and the Collateral Agent
by such corporation, and (ii) the Company or such successor corporation, as the
case may be, shall not, immediately after such merger or consolidation, or such
sale, assignment, transfer, lease or conveyance, be in default in the
performance of any covenant or condition hereunder, under any of the Securities
or under the Pledge Agreement.
Section 9.2. Rights and Duties of Successor Corporation.
In case of any such consolidation, merger, sale, assignment, transfer,
lease or conveyance and upon any such assumption by a successor corporation in
accordance with Section 9.1, such successor corporation shall succeed to and be
substituted for the Company with the same effect as if it had been named herein
as the Company. Such successor corporation thereupon may cause to be signed, and
may issue either in its own name or in the name of Bank United Corp. any or all
of the Certificates evidencing Securities issuable hereunder which theretofore
shall not have been signed by the Company and delivered to the Agent; and, upon
the order of such successor
52-
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corporation, instead of the Company, and subject to all the terms, conditions
and limitations in this Agreement prescribed, the Agent shall authenticate and
execute on behalf of the Holders and deliver any Certificates which previously
shall have been signed and delivered by the officers of the Company to the Agent
for authentication and execution, and any Certificate evidencing Securities
which such successor corporation thereafter shall cause to be signed and
delivered to the Agent for that purpose. All the Certificates issued shall in
all respects have the same legal rank and benefit under this Agreement as the
Certificates theretofore or thereafter issued in accordance with the terms of
this Agreement as though all of such Certificates had been issued at the date of
the execution hereof.
In case of any such consolidation, merger, sale, assignment, transfer,
lease or conveyance such change in phraseology and form (but not in substance)
may be made in the Certificates evidencing Securities thereafter to be issued as
may be appropriate.
Section 9.3. Opinion of Counsel Given to Agent.
The Agent, subject to Sections 7.1 and 7.3, shall receive an Opinion of
Counsel as conclusive evidence that any such consolidation, merger, sale,
assignment, transfer, lease or conveyance, and any such assumption, complies
with the provisions of this Article and that all conditions precedent to the
consummation of any such consolidation, merger, sale, assignment, transfer,
lease or conveyance have been met.
ARTICLE X
Covenants
Section 10.1. Performance Under Purchase Contracts.
The Company covenants and agrees for the benefit of the Holders from time
to time of the Securities that it will duly and punctually perform its
obligations under the Purchase Contracts in accordance with the terms of the
Purchase Contracts and this Agreement.
Section 10.2. Maintenance of Office or Agency.
The Company will maintain in the Borough of Manhattan, The City of New
York an office or agency where Certificates may be presented or surrendered for
acquisition of shares of Common Stock upon settlement of the Purchase Contracts
on the Purchase Contract Settlement Date or Early Settlement and for transfer of
Collateral upon occurrence of a Termination Event, where Certificates may be
surrendered for registration of transfer or exchange, for a Collateral
Substitution or re-establishment of a Corporate PIES and where notices and
demands to or upon the Company in respect of the Securities and this Agreement
may be served. The Company will give prompt written notice to the Agent of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Agent with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office, and the Company
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hereby appoints the Agent as its agent to receive all such presentations,
surrenders, notices and demands.
The Company may also from time to time designate one or more other offices
or agencies where Certificates may be presented or surrendered for any or all
such purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in the Borough of
Manhattan, The City of New York for such purposes. The Company will give prompt
written notice to the Agent of any such designation or rescission and of any
change in the location of any such other office or agency. The Company hereby
designates as the place of payment for the Securities the Corporate Trust Office
and appoints the Agent at its Corporate Trust Office as paying agent in such
city.
Section 10.3. Company to Reserve Common Stock.
The Company shall at all times prior to the Purchase Contract Settlement
Date reserve and keep available, free from preemptive rights, out of its
authorized but unissued Common Stock the full number of shares of Common Stock
issuable against tender of payment in respect of all Purchase Contracts
constituting a part of the Securities evidenced by Outstanding Certificates.
Section 10.4. Covenants as to Common Stock.
The Company covenants that all shares of Common Stock which may be issued
against tender of payment in respect of any Purchase Contract constituting a
part of the Outstanding Securities will, upon issuance, be duly authorized,
validly issued, fully paid and nonassessable.
Section 10.5. Statements of Officers of the Company as to Default.
The Company will deliver to the Agent, within 120 days after the end of
each fiscal year of the Company (which as of the date hereof is January 2)
ending after the date hereof, an Officers' Certificate (one of the signers of
which shall be the principal executive officer, principal financial officer or
principal accounting officer of the Company), stating whether or not to the best
knowledge of the signers thereof the Company is in default in the performance
and observance of any of the terms, provisions and conditions hereof, and if the
Company shall be in default, specifying all such defaults and the nature and
status thereof of which they may have knowledge.
Section 10.6. ERISA.
Each Holder from time to time of the Corporate PIES which is a Plan hereby
represents that its acquisition of the Corporate PIES and the holding of the
same satisfies the applicable fiduciary requirements of ERISA and that it is
entitled to exemption relief from the prohibited transaction provisions of ERISA
and the Code in accordance with one or more prohibited transaction exemptions or
otherwise will not result in a nonexempt prohibited transaction.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
BANK UNITED CORP.,
a Delaware corporation,
By: /s/ Barry C. Burkholder
-----------------------------
Name: Barry C. Burkholder
Title: President
THE FIRST NATIONAL BANK OF
CHICAGO, as
Purchase Contract Agent
By: /s/ Diane Swanson
-----------------------
Name: Diane Swanson
Title: Assistant Vice President
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EXHIBIT A
FACE OF CORPORATE PIES CERTIFICATE
"THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE
PURCHASE CONTRACT AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED IN THE
NAME OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (THE "DEPOSITARY"),
OR A NOMINEE OF THE DEPOSITARY. THIS CERTIFICATE IS EXCHANGEABLE FOR
CERTIFICATES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS
NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE PURCHASE CONTRACT
AGREEMENT AND NO TRANSFER OF THIS CERTIFICATE (OTHER THAN A TRANSFER OF THIS
CERTIFICATE AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A
NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITARY FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN."
NO. _______ CUSIP NO. 065412 30 6
NUMBER OF CORPORATE PIES ________
BANK UNITED CORP.
CORPORATE PIES
This Corporate PIES Certificate certifies that Cede & Co. is the
registered Holder of the number of Corporate PIES set forth above. Each
Corporate PIES consists of (i) the beneficial ownership by the Holder of one
share of Series B Preferred Stock (the "Preferred Stock") of Bank United Corp.,
a Delaware corporation (the "Company"), having a liquidation preference of $50,
subject to the Pledge of such Preferred Stock by such Holder pursuant to the
Pledge Agreement, and (ii) the rights and obligations of the Holder under one
Purchase Contract with the Company. All capitalized terms used herein which are
defined in the Purchase Contract Agreement (as defined on the reverse hereof)
have the meaning set forth therein.
Pursuant to the Pledge Agreement, the Preferred Stock constituting part of
each Corporate PIES evidenced hereby has been pledged to the Collateral Agent,
for the benefit of the Company,
<PAGE>
to secure the obligations of the Holder under the Purchase Contract comprising a
portion of such Corporate PIES.
The Pledge Agreement provides that all payments of the liquidation
preference with respect to any of the Pledged Preferred Stock or cash dividends
on any Pledged Preferred Stock (as defined in the Pledge Agreement) constituting
part of the Corporate PIES received by the Securities Intermediary shall be paid
by wire transfer in same day funds (i) in the case of (A) cash dividends with
respect to Pledged Preferred Stock and (B) any payments of the liquidation
preference with respect to any Preferred Stock or security entitlements thereto
that have been released from the Pledge pursuant to the Pledge Agreement, to the
Agent to the account designated by the Agent, no later than 12:00 p.m., New York
City time, on the Business Day such payment is received by the Securities
Intermediary (provided that in the event such payment is received by the
Securities Intermediary on a day that is not a Business Day or after 12:30 p.m.,
New York City time, on a Business Day, then such payment shall be made no later
than 10:30 a.m., New York City time, on the next succeeding Business Day) and
(ii) in the case of Proceeds from the Remarketing with respect to any of the
Pledged Preferred stock or security entitlements thereto, to the Company on the
Purchase Contract Settlement Date (as described herein) in accordance with the
terms of the Pledge Agreement, in full satisfaction of the respective
obligations of the Holders of the Corporate PIES of which such Pledged Preferred
Stock is a part under the Purchase Contracts forming a part of such Corporate
PIES. Dividends on any Preferred Stock forming part of a Corporate PIES
evidenced hereby, which is payable quarterly in arrears on February 16, May 16,
August 16 and November 16 of each year, commencing November 16, 1999 (a "Payment
Date"), shall, subject to receipt thereof by the Agent from the Securities
Intermediary, be paid to the Person in whose name this Corporate PIES
Certificate (or a Predecessor Corporate PIES Certificate) is registered at the
close of business on the Record Date for such Payment Date.
Each Purchase Contract evidenced hereby obligates the Holder of this
Corporate PIES Certificate to purchase, and the Company to sell, on August 16,
2002 (the "Purchase Contract Settlement Date"), at a price equal to $50 in cash
(the "Stated Amount"), a number of Common Shares, par value $0.01 ("Common
Stock"), of the Company, equal to the Settlement Rate, unless on or prior to the
Purchase Contract Settlement Date there shall have occurred a Termination Event
or an Early Settlement with respect to the Corporate PIES of which such Purchase
Contract is a part, all as provided in the Purchase Contract Agreement and more
fully described on the reverse hereof. The purchase price (the "Purchase Price")
for the shares of Common Stock purchased pursuant to each Purchase Contract
evidenced hereby, if not paid earlier, shall be paid on the Purchase Contract
Settlement Date by separate cash or by application of payment received, pursuant
to the Remarketing, in respect of the liquidation preference with respect to any
Pledged Preferred Stock pledged to secure the obligations under such Purchase
Contract of the Holder of the Corporate PIES of which such Purchase Contract is
a part.
The Company shall pay, on each Payment Date, in respect of each Purchase
Contract forming part of a Corporate PIES evidenced hereby an amount (the
"Contract Adjustment Payments") equal to (a) if a Reset Transaction has not
occurred, 0.75% per annum of the Stated Amount or (b) following the occurrence
of a Reset Transaction, the Adjusted Contract Adjustment Payment Rate related to
such Reset Transaction until any such succeeding Reset
A-2
<PAGE>
Transaction shall occur (computed on the basis of (i) for any full quarterly
period, a 360-day year of twelve 30-day months and (ii) for any period shorter
than a full quarterly period, a 30-day month and for periods less than a month,
the actual number of days elapsed per 30-day period). Such Contract Adjustment
Payments shall be payable to the Person in whose name this Corporate PIES
Certificate (or a Predecessor Corporate PIES Certificate) is registered at the
close of business on the Record Date for such Payment Date.
Dividends on the Preferred Stock and Contract Adjustment Payments will be
payable at the office of the Agent in The City of New York or, at the option of
the Company, by check mailed to the address of the Person entitled thereto as
such address appears on the Corporate PIES Register.
Reference is hereby made to the further provisions set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Agent by manual signature, this Corporate PIES Certificate shall not be entitled
to any benefit under the Pledge Agreement or the Purchase Contract Agreement or
be valid or obligatory for any purpose.
A-3
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
BANK UNITED CORP.
By: _______________________________
Name:
Title:
By: _______________________________
Name:
Title:
HOLDER SPECIFIED ABOVE (as to
obligations of such Holder under the
Purchase Contracts evidenced hereby)
By: THE FIRST NATIONAL BANK OF
CHICAGO
not individually but solely as
Attorney-in-Fact of such Holder
By: THE FIRST NATIONAL BANK OF
CHICAGO,
Name:
Title:
Dated:
AGENT'S CERTIFICATE OF AUTHENTICATION
This is one of the Corporate PIES Certificates referred to in the within
mentioned Purchase Contract Agreement.
By: THE FIRST NATIONAL BANK OF
CHICAGO,
as Purchase Contract Agent
A-4
<PAGE>
By: _______________________________
Authorized Officer
(FORM OF REVERSE OF CORPORATE PIES CERTIFICATE)
Each Purchase Contract evidenced hereby is governed by a Purchase Contract
Agreement, dated as of August 10, 1999 (as may be supplemented from time to
time, the "Purchase Contract Agreement"), between the Company and The First
National Bank of Chicago, as Purchase Contract Agent (including its successors
hereunder, the "Agent"), to which Purchase Contract Agreement and supplemental
agreements thereto reference is hereby made for a description of the respective
rights, limitations of rights, obligations, duties and immunities thereunder of
the Agent, the Company, and the Holders and of the terms upon which the
Corporate PIES Certificates are, and are to be, executed and delivered.
Each Purchase Contract evidenced hereby obligates the Holder of this
Corporate PIES Certificate to purchase, and the Company to sell, on the Purchase
Contract Settlement Date at a price equal to the Stated Amount (the "Purchase
Price"), a number of shares of Common Stock of the Company equal to the
Settlement Rate, unless, on or prior to the Purchase Contract Settlement Date,
there shall have occurred a Termination Event with respect to the Security of
which such Purchase Contract is a part or an Early Settlement shall have
occurred. The "Settlement Rate" is equal to (a) if the Applicable Market Value
(as defined below) is equal to or greater than $44.9250 (the "Threshold
Appreciation Price"), 1.11297 shares of Common Stock per Purchase Contract, (b)
if the Applicable Market Value is less than the Threshold Appreciation Price but
is greater than $37.4375 the number of shares of Common Stock per Purchase
Contract equal to the Stated Amount divided by the Applicable Market Value and
(c) if the Applicable Market Amount is less than or equal to $37.4375, 1.33556
shares of Common Stock per Purchase Contract, in each case subject to adjustment
as provided in the Purchase Contract Agreement. No fractional shares of Common
Stock will be issued upon settlement of Purchase Contracts, as provided in the
Purchase Contract Agreement.
Each Purchase Contract evidenced hereby, which is settled either through
Early Settlement or Cash Settlement, shall obligate the Holder of the related
Corporate PIES to purchase at the Purchase Price, and the Company to sell, a
number of newly issued shares of Common Stock equal to the Early Settlement Rate
or the Settlement Rate, as applicable.
The "Applicable Market Value" means the average of the Closing Price per
share of Common Stock on each of the 20 Trading Days ending on the third Trading
Day immediately preceding the Purchase Contract Settlement Date. The "Closing
Price" of the Common Stock on any date of determination means (i) the closing
sale price (or, if no closing price is reported, the last reported sale price)
of the Common Stock on the Nasdaq National Market on such date, (ii) if the
Common Stock is not listed for trading on the Nasdaq National Market on any such
date, the closing sale price as reported in the composite transactions for the
principal United States securities exchange on which the Common Stock is so
listed, (iii) if the Common Stock is not so reported, the last quoted bid price
for the Common Stock in the over-the-counter market as
A-5
<PAGE>
reported by the National Quotation Bureau or similar organization or (iv) if
such bid price is not available, the average of the mid-point of the last bid
and ask prices of the Common Stock on such date from at least three nationally
recognized independent investment banking firms retained for this purpose by the
Company. A "Trading Day" means a day on which the Common Stock (A) is not
suspended from trading on any national or regional securities exchange or
association or over-the-counter market at the close of business and (B) has
traded at least once on the national or regional securities exchange or
association or over-the-counter market that is the primary market for the
trading of the Common Stock.
In accordance with the terms of the Purchase Contract Agreement, the Holder
of this Corporate PIES Certificate may pay the Purchase Price for the shares of
Common Stock purchased pursuant to each Purchase Contract evidenced hereby by
effecting a Cash Settlement or an Early Settlement or a remarketing of the
related Pledged Preferred Stock. A Holder of Corporate PIES who does not effect,
on or prior to 11:00 a.m. New York City time on the fifth Business Day
immediately preceding the Purchase Contract Settlement Date, an effective Cash
Settlement or an Early Settlement, shall pay the Purchase Price for the shares
of Common Stock to be issued under the related Purchase Contract from the
proceeds of the sale of the related Pledged Preferred Stock held by the
Collateral Agent. Such sale will be made by the Remarketing Agent pursuant to
the terms of the Remarketing Agreement on the third Business Day prior to the
Purchase Contract Settlement Date. If, as provided in the Purchase Contract
Agreement, upon the occurrence of a Failed Remarketing the Collateral Agent, for
the benefit of the Company, exercises its rights as a secured creditor with
respect to the Pledged Preferred Stock related to this Corporate PIES
certificate, any accrued and unpaid dividends on such Pledged Preferred Stock
will become payable by the Company to the holder of this Corporate PIES
Certificate in the manner provided for in the Purchase Contract Agreement.
The Company shall not be obligated to issue any shares of Common Stock in
respect of a Purchase Contract or deliver any certificates therefor to the
Holder unless it shall have received payment of the aggregate purchase price for
the shares of Common Stock to be purchased thereunder in the manner herein set
forth.
Each Purchase Contract evidenced hereby and all obligations and rights of
the Company and the Holder thereunder shall terminate if a Termination Event
shall occur. Upon the occurrence of a Termination Event, the Company shall give
written notice to the Agent and to the Holders, at their addresses as they
appear in the Corporate PIES Register. Upon and after the occurrence of a
Termination Event, the Collateral Agent shall release the Pledged Preferred
Stock forming a part of each Corporate PIES from the Pledge. A Corporate PIES
shall thereafter represent the right to receive the Preferred Stock forming a
part of such Corporate PIES in accordance with the terms of the Purchase
Contract Agreement and the Pledge Agreement.
Under the terms of the Pledge Agreement, the Agent will be entitled to
exercise the voting and any other consensual rights pertaining to the Pledged
Preferred Stock. Upon receipt of notice of any meeting at which holders of
Preferred Stock are entitled to vote or upon the solicitation of consents,
waivers or proxies of holders of Preferred Stock, the Agent shall, as soon as
practicable thereafter, mail to the Corporate PIES Holders a notice (a)
containing such information as is contained in the notice or solicitation, (b)
stating that each Corporate PIES Holder on the record
A-6
<PAGE>
date set by the Agent therefor (which, to the extent possible, shall be the same
date as the record date for determining the holders of Preferred Stock entitled
to vote) shall be entitled to instruct the Agent as to the exercise of the
voting rights pertaining to the Preferred Stock constituting a part of such
Holder's Corporate PIES and (c) stating the manner in which such instructions
may be given. Upon the written request of the Corporate PIES Holders on such
record date, the Agent shall endeavor insofar as practicable to vote or cause to
be voted, in accordance with the instructions set forth in such requests, the
maximum aggregate liquidation preference of Preferred Stock as to which any
particular voting instructions are received. In the absence of specific
instructions from the Holder of a Corporate PIES, the Agent shall abstain from
voting the Preferred Stock evidenced by such Corporate PIES.
The Corporate PIES Certificates are issuable only in registered form and
only in denominations of a single Corporate PIES and any integral multiple
thereof. The transfer of any Corporate PIES Certificate will be registered and
Corporate PIES Certificates may be exchanged as provided in the Purchase
Contract Agreement. The Corporate PIES Registrar may require a Holder, among
other things, to furnish appropriate endorsements and transfer documents
permitted by the Purchase Contract Agreement. No service charge shall be
required for any such registration of transfer or exchange, but the Company and
the Agent may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith. A holder who elects to
substitute a Treasury Security for Preferred Stock thereby creating Treasury
PIES, shall be responsible for any fees or expenses payable in connection
therewith. Except as provided in the Purchase Contract Agreement, for so long as
the Purchase Contract underlying a Corporate PIES remains in effect, such
Corporate PIES shall not be separable into its constituent parts, and the rights
and obligations of the Holder of such Corporate PIES in respect of the Preferred
Stock and Purchase Contract constituting such Corporate PIES may be transferred
and exchanged only as a Corporate PIES. The holder of a Corporate PIES may
substitute for the Pledged Preferred Stock securing its obligation under the
related Purchase Contract Treasury Securities in an aggregate principal amount
equal to the aggregate liquidation preference of the Pledged Preferred Stock in
accordance with the terms of the Purchase Contract Agreement and the Pledge
Agreement. From and after such Collateral Substitution, the Security for which
such Pledged Treasury Securities secures the holder's obligation under the
Purchase Contract shall be referred to as a "Treasury PIES." A Holder may make
such Collateral Substitution only in integral multiples of 20 Corporate PIES for
20 Treasury PIES. Such Collateral Substitution may cause the equivalent
aggregate amount of this Certificate to be increased or decreased; provided,
however, this Corporate PIES Certificate shall not represent more than ____
Corporate PIES. All such adjustments to the equivalent amount of this Corporate
PIES Certificate shall be duly recorded by placing an appropriate notation on
the Schedule attached hereto.
A Holder of Treasury PIES may recreate Corporate PIES by delivering to the
Securities Intermediary Preferred Stock with an aggregate liquidation preference
equal to the aggregate principal amount of the Pledged Treasury Securities in
exchange for the release of such Pledged Treasury Securities in accordance with
the terms of the Purchase Contract Agreement and the Pledge Agreement.
The Company shall pay, on each Payment Date, the Contract Adjustment
Payments payable in respect of each Purchase Contract to the Person in whose
name the Corporate PIES
A-7
<PAGE>
Certificate evidencing such Purchase Contract is registered at the close of
business on the Record Date for such Payment Date. Contract Adjustment Payments
will be payable at the office of the Agent in The City of New York or, at the
option of the Company, by check mailed to the address of the Person entitled
thereto at such address as it appears on the Corporate PIES Register.
The Purchase Contracts and all obligations and rights of the Company and
the Holders thereunder, including, without limitation, the rights of the Holders
to receive and the obligation of the Company to pay any Contract Adjustment
Payments, shall immediately and automatically terminate, without the necessity
of any notice or action by any Holder, the Agent or the Company, if, on or prior
to the Purchase Contract Settlement Date, a Termination Event shall have
occurred. Upon the occurrence of a Termination Event, the Company shall promptly
but in no event later than two Business Days thereafter give written notice to
the Agent, the Collateral Agent and the Holders, at their addresses as they
appear in the Corporate PIES Register. Upon and after the occurrence of a
Termination Event, the Collateral Agent shall release the Preferred Stock from
the Pledge in accordance with the provisions of the Pledge Agreement.
Subject to and upon compliance with the provisions of the Purchase Contract
Agreement, at the option of the Holder thereof, Purchase Contracts underlying
Securities may be settled early (an "Early Settlement") as provided in the
Purchase Contract Agreement. In order to exercise the right to effect Early
Settlement with respect to any Purchase Contracts evidenced by this Corporate
PIES Certificate, the Holder of this Corporate PIES Certificate shall deliver
this Corporate PIES Certificate to the Agent at the Corporate Trust Office duly
endorsed for transfer to the Company or in blank with the form of Election to
Settle Early set forth below duly completed and accompanied by payment in the
form of immediately available funds payable to the order of the Company in an
amount (the "Early Settlement Amount") equal to (i) the product of (A) the
Stated Amount times (B) the number of Purchase Contracts with respect to which
the Holder has elected to effect Early Settlement, plus (ii) if such delivery is
made with respect to any Purchase Contracts during the period from the close of
business on any Record Date for any Payment Date to the opening of business on
such Payment Date, an amount equal to the Contract Adjustment Payments payable
on such Payment Date with respect to such Purchase Contracts. Upon Early
Settlement of Purchase Contracts by a Holder of the related Securities, the
Pledged Preferred Stock underlying such Securities shall be released from the
Pledge as provided in the Pledge Agreement and the Holder shall be entitled to
receive a number of shares of Common Stock on account of each Purchase Contract
forming part of a Corporate PIES as to which Early Settlement is effected equal
to the Early Settlement Rate. The Early Settlement Rate shall initially be equal
to 1.11297 shares of Common Stock and shall be adjusted in the same manner and
at the same time as the Settlement Rate is adjusted as provided in the Purchase
Contract Agreement.
Upon registration of transfer of this Corporate PIES Certificate, the
transferee shall be bound (without the necessity of any other action on the part
of such transferee, except as may be required by the Agent pursuant to the
Purchase Contract Agreement), under the terms of the Purchase Contract Agreement
and the Purchase Contracts evidenced hereby and the transferor shall be released
from the obligations under the Purchase Contracts evidenced by this Corporate
PIES Certificate. The Company covenants and agrees, and the Holder, by its
acceptance hereof, likewise covenants and agrees, to be bound by the provisions
of this paragraph.
A-8
<PAGE>
The Holder of this Corporate PIES Certificate, by its acceptance hereof,
authorizes the Agent to enter into and perform the related Purchase Contracts
forming part of the Corporate PIES evidenced hereby on its behalf as its
attorney-in-fact, expressly withholds any consent to the assumption (i.e.,
affirmance) of the Purchase Contracts by the Company or its trustee in the event
that the Company becomes the subject of a case under the Bankruptcy Code, agrees
to be bound by the terms and provisions thereof, covenants and agrees to perform
his obligations under such Purchase Contracts, consents to the provisions of the
Purchase Contract Agreement, authorizes the Agent to enter into and perform the
Purchase Contract Agreement and the Pledge Agreement on its behalf as its
attorney-in-fact, and consents to the Pledge of the Shares underlying this
Corporate PIES Certificate pursuant to the Pledge Agreement. The Holder further
covenants and agrees that, to the extent and in the manner provided in the
Purchase Contract Agreement and the Pledge Agreement, but subject to the terms
thereof, Proceeds from the Remarketing with respect to any of the Pledged
Preferred Stock or security entitlements thereto in respect of the aggregate
liquidation preference of the Pledged Preferred Stock on the Purchase Contract
Settlement Date shall be paid by the Collateral Agent to the Company in
satisfaction of such Holder's obligations under such Purchase Contract and such
Holder shall acquire no right, title or interest in such payments.
Subject to certain exceptions, the provisions of the Purchase Contract
Agreement may be amended with the consent of the Holders of a majority of the
Purchase Contracts.
The Purchase Contracts shall for all purposes be governed by, and construed
in accordance with, the laws of the State of New York.
The Company, the Agent and its Affiliates and any agent of the Company or
the Agent may treat the Person in whose name this Corporate PIES Certificate is
registered as the owner of the Corporate PIES evidenced hereby for the purpose
of receiving payments of dividends payable quarterly on the Preferred Stock
receiving payments of Contract Adjustment Payments, performance of the Purchase
Contracts and for all other purposes whatsoever, whether or not any payments in
respect thereof be overdue and notwithstanding any notice to the contrary, and
neither the Company, the Agent nor any such agent shall be affected by notice to
the contrary.
The Purchase Contracts shall not, prior to the settlement thereof, entitle
the Holder to any of the rights of a holder of shares of Common Stock.
A copy of the Purchase Contract Agreement is available for inspection at
the offices of the Agent.
A-9
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
UNIF GIFT MIN ACT - ---------------Custodian---------------
(cust) (minor)
Under Uniform Gifts to Minors Act of
_______________________________________
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of
survivorship and not as tenants in common
Additional abbreviations may also be used though not in the above list.
___________________________
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto________________________________________________________________________
____________________________________________________________________________
(Please insert Social Security or Taxpayer I.D. or other Identifying Number of
Assignee)
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
(Please Print or Type Name and Address Including Postal Zip Code of Assignee)
the within Corporate PIES Certificates and all rights thereunder, hereby
irrevocably constituting and appointing_____________________________________
attorney to transfer said Corporate PIES Certificates on the books of Bank
United Corp. with full power of substitution in the premises.
Dated: ___________________ _____________________________________________
Signature
NOTICE: The signature to this assignment must
correspond with the name as it appears upon
the face of the within Corporate PIES
Certificates in every particular, without
alteration or enlargement or any change
whatsoever.
Signature Guarantee: ___________________________________
A-10
<PAGE>
SETTLEMENT INSTRUCTIONS
The undersigned Holder directs that a certificate for shares of Common
Stock deliverable upon settlement on or after the Purchase Contract
Settlement Date of the Purchase Contracts underlying the number of Corporate
PIES evidenced by this Corporate PIES Certificate be registered in the name
of, and delivered, together with a check in payment for any fractional share,
to the undersigned at the address indicated below unless a different name and
address have been indicated below. If shares are to be registered in the
name of a Person other than the undersigned, the undersigned will pay any
transfer tax payable incident thereto.
Dated: _______________________ _____________________________________
Signature
Signature Guarantee: ________________
(if assigned to another person)
If shares are to be registered in the
name of and delivered to a Person REGISTERED HOLDER
other than the Holder, please (i)
print such Person's name and address
and (ii) provide a guarantee of your
signature:
Please print name and address of
Registered Holder:
_____________________________________ _____________________________________
Name Name
_____________________________________ _____________________________________
Address Address
_____________________________________ _____________________________________
_____________________________________ _____________________________________
_____________________________________ _____________________________________
Social Security or other
Taxpayer Identification _____________________________________
Number, if any
A-11
<PAGE>
ELECTION TO SETTLE EARLY
The undersigned Holder of this Corporate PIES Certificate hereby
irrevocably exercises the option to effect Early Settlement in accordance
with the terms of the Purchase Contract Agreement with respect to the
Purchase Contracts underlying the number of Corporate PIES evidenced by this
Corporate PIES Certificate specified below. The undersigned Holder directs
that a certificate for shares of Common Stock deliverable upon such Early
Settlement be registered in the name of, and delivered, together with a check
in payment for any fractional share and any Corporate PIES Certificate
representing any Corporate PIES evidenced hereby as to which Early Settlement
of the related Purchase Contracts is not effected, to the undersigned at the
address indicated below unless a different name and address have been
indicated below. Pledged Shares deliverable upon such Early Settlement will
be transferred in accordance with the transfer instructions set forth below.
If shares are to be registered in the name of a Person other than the
undersigned, the undersigned will pay any transfer tax payable incident
thereto.
Dated: ______________________ _____________________________________
Signature
Signature Guarantee: _____________________________________
A-12
<PAGE>
Number of Securities evidenced hereby as to which Early Settlement of the
related Purchase Contracts is being elected:
If shares of Common Stock or Corporate REGISTERED HOLDER
PIES Certificates are to be registered
in the name of and delivered to, and
Pledged Preferred Stock are to be
transferred to, a Person other than the
Holder, please print such Person's
name and address:
Please print name and address of
Registered Holder:
_____________________________________ _____________________________________
Name Name
_____________________________________ _____________________________________
Address Address
_____________________________________ _____________________________________
_____________________________________ _____________________________________
_____________________________________ _____________________________________
Social Security or other
Taxpayer Identification
Number, if any _____________________________________
- -------------------------------------------------------------------------------
A-13
<PAGE>
Transfer Instructions for Pledged Preferred Stock Transferable Upon Early
Settlement or a Termination Event:
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
A-14
<PAGE>
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL CERTIFICATE
The following increases or decreases in this Global Certificate have been made:
<TABLE>
<S> <C> <C> <C> <C> <C>
Date Amount of Amount of Number of Signature of
decrease in increase in PIES authorized
Number of Number of evidenced by officer of
PIES PIES this Trustee or
evidenced by evidenced by Global Securities
the the Certificate Custodian
Global Global following such
Certificate Certificate decrease or
increase
_________________ _______________ ______________ _______________ ______________
_________________ _______________ ______________ _______________ ______________
_________________ _______________ ______________ _______________ ______________
_________________ _______________ ______________ _______________ ______________
_________________ _______________ ______________ _______________ ______________
_________________ _______________ ______________ _______________ ______________
_________________ _______________ ______________ _______________ ______________
_________________ _______________ ______________ _______________ ______________
_________________ _______________ ______________ _______________ ______________
_________________ _______________ ______________ _______________ ______________
_________________ _______________ ______________ _______________ ______________
_________________ _______________ ______________ _______________ ______________
_________________ _______________ ______________ _______________ ______________
_________________ _______________ ______________ _______________ ______________
_________________ _______________ ______________ _______________ ______________
_________________ _______________ ______________ _______________ ______________
_________________ _______________ ______________ _______________ ______________
_________________ _______________ ______________ _______________ ______________
_________________ _______________ ______________ _______________ ______________
_________________ _______________ ______________ _______________ ______________
_________________ _______________ ______________ _______________ ______________
_________________ _______________ ______________ _______________ ______________
_________________ _______________ ______________ _______________ ______________
_________________ _______________ ______________ _______________ ______________
_________________ _______________ ______________ _______________ ______________
_________________ _______________ ______________ _______________ ______________
_________________ _______________ ______________ _______________ ______________
_________________ _______________ ______________ _______________ ______________
_________________ _______________ ______________ _______________ ______________
_________________ _______________ ______________ _______________ ______________
</TABLE>
A-15
<PAGE>
EXHIBIT B
FACE OF TREASURY PIES CERTIFICATE
"THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE
PURCHASE CONTRACT AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED IN THE
NAME OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (THE "DEPOSITARY"),
OR A NOMINEE OF THE DEPOSITARY. THIS CERTIFICATE IS EXCHANGEABLE FOR
CERTIFICATES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS
NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE PURCHASE CONTRACT
AGREEMENT AND NO TRANSFER OF THIS CERTIFICATE (OTHER THAN A TRANSFER OF THIS
CERTIFICATE AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A
NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITARY FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN."
NO. _____ CUSIP NO. 065412 50 4
NUMBER OF TREASURY PIES _________
BANK UNITED CORP.
TREASURY PIES
This Treasury PIES Certificate certifies that Cede & Co. is the registered
Holder of the number of Treasury PIES set forth above. Each Treasury PIES
consists of (i) a 1/20 undivided beneficial ownership interest of a Treasury
Security having a principal amount at maturity equal to $1,000, subject to the
Pledge of such Treasury Security by such Holder pursuant to the Pledge
Agreement, and (ii) the rights and obligations of the Holder under one Purchase
Contract with Bank United Corp., a Delaware corporation (the "Company"). All
capitalized terms used herein which are defined in the Purchase Contract
Agreement (as defined on the reverse hereof) have the meaning set forth therein.
Pursuant to the Pledge Agreement, the Treasury Securities constituting part
of each Treasury PIES evidenced hereby have been pledged to the Collateral
Agent, for the benefit of the
<PAGE>
Company, to secure the obligations of the Holder under the Purchase Contract
comprising a portion of such Treasury PIES.
Each Purchase Contract evidenced hereby obligates the Holder of this
Treasury PIES Certificate to purchase, and the Company, to sell, on August 16,
2002 (the "Purchase Contract Settlement Date"), at a price equal to $50 in cash
(the "Stated Amount"), a number of Common Shares, par value $0.01 ("Common
Stock"), of the Company equal to the Settlement Rate, unless on or prior to the
Purchase Contract Settlement Date there shall have occurred a Termination Event
or an Early Settlement with respect to the Treasury PIES of which such Purchase
Contract is a part, all as provided in the Purchase Contract Agreement and more
fully described on the reverse hereof. The purchase price for the shares of
Common Stock purchased pursuant to each Purchase Contract evidenced hereby, if
not paid earlier, shall be paid on the Purchase Contract Settlement Date by
application of the Proceeds from the Treasury Securities pledged to secure the
obligations under such Purchase Contract in accordance with the terms of the
Pledge Agreement.
The Company shall pay on each Payment Date in respect of each Purchase
Contract evidenced hereby an amount (the "Contract Adjustment Payments") equal
to (a) if a Reset Transaction has not occurred, 0.75% per annum of the Stated
Amount or (b) following the occurrence of a Reset Transaction, the Adjusted
Contract Adjustment Payment Rate related to such Reset Transaction until any
such succeeding Reset Transaction shall occur (computed on the basis of (i) for
any full quarterly period, a 360-day year of twelve 30-day months and (ii) for
any period shorter than a full quarterly period, a 30-day month and for periods
less than a month, the actual number of days elapsed per 30-day period), as the
case may be. Such Contract Adjustment Payments shall be payable to the Person in
whose name this Treasury PIES Certificate (or a Predecessor Treasury PIES
Certificate) is registered at the close of business on the Record Date for such
Payment Date.
Contract Adjustment Payments will be payable at the office of the Agent in
The City of New York or, at the option of the Company, by check mailed to the
address of the Person entitled thereto as such address appears on the Treasury
PIES Register.
Reference is hereby made to the further provisions set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as
if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Agent by manual signature, this Treasury PIES Certificate shall not be entitled
to any benefit under the Pledge Agreement or the Purchase Contract Agreement or
be valid or obligatory for any purpose.
B-2
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
BANK UNITED CORP.
By: _______________________________
Name:
Title:
By: _______________________________
Name:
Title:
HOLDER SPECIFIED ABOVE (as to
obligations of such Holder under the
Purchase Contracts)
By: THE FIRST NATIONAL BANK OF
CHICAGO, not individually but
solely as Attorney-in-Fact of
such Holder
By: _______________________________
Name:
Title:
Dated:
B-3
<PAGE>
AGENT'S CERTIFICATE OF AUTHENTICATION
This is one of the Treasury PIES referred to in the within-mentioned
Purchase Contract Agreement.
By: THE FIRST NATIONAL BANK OF CHICAGO,
as Purchase Contract Agent
By: ____________________________
Authorized Officer
B-4
<PAGE>
(REVERSE OF TREASURY PIES CERTIFICATE)
Each Purchase Contract evidenced hereby is governed by a Purchase Contract
Agreement, dated as of August 10, 1999 (as may be supplemented from time to
time, the "Purchase Contract Agreement") between the Company and the First
National Bank of Chicago, as Purchase Contract Agent (including its successors
thereunder, herein called the "Agent"), to which the Purchase Contract Agreement
and supplemental agreements thereto reference is hereby made for a description
of the respective rights, limitations of rights, obligations, duties and
immunities thereunder of the Agent, the Company and the Holders and of the terms
upon which the Treasury PIES Certificates are, and are to be, executed and
delivered.
Each Purchase Contract evidenced hereby obligates the Holder of this
Treasury PIES Certificate to purchase, and the Company to sell, on the Purchase
Contract Settlement Date at a price equal to the Stated Amount (the "Purchase
Price") a number of shares of Common Stock of the Company equal to the
Settlement Rate, unless on or prior to the Purchase Contract Settlement Date,
there shall have occurred a Termination Event with respect to the Security of
which such Purchase Contract is a part or an Early Settlement shall have
occurred. The "Settlement Rate" is equal to (a) if the Applicable Market Value
(as defined below) is equal to or greater than $44.9250 (the "Threshold
Appreciation Price"), 1.11297 shares of Common Stock per Purchase Contract, (b)
if the Applicable Market Value is less than the Threshold Appreciation Price but
is greater than $37.4375, the number of shares of Common Stock per Purchase
Contract equal to the Stated Amount divided by the Applicable Market Value and
(c) if the Applicable Market Amount is less than or equal to $37.4375, then
1.33556 shares of Common Stock per Purchase Contract, in each case subject to
adjustment as provided in the Purchase Contract Agreement. No fractional shares
of Common Stock will be issued upon settlement of Purchase Contracts, as
provided in the Purchase Contract Agreement.
Each Purchase Contract evidenced hereby, which is settled either through
Early Settlement or Cash Settlement, shall obligate the Holder of the related
Treasury PIES to purchase at the Purchase Price for cash, and the Company to
sell, a number of newly issued shares of Common Stock equal to the Early
Settlement Rate or the Settlement Rate, as applicable.
The "Applicable Market Value" means the average of the Closing Prices per
share of Common Stock on each of the 20 Trading Days ending on the third Trading
Day immediately preceding the Purchase Contract Settlement Date. The "Closing
Price" of the Common Stock on any date of determination means the (i) closing
sale price (or, if no closing price is reported, the last reported sale price)
of the Common Stock on the Nasdaq National Market on such date, (ii) if the
Common Stock is not listed for trading on the Nasdaq National Market on any such
date, the closing sale price as reported in the composite transactions for the
principal United States securities exchange on which the Common Stock is so
listed, (iii) if the Common Stock is not so reported, the last quoted bid price
for the Common Stock in the over-the-counter market as reported by the National
Quotation Bureau or similar organization or (iv) if such bid price is not
available, the average of the mid-point of the last bid and ask prices of the
Common Stock on such date from at least three nationally recognized independent
investment banking firms retained for this purpose by the Company. A "Trading
Day" means a day on which the Common Stock (A) is not suspended from trading on
any national or regional securities exchange or association or over-the-counter
market at the close of business and (B) has traded at least once on
B-5
<PAGE>
the national or regional securities exchange or association or over-the-counter
market that is the primary market for the trading of the Common Stock.
In accordance with the terms of the Purchase Contract Agreement, the Holder
of this Treasury PIES shall pay the Purchase Price for the shares of Common
Stock purchased pursuant to each Purchase Contract evidenced hereby either by
effecting a Cash Settlement or an Early Settlement of each such Purchase
Contract or by applying a principal amount of the Pledged Treasury Securities
underlying such Holder's Treasury PIES equal to the Stated Amount of such
Purchase Contract to the purchase of the Common Stock. A Holder of Treasury PIES
who does not effect, on or prior to 11:00 a.m. New York City time on the
Business Day immediately preceding the Purchase Contract Settlement Date, an
effective Cash Settlement or an Early Settlement, shall pay the Purchase Price
for the shares of Common Stock to be issued under the related Purchase Contract
from the proceeds of the Pledged Treasury Securities.
The Company shall not be obligated to issue any shares of Common Stock in
respect of a Purchase Contract or deliver any certificates therefor to the
Holder unless it shall have received payment of the aggregate purchase price for
the shares of Common Stock to be purchased thereunder in the manner herein set
forth.
Each Purchase Contract evidenced hereby and all obligations and rights of
the Company and the Holder thereunder shall terminate if a Termination Event
shall occur. Upon the occurrence of a Termination Event, the Company shall give
written notice to the Agent and to the Holders, at their addresses as they
appear in the Treasury PIES Register. Upon and after the occurrence of a
Termination Event, the Collateral Agent shall release the Pledged Treasury
Securities (as defined in the Pledge Agreement) forming a part of each Treasury
PIES. A Treasury PIES shall thereafter represent the right to receive the
interest in the Treasury Security forming a part of such Treasury PIES, in
accordance with the terms of the Purchase Contract Agreement and the Pledge
Agreement.
The Treasury PIES Certificates are issuable only in registered form and
only in denominations of a single Treasury PIES and any integral multiple
thereof. The transfer of any Treasury PIES Certificate will be registered and
Treasury PIES Certificates may be exchanged as provided in the Purchase Contract
Agreement. The Treasury PIES Registrar may require a Holder, among other things,
to furnish appropriate endorsements and transfer documents permitted by the
Purchase Contract Agreement. No service charge shall be required for any such
registration of transfer or exchange, but the Company and the Agent may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith. A Holder who elects to substitute Preferred
Stock for Treasury Securities, thereby recreating Corporate PIES, shall be
responsible for any fees or expenses associated therewith. Except as provided in
the Purchase Contract Agreement, for so long as the Purchase Contract underlying
a Treasury PIES remains in effect, such Treasury PIES shall not be separable
into its constituent parts, and the rights and obligations of the Holder of such
Treasury PIES in respect of the Treasury Security and the Purchase Contract
constituting such Treasury PIES may be transferred and exchanged only as a
Treasury PIES. A Holder of Treasury PIES may recreate Corporate PIES by
delivering to the Collateral Agent Preferred Stock with an aggregate liquidation
preference equal to the aggregate principal amount at maturity of the Pledged
Treasury Securities in exchange for the release of such Pledged Treasury
Securities in accordance with the terms of
B-6
<PAGE>
the Purchase Contract Agreement and the Pledge Agreement. From and after such
substitution, the Holder's Security shall be referred to as an "Corporate PIES."
Such substitution may cause the equivalent aggregate principal amount of this
Certificate to be increased or decreased; provided, however, this Treasury PIES
Certificate shall not represent more than ____ Treasury PIES. All such
adjustments to the equivalent aggregate principal amount of this Treasury PIES
Certificate shall be duly recorded by placing an appropriate notation on the
Schedule attached hereto.
A Holder of a Corporate PIES may recreate a Treasury PIES by delivering to
the Collateral Agent Treasury Securities in an aggregate principal amount equal
to the aggregate liquidation preference of the Pledged Preferred Stock in
exchange for the release of such Pledged Preferred Stock in accordance with the
terms of the Purchase Contract Agreement and the Pledge Agreement. Any such
recreation of a Treasury PIES may be effected only in multiples of 20 Corporate
PIES for 20 Treasury PIES.
The Company shall pay, on each Payment Date, the Contract Adjustment
Payments payable in respect of each Purchase Contract to the Person in whose
name the Treasury PIES Certificate evidencing such Purchase Contract is
registered at the close of business on the Record Date for such Payment Date.
Contract Adjustment Payments will be payable at the office of the Agent in The
City of New York or, at the option of the Company, by check mailed to the
address of the Person entitled thereto at such address as it appears on the
Treasury PIES Register.
The Purchase Contracts and all obligations and rights of the Company and
the Holders thereunder, including, without limitation, the rights of the Holders
to receive and the obligation of the Company to pay Contract Adjustment
Payments, shall immediately and automatically terminate, without the necessity
of any notice or action by any Holder, the Agent or the Company, if, on or prior
to the Purchase Contract Settlement Date, a Termination Event shall have
occurred. Upon the occurrence of a Termination Event, the Company shall promptly
but in no event later than two Business Days thereafter give written notice to
the Agent, the Collateral Agent and the Holders, at their addresses as they
appear in the Treasury PIES Register. Upon the occurrence of a Termination
Event, the Collateral Agent shall release the Treasury Securities from the
Pledge in accordance with the provisions of the Pledge Agreement.
Subject to and upon compliance with the provisions of the Purchase Contract
Agreement, at the option of the Holder thereof, Purchase Contracts underlying
Securities may be settled early (an "Early Settlement") as provided in the
Purchase Contract Agreement. In order to exercise the right to effect Early
Settlement with respect to any Purchase Contracts evidenced by this Treasury
PIES the Holder of this Treasury PIES Certificate shall deliver this Treasury
PIES Certificate to the Agent at the Corporate Trust Office duly endorsed for
transfer to the Company or in blank with the form of Election to Settle Early
set forth below duly completed and accompanied by payment in the form of
immediately available funds payable to the order of the Company in an amount
(the "Early Settlement Amount") equal to (i) the product of (A) $50 times (B)
the number of Purchase Contracts with respect to which the Holder has elected to
effect Early Settlement, plus (ii) if such delivery is made with respect to any
Purchase Contracts during the period from the close of business on any Record
Date for any Payment Date to the opening of business on such Payment Date, an
amount equal to the Contract Adjustment Payments payable, if any, on such
Payment Date with respect to such Purchase Contracts. Upon Early Settlement of
Purchase Contracts by a Holder of the related Securities, the Pledged Treasury
Securities
B-7
<PAGE>
underlying such Securities shall be released from the Pledge as provided in the
Pledge Agreement and the Holder shall be entitled to receive a number of shares
of Common Stock on account of each Purchase Contract forming part of a Treasury
PIES as to which Early Settlement is effected equal to 1.11297 shares of Common
Stock per Purchase Contract (the "Early Settlement Rate"). The Early Settlement
Rate shall be adjusted in the same manner and at the same time as the Settlement
Rate is adjusted as provided in the Purchase Contract Agreement.
Upon registration of transfer of this Treasury PIES Certificate, the
transferee shall be bound (without the necessity of any other action on the part
of such transferee, except as may be required by the Agent pursuant to the
Purchase Contract Agreement), under the terms of the Purchase Contract Agreement
and the Purchase Contracts evidenced hereby and the transferor shall be released
from the obligations under the Purchase Contracts evidenced by this Treasury
PIES Certificate. The Company covenants and agrees, and the Holder, by its
acceptance hereof, likewise covenants and agrees, to be bound by the provisions
of this paragraph.
The Holder of this Treasury PIES Certificate, by its acceptance hereof,
authorizes the Agent to enter into and perform the related Purchase Contracts
forming part of the Treasury PIES evidenced hereby on its behalf as its
attorney-in-fact, expressly withholds any consent to the assumption (i.e.,
affirmance) of the Purchase Contracts by the Company or its trustee in the event
that the Company becomes the subject of a case under the Bankruptcy Code, agrees
to be bound by the terms and provisions thereof, covenants and agrees to perform
its obligations under such Purchase Contracts, consents to the provisions of the
Purchase Contract Agreement, authorizes the Agent to enter into and perform the
Purchase Contract Agreement and the Pledge Agreement on its behalf as its
attorney-in-fact, and consents to the Pledge of the Treasury Securities
underlying this Treasury PIES Certificate pursuant to the Pledge Agreement. The
Holder further covenants and agrees, that, to the extent and in the manner
provided in the Purchase Contract Agreement and the Pledge Agreement, but
subject to the terms thereof, payments in respect of the aggregate principal
amount of the Pledged Treasury Securities on the Purchase Contract Settlement
Date shall be paid by the Collateral Agent to the Company in satisfaction of
such Holder's obligations under such Purchase Contract and such Holder shall
acquire no right, title or interest in such payments.
Subject to certain exceptions, the provisions of the Purchase Contract
Agreement may be amended with the consent of the Holders of a majority of the
Purchase Contracts.
The Purchase Contracts shall for all purposes be governed by, and construed
in accordance with, the laws of the State of New York.
The Company, the Agent and its Affiliates and any agent of the Company or
the Agent may treat the Person in whose name this Treasury PIES Certificate is
registered as the owner of the Treasury PIES evidenced hereby for the purpose of
receiving payments of interest on the Treasury Securities, receiving payments of
Contract Adjustment Payments, performance of the Purchase Contracts and for all
other purposes whatsoever, whether or not any payments in respect thereof be
overdue and notwithstanding any notice to the contrary, and neither the Company,
the Agent nor any such agent shall be affected by notice to the contrary.
The Purchase Contracts shall not, prior to the settlement thereof, entitle
the Holder to any of the rights of a holder of shares of Common Stock.
B-8
<PAGE>
A copy of the Purchase Contract Agreement is available for inspection at
the offices of the Agent.
B-9
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
UNIF GIFT MIN ACT - ---------------Custodian---------------
(cust) (minor)
Under Uniform Gifts to Minors Act of______
__________________________________________
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of
survivorship and not as tenants in common
Additional abbreviations may also be used though not in the above list.
_________________________________
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto_____________________________________________________________
_____________________________________________________________________________
(Please insert Social Security or Taxpayer I.D. or other Identifying Number of
Assignee)
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
(Please Print or Type Name and Address Including Postal Zip Code of Assignee)
the within Treasury PIES Certificates and all rights thereunder, hereby
irrevocably constituting and appointing______________________________________
attorney to transfer said Treasury PIES Certificates on the books of Bank United
Corp. with full power of substitution in the premises.
Dated: ___________________ ______________________________________________
Signature
NOTICE: The signature to this assignment must
correspond with the name as it appears upon
the face of the within Treasury PIES
Certificates in every particular, without
alteration or enlargement or any change
whatsoever.
Signature Guarantee: ___________________________________
B-10
<PAGE>
SETTLEMENT INSTRUCTIONS
The undersigned Holder directs that a certificate for shares of Common
Stock deliverable upon settlement on or after the Purchase Contract
Settlement Date of the Purchase Contracts underlying the number of Treasury
PIES evidenced by this Treasury PIES Certificate be registered in the name
of, and delivered, together with a check in payment for any fractional share,
to the undersigned at the address indicated below unless a different name and
address have been indicated below. If shares are to be registered in the
name of a Person other than the undersigned, the undersigned will pay any
transfer tax payable incident thereto.
Dated: _______________________ _____________________________________
Signature
Signature Guarantee:_________________
(if assigned to another person)
If shares are to be registered in the
name of and delivered to a Person REGISTERED HOLDER
other than the Holder, please (i)
print such Person's name and address
and (ii) provide a guarantee of your
signature:
Please print name and address of
Registered Holder:
- ------------------------------------- -------------------------------------
Name Name
- ------------------------------------- -------------------------------------
Address Address
- ------------------------------------- -------------------------------------
- ------------------------------------- -------------------------------------
- ------------------------------------- -------------------------------------
Social Security or other
Taxpayer Identification _____________________________________
Number, if any
B-11
<PAGE>
ELECTION TO SETTLE EARLY
The undersigned Holder of this Treasury PIES Certificate irrevocably
exercises the option to effect Early Settlement in accordance with the terms of
the Purchase Contract Agreement with respect to the Purchase Contracts
underlying the number of Treasury PIES evidenced by this Treasury PIES
Certificate specified below. The option to effect Early Settlement may be
exercised only with respect to Purchase Contracts underlying Treasury PIES with
an aggregate Stated Amount equal to $1,000 or an integral multiple thereof. The
undersigned Holder directs that a certificate for shares of Common Stock
deliverable upon such Early Settlement be registered in the name of, and
delivered, together with a check in payment for any fractional share and any
Treasury PIES Certificate representing any Treasury PIES evidenced hereby as to
which Early Settlement of the related Purchase Contracts is not effected, to the
undersigned at the address indicated below unless a different name and address
have been indicated below. Pledged Treasury Securities deliverable upon such
Early Settlement will be transferred in accordance with the transfer
instructions set forth below. If shares are to be registered in the name of a
Person other than the undersigned, the undersigned will pay any transfer tax
payable incident thereto.
Dated: ______________________ _____________________________________
Signature
Signature Guarantee: _____________________________________
B-12
<PAGE>
Number of Securities evidenced hereby as to which Early Settlement of the
related Purchase Contracts is being elected:
If shares of Common Stock of Treasury REGISTERED HOLDER
PIES Certificates are to be registered
in the name of and delivered to and
Pledged Treasury Securities are to be
transferred to a Person other than the
Holder, please print such Person's
name and address:
Please print name and address of
Registered Holder:
- ------------------------------------- -------------------------------------
Name Name
- ------------------------------------- -------------------------------------
Address Address
- ------------------------------------- -------------------------------------
- ------------------------------------- -------------------------------------
- ------------------------------------- -------------------------------------
Social Security or other
Taxpayer Identification
Number, if any _____________________________________
Transfer Instructions for Pledged Treasury Securities Transferable Upon Early
Settlement or a Termination Event:
B-13
<PAGE>
[TO BE ATTACHED TO GLOBAL CERTIFICATES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL CERTIFICATE
The following increases or decreases in this Global Certificate have been made:
<TABLE>
<S> <C> <C> <C> <C> <C>
Date Amount of Amount of Number of Signature of
decrease in increase in PIES authorized
Number of Number of evidenced by officer of
PIES PIES this Trustee or
evidenced by evidenced by Global Securities
the the Certificate Custodian
Global Global following such
Certificate Certificate decrease or
increase
_________________ _______________ ______________ _______________ ______________
_________________ _______________ ______________ _______________ ______________
_________________ _______________ ______________ _______________ ______________
_________________ _______________ ______________ _______________ ______________
_________________ _______________ ______________ _______________ ______________
_________________ _______________ ______________ _______________ ______________
_________________ _______________ ______________ _______________ ______________
_________________ _______________ ______________ _______________ ______________
_________________ _______________ ______________ _______________ ______________
_________________ _______________ ______________ _______________ ______________
_________________ _______________ ______________ _______________ ______________
_________________ _______________ ______________ _______________ ______________
_________________ _______________ ______________ _______________ ______________
_________________ _______________ ______________ _______________ ______________
_________________ _______________ ______________ _______________ ______________
_________________ _______________ ______________ _______________ ______________
_________________ _______________ ______________ _______________ ______________
_________________ _______________ ______________ _______________ ______________
_________________ _______________ ______________ _______________ ______________
_________________ _______________ ______________ _______________ ______________
_________________ _______________ ______________ _______________ ______________
_________________ _______________ ______________ _______________ ______________
_________________ _______________ ______________ _______________ ______________
_________________ _______________ ______________ _______________ ______________
_________________ _______________ ______________ _______________ ______________
_________________ _______________ ______________ _______________ ______________
_________________ _______________ ______________ _______________ ______________
_________________ _______________ ______________ _______________ ______________
_________________ _______________ ______________ _______________ ______________
_________________ _______________ ______________ _______________ ______________
</TABLE>
<PAGE>
EXHIBIT C
INSTRUCTION TO PURCHASE CONTRACT AGENT
The First National Bank of Chicago
Attention:
Re: ________ PIES of Bank United Corp. (the "Company")
The undersigned Holder hereby notifies you that it has delivered to The
Bank of New York, as Securities Intermediary, for credit to the Collateral
Account, $______ aggregate liquidation preference of [Preferred Stock] [Treasury
Securities] in exchange for the [Pledged Preferred Stock] [Pledged Treasury
Securities] held in the Collateral Account, in accordance with the Pledge
Agreement, dated as of August 10, 1999 (the "Pledge Agreement"; unless otherwise
defined herein, terms defined in the Pledge Agreement are used herein as defined
therein), among you, the Company, the Collateral Agent and the Securities
Intermediary. The undersigned Holder has paid all applicable fees relating to
such exchange. The undersigned Holder hereby instructs you to instruct the
Collateral Agent to release to you on behalf of the undersigned Holder the
[Pledged Preferred Stock] [Pledged Treasury Securities] related to such
[Corporate PIES] [Treasury PIES].
Date: _______________________ ____________________________________
Signature
Signature Guarantee:____________________
Please print name and address of Registered Holder:
- ------------------------------------ ------------------------------------
Name Social Security or other Taxpayer
Identification Number, if any
Address
- ------------------------------------
- ------------------------------------
- ------------------------------------
<PAGE>
D-1
EXHIBIT D
NOTICE FROM PURCHASE CONTRACT AGENT
TO HOLDERS
(Transfer of Collateral upon Occurrence of a Termination Event)
[HOLDER]
____________________
____________________
Attention:
Telecopy: __________
Re: __________ PIES of BANK UNITED CORP.
(the "Company")
Please refer to the Purchase Contract Agreement, dated as of August 10,
1999 (the "Purchase Contract Agreement"; unless otherwise defined herein, terms
defined in the Purchase Contract Agreement are used herein as defined therein),
among the Company and the undersigned, as Purchase Contract Agent and as
attorney-in-fact for the holders of PIES from time to time.
We hereby notify you that a Termination Event has occurred and that [the
Preferred Stock][the Treasury Securities] underlying your ownership interest in
_____ [Corporate PIES][Treasury PIES] have been released and are being held by
us for your account pending receipt of transfer instructions with respect to
such [Preferred Stock][Treasury Securities] (the "Released Securities").
Pursuant to Section 3.15 of the Purchase Contract Agreement, we hereby
request written transfer instructions with respect to the Released Securities.
Upon receipt of your instructions and upon transfer to us of your [Corporate
PIES][Treasury PIES] effected through book-entry or by delivery to us of your
[Corporate PIES Certificate][Treasury PIES Certificate], we shall transfer the
Released Securities by book-entry transfer, or other appropriate procedures, in
accordance with your instructions. In the event you fail to effect such transfer
or delivery, the Released Securities and any [dividends] [interest] thereon,
shall be held in our name, or a nominee in trust for your benefit, until such
time as such [Corporate PIES][Treasury PIES] are transferred or your [Corporate
PIES Certificate][Treasury PIES Certificate] is surrendered or satisfactory
evidence is provided that your [Corporate PIES Certificate][Treasury PIES
Certificate] has been destroyed, lost or stolen, together with any
indemnification that we or the Company may require.
Date:_________________ By: THE FIRST NATIONAL BANK OF CHICAGO,
___________________________________
Name:
Title:
D-1
<PAGE>
EXHIBIT E
NOTICE TO SETTLE BY SEPARATE CASH
The First National Bank of Chicago
Attention:
Re: ________ PIES of Bank United Corp.
(the "Company")
The undersigned Holder hereby irrevocably notifies you in accordance with
Section 5.4 of the Purchase Contract Agreement, dated as of August 10, 1999
(the "Purchase Contract Agreement"; unless otherwise defined herein, terms
defined in the Purchase Contract Agreement are used herein as defined therein),
between the Company and yourselves, as Purchase Contract Agent and as
Attorney-in-Fact for the Holders of the Purchase Contracts, that such Holder has
elected to pay to the Securities Intermediary for deposit in the Collateral
Account, on or prior to 11:00 a.m. New York City time, on the [fifth Business
Day][Business Day] immediately preceding the Purchase Contract Settlement Date
(in lawful money of the United States by certified or cashiers' check or wire
transfer, in immediately available funds), $______ as the Purchase Price for
the shares of Common Stock issuable to such Holder by the Company under the
related Purchase Contract on the Purchase Contract Settlement Date. The
undersigned Holder hereby instructs you to notify promptly the Collateral Agent
of the undersigned Holder's election to make such cash settlement with respect
to the Purchase Contracts related to such Holder's [Corporate PIES] [Treasury
PIES].
Date: _______________________ ____________________________________
Signature
Signature Guarantee:____________________
Please print name and address of Registered Holder:
<PAGE>
EXHIBIT F
NOTICE FROM PURCHASE CONTRACT AGENT
TO COLLATERAL AGENT
(Payment of Purchase Contract Settlement Price)
The Bank of New York
Attention: Corporate Trust Administration
Telecopy: 212-815-5915
Re: __________ PIES of Bank United Corp.
(the "Company")
Please refer to the Purchase Contract Agreement dated as of August 10, 1999
(the "Purchase Contract Agreement"; unless otherwise defined herein, terms
defined in the Purchase Contract Agreement are used herein as defined therein),
between the Company and the undersigned, as Purchase Contract Agent and as
attorney-in-fact for the holders of PIES from time to time.
In accordance with Section 5.4 of the Purchase Contract Agreement and,
based on instructions and Cash Settlements received from Holders of Corporate
PIES as of 11:00 a.m, [DATE (fifth Business Day immediately preceding the
Purchase Contract Settlement Date)], we hereby notify you that [_____ shares of
Preferred Stock] are to be tendered for purchase in the Remarketing.
Date:__________________ By: THE FIRST NATIONAL BANK OF CHICAGO
________________________________________
Name:
Title:
Exhibit 4.6
BANK UNITED CORP.
and
THE BANK OF NEW YORK, as Collateral Agent
and
THE BANK OF NEW YORK, as Securities Intermediary
and
THE FIRST NATIONAL BANK OF CHICAGO, as Purchase Contract Agent
PLEDGE AGREEMENT
Dated as of August 10, 1999
<PAGE>
TABLE OF CONTENTS
Page
Page
____
Section 1. Definitions........................................................1
Section 2. Pledge.............................................................5
2.1 Pledge...............................................................5
2.2 Control; Financing Statement.........................................5
2.3 Termination..........................................................5
Section 3. Distributions on Pledged Collateral................................5
3.1 Income Distributions.................................................5
3.2 Principal Payments Following Termination Event.......................5
3.3 Principal Payments Prior To or On Purchase Contract
Settlement Date......................................................6
3.4 Payments to Purchase Contract Agent..................................6
3.5 Assets Not Properly Released.........................................6
Section 4. Control............................................................6
4.1 Establishment of Collateral Account..................................6
4.2 Treatment as Financial Assets........................................7
4.3 Sole Control by Collateral Agent.....................................7
4.4 Securities Intermediary's Location...................................7
4.5 No Other Claims......................................................7
4.6 Investment and Release...............................................7
4.7 Statements and Confirmations.........................................8
4.8 Tax Allocations......................................................8
4.9 No Other Agreements..................................................8
4.10 Powers Coupled With An Interest.....................................8
Section 5. Initial Deposit; Establishment of Treasury PIES and
Reestablishment of Corporate PIES..................................8
5.1 Initial Deposit of Shares of Preferred Stock.........................8
5.2 Establishment of Treasury PIES.......................................8
5.3 Reestablishment of Corporate PIES....................................9
5.4 Termination Event...................................................10
5.5 Cash Settlement.....................................................11
5.6 Early Settlement....................................................12
5.7 Application of Proceeds Settlement..................................12
Section 6. Voting Rights - Pledged Preferred Stock...........................13
i-
<PAGE>
Section 7. Rights and Remedies...............................................14
7.1 Rights and Remedies of the Collateral Agent.........................14
7.2 Substitutions.......................................................15
Section 8. Representations and Warranties; Covenants.........................15
8.1 Representations and Warranties......................................15
8.2 Covenants...........................................................16
Section 9. The Collateral Agent and the Securities Intermediary..............16
9.1 Appointment, Powers and Immunities..................................16
9.2 Instructions of the Company.........................................17
9.3 Reliance by Collateral Agent and Securities Intermediary............17
9.4 Rights in Other Capacities..........................................17
9.5 Non-Reliance on Collateral Agent and Securities Intermediary........18
9.6 Compensation and Indemnity..........................................18
9.7 Failure to Act......................................................18
9.8 Resignation of Collateral Agent and Securities Intermediary.........19
9.9 Right to Appoint Agent or Advisor...................................20
9.10 Survival...........................................................20
9.11 Exculpation........................................................20
Section 10. Amendment........................................................20
10.1 Amendment Without Consent of Holders...............................20
10.2 Amendment with Consent of Holders..................................21
10.3 Execution of Amendments............................................22
10.4 Effect of Amendments...............................................22
10.5 Reference to Amendments............................................22
Section 11. Miscellaneous....................................................22
11.1 No Waiver..........................................................22
11.2 Governing Law......................................................22
11.3 Notices............................................................23
11.4 Successors and Assigns.............................................23
11.5 Counterparts.......................................................23
11.6 Severability.......................................................23
11.7 Expenses, etc......................................................23
11.8 Security Interest Absolute.........................................24
ii-
<PAGE>
Page
EXHIBIT A Instruction from Purchase Contract Agent to Collateral Agent
(Establishment of Treasury PIES)
EXHIBIT B Instruction from Collateral Agent to Securities Intermediary
(Establishment of Treasury PIES)
EXHIBIT C Instruction from Purchase Contract Agent to Collateral Agent
(Reestablishment of Corporate PIES)
EXHIBIT D Instruction from Collateral Agent to Securities Intermediary
(Reestablishment of Corporate PIES)
EXHIBIT E Notice of Cash Settlement from the Securities Intermediary
to the Purchase Contract Agent.
iii-
<PAGE>
PLEDGE AGREEMENT
PLEDGE AGREEMENT dated as of August 10, 1999 among BANK UNITED CORP., a
Delaware corporation (the "Company"), THE BANK OF NEW YORK, not individually but
solely as collateral agent (in such capacity, together with its successors in
such capacity, the "Collateral Agent"), THE BANK OF NEW YORK, not individually
but solely in its capacity as a securities intermediary with respect to the
Collateral Account (in such capacity, together with its successors in such
capacity, the "Securities Intermediary"), and THE FIRST NATIONAL BANK OF
CHICAGO, not individually but solely as purchase contract agent and as
attorney-in-fact of the Holders from time to time of the Securities (in such
capacity, together with its successors in such capacity, the "Purchase Contract
Agent") under the Purchase Contract Agreement (as defined herein).
RECITALS
The Company and the Purchase Contract Agent are parties to the Purchase
Contract Agreement, dated as of the date hereof (as modified and supplemented
and in effect from time to time, the "Purchase Contract Agreement"), pursuant to
which there may be issued up to 2,300,000 PIES (the "Securities").
Each Corporate PIES, at issuance, consists of a unit comprised of (a)
one stock purchase contract (each, a "Purchase Contract") under which (i) the
Holder will purchase from the Company on August 16, 2002, for an amount equal to
$50 (the "Stated Amount"), a number of shares of Common Stock equal to the
Settlement Rate and (ii) the Company will pay the Holder Contract Adjustment
Payments, if any, and (b) a share of Series B Preferred Stock of the Company
(each a "Share of Preferred Stock"), having a liquidation preference equal to
the Stated Amount.
Pursuant to the terms of the Purchase Contract Agreement and the
Purchase Contracts, the Holders of the Securities have irrevocably authorized
the Purchase Contract Agent, as attorney-in-fact of such Holders, among other
things, to execute and deliver this Agreement on behalf of such Holders and to
grant the pledge provided herein of the Collateral Account to secure the
Obligations.
Accordingly, the Company, the Collateral Agent, the Securities
Intermediary and the Purchase Contract Agent, on its own behalf and as
attorney-in-fact of the Holders from time to time of the Securities, agree as
follows:
Section 1. Definitions. For all purposes of this Agreement, except as
otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
<PAGE>
2
(b) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Article, Section, Exhibit or other subdivision;
(c) the following terms which are defined in the Code shall have the
meanings set forth therein: "certificated security," "control," "financial
asset," "entitlement order," "securities account" and "security entitlement";
(d) the following terms have the meanings assigned to them in the
Purchase Contract Agreement: (1) Act, (2) Agent, (3) Board Resolution, (4) Cash
Settlement, (5) Certificate, (6) Common Stock, (7) Contract Adjustment Payments,
(8) Corporate PIES, (9) Early Settlement, (10) Early Settlement Amount, (11)
Early Settlement Date, (12) Holder, (13) Opinion of Counsel, (14) Outstanding
Securities, (15) PIES, (16) Purchase Contract, (17) Purchase Contract Settlement
Date, (18) Purchase Price, (19) Remarketing Agent, (20) Remarketing Agreement,
(21) Settlement Rate, (22) Shares, (23) Termination Event, (24) Treasury PIES
and (25) Underwriting Agreement; and
(e) the following terms have the meanings given to them in this section
1(e):
"Agreement" means this Pledge Agreement, as the same may be amended,
modified or supplemented from time to time.
"Bankruptcy Code" means title 11 of the United States Code, or any
other law of the United States that from time to time provides a uniform system
of bankruptcy laws.
"Business Day" means any day other than (i) a Saturday or Sunday or a
day on which banking institutions in Chicago, Illinois or The City of New York
are authorized or required by law or executive order to remain closed for
business.
"Cash" means any coin or currency of the United States as at the time
shall be legal tender for payment of public and private debts.
"Code" means the Uniform Commercial Code as in effect in the State of
New York from time to time.
"Collateral Account" means the collective reference to (1) Securities
Account No. 016335 entitled "The Bank of New York, as Collateral Agent,
Securities Account Bank United" maintained by the Securities Intermediary
for the Purchase Contract Agent on behalf of and as attorney-in-fact for the
Holders, (2) all investment property and other financial assets from time to
time credited to the Collateral Account, including, without limitation, (A)
Shares of Preferred Stock and security entitlements relating thereto which are a
component of the Corporate PIES from time to time, (B) any Treasury Securities
and security entitlements relating thereto delivered from time to time upon
establishment of Treasury PIES in accordance with Section 5.2 hereof and (C)
payments made by Holders pursuant to Section 5.5 hereof (collectively, the
"Collateral"), (3) all Proceeds of any of the foregoing (whether such Proceeds
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3
arise before or after the commencement of any proceeding under any applicable
bankruptcy, insolvency or other similar law, by or against the pledgor or with
respect to the pledgor) and (4) all powers and rights now owned or hereafter
acquired under or with respect to the Collateral Account.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor shall have become such, and
thereafter "Company" shall mean such successor.
"Failed Remarketing" has the meaning specified in Section 5.4(b) of
the Purchase Contract Agreement.
"Obligations" means, with respect to each Holder, the collective
reference to all obligations and liabilities of such Holder under such Holder's
Purchase Contract and this Agreement or any other document made, delivered or
given in connection herewith or therewith, in each case whether on account of
principal, interest (including, without limitation, interest accruing before and
after the filing of any petition in bankruptcy, or the commencement of any
insolvency, reorganization or like proceeding, relating to such Holder, whether
or not a claim for post-filing or post-petition interest is allowed in such
proceeding), fees, indemnities, costs, expenses or otherwise (including, without
limitation, all fees and disbursements of counsel to the Company or the
Collateral Agent or the Securities Intermediary that are required to be paid by
the Holder pursuant to the terms of any of the foregoing agreements).
"Permitted Investments" means any one of the following which shall
mature not later than the next succeeding Business Day: (i) any evidence of
indebtedness with an original maturity of 365 days or less issued, or directly
and fully guaranteed or insured, by the United States of America or any agency
or instrumentality thereof (provided that the full faith and credit of the
United States of America is pledged in support of the timely payment thereof or
such indebtedness constitutes a general obligation of it); (ii) deposits,
certificates of deposit or acceptances with an original maturity of 365 days or
less of any institution which is a member of the Federal Reserve System having
combined capital and surplus and undivided profits of not less than $50 million
at the time of deposit; (iii) investments with an original maturity of 365 days
or less of any Person that are fully and unconditionally guaranteed by a bank
referred to in clause (ii); (iv) repurchase agreements and reverse repurchase
agreements relating to marketable direct obligations issued or unconditionally
guaranteed by the United States Government or issued by any agency thereof and
backed as to timely payment by the full faith and credit of the United States
Government; (v) investments in commercial paper, other than commercial paper
issued by the Company or its affiliates, of any corporation incorporated under
the laws of the United States or any State thereof, which commercial paper has a
rating at the time of purchase at least equal to "A-1" by Standard & Poor's
Ratings Services ("S&P") or at least equal to "P-1" by Moody's Investors
Service, Inc. ("Moody's"); and (vi) investments in money market funds registered
under the Investment Company Act of 1940, as amended, rated in the highest
applicable rating category by S&P or Moody's.
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4
"Person" means any legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint-stock company, limited
liability company, trust, unincorporated organization or government or any
agency or political subdivision thereof.
"Pledge" means the lien and security interest created by this
Agreement.
"Pledged Preferred Stock" means the Shares of Preferred Stock and
security entitlements with respect thereto from time to time credited to the
Collateral Account and not then released from the Pledge.
"Pledged Treasury Securities" means Treasury Securities and security
entitlements with respect thereto from time to time credited to the Collateral
Account and not then released from the Pledge.
"Proceeds" has the meaning ascribed thereto in the Code and includes,
without limitation, all interest, dividends, cash, instruments, securities,
financial assets (as defined in Section 8-102(a)(9) of the Code) and other
property received, receivable or otherwise distributed upon the sale, exchange,
collection or disposition of any financial assets from time to time held in the
Collateral Account.
"Purchase Contract Agent" has the meaning specified in the paragraph
preceding the recitals of this Agreement.
"TRADES" means the Treasury/Reserve Automated Debt Entry System
maintained by the Federal Reserve Bank of New York pursuant to the TRADES
Regulations.
"TRADES Regulations" means the regulations of the United States
Department of the Treasury, published at 31 C.F.R. Part 357, as amended from
time to time. Unless otherwise defined herein, all terms defined in the TRADES
Regulations are used herein as therein defined.
"Transfer" means:
(a) in the case of certificated securities in registered form,
delivery as provided in Section 8-301(a) of the Code, indorsed to the transferee
or in blank by an effective indorsement;
(b) in the case of Treasury Securities, registration of the transferee
as the owner of such Treasury Securities on TRADES; and
(c) in the case of security entitlements, including, without
limitation, security entitlements with respect to Treasury Securities, a
securities intermediary indicating by book entry that such security entitlement
has been credited to the transferee's securities account.
"Treasury Security" means a zero-coupon U.S. Treasury Security (Cusip
Number 91280BE6) which are the principal strips of the 6-3/8% U.S. Treasury
Securities which mature on August 15, 2002.
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5
"Value" with respect to any item of Collateral on any date means, as to
(i) Cash, the face amount thereof, (ii) Treasury Securities, the aggregate
principal amount thereof at maturity and (iii) Shares of Preferred Stock, the
liquidation preference thereof.
Section 2. Pledge.
Section 2.1 Pledge. Each Holder, acting through the Purchase Contract
Agent as such Holder's attorney-in-fact, hereby pledges and grants to the
Collateral Agent, as agent of and for the benefit of the Company, a continuing
first priority security interest in and to, and a lien upon and right of set off
against, all of such Holder's right, title and interest in and to the Collateral
Account to secure the prompt and complete payment and performance when due
(whether at stated maturity, by acceleration or otherwise) of the Obligations.
The Collateral Agent shall have all of the rights, remedies and recourses with
respect to the Collateral afforded a secured party by the Code, in addition to,
and not in limitation of, the other rights, remedies and recourses afforded to
the Collateral Agent by this Agreement.
Section 2.2 Control; Financing Statement.
(a) The Collateral Agent shall have control of the Collateral Account
pursuant to the provisions of Section 4 of this Agreement.
(b) On the date of initial issuance of the Securities, the Purchase
Contract Agent shall deliver to the Collateral Agent a financing statement
prepared by the Company for filing in the Office of the Secretary of State of
the State of New York, signed by the Purchase Contract Agent, as
attorney-in-fact for the Holders, as debtors, and describing the Collateral.
Section 2.3 Termination. This Agreement and the Pledge created hereby
shall terminate, with respect to a Holder, upon the satisfaction of such
Holder's Obligations. Upon termination, the Securities Intermediary shall
Transfer the Collateral to the Purchase Contract Agent for distribution to the
Holders in accordance with their respective interests, free and clear of any
lien, pledge or security interest created hereby.
Section 3. Distributions on Pledged Collateral.
Section 3.1 Income Distributions. All income distributions, including
dividends, received by the Securities Intermediary on account of the Shares or
Permitted Investments from time to time held in the Collateral Account shall be
distributed to the Purchase Contract Agent for the benefit of the applicable
Holders as provided in the Purchase Contracts.
Section 3.2 Principal Payments Following Termination Event. All
payments received by the Securities Intermediary following a Termination Event
of (1) the principal amount of Pledged Preferred Stock or securities
entitlements thereto or (2) the principal amount of the Pledged Treasury
Securities or securities entitlements thereto shall be distributed to the
Purchase Contract Agent for the benefit of the Holders for distribution to such
Holders in accordance with their respective interests.
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6
Section 3.3 Principal Payments Prior To or On Purchase Contract
Settlement Date. (a) Subject to the provisions of Section 7.2, and except as
provided in clause 3.3(b) below, if no Termination Event shall have occurred,
all payments received by the Securities Intermediary of (1) the liquidation
preference with respect to the Pledged Preferred Stock or security entitlements
thereto or (2) the principal amount of Pledged Treasury Securities or security
entitlements thereto shall be held and invested in Permitted Investments until
the Purchase Contract Settlement Date and on the Purchase Contract Settlement
Date distributed to the Company as provided in Section 5.7 hereof. Any balance
remaining in the Collateral Account shall be distributed to the Purchase
Contract Agent for the benefit of the applicable Holders for distribution to
such Holders in accordance with their respective interests.
(b) All payments received by the Securities Intermediary of (1) the
liquidation preference of Shares of Preferred Stock or security entitlements
thereto or (2) the principal amount of Treasury Securities or security
entitlements thereto that in each case have been released from the Pledge shall
be distributed to the Purchase Contract Agent for the benefit of the Holders to
be distributed to such Holders in accordance with their respective interests.
Section 3.4 Payments to Purchase Contract Agent. Payments to the
Purchase Contract Agent hereunder shall be made for receipt to the account
designated by the Purchase Contract Agent for such purpose not later than 12:00
p.m., New York City time, on the Business Day such payment is received by the
Securities Intermediary; provided, however, that if such payment is received on
a day that is not a Business Day or after 11.30 a.m., New York City time, on a
Business Day, then such payment shall be made no later than 12:00 p.m., New York
City time, on the next succeeding Business Day. The Purchase Contract Agent will
not be obligated to make any distributions to the Holders hereunder until the
Purchase Contract Agent has received full payment of the applicable funds for
such distribution.
Section 3.5 Assets Not Properly Released. If the Purchase Contract
Agent or any Holder shall receive any payments of the liquidation amount or
principal payments on account of financial assets credited to the Collateral
Account and not released therefrom in accordance with this Agreement, the
Purchase Contract Agent or such Holder shall hold the same as trustee of an
express trust for the benefit of the Company and, upon receipt of an Officers'
Certificate (as defined in the Purchase Contract Agreement) of the Company so
directing, promptly deliver the same to the Securities Intermediary for credit
to the Collateral Account or to the Company for application to the obligations
of the Holders under the related Purchase Contracts, and the Purchase Contract
Agent and Holders shall acquire no right, title or interest in any such payments
of liquidation or principal amounts so received.
Section 4. Control.
Section 4.1 Establishment of Collateral Account. The Securities
Intermediary hereby confirms that (a) the Securities Intermediary has
established the Collateral Account, (b) the Collateral Account is a securities
account, (c) subject to the terms of this Agreement, the Securities Intermediary
shall treat the Purchase Contract Agent as entitled to exercise the rights that
comprise any financial asset credited to the Collateral Account, (d) all
property delivered to
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7
the Securities Intermediary pursuant to this Agreement or the Purchase Contract
Agreement will be credited promptly to the Collateral Account and (e) all
securities or other property underlying any financial assets credited to the
Collateral Account shall be registered in the name of the Securities
Intermediary, indorsed to the Securities Intermediary, or in blank or credited
to another securities account maintained in the name of the Securities
Intermediary, and in no case will any financial asset credited to the Collateral
Account be registered in the name of the Purchase Contract Agent or any Holder,
payable to the order of the Purchase Contract Agent or any Holder or specially
indorsed to the Purchase Contract Agent or any Holder.
Section 4.2 Treatment as Financial Assets. Each item of property
(whether investment property, financial asset, security, instrument or cash)
credited to the Collateral Account shall be treated as a financial asset.
Section 4.3 Sole Control by Collateral Agent. Except as provided in
Section 6, at all times prior to the termination of the Pledge, the Collateral
Agent shall have sole control of the Collateral Account, and the Securities
Intermediary shall take instructions and directions with respect to the
Collateral Account solely from the Collateral Agent. If at any time the
Securities Intermediary shall receive an entitlement order issued by the
Collateral Agent and relating to the Collateral Account, the Securities
Intermediary shall comply with such entitlement order without further consent by
the Purchase Contract Agent or any Holder or any other Person. Until termination
of the Pledge, the Securities Intermediary will not comply with any entitlement
orders issued by the Purchase Contract Agent or any Holder.
Section 4.4 Securities Intermediary's Location. The Collateral Account
and the rights and obligations of the Securities Intermediary, the Collateral
Agent, the Purchase Contract Agent and the Holders with respect thereto shall be
governed by the laws of the State of New York. Regardless of any provision in
any other agreement, for purposes of the Code, New York shall be deemed to be
the Securities Intermediary's location, and the Collateral Account (as well as
the securities entitlements related thereto) shall be governed by the laws of
the State of New York.
Section 4.5 No Other Claims. Except for the claims and interest of the
Collateral Agent and of the Purchase Contract Agent and the Holders in the
Collateral Account, the Securities Intermediary does not know of any claim to,
or interest in, the Collateral Account or in any financial asset credited
thereto. If any person asserts any lien, encumbrance or adverse claim (including
any writ, garnishment, judgment, warrant of attachment, execution or similar
process) against the Collateral Account or in any financial asset carried
therein, the Securities Intermediary will promptly notify the Collateral Agent
and the Purchase Contract Agent.
Section 4.6 Investment and Release. All proceeds of financial assets
from time to time deposited in the Collateral Account shall be invested and
reinvested as provided in this Agreement. At all times prior to termination of
the Pledge, no property shall be released from the Collateral Account except in
accordance with this Agreement or upon written instructions of the Collateral
Agent.
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8
Section 4.7 Statements and Confirmations. The Securities Intermediary
will promptly send copies of all statements, confirmations and other
correspondence concerning the Collateral Account and any financial assets
credited thereto simultaneously to each of the Purchase Contract Agent and the
Collateral Agent at their addresses for notices under this Agreement.
Section 4.8 Tax Allocations. All items of income, gain, expense and
loss recognized in the Collateral Account shall be reported by the Company to
the Internal Revenue Service and all state and local taxing authorities under
the names and taxpayer identification numbers of the Holders that are the
beneficial owners thereof.
Section 4.9 No Other Agreements. The Securities Intermediary has not
entered into and prior to the termination of the Pledge will not enter into any
agreement with any other Person relating to the Collateral Account or any
financial assets credited thereto, including, without limitation, any agreement
to comply with entitlement orders of any Person other than the Collateral Agent.
Section 4.10 Powers Coupled With An Interest. The rights and powers
granted in this Section 4 to the Collateral Agent have been granted in order to
perfect its security interests in the Collateral Account, are powers coupled
with an interest and will be affected neither by the bankruptcy of the Purchase
Contract Agent or any Holder nor by the lapse of time. The obligations of the
Securities Intermediary under this Section 4 shall continue in effect until the
termination of the Pledge.
Section 5. Initial Deposit; Establishment of Treasury PIES and
Reestablishment of Corporate PIES.
Section 5.1 Initial Deposit of Shares of Preferred Stock. Prior to or
concurrently with the execution and delivery of this Agreement, the Purchase
Contract Agent, on behalf of the initial Holders of the Corporate PIES, shall
Transfer to the Securities Intermediary, for credit to the Collateral Account,
the Shares of Preferred Stock or security entitlements relating to such Shares
of Preferred Stock, and the Securities Intermediary shall indicate by book entry
that a securities entitlement to such Shares of Preferred Stock has been
credited to the Collateral Account.
Section 5.2 Establishment of Treasury PIES. (a0 At any time on or prior
to the seventh Business Day immediately preceding the Purchase Contract
Settlement Date, a Holder of Corporate PIES shall have the right to establish or
reestablish Treasury PIES by substitution of Treasury Securities or security
entitlements thereto for the Pledged Preferred Stock comprising a part of such
Holder's Corporate PIES in integral multiples of 20 Corporate PIES by:
(1) Transferring to the Securities Intermediary for credit to
the Collateral Account Treasury Securities or security entitlements
thereto having a Value equal to the liquidation preference of the
Pledged Preferred Stock to be released, accompanied by a notice,
substantially in the form of Exhibit C to the Purchase Contract
Agreement, whereupon the Purchase Contract Agent shall deliver to the
Collateral Agent a notice, substantially in the form of Exhibit A
hereto, (A) stating that such Holder has Transferred
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9
Treasury Securities or security entitlements thereto to the Securities
Intermediary for credit to the Collateral Account, (B) stating the
Value of the Treasury Securities or security entitlements thereto
Transferred by such Holder and (C) requesting that the Collateral
Agent release from the Pledge the Pledged Preferred Stock that are a
component of such Corporate PIES; and
(2) delivering the related Corporate PIES to the Purchase Contract
Agent.
Upon receipt of such notice and confirmation that Treasury Securities or
security entitlements thereto have been credited to the Collateral Account as
described in such notice, the Collateral Agent shall instruct the Securities
Intermediary by a notice, substantially in the form of Exhibit B hereto, to
release such Pledged Preferred Stock from the Pledge by Transfer to the Purchase
Contract Agent for distribution to such Holder, free and clear of any lien,
pledge or security interest created hereby.
(b) Upon credit to the Collateral Account of Treasury Securities or
security entitlements thereto delivered by a Holder of Corporate PIES and
receipt of the related instruction from the Collateral Agent, the Securities
Intermediary shall release the Pledged Preferred Stock and shall promptly
transfer the same to the Purchase Contract Agent for distribution to such
Holder, free and clear of any lien, pledge or security interest created hereby.
Section 5.3 Reestablishment of Corporate PIES. (a) At any time on or
prior to the seventh Business Day immediately preceding the Purchase Contract
Settlement Date, a Holder of Treasury PIES shall have the right to reestablish
Corporate PIES by substitution of Shares of Preferred Stock or security
entitlements thereto for Pledged Treasury Securities in integral multiples of 20
Treasury PIES by:
(1) Transferring to the Securities Intermediary for credit to
the Collateral Account Shares of Preferred Stock or security
entitlements thereto having a liquidation preference equal to the Value
of the Pledged Treasury Securities to be released, accompanied by a
notice, substantially in the form of Exhibit C to the Purchase Contract
Agreement, whereupon the Purchase Contract Agent shall deliver to the
Collateral Agent a notice, substantially in the form of Exhibit C
hereto, stating that such Holder has Transferred Shares of Preferred
Stock or security entitlements thereto to the Securities Intermediary
for credit to the Collateral Account and requesting that the Collateral
Agent release from the Pledge the Pledged Treasury Securities related
to such Treasury PIES; and
(2) delivering the related Treasury PIES to the Purchase
Contract Agent.
Upon receipt of such notice and confirmation that Shares of Preferred Stock or
security entitlements thereto have been credited to the Collateral Account as
described in such notice, the Collateral Agent shall instruct the Securities
Intermediary by a notice in the form provided in Exhibit D to release such
Pledged Treasury Securities from the Pledge by Transfer to the Purchase Contract
Agent for distribution to such Holder.
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10
(b) Upon credit to the Collateral Account of Shares of Preferred Stock
or security entitlements thereto and receipt of the related instruction from the
Collateral Agent, the Securities Intermediary shall release the applicable
Pledged Treasury Securities and shall promptly Transfer the same to the Purchase
Contract Agent for distribution to such Holder, free and clear of any lien,
pledge or security interest created hereby.
Section 5.4 Termination Event. (a) Upon receipt by the Collateral Agent
of written notice from the Company or the Purchase Contract Agent that a
Termination Event has occurred, the Collateral Agent shall release all
Collateral from the Pledge and shall promptly Transfer:
(1) any Pledged Preferred Stock; and
(2) any Pledged Treasury Securities
to the Purchase Contract Agent for the benefit of the Holders, for distribution
to such Holders in accordance with their respective interests, free and clear of
any lien, pledge or security interest or other interest created hereby.
(b) If such Termination Event shall result from the Company's becoming
a debtor under the Bankruptcy Code, and if the Collateral Agent shall for any
reason fail promptly to effectuate the release and Transfer of all Pledged
Preferred Stock or the Pledged Treasury Securities, as the case may be, as
provided by this Section 5.4, the Purchase Contract Agent shall:
(1) use its best efforts to obtain an opinion of a nationally
recognized law firm reasonably acceptable to the Collateral Agent to
the effect that, as a result of the Company's being the debtor in such
a bankruptcy case, the Collateral Agent will not be prohibited from
releasing or Transferring the Collateral as provided in this Section
5.4, and shall deliver such opinion to the Collateral Agent within ten
days after the occurrence of such Termination Event, and if (A) the
Purchase Contract Agent shall be unable to obtain such opinion within
ten days after the occurrence of such Termination Event or (B) the
Collateral Agent shall continue, after delivery of such opinion, to
refuse to effectuate the release and Transfer of all Pledged Preferred
Stock, all the Pledged Treasury Securities or the Proceeds of any of
the foregoing, as the case may be, as provided in this Section 5.4,
then the Purchase Contract Agent shall within fifteen days after the
occurrence of such Termination Event commence an action or proceeding
in the court having jurisdiction of the Company's case under the
Bankruptcy Code seeking an order requiring the Collateral Agent to
effectuate the release and transfer of all Pledged Preferred Stock or
all the Pledged Treasury Securities, as the case may be, as provided by
this Section 5.4; or
(2) commence an action or proceeding like that described in
clause 5.4(b)(1)(B) hereof within ten days after the occurrence of such
Termination Event.
Section 5.5 Cash Settlement. (a) Upon receipt by the Collateral Agent
of (1) a notice from the Purchase Contract Agent promptly after the receipt by
the Purchase Contract Agent of a
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11
notice that a Holder of a Corporate PIES or Treasury PIES has elected, in
accordance with the procedures specified in Section 5.4(a)(i) or (d)(i)
of the Purchase Contract Agreement, respectively, to settle its
Purchase Contract with cash and (2) payment by such Holder by deposit
in the Collateral Account on or prior to 11:00 a.m., New York City time, on the
fifth Business Day immediately preceding the Purchase Contract Settlement Date,
in the case of Corporate PIES, and the Business Day immediately preceding the
Purchase Contract Settlement Date, in the case of the Treasury PIES, of the
Purchase Price in lawful money of the United States by certified or cashier's
check or wire transfer of immediately available funds payable to or upon the
order of the Securities Intermediary, then the Collateral Agent shall (i)
instruct the Securities Intermediary promptly to invest any such Cash in
Permitted Investments and (ii) release from the Pledge (1) Pledged Preferred
Stock in the case of a Holder of Corporate PIES, or (2) Pledged Treasury
Securities in the case of a Holder of Treasury PIES with a liquidation or
principal amount equal to the product of (x) the Stated Amount times (y) the
number of such Purchase Contracts as to which such Holders have elected to
effect a cash settlement pursuant to this Section 5.5(a) and shall instruct the
Securities Intermediary to Transfer all such Pledged Preferred Stock or Pledged
Treasury Securities, as the case may be, to the Purchase Contract Agent for the
benefit of such Holders, in each case free and clear of the Pledge created
hereby, for distribution to such Holders in accordance with their respective
interests. Upon receipt of the proceeds upon the maturity of the Permitted
Investments on the Purchase Contract Settlement Date, the Collateral Agent shall
(A instruct the Securities Intermediary to pay the portion of such proceeds and
deliver any certified or cashier's checks received, in an aggregate amount equal
to the Purchase Price, to the Company on the Purchase Contract Settlement Date,
and (B) instruct the Securities Intermediary to release any amounts in respect
of the interest earned from such Permitted Investments to the Purchase Contract
Agent for distribution to the relevant Holders in accordance with their
respective interests.
(b) If a Holder of a Corporate PIES notifies the Purchase Contract
Agent as provided in paragraph 5.4(a)(i) of the Purchase Contract Agreement of
its intention to pay the Purchase Price in cash, but fails to make such payment
as required by paragraph 5.4(a)(ii) of the Purchase Contract Agreement, such
Holder shall be deemed to have consented to the disposition of the Pledged
Preferred Stock of such Holder in accordance with paragraph 5.4(a)(iii) of the
Purchase Contract Agreement.
(c) If a Holder of a Treasury PIES notifies the Purchase Contract Agent
as provided in paragraph 5.4(d)(i) of the Purchase Contract Agreement of its
intention to pay the Purchase Price in cash, but fails to make such payment as
required by paragraph 5.4(d)(ii) of the Purchase Contract Agreement, such Holder
shall be deemed to have elected to pay the Purchase Price in accordance with
paragraph 5.4(d)(iii) of the Purchase Contract Agreement.
(d) Prior to 3:00 p.m., New York City time, on the fourth Business Day
immediately preceding the Purchase Contract Settlement Date, the Securities
Intermediary shall deliver to the Purchase Contract Agent a notice,
substantially in the form of Exhibit E hereto, stating (i) the amount of cash
that it has received with respect to the Cash Settlement of Corporate PIES and
(ii) the amount of cash that it has received with respect to the Cash Settlement
of Treasury PIES.
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12
Section 5.6 Early Settlement. Upon written notice to the Collateral
Agent by the Purchase Contract Agent that one or more Holders of Securities have
elected to effect Early Settlement of their respective obligations under the
Purchase Contracts forming a part of such Securities in accordance with the
terms of the Purchase Contracts and the Purchase Contract Agreement (setting
forth the number of such Purchase Contracts as to which such Holders have
elected to effect Early Settlement), and that the Purchase Contract Agent has
received from such Holders, and paid to the Company as confirmed in writing by
the Company, the related Early Settlement Amounts pursuant to the terms of the
Purchase Contracts and the Purchase Contract Agreement and that all conditions
to such Early Settlement have been satisfied, then the Collateral Agent shall
release from the Pledge, upon three Business Days' written notice to the
Collateral Agent , (a) Pledged Preferred Stock, in the case of a Holder of
Corporate PIES, or (b0 Pledged Treasury Securities, in the case of a Holder of
Treasury PIES, with a Value equal to the product of (i) the Stated Amount times
(ii) the number of Purchase Contracts as to which such Holders have elected to
effect Early Settlement and shall instruct the Securities Intermediary to
Transfer all such Pledged Preferred Stock or Pledged Treasury Securities, as the
case may be, to the Purchase Contract Agent for the benefit of such Holders, in
each case free and clear of the Pledge created hereby, for distribution to such
Holders in accordance with their respective interests.
Section 5.7 Application of Proceeds Settlement. (a) If a Holder of
Corporate PIES has not elected to make an effective Cash Settlement by notifying
the Purchase Contract Agent in the manner provided for in Section 5.4(a)(i) in
the Purchase Contract Agreement, or has given such notice but failed to deliver
the required cash prior to 11:00 a.m., New York City time, on the fifth Business
Day immediately preceding the Purchase Contract Settlement Date, such Holder
shall be deemed to have elected to pay for the shares of Common Stock to be
issued under such Purchase Contract(s) from the Proceeds of the related Pledged
Preferred Stock. In such event, the Collateral Agent shall instruct the
Securities Intermediary to Transfer the related Pledged Preferred Stock to the
Remarketing Agent for remarketing. Upon receiving such Pledged Preferred Stock,
the Remarketing Agent, pursuant to the terms of the Remarketing Agreement, will
use its reasonable efforts to remarket such Pledged Preferred Stock on such date
at a price of 100.50% of the aggregate liquidation preference of such Pledged
Preferred Stock. The Remarketing Agent will deposit in the Collateral Account
the portion of the Proceeds of such remarketing equal to 100% the aggregate
liquidation preference of the remarketed Pledged Preferred Stock and, pursuant
to the Remarketing Agreement, shall retain the portion of the Proceeds equal to
0.50% of the aggregate liquidation preference of the remarketed Pledged
Preferred Stock. On the Purchase Contract Settlement Date, upon three Business
Days' written notice to the Collateral Agent the Collateral Agent shall instruct
the Securities Intermediary to apply a portion of the Proceeds from such
remarketing equal to the aggregate liquidation preference of such Pledged
Preferred Stock to satisfy in full the obligations of such Holders of Corporate
PIES to pay the Purchase Price to purchase the Common Stock under the related
Purchase Contracts. The balance of the Proceeds from such remarketing on deposit
in the Collateral Account shall be transferred to the Purchase Contract Agent
for distribution to the Holders in accordance with their respective interests.
If the Remarketing Agent advises the Collateral Agent in writing that there has
been a Failed Remarketing, thus resulting in an event of default under the
Purchase Contract Agreement and hereunder, the Collateral Agent, for the
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13
benefit of the Company shall, at the written direction of the Company, dispose
of the Pledged Preferred Stock in accordance with applicable law and satisfy
in full, from such disposition, such Holders' obligations to pay the Purchase
Price for the Common Stock.
(b) If a Holder of Treasury PIES has not elected to make an effective
cash settlement by notifying the Purchase Contract Agent in the manner provided
for in Section 5.4(d)(i) of the Purchase Contract Agreement, or has given such
notice but failed to make such payment in the manner required by Section
5.4(d)(ii) of the Purchase Contract Agreement, such Holder shall be deemed to
have elected to pay for the shares of Common Stock to be issued under such
Purchase Contract(s) from the Proceeds of the related Pledged Treasury
Securities. Upon maturity of the Pledged Treasury Securities, the Securities
Intermediary, at the written direction of the Collateral Agent, shall invest the
Cash Proceeds of the maturing Pledged Treasury Securities in Permitted
Investments. Without receiving any instruction from any such Holder of Treasury
PIES, the Collateral Agent shall apply the Proceeds of the related Pledged
Treasury Securities to the settlement of such Purchase Contracts on the Purchase
Contract Settlement Date. In the event the sum of the Proceeds from the related
Pledged Treasury Securities and the investment earnings from the investment in
Permitted Investments is in excess of the aggregate Purchase Price of the
Purchase Contracts being settled thereby, the Collateral Agent shall instruct
the Securities Intermediary to distribute such excess, when received, to the
Purchase Contract Agent for the benefit of such Holders for distribution to such
Holders in accordance with their respective interests.
Section 6. Voting Rights-Pledged Preferred Stock. The Purchase
Contract Agent will only exercise any voting rights upon written direction and
indemnity of holders, or may refrain from exercising, any and all voting and
other consensual rights pertaining to the Pledged Preferred Stock or any part
thereof for any purpose not inconsistent with the terms of this Agreement and in
accordance with the terms of the Purchase Contract Agreement; provided, that the
Purchase Contract Agent shall not exercise or, as the case may be, shall not
refrain from exercising such right if, in the judgment of the Purchase Contract
Agent, such action would impair or otherwise have a material adverse effect on
the value of all or any of the Pledged Preferred Stock; and provided, further,
that the Purchase Contract Agent shall give the Company and the Collateral Agent
at least five days' prior written notice of the manner in which it intends to
exercise any such right. Upon receipt of any notices and other communications in
respect of any Pledged Preferred Stock, including notice of any meeting at which
holders of the Shares of Preferred Stock are entitled to vote or solicitation of
consents, waivers or proxies of holders of the Shares of Preferred Stock, the
Collateral Agent shall use reasonable efforts to send promptly to the Purchase
Contract Agent such notice or communication, and as soon as reasonably
practicable after receipt of a written request therefor from the Purchase
Contract Agent, execute and deliver to the Purchase Contract Agent such proxies
and other instruments in respect of such Pledged Preferred Stock (in form and
substance satisfactory to the Collateral Agent) as are prepared by the Purchase
Contract Agent with respect to the Pledged Preferred Stock.
Section 7. Rights and Remedies.
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14
Section 7.1 Rights and Remedies of the Collateral Agent. (a) In
addition to the rights and remedies specified in Section 5.5 hereof or otherwise
available at law or in equity, after an event of default (as specified in
Section 7.1(b) below) hereunder the Collateral Agent shall have all of the
rights and remedies with respect to the Collateral of a secured party under the
Code (whether or not the Code is in effect in the jurisdiction where the rights
and remedies are asserted) and the TRADES Regulations and such additional rights
and remedies to which a secured party is entitled under the laws in effect in
any jurisdiction where any rights and remedies hereunder may be asserted.
Without limiting the generality of the foregoing, such remedies may include, to
the extent permitted by applicable law, (i) retention of the Pledged Preferred
Stock in full satisfaction of the Holders' obligations under the Purchase
Contracts or (ii) sale of the Pledged Preferred Stock in one or more public or
private sales.
(b) Without limiting any rights or powers otherwise granted by this
Agreement to the Collateral Agent, in the event the Collateral Agent is unable
to make payments to the Company on account of principal payments of any Pledged
Treasury Securities as provided in Section 3 hereof, in satisfaction of the
Obligations of the Holder of the Securities of which such Pledged Treasury
Securities is a part under the related Purchase Contracts, the inability to make
such payments shall constitute an event of default hereunder and the Collateral
Agent shall have and may exercise, with reference to such Pledged Treasury
Securities and such Obligations of such Holder, any and all of the rights and
remedies available to a secured party under the Code and the TRADES Regulations
after default by a debtor, and as otherwise granted herein or under any other
law.
(c) Without limiting any rights or powers otherwise granted by this
Agreement to the Collateral Agent, the Collateral Agent is hereby irrevocably
authorized to receive and collect all payments of (i) dividends on the Pledged
Preferred Stock and (ii) the principal amount of the Pledged Treasury
Securities, subject, in each case, to the provisions of Section 3 hereof, and as
otherwise granted herein.
(d) The Purchase Contract Agent and each Holder of Securities, in the
event such Holder becomes the Holder of a Treasury PIES, agrees that, from time
to time, upon the written request of the Collateral Agent, the Purchase Contract
Agent or such Holder shall execute and deliver such further documents and do
such other acts and things as the Collateral Agent, upon notice by the Company,
may reasonably request in order to maintain the Pledge, and the perfection and
priority thereof, and to confirm the rights of the Collateral Agent hereunder.
The Purchase Contract Agent shall have no liability to any Holder for executing
any documents or taking any such acts requested by the Collateral Agent
hereunder, except for liability for its own negligent acts, its own negligent
failure to act or its own willful misconduct.
Section 7.2 Substitutions. Whenever a Holder has the right to
substitute Treasury Securities, Shares of Preferred Stock or security
entitlements to either of them for financial assets held in the Collateral
Account, such substitution shall not constitute a novation of the security
interest created hereby.
Section 8. Representations and Warranties; Covenants.
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15
Section 8.1 Representations and Warranties. Each Holder from time to
time, acting through the Purchase Contract Agent as attorney-in-fact (it being
understood that the Purchase Contract Agent shall not be liable for any
representation or warranty made by or on behalf of a Holder), hereby represents
and warrants to the Collateral Agent (with respect to his interest in the
Collateral), which representations and warranties shall be deemed repeated on
each day a Holder Transfers Collateral that:
(a) such Holder has the power to grant a security
interest in and lien on the Collateral;
(b) such Holder is the sole beneficial owner of the
Collateral and, in the case of Collateral delivered
in physical form, is the sole holder of such
Collateral and is the sole beneficial owner of, or
has the right to Transfer, the Collateral it
Transfers to the Securities Intermediary for credit
to the Collateral Account, free and clear of any
security interest, lien, encumbrance, call, liability
to pay money or other restriction other than the
security interest and lien granted under Section 2
hereof;
(c) upon the Transfer of the Collateral to the Securities
Intermediary for credit to the Collateral Account,
the Collateral Agent, for the benefit of the Company,
will have a valid and perfected first priority
security interest therein (assuming that any central
clearing operation or any securities intermediary or
other entity not within the control of the Holder
involved in the Transfer of the Collateral, including
the Collateral Agent and the Securities Intermediary,
gives the notices and takes the action required of it
hereunder and under applicable law for perfection of
that interest and assuming the establishment and
exercise of control pursuant to Section 4 hereof);
and
(d) the execution and performance by the Holder of its
obligations under this Agreement will not result in
the creation of any security interest, lien or other
encumbrance on the Collateral other than the security
interest and lien granted under Section 2 hereof or
violate any provision of any existing law or
regulation applicable to it or of any mortgage,
charge, pledge, indenture, contract or undertaking to
which it is a party or which is binding on it or any
of its assets.
Section 8.2 Covenants. The Purchase Contract Agent and the Holders from
time to time, acting through the Purchase Contract Agent as their
attorney-in-fact (it being understood that the Purchase Contract Agent shall not
be liable for any covenant made by or on behalf of a Holder), hereby covenant to
the Collateral Agent that for so long as the Collateral remains subject to the
Pledge:
(a) neither the Purchase Contract Agent nor such Holders
will create or purport to create or allow to subsist
any mortgage, charge, lien, pledge or
<PAGE>
16
any other security interest whatsoever over the
Collateral or any part of it other than pursuant
to this Agreement; and
(b) neither the Purchase Contract Agent nor such Holders
will sell or otherwise dispose (or attempt to
dispose) of the Collateral or any part of it except
for the beneficial interest therein, subject to the
Pledge hereunder, transferred in connection with the
Transfer of the Securities.
Section 9. The Collateral Agent and the Securities Intermediary. It is
hereby agreed as follows:
Section 9.1 Appointment, Powers and Immunities. The Collateral Agent
shall act as agent for the Company hereunder with such powers as are
specifically vested in the Collateral Agent by the terms of this Agreement,
together with such other powers as are reasonably incidental thereto. The
Collateral Agent: (a) shall have no duties or responsibilities except those
expressly set forth in this Agreement and no implied covenants or obligations
shall be inferred from this Agreement against the Collateral Agent, nor shall
the Collateral Agent be bound by the provisions of any agreement by any party
hereto beyond the specific terms hereof; (b) shall not be responsible for any
recitals contained in this Agreement, or in any certificate or other document
referred to or provided for in, or received by it under, this Agreement, the
Securities or the Purchase Contract Agreement, or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement
(other than as against the Collateral Agent), the Securities or the Purchase
Contract Agreement or any other document referred to or provided for herein or
therein or for any failure by the Company or any other Person (except the
Collateral Agent) to perform any of its obligations hereunder or thereunder or
for the perfection, priority or, except as expressly required hereby,
maintenance of any security interest created hereunder; (c) shall not be
required to initiate or conduct any litigation or collection proceedings
hereunder (except pursuant to directions furnished under Section 9.2 hereof,
subject to Section 9.6 hereof); (d) shall not be responsible for any action
taken or omitted to be taken by it hereunder or under any other document or
instrument referred to or provided for herein or in connection herewith or
therewith, except for its own negligence or willful misconduct; and (e) shall
not be required to advise any party as to selling or retaining, or taking or
refraining from taking any action with respect to, any securities or other
property deposited hereunder. Subject to the foregoing, during the term of this
Agreement, the Collateral Agent shall take all reasonable action in connection
with the safekeeping and preservation of the Collateral hereunder.
No provision of this Agreement shall require the Collateral Agent to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder. In no event shall the Collateral
Agent be liable for any amount in excess of the Value of the Collateral.
Notwithstanding the foregoing, each of the Collateral Agent and the Securities
Intermediary in its individual capacity hereby waives any right of setoff,
bankers lien, liens or perfection rights as securities intermediary or any
counterclaim with respect to any of the Collateral.
<PAGE>
17
Section 9.2 Instructions of the Company. The Company shall have the
right, by one or more instruments in writing executed and delivered to the
Collateral Agent, to direct the time, method and place of conducting any
proceeding for the realization of any right or remedy available to the
Collateral Agent, or of exercising any power conferred on the Collateral Agent,
or to direct the taking or refraining from taking of any action authorized by
this Agreement; provided, however, that (i) such direction shall not conflict
with the provisions of any law or of this Agreement and (ii) the Collateral
Agent shall be adequately indemnified as provided herein. Nothing in this
Section 9.2 shall impair the right of the Collateral Agent in its discretion to
take any action or omit to take any action which it deems proper and which is
not inconsistent with such direction.
Section 9.3 Reliance by Collateral Agent and Securities Intermediary.
Each of the Securities Intermediary and the Collateral Agent shall be entitled
to rely upon any certification, order, judgment, opinion, notice or other
communication (including, without limitation, any thereof by telephone or
facsimile) believed by it to be genuine and correct and to have been signed or
sent by or on behalf of the proper Person or Persons (without being required to
determine the correctness of any fact stated therein) and upon advice and
statements of legal counsel and other experts selected by the Collateral Agent
and the Securities Intermediary. As to any matters not expressly provided for by
this Agreement, the Collateral Agent and the Securities Intermediary shall in
all cases be fully protected in acting, or in refraining from acting, hereunder
in accordance with instructions given by the Company in accordance with this
Agreement.
Section 9.4 Rights in Other Capacities. The Collateral Agent and the
Securities Intermediary and their affiliates may (without having to account
therefor to the Company) accept deposits from, lend money to, make their
investments in and generally engage in any kind of banking, trust or other
business with the Purchase Contract Agent, any other Person interested herein
and any Holder of Securities (and any of their respective subsidiaries or
affiliates) as if it were not acting as the Collateral Agent, and the Collateral
Agent, the Securities Intermediary and their affiliates may accept fees and
other consideration from the Purchase Contract Agent and any Holder of
Securities without having to account for the same to the Company; provided that
each of the Securities Intermediary and the Collateral Agent covenants and
agrees with the Company that it shall not accept, receive or permit there to be
created in favor of itself and shall take no affirmative action to permit there
to be created in favor of any other Person, any security interest, lien or other
encumbrance of any kind in or upon the Collateral other than the lien created by
the Pledge.
Section 9.5 Non-Reliance on Collateral Agent and Securities
Intermediary. Neither the Securities Intermediary nor the Collateral Agent shall
be required to keep itself informed as to the performance or observance by the
Purchase Contract Agent or any Holder of Securities of this Agreement, the
Purchase Contract Agreement, the Securities or any other document referred to or
provided for herein or therein or to inspect the properties or books of the
Purchase Contract Agent or any Holder of Securities. Neither the Collateral
Agent nor the Securities Intermediary shall have any duty or responsibility to
provide the Company with any credit or other information concerning the affairs,
financial condition or business of the Purchase Contract Agent or any Holder of
Securities (or any of their respective affiliates) that may come into the
<PAGE>
18
possession of the Collateral Agent or the Securities Intermediary or any of
their respective affiliates.
Section 9.6 Compensation and Indemnity. The Company agrees: (i) to pay
the Collateral Agent and the Securities Intermediary from time to time such
compensation as shall be agreed in writing between the Company and the
Collateral Agent or the Securities Intermediary, as the case may be, for all
services rendered by them hereunder and (ii) to indemnify the Collateral Agent,
the Securities Intermediary and the Purchase Contract Agent for, and to hold
each of them harmless from and against, any loss, liability or reasonable
out-of-pocket expense incurred without negligence, willful misconduct or bad
faith on its part, arising out of or in connection with the acceptance or
administration of its powers and duties under this Agreement, including the
reasonable out-of-pocket costs and expenses (including reasonable fees and
expenses of counsel) of defending itself against any claim or liability in
connection with the exercise or performance of such powers and duties. The
provisions of this Section shall survive the termination of this Agreement.
Section 9.7 Failure to Act. In the event of any ambiguity in the
provisions of this Agreement or any dispute between or conflicting claims by or
among the parties hereto or any other Person with respect to any funds or
property deposited hereunder, the Collateral Agent and the Securities
Intermediary shall be entitled, after prompt notice to the Company and the
Purchase Contract Agent, at its sole option, to refuse to comply with any and
all claims, demands or instructions with respect to such property or funds so
long as such dispute or conflict shall continue, and the Collateral Agent and
the Securities Intermediary shall not be or become liable in any way to any of
the parties hereto for its failure or refusal to comply with such conflicting
claims, demands or instructions. The Collateral Agent and the Securities
Intermediary shall be entitled to refuse to act until either (i) such
conflicting or adverse claims or demands shall have been finally determined by a
court of competent jurisdiction or settled by agreement between the conflicting
parties as evidenced in a writing satisfactory to the Collateral Agent or the
Securities Intermediary or (ii) the Collateral Agent or the Securities
Intermediary shall have received security or an indemnity satisfactory to it
sufficient to save it harmless from and against any and all loss, liability or
reasonable out-of-pocket expense which it may incur by reason of its acting. The
Collateral Agent and the Securities Intermediary may in addition elect to
commence an interpleader action or seek other judicial relief or orders as the
Collateral Agent or the Securities Intermediary may deem necessary.
Notwithstanding anything contained herein to the contrary, neither the
Collateral Agent nor the Securities Intermediary shall be required to take any
action that is in its opinion contrary to law or to the terms of this Agreement,
or which would in its opinion subject it or any of its officers, employees or
directors to liability.
Section 9.8 Resignation of Collateral Agent and Securities
Intermediary. (a) Subject to the appointment and acceptance of a successor
Collateral Agent as provided below, (i) the Collateral Agent may resign at any
time by giving notice thereof to the Company and the Purchase Contract Agent as
attorney-in-fact for the Holders of Securities, (ii) the Collateral Agent may be
removed at any time by the Company and (iii) if the Collateral Agent fails to
perform any of its material obligations hereunder in any material respect for a
period of not less than 20 days after receiving written notice of such failure
by the Purchase Contract Agent and
<PAGE>
19
such failure shall be continuing, the Collateral Agent may be removed by the
Purchase Contract Agent. The Purchase Contract Agent shall promptly notify the
Company of any removal of the Collateral Agent pursuant to clause (iii) of the
immediately preceding sentence. Upon any such resignation or removal, the
Company shall have the right to appoint a successor Collateral Agent. If no
successor Collateral Agent shall have been so appointed and shall have accepted
such appointment within 30 days after the retiring Collateral Agent's giving of
notice of resignation or such removal, then the retiring Collateral Agent may
petition any court of competent jurisdiction for the appointment of a successor
Collateral Agent. The Collateral Agent shall be a bank which has an office in
New York, New York with a combined capital and surplus of at least $50,000,000
and shall not be the Purchase Contract Agent or any of its affiliates. Upon the
acceptance of any appointment as Collateral Agent hereunder by a successor
Collateral Agent, such successor Collateral Agent shall thereupon succeed to and
become vested with all the rights, powers, privileges and duties of the retiring
Collateral Agent, and the retiring Collateral Agent shall take all appropriate
action to transfer any money and property held by it hereunder (including the
Collateral) to such successor Collateral Agent. The retiring Collateral Agent
shall, upon such succession, be discharged from its duties and obligations as
Collateral Agent hereunder. After any retiring Collateral Agent's resignation
hereunder as Collateral Agent, the provisions of this Section 9 shall continue
in effect for its benefit in respect of any actions taken or omitted to be taken
by it while it was acting as the Collateral Agent.
(b) Subject to the appointment and acceptance of a successor Securities
Intermediary as provided below, (i) the Securities Intermediary may resign at
any time by giving notice thereof to the Company and the Purchase Contract Agent
as attorney-in-fact for the Holders of Securities, (ii) the Securities
Intermediary may be removed at any time by the Company and (iii) if the
Securities Intermediary fails to perform any of its material obligations
hereunder in any material respect for a period of not less than 20 days after
receiving written notice of such failure by the Purchase Contract Agent and such
failure shall be continuing, the Securities Intermediary may be removed by the
Purchase Contract Agent. The Purchase Contract Agent shall promptly notify the
Company of any removal of the Securities Intermediary pursuant to clause (iii)
of the immediately preceding sentence. Upon any such resignation or removal, the
Company shall have the right to appoint a successor Securities Intermediary. If
no successor Securities Intermediary shall have been so appointed and shall have
accepted such appointment within 30 days after the retiring Securities
Intermediary's giving of notice of resignation or such removal, then the
retiring Securities Intermediary may petition any court of competent
jurisdiction for the appointment of a successor Securities Intermediary. The
Securities Intermediary shall be a bank which has an office in New York, New
York with a combined capital and surplus of at least $50,000,000 and shall not
be the Purchase Contract Agent or any of its affiliates. Upon the acceptance of
any appointment as Securities Intermediary hereunder by a successor Securities
Intermediary, such successor Securities Intermediary shall thereupon succeed to
and become vested with all the rights, powers, privileges and duties of the
retiring Securities Intermediary, and the retiring Securities Intermediary shall
take all appropriate action to transfer any money and property held by it
hereunder (including the Collateral) to such successor Securities Intermediary.
The retiring Securities Intermediary shall, upon such succession, be discharged
from its duties and obligations as Securities Intermediary hereunder. After any
retiring Securities Intermediary's resignation hereunder as Securities
Intermediary, the provisions of this Section 9 shall continue in effect for
<PAGE>
20
its benefit in respect of any actions taken or omitted to be taken by it while
it was acting as the Securities Intermediary.
Section 9.9 Right to Appoint Agent or Advisor. The Collateral Agent
shall have the right to appoint agents or advisors in connection with any of its
duties hereunder, and the Collateral Agent shall not be liable for any action
taken or omitted by, or in reliance upon the advice of, such agents or advisors
selected in good faith. The appointment of agents pursuant to this Section 9.9
shall be subject to prior consent of the Company, which consent shall not be
unreasonably withheld.
Section 9.10 Survival. The provisions of this Section 9 shall survive
termination of this Agreement and the resignation or removal of the Collateral
Agent or the Securities Intermediary.
Section 9.11 Exculpation. Anything in this Agreement to the contrary
notwithstanding, in no event shall the Collateral Agent or the Securities
Intermediary or their officers, directors, employees or agents be liable under
this Agreement to any third party for indirect, special, punitive, or
consequential loss or damage of any kind whatsoever, including lost profits,
whether or not the likelihood of such loss or damage was known to the Collateral
Agent or the Securities Intermediary, or any of them, incurred without any act
or deed that is found to be attributable to gross negligence or willful
misconduct on the part of the Collateral Agent or the Securities Intermediary.
Section 10. Amendment.
Section 10.1 Amendment Without Consent of Holders. Without the consent
of any Holders, the Company, the Collateral Agent, the Securities Intermediary
and the Purchase Contract Agent, at any time and from time to time, may amend
this Agreement, in form satisfactory to the Company, the Collateral Agent, the
Securities Intermediary and the Purchase Contract Agent, for any of the
following purposes:
(1) to evidence the succession of another Person to the
Company, and the assumption by any such successor of the covenants of
the Company;
(2) to add to the covenants of the Company for the benefit of
the Holders, or to surrender any right or power herein conferred upon
the Company, so long as such covenants or such surrender do not
adversely affect the validity, perfection or priority of the Pledge
created hereunder;
(3) to evidence and provide for the acceptance of appointment
hereunder by a successor Collateral Agent, Securities Intermediary or
Purchase Contract Agent; or
(4) to cure any ambiguity (or formal defect), to correct or
supplement any provisions herein which may be inconsistent with any
other such provisions herein, or to make any other provisions with
respect to such matters or questions arising under this Agreement,
provided such action shall not adversely affect the interests of the
Holders.
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21
Section 10.2 Amendment with Consent of Holders. With the consent of the
Holders of not less than a majority of the Purchase Contracts at the time
outstanding, by Act of said Holders delivered to the Company, the Purchase
Contract Agent, the Securities Intermediary or the Collateral Agent, as the case
may be, the Company, when duly authorized, the Purchase Contract Agent, the
Securities Intermediary and the Collateral Agent may amend this Agreement for
the purpose of modifying in any manner the provisions of this Agreement or the
rights of the Holders in respect of the Securities; provided, however, that no
such supplemental agreement shall, without the unanimous consent of the Holders
of each Outstanding Security adversely affected thereby,
(1) change the amount or type of Collateral underlying a
Security (except for the rights of holders of Corporate PIES to
substitute the Treasury Securities for the Pledged Preferred Stock or
the rights of Holders of Treasury PIES to substitute Shares of
Preferred Stock for the Pledged Treasury Securities), impair the right
of the Holder of any Security to receive distributions on the
underlying Collateral or otherwise adversely affect the Holder's rights
in or to such Collateral; or
(2) otherwise effect any action that would require the consent
of the Holder of each Outstanding Security affected thereby pursuant to
the Purchase Contract Agreement if such action were effected by an
agreement supplemental thereto; or
(3) reduce the percentage of Purchase Contracts the consent
of whose Holders is required for any such amendment;
provided that if any amendment or proposal referred to above would adversely
affect only the Corporate PIES or only the Treasury PIES, then only the affected
class of Holder as of the record date for the Holders entitled to vote thereon
will be entitled to vote on such amendment or proposal, and such amendment or
proposal shall not be effective except with the consent of Holders of not less
than a majority of such class; provided that the unanimous consent of the
Holders of each outstanding Purchase Contract of such class affected thereby
shall be required to approve any amendment or proposal specified in clauses (1)
- - (3) above.
It shall not be necessary for any Act of Holders under this Section to approve
the particular form of any proposed amendment, but it shall be sufficient if
such Act shall approve the substance thereof.
Section 10.3 Execution of Amendments. In executing any amendment
permitted by this Section, the Collateral Agent, the Securities Intermediary and
the Purchase Contract Agent shall be entitled to receive and (subject to Section
7.1 of the Purchase Contract Agreement with respect to the Purchase Contract
Agent) shall be fully protected in relying upon, an Opinion of Counsel stating
that the execution of such amendment is authorized or permitted by this
Agreement and that all conditions precedent, if any, to the execution and
delivery of such amendment have been satisfied.
<PAGE>
22
Section 10.4 Effect of Amendments. Upon the execution of any amendment
under this Section, this Agreement shall be modified in accordance therewith,
and such amendment shall form a part of this Agreement for all purposes; and
every Holder of Certificates theretofore or thereafter authenticated, executed
on behalf of the Holders and delivered under the Purchase Contract Agreement
shall be bound thereby.
Section 10.5 Reference to Amendments. Certificates authenticated,
executed on behalf of the Holders and delivered after the execution of any
amendment pursuant to this Section may, and shall if required by the Collateral
Agent or the Purchase Contract Agent, bear a notation in form approved by the
Purchase Contract Agent and the Collateral Agent as to any matter provided for
in such amendment. If the Company shall so determine, new Security Certificates
so modified as to conform, in the opinion of the Collateral Agent, the Purchase
Contract Agent and the Company, to any such amendment may be prepared and
executed by the Company and authenticated, executed on behalf of the Holders and
delivered by the Purchase Contract Agent in accordance with the Purchase
Contract Agreement in exchange for Outstanding Security Certificates.
Section 11. Miscellaneous.
Section 11.1 No Waiver. No failure on the part of the Collateral Agent
or any of its agents to exercise, and no course of dealing with respect to, and
no delay in exercising, any right, power or remedy hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise by the Collateral Agent
or any of its agents of any right, power or remedy hereunder preclude any other
or further exercise thereof or the exercise of any other right, power or remedy.
The remedies herein are cumulative and are not exclusive of any remedies
provided by law.
Section 11.2 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. Without limiting
the foregoing, the above choice of law is expressly agreed to by the Company,
the Securities Intermediary, the Collateral Agent and the Holders from time to
time acting through the Purchase Contract Agent, as their attorney-in-fact, in
connection with the establishment and maintenance of the Collateral Account. The
Company, the Collateral Agent, the Securities Intermediary and the Holders from
time to time of the Securities, acting through the Purchase Contract Agent as
their attorney-in-fact, hereby submit to the nonexclusive jurisdiction of the
United States District Court for the Southern District of New York and of any
New York state court sitting in New York City for the purposes of all legal
proceedings arising out of or relating to this Agreement or the transactions
contemplated hereby. The Company, the Collateral Agent, the Securities
Intermediary and the Holders from time to time of the Securities, acting through
the Purchase Contract Agent as their attorney-in-fact, irrevocably waive, to the
fullest extent permitted by applicable law, any objection which they may now or
hereafter have to the laying of the venue of any such proceeding brought in such
a court and any claim that any such proceeding brought in such a court has been
brought in an inconvenient forum.
Section 11.3 Notices. All notices, requests, consents and other
communications provided for herein (including, without limitation, any
modifications of, or waivers or consents
<PAGE>
23
under, this Agreement) shall be given or made in writing (including, without
limitation, by telecopy) delivered to the intended recipient at the "Address for
Notices" specified below its name on the signature pages hereof or, as to any
party, at such other address as shall be designated by such party in a notice to
the other parties. Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given when transmitted by
telecopier or personally delivered or, in the case of a mailed notice, upon
receipt, in each case given or addressed as aforesaid.
Section 11.4 Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the respective successors and assigns of the
Company, the Collateral Agent, the Securities Intermediary and the Purchase
Contract Agent, and the Holders from time to time of the Securities, by their
acceptance of the same, shall be deemed to have agreed to be bound by the
provisions hereof and to have ratified the agreements of, and the grant of the
Pledge hereunder by, the Purchase Contract Agent.
Section 11.5 Counterparts. This Agreement may be executed in any number
of counterparts, all of which taken together shall constitute one and the same
instrument, and any of the parties hereto may execute this Agreement by signing
any such counterpart.
Section 11.6 Severability. If any provision hereof is invalid and
unenforceable in any jurisdiction, then, to the fullest extent permitted by law,
(i) the other provisions hereof shall remain in full force and effect in such
jurisdiction and shall be liberally construed in order to carry out the
intentions of the parties hereto as nearly as may be possible and (ii) the
invalidity or unenforceability of any provision hereof in any jurisdiction shall
not affect the validity or enforceability of such provision in any other
jurisdiction.
Section 11.7 Expenses, etc. The Company agrees to reimburse the
Collateral Agent and the Securities Intermediary for: (a) all reasonable
out-of-pocket costs and expenses of the Collateral Agent and the Securities
Intermediary (including, without limitation, the reasonable fees and expenses of
counsel to the Collateral Agent and the Securities Intermediary), in connection
with (i) the negotiation, preparation, execution and delivery or performance of
this Agreement and (ii) any modification, supplement or waiver of any of the
terms of this Agreement; (b) all reasonable costs and expenses of the Collateral
Agent and the Securities Intermediary (including, without limitation, reasonable
fees and expenses of counsel) in connection with (i) any enforcement or
proceedings resulting or incurred in connection with causing any Holder of
Securities to satisfy its obligations under the Purchase Contracts forming a
part of the Securities and (ii) the enforcement of this Section 11.7; and (c)
all transfer, stamp, documentary or other similar taxes, assessments or charges
levied by any governmental or revenue authority in respect of this Agreement or
any other document referred to herein and all costs, expenses, taxes,
assessments and other charges incurred in connection with any filing,
registration, recording or perfection of any security interest contemplated
hereby.
Section 11.8 Security Interest Absolute. All rights of the Collateral
Agent and security interests hereunder, and all obligations of the Holders from
time to time hereunder, shall be absolute and unconditional irrespective of:
<PAGE>
24
(a) any lack of validity or enforceability of any provision of
the Purchase Contracts or the Securities or any other agreement or
instrument relating thereto;
(b) any change in the time, manner or place of payment of, or
any other term of, or any increase in the amount of, all or any of the
obligations of Holders of the Securities under the related Purchase
Contracts, or any other amendment or waiver of any term of, or any
consent to any departure from any requirement of, the Purchase Contract
Agreement or any Purchase Contract or any other agreement or instrument
relating thereto; or
(c) any other circumstance which might otherwise constitute a
defense available to, or discharge of, a borrower, a guarantor or a
pledgor.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
BANK UNITED CORP., The First National Bank of Chicago,
as Purchase Contract Agent and as
a Delaware corporation attorney-in-fact of the Holders
from time to time of the Securities
By: By:
Name: Name:
Title: Title:
Address for Notices: Address for Notices:
3200 Southwest Freeway One First National Plaza
Suite 3200 Suite 0126
Houston, TX 77027 Chicago, IL 60670-1706
Attention: Jonathon K. Heffron, Esq. Attention: Corporate Trust Department
Telecopy: 713-543-7744 Telecopy: 312-407-1706
THE BANK OF NEW YORK, THE BANK OF NEW YORK
as Collateral Agent as Securities Intermediary
By: By:
Name: Name:
Title: Title:
Address for Notices: Address for Notices:
The Bank of New York The Bank of New York
101 Barclay Street 101 Barclay Street
Floor 21 West Floor 21 West
New York, NY 10286 New York, NY 10286
Attention: Corporate Trust Attention: Corporate Trust
Administration Administration
Telecopy: 212-815-5915 Telecopy: 212-815-5915
<PAGE>
EXHIBIT A
INSTRUCTION
FROM PURCHASE CONTRACT AGENT
TO COLLATERAL AGENT
(Establishment of Treasury PIES)
The National Bank of New York
Attention: Corporate Trust Administration
Telecopy: 212-815-5915
Re: ________ PIES of Bank United Corp.
(the "Company")
Please refer to the Pledge Agreement dated as of August 10, 1999 (the
"Pledge Agreement"), among the Company, you, as Collateral Agent and as
Securities Intermediary, and the undersigned, as Purchase Contract Agent and as
attorney-in-fact for the holders of PIES from time to time. Capitalized terms
used herein but not defined shall have the meaning set forth in the Pledge
Agreement.
We hereby notify you in accordance with Section 5.2 of the Pledge
Agreement that the holder of securities named below (the "Holder") has elected
to substitute $__________ Value of Treasury Securities or security entitlements
thereto in exchange for an equal Value of Pledged Preferred Stock and has
delivered to the undersigned a notice stating that the Holder has Transferred
such Treasury Securities or security entitlements thereto to the Securities
Intermediary, for credit to the Collateral Account.
We hereby request that you instruct the Securities Intermediary, upon
confirmation that such Treasury Securities or security entitlements thereto have
been credited to the Collateral Account, to release to the undersigned an equal
Value of Pledged Preferred Stock in accordance with Section 5.2 of the Pledge
Agreement.
The First National Bank of Chicago
Date: _______________ By:______________________________
Name:
Title:
<PAGE>
2
Please print name and address of Holder electing to substitute Treasury
Securities or security entitlements thereto for the Pledged Preferred Stock:
- -------------------------- --------------------------------
Name Social Security or other
Taxpayer Identification Number,
if any
- ---------------------------
Address
- ---------------------------
- ---------------------------
<PAGE>
EXHIBIT B
INSTRUCTION
FROM COLLATERAL AGENT
TO SECURITIES INTERMEDIARY
(Establishment of Treasury PIES)
The Bank of New York
Attention: Corporate Trust Administration
Telecopy: 212-815-5915
Re: ________ PIES of Bank United Corp.
(the "Company")
Securities Account No. 016335 entitled "The Bank of New York,
as Collateral Agent, Securities Account Bank United"
(the "Collateral Account")
Please refer to the Pledge Agreement, dated as of August 10, 1999 (the
"Pledge Agreement"), among the Company, The First National Bank of Chicago, as
Purchase Contract Agent and as attorney-in-fact for the holders of PIES from
time to time, and the undersigned, as Collateral Agent and Securities
Intermediary. Capitalized terms used herein but not defined shall have the
meanings set forth in the Pledge Agreement.
When you have confirmed that $__________ Value of Treasury Securities
or security entitlements thereto has been credited to the Collateral Account by
or for the benefit of _________, as Holder of PIES (the "Holder"), you are
hereby instructed to release from the Collateral Account an equal Value of
Shares of Preferred Stock or security entitlements thereto by Transfer to the
Purchase Contract Agent.
The Bank of New York
Dated:_______________ By:________________________________
Name:
Title:
<PAGE>
2
Please print name and address of Holder:
- -------------------------- --------------------------------
Name Social Security or other
Taxpayer Identification Number,
if any
- ---------------------------
Address
- ---------------------------
- ---------------------------
<PAGE>
EXHIBIT C
INSTRUCTION
FROM PURCHASE CONTRACT AGENT
TO COLLATERAL AGENT
(Reestablishment of Corporate PIES)
The Bank of New York
Attention: Corporate Trust Administration
Telecopy: 212-815-5915
Re: ________ PIES of Bank United Corp.
(the "Company")
Please refer to the Pledge Agreement, dated as of August 10, 1999 (the
"Pledge Agreement"), among the Company, you, as Collateral Agent and as
Securities Intermediary, and the undersigned, as Purchase Contract Agent and as
attorney-in-fact for the holders of PIES from time to time. Capitalized terms
used herein but not defined shall have the meanings set forth in the Pledge
Agreement.
We hereby notify you in accordance with Section 5.3(a) of the Pledge
Agreement that the holder of securities listed below (the "Holder") has elected
to substitute $__________ Value of Shares of Preferred Stock or security
entitlements thereto in exchange for $__________ Value of Pledged Treasury
Securities and has delivered to the undersigned a notice stating that the Holder
has Transferred such Shares of Preferred Stock or security entitlements thereto
to the Securities Intermediary, for credit to the Collateral Account.
We hereby request that you instruct the Securities Intermediary, upon
confirmation that such Shares of Preferred Stock or security entitlements
thereto have been credited to the Collateral Account, to release to the
undersigned $__________ Value of Treasury Securities or security entitlements
thereto related to _____ Treasury PIES of such Holder in accordance with Section
5.3(a) of the Pledge Agreement.
The First National Bank of Chicago
Date: ____________________________ By:_______________________________
Name:
Title:
<PAGE>
2
Please print name and address of Holder electing to substitute Pledged Preferred
Stock or security entitlements thereto for Pledged Treasury Securities:
- -------------------------- --------------------------------
Name Social Security or other
Taxpayer Identification Number,
if any
- ---------------------------
Address
- ---------------------------
- ---------------------------
<PAGE>
EXHIBIT D
INSTRUCTION
FROM COLLATERAL AGENT
TO SECURITIES INTERMEDIARY
(Reestablishment of Corporate PIES)
The Bank of New York
Attention: Corporate Trust Administration
Telecopy: 212-815-5915
Re: ________ PIES of Bank United Corp.
(the "Company")
Securities Account No. 016335 entitled "The Bank of New York,
as Collateral Agent, Securities Account Bank United"
(the "Collateral Account")
Please refer to the Pledge Agreement, dated as of August 10, 1999 (the
"Pledge Agreement"), among the Company, you, as Securities Intermediary, The
First National Bank of Chicago, as Purchase Contract Agent and as
attorney-in-fact for the holders of PIES from time to time, and the undersigned,
as Collateral Agent. Capitalized terms used herein but not defined shall have
the meanings set forth in the Pledge Agreement.
When you have confirmed that $_________ Value of Shares of Preferred
Stock or security entitlements thereto has been credited to the Collateral
Account by or for the benefit of _________, as Holder of PIES (the "Holder"),
you are hereby instructed to release from the Collateral Account $__________
Value of Treasury Securities or security entitlements thereto by Transfer to the
Purchase Contract Agent.
The Bank of New York
Dated: ______________________ By _______________________________
Name:
Title:
<PAGE>
2
Please print name and address of Holder:
- -------------------------- --------------------------------
Name Social Security or other
Taxpayer Identification Number,
if any
- ---------------------------
Address
- ---------------------------
- ---------------------------
<PAGE>
EXHIBIT E
NOTICE OF CASH SETTLEMENT FROM SECURITIES INTERMEDIARY
TO PURCHASE CONTRACT AGENT
(Cash Settlement Amounts)
The First National Bank of Chicago
Telecopier No.: (312) 407-1708
Attention: Corporate Trust Department
Re: ________ PIES of Bank United Corp.
(the "Company")
Please refer to the Pledge Agreement, dated as of August 10, 1999 (the
"Pledge Agreement"), by and among you, the Company, and the undersigned, as
Securities Intermediary and Collateral Agent. Unless otherwise defined herein,
terms defined in the Pledge Agreement are used herein as defined therein
In accordance with Section 5.5(d) of the Pledge Agreement, we hereby
notify you that as of 11:00 a.m., [(on the fifth Business Day immediately
preceding the Purchase Contract Settlement Date)], we have received (i) $_____
in immediately available funds paid in an aggregate amount equal to the Purchase
Price to the Company on the Purchase Contract Settlement Date with respect to
__________ Corporate PIES and (ii) $_________ in immediately available funds
paid in an aggregate amount equal to the Purchase Price to the Company on the
Purchase Contract Settlement Date with respect to ______ Treasury PIES.
The Bank of New York
Date: By:________________________________
Name:
Title:
Exhibit 4.7
BANK UNITED CORP.
SERIES B PREFERRED STOCK
REMARKETING AGREEMENT
August 10, 1999
LEHMAN BROTHERS INC.
Three World Financial Center
New York, New York 10285
Ladies and Gentlemen:
Bank United Corp., a Delaware corporation (the "Company"), is issuing today
2,000,000 shares of its Series B Preferred Stock, liquidation preference of $50
per share (the "Preferred Stock"), pursuant to a Certificate of Designations
filed with the Secretary of State of the State of Delaware (the "Certificate of
Designations"). Capitalized terms used but not defined in this Remarketing
Agreement (this "Agreement") shall have the meanings set forth in the
Certificate of Designations.
The Remarketing (as defined below) of the Preferred Stock is provided for
in the Certificate of Designations. As used in this Agreement, the term
"Remarketed Preferred Stock" means the Preferred Stock subject to the
Remarketing on the fifth Business Day prior to the Purchase Contract Settlement
Date; the term "Remarketing Procedures" means the procedures in connection with
the Remarketing of the Preferred Stock described in the Certificate of
Designations; and the term "Remarketing" means the remarketing of the Remarketed
Preferred Stock pursuant to the Remarketing Procedures.
Section 1. APPOINTMENT AND OBLIGATIONS OF THE REMARKETING AGENT. (a) The
Company hereby appoints Lehman Brothers Inc., and Lehman Brothers Inc. hereby
accepts appointment, as exclusive remarketing agent (the "Remarketing Agent")
for the purpose of (i) Remarketing the Remarketed Preferred Stock on behalf of
the holders thereof and (ii) performing such other duties as are assigned to the
Remarketing Agent in the Remarketing Procedures, all in accordance with and
pursuant to the Remarketing Procedures.
(b) The Remarketing Agent agrees (i) to use commercially reasonable efforts
to remarket the Remarketed Preferred Stock tendered or deemed tendered to the
Remarketing Agent in the Remarketing, (ii) to notify the Company promptly of the
Reset Rate and (iii) to carry out such other duties as are assigned to the
Remarketing Agent in the Remarketing Procedures, all in accordance with the
provisions of the Remarketing Procedures.
<PAGE>
2
(c) On the third Business Day immediately preceding the Purchase Contract
Settlement Date (the "Remarketing Date"), the Remarketing Agent shall use
commercially reasonable efforts to remarket, at a price equal to 100.50% of the
aggregate liquidation preference thereof, the Remarketed Preferred Stock
tendered or deemed tendered for purchase.
(d) If, as a result of the efforts described in Section 1(b), the
Remarketing Agent determines that it will be able to remarket all Remarketed
Securities tendered or deemed tendered for purchase at a price of 100.50% of the
aggregate liquidation preference of such Remarketed Preferred Stock prior to
4:00 p.m., New York City time, on the Remarketing Date, the Remarketing Agent
shall determine the Reset Rate, which shall be the rate per annum (rounded to
the nearest one-thousandth (0.001) of one percent per annum) that the
Remarketing Agent determines, in its sole judgment, to be the lowest rate per
annum that will enable it to remarket all Remarketed Preferred Stock tendered or
deemed tendered for Remarketing.
(e) If none of the holders of Remarketed Preferred Stock elects to have
Remarketed Preferred Stock Remarketed in the Remarketing, the Remarketing Agent
shall, in its sole discretion, determine the rate that would have been
established had a Remarketing of all the Preferred Stock been held on the
Remarketing Date, and such rate shall be the Reset Rate.
(f) If, by 4:00 p.m., New York City time, on the Remarketing Date, the
Remarketing Agent is unable to remarket all Remarketed Preferred Stock tendered
or deemed tendered for purchase, a failed Remarketing (the "Failed Remarketing")
shall be deemed to have occurred, and the Remarketing Agent shall so advise by
telephone the Depositary and the Company. If a Failed Remarketing occurs, the
Reset Rate will be equal to (i) the "AA" Composite Commercial Paper Rate on the
Remarketing Date, plus (ii) a spread as set forth in the Certificate of
Designations.
(g) By approximately 4:30 p.m., New York City time, on the Remarketing
Date, provided that there has not been a Failed Remarketing, the Remarketing
Agent shall advise, by telephone (i) the Depositary and the Company of the Reset
Rate determined in the Remarketing and the number of shares of Remarketed
Preferred Stock sold in the Remarketing, (ii) each purchaser (or the Depositary
Participant thereof) of the Reset Rate and the number of shares of Remarketed
Preferred Stock such purchaser is to purchase and (iii) each purchaser to give
instructions to its Depositary Participant to pay the purchase price on the
Purchase Contract Settlement Date in same day funds against delivery of the
shares of Remarketed Preferred Stock purchased through the facilities of the
Depositary.
(h) The Remarketing Agent shall remit (i) to the Collateral Agent proceeds
of the Remarketed Preferred Stock subject to the Pledge Agreement in an amount
equal to 100% of the aggregate liquidation preference of such Remarketed
Preferred Stock and (ii) to the Depositary Participant of the seller of
Remarketed Preferred Stock not subject to the Pledge Agreement proceeds of such
Remarketed Preferred Stock in an amount equal to 100% of the aggregate
liquidation preference of such Remarketed Preferred Stock.
<PAGE>
3
2 REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY. The Company
hereby represents and warrants to the Remarketing Agent (i) on and as of the
date hereof, (ii) on and as of the date the Prospectus or other Remarketing
Materials (each, as defined in Section 2(a) below) which are first distributed
in connection with the Remarketing (the "Commencement Date"), (iii) on and as of
the Remarketing Date and (iv) on and as of the Purchase Contract Settlement Date
that:
(a) Registration statements on Form S-3 (File Nos. 333-75937 and
333-83797) and an amendment or amendments thereto with respect to the
initial offering of the Preferred Stock have (i) been prepared by the
Company in conformity with the requirements of the Securities Act of 1933,
as amended (the "Securities Act"), and the rules and regulations (the
"Rules and Regulations") of the Securities and Exchange Commission (the
"Commission") thereunder, (ii) been filed with the Commission under the
Securities Act and (iii) become effective under the Securities Act; and a
registration statement or registration statements on Form S-3, if required
to be filed in connection with the Remarketing, may also be prepared by the
Company in conformity with the requirements of the Securities Act and the
Rules and Regulations and filed with the Commission under the Securities
Act. Copies of such registration statements that have become effective and
the amendment or amendments to such registration statements have been
delivered or made available by the Company to Lehman Brothers Inc. As used
in this Agreement, "Effective Time" means the date and time as of which the
last of such registration statements that have become effective or may be
filed, or the most recent post-effective amendment thereto, if any, was
declared effective by the Commission; "Effective Date" means the date of
the Effective Time of such last registration statement; "Preliminary
Prospectus" means each prospectus included in such last registration
statement, or amendment thereto, before it became effective under the
Securities Act and any prospectus filed by the Company with your consent
pursuant to Rule 424(a) of the Rules and Regulations; "Registration
Statement" means such last registration statement, as amended at its
Effective Time, including documents incorporated by reference therein at
such time and, if applicable, all information contained in the final
prospectus filed with the Commission pursuant to Rule 424(b) of the Rules
and Regulations, including any information deemed to be part of such
Registration Statement as of the Effective Time pursuant to paragraph (b)
of Rule 430A of the Rules and Regulations; and "Prospectus" means such
final prospectus, as first filed pursuant to Rule 424(b) of the Rules and
Regulations. Reference made herein to any Preliminary Prospectus, the
Prospectus or any other information furnished by the Company to the
Remarketing Agent for distribution to investors in connection with the
Remarketing (the "Remarketing Materials") shall be deemed to refer to and
include any documents incorporated by reference therein pursuant to Item 12
of Form S-3 under the Securities Act as of the date of such Preliminary
Prospectus or the Prospectus, as the case may be, or, in the case of
Remarketing Materials, referred to as incorporated by reference therein,
and any reference to any amendment or supplement to any Preliminary
Prospectus, the Prospectus or the Remarketing Materials shall be deemed to
refer to and include any document filed under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), after the date of such
Preliminary Prospectus or the Prospectus incorporated by reference therein
pursuant
<PAGE>
4
to Item 12 of Form S-3 or, if so incorporated, the Remarketing Materials,
as the case may be; and any reference to any amendment to the Registration
Statement shall be deemed to include any annual report of the Company filed
with the Commission pursuant to Section 13(a) or 15(d) of the Exchange Act
after the Effective Time that is incorporated by reference in the
Registration Statement.
(b) The Registration Statement conforms (and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus, when they become effective or are filed with the Commission, as
the case may be, will conform) in all respects to the requirements of the
Securities Act and the Rules and Regulations, and the Registration
Statement, the Prospectus and the Remarketing Materials do not and will
not, as of the Effective Date (as to the Registration Statement and any
amendment thereto), as of the applicable filing date (as to the Prospectus
and any amendment or supplement thereto) and as of the Commencement Date,
Remarketing Date and Purchase Contract Settlement Date (as to any
Remarketing Materials) contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; provided that no representation
and warranty is made as to information contained in or omitted from the
Registration Statement, the Prospectus or the Remarketing Materials in
reliance upon and in conformity with written information furnished to the
Company by the Remarketing Agent specifically for inclusion therein; and
the Commission has not issued an order preventing or suspending the use of
the Registration Statement, any Preliminary Prospectus, the Prospectus or
the Remarketing Materials.
(c) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the
Securities Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder, and none of such documents
contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; and any further documents so filed and
incorporated by reference in the Prospectus, when such documents become
effective or are filed with Commission, as the case may be, will conform in
all material respects to the requirements of the Securities Act or the
Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder and will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
(d) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the jurisdiction of its
incorporation, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus or in
any Remarketing Materials, and has been duly qualified as a foreign
corporation for the transaction of business and is in good standing under
the laws of each other jurisdiction in which it owns or leases properties,
or conducts any business, so as to require such qualification, or is
subject to no material
<PAGE>
5
liability or disability by reason of the failure to be so qualified in any
such jurisdiction; and each subsidiary (as defined in Section 14 hereof) of
the Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of its jurisdiction of
incorporation.
(e) Bank United (the "Bank") has been duly organized and is validly
existing as a federally chartered savings bank in good standing under the
laws of the United States, and has power and authority to own, lease and
operate its properties and to conduct its business as described in the
Final Prospectus. Each subsidiary of the Bank has been duly organized and
is validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation and has the power and authority to own,
lease and operate its properties and to conduct its business as described
in the Final Prospectus.
(f) The Company has an authorized capitalization as set forth in the
Prospectus and in any Remarketing Materials; all of the issued shares of
capital stock of the Company and each wholly-owned subsidiary of the
Company (including, without limitation, the Bank) have been duly and
validly authorized and issued and are fully paid and non-assessable; and
all of the issued shares of capital stock of each subsidiary of the
Company, including without limitation the Bank, except as set forth in the
Prospectus, are owned directly or indirectly by the Company, free and clear
of all liens, encumbrances, equities or claims.
(g) The Bank constitutes the only "significant subsidiary" (as such
term is defined in Rule 1-02 of Regulation S-X) of the Company (a
"Significant Subsidiary").
(h) The Corporate PIES have been duly authorized by the Company, and
when duly executed by the Company (assuming due execution by the Purchase
Contract Agent as attorney-in-fact for the holders thereof and due
authentication by the Purchase Contract Agent) and delivered by the Company
and, upon payment therefor as set forth herein, will be duly and validly
issued and outstanding, and will constitute valid and binding obligations
of the Company entitled to the benefits of the Purchase Contract Agreement
and enforceable against the Company in accordance with their terms, except
as the enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or other similar laws affecting the enforcement
of creditors' rights generally or by general equitable principles,
regardless of whether enforcement is considered in a proceeding in equity
or at law (the "Bankruptcy Exceptions"), and an implied covenant of good
faith and fair dealing.
(i) The shares of Preferred Stock and Remarketed Preferred Stock have
been duly authorized by the Company and, when issued and delivered against
payment therefor as provided herein, will be duly and validly issued, fully
paid and non-assessable.
(j) This Agreement has been duly authorized, executed and delivered by
the Company.
<PAGE>
6
(k) The Purchase Contract Agreement has been duly authorized by the
Company and, when duly executed by the proper officers of the Company
(assuming due execution and delivery by the Purchase Contract Agent) and
delivered by the Company, will constitute a valid and binding agreement of
the Company enforceable against the Company in accordance with its terms,
except as the enforcement thereof may be limited by the Bankruptcy
Exceptions and an implied covenant of good faith and fair dealing.
(l) The Pledge Agreement has been duly authorized by the Company and,
when duly executed by the proper officers of the Company (assuming due
execution and delivery by the Purchase Contract Agent, the Securities
Intermediary and the Collateral Agent) and delivered by the Company, will
constitute a valid and binding agreement of the Company enforceable against
the Company in accordance with its terms, except as the enforcement thereof
may be limited by the Bankruptcy Exceptions and an implied covenant of good
faith and fair dealing.
(m) The Remarketed Preferred Stock, the Certificate of Designations
and the Remarketing Agreement, when the Remarketed Preferred Stock is
delivered pursuant to this Agreement, will conform to the descriptions
thereof contained in the Prospectus and in any Remarketing Materials.
(n) The execution, delivery and performance of this Agreement and the
Certificate of Designations by the Company, the consummation by the Company
of the transactions contemplated hereby and thereby and the issuance and
delivery of the Preferred Stock and the Remarketed Preferred Stock
(collectively, the "Transactions") did not and will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or any of
its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the properties or assets of the
Company or any of its subsidiaries is subject, nor will such actions result
in any violation of the provisions of the charter or by-laws of the Company
or any of its subsidiaries or any statute or any order, rule or regulation
of any court or governmental agency or body having jurisdiction over the
Company or any of its subsidiaries or any of their respective properties or
assets; and except for such consents, approvals, authorizations,
registrations or qualifications as may be required under the Securities
Act, the Exchange Act and applicable state securities laws in connection
with the initial distribution of the Preferred Stock and the Remarketed
Preferred Stock or the Remarketing, no consent, approval, authorization or
order of, or filing or registration with, any such court or governmental
agency or body is required for the Transactions.
(o) There are no contracts, agreements or understandings between (i)
the Company and (ii) any person granting such person the right to require
the Company to file a registration statement under the Securities Act with
respect to any securities of the Company owned or to be owned by such
person or to require the Company to include such securities in the
securities registered pursuant to the Registration Statement or in any
<PAGE>
7
securities being registered pursuant to any other registration statement
filed by the Company under the Securities Act.
(p) Neither the Company nor any of its subsidiaries has sustained,
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus or in any Remarketing
Materials, any loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from any
labor dispute or court or governmental action, order or decree, which
could, individually or in the aggregate, reasonably be expected to have a
material adverse effect on the general affairs, management, financial
position, shareholders' equity or results of operations of the Company and
its subsidiaries taken as a whole or upon the ability of the Company to
perform its obligations under this Agreement (each, a "Material Adverse
Effect"), otherwise than as set forth or contemplated in the Prospectus and
in any Remarketing Materials; and, since such date, there has not been any
material change in the consolidated share capital or long-term debt of the
Company and its subsidiaries or the consolidated share capital or long-term
debt of any Significant Subsidiary or any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the general affairs, management, financial position,
shareholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the Prospectus
and in any Remarketing Materials.
(q) The financial statements filed as part of the Registration
Statement or incorporated by reference in the Prospectus or as presented in
any Remarketing Materials present fairly the financial condition and
results of operations of the entities purported to be shown thereby, at the
dates and for the periods indicated, and have been prepared in conformity
with generally accepted accounting principles applied on a consistent basis
throughout the periods involved; and the supporting schedules included or
incorporated by reference in the Prospectus or in any Remarketing Materials
present fairly the information required to be stated therein.
(r) Deloitte & Touche LLP, who have certified certain financial
statements of the Company, whose report appears in the Prospectus or is
incorporated by reference therein or in any Remarketing Materials and who
have delivered the letter referred to in Section 5(g) hereof, are
independent public accountants as required by the Securities Act and the
Rules and Regulations.
(s) The Company and each Significant Subsidiary has good and
marketable title in fee simple to such of its fixed assets as are real
property and good and marketable title to its other assets reflected in the
most recent consolidated balance sheet incorporated by reference in the
Prospectus or in any Remarketing Materials, except properties and assets
that are leased or that are sold or otherwise disposed of in the ordinary
course of business after the date of said balance sheet, subject to no
mortgages, liens, charges or encumbrances of any kind whatsoever
(collectively, the "Liens").
<PAGE>
8
(t) Other than as set forth or incorporated by reference in the
Prospectus, there are no legal or governmental proceedings pending to which
the Company or any of its subsidiaries is a party or to which any property
or asset of the Company or any of its subsidiaries is the subject which
could reasonably be expected individually or in the aggregate to have a
Material Adverse Effect; and to the best of the Company's knowledge, no
such proceedings are threatened or contemplated by governmental authorities
or threatened by others. Neither the Company nor any of its subsidiaries is
a party to any written agreement or memorandum of understanding with, or
commitment letter or similar undertaking to, or subject to any order or
directive issued by, or a recipient of any extraordinary supervisory letter
from, or has adopted any board resolutions at the request of, any federal
or state goverment agency or authority with responsibility for the
supervision or regulation of depository institutions or their holding
companies or the insurance of deposits, which in any such case materially
restricts the conduct of its business or in any manner relates to its
capital adequacy, its credit policies or its management, nor has the
Company or any of its subisdiaries been advised by any such regulatory
authority that it is contemplating issuing or requesting any such order,
decree, written agreement, memorandum of understanding, extraordinary
supervisory letter, commitment letter or similar undertakings or board
resolutions.
(u) The conditions for use of Form S-3, as set forth in the General
Instructions thereto, have been satisfied.
(v) There are no contracts or other documents which are required to be
described in the Prospectus or filed as exhibits to the Registration
Statement by the Securities Act or by the Rules and Regulations which have
not been described in the Prospectus or filed as exhibits to the
Registration Statement or incorporated therein by reference as permitted by
the Rules and Regulations.
(w) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency, including, without limitation, the OTS and the FDIC,
is necessary or required for the due authorization, execution and delivery
by the Company of this Agreement or for the performance by the Company of
the Transactions, except such as have been already obtained or will have
been obtained or made prior to the Closing Date (as defined in the
Underwriting Agreement, dated August 4, 1999, between the Company and
Lehman Brothers) or as may be required under the Securities Act or the
Rules and Regulations or state securities laws.
(x) None of the Company nor any Significant Subsidiary has any
material contingent liability which is not disclosed in the Prospectus.
(y) None of the Company nor any Significant Subsidiary (i) is in
violation of its charter or by-laws or similar constitutive documents, (ii)
is in default in any respect, and no event has occurred which, with notice
or lapse of time or both, would constitute such a default, in the due
performance or observance of any term, covenant or condition contained in
any material 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 properties or assets is subject, except where such
defaults, individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect or (iii) is in violation in any
material respect of any law, ordinance, governmental rule, regulation or
court decree to which it or its properties or assets may be subject or has
failed to obtain any material license, permit, certificate, franchise or
other governmental authorization or permit necessary to the ownership of
its properties or assets or to the conduct of its
<PAGE>
9
business, except where such violations or failures, individually or in
the aggregate, could not reasonably be expected to have a Material Adverse
Effect.
(z) Neither the Company nor any subsidiary of the Company is an
"investment company" within the meaning of such term under the Investment
Company Act of 1940, as amended (the "1940 Act"), and the rules and
regulations of the Commission thereunder.
(aa) Each of the Company and each Significant Subsidiary has statutory
authority, franchises and consents free from burdensome restrictions and
adequate for the conduct of the business in which it is engaged.
(bb) In the event the Company shall become either directly or
indirectly a bank holding company for purposes of the Bank Holding Company
Act of 1956, as amended (the "BHC Act"), and the rules and regulations of
the Board of Governors of the Federal Reserve System thereunder (the "BHC
Rules"), the current activities of the Company and its subsidiaries (as
defined in the BHC Rules) would be activities permissible for a bank
holding company under the BHC Act and the BHC Rules.
(cc) The Prospectus accurately describes the existing limitations on
the payment of dividends by Bank United on its shares of common stock held
by the Company.
3. FEES AND EXPENSES. (a) For the performance of its services as
Remarketing Agent hereunder, the Remarketing Agent shall retain on the Purchase
Contract Settlement Date 0.50% of the amount of the proceeds received in the
Remarketing.
(b) The Company agrees to pay (i) the costs incident to the preparation and
printing of the Registration Statement, Prospectus and any Remarketing Materials
and any amendments or supplements thereto; (ii) the costs of distributing the
Registration Statement, Prospectus and any Remarketing Materials and any
amendments or supplements thereto; (iii) the fees and expenses of qualifying the
Remarketed Securities under the securities laws of the several jurisdictions as
provided in Section 4(h) and of preparing, printing and distributing a Blue Sky
Memorandum (including related fees and expenses of counsel to the Remarketing
Agent); and (iv) all other costs and expenses incident to the performance of the
obligations of the Company hereunder.
4. FURTHER AGREEMENTS OF THE COMPANY. The Company agrees to use its
reasonable best efforts:
(a) To prepare any registration statement or prospectus, if required,
in connection with the Remarketing, in a form approved by the Remarketing
Agent and to file any such prospectus pursuant to the Securities Act within
the period required by the Rules and Regulations; to advise the Remarketing
Agent, promptly after it receives notice thereof, of the time when any
amendment to the Registration Statement has been filed or becomes
<PAGE>
10
effective or any supplement to the Prospectus or any amended Prospectus has
been filed and to furnish the Remarketing Agent with copies thereof; to
file promptly all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission pursuant
to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the
date of the Prospectus and for so long as the delivery of a prospectus is
required in connection with the offering or sale of the Remarketed
Securities; to advise the Remarketing Agent, promptly after it receives
notice thereof, of the issuance by the Commission of any stop order or of
any order preventing or suspending the use of the Prospectus, of the
suspension of the qualification of any shares of the Remarketed Preferred
Stock for offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose or of any request by the
Commission for the amending or supplementing of the Registration Statement
or the Prospectus or for additional information; and, in the event of the
issuance of any stop order or of any order preventing or suspending the use
of any Prospectus or suspending any such qualification, to use promptly its
best efforts to obtain its withdrawal.
(b) To furnish or make available promptly to the Remarketing Agent and
to counsel for the Remarketing Agent a signed copy of the Registration
Statement as originally filed with the Commission, and each amendment
thereto filed with the Commission, including all consents and exhibits
filed therewith.
(c) To deliver or make available promptly to the Remarketing Agent in
New York City a reasonable number of the following documents: (i) conformed
copies of the Registration Statement as originally filed with the
Commission and each amendment thereto, (ii) the Prospectus and any amended
or supplemented Prospectus, (iii) any document incorporated by reference in
the Prospectus (excluding exhibits thereto) and (iv) any Remarketing
Materials; and, if the delivery of a prospectus is required at any time in
connection with the Remarketing and if at such time any event shall have
occurred as a result of which the Prospectus as then amended or
supplemented would include any untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made when
such Prospectus is delivered, not misleading, or if for any other reason it
shall be necessary during such same period to amend or supplement the
Prospectus or to file under the Exchange Act any document incorporated by
reference in the Prospectus in order to comply with the Securities Act or
the Exchange Act, to notify the Remarketing Agent and, upon its request, to
file such document and to prepare and furnish without charge to the
Remarketing Agent and to any dealer in securities a reasonable number of
copies of an amended or supplemented Prospectus which will correct such
statement or omission or effect such compliance.
(d) To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the
Prospectus that may, in the judgment of the Company or the Remarketing
Agent, be required by the Securities Act or requested by the Commission.
<PAGE>
11
(e) Prior to filing with the Commission (i) any amendment to the
Registration Statement or supplement to the Prospectus or any document
incorporated by reference in the Prospectus or (ii) any Prospectus pursuant
to Rule 424 of the Rules and Regulations, to furnish or make available a
copy thereof to the Remarketing Agent and counsel for the Remarketing
Agent; and not to file any such amendment or supplement which shall be
disapproved by the Remarketing Agent promptly after reasonable notice
(approval thereof not to be unreasonably withheld).
(f) As soon as practicable after the Effective Date of the
Registration Statement to make generally available to the Company's
security holders and to deliver to the Remarketing Agent an earnings
statement of the Company and its 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 a period of five years following the Effective Date of the
Registration Statement, to deliver or make available to the Remarketing
Agent copies of all reports or other communications (financial or other)
furnished to shareholders of the Company, and deliver to the Remarketing
Agent, (i) as soon as they are available, copies of any reports and
financial statements furnished to or filed by the Company with the
Commission or any national securities exchange on which any of the
Remarketed Securities or any class of securities of the Company may be
listed; and (ii) such additional information concerning the business and
financial condition of the Company as the Remarketing Agent may from time
to time reasonably request (such financial statements to be on a
consolidated basis to the extent the accounts of the Company and its
subsidiaries are consolidated in reports furnished to the Company's
shareholders generally or to the Commission).
(h) Promptly from time to time to take such action as the Remarketing
Agent may reasonably request to qualify any shares of the Remarketed
Preferred Stock for offering and sale under the securities laws of such
jurisdictions as the Remarketing Agent may request and to comply with such
laws so as to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the distribution
of the Securities; provided that in connection therewith, the Company shall
not be required to qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction.
5. CONDITIONS TO THE REMARKETING AGENT'S OBLIGATIONS. The obligations of
the Remarketing Agent hereunder are subject to the accuracy, on and as of the
date when made, of the representations and warranties of the Company contained
herein, to the performance by the Company of its obligations hereunder and to
each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission;
no stop order suspending the effectiveness of the Registration Statement or
any part thereof shall have been issued and no proceeding for that purpose
shall have been initiated or
<PAGE>
12
threatened by the Commission; and any request of the Commission for
inclusion of additional information in the Registration Statement or the
Prospectus or otherwise shall have been complied with.
(b) The Remarketing Agent shall not have discovered and disclosed to
the Company on or prior to the Remarketing Date that the Prospectus, the
Registration Statement or the Remarketing Materials or any amendment or
supplement thereto contains any untrue statement of a fact which, in the
opinion of counsel for the Remarketing Agent, is material or omits to state
any fact which, in the opinion of such counsel, is material and is required
to be stated therein or is necessary to make the statements therein not
misleading.
(c) All corporate proceedings and other legal matters incident to the
authorization, form and validity of this Agreement, the Preferred Stock,
the PIES, the Remarketed Preferred Stock, the Prospectus, each Registration
Statement, the Remarketing Materials and all other legal matters relating
to this Agreement and the transactions contemplated hereby shall be
reasonably satisfactory in all material respects to counsel for the
Remarketing Agent, and the Company shall have furnished to such counsel all
documents and information that they may reasonably request to enable them
to pass upon such matters.
(d) Counsel to the Company shall have furnished to the Remarketing
Agent its written opinion, as counsel to the Company, addressed to the
Remarketing Agent and dated the Remarketing Date, in form and substance
satisfactory to the Remarketing Agent, to the effect that:
(i) The Company and each Significant Subsidiary have been duly
incorporated and are validly existing as corporations in good standing
under the laws of their respective jurisdictions of incorporation,
with respective power and authority (corporate and other) to own their
respective properties and conduct their businesses as described in the
Prospectus.
(ii) The Company has an authorized capitalization as set forth in
the Prospectus and in any Remarketing Materials, all of the issued
capital shares of the Company and each Significant Subsidiary of the
Company have been duly and validly authorized and issued and are fully
paid and non-assessable; and all of the issued shares of capital stock
of each Significant Subsidiary (except as set forth or incorporated by
reference in the Registration Statement) are owned directly or
indirectly by the Company, free and clear of all liens, encumbrances,
equities or claims.
(iii) The Company and each Significant Subsidiary has been duly
qualified as a foreign corporation for the transaction of business and
is in good standing under the laws of each other jurisdiction in which
it owns or leases properties, or conducts any business, so as to
require such qualification, or is
<PAGE>
13
subject to no material liability or disability by reason of the
failure to be so qualified in any such jurisdiction.
(iv) There are no preemptive or other rights to subscribe for or
to purchase, nor any restriction upon the voting or transfer of the
Preferred Stock or the Remarketed Preferred Stock pursuant to the
Company's charter or by-laws or any agreement or other instrument
known to such counsel.
(v) To the best of such counsel's knowledge and other than as set
forth in the Prospectus or in any Remarketing Materials, there are no
legal or governmental proceedings pending to which the Company or any
of its subsidiaries is a party or to which any property or asset of
the Company or any of its subsidiaries is subject which could
reasonably be expected individually or in the aggregate to have a
material adverse effect on the consolidated financial position,
shareholders' equity or results of operations of the Company and its
subsidiaries; and, to the best of such counsel's knowledge and other
than as set forth in the Prospectus, no such proceedings are
threatened or contemplated by governmental authorities or threatened
by others.
(vi) The Registration Statement was declared effective under the
Securities Act, as of the date and time specified in such opinion, the
Prospectus was filed with the Commission pursuant to the subparagraph
of Rule 424(b) of the Rules and Regulations specified in such opinion
on the date specified therein and, to the knowledge of such counsel,
no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceeding for that purpose is
pending or threatened by the Commission.
(vii) The Registration Statement, as of its Effective Date, and
the Prospectus, as of its date, and any further amendments or
supplements thereto, as of their respective dates, made by the Company
prior to the Purchase Contract Settlement Date (other than the
financial statements, related schedules and other financial data
contained therein, as to which such counsel need express no opinion)
complied as to form in all material respects with the requirements of
the Securities Act and the Rules and Regulations.
(viii) The statements contained in the Prospectus under the
captions "Description of the PIES", "Description of the Purchase
Contracts", "Certain Provisions of the Purchase Contracts, the
Purchase Contract Agreement and the Pledge Agreement" and "Description
of the Preferred Stock" insofar as they purport to constitute
summaries of certain terms of documents referred to therein,
constitute accurate summaries of the terms of such documents in all
material respects.
(ix) The shares of Preferred Stock have been duly authorized
<PAGE>
14
by the Company and were duly and validly issued, fully paid and
non-assessable.
(x) This Agreement has been duly authorized, executed and
delivered by the Company.
(xi) The Purchase Contract Agreement has been duly authorized by
the Company and, when duly executed by the proper officers of the
Company (assuming due execution and delivery by the Purchase Contract
Agent) and delivered by the Company, constitutes a valid and binding
agreement of the Company enforceable against the Company in accordance
with its terms, except as the enforcement thereof may be limited by
the Bankruptcy Exceptions and an implied covenant of good faith and
fair dealing.
(xii) The Pledge Agreement has been duly authorized by the
Company and, when duly executed by the proper officers of the Company
(assuming due execution and delivery by the Purchase Contract Agent,
the Securities Intermediary and the Collateral Agent) and delivered by
the Company, constitutes a valid and binding agreement of the Company
enforceable against the Company in accordance with its terms, except
as the enforcement thereof may be limited by the Bankruptcy Exceptions
and an implied covenant of good faith and fair dealing.
(xiii) The Transactions will not conflict with or result in a
breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument known to such counsel
to which the Company or any of the Significant Subsidiaries is a party
or by which the Company or any of the Significant Subsidiaries is
bound or to which any of the properties or assets of the Company or
any of the Significant Subsidiaries is subject, nor will such actions
result in any violation of the provisions of the charter or by-laws of
the Company or any of the Significant Subsidiaries or any statute,
rule or regulation or any order known to such counsel of any court or
governmental agency or body having jurisdiction over the Company or
any of the Significant Subsidiaries or any of their properties or
assets; and, except for the registration of the Preferred Stock and
such consents, approvals, authorizations, registrations or
qualifications as may be required under the Exchange Act and
applicable state securities laws, no consent, approval, authorization
or order of, or filing or registration with, any such court or
governmental agency or body is required for the Transactions.
(xiv) Neither the Company nor any of its subsidiaries is an
"investment company" or an entity "controlled" by an "investment
company" as such terms are defined in the 1940 Act.
<PAGE>
15
(xv) Based upon current law and the assumptions stated or
referred to therein, the statements set forth in the Prospectus or in
the Remarketing Materials under the caption "United States Federal
Income Tax Consequences" insofar as they purport to constitute
summaries of matters of United States federal tax laws and regulations
or legal conclusions with respect thereto, constitute accurate
summaries of the matters described therein in all material respects.
In rendering such opinion, such counsel may (i) state that its opinion is
limited to matters governed by the Federal laws of the United States of America
and the laws of the State of New York and the General Corporation Law of the
State of Delaware. Such counsel shall also advise the Remarketing Agent that
although such counsel is not passing upon and assumes no responsibility or
liability for the accuracy, completeness or fairness of the statements contained
in the documents incorporated by reference in the Prospectus or any further
amendment or supplement thereto made by the Company prior to such Remarketing
Date, they have no reason to believe that any of such documents (other than the
financial statements and related schedules therein, as to which such counsel
need express no opinion), when such documents became effective or were filed
with the Commission, as the case may be, contained, in the case of a
registration statement which became effective under the Securities Act, an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein necessary to make the statements therein not misleading,
or, in the case of other documents which were filed under the Securities Act or
the Exchange Act with the Commission, an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made when such
documents were so filed, not misleading. Such counsel shall also advise the
Remarketing Agent that although such counsel is not passing upon and, except as
set forth in clauses (viii) and (xv) above, assumes no responsibility or
liability for the accuracy, completeness or fairness of the statements contained
in the Registration Statement, the Prospectus and the Remarketing Materials and
any further amendments and supplements thereto made by the Company prior to such
date, they have no reason to believe that, as of its effective date, the
Registration Statement or any further amendment thereto made by the Company
prior to such date (other than the financial statements and related schedules
therein, as to which such counsel need express no opinion) contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading or
that, as of its date, the Prospectus and the Remarketing Materials or any
further amendment or supplement thereto made by the Company prior to such
Remarketing Date (other than the financial statements and related schedules
therein, as to which such counsel need express no opinion) contained an untrue
statement of a material fact or omitted to state a material fact necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading or that, as of such Remarketing Date, either the Registra-
tion Statement, the Prospectus or the Remarketing Materials or any further
amendment or supplement thereto made by the Company prior to such Remarketing
Date (other than the financial statements and related schedules therein, as to
which such counsel need express no opinion) contains an untrue statement of a
material fact or omits to state a material fact
<PAGE>
16
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading; and they do not know of any amendment to
the Registration Statement required to be filed or of any contracts or other
documents of a character required to be filed as an exhibit to the Registration
Statement or required to be incorporated by reference into the Prospectus or the
Remarketing Materials or required to be described in the Registration Statement,
the Prospectus or the Remarketing Materials which were not filed or incorporated
by reference or described as required.
(e) Counsel to the Purchase Contract Agent shall have furnished to the
Remarketing Agent its written opinion, as counsel to the Purchase Contract
Agent, addressed to the Remarketing Agent and dated the Remarketing Date,
in form and substance satisfactory to the Remarketing Agent, to the effect
that:
(i) The Purchase Contract Agent is duly incorporated and is
validly existing as a banking corporation in good standing under the
laws of the jurisdiction of its incorporation with all necessary power
and authority to execute, deliver and perform its obligations under
the Purchase Contract Agreement and the Pledge Agreement.
(ii) The execution, delivery and performance by the Purchase
Contract Agent of the Purchase Contract Agreement and the Pledge
Agreement and the authentication and delivery of the PIES have been
duly authorized by all necessary corporate action on the part of the
Purchase Contract Agent. The Purchase Contract Agreement and the
Pledge Agreement have been duly executed and delivered by the Purchase
Contract Agent and constitute the valid and binding agreements of the
Purchase Contract Agent, enforceable against the Purchase Contract
Agent in accordance with their terms, except as the enforcement
thereof may be limited by the Bankruptcy Exceptions and an implied
covenant of good faith and fair dealing.
(iii) The execution, delivery and performance of the Purchase
Contract Agreement and the Pledge Agreement by the Purchase Contract
Agent does not conflict with or constitute a breach of the charter or
by-laws of the Purchase Contract Agent.
(iv) No consent, approval or authorization of, or registration
with or notice to, any state or federal governmental authority or
agency is required for the execution, delivery or performance by the
Purchase Contract Agent of the Purchase Contract Agreement and the
Pledge Agreement.
(f) Counsel to the Collateral Agent shall have furnished to the
Remarketing Agent its written opinion, as counsel to the Collateral Agent,
and addressed to the Remarketing Agent and dated the Remarketing Date, in
form and substance satisfactory to the Remarketing Agent, to the effect
that:
<PAGE>
17
(i) The Collateral Agent is duly incorporated and is validly
existing as a banking corporation in good standing under the laws of
the jurisdiction of incorporation with all necessary power and
authority to execute, deliver and perform its obligations under the
Pledge Agreement.
(ii) The execution, delivery and performance by the Collateral
Agent of the Pledge Agreement in its capacity as Collateral Agent and
securities intermediary have been duly authorized by all necessary
corporate action on the part of the Collateral Agent. The Pledge
Agreement has been duly executed and delivered by the Collateral Agent
and constitutes the valid and binding agreement of the Collateral
Agent, enforceable against the Collateral Agent in accordance with its
terms, except as the enforcement thereof may be limited by the
Bankruptcy Exception and an implied covenant of good faith and fair
dealing.
(iii) The execution, delivery and performance of the Pledge
Agreement by the Collateral Agent in its capacity as Collateral Agent
and securities intermediary does not conflict with or constitute a
breach of the charter or by-laws of the Collateral Agent.
(iv) No consent, approval or authorization of, or registration
with or notice to, any state or Federal governmental authority or
agency is required for the execution, delivery or performance by the
Collateral Agent of the Pledge Agreement.
(g) On the Remarketing Date, the Company shall have furnished to the
Remarketing Agent a letter addressed to the Remarketing Agent and dated
such date, in form and substance satisfactory to the Remarketing Agent, of
Deloitte & Touche LLP, or such other firm of nationally recognized
independent public accountants satisfactory to the Remarketing Agent,
containing statements and information of the type ordinarily included in
accountants' "comfort letters" with respect to certain financial
information contained in the Prospectus and in the Remarketing Materials.
(h) The Company shall have furnished to the Remarketing Agent a
certificate, dated the Remarketing Date, of (A) the Company's Chairman of
the Board and President, or its Executive Vice President and (B) its chief
financial officer, stating that:
(i) The representations, warranties and agreements of the Company
in Section 2 are true and correct as of the Remarketing Date; the
Company has complied with all its agreements contained herein; and the
conditions contained in Section 5(a) have been fulfilled;
(ii) (A) Neither the Company, the Bank nor any of the Company's
other subsidiaries has sustained since the date of the latest audited
financial statements included or incorporated by reference in the
Prospectus or in the Remarketing Materials any loss or interference
with its business from fire,
<PAGE>
18
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree, which could, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect, otherwise
than as set forth or contemplated in the Prospectus or in the
Remarketing Materials and (B) since the respective dates as of which
information is given in the Prospectus or in the Remarketing
Materials, there has not been any material change in the consolidated
share capital or long-term debt of the Company and its subsidiaries
(including, without limitation, the Bank) or the consolidated share
capital or long-term debt of any Significant Subsidiary (including,
without limitation, the Bank) or any change, or any development
involving a prospective change, in or affecting the general affairs,
management, financial position, shareholders' equity or results of
operations of the Company and its subsidiaries, including without
limitation the Bank (taken as a whole), otherwise than as set forth or
contemplated in the Prospectus or the Remarketing Materials; and
(iii) They have carefully examined the Registration Statement,
the Prospectus and the Remarketing Materials and, in their opinion (A)
the Registration Statement, as of its Effective Date, and the
Prospectus and the Remarketing Materials, as of their respective
dates, did not include any untrue statement of a material fact and did
not omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and (B) since
such dates, no event has occurred which should have been set forth in
a supplement or amendment to the Registration Statement, the
Prospectus or the Remarketing Materials.
(i) There shall not have been, since the date hereof or since the
respective dates as of which information is given in the Final Prospectus,
any material adverse change in the condition, financial or otherwise, or in
the consolidated financial position, stockholders' equity, results of
operations, business or prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course
of business.
(j) Without the prior written consent of the Remarketing Agent, the
Certificate of Designations shall not have been amended in any manner, or
otherwise contain any provision contained therein as of the date hereof
that, in the opinion of the Remarketing Agent, materially changes the
nature of the Remarketed Preferred Stock or the Remarketing Procedures.
(k) Subsequent to the execution and delivery of this Agreement, (i) no
downgrading shall have occurred in the rating accorded the Preferred Stock
or any of the Company's or any Significant Subsidiary's (including, without
limitation, the Bank) debt securities by any "nationally recognized
statistical rating organization", as that term is defined by the Commission
for purposes of Rule 436(g)(2) under the Securities Act and (ii no such
organization shall have publicly announced that it has under surveillance
or review, with possible negative implications, its rating of any of the
Preferred Stock or any
<PAGE>
19
of the Company's or any Significant Subsidiary's (including, without
limitation, the Bank) debt securities.
(l) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange or the American Stock Exchange or
in the over-the-counter market, or trading in any securities of the Company
on any exchange or in the over-the-counter market, shall have been
suspended or minimum prices shall have been established on any such
exchange or such market by the Commission, by such exchange or by any other
regulatory body or governmental authority having jurisdiction, (ii) a
banking moratorium shall have been declared by Federal or state
authorities, (iii) the United States shall have become engaged in
hostilities, there shall have been an escalation in hostilities involving
the United States or there shall have been a declaration of a national
emergency or war by the United States or (iv) there shall have occurred
such a material adverse change in general economic, political or financial
conditions (or the effect of international conditions on the financial
markets in the United States shall be such) as to make it, in the judgment
of the Remarketing Agent, impracticable or inadvisable to proceed with the
Remarketing on the terms and in the manner contemplated in the Prospectus
or in the Remarketing Materials.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Remarketing Agent.
6. INDEMNIFICATION AND CONTRIBUTION. (a) The Company shall indemnify and
hold harmless the Remarketing Agent, its officers and employees and each person,
if any, who controls the Remarketing Agent within the meaning of the Securities
Act, from and against any loss, claim, damage or liability, joint or several, or
any action in respect thereof (including, but not limited to, any loss, claim,
damage, liability or action relating to purchases and sales of the Remarketed
Preferred Stock), to which the Remarketing Agent or that officer, employee or
controlling person may become subject, under the Securities Act or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or is
based upon, (i) any untrue statement or alleged untrue statement of a material
fact contained (A) in any Preliminary Prospectus, the Registration Statement,
the Prospectus or the Remarketing Materials or in any amendment or supplement
thereto, or (B) in any blue sky application or other document prepared or
executed by the Company (or based upon any written information furnished by the
Company) specifically for the purpose of qualifying any or all of the Remarketed
Preferred Stock under the securities laws of any state or other jurisdiction
(any such application, document or information being hereinafter called a "Blue
Sky Application"), or (ii) the omission or alleged omission to state in any
Preliminary Prospectus, the Registration Statement, the Prospectus or the
Remarketing Materials or in any amendment or supplement thereto, or in any Blue
Sky Application, any material fact required to be stated therein or necessary to
make the statements therein not misleading and shall reimburse the Remarketing
Agent and each such officer, employee and controlling person promptly upon
demand for any legal or other expenses reasonably incurred by the Remarketing
Agent or that officer, employee or controlling person in connection with
<PAGE>
20
investigating or defending or preparing to defend against any such loss,
claim, damage, liability or action as such expenses are incurred; provided,
however, that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage, liability or action arises out of, or
is based upon, any untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, the Registration Statement,
the Prospectus or the Remarketing Materials or in any such amendment or
supplement, or in any Blue Sky Application in reliance upon and in conformity
with the written information furnished to the Company by or on behalf of the
Remarketing Agent specifically for inclusion therein and described in a letter
from the Remarketing Agent to the Company and provided further, that as to any
Preliminary Prospectus this indemnity agreement shall not inure to the benefit
of the Remarketing Agent, its officers or employees or any person controlling
the Remarketing Agent on account of any loss, claim, damage, liability or action
arising from the sale of the Remarketed Preferred Stock to any person by the
Remarketing Agent if the Remarketing Agent failed to send or give a copy of the
Prospectus, as the same may be amended or supplemented, to that person within
the time required by the Securities Act, and the untrue statement or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact in such Preliminary Prospectus was corrected in the Prospectus,
unless such failure resulted from non-compliance by the Company with Section
4(c). For purposes of the last proviso to the immediately preceding sentence,
the term "Prospectus" shall not be deemed to include the documents incorporated
therein by reference, and the Remarketing Agent shall not be obligated to send
or give any supplement or amendment to any document incorporated by reference in
any Preliminary Prospectus or the Prospectus to any person other than a person
to whom the Remarketing Agent had delivered such incorporated document or
documents in response to a written request therefor. The foregoing indemnity
agreement is in addition to any liability which the Company may otherwise have
to the Remarketing Agent or to any officer, employee or controlling person of
the Remarketing Agent.
(b) The Remarketing Agent shall indemnify and hold harmless the Company,
its officers and employees, its directors and each person, if any, who controls
the Company within the meaning of the Securities Act, from and against any loss,
claim, damage or liability, joint or several, or any action in respect thereof,
to which the Company, any such director, officer or employee or any such
controlling person may become subject, under the Securities Act or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or is
based upon, (i) any untrue statement or alleged untrue statement of a material
fact contained (A) in any Preliminary Prospectus, the Registration Statement,
the Prospectus or the Remarketing Materials or in any amendment or supplement
thereto or (B) in any Blue Sky Application or (ii) the omission or alleged
omission to state in any Preliminary Prospectus, the Registration Statement, the
Prospectus or the Remarketing Materials or in any amendment or supplement
thereto, or in any Blue Sky Application, any material fact required to be stated
therein or necessary to make the statements therein not misleading, but in each
case only to the extent that the untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity with
the written information furnished to the Company by or on behalf of the
Remarketing Agent specifically for inclusion therein and described in a letter
from the Remarketing Agent to the Company and shall reimburse the Company and
any such director, officer or employee or such controlling person for any legal
or other expenses reasonably incurred by the Company or any such director or
officer or any such controlling person in
<PAGE>
21
connection with investigating or defending or preparing to defend against
any such loss, claim, damage, liability or action as such expenses are
incurred. The foregoing indemnity agreement is in addition to any liability
which the Remarketing Agent may otherwise have to the Company or any such
director or officer or any such controlling person.
(c) Promptly after receipt by an indemnified party under this Section 6 of
notice of any claim or the commencement of any action, the indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under this Section 6, notify the indemnifying party in writing of the
claim or the commencement of that action; provided, however, that the failure to
notify the indemnifying party shall not relieve it from any liability which it
may have under this Section 6 except to the extent it has been materially
prejudiced by such failure and, provided further, that the failure to notify the
indemnifying party shall not relieve it from any liability which it may have to
an indemnified party otherwise than under this Section 6. If any such claim or
action shall be brought against an indemnified party, and it shall notify the
indemnifying party thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 6 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that
the Remarketing Agent shall have the right to employ counsel to represent
jointly the Remarketing Agent and its officers, employees and controlling
persons who may be subject to liability arising out of any claim in respect of
which indemnity may be sought by the Remarketing Agent against the Company under
this Section 6 if, in the reasonable judgment of the Remarketing Agent, it is
advisable for the Remarketing Agent and those officers, employees and
controlling persons to be jointly represented by separate counsel, and in that
event the fees and expenses of such separate counsel shall be paid by the
Company. No indemnifying party shall (i) without the prior written consent of
the indemnified parties (which consent shall not be unreasonably withheld),
settle or compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding or (ii) be liable for any settlement of any such action
effected without its written consent (which consent shall not be unreasonably
withheld), but if settled with its written consent or if there be a final
judgment of the plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless any indemnified party from and against any loss or
liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 6 shall for any
reason be unavailable to or insufficient to hold harmless an indemnified party
under Section 6(a) or 6(b) in respect of any loss, claim, damage or liability,
or any action in respect thereof, referred to therein, then each indemnifying
party shall, in lieu of indemnifying such indemnified party, contribute to the
amount paid or payable by such indemnified party as a result of such loss,
claim, damage or
<PAGE>
22
liability, or action in respect thereof, (i) in such proportion as shall be
appropriate to reflect the relative benefits received by the Company on the one
hand and the Remarketing Agent on the other hand from the Remarketing or (ii)
if the allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Company on the one hand and the Remarketing Agent on the other with respect to
the statements or omissions which resulted in such loss, claim, damage or
liability, or action in respect thereof, as well as any other relevant
equitable considerations. The relative benefits received by the Company on
the one hand and the Remarketing Agent on the other with respect to
such offering shall be deemed to be in the same proportion as the total
liquidation preference of the Remarketed Securities less the fee paid
to the Remarketing Agent pursuant to Section 3(a) of this Agreement, on the one
hand, and the total fees received by the Remarketing Agent pursuant to such
Section 3(a), on the other hand, bear to the total liquidation preference of the
Remarketed Preferred Stock. The relative fault shall be determined by reference
to whether the untrue or alleged untrue statement of a material fact or omission
or alleged omission to state a material fact relates to information supplied by
the Company on the one hand or the Remarketing Agent on the other hand, the
intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
the Remarketing Agent agree that it would not be just and equitable if
contributions pursuant to this Section 6(d) were to be determined by pro rata
allocation or by any other method of allocation which does not take into account
the equitable considerations referred to herein. The amount paid or payable by
an indemnified party as a result of the loss, claim, damage or liability, or
action in respect thereof, referred to above in this Section 6(d) shall be
deemed to include, for purposes of this Section 6(d), any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 6(d), the Remarketing Agent shall not be required to
contribute any amount in excess of the amount by which the fees received by it
under Section 3 exceed the amount of any damages which the Remarketing Agent has
otherwise paid or become liable to pay by reason of any untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
7. RESIGNATION AND REMOVAL OF THE REMARKETING AGENT. The Remarketing Agent
may resign and be discharged from its duties and obligations hereunder, and the
Company may remove the Remarketing Agent, by giving 60 days' prior written
notice, in the case of a resignation, to the Company and the Depositary and, in
the case of a removal, the removed Remarketing Agent and the Depositary;
provided, however, that (i) the Company may not remove the Remarketing Agent
unless (A) the Remarketing Agent becomes involved as a debtor in a bankruptcy,
insolvency or similar proceeding, (B) the Remarketing Agent shall not be among
the 15 underwriters with the largest volume underwritten in dollars, on a lead
or co-managed basis, of U.S. domestic debt securities during the twelve-month
period ended as of the last calendar quarter preceding the Remarketing Date or
(C) the Remarketing Agent shall be subject to one or more legal restrictions
preventing the performance of its obligations hereunder and (ii) no such
resignation nor any such removal shall become effective until the Company shall
have appointed at least one nationally recognized broker-dealer as successor
Remarketing Agent
<PAGE>
23
and such successor Remarketing Agent shall have entered into a remarketing
agreement with the Company in which it shall have agreed to conduct the
Remarketing in accordance with the Remarketing Procedures. In any such case,
the Company will use its reasonable efforts to appoint a successor Remarketing
Agent and enter into such a remarketing agreement with such person as soon as
reasonably practicable. The provisions of Sections 3 and 6 shall survive the
resignation or removal of any Remarketing Agent pursuant to
this Agreement.
8. DEALING IN THE REMARKETED PREFERRED STOCK. The Remarketing Agent, when
acting as a Remarketing Agent or in its individual or any other capacity, may,
to the extent permitted by law, buy, sell, hold and deal in any shares of the
Remarketed Preferred Stock. The Remarketing Agent may exercise any vote or join
in any action which any beneficial owner of shares of Remarketed Preferred Stock
may be entitled to exercise or take pursuant to the Certificate of Designations
with like effect as if it did not act in any capacity hereunder. The Remarketing
Agent, in its individual capacity, either as principal or agent, may also engage
in or have an interest in any financial or other transaction with the Company as
freely as if it did not act in any capacity hereunder.
9. REMARKETING AGENT'S PERFORMANCE; DUTY OF CARE. The duties and
obligations of the Remarketing Agent shall be determined solely by the express
provisions of this Agreement and the Certificate of Designations. No implied
covenants or obligations of or against the Remarketing Agent shall be read into
this Agreement or the Certificate of Designations. In the absence of bad faith
on the part of the Remarketing Agent, the Remarketing Agent may conclusively
rely upon any document furnished to it, which purports to conform to the
requirements of this Agreement or the Certificate of Designations as to the
truth of the statements expressed in any of such documents. The Remarketing
Agent shall be protected in acting upon any document or communication reasonably
believed by it to have been signed, presented or made by the proper party or
parties. The Remarketing Agent, acting under this Agreement, shall incur no
liability to the Company or to any holder of Remarketed Preferred Stock in its
individual capacity or as Remarketing Agent for any action or failure to act, on
its part in connection with a Remarketing or otherwise, except if such liability
is judicially determined to have resulted from the gross negligence or willful
misconduct on its part.
10. TERMINATION. This Agreement shall terminate as to the Remarketing Agent
on the effective date of the resignation or removal of the Remarketing Agent
pursuant to Section 7. In addition, the obligations of the Remarketing Agent
hereunder may be terminated by it by notice given to the Company prior to 10:00
a.m., New York City time, on the Remarketing Date if, prior to that time, any of
the events described in Sections 5(i), (j), (k) or (l) shall have occurred.
11. NOTICES. All statements, requests, notices and agreements hereunder
shall be in writing, and:
(a) if to the Remarketing Agent, shall be delivered or sent by mail,
telex or facsimile transmission to Lehman Brothers Inc., Three World
Financial Center, New York, New York 10285, Attention: Syndicate Department
(Facsimile: (212) 528-8822);
<PAGE>
24
(b) if to the Company, shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Company set forth in the
Prospectus, Attention: Jonathon K. Heffron, Esq. (Facsimile: 713-543-7744).
Any such statements, requests, notices or agreements shall take effect at the
time of receipt thereof.
12. PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement shall inure to
the benefit of and be binding upon the Remarketing Agent, the Company and its
successors. This Agreement and the terms and provisions hereof are for the sole
benefit of only those persons, except that (x) the representations, warranties,
indemnities and agreements of the Company contained in this Agreement shall also
be deemed to be for the benefit of the officers and employees of the Remarketing
Agent and the person or persons, if any, who control the Remarketing Agent
within the meaning of Section 15 of the Securities Act and (y) the indemnity
agreement of the Remarketing Agent contained in Section 6(b) of this Agreement
shall be deemed to be for the benefit of directors, officers and employees of
the Company and any person controlling the Company within the meaning of Section
15 of the Securities Act. Nothing in this Agreement is intended or shall be
construed to give any person, other than the persons referred to herein, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision contained herein.
13. SURVIVAL. The respective indemnities, representations, warranties and
agreements of the Company and the Remarketing Agent contained in this Agreement
or made by or on behalf of them, respectively, pursuant to this Agreement, shall
survive the Remarketing and shall remain in full force and effect, regardless of
any investigation made by or on behalf of any of them or any person controlling
any of them.
14. DEFINITION OF THE TERMS "BUSINESS DAY" AND "SUBSIDIARY". For purposes
of this Agreement, (a) "business day" means any day on which the New York Stock
Exchange, Inc. is open for trading and (b) "subsidiary" has the meaning set
forth in Rule 405 under the Securities Act.
15. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
16. COUNTERPARTS. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
17. 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.
<PAGE>
25
If the foregoing correctly sets forth the agreement between the Company and
the Remarketing Agent, please indicate your acceptance in the space provided for
that purpose below.
Very truly yours,
BANK UNITED CORP., a Delaware corporation,
By:/s/ Barry C. Burkholder
--------------------------
Name: Barry C. Burkholder
Accepted:
LEHMAN BROTHERS INC.
By:/s/ Mark H. Burton
---------------------
AUTHORIZED REPRESENTATIVE
Managing Director
Exhibit 5.1
[LETTERHEAD OF WACHTELL, LIPTON, ROSEN & KATZ]
August 10, 1999
Bank United Corp.
3200 Southwest Freeway
Suite 2600
Houston, Texas 77027
Ladies and Gentlemen:
Reference is made to the Registration Statements on Form S-3 (File
Nos. 333-75937 and 333-83797), as amended, filed with the Securities and
Exchange Commission (the "Registration Statement") in connection with the
registration under the Securities Act of 1933, as amended (the "Securities Act")
of up to $830,000,000 of Preferred Stock, Class A Common Stock, Depositary
Shares, Junior Subordinated Debt Securities, Guarantee, Stock Purchase Contracts
and Stock Purchase Units of Bank United Corp. (the "Company"), and Trust
Preferred Securities of Bank United Capital Trust (the foregoing securities
being collectively referred to herein as the "Securities"). You have requested
our opinion with respect to the following matters.
In connection with the delivery of this opinion, we have examined
originals or copies of the Restated Certificate of Incorporation and the By-Laws
of the Company, the Registration Statement and the exhibits thereto, certain
resolutions adopted or to be adopted by the Board of Directors, the form of
certificates representing the securities offered and such other records,
agreements, instruments, certificates and other documents of public officials,
the Company and its officers and representatives, and have made such inquiries
of the Company and its officers and representatives, as we have deemed necessary
or appropriate in connection with
<PAGE>
Bank United Corp.
August 10, 1999
Page 2
the opinions set forth herein. We are familiar with the proceedings heretofore
taken, and with the additional proceedings proposed to be taken, by the Company
in connection with the authorization, registration, issuance and sale of the
Securities. With respect to certain factual matters, we have relied upon
representations from, or certificates of, officers of the Company. In making
such examination and rendering the opinions set forth below, we have assumed
without verification the genuineness of all signatures, the authenticity of all
documents submitted to us as originals, the authenticity of the originals of
such documents submitted to us as certified copies, the conformity to originals
of all documents submitted to us as copies, the authenticity of the originals of
such later documents, that all documents submitted to us as certified copies are
true and correct copies of such originals and the legal capacity of all
individuals executing such documents.
Based on such examination and review, and subject to the foregoing, we
are of the opinion that, when any applicable state securities or Blue Sky laws
have been complied with, and upon issuance, delivery and payment therefor in the
manner contemplated by the Registration Statement, the Securities will be
validly issued, fully paid and non-assessable.
We are members of the Bar of the State of New York, and we have not
considered, and we express no opinion as to, the laws of any jurisdiction other
than the laws of the United States of America, the State of New York and the
General Corporation Law of the State of Delaware.
We consent to the inclusion of this opinion as an exhibit to the
Registration Statement and to the reference to our firm in the prospectus that
is a part of the Registration Statement, and in any supplements thereto. In
giving such consent, we do not hereby admit that we are in the category of
persons whose consent is required under Section 7 of the Securities Act.
Very truly yours,
/s/ Wachtell, Lipton, Rosen & Katz
