Appears in 1 contract

Samples: Underwriting Agreement (First Financial Holdings Inc /De/)

Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof. If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the ~~Underwriters, the Company, the Bank~~ Underwriters and the ~~Selling Shareholder~~ Company in accordance with its terms. Very truly yours, ~~FIRST FINANCIAL HOLDINGS~~IDENIX PHARMACEUTICALS, INC. ~~By:~~ By /s/ Xxxxxx X. ~~Xxxxxxxxxx~~ Xxxxxx, Xx. Name: Xxxxxx X. ~~Xxxxxxxxxx~~ Xxxxxx, Xx. Title: EVP and Chief Financial Officer FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF CHARLESTON By: /s/ Xxxxxx X. Xxxxxxxxxx Name: Xxxxxx X. Xxxxxxxxxx Title: EVP and Chief Financial Officer UNITED STATES DEPARTMENT OF THE TREASURY, as Selling Shareholder By: /s/ Xxxxxx Xxxxx Name: Xxxxxx Xxxxx Title: Chief Investment Officer CFO CONFIRMED AND ACCEPTED, as of the date first above written: ~~XXXXXXX LYNCH, PIERCE,~~ XXXXXX ~~& XXXXX By~~XXXXXX PARTNERS LLC By Name: ~~XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX By~~Title: ~~/s/ Xxxxxxx X. Xxxxx~~ For itself and as Representative of the other Underwriters named in Schedule A hereto. If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the Underwriters and the Company in accordance with its terms. Very truly yours, IDENIX PHARMACEUTICALS, INC. By Name: Title: CONFIRMED AND ACCEPTED, as of the date first above written: XXXXXX XXXXXX PARTNERS LLC By /s/ Xxxxxxx XxXxxx Name: Xxxxxxx XxXxxx Title: Senior Managing Director For itself and as Representative of the other Underwriters named in Schedule A hereto. Xxxxxx Xxxxxx Partners LLC 2,584,270 Leerink Xxxxx LLC 1,938,201 Xxxxxxx Xxxxx & Company, L.L.C. 1,938,201 Total. 6,460,672 1. The number of Securities offered to the public shall be 6,460,672 and the offering price per share to the public for the Securities shall be $4.35. 2. The purchase price per share for the Securities to be paid by the several Underwriters shall be $~~860.4073~~4.089, being an amount equal to the ~~initial~~ public offering price set forth ~~in Schedule B~~ above less $~~13.1027~~ 0.261 per share. ~~Name~~ Xxxx-Xxxxxx Sommadossi Xxxxxx X. Xxxxxx, Xx. Xxxxxxx X. Xxxxxx, M.D. Xxxx X. Xxxxxxxxxxx Xxxx X. Xxxxxxx Xxxxx X. Xxxxxxxxx, Ph.D. Xxxxxxx X. Xxxxx Xxxxx X. Xxxxxxxxx, Ph.D. Xxxxxx X. Xxxxxxx Xxxxxx Xxxxxx Xxxxxx Xxxxxxx-Xxxxxx, Ph.D. Xxxxxx Xxxxxx, Ph.D. Xxxxxxx Xxxxxxxxx Xxxxx X. Xxxxxx None [ ], 2010 Xxxxxx Xxxxxx Partners LLC Xxx Xxxxxxxxxx Xxxxxx, Suite 3700 San Francisco, CA 94104 Ladies and Gentlemen: The undersigned understands that Xxxxxx Xxxxxx Partners LLC (“Xxxxxx Xxxxxx”) proposes to enter into an Agreement (the “Agreement”) with Idenix Pharmaceuticals, Inc., a Delaware corporation (the “Company”), providing for an offering of ~~Underwriter Number~~ shares of ~~Securities Xxxxxxx Lynch~~the common stock, ~~Pierce~~$0.001 par value per share, ~~Xxxxxx & Xxxxx Incorporated 60,125 Xxxxxx Xxxxxxxx, LLC 1,625 XX Xxxx Capital, LLC 1,625 TBC Securities, LLC 1,625 Total 65,000 The initial public offering price per share for~~ of the Company (the “Common Stock”) registered under the Securities Act of 1933, as amended (the “Offering”). To induce Xxxxxx Xxxxxx to continue its efforts in connection with the Offering, the undersigned hereby agrees that, without the prior written consent of Xxxxxx Xxxxxx, it will not, during the period commencing on the date hereof and ending 60 days after the date of the final prospectus supplement relating to the Offering (the “Prospectus”), (1) offer, 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, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock or (2) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise. The foregoing sentence shall not apply to (a) transactions relating to shares of Common Stock or other securities acquired in open market transactions after the completion of the Offering, provided that no filing under Section 16(a) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), shall be ~~$873.51. The number~~ required or shall be voluntarily made in connection with subsequent sales of ~~Securities~~ Common Stock or other securities acquired in such open market transactions, (b) transfers of shares of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock as a bona fide gift, (c) transfers of shares of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock to the immediate family of the undersigned, to a trust the beneficiaries of which are exclusively the undersigned and/or a member or members of the immediate family of the undersigned or to any corporation, partnership, limited liability company or other entity all of the beneficial ownership interests of which are held exclusively by the undersigned and/or a member or members of the immediate family of the undersigned, (d) transfers of shares of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock upon death by will or intestate succession, (e) the exercise of any option to purchase shares of Common Stock, provided that the underlying Common Stock continues to be ~~sold~~ subject to the restrictions set forth above, (f) transactions pursuant to any trading plan established pursuant to Rule 10b5-1 of the Exchange Act that has been entered into by the ~~Selling Shareholder shall be 65,000. The settlement~~ undersigned prior to the date ~~/ closing time shall be April 3~~of this agreement, ~~2012. 1. NONE~~ or (g) the entry into any trading plan established pursuant to Rule 10b5-1 of the Exchange Act, provided that no sales or other dispositions may occur under such plan until the expiration of the restricted period referred to in the foregoing sentence; provided further that in the case of any transfer or distribution pursuant to clause (b), (c) or (d), (i) ~~Each~~ each donee or distributee shall sign and deliver a lock-up letter substantially in the form of ~~the Registration Statement~~ this letter and any post-effective amendment thereto has been declared effective by the Commission under the 1933 Act. Each preliminary prospectus, each Issuer Free Writing Prospectus and the Prospectus have been filed as required by Rule 424(b) (without reliance on Rule 424(b)(8)) and Rule 433, as applicable, within the time period prescribed by, and in compliance with, the 1933 Act Regulations. To the best of such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued under the 1933 Act, no order preventing or suspending the use of any preliminary prospectus or the Prospectus or any amendment or supplement thereto has been issued and no proceedings for any of those purposes have been instituted or are pending or contemplated by the Securities and Exchange Commission. (ii) ~~The Registration Statement~~no filing under Section 16(a) of the Exchange Act, reporting a reduction in beneficial ownership of shares of Common Stock, shall be required or shall be voluntarily made during the restricted period referred to in the foregoing sentence. In addition, the ~~General Disclosure Package~~ undersigned agrees that, without the prior written consent of Xxxxxx Xxxxxx, it will not, during the period commencing on the date hereof and ending 60 days after the ~~Prospectus and each amendment or supplement to the Registration Statement, the General Disclosure Package and~~ date of the Prospectus, ~~as of their respective effective~~ make any demand for or deemed effective or issue dates (other than (1) the financial statements (including notes thereto) and supporting schedules included therein or omitted therefrom and (2) the documents incorporated or deemed incorporated therein by reference, as to which such counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations. (iii) The documents incorporated or deemed incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus (other than the financial statements (including notes thereto) and supporting schedules included therein or omitted therefrom, as to which we express no opinion), when they were filed with the Commission, complied as to form in all material respects with the requirements of the 1934 Act and 1934 Act Regulations. (iv) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, exercise any Governmental Entity is necessary or required for the Company to enter into, or perform their respective obligations under, the Operative Documents or the consummation of the transactions contemplated in the Underwriting Agreement, except or such as have been already obtained or as may be required under the 1933 Act, the 1933 Act Regulations, the securities laws of any state or non-U.S. jurisdiction or the rules of FINRA or by the Bank’s primary regulator for purposes of Section 7(e) of the Underwriting Agreement. (v) To the best of such counsel’s knowledge, there are no persons with registration rights or other similar rights to have any securities registered for sale pursuant to the Registration Statement or otherwise registered for sale or sold by the Company under the 1933 Act pursuant to the Underwriting Agreement. (vi) The Company is not required, or upon consummation of the transactions contemplated in the Underwriting Agreement will be required, to register as an “investment company” under the 1940 Act. Although we assume no responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, General Disclosure Package or Prospectus, nothing has come to the attention of such counsel that has lead such counsel to believe that (1) the Registration Statement or any amendment thereto, including any information deemed to be a part thereof pursuant to Rule 430B, at the time such Registration Statement or any such amendment became effective or as of the “new effective date,” 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, (2) the General Disclosure Package, at the Applicable Time, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of circumstances under which they were made, not misleading or (3) the Prospectus or any amendment or supplement thereto, at the time the Prospectus was issued, at the time any such amended or supplemented prospectus was issued or at the Closing Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; it being understood that such counsel makes no statement as to any financial statements (including notes thereto), supporting schedules and other financial data included in the Registration Statement, the General Disclosure Package and the Prospectus or omitted therefrom. 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). (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, to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and to enter into and perform its obligations under, and to consummate the transactions contemplated under, the Operative Documents. (iii) The Company is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended. (iv) The Significant Subsidiary has been duly organized and is validly existing and in good standing under the laws of the jurisdiction of its organization, has the requisite corporate power and authority to own, lease and operate its properties, to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and. To such counsel’s knowledge, except as otherwise described in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding shares of capital stock of or other equity interests in the Significant Subsidiary have been duly authorized and validly issued, are fully paid and non-assessable and are owned by the Company, directly or through subsidiaries, to the best of such counsel’s knowledge free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity. To such counsel’s knowledge, none of the outstanding shares of capital stock of or other equity interests in the Significant Subsidiary were issued in violation of the preemptive or similar rights of any securityholder of such Significant Subsidiary or any other entity. (v) The deposit accounts of each of the Company’s banking subsidiaries are insured up to the applicable limits by the Deposit Insurance Fund of the FDIC to the fullest extent permitted by law and the rules and regulations of the FDIC, and, to the best of such counsel’s knowledge, no proceeding for the revocation or termination of such insurance is pending or threatened. (vi) To the best of such counsel’s knowledge, except as described in the Registration Statement, the General Disclosure Package and the Prospectus, (A) neither the Company nor any of its subsidiaries is subject or party to, or has received any notice or advice from any Regulatory Agency that any of them are reasonably expected to become subject or party to any investigation right with respect to, the registration of any ~~Regulatory Agreement, (B) neither~~ shares of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock. The undersigned also agrees and consents to the ~~Company nor any~~ entry of its subsidiaries has been advised by any Regulatory Agency that it is considering issuing or requesting any Regulatory Agreement, (C) there is no unresolved violation, criticism or exception by any Regulatory Agency stop transfer instructions with ~~respect to any report or statement relating to any examinations~~ the Company’s transfer agent and registrar against the transfer of the ~~Company or any~~ undersigned’s shares of ~~its subsidiaries and (D) the Company and its subsidiaries are~~ Common Stock except in compliance in all material respects with all laws administered by the Regulatory Agencies. (vii) Each of the Company and the Significant Subsidiary (A) is duly qualified 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 and (B) holds all Governmental Licenses issued by Governmental Entities necessary to conduct the business now operated by them, except where the failure so to qualify or to be in good standing or to hold any such Governmental Licenses would not, singly or in the aggregate, result in a Material Adverse Effect. (viii) The outstanding shares of capital stock of the Company, including the Securities, have been duly authorized and validly issued and are fully paid and non-assessable. To such counsel’s knowledge, none of the outstanding shares of capital stock of the Company, including the Securities, were issued in violation of the preemptive or other similar rights of any securityholder of the Company or any other entity. (ix) The Underwriting Agreement has been duly authorized, executed and delivered by each of the Company and the Bank. (x) The Certificate of Designations for the Securities has been duly filed with the ~~Secretary~~ foregoing restrictions. For the purposes of State of the State of Delaware. The form of certificate representing the Securities complies in all material respects with the requirements of Delaware state law, the Charter and the By-Laws. (xi) To the best of such counsel’s knowledge, except as described in the Registration Statement, the General Disclosure Package and the Prospectus, there is no action, suit, proceeding, inquiry or investigation before or brought by any Governmental Entity now pending or threatened against or affecting the Company or any of its subsidiaries which could, singly or in the aggregate, result in a Material Adverse Effect, or which might reasonably be expected to materially and adversely affect their respective properties, assets or operations or the consummation of the transactions contemplated in the Underwriting Agreement or the performance by the Company of its obligations under the Operative Documents. The aggregate of all pending legal or governmental proceedings known to such counsel to which the Company or any of its subsidiaries are a party or of which any of their respective properties, assets or operations are the subject which are not described in the Registration Statement, the General Disclosure Package and the Prospectus, including ordinary routine litigation incidental to the business, would not, singly or in the aggregate, result in a Material Adverse Effect. (xii) The information in the Registration Statement, the General Disclosure Package and the Prospectus under “Description of Capital Stockthis paragraph,” “Description of Series A Preferred Stock” and “Certain Material United States Federal Income Tax Considerations” or comparable captions and the information in the Registration Statement under “Item 15—Indemnification of Officers and Directors,” in each case to the extent that such information constitutes matters of law, summaries of legal matters, the Charter, By-Laws or legal proceedings, or legal conclusions, has been reviewed by such counsel and is correct in all material respects. (xiii) All descriptions in the Registration Statement, the General Disclosure Package and the Prospectus of contracts and other documents to which the Company or any of its subsidiaries are a party are accurate in all material respects. To the best of such counsel’s knowledge, there are no contracts, instruments or other documents required to be described in the Registration Statement, any preliminary prospectus or the Prospectus or to be filed as exhibits to the Registration Statement which have not been so described and filed as required. (xiv) To the best of such counsel’s knowledge, the execution, delivery and performance of the Operative Documents and the consummation of the transactions contemplated in the Underwriting Agreement and in the Registration Statement, [including the purchase by the Company of Securities in the offering,] the General Disclosure Package and the Prospectus and compliance by the Company with its obligations under the Operative Documents 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 ____) under, or result in the creation or imposition of any lien, charge or encumbrance upon

Appears in 1 contract

Samples: Underwriting Agreement (Idenix Pharmaceuticals Inc)

Appears in 1 contract

Samples: Underwriting Agreement (TCP Capital Corp.)

Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof. If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company and the Selling Stockholder a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the Underwriters, the ~~Company, the Bank~~ Company and the Selling ~~Shareholder~~ Stockholder in accordance with its terms. Very truly yours, ~~FIRST FINANCIAL~~ SPRINGLEAF HOLDINGS, INC. By: /s/ ~~Xxxxxx X. Xxxxxxxxxx Name: Xxxxxx X. Xxxxxxxxxx~~ Minchung (Xxxxxxx) Kgil Title: ~~EVP~~ Executive Vice President and Chief Financial Officer ~~FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF CHARLESTON~~ SPRINGLEAF FINANCIAL HOLDINGS, LLC, AS SELLING STOCKHOLDER By: /s/ Xxxxxx ~~X. Xxxxxxxxxx Name: Xxxxxx X. Xxxxxxxxxx~~ Xxxxxxx Title: ~~EVP and Chief Financial Officer UNITED STATES DEPARTMENT OF THE TREASURY, as Selling Shareholder By: /s/ Xxxxxx Xxxxx Name: Xxxxxx Xxxxx Title: Chief Investment Officer CONFIRMED AND ACCEPTED,~~ President as of the date first above written: ~~XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX~~ CITIGROUP GLOBAL MARKETS INC. By: /s/ Xxxxxxx X. ~~Xxxxx~~ Xxxx Name: Xxxxxxx X. Xxxx Title: Managing Director XXXXXXX, SACHS & CO. By: /s/ Xxxx Xxxx Name: Xxxx Xxxx Title: Managing Director BARCLAYS CAPITAL INC. By: /s/ Xxxxxxxx Xxxx Name: Xxxxxxxx Xxxx Title: Vice President CREDIT SUISSE SECURITIES (USA) LLC By: /s/ Xxxx Xxxxxxxxxx Name: Xxxx Xxxxxxxxxx Title: Vice Chairman For ~~itself~~ themselves and as ~~Representative~~ Representatives of the several other Underwriters named in Schedule A hereto. The public offering price per share for the Securities shall be $51.50. The purchase price per share for the Securities to be paid by the several Underwriters shall be $~~860.4073~~50.34125, being an amount equal to the initial public offering price set forth ~~in Schedule B~~ above less $~~13.1027~~ 1.15875 per share, subject to adjustment in accordance with Section 2(b) for dividends or distributions declared by the Company and payable on the Initial Securities but not payable on the Option Securities. ~~Name of Underwriter Number of~~ Citigroup Global Markets Inc. 5,921,211 Xxxxxxx, Xxxxx & Co. 5,921,211 Barclays Capital Inc. 5,921,211 Credit Suisse Securities ~~Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated 60,125 Xxxxxx Xxxxxxxx~~(USA) LLC 5,921,211 Natixis Securities Americas LLC 1,393,227 RBC Capital Markets, LLC ~~1,625 XX Xxxx Capital, LLC 1,625 TBC~~ 1,393,227 Xxxxx Fargo Securities, LLC ~~1,625~~ 1,393,227 Total ~~65,000~~ 27,864,525 Springleaf Holdings, Inc. 19,417,476 0 Springleaf Financial Holdings, LLC 8,447,049 4,179,678 Total 27,864,525 4,179,678 1. The ~~initial~~ Company and the Selling Stockholder are selling 27,864,525 shares of Common Stock. 2. The Selling Stockholder has granted an option to the Underwriters to purchase up to an additional 4,179,678 shares of Common Stock. 3. The public offering price per share for the Securities shall be $~~873.51~~51.50. Free writing prospectus of Springleaf Holdings, Inc. filed April 28, 2015 Xxxxxx X. Xxxxx Xxx X. Xxxxxx Xxx X. Xxxxxxx Xxxxxxx X. Xxxxxx Xxxxxxxx X. Xxxxxx Xxxxxx X. Xxxx Xxxx X. Xxxxxxxx Xxxxxxxx X. Xxxxxxxx Xxxxxxx X. Xx Xxxxx X. Xxxxx Xxxxxx Xxxxxxxx Minchung (Xxxxxxx) Kgil Xxxx X. Xxxxxxxx Xxxxxxxx X. Xxxxxx Xxxxxxx X. Xxxxxx Springleaf Financial Holdings, LLC [Form of lock-up from directors, officers or other stockholders pursuant to Section 5(k)] April 28, 2015 Citigroup Global Markets Inc. Xxxxxxx, Sachs & Co. Barclays Capital Inc. Credit Suisse Securities (USA) LLC As Representatives of the several Underwriters listed in Schedule A hereto c/o Citigroup Global Markets Inc. 000 Xxxxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 Re: Proposed Public Offering by Springleaf Holdings, Inc. Dear Sirs: The ~~number~~ undersigned, a stockholder and/or an officer and/or director of Springleaf Holdings, Inc., a Delaware corporation (the “Company”), understands that Citigroup Global Markets Inc. (“Citigroup”), Xxxxxxx, Xxxxx & Co., Barclays Capital Inc. and Credit Suisse Securities (USA) LLC (collectively, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”) with the Company and the Selling Stockholder providing for the public offering of shares (the “Securities”) of the Company’s common stock, par value $0.01 per share (the “Common Stock”). In recognition of the benefit that such an offering will confer upon the undersigned as a stockholder and/or an officer and/or director of the Company, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned agrees with each underwriter to be named in the Underwriting Agreement that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the Underwriting Agreement (the “Lock-up Period”), the undersigned will not, without the prior written consent of Citigroup, directly or indirectly, (i) offer, 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 for the sale of, or otherwise dispose of or transfer any shares of the Company’s Common Stock or any securities convertible into or exchangeable or exercisable for Common Stock, whether now owned or hereafter acquired by the undersigned or with respect to which the undersigned has or hereafter acquires the power of disposition (collectively, the “Lock-Up Securities”), or exercise any right with respect to the registration of any of the Lock-up Securities, or file or cause to be filed any registration statement in connection therewith, under the Securities Act of 1933, as amended, or (ii) enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Lock-Up Securities, whether any such swap or transaction is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case other than the Securities to be sold by the ~~Selling Shareholder~~ undersigned pursuant to the Underwriting Agreement. Notwithstanding the foregoing, and subject to the conditions below, the undersigned may transfer the Lock-Up Securities without the prior written consent of Citigroup, provided that, (i) with respect to (a), (b), (c), (d), (e) and (f) below (irrespective of whether such transfer involves a disposition of value, to the extent permitted by this Agreement), Citigroup receives a signed lock-up agreement for the balance of the Lock-up Period from each donee, trustee, distributee, or transferee, as the case may be, (ii) any transfer described under (a), (b) or (c) below shall not involve a disposition for value, (iii) with respect to (a), (b), (c), (d) and (e) below, such transfers (irrespective of whether such transfer involves a disposition of value, to the extent permitted by this Agreement) are not required to be ~~65,000. The settlement~~ reported with the Securities and Exchange Commission on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and (iv) the undersigned does not otherwise voluntarily effect any public filing or report regarding such transfers (other than a filing on Form 5 made after the expiration of the Lock-up Period referred to above), irrespective of whether such transfer involves a disposition of value, to the extent permitted by this Agreement: (a) as a bona fide gift or gifts; or (b) to any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned (for purposes of this lock-up agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin); or (1) to another corporation, partnership or other business entity that is a controlled or managed affiliate of the undersigned or (2) as a distribution to limited or general partners, members, stockholders or other equity holders of the undersigned; or (d) to funds managed by an affiliate of Fortress Investment Group LLC; or (e) to the undersigned’s affiliates or to any investment fund or other entity controlled or managed by the undersigned; or (f) by will or intestacy or if the transfer occurs by operation of law, such as rules of descent and distribution, or pursuant to a qualified domestic order or in connection with a divorce settlement; or (g) under any written plan meeting the requirements of Rule 10b5-1 under the Exchange Act in effect on the date ~~/ closing time shall~~ hereof; or (h) the Common Stock to be ~~April 3, 2012. 1. NONE~~sold by the undersigned pursuant to the Underwriting Agreement; or (i) ~~Each~~ the exercise of options or warrants to purchase shares of Common Stock of the ~~Registration Statement and~~ Company or the conversion of outstanding preferred stock of the Company into shares of Common Stock of the Company, provided that any ~~post~~shares of Common Stock issued pursuant thereto will remain subject to the terms of this Agreement for the remainder of the Lock-~~effective amendment thereto has been declared effective~~ up Period; or (j) the disposition of any shares of Common Stock in order to pay taxes in connection with the vesting of any restricted stock units issued pursuant to the Company’s existing equity incentive plans. Furthermore, the undersigned may sell shares of Common Stock of the Company purchased by the ~~Commission under~~ undersigned on the ~~1933 Act. Each preliminary prospectus, each Issuer Free Writing Prospectus~~ open market following the Public Offering if and ~~the Prospectus have been filed as~~ only if (i) such sales are not required ~~by Rule 424(b) (without reliance on Rule 424(b)(8)) and Rule 433, as applicable, within the time period prescribed by, and~~ to be reported in ~~compliance with, the 1933 Act Regulations. To the best of such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement~~ any public report or any post-effective amendment thereto has been issued under the 1933 Act, no order preventing or suspending the use of any preliminary prospectus or the Prospectus or any amendment or supplement thereto has been issued and no proceedings for any of those purposes have been instituted or are pending or contemplated by filing with the Securities and Exchange Commission. , or otherwise and (ii) the undersigned does not otherwise voluntarily effect any public filing or report regarding such sales. The ~~Registration Statement~~undersigned also agrees and consents to the entry of stop transfer instructions with the Company’s transfer agent and registrar against the transfer of the Lock-Up Securities except in compliance with the foregoing restrictions. This agreement shall lapse and become null and void if (i) prior to entering the Underwriting Agreement, the Company notifies Citigroup in writing that the Company does not intend to proceed with the offering of the Common Stock, (ii) the Company, the Selling Stockholder and the Representatives have not entered into the Underwriting Agreement on or before April 28, 2015, or (iii) for any reason the Underwriting Agreement is terminated prior to the Closing Time (as defined therein). Very truly yours, Signature: Print Name: Capitalized terms not defined in this certificate have the meaning ascribed to them in the Underwriting Agreement dated as of April 28, 2015 (the “Underwriting Agreement”), among Springleaf Holdings, Inc. (the “Company”) and Citigroup Global Markets Inc., Xxxxxxx, Xxxxx & Co., Barclays Capital Inc. and Credit Suisse Securities (USA) LLC, as representatives of the several underwriters named therein (the “Underwriters”). I, Minchung (Xxxxxxx) Kgil, do hereby certify that I am Senior Vice President and Chief Financial Officer of the Company, and, based upon an examination of the Company’s financial records and schedules undertaken by myself or members of my staff who are responsible for the Company’s financial and accounting matters, do hereby certify that: 1. I am responsible for the Company’s financial accounting and am familiar with the accounting, operations and records systems of the Company and its consolidated subsidiaries. 2. I have (i) reviewed the General Disclosure Package [and the Prospectus](2), (ii) supervised the compilation of, and reviewed the information contained in, the General Disclosure Package [and the ~~Prospectus~~ Prospectus] under the caption “Summary—OneMain—Earnings Accretion,” as prepared by the Company (the information under such caption collectively being referred to as the “OneMain Acquisition Disclosure”); (iii) supervised the compilation of, and ~~each amendment or supplement to~~ reviewed the ~~Registration Statement~~information contained in, the General Disclosure Package [and the Prospectus, ] under the caption “Recent Developments,” as ~~of their respective effective or deemed effective or issue dates~~ prepared by the Company (~~other than (1)~~ the ~~financial statements (including notes thereto~~information under such caption collectively being referred to as the “Q1 Disclosure”) and ~~supporting schedules~~ (iv) supervised the compilation of, and reviewed the circled information contained on the attached Exhibit A, which is included ~~therein or omitted therefrom and (2) the documents incorporated or deemed incorporated therein by reference, as to which such counsel need express no opinion), complied as to form~~ in ~~all material respects with the requirements of the 1933 Act and the 1933 Act Regulations. (iii) The documents incorporated or deemed incorporated by reference in the Registration Statement,~~ the General Disclosure Package [and the ~~Prospectus~~ Prospectus] (other than the financial statements (including notes thereto) and supporting schedules included therein or omitted therefrom, as to which we express no opinion), when they were filed with the Commission, complied as to form in all material respects with the requirements of the 1934 Act and 1934 Act Regulations. (iv) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any Governmental Entity is necessary or required for the Company to enter into, or perform their respective obligations under, the Operative Documents or the consummation of the transactions contemplated in the Underwriting Agreement, except or such as have been already obtained or as may be required under the 1933 Act, the 1933 Act Regulations, the securities laws of any state or non-U.S. jurisdiction or the rules of FINRA or by the Bank’s primary regulator for purposes of Section 7(e) of the Underwriting Agreement. (v) To the best of such counsel’s knowledge, there are no persons with registration rights or other similar rights to have any securities registered for sale pursuant to the Registration Statement or otherwise registered for sale or sold by the Company under the 1933 Act pursuant to the Underwriting Agreement. (vi) The Company is not required, or upon consummation of the transactions contemplated in the Underwriting Agreement will be required, to register as an “investment company” under the 1940 Act. Although we assume no responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, General Disclosure Package or Prospectus, nothing has come to the attention of such counsel that has lead such counsel to believe that (1) the Registration Statement or any amendment thereto, including any information deemed to be a part thereof pursuant to Rule 430B, at the time such Registration Statement or any such amendment became effective or as of the “new effective date,” 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, (2) the General Disclosure Package, at the Applicable Time, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of circumstances under which they were made, not misleading or (3) the Prospectus or any amendment or supplement thereto, at the time the Prospectus was issued, at the time any such amended or supplemented prospectus was issued or at the Closing Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; it being understood that such counsel makes no statement as to any financial statements (including notes thereto), supporting schedules and other financial data included in the Registration Statement, the General Disclosure Package and the Prospectus or omitted therefrom. 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 (1991Specified Financial Data”). ~~(i)~~ 3. 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, to conduct its business as described statements in the ~~Registration Statement, the General~~ OneMain Acquisition Disclosure Package and the Prospectus and to enter into and perform its obligations under, and to consummate the transactions contemplated under, the Operative Documents. (iii) The Company is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended. (iv) The Significant Subsidiary has been duly organized and is validly existing and in good standing under the laws of the jurisdiction of its organization, has the requisite corporate power and authority to own, lease and operate its properties, to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and. To such counsel’s knowledge, except as otherwise described in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding shares of capital stock of or other equity interests in the Significant Subsidiary have been duly authorized and validly issued, are fully paid and non-assessable and are owned by the Company, directly or through subsidiaries, to the best of such counsel’s knowledge free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity. To such counsel’s knowledge, none of the outstanding shares of capital stock of or other equity interests in the Significant Subsidiary were issued in violation of the preemptive or similar rights of any securityholder of such Significant Subsidiary or any other entity. (v) The deposit accounts of [each of the Company’s banking subsidiaries are insured up to the applicable limits by the Deposit Insurance Fund of the FDIC to the fullest extent permitted by law and the rules and regulations of the FDIC, and, to the best of such counsel’s knowledge, no proceeding for the revocation or termination of such insurance is pending or threatened. (vi) To the best of such counsel’s knowledge, except as described in the Registration Statement, the General Disclosure Package and the Prospectus, (A) neither the Company nor any of its subsidiaries is subject or party to, or has received any notice or advice from any Regulatory Agency that any of them are reasonably expected to become subject or party to any investigation with respect to, any Regulatory Agreement, (B) neither the Company nor any of its subsidiaries has been advised by any Regulatory Agency that it is considering issuing or requesting any Regulatory Agreement, (C) there is no unresolved violation, criticism or exception by any Regulatory Agency with respect to any report or statement relating to any examinations of the Company or any of its subsidiaries and (D) the Company and its subsidiaries are in compliance in all material respects with all laws administered by the Regulatory Agencies. (vii) Each of the Company and the Significant Subsidiary (A) is duly qualified 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 and (B) holds all Governmental Licenses issued by Governmental Entities necessary to conduct the business now operated by them, except where the failure so to qualify or to be in good standing or to hold any such Governmental Licenses would not, singly or in the aggregate, result in a Material Adverse Effect. (viii) The outstanding shares of capital stock of the Company, including the Securities, have been duly authorized and validly issued and are fully paid and non-assessable. To such counsel’s knowledge, none of the outstanding shares of capital stock of the Company, including the Securities, were issued in violation of the preemptive or other similar rights of any securityholder of the Company or any other entity. (ix) The Underwriting Agreement has been duly authorized, executed and delivered by each of the Company and the Bank. (x) The Certificate of Designations for the Securities has been duly filed with the Secretary of State of the State of Delaware. The form of certificate representing the Securities complies in all material respects with the requirements of Delaware state law, the Charter and the By-Laws. (xi) To the best of such counsel’s knowledge, except as described in the Registration Statement, the General Disclosure Package and the Prospectus, there is no action, suit, proceeding, inquiry or investigation before or brought by any Governmental Entity now pending or threatened against or affecting the Company or any of its subsidiaries which could, singly or in the aggregate, result in a Material Adverse Effect, or which might reasonably be expected to materially and adversely affect their respective properties, assets or operations or the consummation of the transactions contemplated in the Underwriting Agreement or the performance by the Company of its obligations under the Operative Documents. The aggregate of all pending legal or governmental proceedings known to such counsel to which the Company or any of its subsidiaries are a party or of which any of their respective properties, assets or operations are the subject which are not described in the Registration Statement, the General Disclosure Package and the Prospectus, including ordinary routine litigation incidental to the business, would not, singly or in the aggregate, result in a Material Adverse Effect. (xii) The information in the Registration Statement, the General Disclosure Package and the Prospectus under “Description of Capital Stock,” “Description of Series A Preferred Stock” and “Certain Material United States Federal Income Tax Considerations” or comparable captions and the information in the Registration Statement under “Item 15—Indemnification of Officers and Directors,” in each case to the extent that such information constitutes matters of law, summaries of legal matters, the Charter, By-Laws or legal proceedings, or legal conclusions, has been reviewed by such counsel and is correct in all material respects. (xiii) All descriptions in the Registration Statement, the General Disclosure Package and the Prospectus of contracts and other documents to which the Company or any of its subsidiaries are a party are accurate in all material respects. To the best of such counsel’s knowledge, there are no contracts, instruments or other documents required to be described in the Registration Statement, any preliminary prospectus or the Prospectus or to be filed as exhibits to the Registration Statement which have not been so described and filed as required. (xiv) To the best of such counsel’s knowledge, the execution, delivery and performance of the Operative Documents and the consummation of the transactions contemplated in the Underwriting Agreement and in the Registration Statement, [including the purchase by the Company of Securities in the offering,of] the General Disclosure Package [and the ~~Prospectus~~ Prospectus] (a) have been derived from the Company’s due diligence and ~~compliance by~~ analyses performed in connection with the Company with its obligations under the Operative Documents 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 OneMain Acquisition (as defined in ~~____~~the Underwriting Agreement) ~~under, or result~~ and (b) have been prepared by the Company in good faith and are based upon the ~~creation or imposition of any lien, charge or encumbrance upon~~best information available to the Company.

Appears in 1 contract

Samples: Underwriting Agreement (Springleaf Holdings, Inc.)

Appears in 1 contract

Samples: Underwriting Agreement (Rexnord Corp)

Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof. If the foregoing is in accordance with your understanding of our agreement, please sign and return to the ~~Company~~ Company, the Selling Shareholder and NAB a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the Underwriters, the Company, the ~~Bank and the~~ Selling Shareholder and NAB in accordance with its terms. Very truly yours, ~~FIRST FINANCIAL HOLDINGS~~GREAT WESTERN BANCORP, INC. ByBy /s/ Xxx Xxxxxx Name: Xxx Xxxxxx Title: President & CEO NATIONAL AMERICAS HOLDINGS LLC By /s/ Xxxx Xxxxxx Name: Xxxx Xxxxxx Title: Authorized Person NATIONAL AUSTRALIA BANK LIMITED By /s/ Xxxxxx ~~X. Xxxxxxxxxx~~ Rieschieck Name: Xxxxxx ~~X. Xxxxxxxxxx~~ Rieschieck Title: EVP and Chief Financial Officer FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF CHARLESTON By: /s/ Xxxxxx X. Xxxxxxxxxx Name: Xxxxxx X. Xxxxxxxxxx Title: EVP and Chief Financial Officer UNITED STATES DEPARTMENT OF THE TREASURYGeneral Manager, ~~as Selling Shareholder By: /s/ Xxxxxx Xxxxx Name: Xxxxxx Xxxxx Title: Chief Investment Officer~~ Group Development CONFIRMED AND ACCEPTED, as of the date first above written: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX ByINCORPORATED By /s/ Xxxx X. Xxxxxx Name: ~~XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX By~~Xxxx X. Xxxxxx Title: Managing Director DEUTSCHE BANK SECURITIES INC. By /s/ Xxxxxxx ~~X. Xxxxx~~ Xxxxxxx Name: Xxxxxxx Xxxxxxx Title: Managing Director By /s/ Xxxx Xxxx Name: Xxxx Xxxx Title: Managing Director X.X. XXXXXX SECURITIES LLC By /s/ Xxxxxxxx Xxxx Name: Xxxxxxxx Rice Title: Vice President For ~~itself~~ themselves and as ~~Representative~~ Representatives of the other Underwriters named in Schedule A hereto. The initial public offering price per share for the Securities shall be $23.50. The purchase price per share for the Securities to be paid by the several Underwriters shall be $~~860.4073~~22.50125, being an amount equal to the initial public offering price set forth ~~in Schedule B~~ above less $~~13.1027~~ 0.99875 per share, subject to adjustment in accordance with Section 2(b) for dividends or distributions declared by the Company and payable on the Initial Securities but not payable on the Option Securities. Name of Underwriter Number of Initial Securities Maximum Number of Option Securities Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ~~60,125~~ 3,858,860 385,886 Deutsche Bank Securities Inc. 3,858,860 385,886 X.X. Xxxxxx ~~Xxxxxxxx~~Securities LLC 3,215,718 321,572 RBC Capital Markets, LLC ~~1,625 XX Xxxx Capital~~760,587 76,059 Xxxxx, ~~LLC 1,625 TBC Securities~~Xxxxxxxx & Xxxxx Inc. 217,311 21,731 Macquarie Capital (USA) Inc. 217,311 21,731 Sandler X’Xxxxx & Partners, ~~LLC 1,625~~ L.P. 217,311 21,731 Xxxxxxxx Inc. 217,311 21,731 Total ~~65,000~~ 12,563,269 1,256,327 1. The Selling Shareholder is selling 12,563,269 shares of Common Stock. 2. The Selling Shareholder has granted an option to the Underwriters, severally and not jointly, to purchase up to an additional 1,256,327 shares of Common Stock. 3. The initial public offering price per share for the Securities shall be $~~873.51~~23.50. 4. ~~The number~~ Number of ~~Securities~~ shares to be ~~sold~~ purchased by the Company as described in the preliminary prospectus: 2,666,518 [None] Xxx Xxxxxx Xxxxx Xxxxxxx Xxxxx Xxxxxxxx Xxxxx Xxxxxx Xxxx Xxxx Xxxxx Xxxxxxx Xxxx Xxxxxxxxxxxxx Xxxxxxx Xxxxx Xxxxxx Xxxxxx Xxxxx Xxxxx Xxxx Xxxxxx Swati Xxxx Xxxxxx Xxxx Xxxxxx Xxxxxx Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated Xxx Xxxxxx Xxxx Xxx Xxxx, Xxx Xxxx 00000 Deutsche Bank Securities Inc. 00 Xxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 X.X. Xxxxxx Securities LLC 000 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 as Representatives of the several Underwriters to be named in the within-mentioned Underwriting Agreement Re: Proposed Public Offering by Great Western Bancorp, Inc. Dear Sirs: The undersigned, an officer and/or director of Great Western Bancorp, Inc., a Delaware corporation (the “Company”), understands that Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (“Xxxxxxx Xxxxx”), Deutsche Bank Securities Inc. (“Deutsche Bank”) and X.X. Xxxxxx Securities LLC (“X.X. Xxxxxx”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”) with the Company, National Americas Holdings, LLC, a Delaware limited liability company (the “Selling ~~Shareholder shall~~ Stockholder”), and National Australia Bank Limited, an Australian corporation, providing for the public offering of shares (the “Securities”) of the Company’s common stock, par value $0.01 per share (the “Common Stock”). In recognition of the benefit that such an offering will confer upon the undersigned as an officer and/or director of the Company, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned agrees with each underwriter to be ~~65,000~~named in the Underwriting Agreement that, during the period beginning on the date hereof and ending on the date that is 45 days from the date of the Underwriting Agreement (the “Lock-Up Period”), the undersigned will not, without the prior written consent of Xxxxxxx Xxxxx, Deutsche Bank and X.X. Xxxxxx directly or indirectly, (i) offer, 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 for the sale of, or otherwise dispose of or transfer any shares of the Company’s Common Stock or any securities convertible into or exchangeable or exercisable for Common Stock, whether now owned or hereafter acquired by the undersigned or with respect to which the undersigned has or hereafter acquires the power of disposition (collectively, the “Lock-Up Securities”), or exercise any right with respect to the registration of any of the Lock-up Securities, or file or cause to be filed any registration statement in connection therewith, under the Securities Act of 1933, as amended, or (ii) enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Lock-Up Securities, whether any such swap or transaction is to be settled by delivery of Common Stock or other securities, in cash or otherwise. ~~The settlement date / closing time shall~~ Notwithstanding the foregoing, and subject to the conditions below, the undersigned may transfer the Lock-Up Securities without the prior written consent of Xxxxxxx Xxxxx, Deutsche Bank and X.X. Xxxxxx, provided that (1) Xxxxxxx Xxxxx, Deutsche Bank and X.X. Xxxxxx receive a signed lock-up agreement for the balance of the Lock-Up Period from each donee, trustee, distributee, or transferee, as the case may be, (2) such transfers is not required to be ~~April~~ reported with the Securities and Exchange Commission on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended, and (3~~, 2012. 1. NONE~~) the undersigned does not otherwise voluntarily effect any public filing or report regarding such transfer: (i) Each of the Registration Statement and any post-effective amendment thereto has been declared effective by the Commission under the 1933 Act. Each preliminary prospectus, each Issuer Free Writing Prospectus and the Prospectus have been filed as required by Rule 424(b) (without reliance on Rule 424(b)(8)) and Rule 433, as applicable, within the time period prescribed by, and in compliance with, the 1933 Act Regulations. To the best of such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement a bona fide gift or any post-effective amendment thereto has been issued under the 1933 Act, no order preventing or suspending the use of any preliminary prospectus or the Prospectus or any amendment or supplement thereto has been issued and no proceedings for any of those purposes have been instituted or are pending or contemplated by the Securities and Exchange Commission.gifts; (ii) ~~The Registration Statement~~to any immediate family member, any trust for the ~~General Disclosure Package and~~ direct or indirect benefit of the ~~Prospectus and each amendment~~ undersigned or ~~supplement to~~ the ~~Registration Statement,~~ immediate family of the ~~General Disclosure Package and the Prospectus, as~~ undersigned or any of their respective ~~effective~~ successors upon death (for purposes of this lock-up agreement, “immediate family” shall mean any relationship by blood, marriage or ~~deemed effective or issue dates (other~~ adoption, not more remote than (1) the financial statements (including notes thereto) and supporting schedules included therein or omitted therefrom and (2) the documents incorporated or deemed incorporated therein by reference, as to which such counsel need express no opinionfirst cousin)~~, complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations.~~; (iii) ~~The documents incorporated~~ as part of any net or ~~deemed incorporated by reference in the Registration Statement~~cashless exercise of stock options or vesting, ~~the General Disclosure Package and the Prospectus (~~delivery or settlement of restricted shares, restricted stock units or other ~~than the financial statements (including notes thereto) and supporting schedules included therein or omitted therefrom, as~~ awards granted pursuant to ~~which we express no opinion), when they were filed with the Commission, complied as to form in all material respects with the requirements~~ any of the ~~1934 Act and 1934 Act Regulations.~~Company’s equity incentive plans in effect as of the date of the Underwriting Agreement; or (iv) ~~No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of,~~ to any ~~Governmental Entity is necessary or required for the Company to enter into, or perform their respective obligations under, the Operative Documents or the consummation~~ beneficiary of the ~~transactions contemplated in the Underwriting Agreement~~undersigned pursuant to a will, ~~except~~ other testamentary document or ~~such as have been already obtained or as may be required under the 1933 Act, the 1933 Act Regulations, the securities~~ applicable laws of ~~any state or non-U.S. jurisdiction or the rules of FINRA or by the Bank’s primary regulator for purposes of Section 7(e) of the Underwriting Agreement~~descent. (v) To the best of such counsel’s knowledge, there are no persons with registration rights or other similar rights to have any securities registered for sale pursuant to the Registration Statement or otherwise registered for sale or sold by the Company under the 1933 Act pursuant to the Underwriting Agreement. (vi) The Company is not required, or upon consummation of the transactions contemplated in the Underwriting Agreement will be required, to register as an “investment company” under the 1940 Act. Although we assume no responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, General Disclosure Package or Prospectus, nothing has come to the attention of such counsel that has lead such counsel to believe that (1) the Registration Statement or any amendment thereto, including any information deemed to be a part thereof pursuant to Rule 430B, at the time such Registration Statement or any such amendment became effective or as of the “new effective date,” 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, (2) the General Disclosure Package, at the Applicable Time, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of circumstances under which they were made, not misleading or (3) the Prospectus or any amendment or supplement thereto, at the time the Prospectus was issued, at the time any such amended or supplemented prospectus was issued or at the Closing Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; it being understood that such counsel makes no statement as to any financial statements (including notes thereto), supporting schedules and other financial data included in the Registration Statement, the General Disclosure Package and the Prospectus or omitted therefrom. 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). (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, to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and to enter into and perform its obligations under, and to consummate the transactions contemplated under, the Operative Documents. (iii) The Company is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended. (iv) The Significant Subsidiary has been duly organized and is validly existing and in good standing under the laws of the jurisdiction of its organization, has the requisite corporate power and authority to own, lease and operate its properties, to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and. To such counsel’s knowledge, except as otherwise described in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding shares of capital stock of or other equity interests in the Significant Subsidiary have been duly authorized and validly issued, are fully paid and non-assessable and are owned by the Company, directly or through subsidiaries, to the best of such counsel’s knowledge free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity. To such counsel’s knowledge, none of the outstanding shares of capital stock of or other equity interests in the Significant Subsidiary were issued in violation of the preemptive or similar rights of any securityholder of such Significant Subsidiary or any other entity. (v) The deposit accounts of each of the Company’s banking subsidiaries are insured up to the applicable limits by the Deposit Insurance Fund of the FDIC to the fullest extent permitted by law and the rules and regulations of the FDIC, and, to the best of such counsel’s knowledge, no proceeding for the revocation or termination of such insurance is pending or threatened. (vi) To the best of such counsel’s knowledge, except as described in the Registration Statement, the General Disclosure Package and the Prospectus, (A) neither the Company nor any of its subsidiaries is subject or party to, or has received any notice or advice from any Regulatory Agency that any of them are reasonably expected to become subject or party to any investigation with respect to, any Regulatory Agreement, (B) neither the Company nor any of its subsidiaries has been advised by any Regulatory Agency that it is considering issuing or requesting any Regulatory Agreement, (C) there is no unresolved violation, criticism or exception by any Regulatory Agency with respect to any report or statement relating to any examinations of the Company or any of its subsidiaries and (D) the Company and its subsidiaries are in compliance in all material respects with all laws administered by the Regulatory Agencies. (vii) Each of the Company and the Significant Subsidiary (A) is duly qualified 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 and (B) holds all Governmental Licenses issued by Governmental Entities necessary to conduct the business now operated by them, except where the failure so to qualify or to be in good standing or to hold any such Governmental Licenses would not, singly or in the aggregate, result in a Material Adverse Effect. (viii) The outstanding shares of capital stock of the Company, including the Securities, have been duly authorized and validly issued and are fully paid and non-assessable. To such counsel’s knowledge, none of the outstanding shares of capital stock of the Company, including the Securities, were issued in violation of the preemptive or other similar rights of any securityholder of the Company or any other entity. (ix) The Underwriting Agreement has been duly authorized, executed and delivered by each of the Company and the Bank. (x) The Certificate of Designations for the Securities has been duly filed with the Secretary of State of the State of Delaware. The form of certificate representing the Securities complies in all material respects with the requirements of Delaware state law, the Charter and the By-Laws. (xi) To the best of such counsel’s knowledge, except as described in the Registration Statement, the General Disclosure Package and the Prospectus, there is no action, suit, proceeding, inquiry or investigation before or brought by any Governmental Entity now pending or threatened against or affecting the Company or any of its subsidiaries which could, singly or in the aggregate, result in a Material Adverse Effect, or which might reasonably be expected to materially and adversely affect their respective properties, assets or operations or the consummation of the transactions contemplated in the Underwriting Agreement or the performance by the Company of its obligations under the Operative Documents. The aggregate of all pending legal or governmental proceedings known to such counsel to which the Company or any of its subsidiaries are a party or of which any of their respective properties, assets or operations are the subject which are not described in the Registration Statement, the General Disclosure Package and the Prospectus, including ordinary routine litigation incidental to the business, would not, singly or in the aggregate, result in a Material Adverse Effect. (xii) The information in the Registration Statement, the General Disclosure Package and the Prospectus under “Description of Capital Stock,” “Description of Series A Preferred Stock” and “Certain Material United States Federal Income Tax Considerations” or comparable captions and the information in the Registration Statement under “Item 15—Indemnification of Officers and Directors,” in each case to the extent that such information constitutes matters of law, summaries of legal matters, the Charter, By-Laws or legal proceedings, or legal conclusions, has been reviewed by such counsel and is correct in all material respects. (xiii) All descriptions in the Registration Statement, the General Disclosure Package and the Prospectus of contracts and other documents to which the Company or any of its subsidiaries are a party are accurate in all material respects. To the best of such counsel’s knowledge, there are no contracts, instruments or other documents required to be described in the Registration Statement, any preliminary prospectus or the Prospectus or to be filed as exhibits to the Registration Statement which have not been so described and filed as required. (xiv) To the best of such counsel’s knowledge, the execution, delivery and performance of the Operative Documents and the consummation of the transactions contemplated in the Underwriting Agreement and in the Registration Statement, [including the purchase by the Company of Securities in the offering,] the General Disclosure Package and the Prospectus and compliance by the Company with its obligations under the Operative Documents 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 ____) under, or result in the creation or imposition of any lien, charge or encumbrance upon

Appears in 1 contract

Samples: Underwriting Agreement (National Australia Bank LTD)

Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof. If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the ~~Underwriters, the Company, the Bank and the Selling Shareholder~~ parties hereto in accordance with its terms. Very truly yours, ~~FIRST FINANCIAL HOLDINGS~~OLD NATIONAL BANCORP By /s/ Jxxx X. Xxxxx, ~~INC. By: /s/ Xxxxxx X. Xxxxxxxxxx~~ XX Name: ~~Xxxxxx~~ Jxxx X. ~~Xxxxxxxxxx~~ Xxxxx, XX Title: ~~EVP~~ Senior Executive Vice President and Chief Financial Officer FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF CHARLESTON By: /s/ Xxxxxx X. Xxxxxxxxxx Name: Xxxxxx X. Xxxxxxxxxx Title: EVP and Chief Financial Officer UNITED STATES DEPARTMENT OF THE TREASURY, as Selling Shareholder By: /s/ Xxxxxx Xxxxx Name: Xxxxxx Xxxxx Title: Chief Investment Officer CONFIRMED AND ACCEPTED, as of the date first above written: ~~XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX By:~~ By /s/ ~~Xxxxxxx X. Xxxxx~~ Pxxxxxx Xxxxxxxx For itself and as Representative of the other Underwriters named in Schedule A hereto. CONFIRMED AND ACCEPTED, as of the date first above written: By /s/ Pxxxxxx Xxxxxxxx As Forward Seller. CONFIRMED AND ACCEPTED, as of the date first above written: By /s/ Exxx Xxxxxxxx As Forward Purchaser, solely as the recipient and/or beneficiary of certain representations, warranties, covenants and indemnities set forth in this Agreement. The initial public offering price per share for the Securities shall be $21.00. The purchase price per share for the Securities to be paid by the several Underwriters shall be $~~860.4073~~20.16, being an amount equal to the initial public offering price set forth ~~in Schedule B~~ above less $~~13.1027~~ 0.84 per share, subject to adjustment in accordance with Section 2(b) for dividends or distributions declared by the Company and payable on the Initial Securities but not payable on the Option Securities. Name of Underwriter Number of Initial Securities ~~Xxxxxxx Lynch~~to be Purchased Maximum Number of Option Securities to be Purchased Citigroup Global Markets Inc. 13,333,334 2,000,001 Kxxxx, ~~Pierce~~Bxxxxxxx, ~~Xxxxxx~~ & ~~Xxxxx Incorporated 60,125 Xxxxxx Xxxxxxxx~~Wxxxx, ~~LLC 1,625 XX Xxxx Capital~~Inc. 5,714,285 857,142 Total 19,047,619 2,857,143 Name of Forward Seller Number of Borrowed Initial Securities to be Sold Maximum Number of Borrowed Option Securities to be Sold Citibank, ~~LLC 1,625 TBC~~ N.A. 19,047,619 2,857,143 Total 19,047,619 2,857,143 1. The Company and the Forward Seller are selling 19,047,619 Initial Securities. 2. The Company and the Forward Seller have granted an option to the Underwriters, ~~LLC 1,625 Total 65,000~~ severally and not jointly, to purchase up to 2,857,143 Option Securities. 3. The initial public offering price per share for the Securities shall be $~~873.51~~21.00. None. Old National Bancorp, Merger Investor Presentation, dated November 2024. Bxxxxxx X. Xxxxxxxxxx Txxxxx X. Xxxxx Kxxxxxx X. Hayley Pxxxx X. Xxxxxxxx Dxxxxx X. Xxxxxxx Rxxx X. Xxxxxxxx Axxxxx X. Xxxxxxx Exxxx X. Xxxxxxx Jxxxx X. Xxxx, XXX Txxxxx X. Xxxxxx Rxxxxxx X. Xxxxxxxx Mxxxxxx X. Small Dxxxxxx X. Xxxxxxx Sxxxxxx X. Xxx Xxxxxxx Kxxxxxxxx X. Xxxxx Cxxxx X. XxXxxxx Nxxxxxxx X. Xxxxxx Cxxxxxxx X. Xxxxxxxxxxx Sxxxx X. Xxxxxxxx Jxxx X. Xxxxx, XX Axxxxx X. Xxxxxx Mxxx X. Xxxxxx Jxxxx X. Xxxxxxxx Bxxxx X. Xxxxxxxx Kxxxxx X. Xxxxx Exhibit A Citigroup Global Markets Inc. as Representative of the several Underwriters listed in Schedule A to the Underwriting Agreement referred to below c/o Citigroup Global Markets Inc. 300 Xxxxxxxxx Xxxxxx Xxx Xxxx, XX 00000 Ladies and Gentlemen: The ~~number~~ undersigned understands that Citigroup Global Markets Inc. (“Citigroup”) proposes to enter into an Underwriting Agreement (the “Underwriting Agreement”) with Old National Bancorp, an Indiana corporation (the “Company”), the forward seller and the forward purchaser named therein, providing for the public offering (the “Public Offering”) by the several Underwriters, including Citigroup (the “Underwriters”), of 19,047,619 shares (the “Shares”) of the common stock, no par value per share, of the Company (the “Common Stock”). To induce the Underwriters that may participate in the Public Offering to continue their efforts in connection with the Public Offering, the undersigned hereby agrees that, without the prior written consent of Citigroup on behalf of the Underwriters, it will not, and will not publicly disclose an intention to, during the period commencing on the date hereof and ending 60 days after the date of the final prospectus (the “Restricted Period”) relating to the Public Offering (the “Prospectus”), (1) offer, 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, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock beneficially owned (as such term is used in Rule 13d-3 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), by the undersigned or any other securities so owned convertible into or exercisable or exchangeable for Common Stock or (2) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Common Stock, whether any such transaction described in clause (1) or (2) above is to be ~~sold~~ settled by delivery of Common Stock or such other securities, in cash or otherwise. Notwithstanding the ~~Selling Shareholder~~ foregoing, and subject to the conditions below, the undersigned may transfer the Common Stock without the prior written consent of Citigroup, as described below, provided that (1) Citigroup receives a signed lock-up agreement in the form of this lock-up agreement for the balance of the Restricted Period from each donee, devisee, trustee, distributee, or transferee, as the case may be, (2) any such transfer shall not involve a disposition for value, (3) such transfers are not required to be ~~65,000. The settlement date / closing time~~ reported during the Restricted Period with the U.S. Securities and Exchange Commission (the “Commission”) on Form 4 or Form 5 in accordance with Section 16(a) of the Exchange Act, or, in the case of clause (i), (ii), (iii) and (iv) below, any such required filing shall ~~be April 3~~clearly indicate in the footnotes thereto that the filing relates to circumstances described in such a clause, ~~2012. 1. NONE~~and (4) the undersigned does not otherwise voluntarily effect any public filing or report regarding such transfers: (i) Each of the Registration Statement and any post-effective amendment thereto has been declared effective by the Commission under the 1933 Act. Each preliminary prospectus, each Issuer Free Writing Prospectus and the Prospectus have been filed as required by Rule 424(b) (without reliance on Rule 424(b)(8)) and Rule 433, as applicable, within the time period prescribed by, and in compliance with, the 1933 Act Regulations. To the best of such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement a bona fide gift or any post-effective amendment thereto has been issued under the 1933 Act, no order preventing or suspending the use of any preliminary prospectus or the Prospectus or any amendment or supplement thereto has been issued and no proceedings for any of those purposes have been instituted or are pending or contemplated by the Securities and Exchange Commission. (ii) The Registration Statement, the General Disclosure Package and the Prospectus and each amendment or supplement to the Registration Statement, the General Disclosure Package and the Prospectus, as of their respective effective or deemed effective or issue dates (other than (1) the financial statements (including notes thereto) and supporting schedules included therein or omitted therefrom and (2) the documents incorporated or deemed incorporated therein by reference, as to which such counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations. (iii) The documents incorporated or deemed incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus (other than the financial statements (including notes thereto) and supporting schedules included therein or omitted therefrom, as to which we express no opinion), when they were filed with the Commission, complied as to form in all material respects with the requirements of the 1934 Act and 1934 Act Regulations. (iv) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any Governmental Entity is necessary or required for the Company to enter into, or perform their respective obligations under, the Operative Documents or the consummation of the transactions contemplated in the Underwriting Agreement, except or such as have been already obtained or as may be required under the 1933 Act, the 1933 Act Regulations, the securities laws of any state or non-U.S. jurisdiction or the rules of FINRA or by the Bank’s primary regulator for purposes of Section 7(e) of the Underwriting Agreement. (v) To the best of such counsel’s knowledge, there are no persons with registration rights or other similar rights to have any securities registered for sale pursuant to the Registration Statement or otherwise registered for sale or sold by the Company under the 1933 Act pursuant to the Underwriting Agreement. (vi) The Company is not required, or upon consummation of the transactions contemplated in the Underwriting Agreement will be required, to register as an “investment company” under the 1940 Act. Although we assume no responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, General Disclosure Package or Prospectus, nothing has come to the attention of such counsel that has lead such counsel to believe that (1) the Registration Statement or any amendment thereto, including any information deemed to be a part thereof pursuant to Rule 430B, at the time such Registration Statement or any such amendment became effective or as of the “new effective date,” 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, (2) the General Disclosure Package, at the Applicable Time, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of circumstances under which they were made, not misleading or (3) the Prospectus or any amendment or supplement thereto, at the time the Prospectus was issued, at the time any such amended or supplemented prospectus was issued or at the Closing Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; it being understood that such counsel makes no statement as to any financial statements (including notes thereto), supporting schedules and other financial data included in the Registration Statement, the General Disclosure Package and the Prospectus or omitted therefrom. 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 opinionsgifts, including, without limitation, ~~the Legal Opinion Accord of the ABA Section of Business Law (1991). (i) The Company has been duly incorporated and is validly existing as~~ to a ~~corporation in good standing under the laws of the State of Delaware.~~charitable organization or educational institution, or for bona fide estate planning purposes; (ii) ~~The Company has corporate power and authority~~ by wxxx, testamentary document or intestate succession to ~~own~~the legal representative, ~~lease and operate its properties~~heir, ~~to conduct its business as described in~~ beneficiary or a member of the ~~Registration Statement~~immediate family of the undersigned (for purposes of this lock-up agreement, “immediate family” of the ~~General Disclosure Package and~~ undersigned shall mean any relationship by blood, marriage, domestic partnership or adoption, not more remote than first cousin of the ~~Prospectus and to enter into and perform its obligations under, and to consummate the transactions contemplated under, the Operative Documents.~~undersigned); (iii) ~~The Company is duly registered~~ by operation of law, such as pursuant to a ~~bank holding company under the Bank Holding Company Act of 1956~~qualified domestic order, ~~as amended.~~divorce settlement, divorce decree or separation agreement; (iv) ~~The Significant Subsidiary has been duly organized and is validly existing and in good standing under~~ pursuant to an order of a court or regulatory agency having jurisdiction over the ~~laws~~ undersigned; (v) to any corporation, partnership, limited liability company or other entity of which the undersigned or the immediate family of the ~~jurisdiction~~ undersigned are the legal and beneficial owner of its organization, has the requisite corporate power and authority to own, lease and operate its properties, to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and. To such counsel’s knowledge, except as otherwise described in the Registration Statement, the General Disclosure Package and the Prospectus, all of the ~~issued and~~ outstanding ~~shares~~ equity securities or similar interests; (vi) to a nominee or custodian of ~~capital stock of~~ a person or entity to whom a disposition or transfer would be permissible under clauses (i) through (v) above; (vii) to any immediate family member or any trust, partnership, limited liability company or other entity for the direct or indirect benefit of the undersigned or one or more immediate family members of the undersigned, or if the undersigned is a trust, to a trustor or beneficiary of the trust or to the estate of a beneficiary of such trust; (viii) if the undersigned is a corporation, partnership, limited liability company, trust or other business entity, (A) to another corporation, partnership, limited liability company, trust or other business entity that is an affiliate (as defined in Rule 405 promulgated under the Securities Act of 1933, as amended) of the undersigned, or to any investment fund or other entity controlling, controlled by, managing or managed by or under common control with the undersigned or affiliates of the undersigned (including, for the avoidance of doubt, where the undersigned is a partnership, to its general partner or a successor partnership or fund, or any other funds managed by such partnership), or (B) as part of a distribution to limited partners, limited liability company members or stockholders of the undersigned or holders of similar equity interests in the ~~Significant Subsidiary have been duly authorized~~ undersigned; or (ix) to the Company upon the undersigned’s death, disability or termination of employment or other service relationship with the Company; provided that such shares of Common Stock were issued to the undersigned pursuant to an agreement or equity award granted pursuant to an employee benefit plan, option, warrant or other right disclosed in the Prospectus. In addition, subject to the conditions below, the undersigned may transfer the Common Stock without the prior written consent of Citigroup: (a) to the Company pursuant to the vesting, settlement or exercise of restricted stock units, restricted stock, options, warrants or other rights to purchase shares of Common Stock (including, in each case, by way of “net” or “cashless” exercise), including for the payment of exercise price and ~~validly issued~~tax and remittance payments due as a result of the vesting, settlement or exercise of such restricted stock units, restricted stock, options, warrants or rights, provided that (1) any such shares of Common Stock received upon such exercise, vesting or settlement shall be subject to the terms of this lock-up agreement; (2) any filing under the Exchange Act required to be made during the Restricted Period shall indicate in the footnotes thereto that the filing relates to circumstances described in this clause; (3) the undersigned does not otherwise voluntarily effect any public filing or report regarding such transfers; and (4) any such restricted stock units, restricted stock, options, warrants or rights are ~~fully paid and non-assessable and are owned~~ held by the ~~Company, directly~~ undersigned pursuant to an agreement or through subsidiaries, to the best of such counsel’s knowledge free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity. To such counsel’s knowledge, none of the outstanding shares of capital equity award granted under a stock of incentive plan or other equity ~~interests~~ award plan, each of which is disclosed in the ~~Significant Subsidiary were issued in violation of the preemptive or similar rights of any securityholder of such Significant Subsidiary or any other entity.~~Prospectus; or (vb) ~~The deposit accounts of each of~~ pursuant to a 10b5-1 trading plan that complies with Rule 10b5-1 under the ~~Company’s banking subsidiaries are insured up~~ Exchange Act that has been entered into by the undersigned prior to the ~~applicable limits by the Deposit Insurance Fund~~ date of ~~the FDIC to the fullest extent permitted by law and the rules and regulations of the FDIC~~this lock-up agreement; provided, ~~and~~however, to the best of such counsel’s knowledge, no proceeding for the revocation or termination of such insurance is pending or threatened. (vi) To the best of such counsel’s knowledge, except as described in the Registration Statement, the General Disclosure Package and the Prospectus, that (A) ~~neither the Company nor~~ any of its subsidiaries is subject or party to, or has received any notice or advice from any Regulatory Agency that any of them are reasonably expected to become subject or party to any investigation with respect to, any Regulatory Agreement, (B) neither the Company nor any of its subsidiaries has been advised by any Regulatory Agency that it is considering issuing or requesting any Regulatory Agreement, (C) there is no unresolved violation, criticism or exception by any Regulatory Agency with respect to any report or statement relating to any examinations filing under Section 16 of the ~~Company or any of its subsidiaries and (D)~~ Exchange Act made during the ~~Company and its subsidiaries are~~ Restricted Period shall clearly indicate in ~~compliance in all material respects with all laws administered by~~ the ~~Regulatory Agencies. (vii) Each of~~ footnotes thereto that the ~~Company and~~ filing relates to the Significant Subsidiary (A) is duly qualified 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 circumstances described above and (B) ~~holds all Governmental Licenses issued by Governmental Entities necessary to conduct~~ the business now operated by them, except where the failure so to qualify or to be in good standing or to hold any such Governmental Licenses would not, singly or in the aggregate, result in a Material Adverse Effect. (viii) The outstanding shares of capital stock of the Company, including the Securities, have been duly authorized and validly issued and are fully paid and non-assessable. To such counsel’s knowledge, none of the outstanding shares of capital stock of the Company, including the Securities, were issued in violation of the preemptive or other similar rights of any securityholder of the Company or undersigned does not otherwise voluntarily effect any other ~~entity~~public filings or report regarding such sales or transfers during the Restricted Period. (ix) The Underwriting Agreement has been duly authorized, executed and delivered by each of the Company and the Bank. (x) The Certificate of Designations for the Securities has been duly filed with the Secretary of State of the State of Delaware. The form of certificate representing the Securities complies in all material respects with the requirements of Delaware state law, the Charter and the By-Laws. (xi) To the best of such counsel’s knowledge, except as described in the Registration Statement, the General Disclosure Package and the Prospectus, there is no action, suit, proceeding, inquiry or investigation before or brought by any Governmental Entity now pending or threatened against or affecting the Company or any of its subsidiaries which could, singly or in the aggregate, result in a Material Adverse Effect, or which might reasonably be expected to materially and adversely affect their respective properties, assets or operations or the consummation of the transactions contemplated in the Underwriting Agreement or the performance by the Company of its obligations under the Operative Documents. The aggregate of all pending legal or governmental proceedings known to such counsel to which the Company or any of its subsidiaries are a party or of which any of their respective properties, assets or operations are the subject which are not described in the Registration Statement, the General Disclosure Package and the Prospectus, including ordinary routine litigation incidental to the business, would not, singly or in the aggregate, result in a Material Adverse Effect. (xii) The information in the Registration Statement, the General Disclosure Package and the Prospectus under “Description of Capital Stock,” “Description of Series A Preferred Stock” and “Certain Material United States Federal Income Tax Considerations” or comparable captions and the information in the Registration Statement under “Item 15—Indemnification of Officers and Directors,” in each case to the extent that such information constitutes matters of law, summaries of legal matters, the Charter, By-Laws or legal proceedings, or legal conclusions, has been reviewed by such counsel and is correct in all material respects. (xiii) All descriptions in the Registration Statement, the General Disclosure Package and the Prospectus of contracts and other documents to which the Company or any of its subsidiaries are a party are accurate in all material respects. To the best of such counsel’s knowledge, there are no contracts, instruments or other documents required to be described in the Registration Statement, any preliminary prospectus or the Prospectus or to be filed as exhibits to the Registration Statement which have not been so described and filed as required. (xiv) To the best of such counsel’s knowledge, the execution, delivery and performance of the Operative Documents and the consummation of the transactions contemplated in the Underwriting Agreement and in the Registration Statement, [including the purchase by the Company of Securities in the offering,] the General Disclosure Package and the Prospectus and compliance by the Company with its obligations under the Operative Documents 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 ____) under, or result in the creation or imposition of any lien, charge or encumbrance upon

Appears in 1 contract

Samples: Underwriting Agreement (Old National Bancorp /In/)

Appears in 1 contract

Samples: Underwriting Agreement (Delek US Holdings, Inc.)

Appears in 1 contract

Samples: Underwriting Agreement (Cedar Realty Trust, Inc.)

Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof. If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company the Selling Shareholder a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the Underwriters, the ~~Company, the Bank~~ Company and the Selling Shareholder in accordance with its terms. Very truly yours, ~~FIRST FINANCIAL HOLDINGS, INC. By:~~ VWR CORPORATION By /s/ ~~Xxxxxx X. Xxxxxxxxxx~~ Xxxxxxx Xxxxx Name: ~~Xxxxxx X. Xxxxxxxxxx~~ Xxxxxxx Xxxxx Title: ~~EVP and~~ Senior Vice President, Chief Financial Officer ~~FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF CHARLESTON By:~~ VARIETAL DISTRIBUTION HOLDINGS, LLC By /s/ Xxxxxxxx Xxxxxx ~~X. Xxxxxxxxxx~~ Name: Xxxxxxxx Xxxxxx ~~X. Xxxxxxxxxx~~ Title: ~~EVP and Chief Financial Officer UNITED STATES DEPARTMENT OF THE TREASURY, as Selling Shareholder By: /s/ Xxxxxx Xxxxx Name: Xxxxxx Xxxxx Title: Chief Investment Officer~~ Managing Director CONFIRMED AND ACCEPTED, as of the date first above written: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED BARCLAYS CAPITAL INC. By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED By /s/ Xxxxxx Xxxxxx Name: Xxxxxx Xxxxxx Title: Managing Director By: BARCLAYS CAPITAL INC. By /s/ ~~Xxxxxxx X. Xxxxx For itself and~~ Xxxxxxxx Xxxx Name: Xxxxxxxx Xxxx Title: Vice President The public offering price per share for the Securities shall be as ~~Representative of~~ to each investor, the ~~other Underwriters named in Schedule A hereto~~price paid by such investor. The purchase price per share for the Securities to be paid by the several Underwriters shall ~~be $860.4073~~be, being an amount equal to the ~~initial~~ public offering price set forth ~~in Schedule B~~ above less $~~13.1027~~ 25.75 per share. Name of Underwriter Number of Securities Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ~~60,125 Xxxxxx Xxxxxxxx~~5,500,000 Barclays Capital Inc. 5,500,000 Total 11,000,000 1. The Selling Shareholder is selling 11,000,000 shares of Common Stock. 2. The Selling Shareholder has granted an option to the Underwriters, ~~LLC 1,625 XX Xxxx Capital~~severally and not jointly, ~~LLC 1,625 TBC Securities, LLC 1,625 Total 65,000~~ to purchase up to an additional 1,650,000 shares of Common Stock. 3. The ~~initial~~ public offering price per share for the Securities shall be ~~$873.51~~as to each investor, the price paid by such investor. None. Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated Barclays Capital Inc. as Underwriters c/o Merrill Lynch, Pierce, Xxxxxx & Xxxxx Incorporated Re: Proposed Offering by Selling Shareholder Dear Sirs: The ~~number~~ undersigned, a [stockholder]/[and a director] of ~~Securities~~ VWR Corporation, a Delaware corporation, understands that Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and Barclays Capital Inc. as underwriters propose to ~~be sold by~~ enter into an Underwriting Agreement (the “Underwriting Agreement”) with the Company and the Selling Shareholder ~~shall~~ providing for the public offering of shares (the “Public Offering”) of the Company’s common stock, par value $0.01 per share (the “Securities”). In recognition of the benefit that such an offering will confer upon the undersigned as [a stockholder]/[and a director] of the Company, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned agrees with each underwriter to be ~~65,000~~named in the Underwriting Agreement that, during the period commencing on the date hereof and ending on the date that is 60 days from the date of the final prospectus relating to the Public Offering (the “Prospectus”), the undersigned will not, without the prior written consent of each Underwriter directly or indirectly, (i) offer, 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 for the sale of, or otherwise dispose of or transfer any shares of the common stock of the Company (the “Common Stock”) or any securities convertible into or exchangeable or exercisable for Common Stock, whether now owned or hereafter acquired by the undersigned or with respect to which the undersigned has or hereafter acquires the power of disposition (collectively, the “Lock-Up Securities”), or file or cause to be filed any registration statement in connection therewith, under the Securities Act of 1933, as amended, or (ii) enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Lock-Up Securities, whether any such swap or transaction is to be settled by delivery of Common Stock or other securities, in cash or otherwise. ~~The settlement date / closing time shall~~ Notwithstanding the foregoing, and subject to the conditions below, the undersigned may transfer or sell the Lock-Up Securities without the prior written consent of the Underwriters; provided that (1) with respect to a distribution, transfer, exchange, conversion or sale made pursuant to clause (3)(i), (3)(ii), (3)(iii) or (3)(iv) below, the Underwriters receive a signed lock-up agreement for the balance of the lock-up period from each donee, trustee, distributee, or transferee, as the case may be, that is a record holder or a beneficial owner, as defined by Rule 13d-3 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), of the Lock-Up Securities following such transfer; (2) with respect to a distribution, transfer, exchange, conversion or sale made pursuant to clause (3)(i), (3)(ii), (3)(iii) or (3)(iv) below, such distribution, transfer, exchange, conversion or sale is not required to be ~~April~~ reported with the Securities and Exchange Commission on Form 4 in accordance with Section 16 of the Exchange Act (except with respect to a distribution, transfer, exchange, conversion or sale to or with the direct or indirect members of Varietal Distribution Holdings, LLC), and the undersigned does not otherwise voluntarily effect any such filing or report regarding such distribution, transfer, exchange, conversion or sale; and (3) such distribution, ~~2012. 1. NONE~~transfer, exchange, conversion or sale is made, or such transaction constitutes: (i) ~~Each~~ as a distribution, transfer (including by way of merger or consolidation), exchange, conversion or sale to or among the direct or indirect members of the ~~Registration Statement and~~ undersigned; (ii) to the undersigned’s affiliates or to any ~~post-effective amendment thereto has been declared effective~~ investment fund or other entity controlled or managed by the ~~Commission under~~ undersigned; (iii) as a bona fide gift or gifts; (iv) as a sale of Common Stock acquired by the 1933 Act. Each preliminary prospectus, each Issuer Free Writing Prospectus and the Prospectus have been filed as required by Rule 424(b) (without reliance on Rule 424(b)(8)) and Rule 433, as applicable, within the time period prescribed by, and undersigned in ~~compliance with, the 1933 Act Regulations. To the best of such counsel’s knowledge, no stop order suspending the effectiveness~~ open market transactions after completion of the ~~Registration Statement or any post~~Public Offering; (v) the entry into a written plan meeting the requirements of Rule 10b5-~~effective amendment thereto has been issued~~ 1 under the 1933 Act, no order preventing or suspending the use of any preliminary prospectus or the Prospectus or any amendment or supplement thereto has been issued and no proceedings for any of those purposes have been instituted or are pending or contemplated by the Securities and Exchange ~~Commission. (ii) The Registration Statement~~Act, ~~the General Disclosure Package and the Prospectus and each amendment or supplement~~ relating to the ~~Registration Statement~~sale of the Common Stock; provided, that (a) no sales or transfers of Common Stock occur during the General Disclosure Package and the Prospectus, as of their respective effective or deemed effective or issue dates (other than (1) the financial statements (including notes thereto) and supporting schedules included therein or omitted therefrom 60-day period referred to above and (2b) no public announcement or filing under the ~~documents incorporated~~ Exchange Act regarding the establishment of such plan shall be required or ~~deemed incorporated therein by reference, as to which such counsel need express no opinion), complied as to form in all material respects with the requirements~~ voluntarily made on behalf of the ~~1933 Act and the 1933 Act Regulations. (iii) The documents incorporated~~ undersigned or deemed incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus (other than the financial statements (including notes thereto) and supporting schedules included therein or omitted therefrom, as to which we express no opinion), when they were filed with the Commission, complied as to form in all material respects with the requirements of the 1934 Act and 1934 Act Regulations. (iv) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any Governmental Entity is necessary or required for the Company during the 60-day period referred to enter into, or perform their respective obligations under, the Operative Documents or the consummation of the transactions contemplated in the Underwriting Agreement, except or such as have been already obtained or as may be required under the 1933 Act, the 1933 Act Regulations, the securities laws of any state or non-U.S. jurisdiction or the rules of FINRA or by the Bank’s primary regulator for purposes of Section 7(e) of the Underwriting Agreement. (v) To the best of such counsel’s knowledge, there are no persons with registration rights or other similar rights to have any securities registered for sale pursuant to the Registration Statement or otherwise registered for sale or sold by the Company under the 1933 Act pursuant to the Underwriting Agreement.above; or (vi) ~~The Company is not required, or upon consummation of~~ the transactions contemplated in the Underwriting Agreement will be required, to register as an “investment company” under the 1940 Act. Although we assume no responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, General Disclosure Package or Prospectus, nothing has come transfer to the ~~attention~~ Company of shares of Common Stock upon the vesting, conversion, exercise or exchange of securities convertible into or exercisable or exchangeable for Common Stock (A) deemed to occur upon the cashless exercise of such ~~counsel~~ securities provided that ~~has lead such counsel to believe that (1)~~ the ~~Registration Statement or any amendment thereto, including any information deemed~~ shares received upon exercise shall continue to be ~~a part thereof pursuant~~ subject to ~~Rule 430B~~the restrictions on transfer set forth in this Letter Agreement and provided, ~~at the time such Registration Statement~~ further that any public report or ~~any such amendment became effective or as of the “new effective date,” contained an untrue statement of a material fact or omitted to state a material fact~~ filing required to be ~~stated therein~~ made under Section 16(a) of the Exchange Act shall clearly indicate in the footnotes thereto that the filing relates to the “cashless” or ~~necessary to make the statements therein not misleading, (2) the General Disclosure Package, at the Applicable Time, included an untrue statement~~ “net” exercise of a ~~material fact or omitted to state a material fact necessary in order to make~~ stock option, that no shares were sold by the ~~statements therein, in~~ reporting person and that the light of circumstances under which they were made, not misleading or (3) the Prospectus or any amendment or supplement thereto, at the time the Prospectus was issued, at the time any such amended or supplemented prospectus was issued or at the Closing Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light shares received upon exercise of the ~~circumstances under which they were made, not misleading; it being understood that such counsel makes no statement as~~ stock option are subject to ~~any financial statements (including notes thereto), supporting schedules and other financial data included in~~ a lock-up letter agreement with the Registration Statement, the General Disclosure Package and the Prospectus or omitted therefrom. 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 Underwriters 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). (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, to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and to enter into and perform its obligations underPublic Offering, and to consummate the transactions contemplated under, the Operative Documents. (iii) The Company is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended. (iv) The Significant Subsidiary has been duly organized and is validly existing and provided further that no other public announcement shall be required or shall be made voluntarily in good standing under the laws of the jurisdiction of its organization, has the requisite corporate power and authority to own, lease and operate its properties, to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and. To connection with such ~~counsel’s knowledge, except as otherwise described in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding shares of capital stock of~~ transfer or other equity interests in the Significant Subsidiary have been duly authorized and validly issued, are fully paid and non-assessable and are owned by the Company, directly or through subsidiaries, to the best of such counsel’s knowledge free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity. To such counsel’s knowledge, none of the outstanding shares of capital stock of or other equity interests in the Significant Subsidiary were issued in violation of the preemptive or similar rights of any securityholder of such Significant Subsidiary or any other entity. (v) The deposit accounts of each of the Company’s banking subsidiaries are insured up to the applicable limits by the Deposit Insurance Fund of the FDIC to the fullest extent permitted by law and the rules and regulations of the FDIC, and, to the best of such counsel’s knowledge, no proceeding for the revocation or termination of such insurance is pending or threatened. (vi) To the best of such counsel’s knowledge, except as described in the Registration Statement, the General Disclosure Package and the Prospectus, (A) neither the Company nor any of its subsidiaries is subject or party to, or has received any notice or advice from any Regulatory Agency that any of them are reasonably expected to become subject or party to any investigation with respect to, any Regulatory Agreement, (B) ~~neither~~ for the ~~Company nor~~ purpose of paying the exercise price of such securities or for paying taxes (including estimated taxes) due as a result of the exercise of such securities provided that any of its subsidiaries has been advised by any Regulatory Agency that it is considering issuing or requesting any Regulatory Agreement, (C) there is no unresolved violation, criticism or exception by any Regulatory Agency with respect to any public report or statement relating to any examinations of the Company or any of its subsidiaries and (D) the Company and its subsidiaries are in compliance in all material respects with all laws administered by the Regulatory Agencies. (vii) Each of the Company and the Significant Subsidiary (A) is duly qualified 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 and (B) holds all Governmental Licenses issued by Governmental Entities necessary to conduct the business now operated by them, except where the failure so to qualify or to be in good standing or to hold any such Governmental Licenses would not, singly or in the aggregate, result in a Material Adverse Effect. (viii) The outstanding shares of capital stock of the Company, including the Securities, have been duly authorized and validly issued and are fully paid and non-assessable. To such counsel’s knowledge, none of the outstanding shares of capital stock of the Company, including the Securities, were issued in violation of the preemptive or other similar rights of any securityholder of the Company or any other entity. (ix) The Underwriting Agreement has been duly authorized, executed and delivered by each of the Company and the Bank. (x) The Certificate of Designations for the Securities has been duly filed with the Secretary of State of the State of Delaware. The form of certificate representing the Securities complies in all material respects with the requirements of Delaware state law, the Charter and the By-Laws. (xi) To the best of such counsel’s knowledge, except as described in the Registration Statement, the General Disclosure Package and the Prospectus, there is no action, suit, proceeding, inquiry or investigation before or brought by any Governmental Entity now pending or threatened against or affecting the Company or any of its subsidiaries which could, singly or in the aggregate, result in a Material Adverse Effect, or which might reasonably be expected to materially and adversely affect their respective properties, assets or operations or the consummation of the transactions contemplated in the Underwriting Agreement or the performance by the Company of its obligations under the Operative Documents. The aggregate of all pending legal or governmental proceedings known to such counsel to which the Company or any of its subsidiaries are a party or of which any of their respective properties, assets or operations are the subject which are not described in the Registration Statement, the General Disclosure Package and the Prospectus, including ordinary routine litigation incidental to the business, would not, singly or in the aggregate, result in a Material Adverse Effect. (xii) The information in the Registration Statement, the General Disclosure Package and the Prospectus under “Description of Capital Stock,” “Description of Series A Preferred Stock” and “Certain Material United States Federal Income Tax Considerations” or comparable captions and the information in the Registration Statement under “Item 15—Indemnification of Officers and Directors,” in each case to the extent that such information constitutes matters of law, summaries of legal matters, the Charter, By-Laws or legal proceedings, or legal conclusions, has been reviewed by such counsel and is correct in all material respects. (xiii) All descriptions in the Registration Statement, the General Disclosure Package and the Prospectus of contracts and other documents to which the Company or any of its subsidiaries are a party are accurate in all material respects. To the best of such counsel’s knowledge, there are no contracts, instruments or other documents filing required to be ~~described~~ made under Section 16(a) of the Exchange Act shall clearly indicate in the ~~Registration Statement, any preliminary prospectus~~ footnotes thereto that the purpose of such transfer is to cover such tax obligations or the ~~Prospectus~~ payment of taxes due in connection with the vesting event, and provided further that no other public announcement shall be required or to shall be ~~filed as exhibits to the Registration Statement which have not been so described and filed as required~~made voluntarily in connection with such transfer. (xiv) To the best of such counsel’s knowledge, the execution, delivery and performance of the Operative Documents and the consummation of the transactions contemplated in the Underwriting Agreement and in the Registration Statement, [including the purchase by the Company of Securities in the offering,] the General Disclosure Package and the Prospectus and compliance by the Company with its obligations under the Operative Documents 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 ____) under, or result in the creation or imposition of any lien, charge or encumbrance upon

Appears in 1 contract

Samples: Underwriting Agreement (VWR Corp)

Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof. If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the ~~Underwriters, the Company, the Bank~~ Underwriters and the ~~Selling Shareholder~~ Company in accordance with its terms. Very truly yours, ~~FIRST FINANCIAL HOLDINGS~~INOZYME PHARMA, INC. ~~By:~~ By /s/ ~~Xxxxxx~~ Xxxxxxx X. Xxxxxxxxxx Name: Xxxxxx X. Xxxxxxxxxx Title: EVP and Chief Financial Officer FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF CHARLESTON By: /s/ Xxxxxx X. Xxxxxxxxxx Name: Xxxxxx X. Xxxxxxxxxx Title: EVP and Chief Financial Officer UNITED STATES DEPARTMENT OF THE TREASURY, as Selling Shareholder By: /s/ Xxxxxx Xxxxx Name: Xxxxxx Xxxxx Title: Chief ~~Investment~~ Executive Officer Name: Xxxxxxx X. Xxxxx CONFIRMED AND ACCEPTED, as of the date first above written: ~~XXXXXXX LYNCH~~BOFA SECURITIES, ~~PIERCE, XXXXXX & XXXXX By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX By:~~ INC. By /s/ Xxxxxxx ~~X. Xxxxx~~ Xxxxxx Xxxxxxx XXXXX AND COMPANY, LLC By /s/ Xxxx Xxxxxx XXXXX XXXXXXX & CO. By /s/ Xxxx Xxxxxxxxxx For ~~itself~~ themselves and as ~~Representative~~ Representatives of the other Underwriters named in Schedule A hereto. The public offering price per share for the Securities shall be $4.80. The purchase price per share for the Securities to be paid by the several Underwriters shall be $~~860.4073~~4.512, being an amount equal to the ~~initial~~ public offering price per share set forth ~~in Schedule B~~ above less $~~13.1027~~ 0.288 per share, subject to adjustment in accordance with Section 2(b) for dividends or distributions declared by the Company and payable on the Initial Securities but not payable on the Option Securities. Name of Underwriter Number of Initial Securities ~~Xxxxxxx Lynch~~BofA Securities, ~~Pierce, Xxxxxx &~~ Inc. 4,750,000 Xxxxx ~~Incorporated 60,125 Xxxxxx Xxxxxxxx~~and Company, LLC ~~1,625 XX Xxxx Capital~~3,437,500 Xxxxx Xxxxxxx & Co. 2,812,500 Wedbush Securities Inc. 875,000 Xxxxxxx & Company, LLC ~~1,625 TBC Securities~~625,000 Total 12,500,000 1. The Company is selling 12,500,000 shares of Common Stock. 2. The Company has granted an option to the Underwriters, ~~LLC 1,625 Total 65,000~~ severally and not jointly, to purchase up to an additional 1,875,000 shares of Common Stock. 3. The ~~initial~~ public offering price per share for the Securities shall be $~~873.51~~4.80. ~~The number~~ None. Written Testing-the-Waters Communication None. Form of ~~Securities~~ Lock-Up Agreement from Directors, Officers or Other Stockholders pursuant to Section 5(i) BofA Securities, Inc. Xxxxx and Company, LLC Xxxxx Xxxxxxx & Co. as Representatives of the several Underwriters to be ~~sold~~ named in the within-mentioned Underwriting Agreement c/o BofA Securities, Inc. One Bryant Park New York, New York 10036 Xxxxx and Company, LLC 000 Xxxxxxxxx, 00xx Floor New York, New York 10022 Xxxxx Xxxxxxx & Co. 000 Xxxxxxxx Xxxx, Xxxxx 000 Minneapolis, Minnesota 55402 Re: Proposed Public Offering by Inozyme Pharma, Inc. Dear Sirs/Madams: The undersigned, a stockholder, optionholder, officer and/or director, as applicable, of Inozyme Pharma, Inc., a Delaware corporation (the “Company”), understands that BofA Securities, Inc., Xxxxx and Company, LLC and Xxxxx Xxxxxxx & Co. (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”) with the Company and the other underwriters party thereto providing for the public offering (the “Public Offering”) of shares of the Company’s common stock, par value $0.0001 per share (the “Common Stock”). In recognition of the benefit that such an offering will confer upon the undersigned as a stockholder, optionholder, officer and/or director of the Company, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned agrees with each underwriter to be named in the Underwriting Agreement that, during the period beginning on the date hereof and ending on the date that is 60 days from the date of the Underwriting Agreement (the “Lock-Up Period”), the undersigned will not, without the prior written consent of the Representatives, (i) directly or indirectly, offer, 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 any shares of the Company’s Common Stock or any securities convertible into or exercisable or exchangeable for shares of Common Stock, whether now owned or hereafter acquired by the ~~Selling Shareholder~~ undersigned or with respect to which the undersigned has or hereafter acquires the power of disposition (collectively, the “Lock-Up Securities”), (ii) enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Lock-Up Securities, whether any such swap or transaction is to be settled by delivery of shares of Common Stock or other securities, in cash or otherwise or (iii) publicly disclose the intention to do any of the foregoing described in clauses (i) and (ii) above. Notwithstanding the foregoing, and subject to the conditions below, the undersigned may transfer or otherwise dispose of the Lock-Up Securities without the prior written consent of the Representatives, provided that (1) in the case of clauses (i) through (iv) below, the Representatives receive a signed lock-up agreement for the balance of the Lock-Up Period from each donee, trustee, distributee, or transferee, as the case may be, (2) (A) in the case of clauses (i) through (iv) below, such transfers are not required to be reported with the Securities and Exchange Commission (the “SEC”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and (B) in the case of clauses (v) through (viii) below, any such required Form 4 shall ~~be 65,000. The settlement date / closing time shall be April~~ state the reason for such transfer, (3) in the clauses of (i) through (v) below, ~~2012. 1. NONE~~such transfers are not dispositions for value, and (4) in the case of clauses (i) through (viii) below, the undersigned does not otherwise voluntarily effect any public filing or report regarding such transfers: (i) ~~Each of the Registration Statement and any post-effective amendment thereto has been declared effective by the Commission under the 1933 Act. Each preliminary prospectus~~as a bona fide gift or gifts, ~~each Issuer Free Writing Prospectus and the Prospectus have been filed as required by Rule 424(b) (without reliance on Rule 424(b)(8)) and Rule 433~~including to a trust, as applicable, within the time period prescribed by, and in compliance with, the 1933 Act Regulations. To the best of such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement educational institution or any post-effective amendment thereto has been issued under the 1933 Act, no order preventing or suspending the use of any preliminary prospectus or the Prospectus or any amendment or supplement thereto has been issued and no proceedings other entity established for ~~any of those purposes have been instituted or are pending or contemplated by the Securities and Exchange Commission.~~charitable purposes; or (ii) ~~The Registration Statement,~~ to any trust for the ~~General Disclosure Package and the Prospectus and each amendment~~ direct or supplement to the Registration Statement, the General Disclosure Package and the Prospectus, as of their respective effective or deemed effective or issue dates (other than (1) the financial statements (including notes thereto) and supporting schedules included therein or omitted therefrom and (2) the documents incorporated or deemed incorporated therein by reference, as to which such counsel need express no opinion), complied as to form in all material respects with the requirements indirect benefit of the ~~1933 Act and~~ undersigned or the ~~1933 Act Regulations.~~immediate family of the undersigned (for purposes of this agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin); or (iii) ~~The documents incorporated~~ as a distribution to general or ~~deemed incorporated by reference in the Registration Statement~~limited partners, ~~the General Disclosure Package and the Prospectus (~~members, stockholders or other ~~than the financial statements (including notes thereto) and supporting schedules included therein~~ equity holders or ~~omitted therefrom, as to which we express no opinion), when they were filed with the Commission, complied as to form in all material respects with the requirements~~ trust beneficiaries of the ~~1934 Act and 1934 Act Regulations.~~undersigned; or (iv) ~~No filing~~ to the undersigned’s affiliates or to any investment fund or other entity that, directly or indirectly, controls or manages, is controlled or managed by, or is under common control or management with, ~~or authorization, approval, consent, license, order, registration, qualification or decree of, any Governmental Entity is necessary or required for~~ the Company to enter into, or perform their respective obligations under, the Operative Documents or the consummation of the transactions contemplated in the Underwriting Agreement, except or such as have been already obtained or as may be required under the 1933 Act, the 1933 Act Regulations, the securities laws of any state or non-U.S. jurisdiction or the rules of FINRA or by the Bank’s primary regulator for purposes of Section 7(e) of the Underwriting Agreement.undersigned; or (v) ~~To the best of such counsel’s knowledge, there are no persons with registration rights~~ by will or other similar rights to have any securities registered for sale pursuant to the Registration Statement or otherwise registered for sale or sold by the Company under the 1933 Act pursuant to the Underwriting Agreement.intestacy; or (vi) ~~The~~ to the Company ~~is not required~~in connection with the vesting or exercise of restricted stock units, options, warrants or ~~upon consummation~~ other rights to acquire shares of Common Stock or any security convertible into or exercisable for shares of Common Stock of the ~~transactions contemplated~~ Company by way of net exercise and/or to cover withholding tax obligations in connection with such vesting or exercise pursuant to an employee benefit plan, restricted stock unit, option, warrant or other right disclosed in the ~~Underwriting Agreement will be required, to register as an “investment company” under the 1940 Act. Although we assume no responsibility~~ prospectus and prospectus supplement (including any documents incorporated by referenced therein) for the ~~accuracy~~Public Offering, ~~completeness or fairness~~ provided that any such shares of the ~~statements contained in the Registration Statement~~Common Stock issued upon exercise of such option, ~~General Disclosure Package~~ warrant or ~~Prospectus, nothing has come~~ other right shall be subject to the ~~attention~~ restrictions set forth herein; or (vii) pursuant to a court order or settlement agreement related to the distribution of assets in connection with the dissolution of a marriage or civil union; or (viii) to the Company pursuant to agreements under which the Company has exercised its option to repurchase such shares or has exercised a right of first refusal with respect to transfers of such ~~counsel that has lead such counsel~~ shares upon termination of service of the undersigned; or (ix) to ~~believe that~~ any nominee or custodian of a person or entity to whom a transfer or disposition would be permissible under clauses (1i) ~~the Registration Statement or any amendment thereto, including any information deemed~~ through (viii) above; or (x) to be a ~~part thereof~~ bona fide third party pursuant to ~~Rule 430B~~a merger, ~~at the time such Registration Statement~~ consolidation, tender offer or ~~any such amendment became effective or as~~ other similar transaction made to all holders of shares of the ~~“new effective date,” contained an untrue statement~~ Common Stock and involving a Change 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,~~ Control (2as defined below) the General Disclosure Package, at the Applicable Time, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of circumstances under which they were made, not misleading or (3) the Prospectus or any amendment or supplement thereto, at the time the Prospectus was issued, at the time any such amended or supplemented prospectus was issued or at the Closing Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; it being understood that such counsel makes no statement as to any financial statements (including notes thereto), supporting schedules and other financial data included in the Registration Statement, the General Disclosure Package and the Prospectus or omitted therefrom. 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). (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, to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and to enter into and perform its obligations under, and to consummate the transactions contemplated under, the Operative Documents. (iii) The Company is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended. (iv) The Significant Subsidiary has been duly organized and is validly existing and in good standing under the laws of the jurisdiction of its organization, has the requisite corporate power and authority to own, lease and operate its properties, to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and. To such counsel’s knowledge, except as otherwise described in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding shares of capital stock of or other equity interests in the Significant Subsidiary have been duly authorized and validly issued, are fully paid and non-assessable and are owned approved by the Company~~, directly or through subsidiaries, to the best of such counsel~~’s knowledge free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity. To such counsel’s knowledge, none of the outstanding shares of capital stock of or other equity interests in the Significant Subsidiary were issued in violation of the preemptive or similar rights of any securityholder of such Significant Subsidiary or any other entity. (v) The deposit accounts of each of the Company’s banking subsidiaries are insured up to the applicable limits by the Deposit Insurance Fund of the FDIC to the fullest extent permitted by law and the rules and regulations of the FDIC, and, to the best of such counsel’s knowledge, no proceeding for the revocation or termination of such insurance is pending or threatened. (vi) To the best of such counsel’s knowledge, except as described in the Registration Statement, the General Disclosure Package and the Prospectus, (A) neither the Company nor any of its subsidiaries is subject or party to, or has received any notice or advice from any Regulatory Agency that any of them are reasonably expected to become subject or party to any investigation with respect to, any Regulatory Agreement, (B) neither the Company nor any of its subsidiaries has been advised by any Regulatory Agency that it is considering issuing or requesting any Regulatory Agreement, (C) there is no unresolved violation, criticism or exception by any Regulatory Agency with respect to any report or statement relating to any examinations of the Company or any of its subsidiaries and (D) the Company and its subsidiaries are in compliance in all material respects with all laws administered by the Regulatory Agencies. (vii) Each of the Company and the Significant Subsidiary (A) is duly qualified 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 and (B) holds all Governmental Licenses issued by Governmental Entities necessary to conduct the business now operated by them, except where the failure so to qualify or to be in good standing or to hold any such Governmental Licenses would not, singly or in the aggregate, result in a Material Adverse Effect. (viii) The outstanding shares of capital stock of the Company, including the Securities, have been duly authorized and validly issued and are fully paid and non-assessable. To such counsel’s knowledge, none of the outstanding shares of capital stock of the Company, including the Securities, were issued in violation of the preemptive or other similar rights of any securityholder of the Company or any other entity. (ix) The Underwriting Agreement has been duly authorized, executed and delivered by each of the Company and the Bank. (x) The Certificate of Designations for the Securities has been duly filed with the Secretary of State of the State of Delaware. The form of certificate representing the Securities complies in all material respects with the requirements of Delaware state law, the Charter and the By-Laws. (xi) To the best of such counsel’s knowledge, except as described in the Registration Statement, the General Disclosure Package and the Prospectus, there is no action, suit, proceeding, inquiry or investigation before or brought by any Governmental Entity now pending or threatened against or affecting the Company or any of its subsidiaries which could, singly or in the aggregate, result in a Material Adverse Effect, or which might reasonably be expected to materially and adversely affect their respective properties, assets or operations or the consummation of the transactions contemplated in the Underwriting Agreement or the performance by the Company of its obligations under the Operative Documents. The aggregate of all pending legal or governmental proceedings known to such counsel to which the Company or any of its subsidiaries are a party or of which any of their respective properties, assets or operations are the subject which are not described in the Registration Statement, the General Disclosure Package and the Prospectus, including ordinary routine litigation incidental to the business, would not, singly or in the aggregate, result in a Material Adverse Effect. (xii) The information in the Registration Statement, the General Disclosure Package and the Prospectus under “Description of Capital Stock,” “Description of Series A Preferred Stock” and “Certain Material United States Federal Income Tax Considerations” or comparable captions and the information in the Registration Statement under “Item 15—Indemnification of Officers and Directors,” in each case to the extent that such information constitutes matters of law, summaries of legal matters, the Charter, By-Laws or legal proceedings, or legal conclusions, has been reviewed by such counsel and is correct in all material respects. (xiii) All descriptions in the Registration Statement, the General Disclosure Package and the Prospectus of contracts and other documents to which the Company or any of its subsidiaries are a party are accurate in all material respects. To the best of such counsel’s knowledge, there are no contracts, instruments or other documents required to be described in the Registration Statement, any preliminary prospectus or the Prospectus or to be filed as exhibits to the Registration Statement which have not been so described and filed as required. (xiv) To the best of such counsel’s knowledge, the execution, delivery and performance of the Operative Documents and the consummation of the transactions contemplated in the Underwriting Agreement and in the Registration Statement, [including the purchase by the Company of Securities in the offering,] the General Disclosure Package and the Prospectus and compliance by the Company with its obligations under the Operative Documents 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 board of~~, or default or Repayment Event (as defined in ____) under, or result in the creation or imposition of any lien, charge or encumbrance upon~~

Appears in 1 contract

Samples: Underwriting Agreement (Inozyme Pharma, Inc.)

Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof. [Signature page to Underwriting Agreement] If the foregoing is in accordance with your understanding of our agreement, please sign and return to the ~~Company~~ Transaction Entities a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the ~~Underwriters, the Company, the Bank~~ Underwriters and the ~~Selling Shareholder~~ Transaction Entities in accordance with its terms. Very truly yours, ~~FIRST FINANCIAL HOLDINGS~~AMERICAN HEALTHCARE REIT, INC. By: ~~/s/ Xxxxxx X. Xxxxxxxxxx~~ Name: Xxxxx Xxxxxx X. Xxxxxxxxxx Title: EVP and Chief Financial Officer FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF CHARLESTON By: /s/ Xxxxxx X. Xxxxxxxxxx Name: Xxxxxx X. Xxxxxxxxxx Title: EVP and Chief Financial Officer UNITED STATES DEPARTMENT OF THE TREASURY, as Selling Shareholder By: /s/ Xxxxxx Xxxxx Name: Xxxxxx Xxxxx Title: Chief ~~Investment~~ Executive Officer and President AMERICAN HEALTHCARE REIT HOLDINGS, LP By : CONFIRMED AND ACCEPTED, as of the date first above written: BOFA SECURITIES, INC. XXXXXX XXXXXXX ~~LYNCH, PIERCE, XXXXXX~~ & ~~XXXXX~~ CO. LLC By: ~~XXXXXXX LYNCH~~BOFA SECURITIES, ~~PIERCE, XXXXXX & XXXXX~~ INC. By Authorized Signatory By: ~~/s/ Xxxxxxx X.~~ XXXXXX XXXXXXX & CO. LLC By Authorized Signatory Name: Xxxxx Xxxxxx Title: Authorized Signatory [Signature page to Underwriting Agreement] If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Transaction Entities a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the Underwriters and the Transaction Entities in accordance with its terms. Very truly yours, AMERICAN HEALTHCARE REIT, INC. By Title: AMERICAN HEALTHCARE REIT HOLDINGS, LP. By Title: CONFIRMED AND ACCEPTED, as of the date first above written: BOFA SECURITIES, INC. XXXXXX XXXXXXX & CO. LLC By: BOFA SECURITIES, INC. By Authorized Signatory By: XXXXXX XXXXXXX & CO. LLC By Authorized Signatory ACTIVE/118442729.18 2 For ~~itself~~ themselves and as ~~Representative~~ Representatives of the other Underwriters named in Schedule A hereto. ACTIVE/118442729.18 Sch A-1 SCHEDULE A The initial public offering price per share for the Securities shall be $12.00. The purchase price per share for the Securities to be paid by the several Underwriters shall be $~~860.4073~~11.25, being an amount equal to the initial public offering price set forth ~~in Schedule B~~ above less $~~13.1027~~ 0.75 per share, subject to adjustment in accordance with Section 2(b) for dividends or distributions declared by the Company and payable on the Initial Securities but not payable on the Option Securities. Notwithstanding the above, the purchase price per share for the Reserved Securities to be paid by the several Underwriters shall be the initial public offering price set forth above. Name of Underwriter Number of Initial Securities BofA Securities, Inc. .................................................................................... 19,064,582 Xxxxxx Xxxxxxx ~~Lynch, Pierce, Xxxxxx~~ & ~~Xxxxx Incorporated 60,125 Xxxxxx Xxxxxxxx~~Co. LLC ......................................................................... 11,069,757 KeyBanc Capital Markets Inc. ..................................................................... 6,593,208 Citigroup Global Markets Inc. ..................................................................... 5,071,698 RBC Capital Markets, LLC ~~1,625 XX Xxxx Capital~~......................................................................... 2,789,434 Barclays Capital Inc. .................................................................................... 2,789,434 Truist Securities, ~~LLC 1,625 TBC~~ Inc. ................................................................................... 2,535,849 Citizens JMP Securities, LLC 1,625 Total 65,000 The initial public offering price per share for the Securities shall be $873.51. The number of Securities to be sold by the Selling Shareholder shall be 65,000. The settlement date / closing time shall be April 3, 2012. 1. NONE (i) Each of the Registration Statement and any post-effective amendment thereto has been declared effective by the Commission under the 1933 Act. Each preliminary prospectus, each Issuer Free Writing Prospectus and the Prospectus have been filed as required by Rule 424(b) (without reliance on Rule 424(b)(8)) and Rule 433, as applicable, within the time period prescribed by, and in compliance with, the 1933 Act Regulations. To the best of such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued under the 1933 Act, no order preventing or suspending the use of any preliminary prospectus or the Prospectus or any amendment or supplement thereto has been issued and no proceedings for any of those purposes have been instituted or are pending or contemplated by the Securities and Exchange Commission. (ii) The Registration Statement, the General Disclosure Package and the Prospectus and each amendment or supplement to the Registration Statement, the General Disclosure Package and the Prospectus, as of their respective effective or deemed effective or issue dates (other than (1) the financial statements (including notes thereto) and supporting schedules included therein or omitted therefrom and (2) the documents incorporated or deemed incorporated therein by reference, as to which such counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations. (iii) The documents incorporated or deemed incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus (other than the financial statements (including notes thereto) and supporting schedules included therein or omitted therefrom, as to which we express no opinion), when they were filed with the Commission, complied as to form in all material respects with the requirements of the 1934 Act and 1934 Act Regulations. (iv) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any Governmental Entity is necessary or required for the Company to enter into, or perform their respective obligations under, the Operative Documents or the consummation of the transactions contemplated in the Underwriting Agreement, except or such as have been already obtained or as may be required under the 1933 Act, the 1933 Act Regulations, the securities laws of any state or non-U.S. jurisdiction or the rules of FINRA or by the Bank’s primary regulator for purposes of Section 7(e) of the Underwriting Agreement. (v) To the best of such counsel’s knowledge, there are no persons with registration rights or other similar rights to have any securities registered for sale pursuant to the Registration Statement or otherwise registered for sale or sold by the Company under the 1933 Act pursuant to the Underwriting Agreement. (vi) The Company is not required, or upon consummation of the transactions contemplated in the Underwriting Agreement will be required, to register as an “investment company” under the 1940 Act. Although we assume no responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, General Disclosure Package or Prospectus, nothing has come to the attention of such counsel that has lead such counsel to believe that (1) the Registration Statement or any amendment thereto, including any information deemed to be a part thereof pursuant to Rule 430B, at the time such Registration Statement or any such amendment became effective or as of the “new effective date,” 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, (2) the General Disclosure Package, at the Applicable Time, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of circumstances under which they were made, not misleading or (3) the Prospectus or any amendment or supplement thereto, at the time the Prospectus was issued, at the time any such amended or supplemented prospectus was issued or at the Closing Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; it being understood that such counsel makes no statement as to any financial statements (including notes thereto), supporting schedules and other financial data included in the Registration Statement, the General Disclosure Package and the Prospectus or omitted therefrom. 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). (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, to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and to enter into and perform its obligations under, and to consummate the transactions contemplated under, the Operative Documents. (iii) The Company is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended. (iv) The Significant Subsidiary has been duly organized and is validly existing and in good standing under the laws of the jurisdiction of its organization, has the requisite corporate power and authority to own, lease and operate its properties, to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and. To such counsel’s knowledge, except as otherwise described in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding shares of capital stock of or other equity interests in the Significant Subsidiary have been duly authorized and validly issued, are fully paid and non-assessable and are owned by the Company, directly or through subsidiaries, to the best of such counsel’s knowledge free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity. To such counsel’s knowledge, none of the outstanding shares of capital stock of or other equity interests in the Significant Subsidiary were issued in violation of the preemptive or similar rights of any securityholder of such Significant Subsidiary or any other entity. (v) The deposit accounts of each of the Company’s banking subsidiaries are insured up to the applicable limits by the Deposit Insurance Fund of the FDIC to the fullest extent permitted by law and the rules and regulations of the FDIC, and, to the best of such counsel’s knowledge, no proceeding for the revocation or termination of such insurance is pending or threatened. (vi) To the best of such counsel’s knowledge, except as described in the Registration Statement, the General Disclosure Package and the Prospectus, (A) neither the Company nor any of its subsidiaries is subject or party to, or has received any notice or advice from any Regulatory Agency that any of them are reasonably expected to become subject or party to any investigation with respect to, any Regulatory Agreement, (B) neither the Company nor any of its subsidiaries has been advised by any Regulatory Agency that it is considering issuing or requesting any Regulatory Agreement, (C) there is no unresolved violation, criticism or exception by any Regulatory Agency with respect to any report or statement relating to any examinations of the Company or any of its subsidiaries and (D) the Company and its subsidiaries are in compliance in all material respects with all laws administered by the Regulatory Agencies. (vii) Each of the Company and the Significant Subsidiary (A) is duly qualified 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 and (B) holds all Governmental Licenses issued by Governmental Entities necessary to conduct the business now operated by them, except where the failure so to qualify or to be in good standing or to hold any such Governmental Licenses would not, singly or in the aggregate, result in a Material Adverse Effect. (viii) The outstanding shares of capital stock of the Company, including the ...................................................................... 2,282,264 Fifth Third Securities, have been duly authorized and validly issued and are fully paid and non-assessable. To such counsel’s knowledge, none of the outstanding shares of capital stock of the Company, including the Securities, were issued in violation of the preemptive or other similar rights of any securityholder of the Company or any other entity. Inc. ........................................................................... 1,521,509 Regions Securities LLC ............................................................................... 1,267,925 Credit Agricole Securities (ixUSA) The Underwriting Agreement has been duly authorized, executed and delivered by each of the Company and the Bank. (x) The Certificate of Designations for the Securities has been duly filed with the Secretary of State of the State of Delaware. The form of certificate representing the Securities complies in all material respects with the requirements of Delaware state law, the Charter and the By-Laws. (xi) To the best of such counsel’s knowledge, except as described in the Registration Statement, the General Disclosure Package and the Prospectus, there is no action, suit, proceeding, inquiry or investigation before or brought by any Governmental Entity now pending or threatened against or affecting the Company or any of its subsidiaries which could, singly or in the aggregate, result in a Material Adverse Effect, or which might reasonably be expected to materially and adversely affect their respective properties, assets or operations or the consummation of the transactions contemplated in the Underwriting Agreement or the performance by the Company of its obligations under the Operative Documents. The aggregate of all pending legal or governmental proceedings known to such counsel to which the Company or any of its subsidiaries are a party or of which any of their respective properties, assets or operations are the subject which are not described in the Registration Statement, the General Disclosure Package and the Prospectus, including ordinary routine litigation incidental to the business, would not, singly or in the aggregate, result in a Material Adverse Effect. (xii) The information in the Registration Statement, the General Disclosure Package and the Prospectus under “Description of Capital Stock,” “Description of Series A Preferred Stock” and “Certain Material United States Federal Income Tax Considerations” or comparable captions and the information in the Registration Statement under “Item 15—Indemnification of Officers and Directors,” in each case to the extent that such information constitutes matters of law, summaries of legal matters, the Charter, By-Laws or legal proceedings, or legal conclusions, has been reviewed by such counsel and is correct in all material respects. (xiii) All descriptions in the Registration Statement, the General Disclosure Package and the Prospectus of contracts and other documents to which the Company or any of its subsidiaries are a party are accurate in all material respects. To the best of such counsel’s knowledge, there are no contracts, instruments or other documents required to be described in the Registration Statement, any preliminary prospectus or the Prospectus or to be filed as exhibits to the Registration Statement which have not been so described and filed as required. (xiv) To the best of such counsel’s knowledge, the execution, delivery and performance of the Operative Documents and the consummation of the transactions contemplated in the Underwriting Agreement and in the Registration Statement, [including the purchase by the Company of Securities in the offering,] the General Disclosure Package and the Prospectus and compliance by the Company with its obligations under the Operative Documents 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 ____) under, or result in the creation or imposition of any lien, charge or encumbrance uponInc. ........................................................ 1,014,340 Total ................................................................................................ 56,000,000

Appears in 1 contract

Samples: Underwriting Agreement (American Healthcare REIT, Inc.)

Appears in 1 contract

Samples: Underwriting Agreement (JBG SMITH Properties)

Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof. If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company the Selling Shareholder a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the ~~Underwriters~~Underwriter, the ~~Company, the Bank~~ Company and the Selling Shareholder in accordance with its terms. Very truly yours, ~~FIRST FINANCIAL HOLDINGS, INC. By:~~ VWR CORPORATION By /s/ ~~Xxxxxx X. Xxxxxxxxxx~~ Xxxxxxx Xxxxx Name: ~~Xxxxxx X. Xxxxxxxxxx~~ Xxxxxxx Xxxxx Title: ~~EVP and~~ Senior Vice President, Chief Financial Officer ~~FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF CHARLESTON By:~~ VARIETAL DISTRIBUTION HOLDINGS, LLC By /s/ ~~Xxxxxx~~ Xxxxx X. ~~Xxxxxxxxxx Name: Xxxxxx X. Xxxxxxxxxx Title: EVP and Chief Financial Officer UNITED STATES DEPARTMENT OF THE TREASURY, as Selling Shareholder By: /s/ Xxxxxx~~ Xxxxx Name: ~~Xxxxxx~~ Xxxxx X. Xxxxx Title: ~~Chief Investment Officer~~ Assistant Secretary CONFIRMED AND ACCEPTED, as of the date first above written: ~~XXXXXXX LYNCH~~Xxxxxxx Lynch, ~~PIERCE~~Pierce, ~~XXXXXX~~ Xxxxxx & ~~XXXXX~~ Xxxxx Incorporated By: ~~XXXXXXX LYNCH~~Xxxxxxx Lynch, ~~PIERCE~~Pierce, ~~XXXXXX~~ Xxxxxx & ~~XXXXX By~~Xxxxx Incorporated By /s/ Xxxxx Xxxxxxx Name: ~~/s/~~ Xxxxx Xxxxxxx ~~X. Xxxxx For itself and~~ Title: Vice Chairman The public offering price per share for the Securities is, as ~~Representative of~~ to each investor, the ~~other Underwriters named in Schedule A hereto~~price paid by such investor. The purchase price per share for the Securities to be paid by the ~~several Underwriters~~ Underwriter shall be $~~860.4073, being an amount equal to the initial public offering price set forth in Schedule B less $13.1027~~ 29.30 per share. Name of Underwriter Number of Initial Securities Number of Option Securities Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ~~60,125 Xxxxxx Xxxxxxxx, LLC 1,625 XX Xxxx Capital, LLC 1,625 TBC Securities, LLC 1,625~~ 8,000,000 1,200,000 Total ~~65,000~~ 8,000,000 1,200,000 1. The ~~initial~~ Selling Shareholder is selling 8,000,000 shares of Common Stock. 2. The Selling Shareholder has granted an option to the Underwriter to purchase up to an additional 1,200,000 shares of Common Stock. 3. The public offering price per share for the Securities ~~shall be $873.51~~is, as to each investor, the price paid by such investor. None. Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated Xxx Xxxxxx Xxxx Xxx Xxxx, XX 00000 Facsimile: (000) 000 0000 Attention: Syndicate Department Re: Proposed Offering by Selling Shareholder Dear Sirs: The ~~number~~ undersigned, a [stockholder]/[and a director] of ~~Securities~~ VWR Corporation, a Delaware corporation, understands that, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated as underwriter, proposes to ~~be sold by~~ enter into an Underwriting Agreement (the “Underwriting Agreement”) with the Company and the Selling Shareholder ~~shall~~ providing for the public offering of shares (the “Public Offering”) of the Company’s common stock, par value $0.01 per share (the “Securities”). In recognition of the benefit that such an offering will confer upon the undersigned as [a stockholder]/[and a director] of the Company, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned agrees with the Underwriter to be ~~65,000~~named in the Underwriting Agreement that, during the period commencing on the date hereof and ending on the date that is 45 days from the date of the final prospectus relating to the Public Offering (the “Prospectus”), the undersigned will not, without the prior written consent of the Underwriter directly or indirectly, (i) offer, 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 for the sale of, or otherwise dispose of or transfer any shares of the common stock of the Company (the “Common Stock”) or any securities convertible into or exchangeable or exercisable for Common Stock, whether now owned or hereafter acquired by the undersigned or with respect to which the undersigned has or hereafter acquires the power of disposition (collectively, the “Lock-Up Securities”), or file or cause to be filed any registration statement in connection therewith, under the Securities Act of 1933, as amended, or (ii) enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Lock-Up Securities, whether any such swap or transaction is to be settled by delivery of Common Stock or other securities, in cash or otherwise. ~~The settlement date / closing time shall~~ Notwithstanding the foregoing, and subject to the conditions below, the undersigned may transfer or sell the Lock-Up Securities without the prior written consent of the Underwriter; provided that (1) with respect to a distribution, transfer, exchange, conversion or sale made pursuant to clause (3)(i), (3)(ii), (3)(iii) or (3)(iv) below, the Underwriter receives a signed lock-up agreement for the balance of the lock-up period from each donee, trustee, distributee, or transferee, as the case may be, that is a record holder or a beneficial owner, as defined by Rule 13d-3 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), of the Lock-Up Securities following such transfer; (2) with respect to a distribution, transfer, exchange, conversion or sale made pursuant to clause (3)(i), (3)(ii), (3)(iii) or (3)(iv) below, such distribution, transfer, exchange, conversion or sale is not required to be ~~April~~ reported with the Securities and Exchange Commission on Form 4 in accordance with Section 16 of the Exchange Act (except with respect to a distribution, transfer, exchange, conversion or sale to or with the direct or indirect members of Varietal Distribution Holdings, LLC), and the undersigned does not otherwise voluntarily effect any such filing or report regarding such distribution, transfer, exchange, conversion or sale; and (3) such distribution, ~~2012. 1. NONE~~transfer, exchange, conversion or sale is made, or such transaction constitutes: (i) ~~Each~~ as a distribution, transfer (including by way of merger or consolidation), exchange, conversion or sale to or among the direct or indirect members of the ~~Registration Statement and~~ undersigned; (ii) to the undersigned’s affiliates or to any ~~post-effective amendment thereto has been declared effective~~ investment fund or other entity controlled or managed by the ~~Commission under~~ undersigned; (iii) as a bona fide gift or gifts; (iv) as a sale of Common Stock acquired by the 1933 Act. Each preliminary prospectus, each Issuer Free Writing Prospectus and the Prospectus have been filed as required by Rule 424(b) (without reliance on Rule 424(b)(8)) and Rule 433, as applicable, within the time period prescribed by, and undersigned in ~~compliance with, the 1933 Act Regulations. To the best of such counsel’s knowledge, no stop order suspending the effectiveness~~ open market transactions after completion of the ~~Registration Statement or any post~~Public Offering; (v) the entry into a written plan meeting the requirements of Rule 10b5-~~effective amendment thereto has been issued~~ 1 under the 1933 Act, no order preventing or suspending the use of any preliminary prospectus or the Prospectus or any amendment or supplement thereto has been issued and no proceedings for any of those purposes have been instituted or are pending or contemplated by the Securities and Exchange ~~Commission. (ii) The Registration Statement~~Act, ~~the General Disclosure Package and the Prospectus and each amendment or supplement~~ relating to the ~~Registration Statement~~sale of the Common Stock; provided, that (a) no sales or transfers of Common Stock occur during the General Disclosure Package and the Prospectus, as of their respective effective or deemed effective or issue dates (other than (1) the financial statements (including notes thereto) and supporting schedules included therein or omitted therefrom 45-day period referred to above and (2b) no public announcement or filing under the ~~documents incorporated~~ Exchange Act regarding the establishment of such plan shall be required or ~~deemed incorporated therein by reference, as to which such counsel need express no opinion), complied as to form in all material respects with the requirements~~ voluntarily made on behalf of the ~~1933 Act and the 1933 Act Regulations. (iii) The documents incorporated~~ undersigned or deemed incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus (other than the financial statements (including notes thereto) and supporting schedules included therein or omitted therefrom, as to which we express no opinion), when they were filed with the Commission, complied as to form in all material respects with the requirements of the 1934 Act and 1934 Act Regulations. (iv) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any Governmental Entity is necessary or required for the Company during the 45-day period referred to enter into, or perform their respective obligations under, the Operative Documents or the consummation of the transactions contemplated in the Underwriting Agreement, except or such as have been already obtained or as may be required under the 1933 Act, the 1933 Act Regulations, the securities laws of any state or non-U.S. jurisdiction or the rules of FINRA or by the Bank’s primary regulator for purposes of Section 7(e) of the Underwriting Agreement. (v) To the best of such counsel’s knowledge, there are no persons with registration rights or other similar rights to have any securities registered for sale pursuant to the Registration Statement or otherwise registered for sale or sold by the Company under the 1933 Act pursuant to the Underwriting Agreement.above; or (vi) ~~The Company is not required, or upon consummation of~~ the transactions contemplated in the Underwriting Agreement will be required, to register as an “investment company” under the 1940 Act. Although we assume no responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, General Disclosure Package or Prospectus, nothing has come transfer to the ~~attention~~ Company of shares of Common Stock upon the vesting, conversion, exercise or exchange of securities convertible into or exercisable or exchangeable for Common Stock (A) deemed to occur upon the cashless exercise of such ~~counsel~~ securities provided that ~~has lead such counsel to believe that (1)~~ the ~~Registration Statement or any amendment thereto, including any information deemed~~ shares received upon exercise shall continue to be ~~a part thereof pursuant~~ subject to ~~Rule 430B~~the restrictions on transfer set forth in this Letter Agreement and provided, ~~at the time such Registration Statement~~ further that any public report or ~~any such amendment became effective or as of the “new effective date,” contained an untrue statement of a material fact or omitted to state a material fact~~ filing required to be ~~stated therein~~ made under Section 16(a) of the Exchange Act shall clearly indicate in the footnotes thereto that the filing relates to the “cashless” or ~~necessary to make the statements therein not misleading, (2) the General Disclosure Package, at the Applicable Time, included an untrue statement~~ “net” exercise of a ~~material fact or omitted to state a material fact necessary in order to make~~ stock option, that no shares were sold by the ~~statements therein, in~~ reporting person and that the light of circumstances under which they were made, not misleading or (3) the Prospectus or any amendment or supplement thereto, at the time the Prospectus was issued, at the time any such amended or supplemented prospectus was issued or at the Closing Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light shares received upon exercise of the ~~circumstances under which they were made, not misleading; it being understood that such counsel makes no statement as~~ stock option are subject to ~~any financial statements (including notes thereto), supporting schedules and other financial data included in~~ a lock-up letter agreement with the Registration Statement, the General Disclosure Package and the Prospectus or omitted therefrom. 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 Underwriter 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). (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, to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and to enter into and perform its obligations underPublic Offering, and to consummate the transactions contemplated under, the Operative Documents. (iii) The Company is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended. (iv) The Significant Subsidiary has been duly organized and is validly existing and provided further that no other public announcement shall be required or shall be made voluntarily in good standing under the laws of the jurisdiction of its organization, has the requisite corporate power and authority to own, lease and operate its properties, to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and. To connection with such ~~counsel’s knowledge, except as otherwise described in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding shares of capital stock of~~ transfer or other equity interests in the Significant Subsidiary have been duly authorized and validly issued, are fully paid and non-assessable and are owned by the Company, directly or through subsidiaries, to the best of such counsel’s knowledge free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity. To such counsel’s knowledge, none of the outstanding shares of capital stock of or other equity interests in the Significant Subsidiary were issued in violation of the preemptive or similar rights of any securityholder of such Significant Subsidiary or any other entity. (v) The deposit accounts of each of the Company’s banking subsidiaries are insured up to the applicable limits by the Deposit Insurance Fund of the FDIC to the fullest extent permitted by law and the rules and regulations of the FDIC, and, to the best of such counsel’s knowledge, no proceeding for the revocation or termination of such insurance is pending or threatened. (vi) To the best of such counsel’s knowledge, except as described in the Registration Statement, the General Disclosure Package and the Prospectus, (A) neither the Company nor any of its subsidiaries is subject or party to, or has received any notice or advice from any Regulatory Agency that any of them are reasonably expected to become subject or party to any investigation with respect to, any Regulatory Agreement, (B) ~~neither~~ for the ~~Company nor~~ purpose of paying the exercise price of such securities or for paying taxes (including estimated taxes) due as a result of the exercise of such securities provided that any of its subsidiaries has been advised by any Regulatory Agency that it is considering issuing or requesting any Regulatory Agreement, (C) there is no unresolved violation, criticism or exception by any Regulatory Agency with respect to any public report or statement relating to any examinations of the Company or any of its subsidiaries and (D) the Company and its subsidiaries are in compliance in all material respects with all laws administered by the Regulatory Agencies. (vii) Each of the Company and the Significant Subsidiary (A) is duly qualified 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 and (B) holds all Governmental Licenses issued by Governmental Entities necessary to conduct the business now operated by them, except where the failure so to qualify or to be in good standing or to hold any such Governmental Licenses would not, singly or in the aggregate, result in a Material Adverse Effect. (viii) The outstanding shares of capital stock of the Company, including the Securities, have been duly authorized and validly issued and are fully paid and non-assessable. To such counsel’s knowledge, none of the outstanding shares of capital stock of the Company, including the Securities, were issued in violation of the preemptive or other similar rights of any securityholder of the Company or any other entity. (ix) The Underwriting Agreement has been duly authorized, executed and delivered by each of the Company and the Bank. (x) The Certificate of Designations for the Securities has been duly filed with the Secretary of State of the State of Delaware. The form of certificate representing the Securities complies in all material respects with the requirements of Delaware state law, the Charter and the By-Laws. (xi) To the best of such counsel’s knowledge, except as described in the Registration Statement, the General Disclosure Package and the Prospectus, there is no action, suit, proceeding, inquiry or investigation before or brought by any Governmental Entity now pending or threatened against or affecting the Company or any of its subsidiaries which could, singly or in the aggregate, result in a Material Adverse Effect, or which might reasonably be expected to materially and adversely affect their respective properties, assets or operations or the consummation of the transactions contemplated in the Underwriting Agreement or the performance by the Company of its obligations under the Operative Documents. The aggregate of all pending legal or governmental proceedings known to such counsel to which the Company or any of its subsidiaries are a party or of which any of their respective properties, assets or operations are the subject which are not described in the Registration Statement, the General Disclosure Package and the Prospectus, including ordinary routine litigation incidental to the business, would not, singly or in the aggregate, result in a Material Adverse Effect. (xii) The information in the Registration Statement, the General Disclosure Package and the Prospectus under “Description of Capital Stock,” “Description of Series A Preferred Stock” and “Certain Material United States Federal Income Tax Considerations” or comparable captions and the information in the Registration Statement under “Item 15—Indemnification of Officers and Directors,” in each case to the extent that such information constitutes matters of law, summaries of legal matters, the Charter, By-Laws or legal proceedings, or legal conclusions, has been reviewed by such counsel and is correct in all material respects. (xiii) All descriptions in the Registration Statement, the General Disclosure Package and the Prospectus of contracts and other documents to which the Company or any of its subsidiaries are a party are accurate in all material respects. To the best of such counsel’s knowledge, there are no contracts, instruments or other documents filing required to be ~~described~~ made under Section 16(a) of the Exchange Act shall clearly indicate in the ~~Registration Statement, any preliminary prospectus~~ footnotes thereto that the purpose of such transfer is to cover such tax obligations or the ~~Prospectus~~ payment of taxes due in connection with the vesting event, and provided further that no other public announcement shall be required or to shall be ~~filed as exhibits to the Registration Statement which have not been so described and filed as required~~made voluntarily in connection with such transfer. (xiv) To the best of such counsel’s knowledge, the execution, delivery and performance of the Operative Documents and the consummation of the transactions contemplated in the Underwriting Agreement and in the Registration Statement, [including the purchase by the Company of Securities in the offering,] the General Disclosure Package and the Prospectus and compliance by the Company with its obligations under the Operative Documents 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 ____) under, or result in the creation or imposition of any lien, charge or encumbrance upon

Appears in 1 contract

Samples: Underwriting Agreement (VWR Corp)

Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof. If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the ~~Underwriters, the Company, the Bank~~ Underwriters and the ~~Selling Shareholder~~ Company in accordance with its terms. Very truly yours, ~~FIRST FINANCIAL HOLDINGS, INC. By:~~ BRUKER CORPORATION By /s/ Gxxxxx X. Xxxxxx ~~X. Xxxxxxxxxx~~ Name: Gxxxxx X. Xxxxxx ~~X. Xxxxxxxxxx~~ Title: ~~EVP~~ Executive Vice President and Chief Financial Officer FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF CHARLESTON By: /s/ Xxxxxx X. Xxxxxxxxxx Name: Xxxxxx X. Xxxxxxxxxx Title: EVP and Chief Financial Officer UNITED STATES DEPARTMENT OF THE TREASURY, as Selling Shareholder By: /s/ Xxxxxx Xxxxx Name: Xxxxxx Xxxxx Title: Chief Investment Officer CONFIRMED AND ACCEPTED, as of the date first above written: ~~XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX~~ By: ~~XXXXXXX LYNCH~~BOFA SECURITIES, ~~PIERCE, XXXXXX & XXXXX~~ INC. By: /s/ ~~Xxxxxxx X. Xxxxx For itself and as Representative of the other Underwriters named in Schedule A hereto.~~ Sxxxxx Xxxxxxxxx J.X. XXXXXX SECURITIES LLC By: J.X. XXXXXX SECURITIES LLC By: /s/ Dxxxx Xx [Signature page to Underwriting Agreement] The purchase price per share for the Securities to be paid by the ~~several~~ Underwriters shall be $~~860.4073~~67.29, ~~being an amount equal~~ subject to adjustment in accordance with Section 2(b) for dividends or distributions declared by the ~~initial public offering price set forth in Schedule B less $13.1027 per share~~Company and payable on the Initial Securities but not payable on the Option Securities. Name of Underwriter Number of Initial Securities ~~Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated 60,125 Xxxxxx Xxxxxxxx, LLC 1,625 XX Xxxx Capital, LLC 1,625 TBC~~ BofA Securities, Inc. 3,000,000 J.X. Xxxxxx Securities LLC ~~1,625~~ 3,000,000 Total ~~65,000~~ 6,000,000 1. The ~~initial public~~ Company is selling 6,000,000 shares of Common Stock. 2. The Company has granted an option to the Underwriters, severally and not jointly, to purchase up to an additional 900,000 shares of Common Stock. 3. The offering price ~~per share for the Securities~~ as to each investor shall be ~~$873.51~~the price paid by each investor. ~~The number of Securities to be sold by the Selling Shareholder shall be 65,000~~None. ~~The settlement date / closing time shall be April 3, 2012~~None. 1. ~~NONE~~Fxxxx X. Xxxxxxx, Ph.D. ~~(i) Each~~ 2. Gxxxxx X. Xxxxxx 3. Fxxxx Xxxxx, Ph.D. 4. Mxxx Xxxxx, Ph.D. 5. Bxxxxxxx Xxxxxx, Ph.D. 6. Juergen Srega 7. Wxxxxxx X. Xxxxxx, Ph.D. 8. Axxxxxx X. Xxxxxxx 9. Rxxxxx X. Xxxxxxxxx, Ph.D. 10. Bxxxxx X. Xxxxxxxx 11. Jxxx X. Xxxxxx 12. Rxxxxxx X. Xxxxxx 13. Cxxxxxx X. Friend, Ph.D. 14. Pxxxxx Xx, Ph.D. 15. Hxxxxxx X. Xxxxxxxx, Ph.D. [_], 2024 BofA Securities, Inc. J.X. Xxxxxx Securities LLC c/o BofA Securities, Inc. One Bryant Park New York, New York 10036 c/o J.X. Xxxxxx Securities LLC 300 Xxxxxxx Xxxxxx New York, New York 10179 Re: Proposed Public Offering of ~~the Registration Statement~~ Common Stock by Bruker Corporation Dear Ladies and ~~any post-effective amendment thereto has been declared effective by the Commission under the 1933 Act. Each preliminary prospectus~~Gentlemen: The undersigned, ~~each Issuer Free Writing Prospectus and the Prospectus have been filed as required by Rule 424(b) (without reliance on Rule 424(b)(8)) and Rule 433~~a securityholder and/or an officer and/or a director, as applicable, ~~within~~ of Bruker Corporation, a Delaware corporation (the ~~time period prescribed by~~“Company”), understands that BofA Securities, Inc. (“BofA”) and J.X. Xxxxxx Securities LLC (together, the “Underwriters”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”) with the Company providing for the public offering (the “Public Offering”) of shares of the Company’s common stock, par value $0.01 per share (the “Common Stock”). In recognition of the benefit that the Public Offering will confer upon the undersigned as a securityholder and/or an officer and/or a director, as applicable, of the Company, and ~~in compliance with~~for other good and valuable consideration, the ~~1933 Act Regulations. To~~ receipt and sufficiency of which are hereby acknowledged, the ~~best of such counsel’s knowledge~~undersigned agrees with the Underwriters that, ~~no stop order suspending~~ during the ~~effectiveness~~ period beginning on the date hereof and ending on the date that is 60 days from the date of the ~~Registration Statement~~ Underwriting Agreement (the “Lock-Up Period”), the undersigned will not, without the prior written consent of the Underewriters, (i) directly or indirectly, offer, 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, lend or otherwise transfer or dispose of any shares of the Company’s Common Stock or any ~~post-effective amendment thereto has been issued under the 1933 Act~~securities convertible into or exercisable or exchangeable for Common Stock, ~~no order preventing~~ whether now owned or suspending the use of any preliminary prospectus or the Prospectus or any amendment or supplement thereto has been issued and no proceedings for any of those purposes have been instituted or are pending or contemplated hereafter acquired by the undersigned or with respect to which the undersigned has or hereafter acquires the power of disposition (including, without limitation, Common Stock or such other securities which may be deemed to be beneficially owned by the undersigned in accordance with the rules and regulations of the U.S. Securities and Exchange Commission (the “Commission. ”) and securities which may be issued upon exercise of a stock option or warrant) (collectively, the “Lock-Up Securities”), or exercise any right with respect to the registration of any of the Lock-Up Securities, or file, cause to be filed or cause to be confidentially submitted any registration statement in connection therewith, under the Securities Act of 1933, as amended (the “Securities Act”) (ii) ~~The Registration Statement~~enter into any hedging, swap, loan or any other agreement or any transaction (including, without limitation, any short sale or the purchase or sale of, or entry into, any put or call option, or combination thereof, forward or any other derivative transaction or instrument, however described or defined) that transfers, in whole or in part, directly or indirectly, the ~~General Disclosure Package and the Prospectus and each amendment or supplement to the Registration Statement, the General Disclosure Package and the Prospectus, as~~ economic consequence of their respective effective or deemed effective or issue dates (other than (1) the financial statements (including notes thereto) and supporting schedules included therein or omitted therefrom and (2) the documents incorporated or deemed incorporated therein by reference, as to which such counsel need express no opinion), complied as to form in all material respects with the requirements ownership of the ~~1933 Act and the 1933 Act Regulations.~~ Lock-Up Securities, whether any such hedging, swap, loan or transaction is to be settled by delivery of Common Stock or other securities, in cash or otherwise, or (iii) ~~The documents incorporated or deemed incorporated by reference~~ publicly disclose the intention to do any of the foregoing described in clauses (i) and (ii) above during the ~~Registration Statement~~Lock-Up Period. Notwithstanding the foregoing, and subject to the conditions below, the ~~General Disclosure Package and~~ undersigned may, during the ~~Prospectus (other than~~ Lock-Up Period, without the financial statements (including notes thereto) and supporting schedules included therein or omitted therefrom, as to which we express no opinion), when they were filed with the Commission, complied as to form in all material respects with the requirements prior written consent of the ~~1934 Act and 1934 Act Regulations.~~Underwriters: (iva) ~~No filing with~~transfer the Lock-Up Securities as described below, or authorization, approval, consent, license, order, registration, qualification or decree of, any Governmental Entity is necessary or required for the Company to enter into, or perform their respective obligations under, the Operative Documents or the consummation of the transactions contemplated in the Underwriting Agreement, except or such as have been already obtained or as may be required under the 1933 Act, the 1933 Act Regulations, the securities laws of any state or non-U.S. jurisdiction or the rules of FINRA or by the Bank’s primary regulator for purposes of Section 7(e) of the Underwriting Agreement. (v) To the best of such counsel’s knowledge, there are no persons with registration rights or other similar rights to have any securities registered for sale pursuant to the Registration Statement or otherwise registered for sale or sold by the Company under the 1933 Act pursuant to the Underwriting Agreement. (vi) The Company is not required, or upon consummation of the transactions contemplated in the Underwriting Agreement will be required, to register as an “investment company” under the 1940 Act. Although we assume no responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, General Disclosure Package or Prospectus, nothing has come to the attention of such counsel that has lead such counsel to believe provided that (1) the ~~Registration Statement or any amendment thereto, including any information deemed to be~~ Underwriters receive a ~~part thereof pursuant to Rule 430B, at~~ signed lock-up agreement in the ~~time such Registration Statement or any such amendment became effective or as~~ form of this lock-up agreement for the balance of the ~~“new effective date,” contained an untrue statement of a material fact~~ Lock-Up Period from each donee, devisee, trustee, distributee, or ~~omitted to state a material fact required to be stated therein or necessary to make~~ transferee, as the ~~statements therein not misleading~~case may be, (2) any such transfer shall not involve a disposition for value, (3) such transfers are not required to be reported during the ~~General Disclosure Package~~Lock-Up Period with the Commission on Form 4 or Form 5 in accordance with Section 16(a) of the Securities Exchange Act of 1934, at as amended (the ~~Applicable Time~~“Exchange Act”), ~~included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein~~or, in the ~~light~~ case of clauses (i) through (v) and clause (ix) below, any such required filing shall clearly indicate in the footnotes thereto that the filing relates to circumstances ~~under which they were made~~described in such a clause, ~~not misleading or~~ and (34) the ~~Prospectus~~ undersigned does not otherwise voluntarily effect any public filing or ~~any amendment~~ report regarding such transfers: (i) as a bona fide gift or supplement thereto, at the time the Prospectus was issued, at the time any such amended or supplemented prospectus was issued or at the Closing Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; it being understood that such counsel makes no statement as to any financial statements (including notes thereto), supporting schedules and other financial data included in the Registration Statement, the General Disclosure Package and the Prospectus or omitted therefrom. 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 opinionsgifts, including, without limitation, ~~the Legal Opinion Accord of the ABA Section of Business Law (1991). (i) The Company has been duly incorporated and is validly existing as~~ to a ~~corporation in good standing under the laws of the State of Delaware.~~charitable organization or educational institution, or for bona fide estate planning purposes; (ii) ~~The Company has corporate power and authority to own~~by wxxx, ~~lease and operate its properties, to conduct its business as described in~~ testamentary document or intestate succession upon the ~~Registration Statement,~~ death of the ~~General Disclosure Package and the Prospectus and to enter into and perform its obligations under, and to consummate the transactions contemplated under, the Operative Documents.~~undersigned; (iii) ~~The Company is duly registered~~ by operation of law, such as pursuant to a ~~bank holding company under the Bank Holding Company Act of 1956~~qualified domestic order, ~~as amended.~~divorce settlement, divorce decree or separation agreement; (iv) ~~The Significant Subsidiary has been duly organized and is validly existing and in good standing under~~ pursuant to an order of a court or regulatory agency having jurisdiction over the ~~laws~~ undersigned; (v) to any corporation, partnership, limited liability company or other entity of which the undersigned or the immediate family (for purposes of this lock-up agreement, “immediate family” of the ~~jurisdiction~~ undersigned shall mean any relationship by blood, marriage, domestic partnership or adoption, not more remote than first cousin of ~~its organization, has~~ the ~~requisite corporate power~~ undersigned) of the undersigned are the legal and authority to own, lease and operate its properties, to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and. To such counsel’s knowledge, except as otherwise described in the Registration Statement, the General Disclosure Package and the Prospectus, beneficial owner of all of the ~~issued and~~ outstanding ~~shares~~ equity securities or similar interests; (vi) to a nominee or custodian of ~~capital stock of~~ a person or entity to whom a disposition or transfer would be permissible under clauses (i) through (v) above; (vii) to any immediate family member or any trust, partnership, limited liability company or other entity for the direct or indirect benefit of the undersigned or one or more immediate family members of the undersigned, or if the undersigned is a trust, to a trustor or beneficiary of the trust or to the estate of a beneficiary of such trust; (viii) if the undersigned is a corporation, partnership, limited liability company, trust or other business entity, (A) to another corporation, partnership, limited liability company, trust or other business entity that is an affiliate (as defined in Rule 405 promulgated under the Securities Act) of the undersigned, or to any investment fund or other entity controlling, controlled by, managing or managed by or under common control with the undersigned or affiliates of the undersigned (including, for the avoidance of doubt, where the undersigned is a partnership, to its general partner or a successor partnership or fund, or any other funds managed by such partnership), or (B) as part of a distribution to limited partners, limited liability company members or stockholders of the undersigned or holders of similar equity interests in the ~~Significant Subsidiary have been duly authorized and validly issued~~undersigned; or (ix) to the Company (1) upon a vesting event of any equity award granted under any equity incentive plan described in the prospectus relating to the Public Offering, ~~are fully paid and non-assessable and are owned~~ (2) pursuant to repurchases under a repurchase plan of the Company described in the prospectus relating to the Public Offering, or (3) upon the exercise by the ~~Company~~undersigned of options or conversion of restricted stock units granted under any equity incentive plan described in (1) in accordance with clause (b) below, ~~directly~~ in each case, on a “net” or ~~through subsidiaries~~“cashless” exercise basis, and/or to cover tax withholding obligations of the undersigned in connection therewith, provided, in each case, that (1) no Lock-Up Securities were sold by the undersigned other than such transfers to the ~~best of such counsel’s knowledge free~~ Company as described above and ~~clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity. To such counsel’s knowledge, none of~~ (2) the ~~outstanding~~ shares of ~~capital stock of~~ Common Stock received upon such exercise or ~~other equity interests~~ conversion continue to be subject to the restrictions on transfer set forth in ~~the Significant Subsidiary were issued in violation of the preemptive or similar rights of any securityholder of such Significant Subsidiary or any other entity.~~this lock-up agreement; (vb) ~~The deposit accounts of each of~~ exercise any rights to purchase, exchange or convert any stock options granted to the undersigned pursuant to the Company’s ~~banking subsidiaries are insured up~~ equity incentive plans described to in the prospectus relating to the ~~applicable limits by the Deposit Insurance Fund of the FDIC to the fullest extent permitted by law and the rules and regulations of the FDIC~~Public Offering, ~~and~~or any restricted stock units (including, ~~to the best of such counsel’s knowledge, no proceeding~~ for the ~~revocation or termination~~ avoidance of ~~such insurance is pending or threatened. (vi) To the best of such counsel’s knowledge~~doubt, ~~except as~~ and in each instance referred to in this lock-up agreement, any performance-based restricted stock units, which restricted stock units are described in the ~~Registration Statement~~prospectus relating to the Public Offering, provided that (1) the ~~General Disclosure Package and~~ shares of Common Stock received upon such exercise, exchange or conversion continue to be subject to the ~~Prospectus~~restrictions on transfer set forth in this lock-up agreement, (2) any required filing under Section 16 of the Exchange Act made during the Lock-Up Period related to such circumstances described in this clause (b) shall clearly indicate in the footnotes thereto that (A) ~~neither~~ the ~~Company nor any of its subsidiaries is subject or party to, or has received any notice or advice from any Regulatory Agency that any of them are reasonably expected~~ filing relates to ~~become subject or party to any investigation with respect to, any Regulatory Agreement~~the circumstances described in this clause (b), (B) ~~neither~~ the ~~Company nor any~~ shares of ~~its subsidiaries has been advised by any Regulatory Agency that it is considering issuing~~ Common Stock received upon such exercise, exchange or ~~requesting any Regulatory Agreement,~~ conversion continue to be subject to the restrictions on transfer set forth in this lock-up agreement and (C) ~~there is~~ no ~~unresolved violation~~shares of Common Stock were sold by the reporting person, ~~criticism~~ and (3) the undersigned does not otherwise voluntarily effect any other public filings or ~~exception by~~ reports regarding such exercise during the Lock-Up Period; and (c) sell or otherwise transfer to the Company upon the undersigned’s death, disability or termination of employment or other service relationship with the Company; provided that such shares of Common Stock were issued to the undersigned pursuant to an agreement or equity award granted pursuant to an employee benefit plan, option, warrant, restricted stock unit, restricted stock award or other right disclosed in the prospectus for the Public Offering; and provided further that (1) any ~~Regulatory Agency with respect to any report or statement relating to any examinations~~ required filing under Section 16 of the ~~Company or any of its subsidiaries and~~ Exchange Act made during the Lock-Up Period related to such circumstances described in this clause (Dc) shall clearly indicate in the ~~Company and its subsidiaries are in compliance in all material respects with all laws administered by the Regulatory Agencies. (vii) Each of the Company and the Significant Subsidiary~~ footnotes thereto that (A) ~~is duly qualified~~ the filing relates to ~~transact business and is~~ the circumstances described 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~~ this clause (c) and (B) ~~holds all Governmental Licenses issued~~ no Lock-Up Securities were sold by ~~Governmental Entities necessary~~ the reporting person other than such transfers to conduct the business now operated by them, except where the failure so to qualify or to be in good standing or to hold any such Governmental Licenses would not, singly or in the aggregate, result in a Material Adverse Effect. (viii) The outstanding shares of capital stock of the Company, including the Securities, have been duly authorized and validly issued and are fully paid and non-assessable. To such counsel’s knowledge, none of the outstanding shares of capital stock of the Company, including the Securities, were issued in violation of the preemptive or other similar rights of any securityholder of the Company or as described above and (2) the undersigned does not otherwise voluntarily effect any other ~~entity~~public filings or reports regarding such sales or transfers during the Lock-Up Period. (ix) The Underwriting Agreement has been duly authorized, executed and delivered by each of the Company and the Bank. (x) The Certificate of Designations for the Securities has been duly filed with the Secretary of State of the State of Delaware. The form of certificate representing the Securities complies in all material respects with the requirements of Delaware state law, the Charter and the By-Laws. (xi) To the best of such counsel’s knowledge, except as described in the Registration Statement, the General Disclosure Package and the Prospectus, there is no action, suit, proceeding, inquiry or investigation before or brought by any Governmental Entity now pending or threatened against or affecting the Company or any of its subsidiaries which could, singly or in the aggregate, result in a Material Adverse Effect, or which might reasonably be expected to materially and adversely affect their respective properties, assets or operations or the consummation of the transactions contemplated in the Underwriting Agreement or the performance by the Company of its obligations under the Operative Documents. The aggregate of all pending legal or governmental proceedings known to such counsel to which the Company or any of its subsidiaries are a party or of which any of their respective properties, assets or operations are the subject which are not described in the Registration Statement, the General Disclosure Package and the Prospectus, including ordinary routine litigation incidental to the business, would not, singly or in the aggregate, result in a Material Adverse Effect. (xii) The information in the Registration Statement, the General Disclosure Package and the Prospectus under “Description of Capital Stock,” “Description of Series A Preferred Stock” and “Certain Material United States Federal Income Tax Considerations” or comparable captions and the information in the Registration Statement under “Item 15—Indemnification of Officers and Directors,” in each case to the extent that such information constitutes matters of law, summaries of legal matters, the Charter, By-Laws or legal proceedings, or legal conclusions, has been reviewed by such counsel and is correct in all material respects. (xiii) All descriptions in the Registration Statement, the General Disclosure Package and the Prospectus of contracts and other documents to which the Company or any of its subsidiaries are a party are accurate in all material respects. To the best of such counsel’s knowledge, there are no contracts, instruments or other documents required to be described in the Registration Statement, any preliminary prospectus or the Prospectus or to be filed as exhibits to the Registration Statement which have not been so described and filed as required. (xiv) To the best of such counsel’s knowledge, the execution, delivery and performance of the Operative Documents and the consummation of the transactions contemplated in the Underwriting Agreement and in the Registration Statement, [including the purchase by the Company of Securities in the offering,] the General Disclosure Package and the Prospectus and compliance by the Company with its obligations under the Operative Documents 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 ____) under, or result in the creation or imposition of any lien, charge or encumbrance upon

Appears in 1 contract

Samples: Underwriting Agreement (Bruker Corp)

Appears in 1 contract

Samples: Underwriting Agreement (Hannon Armstrong Sustainable Infrastructure Capital, Inc.)

Appears in 1 contract

Samples: Underwriting Agreement (Equity One, Inc.)

Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof. If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the ~~Underwriters, the Company, the Bank~~ Underwriters and the ~~Selling Shareholder~~ Company in accordance with its terms. Very truly yours, ~~FIRST FINANCIAL HOLDINGS~~U.S. PHYSICAL THERAPY, INC. ~~By:~~ By /s/ ~~Xxxxxx X. Xxxxxxxxxx Name: Xxxxxx X. Xxxxxxxxxx~~ Rxxxxxx Xxxxxxxx Title: ~~EVP~~ Executive Vice President and Chief Financial Officer FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF CHARLESTON By: /s/ Xxxxxx X. Xxxxxxxxxx Name: Xxxxxx X. Xxxxxxxxxx Title: EVP and Chief Financial Officer UNITED STATES DEPARTMENT OF THE TREASURY, as Selling Shareholder By: /s/ Xxxxxx Xxxxx Name: Xxxxxx Xxxxx Title: Chief Investment Officer General Counsel CONFIRMED AND ACCEPTED, as of the date first above written: ~~XXXXXXX LYNCH~~BOFA SECURITIES, ~~PIERCE,~~ INC. By /s/ Sxxxx Xxxxxxxxx J.X. XXXXXX ~~& XXXXX By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX By:~~ SECURITIES LLC By /s/ Bxxxxxxx Xxxxxxx ~~X. Xxxxx~~ For ~~itself~~ themselves and as ~~Representative~~ Representatives of the other Underwriters named in Schedule A hereto. The initial public offering price per share for the Securities shall be $90.00. The purchase price per share for the Securities to be paid by the several Underwriters shall be $~~860.4073~~85.50, being an amount equal to the initial public offering price set forth ~~in Schedule B~~ above less $~~13.1027~~ 4.50 per share, subject to adjustment in accordance with Section 2(b) for dividends or distributions declared by the Company and payable on the Initial Securities but not payable on the Option Securities. Name of Underwriter Number of Initial Securities ~~Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated 60,125 Xxxxxx Xxxxxxxx, LLC 1,625 XX Xxxx Capital, LLC 1,625 TBC~~ BofA Securities, Inc. 708,333 J.X. Xxxxxx Securities LLC ~~1,625~~ 500,000 Jxxxxxxxx LLC 291,667 Regions Securities LLC 66,667 Barrington Research Associates, Inc. 50,000 CJS Securities, Inc. 50,000 Total ~~65,000~~ 1,666,667 1. The Company is selling 1,666,667 shares of Common Stock. 2. The Company has granted an option to the Underwriters, severally and not jointly, to purchase up to an additional 250,000 shares of Common Stock. 3. The initial public offering price per share for the Securities shall be $~~873.51~~90.00. None. Cxxxx X. Xxxxxxx Exxxxx X. Xxxxx Dx. Xxxxxxx X. Harris, Jr. Kxxxxxxx X. Xxxxxxxxx Axxx Xxxxxxxxxxxx Rxxxxxxx X. Xxxxxxx Cxxxxxx X. Xxxxx Nxxxx X. Xxx Rxxxxxx X. Xxxxxxxx Cxxxx X. Xxxxxxxxxxx Gxxxxx X. Xxxxx Exxx X. Xxxxxxxx [ ● ], 2023 BofA Securities, Inc. J.X. Xxxxxx Securities LLC as Representatives of the several Underwriters to be named in the within-mentioned Underwriting Agreement One Bryant Park New York, New York 10036 300 Xxxxxxx Xxxxxx New York, New York 10179 Re: Proposed Public Offering by U.S. Physical Therapy, Inc. Dear Sirs: The undersigned, a stockholder and an officer and/or director of U.S. Physical Therapy, Inc., a Nevada corporation (the “Company”), understands that BofA Securities, Inc. (“BofA”) and J.X. Xxxxxx Securities LLC (“J.X. Xxxxxx”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”) with the Company providing for the public offering of shares of the Company’s common stock, par value $0.01 per share (the “Common Stock”). In recognition of the benefit that such an offering will confer upon the undersigned as a stockholder and an officer and/or director of the Company, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned agrees with each underwriter to be named in the Underwriting Agreement that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the Underwriting Agreement (subject to extensions as discussed below), the undersigned will not, without the prior written consent of BofA and J.X. Xxxxxx, (i) directly or indirectly, offer, pledge, lend, 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 any shares of the Company’s Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, whether now owned or hereafter acquired by the undersigned or with respect to which the undersigned has or hereafter acquires the power of disposition (collectively, the “Lock-Up Securities”), or exercise any right with respect to the registration of any of the Lock-up Securities, or file or cause to be filed any registration statement in connection therewith, under the Securities Act of 1933, as amended, (ii) enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Lock-Up Securities, whether any such swap or transaction is to be settled by delivery of Common Stock or other securities, in cash or otherwise, or (iii) publicly disclose the intention to do any of the foregoing. The ~~number~~ undersigned acknowledges and agrees that the foregoing precludes the undersigned from engaging in any hedging or other transactions or arrangements (including, without limitation, any short sale or the purchase or sale of, or entry into, any put or call option, or combination thereof, forward, swap or any other derivative transaction or instrument, however described or defined) designed or intended, or which could reasonably be expected to lead to or result in, a sale or disposition or transfer (whether by the undersigned or any other person) of any economic consequences of ownership, in whole or in part, directly or indirectly, of any Lock-Up Securities, whether any such transaction or arrangement (or instrument provided for thereunder) would be settled by delivery of Lock-Up Securities, in cash or otherwise. Notwithstanding the foregoing, and subject to the conditions below, the undersigned may transfer the Lock-Up Securities without the prior written consent of BofA and J.X. Xxxxxx, provided that (1) BofA and J.X. Xxxxxx receive a signed lock-up agreement for the balance of the lockup period from each donee, trustee, distributee, or transferee, as the case may be, (2) any such transfer shall not involve a disposition for value, (3) such transfers are not required to be ~~sold by~~ reported with the ~~Selling Shareholder shall be 65,000. The settlement date / closing time shall be April 3~~Securities and Exchange Commission on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, ~~2012. 1. NONE~~as amended, and (4) the undersigned does not otherwise voluntarily effect any public filing or report regarding such transfers: (i) Each of the Registration Statement and any post-effective amendment thereto has been declared effective by the Commission under the 1933 Act. Each preliminary prospectus, each Issuer Free Writing Prospectus and the Prospectus have been filed as required by Rule 424(b) (without reliance on Rule 424(b)(8)) and Rule 433, as applicable, within the time period prescribed by, and in compliance with, the 1933 Act Regulations. To the best of such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement a bona fide gift or any post-effective amendment thereto has been issued under the 1933 Act, no order preventing or suspending the use of any preliminary prospectus or the Prospectus or any amendment or supplement thereto has been issued and no proceedings for any of those purposes have been instituted or are pending or contemplated by the Securities and Exchange Commission.gifts; or (ii) ~~The Registration Statement~~to any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned (for purposes of this lock-up agreement, “immediate family” shall mean any relationship by blood, marriage, domestic partnership or adoption, not more remote than first cousin); (iii) as a distribution to limited partners or stockholders of the ~~General Disclosure Package~~ undersigned; (iv) to any partnership, limited liability company or other entity of which the undersigned and the ~~Prospectus~~ immediate family of the undersigned are the legal and ~~each amendment~~ beneficial owner of all of the outstanding equity securities or ~~supplement~~ similar interests; (v) to any immediate family member or any investment fund or other entity controlled or managed by the undersigned; (vi) if the undersigned is a corporation, partnership, limited liability company, trust or other business entity, (A) to another corporation, partnership, limited liability company, trust or other business entity that is an affiliate (as defined in Rule 405 promulgated under the Securities Act of 1933, as amended) of the undersigned, or to any investment fund or other entity controlling, controlled by, managing or managed by or under common control with the undersigned or affiliates of the undersigned (including, for the avoidance of doubt, where the undersigned is a partnership, to its general partner or a successor partnership or fund, or any other funds managed by such partnership), or (B) as part of a distribution, transfer or disposition by the undersigned to its stockholders, limited partners, general partners, limited liability company members or other equityholders or to the ~~Registration Statement~~estate of any such stockholders, limited partners, general partners, limited liability company members or equityholders; (vii) by operation of law, such as pursuant to a qualified domestic order, divorce settlement, divorce decree or separation agreement; (viii) the ~~General Disclosure Package~~ establishment of a trading plan that meets the requirements of Rule 10b5-1(c) under the Exchange Act (a “Trading Plan”); provided, however, that (a) no transfer occur under such plan during the Lock-up Period and (b) no public announcement or filing under the Exchange Act shall be required or voluntarily made by or on behalf of the undersigned or the Company regarding the establishment of such plan during the Lock-Up Period; (ix) to the Underwriters pursuant to the Underwriting Agreement; or (x) (A) transfers to the Company in connection with the vesting, settlement, or exercise of restricted stock units, options, warrants or other rights to purchase shares of Common Stock (including, in each case, by way of “net” or “cashless” exercise), including for the payment of exercise price and tax and remittance payments due as a result of the vesting, settlement, or exercise of such restricted stock units, options, warrants or rights, or (B) transfers necessary (including transfers on the open market) to generate such amount of cash needed for the payment of taxes, including estimated taxes, due as a result of the vesting or settlement of restricted stock units whether by means of a “net settlement” or otherwise, and in all such cases described in subclauses (A) and (B), provided that any such shares of Common Stock received upon such exercise, vesting or settlement shall be subject to the terms of this agreement, and provided further that any such restricted stock units, options, warrants or rights are held by the undersigned pursuant to an agreement or equity awards granted under a stock incentive plan or other equity award plan, each such agreement or plan which is described in the Prospectus~~, as of their respective effective or deemed effective or issue dates (other than~~ ; provided that (1) any filing under Section 16 of the ~~financial statements~~ Exchange Act made during the Lock-Up Period shall clearly indicate in the footnotes thereto that (~~including notes thereto~~i) the filing relates to the circumstances described in the applicable clause and ~~supporting schedules included therein or omitted therefrom~~ (ii) to the extent applicable, the underlying shares of Common Stock continue to be subject to the restrictions on transfer set forth in this lock-up agreement and (2) the documents incorporated or deemed incorporated therein by reference, as to which such counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations. (iii) The documents incorporated or deemed incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus (other than the financial statements (including notes thereto) and supporting schedules included therein or omitted therefrom, as to which we express no opinion), when they were filed with the Commission, complied as to form in all material respects with the requirements of the 1934 Act and 1934 Act Regulations. (iv) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any Governmental Entity is necessary or required for the Company to enter into, or perform their respective obligations under, the Operative Documents or the consummation of the transactions contemplated in the Underwriting Agreement, except or such as have been already obtained or as may be required under the 1933 Act, the 1933 Act Regulations, the securities laws of any state or non-U.S. jurisdiction or the rules of FINRA or by the Bank’s primary regulator for purposes of Section 7(e) of the Underwriting Agreement. (v) To the best of such counsel’s knowledge, there are no persons with registration rights or other similar rights to have any securities registered for sale pursuant to the Registration Statement or undersigned does not otherwise registered for sale or sold by the Company under the 1933 Act pursuant to the Underwriting Agreement. (vi) The Company is not required, or upon consummation of the transactions contemplated in the Underwriting Agreement will be required, to register as an “investment company” under the 1940 Act. Although we assume no responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, General Disclosure Package or Prospectus, nothing has come to the attention of such counsel that has lead such counsel to believe that (1) the Registration Statement or any amendment thereto, including any information deemed to be a part thereof pursuant to Rule 430B, at the time such Registration Statement or any such amendment became effective or as of the “new effective date,” 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, (2) the General Disclosure Package, at the Applicable Time, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of circumstances under which they were made, not misleading or (3) the Prospectus or any amendment or supplement thereto, at the time the Prospectus was issued, at the time any such amended or supplemented prospectus was issued or at the Closing Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; it being understood that such counsel makes no statement as to any financial statements (including notes thereto), supporting schedules and other financial data included in the Registration Statement, the General Disclosure Package and the Prospectus or omitted therefrom. 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). (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, to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and to enter into and perform its obligations under, and to consummate the transactions contemplated under, the Operative Documents. (iii) The Company is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended. (iv) The Significant Subsidiary has been duly organized and is validly existing and in good standing under the laws of the jurisdiction of its organization, has the requisite corporate power and authority to own, lease and operate its properties, to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and. To such counsel’s knowledge, except as otherwise described in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding shares of capital stock of or other equity interests in the Significant Subsidiary have been duly authorized and validly issued, are fully paid and non-assessable and are owned by the Company, directly or through subsidiaries, to the best of such counsel’s knowledge free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity. To such counsel’s knowledge, none of the outstanding shares of capital stock of or other equity interests in the Significant Subsidiary were issued in violation of the preemptive or similar rights of any securityholder of such Significant Subsidiary or voluntarily effect any other ~~entity~~public filings or reports regarding such exercise during the Lock-Up Period. (v) The deposit accounts of each of the Company’s banking subsidiaries are insured up to the applicable limits by the Deposit Insurance Fund of the FDIC to the fullest extent permitted by law and the rules and regulations of the FDIC, and, to the best of such counsel’s knowledge, no proceeding for the revocation or termination of such insurance is pending or threatened. (vi) To the best of such counsel’s knowledge, except as described in the Registration Statement, the General Disclosure Package and the Prospectus, (A) neither the Company nor any of its subsidiaries is subject or party to, or has received any notice or advice from any Regulatory Agency that any of them are reasonably expected to become subject or party to any investigation with respect to, any Regulatory Agreement, (B) neither the Company nor any of its subsidiaries has been advised by any Regulatory Agency that it is considering issuing or requesting any Regulatory Agreement, (C) there is no unresolved violation, criticism or exception by any Regulatory Agency with respect to any report or statement relating to any examinations of the Company or any of its subsidiaries and (D) the Company and its subsidiaries are in compliance in all material respects with all laws administered by the Regulatory Agencies. (vii) Each of the Company and the Significant Subsidiary (A) is duly qualified 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 and (B) holds all Governmental Licenses issued by Governmental Entities necessary to conduct the business now operated by them, except where the failure so to qualify or to be in good standing or to hold any such Governmental Licenses would not, singly or in the aggregate, result in a Material Adverse Effect. (viii) The outstanding shares of capital stock of the Company, including the Securities, have been duly authorized and validly issued and are fully paid and non-assessable. To such counsel’s knowledge, none of the outstanding shares of capital stock of the Company, including the Securities, were issued in violation of the preemptive or other similar rights of any securityholder of the Company or any other entity. (ix) The Underwriting Agreement has been duly authorized, executed and delivered by each of the Company and the Bank. (x) The Certificate of Designations for the Securities has been duly filed with the Secretary of State of the State of Delaware. The form of certificate representing the Securities complies in all material respects with the requirements of Delaware state law, the Charter and the By-Laws. (xi) To the best of such counsel’s knowledge, except as described in the Registration Statement, the General Disclosure Package and the Prospectus, there is no action, suit, proceeding, inquiry or investigation before or brought by any Governmental Entity now pending or threatened against or affecting the Company or any of its subsidiaries which could, singly or in the aggregate, result in a Material Adverse Effect, or which might reasonably be expected to materially and adversely affect their respective properties, assets or operations or the consummation of the transactions contemplated in the Underwriting Agreement or the performance by the Company of its obligations under the Operative Documents. The aggregate of all pending legal or governmental proceedings known to such counsel to which the Company or any of its subsidiaries are a party or of which any of their respective properties, assets or operations are the subject which are not described in the Registration Statement, the General Disclosure Package and the Prospectus, including ordinary routine litigation incidental to the business, would not, singly or in the aggregate, result in a Material Adverse Effect. (xii) The information in the Registration Statement, the General Disclosure Package and the Prospectus under “Description of Capital Stock,” “Description of Series A Preferred Stock” and “Certain Material United States Federal Income Tax Considerations” or comparable captions and the information in the Registration Statement under “Item 15—Indemnification of Officers and Directors,” in each case to the extent that such information constitutes matters of law, summaries of legal matters, the Charter, By-Laws or legal proceedings, or legal conclusions, has been reviewed by such counsel and is correct in all material respects. (xiii) All descriptions in the Registration Statement, the General Disclosure Package and the Prospectus of contracts and other documents to which the Company or any of its subsidiaries are a party are accurate in all material respects. To the best of such counsel’s knowledge, there are no contracts, instruments or other documents required to be described in the Registration Statement, any preliminary prospectus or the Prospectus or to be filed as exhibits to the Registration Statement which have not been so described and filed as required. (xiv) To the best of such counsel’s knowledge, the execution, delivery and performance of the Operative Documents and the consummation of the transactions contemplated in the Underwriting Agreement and in the Registration Statement, [including the purchase by the Company of Securities in the offering,] the General Disclosure Package and the Prospectus and compliance by the Company with its obligations under the Operative Documents 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 ____) under, or result in the creation or imposition of any lien, charge or encumbrance upon

Appears in 1 contract

Samples: Underwriting Agreement (U S Physical Therapy Inc /Nv)

Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof. If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company and the Selling Stockholders a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the Underwriters, the ~~Company, the Bank~~ Company and the Selling ~~Shareholder~~ Stockholders in accordance with its terms. Very truly yours, ~~FIRST FINANCIAL HOLDINGS~~PURPLE INNOVATION, INC. ~~By:~~ By /s/ Xxxxxx X. ~~Xxxxxxxxxx~~ Xxxxxxx Name: Xxxxxx X. Xxxxxxxxxx Title: EVP and Chief Financial Officer FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF CHARLESTON By: /s/ Xxxxxx X. Xxxxxxxxxx Name: Xxxxxx X. Xxxxxxxxxx Title: EVP and Chief Financial Officer UNITED STATES DEPARTMENT OF THE TREASURY, as Selling Shareholder By: /s/ Xxxxxx Xxxxx Name: Xxxxxx Xxxxx Xxxxxxx Title: Chief ~~Investment~~ Executive Officer INNOHOLD, LLC By /s/ Xxxx X. Xxxxxx Name: Xxxx X. Xxxxxx Title: Manager XXXX X. XXXXXX By /s/ Xxxx X. Xxxxxx XXXXX X. XXXXXX By /s/ Xxxxx X. Xxxxxx CONFIRMED AND ACCEPTED, as of the date first above written: ~~XXXXXXX LYNCH~~BOFA SECURITIES, ~~PIERCE, XXXXXX~~ INC. XXXXXXXXXXX & ~~XXXXX~~ CO. INC. By: ~~XXXXXXX LYNCH~~BOFA SECURITIES, ~~PIERCE, XXXXXX & XXXXX~~ INC. By /s/ Xxx Xxxx Authorized Signatory By: XXXXXXXXXXX & CO. INC. By /s/ Xxxxx Xxxxxxx ~~X. Xxxxx~~ Authorized Signatory For ~~itself~~ themselves and as ~~Representative~~ Representatives of the other Underwriters named in Schedule A hereto. The public offering price per share for the Securities shall be $7.00. The purchase price per share for the Securities to be paid by the several Underwriters shall be $~~860.4073~~6.58, being an amount equal to the ~~initial~~ public offering price set forth ~~in Schedule B~~ above less $~~13.1027~~ 0.42 per share, subject to adjustment in accordance with Section 2(b) for dividends or distributions declared by the Company and payable on the Initial Securities but not payable on the Option Securities. Name of Underwriter Number of Initial Securities BofA Securities, Inc. 4,778,000 Xxxxxxxxxxx & Co. Inc. 3,185,000 KeyBanc Capital Markets Inc. 815,000 Xxxxxxx ~~Lynch~~Xxxxx & Associates, ~~Pierce, Xxxxxx & Xxxxx Incorporated 60,125 Xxxxxx Xxxxxxxx~~Inc. 815,000 Wedbush Securities Inc. 407,000 Total 10,000,000 InnoHold, LLC ~~1,625 XX~~ 7,552,136 9,052,136 Xxxx ~~Capital~~X. Xxxxxx 1,223,932 1,223,932 Xxxxx X. Xxxxxx 1,223,932 1,223,932 Total 10,000,000 11,500,000 1. The Selling Stockholders are selling 10,000,000 shares of Class A Common Stock in the aggregate. 2. The Selling Stockholders have granted an option to the Underwriters, ~~LLC 1,625 TBC Securities~~severally and not jointly, ~~LLC 1,625 Total 65,000~~ to purchase up to an additional 1,500,000 shares of Class A Common Stock. 3. The ~~initial~~ public offering price per share for the Securities shall be $~~873.51~~7.00 per share. 4. Coliseum Capital Management, LLC (“Coliseum”) is purchasing 2,000,000 shares of Class A Common Stock in the public offering. 5. The ~~number~~ Company, the Selling Stockholders, the Company’s executive officers and directors and Coliseum have agreed not to sell or transfer any Class A Common Stock or securities convertible into, exchangeable for, exercisable for, or repayable with Class A Common Stock, for 90 days after the date of ~~Securities~~ the preliminary prospectus supplement without first obtaining the written consent of the Representatives. INNOHOLD, LLC Xxxx X. XxXxxxxxx Xxxxx X. Xxxxxx Pano Xxxxxx Xxxx X. Xxxxxxxxx Xxxxxxx Xxxxxxxxxxxxx Xxxx X. Xxxxxx Xxxxxx X. Xxxxxxx Xxxxx X. XxXxxxxx Xxxx Xxxx Xxxxx X. Xxxxxxxx Xxxxx Xxx Xxxxx III Coliseum Capital Management, LLC Xxxx Xxxx None. BofA Securities, Inc. Xxxxxxxxxxx & Co. Inc. as Representatives of the several Underwriters to be ~~sold by~~ named in the within-mentioned Underwriting Agreement c/o BofA Securities, Inc. Xxx Xxxxxx Xxxx Xxx Xxxx, Xxx Xxxx 00000 c/o Oppenheimer & Co. Inc. 00 Xxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 Re: Proposed Public Offering of Common Stock of Purple Innovation, Inc. Dear Sirs: The undersigned, a stockholder, an officer and/or a director of Purple Innovation, Inc., a Delaware corporation (the “Company”), understands that BofA Securities, Inc. (“BofAS”) and Xxxxxxxxxxx & Co. Inc., as representatives of the several Underwriters (defined below) (the “Representatives”), propose to enter into an Underwriting Agreement (the “Underwriting Agreement”) with the Company and the Selling ~~Shareholder shall~~ Stockholders (as defined in the Underwriting Agreement) providing for the public offering (the “Public Offering”) of shares of the Company’s Class A common stock, par value $0.0001 per share (the “Common Stock”). In recognition of the benefit that such an offering will confer upon the undersigned as a stockholder, an officer and/or a director of the Company, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned agrees with each underwriter to be ~~65,000. The settlement~~ named in the Underwriting Agreement (the “Underwriters”) that, during the period beginning on the date ~~/ closing time shall be April 3~~hereof and ending on the date that is 90 days from the date of the Underwriting Agreement, ~~2012. 1. NONE~~ the undersigned will not, without the prior written consent of the Representatives, (i) ~~Each~~ directly or indirectly, offer, 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 any shares of the ~~Registration Statement and~~ Company’s Common Stock or any ~~post-effective amendment thereto has been declared effective~~ securities convertible into or exercisable or exchangeable for Common Stock, whether now owned or hereafter acquired by the ~~Commission~~ undersigned or with respect to which the undersigned has or hereafter acquires the power of disposition (collectively, the “Lock-Up Securities”), or exercise any right with respect to the registration of any of the Lock-up Securities, or file or cause to be filed any registration statement in connection therewith, under the ~~1933 Act~~Securities Act of 1933, as amended, or (ii) enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Lock-Up Securities, whether any such swap or transaction is to be settled by delivery of Common Stock or other securities, in cash or otherwise. ~~Each preliminary prospectus~~Notwithstanding the foregoing, and subject to the conditions below, the undersigned may transfer the Lock-Up Securities without the prior written consent of the Representatives, provided that in each ~~Issuer Free Writing Prospectus~~ transfer pursuant to clauses (b) through (f) below, (1) the Representatives receive a signed lock-up agreement for the balance of the lock-up period from each donee, trustee, distributee, or transferee, as the case may be, (2) any such transfer shall not involve a disposition for value, (3) such transfers are not required to be reported with the Securities and Exchange Commission on Form 4 in accordance with Section 16 of the ~~Prospectus have been filed~~ Securities Exchange Act of 1934, as amended, and (4) the undersigned does not otherwise voluntarily effect any public filing or report regarding such transfers: a. pursuant to the Underwriting Agreement; or b. as a bona fide gift or gifts; or c. pursuant to a will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of the undersigned or by operation of law, such as pursuant to a qualified domestic order or as required by ~~Rule 424(b)~~ a divorce settlement; or d. to any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned (~~without reliance on Rule 424(b)(8~~for purposes of this lock-up agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin)~~) and Rule 433~~; or e. as a distribution to limited partners, ~~as applicable, within~~ members or stockholders of the ~~time period prescribed by, and in compliance with~~undersigned; or f. to the undersigned’s affiliates or to any investment fund or other entity controlled or managed by the undersigned. Furthermore, the ~~1933 Act Regulations. To the best~~ undersigned may sell shares of ~~such counsel’s knowledge, no stop order suspending the effectiveness~~ Common Stock of the ~~Registration Statement~~ Company purchased by the undersigned on the open market following the Public Offering if and only if (i) such sales are not required to be reported in any public report or any post-effective amendment thereto has been issued under the 1933 Act, no order preventing or suspending the use of any preliminary prospectus or the Prospectus or any amendment or supplement thereto has been issued and no proceedings for any of those purposes have been instituted or are pending or contemplated by filing with the Securities and Exchange Commission. , or otherwise and (ii) ~~The Registration Statement~~the undersigned does not otherwise voluntarily effect any public filing or report regarding such sales. If (i) the Underwriting Agreement does not become effective by November 30, 2019, (ii) after becoming effective, the General Disclosure Package and the Prospectus and each amendment or supplement to the Registration Statement, the General Disclosure Package and the Prospectus, as of their respective effective or deemed effective or issue dates (other than (1) the financial statements (including notes thereto) and supporting schedules included therein or omitted therefrom and (2) the documents incorporated or deemed incorporated therein by reference, as to which such counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations. (iii) The documents incorporated or deemed incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus Underwriting Agreement (other than the ~~financial statements (including notes thereto~~provisions thereof which survive termination) shall terminate or be terminated prior to payment for and supporting schedules included therein or omitted therefrom, as to which we express no opinion), when they were filed with the Commission, complied as to form in all material respects with the requirements delivery of the ~~1934 Act and 1934 Act Regulations. (iv) No filing with~~Common Stock to be sold thereunder, or ~~authorization, approval, consent, license, order, registration, qualification or decree of, any Governmental Entity is necessary or required for~~ (iii) the Company notifies the Representatives, in writing, prior to ~~enter into, or perform their respective obligations under,~~ the ~~Operative Documents or the consummation~~ execution of ~~the transactions contemplated in~~ the Underwriting Agreement, ~~except or such~~ that it does not intend to proceed with the Public Offering, then as have been already obtained or as may be required under the 1933 Act, the 1933 Act Regulations, the securities laws of any state or non-U.S. jurisdiction or the rules of FINRA or by the Bank’s primary regulator for purposes of Section 7(e) of the Underwriting Agreement. (v) To the best of such ~~counsel’s knowledge~~relevant date, ~~there are no persons with registration rights or other similar rights to have any securities registered for sale pursuant~~ this lock-up agreement shall terminate and the undersigned shall be released from all obligations under this lock-up agreement. The undersigned also agrees and consents to the ~~Registration Statement or otherwise registered for sale or sold by the Company under the 1933 Act pursuant to the Underwriting Agreement. (vi) The Company is not required, or upon consummation~~ entry of the transactions contemplated in the Underwriting Agreement will be required, to register as an “investment company” under the 1940 Act. Although we assume no responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, General Disclosure Package or Prospectus, nothing has come to the attention of such counsel that has lead such counsel to believe that (1) the Registration Statement or any amendment thereto, including any information deemed to be a part thereof pursuant to Rule 430B, at the time such Registration Statement or any such amendment became effective or as of the “new effective date,” 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, (2) the General Disclosure Package, at the Applicable Time, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of circumstances under which they were made, not misleading or (3) the Prospectus or any amendment or supplement thereto, at the time the Prospectus was issued, at the time any such amended or supplemented prospectus was issued or at the Closing Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; it being understood that such counsel makes no statement as to any financial statements (including notes thereto), supporting schedules and other financial data included in the Registration Statement, the General Disclosure Package and the Prospectus or omitted therefrom. 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). (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, to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and to enter into and perform its obligations under, and to consummate the transactions contemplated under, the Operative Documents. (iii) The Company is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended. (iv) The Significant Subsidiary has been duly organized and is validly existing and in good standing under the laws of the jurisdiction of its organization, has the requisite corporate power and authority to own, lease and operate its properties, to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and. To such counsel’s knowledge, except as otherwise described in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding shares of capital stock of or other equity interests in the Significant Subsidiary have been duly authorized and validly issued, are fully paid and non-assessable and are owned by the Company, directly or through subsidiaries, to the best of such counsel’s knowledge free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity. To such counsel’s knowledge, none of the outstanding shares of capital stock of or other equity interests in the Significant Subsidiary were issued in violation of the preemptive or similar rights of any securityholder of such Significant Subsidiary or any other entity. (v) The deposit accounts of each of stop transfer instructions with the Company’s ~~banking subsidiaries are insured up to~~ transfer agent and registrar against the ~~applicable limits by the Deposit Insurance Fund~~ transfer of the FDIC to the fullest extent permitted by law and the rules and regulations of the FDIC, and, to the best of such counsel’s knowledge, no proceeding for the revocation or termination of such insurance is pending or threatened. (vi) To the best of such counsel’s knowledge, Lock-Up Securities except as described in the Registration Statement, the General Disclosure Package and the Prospectus, (A) neither the Company nor any of its subsidiaries is subject or party to, or has received any notice or advice from any Regulatory Agency that any of them are reasonably expected to become subject or party to any investigation with respect to, any Regulatory Agreement, (B) neither the Company nor any of its subsidiaries has been advised by any Regulatory Agency that it is considering issuing or requesting any Regulatory Agreement, (C) there is no unresolved violation, criticism or exception by any Regulatory Agency with respect to any report or statement relating to any examinations of the Company or any of its subsidiaries and (D) the Company and its subsidiaries are in compliance in all material respects with all laws administered by the Regulatory Agencies. (vii) Each of the Company and the Significant Subsidiary (A) is duly qualified 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 and (B) holds all Governmental Licenses issued by Governmental Entities necessary to conduct the business now operated by them, except where the failure so to qualify or to be in good standing or to hold any such Governmental Licenses would not, singly or in the aggregate, result in a Material Adverse Effect. (viii) The outstanding shares of capital stock of the Company, including the Securities, have been duly authorized and validly issued and are fully paid and non-assessable. To such counsel’s knowledge, none of the outstanding shares of capital stock of the Company, including the Securities, were issued in violation of the preemptive or other similar rights of any securityholder of the Company or any other entity. (ix) The Underwriting Agreement has been duly authorized, executed and delivered by each of the Company and the Bank. (x) The Certificate of Designations for the Securities has been duly filed with the Secretary of State of the State of Delaware. The form of certificate representing the Securities complies in all material respects with the requirements of Delaware state law, the Charter and the By-Lawsforegoing restrictions. (xi) To the best of such counsel’s knowledge, except as described in the Registration Statement, the General Disclosure Package and the Prospectus, there is no action, suit, proceeding, inquiry or investigation before or brought by any Governmental Entity now pending or threatened against or affecting the Company or any of its subsidiaries which could, singly or in the aggregate, result in a Material Adverse Effect, or which might reasonably be expected to materially and adversely affect their respective properties, assets or operations or the consummation of the transactions contemplated in the Underwriting Agreement or the performance by the Company of its obligations under the Operative Documents. The aggregate of all pending legal or governmental proceedings known to such counsel to which the Company or any of its subsidiaries are a party or of which any of their respective properties, assets or operations are the subject which are not described in the Registration Statement, the General Disclosure Package and the Prospectus, including ordinary routine litigation incidental to the business, would not, singly or in the aggregate, result in a Material Adverse Effect. (xii) The information in the Registration Statement, the General Disclosure Package and the Prospectus under “Description of Capital Stock,” “Description of Series A Preferred Stock” and “Certain Material United States Federal Income Tax Considerations” or comparable captions and the information in the Registration Statement under “Item 15—Indemnification of Officers and Directors,” in each case to the extent that such information constitutes matters of law, summaries of legal matters, the Charter, By-Laws or legal proceedings, or legal conclusions, has been reviewed by such counsel and is correct in all material respects. (xiii) All descriptions in the Registration Statement, the General Disclosure Package and the Prospectus of contracts and other documents to which the Company or any of its subsidiaries are a party are accurate in all material respects. To the best of such counsel’s knowledge, there are no contracts, instruments or other documents required to be described in the Registration Statement, any preliminary prospectus or the Prospectus or to be filed as exhibits to the Registration Statement which have not been so described and filed as required. (xiv) To the best of such counsel’s knowledge, the execution, delivery and performance of the Operative Documents and the consummation of the transactions contemplated in the Underwriting Agreement and in the Registration Statement, [including the purchase by the Company of Securities in the offering,] the General Disclosure Package and the Prospectus and compliance by the Company with its obligations under the Operative Documents 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 ____) under, or result in the creation or imposition of any lien, charge or encumbrance upon

Appears in 1 contract

Samples: Underwriting Agreement (Purple Innovation, Inc.)

Appears in 1 contract

Samples: Underwriting Agreement (Molina Healthcare Inc)

Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof. If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the ~~Underwriters, the Company, the Bank~~ Underwriters and the ~~Selling Shareholder~~ Company in accordance with its terms. Very truly yours, ~~FIRST FINANCIAL HOLDINGS, INC.~~ OCULIS HOLDING AG By: /s/ Xxxx Xxxxxx Title: Chief Executive Officer By: /s/ Xxxxxx ~~X. Xxxxxxxxxx Name:~~ Xxxxxx X. Xxxxxxxxxx Title: EVP and Chief Financial Officer FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF CHARLESTON By: /s/ Xxxxxx X. Xxxxxxxxxx Name: Xxxxxx X. Xxxxxxxxxx Title: EVP and Chief Financial Officer UNITED STATES DEPARTMENT OF THE TREASURY, as Selling Shareholder By: /s/ Xxxxxx Xxxxx Name: Xxxxxx Xxxxx Title: Chief ~~Investment~~ Financial Officer CONFIRMED AND ACCEPTED, as of the date first above written: ~~XXXXXXX LYNCH~~BOFA SECURITIES, ~~PIERCE, XXXXXX & XXXXX~~ INC. By: ~~XXXXXXX LYNCH~~BOFA SECURITIES, ~~PIERCE, XXXXXX & XXXXX~~ INC. By: /s/ Xxxx Xxxx Name: Xxxx Xxxx Title: Managing Director SVB SECURITIES LLC By: SVB SECURITIES LLC By: /s/ Xxxxxxx ~~X. Xxxxx~~ Xxxxxxx Name: Xxxxxxx Xxxxxxx Title: Senior Managing Director For ~~itself~~ themselves and as ~~Representative~~ Representatives of the other Underwriters named in Schedule A hereto. The public offering price per share for the Securities shall be $11.50. The purchase price per share for the Securities to be paid by the several Underwriters shall be $~~860.4073~~10.81, being an amount equal to the ~~initial~~ public offering price set forth ~~in Schedule B~~ above less $~~13.1027~~ 0.69 per share, subject to adjustment in accordance with Section 2(b) for dividends or distributions declared by the Company and payable on the Initial Securities but not payable on the Option Securities. Name of Underwriter Number of Initial Securities ~~Xxxxxxx Lynch~~BofA Securities, ~~Pierce,~~ Inc. 1,431,750 SVB Securities LLC 1,150,000 Wedbush Securities Inc. 415,000 Xxxxxx X. Xxxxx & ~~Xxxxx~~ Co. Incorporated ~~60,125 Xxxxxx Xxxxxxxx~~290,050 X.X. Xxxxxxxxxx & Co., LLC ~~1,625 XX Xxxx Capital~~188,200 Pareto Securities Inc. 25,000 Total 3,500,000 1. The Company is selling 3,500,000 Ordinary Shares. 2. The Company has granted an option to the Underwriters, ~~LLC 1,625 TBC Securities~~severally and not jointly, ~~LLC 1,625 Total 65,000~~ to purchase up to an additional 525,000 Ordinary Shares. 3. The ~~initial~~ public offering price per share for the Securities shall be $~~873.51~~11.50. ~~The number~~ Written Testing-the-Waters Communications Investor Presentation, dated May 2023. • Xxxx Xxxxxx • Xxxxxx Xxxxxx • Xxxx Xxxxxx Xxxxxxxxxxx • Xxxxxxxxx Xxxxxxxxx • Xxxxxx Xxxxxx • Xxxxxx Xxxxx, M.D. • Xxxxxxx Xxxxxxxxx • Xxxxxxxxx X’Xxxxxx • Xxxxxxx Xxxxxxxxx • LSP 7 Coöperatief U.A. Form of lock-up from directors, officers or other shareholders pursuant to Section 5(k) BofA Securities, Inc., SVB Securities LLC as Representatives of the several Underwriters to be ~~sold~~ named in the within-mentioned Underwriting Agreement c/o BofA Securities, Inc. One Bryant Park New York, New York 10036 c/o SVB Securities LLC 0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Xxxxx New York, NY 10019 Re: Proposed Public Offering by Oculis Holding AG Dear Sirs and Madams: The undersigned, a shareholder of Oculis Holding AG, a stock corporation (Aktiengesellschaft) incorporated and existing under the laws of Switzerland (the “Company”), understands that BofA Securities, Inc. (“BofA”) and SVB Securities LLC (“SVB Securities”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”) with the Company providing for the public offering (the “Offering”) of the Company’s ordinary shares, nominal value CHF 0.01 per share (the “Ordinary Shares”). In recognition of the benefit that such an offering will confer upon the undersigned as a shareholder of the Company, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned agrees with each underwriter to be named in the Underwriting Agreement that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the Underwriting Agreement (the “Lock-Up Period”), the undersigned will not, without the prior written consent of BofA and SVB Securities, (i) directly or indirectly, offer, 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 any of the Company’s Ordinary Shares or any securities convertible into or exercisable or exchangeable for Ordinary Shares, whether now owned or hereafter acquired by the ~~Selling Shareholder~~ undersigned or with respect to which the undersigned has or hereafter acquires the power of disposition (collectively, the “Lock-Up Securities”), or exercise any right with respect to the registration of any of the Lock-Up Securities, or file, cause to be filed or cause to be confidentially submitted any registration statement in connection therewith, under the Securities Act of 1933, as amended (other than a post-effective amendment to a registration statement that was effective prior to the date hereof), or (ii) enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Lock-Up Securities, whether any such swap or transaction is to be settled by delivery of Ordinary Shares or other securities, in cash or otherwise. Notwithstanding the foregoing, and subject to the conditions below, the undersigned may transfer the Lock-Up Securities without the prior written consent of BofA and SVB Securities, provided that (1) with respect to clauses (a) through (g) and (k) through (n), BofA and SVB Securities receive a signed lock-up agreement for the balance of the Lock-Up Period from each donee, trustee, distributee, or transferee, as the case may be, (2) with respect to clauses (a) through (f) and (k), any such transfer shall not involve a disposition for value, (3) with respect to clauses (a) through (g), (l) through (m) and (k), such transfers are not required to be ~~65,000. The settlement date / closing time~~ reported with the Securities and Exchange Commission on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and (4) with respect to clauses (a) through (g), (l) through (m) and (k), the undersigned does not otherwise voluntarily effect any public filing or report regarding such transfers: (a) transfers as a bona fide gift or gifts; or (b) transfers to any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned (for purposes of this lock-up agreement, “immediate family” shall ~~be April 3~~mean any relationship by blood, ~~2012.~~marriage or adoption, not more remote than first cousin); or ~~1. NONE~~(c) if the undersigned is a corporation, partnership (whether general, limited or otherwise), limited liability company, trust or other business entity, (i) transfers to another corporation, partnership, limited liability company, trust or other business entity that controls, is controlled by or is under common control or management with the undersigned or (ii) distributions to partners, limited liability company members or shareholders of the undersigned; or (d) with respect to any Ordinary Shares held by or subject to any trust or foundation, transfers to the trustees of such trust or foundation and any entity controlled by such trust or foundation, or any other trust or foundation established for the benefit of such trust or foundation; or (e) transfers by will or intestate succession upon the death of the undersigned, including transfers to the executors, administrators or any other similar personal representatives of the undersigned in accordance with the will of the undersigned or the applicable laws or otherwise as directed by the order of any relevant courts or tribunals of competent jurisdiction; or (f) transfers pursuant to a qualified domestic order or in connection with a divorce settlement; or (g) transfers to the Company’s officers, directors or their respective affiliates; or (h) [Reserved]; or (i) ~~Each~~ transfers pursuant to a bona fide third-party tender offer, merger, stock sale, recapitalization, consolidation or other transaction involving a change in control of the ~~Registration Statement and any post-effective amendment thereto has been declared effective by~~ Company, provided that in the ~~Commission under the 1933 Act. Each preliminary prospectus~~event that such tender offer, ~~each Issuer Free Writing Prospectus and the Prospectus have been filed as required by Rule 424(b) (without reliance on Rule 424(b)(8)) and Rule 433~~merger, ~~as applicable~~recapitalization, ~~within the time period prescribed by, and in compliance with~~consolidation or other such transaction is not completed, the ~~1933 Act Regulations. To the best of such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement or any post~~Ordinary Shares subject to this lock-effective amendment thereto has been issued under the 1933 Act, no order preventing or suspending the use of any preliminary prospectus or the Prospectus or any amendment or supplement thereto has been issued and no proceedings for any of those purposes have been instituted or are pending or contemplated by the Securities and Exchange Commission. up agreement shall remain subject to this lock-up agreement (ii) The Registration Statement, the General Disclosure Package and the Prospectus and each amendment or supplement to the Registration Statement, the General Disclosure Package and the Prospectus, as of their respective effective or deemed effective or issue dates (other than (1) the financial statements (including notes thereto) and supporting schedules included therein or omitted therefrom and (2) the documents incorporated or deemed incorporated therein by reference, as to which such counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations. (iii) The documents incorporated or deemed incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus (other than the financial statements (including notes thereto) and supporting schedules included therein or omitted therefrom, as to which we express no opinion), when they were filed with the Commission, complied as to form in all material respects with the requirements of the 1934 Act and 1934 Act Regulations. (iv) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any Governmental Entity is necessary or required for the Company to enter into, or perform their respective obligations under, the Operative Documents or the consummation of the transactions contemplated in the Underwriting Agreement, except or such as have been already obtained or as may be required under the 1933 Act, the 1933 Act Regulations, the securities laws of any state or non-U.S. jurisdiction or the rules of FINRA or by the Bank’s primary regulator for purposes ~~of Section 7(e) of~~ hereof, “change in control” shall mean the ~~Underwriting Agreement.~~ transfer (~~v) To the best of such counsel’s knowledge~~whether by tender offer, ~~there are no persons with registration rights~~ merger, consolidation or other similar ~~rights to have any securities registered for sale pursuant to the Registration Statement~~ transaction), in one transaction or ~~otherwise registered for sale or sold by the Company under the 1933 Act pursuant to the Underwriting Agreement. (vi) The Company is not required, or upon consummation~~ a series of ~~the transactions contemplated in the Underwriting Agreement will be required~~related transactions, to ~~register as an “investment company” under the 1940 Act. Although we assume no responsibility for the accuracy~~a person or group of affiliated persons, ~~completeness or fairness~~ of the statements contained in the Registration Statement, General Disclosure Package or Prospectus, nothing has come to the attention of such counsel that has lead such counsel to believe that (1) the Registration Statement or any amendment thereto, including any information deemed to be a part thereof pursuant to Rule 430B, at the time such Registration Statement or any such amendment became effective or as of the “new effective date,” 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, (2) the General Disclosure Package, at the Applicable Time, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of circumstances under which they were made, not misleading or (3) the Prospectus or any amendment or supplement thereto, at the time the Prospectus was issued, at the time any such amended or supplemented prospectus was issued or at the Closing Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; it being understood that such counsel makes no statement as to any financial statements (including notes thereto), supporting schedules and other financial data included in the Registration Statement, the General Disclosure Package and the Prospectus or omitted therefrom. 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). (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, to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and to enter into and perform its obligations under, and to consummate the transactions contemplated under, the Operative Documents. (iii) The Company is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended. (iv) The Significant Subsidiary has been duly organized and is validly existing and in good standing under the laws of the jurisdiction of its organization, has the requisite corporate power and authority to own, lease and operate its properties, to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and. To such counsel’s knowledge, except as otherwise described in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding shares of capital stock of or other equity interests in the Significant Subsidiary have been duly authorized and validly issued, are fully paid and non-assessable and are owned by the Company, directly or through subsidiaries, to the best of such counsel’s knowledge free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity. To such counsel’s knowledge, none of the outstanding shares of capital stock of or other equity interests in the Significant Subsidiary were issued in violation of the preemptive or similar rights of any securityholder of such Significant Subsidiary or any other entity. (v) The deposit accounts of each of the Company’s banking subsidiaries are insured up to the applicable limits by the Deposit Insurance Fund of the FDIC to the fullest extent permitted by law and the rules and regulations of the FDIC, and, to the best of such counsel’s knowledge, no proceeding for the revocation or termination of such insurance is pending or threatened. (vi) To the best of such counsel’s knowledge, except as described in the Registration Statement, the General Disclosure Package and the Prospectus, (A) neither the Company nor any of its subsidiaries is subject or party to, or has received any notice or advice from any Regulatory Agency that any of them are reasonably expected to become subject or party to any investigation with respect to, any Regulatory Agreement, (B) neither the Company nor any of its subsidiaries has been advised by any Regulatory Agency that it is considering issuing or requesting any Regulatory Agreement, (C) there is no unresolved violation, criticism or exception by any Regulatory Agency with respect to any report or statement relating to any examinations of the Company or any of its subsidiaries and (D) the Company and its subsidiaries are in compliance in all material respects with all laws administered by the Regulatory Agencies. (vii) Each of the Company and the Significant Subsidiary (A) is duly qualified 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 and (B) holds all Governmental Licenses issued by Governmental Entities necessary to conduct the business now operated by them, except where the failure so to qualify or to be in good standing or to hold any such Governmental Licenses would not, singly or in the aggregate, result in a Material Adverse Effect. (viii) The outstanding shares of capital stock of the ~~Company~~Company if, ~~including the Securities~~after such transfer, ~~have been duly authorized and validly issued and are fully paid and non-assessable. To~~ such ~~counsel’s knowledge, none~~ person or group of affiliated persons would hold more than 50% of the outstanding ~~shares of capital stock of the Company, including the Securities, were issued in violation of the preemptive or other similar rights of any securityholder~~ voting securities of the Company (or the surviving entity)); or (j) the establishment of a trading plan pursuant to Rule 10b5-1 promulgated under the Exchange Act, provided that such plan does not provide for the transfer of Ordinary Shares or any ~~other entity.~~securities convertible into or exercisable or exchangeable for Ordinary Shares during the Lock-Up Period; or (ixk) ~~The Underwriting Agreement has been duly authorized, executed and delivered by each~~ transfers to any affiliate of the ~~Company and the Bank.~~undersigned; or (xl) ~~The Certificate of Designations for~~ transfers to the Securities has been duly filed with the Secretary of State of the State of Delaware. The form of certificate representing the Securities complies in all material respects with the requirements of Delaware state law, the Charter and the By-Laws. (xi) To the best of such counsel’s knowledge, except as described Company in the Registration Statement, the General Disclosure Package and the Prospectus, there is no action, suit, proceeding, inquiry or investigation before or brought by any Governmental Entity now pending or threatened against or affecting the Company or any case of ~~its subsidiaries which could, singly or in the aggregate, result in~~ a ~~Material Adverse Effect, or which might reasonably be expected to materially and adversely affect their respective properties, assets or operations or the consummation~~ repurchase of ~~the transactions contemplated in the Underwriting Agreement or the performance~~ Ordinary Shares by the Company at a price no greater than that originally paid by the undersigned for such Ordinary Shares and pursuant to an agreement containing vesting and/or repurchase provisions approved by the Company’s Board of Directors; or (m) in the case of an owner of any direct or indirect interest in the undersigned (the “Principal Owner”), transfers to any of that Principal Owner’s Family Members, or any entity controlled by such Principal Owner or any such Family Members, or any trust or foundation established for the benefit of such Principal Owner or any such Family Members, and transfers among the Principal Owners by one to another. For purposes of this clause, “Family Member” shall mean any child, parent, sibling, spouse or other first or second degree family member of the undersigned who is a natural person; or (n) in the case the undersigned is an investment entity, any transfers in connection with or for the purpose of any transfer or sale of equity securities in other portfolio companies to one or more purchasers that are professional investment entities for the purpose of winding up or restructuring some or all of the undersigned’s investment portfolio (whether in a particular industry sector or segment or as part of liquidating its ~~obligations under the Operative Documents. The aggregate of all pending legal~~ legacy positions); or (o) transfers or ~~governmental proceedings known~~ surrenders to ~~such counsel to which~~ the Company as forfeitures to satisfy tax withholding and remittance obligations of the undersigned in connection with the vesting or exercise of equity awards granted pursuant to the Company’s equity incentive plans or pursuant to a net exercise or cashless exercise by the shareholder of outstanding equity awards pursuant to the Company’s equity incentive plans; provided, however, that (A) any filing under Section 16 of ~~its subsidiaries are a party or of which any of their respective properties, assets or operations are~~ the ~~subject which are not described~~ Exchange Act made during the Lock-Up Period shall clearly indicate in the ~~Registration Statement,~~ footnotes thereto that (1) the ~~General Disclosure Package and the Prospectus, including ordinary routine litigation incidental~~ filing relates to the ~~business~~circumstances described above and (2) no Lock-Up Securities were sold by the undersigned, ~~would not~~other than such transfers to the Company as described and (B) the undersigned does not otherwise voluntarily effect any other public filings or report regarding such transfer or surrender during the Lock-Up Period; or (p) the exercise of any rights to purchase, ~~singly~~ exchange or convert any stock options granted to the undersigned pursuant to the Company’s equity incentive plans referred to in the ~~aggregate, result in a Material Adverse Effect. (xii) The information in the Registration Statement, the General Disclosure Package and the~~ Prospectus under “Description of Capital Stock,” “Description of Series A Preferred Stock” and “Certain Material United States Federal Income Tax Considerations” or comparable captions and the information in the Registration Statement under “Item 15—Indemnification of Officers and Directors,” in each case to the extent that such information constitutes matters of law, summaries of legal matters, the Charter, By-Laws or legal proceedings, or legal conclusions, has been reviewed by such counsel and is correct in all material respects. (xiii) All descriptions in the Registration Statement, the General Disclosure Package and the Prospectus of contracts and other documents to which the Company or any of its subsidiaries are a party are accurate in all material respects. To the best of such counsel’s knowledge, there are no contracts, instruments or other documents required to be described in the Registration Statement, any preliminary prospectus or the Prospectus or to be filed as exhibits to the Registration Statement which have not been so described and filed as required. (xiv) To the best of such counsel’s knowledge, the execution, delivery and performance of the Operative Documents and the consummation of the transactions contemplated in the Underwriting Agreement and in the Registration Statement, [including the purchase by the Company of Securities in the offering,] the General Disclosure Package and the Prospectus and compliance by the Company with its obligations under the Operative Documents 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 ~~____) under~~the Underwriting Agreement), or ~~result~~ exercise any warrants or other securities convertible into or exercisable or exchangeable for Ordinary Shares, which warrants or other securities are described in the ~~creation~~ Prospectus; provided, that (A) any Ordinary Shares issued upon exercise, conversion or ~~imposition~~ exchange of such option, warrant or other security shall continue to be subject to the restrictions set forth herein until the expiration of the Lock-Up Period and (B) any ~~lien~~filing under Section 16 of the Exchange Act shall clearly indicate in the footnotes thereto that the Ordinary Shares received from such purchase, ~~charge~~ exchange or ~~encumbrance upon~~conversion remain subject to the restrictions on transfer set forth in this lock-up agreement.

Appears in 1 contract

Samples: Underwriting Agreement (Oculis Holding AG)

Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof. If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the ~~Underwriters, the Company, the Bank~~ Underwriters and the ~~Selling Shareholder~~ Company in accordance with its terms. Very truly yours, ~~FIRST FINANCIAL HOLDINGS~~Inovio Pharmaceuticals, ~~INC. By:~~ Inc. By /s/ ~~Xxxxxx~~ Xxxxxxxxxx X. ~~Xxxxxxxxxx~~ Xxxx Name: ~~Xxxxxx~~ Xxxxxxxxxx X. ~~Xxxxxxxxxx~~ Xxxx Title: ~~EVP~~ President and Chief Financial Officer FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF CHARLESTON By: /s/ Xxxxxx X. Xxxxxxxxxx Name: Xxxxxx X. Xxxxxxxxxx Title: EVP and Chief Financial Officer UNITED STATES DEPARTMENT OF THE TREASURY, as Selling Shareholder By: /s/ Xxxxxx Xxxxx Name: Xxxxxx Xxxxx Title: Chief Investment Executive Officer CONFIRMED AND ACCEPTED, as of the date first above written: ~~XXXXXXX LYNCH~~XXXXXXXXXXX & CO. INC. CITIZENS JMP SECURITIES, ~~PIERCE, XXXXXX & XXXXX~~ LLC By: ~~XXXXXXX LYNCH~~XXXXXXXXXXX & CO. INC. By /s/ Xxxxxxx Xxxxxxxx, ~~PIERCE~~X.Xx. Name: Xxxxxxx Xxxxxxxx, ~~XXXXXX & XXXXX~~ X.Xx. Title: Senior Managing Director, Head of Healthcare IB By: CITIZENS JMP SECURITIES, LLC By /s/ ~~Xxxxxxx X.~~ Xxxxx Xxxxxx Name: Xxxxx Xxxxxx Title: Managing Director For ~~itself~~ themselves and as ~~Representative~~ Representatives of the other Underwriters named in Schedule A hereto. The initial public offering price for one Underwritten Share and one Warrant to purchase one share of Common Stock shall be $3.00 (the “Share and Warrant Purchase Price”). The purchase price ~~per share for the Securities~~ to be paid by the several Underwriters for one Underwritten Share and one Warrant to purchase one share of Common Stock shall be $~~860.4073~~2.82, being an amount equal to the ~~initial public offering price set forth in Schedule B~~ Share and Warrant Purchase Price less $~~13.1027 per share~~0.18. Name of Underwriter Number of ~~Securities Xxxxxxx Lynch, Pierce, Xxxxxx~~ Underwritten Shares Number of Warrants Xxxxxxxxxxx & ~~Xxxxx Incorporated 60,125 Xxxxxx Xxxxxxxx, LLC 1,625 XX Xxxx Capital, LLC 1,625 TBC~~ Co. Inc. 5,200,000 5,200,000 Citizens JMP Securities, LLC ~~1,625~~ 3,800,000 3,800,000 Xxxxxxxx Inc. 1,000,000 1,000,000 Total ~~65,000~~ 10,000,000 10,000,000 1. The Company is selling 10,000,000 shares of Common Stock and Warrants to purchase up to 10,000,000 shares of Common Stock. 2. The initial public offering price ~~per~~ for one Underwritten Share and one Warrant to purchase one share ~~for the Securities~~ of Common Stock shall be $~~873.51~~3.00 (the “Share and Warrant Purchase Price”). 3. The ~~number~~ exercise price per Warrant shall be 3.76. Xxxxxxxxxx Xxxx Xxxxx Xxxx Xxxxxxx Xxxxxx Xxxxxxx Xxxxxx Xxxxx X. Xxxxxx Xxxxx X. Xxxxxx Xxx X. Xxxxxx Xxx Xxxxxxx Xxxxx X. Xxxxxx Xxxxx X. Xxxxx Xxxx X. Xxxx Form of ~~Securities~~ Lock-Up Agreement December [•], 2024 Xxxxxxxxxxx & Co. Inc. Citizens JMP Securities, LLC as Representatives of the several Underwriters to be ~~sold~~ named in the within-mentioned Underwriting Agreement c/o Oppenheimer & Co. Inc. 00 Xxxxx Xxxxxx New York, New York 10004 c/o Citizens JMP Securities, LLC 000 Xxxxxxxxxx Xxxxxx, Suite 1100 San Francisco, California 94111 Re: Proposed Public Offering by Inovio Pharmaceuticals, Inc. Dear Sirs and Madams: The undersigned, a stockholder and an officer and/or director of Inovio Pharmaceuticals, Inc., a Delaware corporation (the “Company”), understands that Xxxxxxxxxxx & Co. Inc. (“Xxxxxxxxxxx”) and Citizens JMP Securities, LLC propose to enter into an Underwriting Agreement (the “Underwriting Agreement”) with the Company providing for the public offering (the “Public Offering”) of shares of the Company’s common stock, par value $0.001 per share (the “Common Stock”), and any other securities as may be determined to be issued by the ~~Selling Shareholder~~ Company pursuant to the Underwriting Agreement. In recognition of the benefit that such an offering will confer upon the undersigned as a stockholder and an officer and/or director of the Company, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned agrees with each underwriter to be named in the Underwriting Agreement that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the Underwriting Agreement (the “Lock-Up Period”), the undersigned will not, without the prior written consent of Xxxxxxxxxxx, (i) directly or indirectly, offer, 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 any shares of the Company’s Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, whether now owned or hereafter acquired by the undersigned or with respect to which the undersigned has or hereafter acquires the power of disposition (collectively, the “Lock-Up Securities”), or exercise any right with respect to the registration of any of the Lock-Up Securities, or file or cause to be filed any registration statement in connection therewith, under the Securities Act of 1933, as amended, or (ii) enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Lock-Up Securities, whether any such swap or transaction is to be settled by delivery of Common Stock or other securities, in cash or otherwise. Notwithstanding the foregoing, and subject to the conditions below, the undersigned may transfer or otherwise dispose of the Lock-Up Securities without the prior written consent of Xxxxxxxxxxx, provided that (1) the underwriters receive a signed lock-up agreement for the balance of the Lock-Up Period from each donee, trustee, distributee, or transferee, as the case may be, (2)(a) in the case of clauses (i) through (v) below, (i) such transfers do not involve dispositions for value and (ii) except in the case of gifts pursuant to clause (i) below or transfers pursuant to clause (ix) below, are not required to be reported with the Securities and Exchange Commission (the “Commission”) on Form 4 or Form 5 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and (b) in the case of clauses (vi) through (x) below, any required Form 4 filing shall ~~be 65,000. The settlement date / closing time shall be April~~ state the reason for such transfer, and (3~~, 2012. 1. NONE~~) the undersigned does not otherwise voluntarily effect any public filing or report regarding such transfers: (i) Each of the Registration Statement and any post-effective amendment thereto has been declared effective by the Commission under the 1933 Act. Each preliminary prospectus, each Issuer Free Writing Prospectus and the Prospectus have been filed as required by Rule 424(b) (without reliance on Rule 424(b)(8)) and Rule 433, as applicable, within the time period prescribed by, and in compliance with, the 1933 Act Regulations. To the best of such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement a bona fide gift or ~~any post-effective amendment thereto has been issued under the 1933 Act, no order preventing~~ gifts or ~~suspending the use of any preliminary prospectus or the Prospectus or any amendment or supplement thereto has been issued and no proceedings~~ for ~~any of those purposes have been instituted or are pending or contemplated by the Securities and Exchange Commission.~~bona fide estate planning purposes; (ii) ~~The Registration Statement, the General Disclosure Package and the Prospectus and each amendment or supplement~~ to the ~~Registration Statement~~immediate family of the undersigned or any trust or other entity for the direct or indirect benefit of the undersigned or the immediate family of the undersigned (for purposes of this lock-up agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin) or if the ~~General Disclosure Package and~~ undersigned is a trust, to any beneficiary of the ~~Prospectus, as of their respective effective or deemed effective or issue dates (other than (1) the financial statements~~ undersigned (including ~~notes thereto~~such beneficiary’s estate); (iii) ~~and supporting schedules included therein~~ as a distribution to limited or ~~omitted therefrom and~~ general partners, stockholders or other equity holders of the undersigned; (2iv) to the undersigned’s affiliates or to any investment fund or other entity controlled or managed by the undersigned; (v) by will or intestacy; (vi) to the Company in connection with the exercise of options, warrants or other rights to acquire shares of Common Stock or any security convertible into or exercisable for Common Stock by way of “net” or “cashless” exercise and/or to cover withholding tax obligations in connection with such exercise pursuant to an employee benefit plan, option, warrant or other right disclosed in the prospectus for the Public Offering, including any documents ~~incorporated or deemed~~ incorporated therein by reference, as provided that any such shares issued upon exercise of such option, warrant or other right shall be subject to ~~which such counsel need express no opinion), complied as~~ the restrictions set forth herein; (vii) pursuant to ~~form~~ a court order or settlement agreement related to the distribution of assets in ~~all material respects~~ connection with the ~~requirements~~ dissolution of a marriage or civil union; (viii) to the Company pursuant to agreements under which the Company has the option to repurchase such shares or a right of first refusal with respect to transfers of such shares upon termination of service of the ~~1933 Act and the 1933 Act Regulations.~~undersigned; (~~iii~~ix) ~~The documents incorporated or deemed incorporated by reference~~ in the Registration Statement, the General Disclosure Package and the Prospectus (other than the financial statements (including notes thereto) and supporting schedules included therein or omitted therefrom, as accordance with a trading plan pursuant to which we express no opinion), when they were filed with the Commission, complied as to form in all material respects with the requirements of the 1934 Act and 1934 Act Regulations. (iv) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any Governmental Entity is necessary or required for the Company to enter into, or perform their respective obligations under, the Operative Documents or the consummation of the transactions contemplated in the Underwriting Agreement, except or such as have been already obtained or as may be required Rule 10b5-1 under the ~~1933 Act,~~ Exchange Act (“10b5-1 Trading Plan”) that is existing on the ~~1933~~ date hereof; provided that any Form 4 or Form 5 required to be filed under the Exchange Act ~~Regulations,~~ if the ~~securities laws of any state or non-U.S. jurisdiction or the rules of FINRA or by the Bank’s primary regulator for purposes of~~ undersigned is subject to Section ~~7(e) of the Underwriting Agreement. (v) To the best of such counsel’s knowledge, there are no persons~~ 16 reporting with ~~registration rights or other similar rights~~ respect to ~~have any securities registered for sale pursuant to the Registration Statement or otherwise registered for sale or sold by~~ the Company under the ~~1933~~ Exchange Act will indicate by footnote that such sale was made under the circumstances described in this clause; and provided further that no other filing under the Exchange Act or other public announcement shall be required or shall be made voluntarily in connection with such sale during the Lock-Up Period; or (x) to a bona fide third party pursuant to ~~the Underwriting Agreement. (vi) The Company is not required~~a merger, consolidation, tender offer or ~~upon consummation~~ other similar transaction made to all holders of the transactions contemplated in the Underwriting Agreement will be required, to register as an “investment company” under the 1940 Act. Although we assume no responsibility for the accuracy, completeness or fairness Common Stock and involving a Change of the statements contained in the Registration Statement, General Disclosure Package or Prospectus, nothing has come to the attention of such counsel that has lead such counsel to believe that (1) the Registration Statement or any amendment thereto, including any information deemed to be a part thereof pursuant to Rule 430B, at the time such Registration Statement or any such amendment became effective or as of the “new effective date,” 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, (2) the General Disclosure Package, at the Applicable Time, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of circumstances under which they were made, not misleading or (3) the Prospectus or any amendment or supplement thereto, at the time the Prospectus was issued, at the time any such amended or supplemented prospectus was issued or at the Closing Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; it being understood that such counsel makes no statement as to any financial statements (including notes thereto), supporting schedules and other financial data included in the Registration Statement, the General Disclosure Package and the Prospectus or omitted therefrom. 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 Control 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). (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, to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and to enter into and perform its obligations under, and to consummate the transactions contemplated under, the Operative Documents. (iii) The Company is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended. (iv) The Significant Subsidiary has been duly organized and is validly existing and in good standing under the laws of the jurisdiction of its organization, has the requisite corporate power and authority to own, lease and operate its properties, to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and. To such counsel’s knowledge, except as otherwise described in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding shares of capital stock of or other equity interests in the Significant Subsidiary have been duly authorized and validly issued, are fully paid and non-assessable and are owned approved by the Company’s board of directors; provided that, ~~directly~~ in the event that such Change of Control is not completed, the undersigned’s Lock-Up Securities shall remain subject to the restrictions contained herein. “Change of Control” shall mean the transfer (whether by tender offer, merger, consolidation or ~~through subsidiaries~~other similar transaction), in one transaction or a series of related transactions, to a person or group of affiliated persons (other than an underwriter pursuant to the ~~best of such counsel’s knowledge free and clear of any security interest~~Public Offering), mortgage, pledge, lien, encumbrance, claim or equity. To such counsel’s knowledge, none of the outstanding shares of capital stock of or other equity interests in the Significant Subsidiary were issued in violation of the preemptive or similar rights of any securityholder of such Significant Subsidiary or any other entity. (v) The deposit accounts of each of the Company’s ~~banking subsidiaries are insured up to the applicable limits by the Deposit Insurance Fund~~ voting securities if, after such transfer, such person or group of affiliated persons would hold more than 50% of the FDIC to the fullest extent permitted by law and the rules and regulations of the FDIC, and, to the best of such counsel’s knowledge, no proceeding for the revocation or termination of such insurance is pending or threatened. (vi) To the best of such counsel’s knowledge, except as described in the Registration Statement, the General Disclosure Package and the Prospectus, (A) neither the Company nor any of its subsidiaries is subject or party to, or has received any notice or advice from any Regulatory Agency that any of them are reasonably expected to become subject or party to any investigation with respect to, any Regulatory Agreement, (B) neither the Company nor any of its subsidiaries has been advised by any Regulatory Agency that it is considering issuing or requesting any Regulatory Agreement, (C) there is no unresolved violation, criticism or exception by any Regulatory Agency with respect to any report or statement relating to any examinations outstanding voting securities of the Company ~~or any of its subsidiaries and~~ (D) the Company and its subsidiaries are in compliance in all material respects with all laws administered by the Regulatory Agencies. (vii) Each of the Company and the Significant Subsidiary (A) is duly qualified 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 and (B) holds all Governmental Licenses issued by Governmental Entities necessary to conduct the business now operated by them, except where the failure so to qualify or to be in good standing or to hold any such Governmental Licenses would not, singly or in the aggregate, result in a Material Adverse Effectsurviving entity). (viii) The outstanding shares of capital stock of the Company, including the Securities, have been duly authorized and validly issued and are fully paid and non-assessable. To such counsel’s knowledge, none of the outstanding shares of capital stock of the Company, including the Securities, were issued in violation of the preemptive or other similar rights of any securityholder of the Company or any other entity. (ix) The Underwriting Agreement has been duly authorized, executed and delivered by each of the Company and the Bank. (x) The Certificate of Designations for the Securities has been duly filed with the Secretary of State of the State of Delaware. The form of certificate representing the Securities complies in all material respects with the requirements of Delaware state law, the Charter and the By-Laws. (xi) To the best of such counsel’s knowledge, except as described in the Registration Statement, the General Disclosure Package and the Prospectus, there is no action, suit, proceeding, inquiry or investigation before or brought by any Governmental Entity now pending or threatened against or affecting the Company or any of its subsidiaries which could, singly or in the aggregate, result in a Material Adverse Effect, or which might reasonably be expected to materially and adversely affect their respective properties, assets or operations or the consummation of the transactions contemplated in the Underwriting Agreement or the performance by the Company of its obligations under the Operative Documents. The aggregate of all pending legal or governmental proceedings known to such counsel to which the Company or any of its subsidiaries are a party or of which any of their respective properties, assets or operations are the subject which are not described in the Registration Statement, the General Disclosure Package and the Prospectus, including ordinary routine litigation incidental to the business, would not, singly or in the aggregate, result in a Material Adverse Effect. (xii) The information in the Registration Statement, the General Disclosure Package and the Prospectus under “Description of Capital Stock,” “Description of Series A Preferred Stock” and “Certain Material United States Federal Income Tax Considerations” or comparable captions and the information in the Registration Statement under “Item 15—Indemnification of Officers and Directors,” in each case to the extent that such information constitutes matters of law, summaries of legal matters, the Charter, By-Laws or legal proceedings, or legal conclusions, has been reviewed by such counsel and is correct in all material respects. (xiii) All descriptions in the Registration Statement, the General Disclosure Package and the Prospectus of contracts and other documents to which the Company or any of its subsidiaries are a party are accurate in all material respects. To the best of such counsel’s knowledge, there are no contracts, instruments or other documents required to be described in the Registration Statement, any preliminary prospectus or the Prospectus or to be filed as exhibits to the Registration Statement which have not been so described and filed as required. (xiv) To the best of such counsel’s knowledge, the execution, delivery and performance of the Operative Documents and the consummation of the transactions contemplated in the Underwriting Agreement and in the Registration Statement, [including the purchase by the Company of Securities in the offering,] the General Disclosure Package and the Prospectus and compliance by the Company with its obligations under the Operative Documents 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 ____) under, or result in the creation or imposition of any lien, charge or encumbrance upon

Appears in 1 contract

Samples: Underwriting Agreement (Inovio Pharmaceuticals, Inc.)

Appears in 1 contract

Samples: Purchase Agreement (Owens Corning)

Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof. If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company and the Selling Shareholder a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the ~~Underwriters~~Underwriter, the ~~Company, the Bank~~ Company and the Selling Shareholder in accordance with its terms. Very truly yours, ~~FIRST FINANCIAL HOLDINGS~~AIR TRANSPORT SERVICES GROUP, INC. ~~By:~~ By /s/ Xxxxxx X. ~~Xxxxxxxxxx Name: Xxxxxx X. Xxxxxxxxxx~~ Hete Title: ~~EVP and Chief Financial Officer FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF CHARLESTON By:~~ RED MOUNTAIN PARTNERS, L.P. By RMCP GP LLC, its General Partner By /s/ ~~Xxxxxx X. Xxxxxxxxxx Name: Xxxxxx X. Xxxxxxxxxx Title: EVP and Chief Financial Officer UNITED STATES DEPARTMENT OF THE TREASURY, as Selling Shareholder By: /s/ Xxxxxx Xxxxx Name: Xxxxxx~~ J. Xxxxxxxxxxx Xxxxx Title: ~~Chief Investment Officer~~ Authorized Signatory 28 CONFIRMED AND ACCEPTED, as of the date first above written: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX ByINCORPORATED By /s/ Pei-Tse Wu Managing Director The public offering price: ~~/s/ Xxxxxxx X. Xxxxx For itself and~~ as ~~Representative of~~ to each investor, the ~~other Underwriters named in Schedule A hereto~~price per Share paid by such investor. The purchase price per share for the Securities to be paid by the ~~several Underwriters~~ Underwriter shall be $~~860.4073~~22.42, ~~being an amount equal~~ subject to adjustment in accordance with Section 2(b) for dividends or distributions declared by the ~~initial public offering price set forth in Schedule B less $13.1027 per share~~Company and payable on the Initial Securities but not payable on the Option Securities. Name of Underwriter Number of Initial Securities Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ~~60,125 Xxxxxx Xxxxxxxx~~3,806,374 Sch A-1 Number of Initial Securities to be Sold Maximum Number of OptionSecurities to be Sold Red Mountain Partners, ~~LLC 1,625 XX Xxxx Capital, LLC 1,625 TBC Securities, LLC 1,625 Total 65,000~~ L.P. 3,806,374 570,956 Sch B - 1 1. The ~~initial~~ Selling Shareholder is selling 3,806,374 shares of Common Stock. 2. The Selling Shareholder has granted an option to the Underwriter to purchase up to an additional 570,956 shares of Common Stock. 3. The public offering price: as to each investor, the price per ~~share for the Securities shall be $873.51~~Share paid by such investor. 4. The number of ~~Securities~~ Repurchase Shares: 380,637. None. Sch C - 1 Xxxxxx X. Hete Xxxxx X. Xxxxxx W. Xxxxxx Xxxxx Xxxxxxx X. Xxxxxxx Xxxxx X. Xxxxxxxxxx Xxxxxxx X. Xxxxxxxx J. Xxxxxxxxxxx Xxxxx Xxxxxxxx X. Xxxxxxx Red Mountain Partners, L.P. l, 2017 Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Xxx Xxxxxx Xxxx Xxx Xxxx, Xxx Xxxx 00000 Re: Proposed Public Offering of Air Transport Services Group, Inc. Common Shares Dear Sirs: The undersigned, a stockholder, an officer and/or director of Air Transport Services Group, Inc., a Delaware corporation (the “Company”), understands that Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (“Xxxxxxx Xxxxx”) proposes to ~~be sold by~~ enter into an Underwriting Agreement (the “Underwriting Agreement”) with the Company and Red Mountain Partners, L.P. (the “Selling ~~Shareholder shall be 65,000. The settlement date / closing time shall be April 3, 2012. 1. NONE (i~~Shareholder”) ~~Each~~ providing for the public offering of shares of the ~~Registration Statement~~ Company’s common stock, par value $.01 per share (the “Common Stock”). In recognition of the benefit that such an offering will confer upon the undersigned as a stockholder [and ~~any post-effective amendment thereto has been declared effective by~~ an officer and/or director] of the Commission under the 1933 Act. Each preliminary prospectus, each Issuer Free Writing Prospectus and the Prospectus have been filed as required by Rule 424(b) (without reliance on Rule 424(b)(8)) and Rule 433, as applicable, within the time period prescribed byCompany, and ~~in compliance with~~for other good and valuable consideration, the ~~1933 Act Regulations. To the best~~ receipt and sufficiency of such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued under the 1933 Act, no order preventing or suspending the use of any preliminary prospectus or the Prospectus or any amendment or supplement thereto has been issued and no proceedings for any of those purposes have been instituted or which are ~~pending or contemplated by the Securities and Exchange Commission. (ii) The Registration Statement~~hereby acknowledged, the ~~General Disclosure Package~~ undersigned agrees with Xxxxxxx Xxxxx that, during the period beginning on the date hereof and ending on the ~~Prospectus and each amendment or supplement to~~ date that is [60]1 days from the Registration Statement, the General Disclosure Package and the Prospectus, as of their respective effective or deemed effective or issue dates (other than (1) the financial statements (including notes thereto) and supporting schedules included therein or omitted therefrom and (2) the documents incorporated or deemed incorporated therein by reference, as to which such counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations. (iii) The documents incorporated or deemed incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus (other than the financial statements (including notes thereto) and supporting schedules included therein or omitted therefrom, as to which we express no opinion), when they were filed with the Commission, complied as to form in all material respects with the requirements of the 1934 Act and 1934 Act Regulations. (iv) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any Governmental Entity is necessary or required for the Company to enter into, or perform their respective obligations under, the Operative Documents or the consummation of the transactions contemplated in the Underwriting Agreement, except or such as have been already obtained or as may be required under the 1933 Act, the 1933 Act Regulations, the securities laws of any state or non-U.S. jurisdiction or the rules of FINRA or by the Bank’s primary regulator for purposes of Section 7(e) date of the Underwriting ~~Agreement.~~ Agreement (vsubject to extensions as discussed below) To (the ~~best~~ “Lock-Up Period”), the undersigned will not, without the prior written consent of ~~such counsel’s knowledge~~Xxxxxxx Xxxxx, there are no persons with registration rights or other similar rights to have any securities registered for sale pursuant to the Registration Statement or otherwise registered for sale or sold by the Company under the 1933 Act except pursuant to the Underwriting Agreement., (i) directly or indirectly, offer, 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 any shares of the Company’s Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, whether now owned or hereafter acquired by the undersigned or with respect to which the undersigned has or hereafter acquires the power of disposition (collectively, the “Lock-Up Securities”), or exercise any right with respect to the registration of any of the Lock-up Securities, or file or cause to be filed any registration statement in connection therewith, under the Securities Act of 1933, as amended, or (ii) enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Lock-Up Securities, whether any such swap or transaction is to be settled by delivery of Common Stock or other securities, in cash or otherwise. Notwithstanding the foregoing, and subject to the conditions below, the undersigned may transfer the Lock-Up Securities without the prior written consent of Xxxxxxx Xxxxx, provided that (1) Xxxxxxx Xxxxx receives or has received a signed lock-up agreement for the balance of the lockup period from each donee, trustee, distributee, or transferee, as the case may be (except in the case of clauses (iv) and (v)), (2) any such transfer shall not involve a disposition for value (except in the case of clauses (iv) and (v)), (3) such transfers are not required during the Lock-Up Period to be reported with the Securities and Exchange Commission on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) (except in the case of clauses (iv), (v) and (vii)), and (4) the undersigned does not otherwise voluntarily effect any public filing or report regarding such transfers during the Lock-Up Period (except in the case of clauses (iv), (v) and (vii)): 1 180 days for Red Mountain Capital (i) as a bona fide gift or gifts; or (ii) to any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned (for purposes of this lock-up agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin); or (iii) as a distribution to limited partners, stockholders or equity holders of the undersigned; (iv) in connection with the withholding, receipt, exercise, cashless (or net) exercise (whether to cover exercise price, taxes or other fees and expenses), settlement, vesting or forfeiture of, or removal or lapse of restrictions on, any stock option, Common Stock issued upon exercise of a stock option, restricted share unit, restricted stock or other award pursuant to any employee benefit or director equity plan or agreement in existence as of the date hereof, so long as (x) such transaction or event does not involve the sale or transfer of any shares of Common Stock (other than from the undersigned to the Company), (y) any filing or public announcement made in connection therewith states that such transfer was to the Company in connection with such exercise or settlement, and (z) such right of exercise or settlement occurs or expires during the Lock-Up Period; provided, that for the avoidance of doubt, this clause (iv) will expressly permit the cashless exercise of stock options due to expire during the term of this Agreement; provided, further, that the net proceeds of such exercise following the sale or transfer of any shares of Common Stock to cover the exercise price, taxes or other fees and expenses, shall be held in shares of Common Stock; (v) in connection with the withholding of Common Stock or restricted share units by the Company, at the direction of the undersigned, for the payment of taxes in connection with the vesting or settlement of a stock option, restricted share unit, restricted stock or other award pursuant to any employee benefit or director equity plan or agreement in existence as of the date hereof; provided, that (x) such transaction or event does not involve the sale or transfer of any shares of Common Stock or restricted share units (other than from the undersigned to the Company), (y) any filing or public announcement made in connection therewith states that such transfer was to the Company in connection with such exercise, and (z) such right of vesting or settlement occurs or expires during the Lock-Up Period; (vi) ~~The Company is not required, or upon consummation~~ in connection with the establishment of the transactions contemplated in the Underwriting Agreement will be required, to register as an “investment company” under the 1940 Act. Although we assume no responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, General Disclosure Package or Prospectus, nothing has come to the attention of such counsel that has lead such counsel to believe that (1) the Registration Statement or any amendment thereto, including any information deemed to be a ~~part thereof~~ trading plan pursuant to Rule ~~430B~~10b5-1 under the Exchange Act for the purchase of shares of Common Stock, at provided, that such plan does not provide for the ~~time~~ purchase of Common Stock during the Lock-Up Period and no public announcement or filing under the Exchange Act regarding the establishment of such ~~Registration Statement~~ plan shall be required of or ~~any such amendment became effective~~ voluntarily made by or as on behalf of the ~~“new effective date,” contained an untrue statement of a material fact~~ undersigned or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (2) the General Disclosure Package, at the Applicable Time, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of circumstances under which they were made, not misleading or (3) the Prospectus or any amendment or supplement thereto, at the time the Prospectus was issued, at the time any such amended or supplemented prospectus was issued or at the Closing Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; it being understood that such counsel makes no statement as to any financial statements (including notes thereto), supporting schedules and other financial data included in the Registration Statement, the General Disclosure Package and the Prospectus or omitted therefrom. 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). (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, to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and to enter into and perform its obligations under, and to consummate the transactions contemplated under, the Operative Documents. (iii) The Company is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended. (iv) The Significant Subsidiary has been duly organized and is validly existing and in good standing under the laws of the jurisdiction of its organization, has the requisite corporate power and authority to own, lease and operate its properties, to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and. To such counsel’s knowledge, except as otherwise described in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding shares of capital stock of or other equity interests in the Significant Subsidiary have been duly authorized and validly issued, are fully paid and non-assessable and are owned by the Company, directly or through subsidiaries, to the best of such counsel’s knowledge free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity. To such counsel’s knowledge, none of the outstanding shares of capital stock of or other equity interests in the Significant Subsidiary were issued in violation of the preemptive or similar rights of any securityholder of such Significant Subsidiary or any other entity. (v) The deposit accounts of each of the Company’s banking subsidiaries are insured up to the applicable limits by the Deposit Insurance Fund of the FDIC to the fullest extent permitted by law and the rules and regulations of the FDIC, and, to the best of such counsel’s knowledge, no proceeding for the revocation or termination of such insurance is pending or threatened. (vi) To the best of such counsel’s knowledge, except as described in the Registration Statement, the General Disclosure Package and the Prospectus, (A) neither the Company nor any of its subsidiaries is subject or party to, or has received any notice or advice from any Regulatory Agency that any of them are reasonably expected to become subject or party to any investigation with respect to, any Regulatory Agreement, (B) neither the Company nor any of its subsidiaries has been advised by any Regulatory Agency that it is considering issuing or requesting any Regulatory Agreement, (C) there is no unresolved violation, criticism or exception by any Regulatory Agency with respect to any report or statement relating to any examinations of the Company or any of its subsidiaries and (D) the Company and its subsidiaries are in compliance in all material respects with all laws administered by the Regulatory Agencies.; or (vii) ~~Each of~~ to the Company and the Significant Subsidiary (A) is duly qualified 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 and (B) holds all Governmental Licenses issued by Governmental Entities necessary to conduct the business now operated by them, except where the failure so to qualify undersigned’s affiliates or to ~~be in good standing~~ any investment fund or other entity controlled, managed by the undersigned [or to ~~hold~~ Red Mountain Capital Partners, LLC or its affiliates.] provided that any filing or public announcement made in connection therewith states that such ~~Governmental Licenses would not, singly~~ transfer was to the undersigned’s affiliates or in the aggregate, result in a Material Adverse Effect. (viii) The outstanding shares of capital stock of the Company, including the Securities, have been duly authorized and validly issued and are fully paid and non-assessable. To such counsel’s knowledge, none of the outstanding shares of capital stock of the Company, including the Securities, were issued in violation of the preemptive to any investment fund or other ~~similar rights of any securityholder of the Company or any other entity. (ix) The Underwriting Agreement has been duly authorized~~entity controlled, executed and delivered by each of the Company and the Bank. (x) The Certificate of Designations for the Securities has been duly filed with the Secretary of State of the State of Delaware. The form of certificate representing the Securities complies in all material respects with the requirements of Delaware state law, the Charter and the By-Laws. (xi) To the best of such counsel’s knowledge, except as described in the Registration Statement, the General Disclosure Package and the Prospectus, there is no action, suit, proceeding, inquiry or investigation before or brought by any Governmental Entity now pending or threatened against or affecting the Company or any of its subsidiaries which could, singly or in the aggregate, result in a Material Adverse Effect, or which might reasonably be expected to materially and adversely affect their respective properties, assets or operations or the consummation of the transactions contemplated in the Underwriting Agreement or the performance managed by the Company of its obligations under the Operative Documents. The aggregate of all pending legal or governmental proceedings known to such counsel to which the Company or any of its subsidiaries are a party or of which any of their respective properties, assets or operations are the subject which are not described in the Registration Statement, the General Disclosure Package and the Prospectus, including ordinary routine litigation incidental to the business, would not, singly or in the aggregate, result in a Material Adverse Effect. (xii) The information in the Registration Statement, the General Disclosure Package and the Prospectus under “Description of Capital Stock,” “Description of Series A Preferred Stock” and “Certain Material United States Federal Income Tax Considerations” or comparable captions and the information in the Registration Statement under “Item 15—Indemnification of Officers and Directors,” in each case to the extent that such information constitutes matters of law, summaries of legal matters, the Charter, By-Laws or legal proceedings, or legal conclusions, has been reviewed by such counsel and is correct in all material respects. (xiii) All descriptions in the Registration Statement, the General Disclosure Package and the Prospectus of contracts and other documents to which the Company or any of its subsidiaries are a party are accurate in all material respects. To the best of such counsel’s knowledge, there are no contracts, instruments or other documents required to be described in the Registration Statement, any preliminary prospectus or the Prospectus undersigned [or to ~~be filed as exhibits to the Registration Statement which have not been so described and filed as required~~Red Mountain Capital Partners, LLC or its affiliates]. (xiv) To the best of such counsel’s knowledge, the execution, delivery and performance of the Operative Documents and the consummation of the transactions contemplated in the Underwriting Agreement and in the Registration Statement, [including the purchase by the Company of Securities in the offering,] the General Disclosure Package and the Prospectus and compliance by the Company with its obligations under the Operative Documents 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 ____) under, or result in the creation or imposition of any lien, charge or encumbrance upon

Appears in 1 contract

Samples: Underwriting Agreement (Air Transport Services Group, Inc.)

Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof. [The remainder of the page has been left blank intentionally.] If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement ~~among~~ between the ~~Underwriters~~Initial Purchaser, ~~the Company, the Bank~~ ARC and the ~~Selling Shareholder~~ Company in accordance with its terms. Very truly yours, ~~FIRST FINANCIAL HOLDINGS~~AFFORDABLE RESIDENTIAL COMMUNITIES LP By AFFORDABLE RESIDENTIAL COMMUNITIES INC., as sole general partner By /s/ Xxxxx Xxxxxx Exective Vice President AFFORDABLE RESIDENTIAL COMMUNITIES INC. ~~By:~~ By /s/ Xxxxx Xxxxxx X. Xxxxxxxxxx Name: Xxxxxx X. Xxxxxxxxxx Title: EVP and Chief Financial Officer FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF CHARLESTON By: /s/ Xxxxxx X. Xxxxxxxxxx Name: Xxxxxx X. Xxxxxxxxxx Title: EVP and Chief Financial Officer UNITED STATES DEPARTMENT OF THE TREASURY, as Selling Shareholder By: /s/ Xxxxxx Xxxxx Name: Xxxxxx Xxxxx Title: Chief Investment Officer Exective Vice President CONFIRMED AND ACCEPTED, as of the date first above written: XXXXXXX ~~LYNCH, PIERCE, XXXXXX~~ XXXXX & ~~XXXXX By:~~ CO. XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX ~~By:~~ INCORPORATED By /s/ Xxxx Xxxxxx Authorized Signatory SCHEDULE A Name of Initial Purchaser Principal Amount of Securities Xxxxxxx X. Xxxxx ~~For itself and as Representative~~ Xxxxxx, Xxxxxx & Xxxxx Incorporated $ 87,000,000 Total $ 87,000,000 SCHEDULE B AFFORDABLE RESIDENTIAL COMMUNITIES LP 7.50% Senior Exchangeable Notes due 2025 1. The initial offering price per $1,000 principal amount of the ~~other Underwriters named in Schedule A hereto~~Securities shall be 100% of the principal amount thereof, plus accrued interest, if any, from the date of issuance. 2. The purchase price per ~~share for the Securities~~ $1,000 principal amount to be paid by the several Underwriters shall be $860.4073, being an amount equal to the initial public offering price set forth in Schedule B less $13.1027 per share. Name of Underwriter Number of Securities Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated 60,125 Xxxxxx Xxxxxxxx, LLC 1,625 XX Xxxx Capital, LLC 1,625 TBC Securities, LLC 1,625 Total 65,000 The initial public offering price per share Initial Purchaser for the Securities shall be ~~$873.51~~96.5% of the principal amount thereof. 3. Interest on the Securities at a rate of 7.50% per annum on the principal amount shall be payable semiannually in arrears on February 15 and August 15 of each year, beginning on February 15, 2006. 4. The ~~number~~ Securities shall be exchangeable in certain circumstances set forth in the Indenture into shares of common stock, par value $0.01 per share, of ARC at an initial rate of 69.8812 shares of Common Stock per $1,000 principal amount of Securities (the "Exchange Price") and otherwise in accordance with the terms of the Securities and the Indenture. 5. The Securities will mature on August 15, 2025. 6. Prior to August 20, 2010, the Securities will not be redeemable at the option of the Company. Beginning on August 20, 2010, the Company may redeem the Securities in whole or in part for cash at any time at a redemption price equal to 100% of the principal amount of the Securities plus accrued, if any, on the Securities to but not including the redemption date if the closing price of the Common Stock has exceeded 130% of the Exchange Price for at least 20 trading days in any consecutive 30-day trading period. 7. Holders may require the Company to purchase all or a portion of their Securities for cash (in any case in principal amounts of $1,000 and integral multiples thereof) on August 15, 2010, August 15, 2015, and August 15, 2020 at a purchase price equal to 100% of the principal amount of the Securities to be ~~sold by~~ repurchased plus accrued, if any, to the ~~Selling Shareholder shall be 65,000. The settlement date / closing time shall be April 3, 2012~~purchase date. 18. NONE (i) Each of the Registration Statement and any post-effective amendment thereto has been declared effective by the Commission under the 1933 Act. Each preliminary prospectus, each Issuer Free Writing Prospectus and the Prospectus have been filed as required by Rule 424(b) (without reliance on Rule 424(b)(8)) and Rule 433If a fundamental change, as applicable, within the time period prescribed by, and in compliance with, the 1933 Act Regulations. To the best of such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued under the 1933 Act, no order preventing or suspending the use of any preliminary prospectus or the Prospectus or any amendment or supplement thereto has been issued and no proceedings for any of those purposes have been instituted or are pending or contemplated by the Securities and Exchange Commission. (ii) The Registration Statement, the General Disclosure Package and the Prospectus and each amendment or supplement to the Registration Statement, the General Disclosure Package and the Prospectus, as of their respective effective or deemed effective or issue dates (other than (1) the financial statements (including notes thereto) and supporting schedules included therein or omitted therefrom and (2) the documents incorporated or deemed incorporated therein by reference, as to which such counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations. (iii) The documents incorporated or deemed incorporated by reference described in the ~~Registration Statement~~Indenture, ~~the General Disclosure Package and the Prospectus (other than the financial statements (including notes thereto) and supporting schedules included therein or omitted therefrom~~occurs at any time prior to maturity, ~~as to which we express no opinion), when they were filed with the Commission, complied as to form in all material respects with the requirements~~ holders of the 1934 Act and 1934 Act Regulations. (iv) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any Governmental Entity is necessary or required for Securities may require the Company to ~~enter into,~~ repurchase their Securities in whole or ~~perform their respective obligations under, the Operative Documents or the consummation~~ in part for cash equal to 100% of the transactions contemplated in the Underwriting Agreement, except or such as have been already obtained or as may be required under the 1933 Act, the 1933 Act Regulations, the securities laws of any state or non-U.S. jurisdiction or the rules of FINRA or by the Bank’s primary regulator for purposes of Section 7(e) principal amount of the Underwriting Agreement. (v) To the best of such counsel’s knowledge, there are no persons with registration rights or other similar rights to have any securities registered for sale pursuant to the Registration Statement or otherwise registered for sale or sold by the Company under the 1933 Act pursuant to the Underwriting Agreement. (vi) The Company is not required, or upon consummation of the transactions contemplated in the Underwriting Agreement will be required, to register as an “investment company” under the 1940 Act. Although we assume no responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, General Disclosure Package or Prospectus, nothing has come to the attention of such counsel that has lead such counsel to believe that (1) the Registration Statement or any amendment thereto, including any information deemed Securities to be ~~a part thereof pursuant to Rule 430B~~repurchased plus accrued interest, at the time such Registration Statement or any such amendment became effective or as of the “new effective date,” 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, (2) the General Disclosure Package, at the Applicable Time, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of circumstances under which they were made, not misleading or (3) the Prospectus or any amendment or supplement thereto, at the time the Prospectus was issued, at the time any such amended or supplemented prospectus was issued or at the Closing Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; it being understood that such counsel makes no statement as to any financial statements (including notes thereto), supporting schedules and other financial data included in the Registration Statement, the General Disclosure Package and the Prospectus or omitted therefrom. In rendering such opinion, such counsel may rely as to matters of fact (but not as to legal conclusions)if any, to the ~~extent they deem proper~~repurchase date. SCHEDULE C List of Subsidiaries All Subsidiaries Affordable I, ~~on certificates~~ L.L.C. Affordable III, L.L.C. Affordable Residential Communities LP ARC Alafia LLC ARC Xxxxxx Xxxxx LLC ARC Birchwood LLC ARC Brokerage, L.L.C. ARC Brookside Village LP ARCAL LLC ARCALLP LLC ARC Cedar Xxxxx LLC ARC Cedar Terrace LLC ARC Communities 1 LLC ARC Communities 10 LLC ARC Communities 11 LLC ARC Communities 12 LLC ARC Communities 13 LLC ARC Communities 14 LLC ARC Communities 15 LLC ARC Communities 16 LLC ARC Communities 17 LLC ARC Communities 18 LLC ARC Communities 19 LLC ARC Communities 2 LLC ARC Communities 3 LLC ARC Communities 4 LLC ARC Communities 5 LLC ARC Communities 6 LLC ARC Communities 7 LLC ARC Communities 8 LLC ARC Communities 9 LLC ARC Dealership, Inc. ARC Encantada LLC ARC Five Seasons LLC ARC Highland LP ARC Housing GP LLC ARC Housing LLC ARC III, L.L.C. ARC Insurance Services, Inc. ARC Insurance Services, L.L.C. ARC Management LLC ARC Management Services, Inc. ARC Xxxxxx LLC ARC Meadow Xxxx LP ARC MEZZ 1 LLC ARC MEZZ 2 LLC ARC MEZZ 3 LLC ARC MEZZ 4 LLC ARC MEZZ 5 LLC ARC MEZZ 6 LLC ARC MEZZ 7 LLC ARC MEZZ 8 LLC ARCMV LLC ARCMV, ARC LP ARC Pine Ridge LLC ARC Property Management, L.L.C. ARC Quality Beach LLC ARC Real Estate Holdings, LLC ARC Real Estate Services, L.L.C. ARC Real Estate, LLC ARC Royal Crest LLC ARC Shadowood LLC— ARC Silver Creek LLC ARC Silver Leaf LP ARC SPEI I, L.L.C. ARC SPEI II, L.L.C. ARC Stone Mountain LLC ARC TRS, Inc. ARC14FLCV LLC ARC15FLOV LLC ARC18FLD LLC ARC18FLSH LLC ARC18FLWHO LLC ARC18TX LP ARC18TXGP LLC ARC19TX LP ARC19TXGP LLC ARC3NC, L.L.C. ARC4BFND, L.L.C. ARC4FL, L.L.C. ARC4MEZ, L.L.C. ARC4NY, L.L.C. ARC4TX, L.L.C. ARC4UT, L.L.C. ARCAL LLC ARCALLP LLC ARCCOGM LLC ARCFLCS LLC ARCGE LLC ARCHAR LLC ARCHC LLC ARCHomesmart, L.L.C. ARCHousingTX LP ARCIV GV, Inc. ARCIV SPE, L.L.C. Arlington MHC Lakeside, LP ARCMEZ3, L.L.C. ARCMEZII, L.L.C. ARCMOBV LLC ARCMS, Inc. ARCMV LLC ARCSBN LLC ARCTXTP LLC ARCVP LLC Colonial Gardens Water, Inc. Enspire Finance LLC Enspire Holdings LLC Enspire Insurance LLC Foremost Brokerage, L.L.C. Salmaho Irrigation Co. Windstar Aviation Corp. Designated Subsidiaries Affordable Residential Communities LP ARC Real Estate, LLC ARC Real Estate Holdings, LLC SCHEDULE D List of ~~responsible officers of the Company and public officials~~Persons or Entities Required to Sign Lock-Up Agreements Mercy Foundation, Inc. Xxx X. Mercy Mercy 1995 Family Trust Xxxxx X. Xxxxxxx Xxxxxx Xxxxx Xx. ~~Such opinion shall not state that it is to be governed or qualified by~~Xxxx X. Xxxxxxxx X. Xxxxxxx Xxxxx Xxxxx X. Xxxxxx Xxxxxxxx X. Xxxxxxx Xxxxxx X. Xxxx W. Xxxxx Xxxxxxxxxxx Capital ARC Holdings, ~~or that it is otherwise subject to~~LLC Exhibit A FORM OF OPINION OF XXXXXXXXXX HYATT & XXXXXX, ~~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~~P.C. TO BE DELIVERED PURSUANT TO SECTION 5(a). (i) The Company ~~has been duly incorporated and~~ is validly existing as a ~~corporation~~ partnership in good standing under the laws of the ~~State~~ state of Delaware. (ii) The Company has ~~corporate~~ the limited partnership power and authority to own, lease and operate its ~~properties,~~ properties and to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and to enter into and perform its obligations under, and to consummate the transactions contemplated under, the Operative DocumentsOffering Memorandum. (iii) The Company is duly ~~registered~~ qualified as a bank holding company under the Bank Holding Company Act of 1956, as amended. (iv) The Significant Subsidiary has been duly organized and is validly existing and in good standing under the laws of the jurisdiction of its organization, has the requisite corporate power and authority to own, lease and operate its properties, to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and. To such counsel’s knowledge, except as otherwise described in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding shares of capital stock of or other equity interests in the Significant Subsidiary have been duly authorized and validly issued, are fully paid and non-assessable and are owned by the Company, directly or through subsidiaries, to the best of such counsel’s knowledge free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity. To such counsel’s knowledge, none of the outstanding shares of capital stock of or other equity interests in the Significant Subsidiary were issued in violation of the preemptive or similar rights of any securityholder of such Significant Subsidiary or any other entity. (v) The deposit accounts of each of the Company’s banking subsidiaries are insured up to the applicable limits by the Deposit Insurance Fund of the FDIC to the fullest extent permitted by law and the rules and regulations of the FDIC, and, to the best of such counsel’s knowledge, no proceeding for the revocation or termination of such insurance is pending or threatened. (vi) To the best of such counsel’s knowledge, except as described in the Registration Statement, the General Disclosure Package and the Prospectus, (A) neither the Company nor any of its subsidiaries is subject or party to, or has received any notice or advice from any Regulatory Agency that any of them are reasonably expected to become subject or party to any investigation with respect to, any Regulatory Agreement, (B) neither the Company nor any of its subsidiaries has been advised by any Regulatory Agency that it is considering issuing or requesting any Regulatory Agreement, (C) there is no unresolved violation, criticism or exception by any Regulatory Agency with respect to any report or statement relating to any examinations of the Company or any of its subsidiaries and (D) the Company and its subsidiaries are in compliance in all material respects with all laws administered by the Regulatory Agencies. (vii) Each of the Company and the Significant Subsidiary (A) is duly qualified foreign entity 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 and (B) holds all Governmental Licenses issued by Governmental Entities necessary to conduct the business now operated by them~~business, except where the failure so to qualify or to be in good standing ~~or to hold any such Governmental Licenses~~ would ~~not, singly or in the aggregate,~~ not result in a Material Adverse Effect. (iv) Each Designated Subsidiary is validly existing as an entity in good standing under the laws of the jurisdiction of its formation, has corporate, partnership, or limited liability company power and authority to own, lease and operate its properties and to conduct its business as described in the Offering Memorandum. (v) Each Designated Subsidiary is duly qualified as a foreign entity 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; all of the issued and outstanding equity securities of each Designated Subsidiary have been duly authorized and validly issued, are fully paid and non-assessable and, to such counsel's knowledge, are owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity. (vi) The Company has the limited partnership power authority to execute and deliver the Purchase Agreement, the Registration Rights Agreement, the Common Stock Delivery Agreement and the Indenture and to consummate the transactions contemplated thereby. (vii) The Purchase Agreement has been duly authorized, executed and delivered by ARC and the Company. (viii) The Operating Partnership Agreement is a valid and binding agreement of ARC, enforceable against ARC in accordance with its terms. (ix) All the outstanding ~~shares~~ OP Units have been duly authorized for issuance by the Company to the holders of ~~capital stock~~ Units and, assuming that the holders of Units, as limited partners of the Company, ~~including~~ do not participate in the ~~Securities~~control of the business of the Company, the OP Units represent valid; subject to the qualifications set forth herein, fully paid limited partner interests in the Company (subject to the obligation of a limited partner of the Company to make payments provided for in the Operating Partnership Agreement and to repay any funds wrongfully distributed to it); and none of the outstanding OP Units were issued in violation of any preemptive rights under the Delaware Revised Uniform Limited Partnership Act or under the Company's partnership agreement or any contracts to which the Company is a party of which such counsel is aware. No OP Units are reserved for any purpose, and to such counsel's knowledge, there are no outstanding securities convertible into or exchangeable for any OP Units and no outstanding preemptive or other similar rights to purchase or subscribe for OP Units or any other securities of the Company arising under the Delaware Revised Uniform Limited Partnership Act or under the Company's partnership agreement or any contracts to which the Company is a party of which such counsel is aware. (x) Based solely upon a review of the minute books of the Designated Subsidiaries, the equity securities shown by the stock record books of such Designated Subsidiaries as having been issued and outstanding have been duly authorized and validly issued and are fully paid and ~~non-assessable. To such counsel’s knowledge, none of the outstanding shares of capital stock of the Company, including the Securities,~~ nonassesable and were not issued in violation of any preemptive rights under Delaware law or the ~~preemptive~~ charter or other similar ~~rights~~ organizational documents of any securityholder of the Company or any other entity. (ix) The Underwriting Agreement has been duly authorized, executed and delivered by each of the Company and the Bank. (x) The Certificate of Designations for the Securities has been duly filed with the Secretary of State of the State of Delaware. The form of certificate representing the Securities complies in all material respects with the requirements of Delaware state law, the Charter and the By-Laws.such Designated Subsidiaries; (xi) To the best of such counsel’s knowledge, except as described in the Registration Statement, the General Disclosure Package and the Prospectus, there is no action, suit, proceeding, inquiry or investigation before or brought by any Governmental Entity now pending or threatened against or affecting the Company or any of its subsidiaries which could, singly or in the aggregate, result in a Material Adverse Effect, or which might reasonably be expected to materially and adversely affect their respective properties, assets or operations or the consummation of the transactions contemplated in the Underwriting Agreement or the performance by the Company of its obligations under the Operative Documents. The aggregate of all pending legal or governmental proceedings known to such counsel to which the Company or any of its subsidiaries are a party or of which any of their respective properties, assets or operations are the subject which are not described in the Registration Statement, the General Disclosure Package and the Prospectus, including ordinary routine litigation incidental to the business, would not, singly or in the aggregate, result in a Material Adverse Effect. (xii) The information in the Registration Statement, the General Disclosure Package and the Prospectus under “Description of Capital Stock,” “Description of Series A Preferred Stock” and “Certain Material United States Federal Income Tax Considerations” or comparable captions and the information in the Registration Statement under “Item 15—Indemnification of Officers and Directors,” in each case to the extent that such information constitutes matters of law, summaries of legal matters, the Charter, By-Laws or legal proceedings, or legal conclusions, has been reviewed by such counsel and is correct in all material respects. (xiii) All descriptions in the Registration Statement, the General Disclosure Package and the Prospectus of contracts and other documents to which the Company or any of its subsidiaries are a party are accurate in all material respects. To the best of such counsel’s knowledge, there are no contracts, instruments or other documents required to be described in the Registration Statement, any preliminary prospectus or the Prospectus or to be filed as exhibits to the Registration Statement which have not been so described and filed as required. (xiv) To the best of such counsel’s knowledge, the execution, delivery and performance by ARC and the Company of the ~~Operative Documents~~ Purchase Agreement, the Indenture, the Registration Rights Agreement, the Common Stock Delivery Agreement and the Securities and the consummation of the transactions contemplated in the ~~Underwriting~~ Purchase Agreement and in the ~~Registration Statement, [~~Offering Memorandum (including the ~~purchase by~~ use of the ~~Company~~ proceeds from the sale of the Securities as described in the ~~offering,]~~ Offering Memorandum under the ~~General Disclosure Package and the Prospectus~~ caption "Use of Proceeds") and compliance by ARC and the Company with ~~its~~ their respective obligations under the ~~Operative Documents~~ Purchase Agreement, the Indenture, the Registration Rights Agreement, the Common Stock Delivery Agreement and the Securities 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 1(a)(xiv) ~~under,~~ of the Purchase Agreement) under or result in the creation or imposition of any lien, charge or encumbrance ~~upon~~upon any property or assets of ARC, the Company or any subsidiary thereof pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreement or instrument filed as an exhibit to ARC's Annual Report on Form 10-K for the year ended December 31, 2004, nor will such action result in any violation of the provisions of the charter or by-laws of ARC, the partnership agreement of the Company or similar organization documents of any of its subsidiaries, or any applicable law, statute, rule, regulation, judgment, order, writ or decree, known to such counsel, of any government, government instrumentality or court, domestic or foreign, having jurisdiction over ARC, the Company or any of its subsidiaries or any of their respective properties, assets or operations. (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 (other than such as may be required under the applicable securities laws of the various jurisdictions in which the Securities will be offered or sold, as to which such counsel need express no opinion) is necessary or required in connection with the due authorization, execution and delivery of, and consummation by ARC and the Company of the transactions contemplated by the Purchase Agreement, the Indenture or the Registration Rights Agreement, the Common Stock Delivery Agreement or for the offering, issuance, sale or delivery of the Securities to the Initial Purchaser or the resale by the Initial Purchaser in accordance with the terms of the Purchase Agreement; except (i) the registration under the 1933 Act of the Securities and the Exchange Shares as contemplated by the Registration Rights Agreement and the qualification of the Indenture under the Trust Indenture Act and (ii) such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Securities by the Initial Purchaser and the issuance of the Exchange Shares upon exchange of the Securities (as to which, in each case, we express no opinion). (xiii) The information in the Offering Memorandum under the captions "Description of Notes," "Description of Other Indebtedness" and "Description of Stock" and under the subheadings of "General," "Option" and "No Sale of Similar Securities" under the caption "Plan of Distribution" and to the extent that it constitutes matters of law, summaries of legal matters, ARC's charter and bylaws or legal proceedings, or legal conclusions, has been reviewed by such counsel and is correct in all material respects. The discussion set forth in the Offering Memorandum under the caption "Material United States Federal Income Tax Considerations" constitutes a fair and accurate summary under current law of the material United States Federal income tax consequences of the ownership and disposition of the Securities and the Common Stock, subject to qualifications set forth therein.

Appears in 1 contract

Samples: Purchase Agreement

Appears in 1 contract

Samples: Underwriting Agreement (Hannon Armstrong Sustainable Infrastructure Capital, Inc.)

Appears in 1 contract

Samples: Underwriting Agreement (Rayonier Advanced Materials Inc.)

Appears in 1 contract

Samples: Underwriting Agreement (Ameresco, Inc.)

Appears in 1 contract

Samples: Underwriting Agreement (Central Garden & Pet Co)

Appears in 1 contract

Samples: Underwriting Agreement (Innovative Industrial Properties Inc)

Appears in 1 contract

Samples: Underwriting Agreement (Runway Growth Finance Corp.)

Appears in 1 contract

Samples: Underwriting Agreement (Patrick Industries Inc)

Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof. If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the Underwriters, the ~~Company, the Bank~~ Company and the ~~Selling Shareholder~~ Adviser in accordance with its terms. Very truly yours, ~~FIRST FINANCIAL HOLDINGS~~XXXXXXX SACHS BDC, INC. By: /s/ ~~Xxxxxx X. Xxxxxxxxxx~~ Xxxxxxxx Xxxx Name: ~~Xxxxxx X. Xxxxxxxxxx~~ Xxxxxxxx Xxxx Title: ~~EVP and~~ Chief Financial Officer ~~FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF CHARLESTON~~ and Treasurer XXXXXXX XXXXX ASSET MANAGEMENT, L.P. By: /s/ ~~Xxxxxx X. Xxxxxxxxxx~~ Xxxxxxxx Xxxx Name: ~~Xxxxxx X. Xxxxxxxxxx~~ Xxxxxxxx Xxxx Title: ~~EVP and Chief Financial Officer UNITED STATES DEPARTMENT OF THE TREASURY, as Selling Shareholder By: /s/ Xxxxxx Xxxxx Name: Xxxxxx Xxxxx Title: Chief Investment Officer~~ Authorized Signatory CONFIRMED AND ACCEPTED, as of the date first above written: XXXXXXX ~~LYNCH~~XXXXX, ~~PIERCE,~~ XXXXXX XXXXXX & XXXXX INCORPORATED By: /s/ Xxxx Xxxxxxxx Name: Xxxx Xxxxxxxx Title: Managing Director XXXXXX XXXXXXX ~~LYNCH, PIERCE, XXXXXX~~ & ~~XXXXX~~ CO. LLC By: /s/ Xxxxxxx X. Xxxx Name: Xxxxxxx Xxxx Title: Executive Director XXXXX FARGO SECURITIES, LLC By: /s/ Xxxxx Xxxxxx Name: Xxxxx Xxxxxx Title: Director For ~~itself~~ themselves and as ~~Representative~~ Representatives of the other Underwriters named in Schedule A hereto. ~~The purchase price~~ Price per ~~share for the Securities to be paid~~ Share payable by the ~~several Underwriters shall be~~ Underwriters: $~~860.4073, being an amount equal to the initial public offering price set forth in Schedule B less $13.1027 per share. Name of Underwriter Number of Securities~~ 21.825 Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ~~60,125~~ 715,000 Xxxxxx ~~Xxxxxxxx,~~ Xxxxxxx & Co. LLC ~~1,625 XX Xxxx Capital, LLC 1,625 TBC~~ 650,000 Xxxxx Fargo Securities, LLC ~~1,625 Total 65,000 The initial public offering price per share for the~~ 650,000 Xxxxxxx Xxxxx & Co. LLC 260,000 Citigroup Global Markets Inc. 406,250 Credit Suisse Securities ~~shall be $873.51. The number~~ (USA) LLC 406,250 Xxxxxxx Xxxxx & Associates, Inc. 162,500 Title, Purchase Price and Description of Securities: Title: Common Stock Number of Underwritten Securities to be sold by the ~~Selling Shareholder shall~~ Company: 3,250,000 Number of Option Securities to be ~~65,000~~sold by the Company: 487,500 Public Price per Share: $22.50 None. ~~The settlement date / closing time shall be April 3~~Consolidated subsidiaries of the Company: My-On BDC Blocker, ~~2012.~~LLC Lock-Up Parties: 1. ~~NONE~~The Adviser and Xxxxxxx Sachs Group, Inc. ~~(i) Each~~ 2. Xxxxxx Xxxxxxx 3. Xxxxx Xxxxxx 4. Xxxxx Xxxxxx 5. Xxxxx Xxxxx 6. Xxxx Xxxx 7. Xxx Xxxx 8. Xxxxxxx XxXxxxxx 9. Xxx Xxxxx 10. Xxxxxxxx Xxxx 11. Xxxx Xxxxxx 12. Xxxxxxxx Xxxxxx 13. Xxxxxxxxx Xxxxxxx 14. Xxxxx Xx 15. Xxxxx Xxxxx Form of Opinion of Fried Frank, Harris, Xxxxxxx & Xxxxxxxx LLP Form of Opinion of Dechert LLP Form of Lock-Up May 18, 2017 Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated Xxxxxx Xxxxxxx & Co. LLC Xxxxx Fargo Securities, LLC as Representatives of the ~~Registration Statement and any post~~several Underwriters to be named in the within-~~effective amendment thereto has been declared effective~~ mentioned Underwriting Agreement c/o Merrill Lynch, Pierce, Xxxxxx & Xxxxx Incorporated Xxx Xxxxxx Xxxx Xxx Xxxx, Xxx Xxxx 00000 c/o Morgan Xxxxxxx & Co. LLC 0000 Xxxxxxxx Xxx Xxxx, Xxx Xxxx 00000 c/o Wells Fargo Securities, LLC 000 Xxxxx Xxxxx Xxxxxx Charlotte, North Carolina 28202 Re: Proposed Public Offering by Xxxxxxx Sachs BDC, Inc. Dear Sirs: The undersigned, a stockholder, officer, director, employee, partner and/or affiliate of Xxxxxxx Xxxxx BDC, Inc., a Delaware corporation (the ~~Commission under~~ “Company”), or Xxxxxxx Sachs Asset Management, L.P., a Delaware limited partnership (the ~~1933 Act. Each preliminary prospectus~~“Adviser”), ~~each Issuer Free Writing Prospectus and the Prospectus have been filed as required by Rule 424(b)~~ understands that Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (~~without reliance on Rule 424(b)(8~~“Xxxxxxx Xxxxx”), Xxxxxx Xxxxxxx & Co. LLC (“Xxxxxx Xxxxxxx”) and ~~Rule 433~~Xxxxx Fargo Securities, ~~as applicable, within~~ LLC (“Xxxxx Fargo”) propose to enter into an Underwriting Agreement (the time period prescribed by, and in compliance with, the 1933 Act Regulations. To the best of such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued under the 1933 Act, no order preventing or suspending the use of any preliminary prospectus or the Prospectus or any amendment or supplement thereto has been issued and no proceedings for any of those purposes have been instituted or are pending or contemplated by the Securities and Exchange Commission. (ii“Underwriting Agreement”) The Registration Statement, the General Disclosure Package and the Prospectus and each amendment or supplement to the Registration Statement, the General Disclosure Package and the Prospectus, as of their respective effective or deemed effective or issue dates (other than (1) the financial statements (including notes thereto) and supporting schedules included therein or omitted therefrom and (2) the documents incorporated or deemed incorporated therein by reference, as to which such counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations. (iii) The documents incorporated or deemed incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus (other than the financial statements (including notes thereto) and supporting schedules included therein or omitted therefrom, as to which we express no opinion), when they were filed with the Commission, complied as to form in all material respects with the requirements of the 1934 Act and 1934 Act Regulations. (iv) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any Governmental Entity is necessary or required Company providing for the ~~Company to enter into, or perform their respective obligations under,~~ public offering (the ~~Operative Documents or~~ “Public Offering”) of shares (the consummation of the transactions contemplated in the Underwriting Agreement, except or such as have been already obtained or as may be required under the 1933 Act, the 1933 Act Regulations, the securities laws of any state or non-U.S. jurisdiction or the rules of FINRA or by the Bank’s primary regulator for purposes of Section 7(e“Securities”) of the ~~Underwriting Agreement.~~ Company’s common stock, par value $0.001 per share (~~v) To~~ the ~~best~~ “Common Stock”). In recognition of the benefit that such ~~counsel’s knowledge~~an offering will confer upon the undersigned as a stockholder, ~~there are no persons with registration rights or other similar rights to have any securities registered for sale pursuant to the Registration Statement or otherwise registered for sale or sold by~~ officer, director, employee, partner and/or affiliate of the Company ~~under~~ or the ~~1933 Act pursuant~~ Adviser, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned agrees with each underwriter to ~~the Underwriting Agreement. (vi) The Company is not required, or upon consummation of the transactions contemplated~~ be named in the Underwriting Agreement ~~will be required~~that, ~~to register as an “investment company” under~~ during the ~~1940 Act. Although we assume no responsibility for~~ period beginning on the ~~accuracy, completeness or fairness~~ date hereof and ending on the date that is 90 days from the date of the ~~statements contained in the Registration Statement, General Disclosure Package or Prospectus, nothing has come to the attention of such counsel that has lead such counsel to believe that~~ Underwriting Agreement (1) the Registration Statement or any amendment thereto, including any information deemed to be a part thereof pursuant to Rule 430B, at the time such Registration Statement or any such amendment became effective or as of the “new effective date,” 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, (2) the General Disclosure Package, at the Applicable Time, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of circumstances under which they were made, not misleading or (3) the Prospectus or any amendment or supplement thereto, at the time the Prospectus was issued, at the time any such amended or supplemented prospectus was issued or at the Closing Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; it being understood that such counsel makes no statement as to any financial statements (including notes theretoLock-Up Period”), ~~supporting schedules and other financial data included in~~ the Registration Statement, the General Disclosure Package and the Prospectus or omitted therefrom. 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, includingundersigned will not, without ~~limitation~~the prior written consent of Xxxxxxx Xxxxx. Xxxxxx Xxxxxxx and Xxxxx Fargo, ~~the Legal Opinion Accord of the ABA Section of Business Law (1991).~~ directly or indirectly, (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, to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and to enter into and perform its obligations under, and to consummate the transactions contemplated under, the Operative Documents. (iii) The Company is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended. (iv) The Significant Subsidiary has been duly organized and is validly existing and in good standing under the laws of the jurisdiction of its organization, has the requisite corporate power and authority to own, lease and operate its properties, to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and. To such counsel’s knowledge, except as otherwise described in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding shares of capital stock of or other equity interests in the Significant Subsidiary have been duly authorized and validly issued, are fully paid and non-assessable and are owned by the Company, directly or through subsidiaries, to the best of such counsel’s knowledge free and clear of any security interest, mortgageoffer, pledge, ~~lien~~sell, ~~encumbrance~~contract to sell, ~~claim~~ sell any option or ~~equity. To such counsel’s knowledge~~contract to purchase, ~~none of~~ purchase any option or contract to sell, grant any option, right or warrant for the ~~outstanding shares of capital stock~~ sale of, or otherwise dispose of or ~~other equity interests in the Significant Subsidiary were issued in violation of the preemptive or similar rights of~~ transfer any ~~securityholder of such Significant Subsidiary or any other entity. (v) The deposit accounts of each~~ shares of the Company’s ~~banking subsidiaries are insured up to the applicable limits~~ Common Stock or any securities convertible into or exchangeable or exercisable for Common Stock, whether now owned or hereafter acquired by the ~~Deposit Insurance Fund~~ undersigned or with respect to which the undersigned has or hereafter acquires the power of disposition (collectively, the “Lock-Up Securities”), or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the ~~FDIC to the fullest extent permitted by law~~ Securities Exchange Act of 1934, as amended, and the rules and regulations of the ~~FDIC, and,~~ Securities and Exchange Commission promulgated thereunder with respect to the ~~best~~ Lock-Up Securities, or make any demand or exercise any right with respect to the registration of any of the Lock-up Securities, or file or cause to be filed any registration statement in connection therewith, under the Securities Act of 1933, as amended, (ii) enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Lock-Up Securities, whether any such ~~counsel’s knowledge~~swap or transaction is to be settled by delivery of Common Stock or other securities, ~~no proceeding~~ in cash or otherwise, or (iii) publicly announce the intention to undertake any such transaction specified in clause (i) or (ii). Notwithstanding the foregoing, and subject to the conditions below, the undersigned may transfer the Lock-Up Securities without the prior written consent of Xxxxxxx Xxxxx, Xxxxxx Xxxxxxx and Xxxxx Fargo in the instances set forth as items (i) through (vi) below, provided that (1) Xxxxxxx Xxxxx, Xxxxxx Xxxxxxx and Xxxxx Fargo receive a signed lock-up agreement for the ~~revocation~~ balance of the lockup period from each donee, trustee, distributee, or ~~termination~~ transferee, as the case may be, (2) any such transfer shall not involve a disposition for value, (3) such transfers are not required to be reported with the Securities and Exchange Commission on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended, and (4) the undersigned does not otherwise voluntarily effect any public filing or report regarding: (i) transfers of shares of Common Stock or such ~~insurance~~ other securities as a bona fide gift or gifts; (ii) transfers of Common Stock or such other securities as donations to charitable organizations; (iii) transfers of shares of Common Stock or such other securities as a result of the operation of law, pursuant to estate, other testamentary document or intestate succession; (iv) transfer of shares of Common Stock or such other securities to any immediate family member of the undersigned or any trust for the direct or indirect benefit of the undersigned or any immediate family member of the undersigned (for purposes of this Letter Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin); (v) if the undersigned is ~~pending~~ a corporation, partnership or ~~threatened.~~other business entity, transfers or distributions of shares of Common Stock or such other securities to (1) its limited or general partners, members or stockholders or (2) its direct or indirect affiliates or other entities or funds controlled or managed by the undersigned or its affiliates; or (vi) ~~To the best~~ transactions relating to shares of Common Stock or such ~~counsel’s knowledge, except as described~~ other securities acquired in ~~the Registration Statement, the General Disclosure Package and the Prospectus, (A) neither~~ open market transactions or acquired from the Company ~~nor~~ under any of its subsidiaries is subject or party to, or has received any notice or advice from any Regulatory Agency that any of them are reasonably expected to become subject or party to any investigation with respect to, any Regulatory Agreement, (B) neither dividend reinvestment plan after the Company nor any of its subsidiaries has been advised by any Regulatory Agency that it is considering issuing or requesting any Regulatory Agreement, (C) there is no unresolved violation, criticism or exception by any Regulatory Agency with respect to any report or statement relating to any examinations completion of the ~~Company or any of its subsidiaries and (D) the Company and its subsidiaries are in compliance in all material respects with all laws administered by the Regulatory Agencies~~Public Offering. (vii) Each of the Company and the Significant Subsidiary (A) is duly qualified 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 and (B) holds all Governmental Licenses issued by Governmental Entities necessary to conduct the business now operated by them, except where the failure so to qualify or to be in good standing or to hold any such Governmental Licenses would not, singly or in the aggregate, result in a Material Adverse Effect. (viii) The outstanding shares of capital stock of the Company, including the Securities, have been duly authorized and validly issued and are fully paid and non-assessable. To such counsel’s knowledge, none of the outstanding shares of capital stock of the Company, including the Securities, were issued in violation of the preemptive or other similar rights of any securityholder of the Company or any other entity. (ix) The Underwriting Agreement has been duly authorized, executed and delivered by each of the Company and the Bank. (x) The Certificate of Designations for the Securities has been duly filed with the Secretary of State of the State of Delaware. The form of certificate representing the Securities complies in all material respects with the requirements of Delaware state law, the Charter and the By-Laws. (xi) To the best of such counsel’s knowledge, except as described in the Registration Statement, the General Disclosure Package and the Prospectus, there is no action, suit, proceeding, inquiry or investigation before or brought by any Governmental Entity now pending or threatened against or affecting the Company or any of its subsidiaries which could, singly or in the aggregate, result in a Material Adverse Effect, or which might reasonably be expected to materially and adversely affect their respective properties, assets or operations or the consummation of the transactions contemplated in the Underwriting Agreement or the performance by the Company of its obligations under the Operative Documents. The aggregate of all pending legal or governmental proceedings known to such counsel to which the Company or any of its subsidiaries are a party or of which any of their respective properties, assets or operations are the subject which are not described in the Registration Statement, the General Disclosure Package and the Prospectus, including ordinary routine litigation incidental to the business, would not, singly or in the aggregate, result in a Material Adverse Effect. (xii) The information in the Registration Statement, the General Disclosure Package and the Prospectus under “Description of Capital Stock,” “Description of Series A Preferred Stock” and “Certain Material United States Federal Income Tax Considerations” or comparable captions and the information in the Registration Statement under “Item 15—Indemnification of Officers and Directors,” in each case to the extent that such information constitutes matters of law, summaries of legal matters, the Charter, By-Laws or legal proceedings, or legal conclusions, has been reviewed by such counsel and is correct in all material respects. (xiii) All descriptions in the Registration Statement, the General Disclosure Package and the Prospectus of contracts and other documents to which the Company or any of its subsidiaries are a party are accurate in all material respects. To the best of such counsel’s knowledge, there are no contracts, instruments or other documents required to be described in the Registration Statement, any preliminary prospectus or the Prospectus or to be filed as exhibits to the Registration Statement which have not been so described and filed as required. (xiv) To the best of such counsel’s knowledge, the execution, delivery and performance of the Operative Documents and the consummation of the transactions contemplated in the Underwriting Agreement and in the Registration Statement, [including the purchase by the Company of Securities in the offering,] the General Disclosure Package and the Prospectus and compliance by the Company with its obligations under the Operative Documents 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 ____) under, or result in the creation or imposition of any lien, charge or encumbrance upon

Appears in 1 contract

Samples: Underwriting Agreement (Goldman Sachs BDC, Inc.)

Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof. If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company and the Selling Stockholders a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the Underwriters, the ~~Company, the Bank~~ Company and the Selling ~~Shareholder~~ Stockholders in accordance with its terms. Very truly yours, ~~FIRST FINANCIAL HOLDINGS~~DST SYSTEMS, INC. By: /s/ Xxxxx Xx. Xxxxxx ~~X. Xxxxxxxxxx~~ Name: Xxxxx Xx. Xxxxxx ~~X. Xxxxxxxxxx~~ Title: ~~EVP and~~ Chief Financial Officer ~~FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF CHARLESTON~~ THE XXXXXXX FAMILY TRUST By: /s/ ~~Xxxxxx~~ Xxxxx X. ~~Xxxxxxxxxx~~ Xxxxxxx Name: ~~Xxxxxx~~ Xxxxx X. ~~Xxxxxxxxxx~~ Xxxxxxx Title: ~~EVP and Chief Financial Officer UNITED STATES DEPARTMENT OF THE TREASURY~~Trustee HBI FINANCIAL, ~~as Selling Shareholder~~ INC. By: /s/ ~~Xxxxxx~~ Xxxxx X. Xxxxxxx Name: ~~Xxxxxx~~ Xxxxx X. Xxxxxxx Title: President and Chief ~~Investment~~ Executive Officer CONFIRMED AND ACCEPTED, as of the date first above written: XXXXXX XXXXXXX ~~LYNCH, PIERCE, XXXXXX~~ & ~~XXXXX~~ CO. LLC By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED By /s/ Xxxx Xxxxxxxxx By: XXXXXX XXXXXXX & CO. LLC By /s/ ~~Xxxxxxx X. Xxxxx~~ Xxxxxx Xxxxxx For ~~itself~~ themselves and as ~~Representative~~ Representatives of the other Underwriters named in Schedule A hereto. The initial public offering price per share for the Securities shall be $84.00. The purchase price per share for the Initial Securities to be paid by the several Underwriters shall be $~~860.4073~~80.64, being an amount equal to the initial public offering price set forth ~~in Schedule B~~ above less $~~13.1027~~ 3.36 per ~~share~~share and the purchase price per share for the Option Securities to be paid by the several Underwriters shall be $84.00, subject to adjustment in accordance with Section 2(b) for dividends or distributions declared by the Company and payable on the Initial Securities but not payable on the Option Securities. ~~Name of Underwriter Number of Securities~~ Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ~~60,125~~ 2,142,882 Xxxxxx ~~Xxxxxxxx,~~ Xxxxxxx & Co. LLC ~~1,625 XX Xxxx Capital,~~ 2,142,882 Xxxxxx X. Xxxxx & Co. Incorporated 208,930 Credit Suisse Securities (USA) LLC ~~1,625 TBC~~ 208,930 Xxxxx Fargo Securities, LLC ~~1,625~~ 203,573 Avondale Partners, LLC 150,001 Evercore Group L.L.C. 150,001 Sterne, Agee & Xxxxx, Inc. 150,001 Total ~~65,000~~ 5,357,200 The Xxxxxxx Family Trust 3,286,543 0 HBI Financial, Inc. 2,070,657 267,860 Total 5,357,200 267,860 1. The Selling Stockholders are selling 5,357,200 shares of Common Stock. 2. The Selling Stockholders have granted an option to the Underwriters, severally and not jointly, to purchase up to an additional 267,860 shares of Common Stock. 3. The initial public offering price per share for the Securities shall be $~~873.51~~84.00. None. A. Xxxxxx Xxxxxxxx X. Xxxxxxxxx Xxxxxxxx Xxxxxxx X. Xxxxx Xxxxx X. Xxxxxxx The ~~number of Securities to be sold by the Selling Shareholder shall be 65,000. The settlement date / closing time shall be April 3~~Xxxxxxx Family Trust HBI Financial, ~~2012.~~Inc. GLA Financial Corporation 1. ~~NONE (i) Each~~ Based solely on our review of the ~~Registration Statement~~ Delaware Certificates, the Company is duly incorporated and ~~any post-effective amendment thereto has been declared effective by the Commission~~ is validly existing and in good standing under the ~~1933 Act~~DGCL. 2. ~~Each preliminary prospectus, each Issuer Free Writing Prospectus and~~ Based solely on our review of the ~~Prospectus have been filed as required by Rule 424(b) (without reliance on Rule 424(b)(8)) and Rule 433, as applicable, within the time period prescribed by, and in compliance with~~Foreign Qualification Certificates, the ~~1933 Act Regulations. To~~ Company has the ~~best of~~ status identified on Schedule V hereto set forth opposite the jurisdictions identified on such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued under the 1933 Act, no order preventing or suspending the use of any preliminary prospectus or the Prospectus or any amendment or supplement thereto has been issued and no proceedings for any of those purposes have been instituted or are pending or contemplated by the Securities and Exchange Commission. (ii) The Registration Statement, the General Disclosure Package and the Prospectus and each amendment or supplement to the Registration Statement, the General Disclosure Package and the ProspectusSchedule, as of ~~their respective effective or deemed effective or issue dates (other than (1)~~ the financial statements (including notes thereto) and supporting schedules included therein or omitted therefrom and (2) the documents incorporated or deemed incorporated therein by reference, as to which date identified on such ~~counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations~~Schedule. ~~(iii)~~ 3. The ~~documents incorporated or deemed incorporated by reference~~ Company has the corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus ~~(other than~~ Supplement, to execute and deliver the ~~financial statements (including notes thereto)~~ Underwriting Agreement and ~~supporting schedules included therein or omitted therefrom~~to consummate the transactions contemplated thereby. 4. The Underwriting Agreement has been duly authorized, ~~as to which we express no opinion), when they were filed with~~ executed and delivered by all requisite corporate action on the ~~Commission, complied as to form in all material respects with the requirements~~ part of the ~~1934 Act and 1934 Act Regulations~~Company under the DGCL. ~~(iv) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any Governmental Entity is necessary or required for~~ 5. Neither the execution and delivery by the Company ~~to enter into, or perform their respective obligations under,~~ of the ~~Operative Documents or~~ Underwriting Agreement nor the consummation by the Company of the transactions contemplated in thereby: (i) conflicts with the ~~Underwriting Agreement~~Organizational Documents, ~~except~~ (ii) constitutes a violation of, or ~~such as have been already obtained~~ a default under, any Scheduled Contract, (iii) contravenes any Scheduled Order, or ~~as may be required under~~ (iv) violates any law, rule or regulation of the ~~1933 Act~~State of Delaware, the ~~1933 Act Regulations, the securities laws~~ State of ~~any state or non-U.S. jurisdiction~~ New York or the ~~rules~~ United States of ~~FINRA or~~ America. 6. Neither the execution and delivery by the ~~Bank’s primary regulator for purposes of Section 7(e)~~ Company of the Underwriting ~~Agreement~~Agreement nor the consummation by the Company of the transactions contemplated thereby requires the consent, approval, licensing or authorization of, or any filing, recording or registration with, any governmental authority under any law, rule or regulation of the State of Delaware, the State of New York or the United States of America except for those consents, approvals, licenses and authorizations already obtained and those filings, recordings and registrations already made. ~~(v)~~ 7. The Company is not and, solely after giving effect to the sale of the Securities as described in the Prospectus, will not be an “investment company” as such term is defined in the Investment Company Act of 1940, as amended. 8. The statements in the Prospectus and the General Disclosure Package under the captions “Description of Capital Stock” insofar as such statements purport to summarize certain provisions of the Organizational Documents, constitute matters of law or summaries of legal matters, fairly summarize such provisions in all material respects. 9. To ~~the best of such counsel’s~~ our knowledge, there are no ~~persons with registration rights~~ legal or ~~other similar rights~~ governmental proceedings pending to ~~have~~ which the Company is a party or to which any ~~securities registered for sale~~ property of the Company is subject that are required to be disclosed in the Prospectus pursuant to Item 103 of Regulation S-K of the ~~Registration Statement~~ Rules and Regulations that are not so disclosed , except that we do not express any opinion in this paragraph 9 with respect to legal or ~~otherwise registered for sale or sold by~~ governmental proceedings relating to regulatory matters of the ~~Company~~ type referred to in the Prospectus under the ~~1933 Act pursuant~~ captions entitled “The Securities and Exchange Commission may issue regulations impacting third-party distributors of mutual funds, which could adversely affect our business” and “We and our unconsolidated affiliates are subject to government regulation. Any regulatory violations, changes or uncertainties could adversely affect our business.” On the ~~Underwriting Agreement. (vi) The Company is not required, or upon consummation~~ basis of the ~~transactions contemplated in the Underwriting Agreement will be required~~foregoing, ~~to register as an “investment company” under the 1940 Act. Although we assume no responsibility for the accuracy, completeness or fairness of the statements contained in~~ (i) the Registration Statement, ~~General Disclosure Package or~~ at the Effective Time (as defined below) and the Prospectus, ~~nothing has~~ as of the date of the Prospectus Supplement, appeared on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the Rules and Regulations (except that in each case we do not express any view as to the financial statements, schedules and other financial information included or incorporated by reference therein or excluded therefrom) and (ii) no facts have come to ~~the~~ our attention ~~of such counsel~~ that ~~has lead such counsel~~ have caused us to believe that ~~(1)~~ the Registration ~~Statement or any amendment thereto, including any information deemed to be a part thereof pursuant to Rule 430B~~Statement, at the ~~time such Registration Statement or any such amendment became effective or as of the “new effective date,”~~ Effective Time, 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, ~~(2)~~ or that the ~~General Disclosure Package~~Prospectus, at as of the ~~Applicable Time, included an untrue statement~~ date of ~~a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of circumstances under which they were made, not misleading or (3)~~ the Prospectus Supplement and as of the date hereof contained or ~~any amendment or supplement thereto, at the time the Prospectus was issued, at the time any such amended or supplemented prospectus was issued or at the Closing Time, included or includes~~ contains 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; it being understood~~ misleading (except that ~~such counsel makes no statement~~ in each case we do not express any view as to ~~any~~ the financial ~~statements (including notes thereto)~~statements, ~~supporting~~ schedules and other financial ~~data~~ information included ~~in the Registration Statement~~or incorporated by reference therein or excluded therefrom, the ~~General Disclosure Package and the Prospectus or omitted therefrom. In rendering such opinion, such counsel may rely as to matters~~ report of ~~fact (but not as to legal conclusions), to the extent they deem proper, on certificates of responsible officers~~ management’s assessment of the ~~Company and public officials. Such opinion shall not state that it is to be governed~~ effectiveness of internal controls over financial reporting 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~~ auditors’ report on the ABA Section of Business Law (1991). (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, to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and to enter into and perform its obligations under, and to consummate the transactions contemplated under, the Operative Documents. (iii) The Company is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended. (iv) The Significant Subsidiary has been duly organized and is validly existing and in good standing under the laws of the jurisdiction of its organization, has the requisite corporate power and authority to own, lease and operate its properties, to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and. To such counsel’s knowledge, except as otherwise described in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding shares of capital stock of or other equity interests in the Significant Subsidiary have been duly authorized and validly issued, are fully paid and non-assessable and are owned by the Company, directly or through subsidiaries, to the best of such counsel’s knowledge free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity. To such counsel’s knowledge, none of the outstanding shares of capital stock of or other equity interests in the Significant Subsidiary were issued in violation of the preemptive or similar rights of any securityholder of such Significant Subsidiary or any other entity. (v) The deposit accounts of each effectiveness of the Company’s ~~banking subsidiaries are insured up~~ internal controls over financial reporting, or the statements contained in the exhibits to the applicable limits by the Deposit Insurance Fund of the FDIC to the fullest extent permitted by law and the rules and regulations of the FDIC, and, to the best of such counsel’s knowledge, no proceeding for the revocation or termination of such insurance is pending or threatened. (vi) To the best of such counsel’s knowledge, except as described in the Registration Statement). In addition, on the basis of the foregoing, no facts have come to our attention that have caused us to believe that the Disclosure Package, as of the Applicable Time (as defined below), contained an untrue statement of a material fact or omitted 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 (except that we do not express any view as to the financial statements, schedules and other financial information included or incorporated by reference therein or excluded therefrom, the ~~General Disclosure Package and~~ report of management’s assessment of the ~~Prospectus, (A) neither~~ effectiveness of internal controls over financial reporting or the ~~Company nor any~~ auditors’ report on the effectiveness of ~~its subsidiaries is subject or party to~~the Company’s internal controls over financial reporting, or ~~has received any notice~~ the statements contained in the exhibits to the Registration Statement to the extent included or ~~advice from any Regulatory Agency that any~~ incorporated by reference therein). Based upon the foregoing and subject to the limitations, qualifications, exceptions and assumptions set forth herein and in the Offering Documents, although the discussion in the Prospectus Supplement under the heading “Material U.S. Federal Income Tax Considerations to Non-U.S. Holders” does not purport to discuss all possible United States federal income tax consequences of ~~them are reasonably expected~~ the ownership and disposition of the Securities to ~~become subject or party to any investigation with respect to~~Non-U.S. Holders (as defined in the Prospectus Supplement), ~~any Regulatory Agreement, (B) neither the Company nor any of its subsidiaries has been advised by any Regulatory Agency that~~ it is ~~considering issuing or requesting any Regulatory Agreement~~our opinion that, ~~(C) there is no unresolved violation~~under present United States federal income tax law, criticism or exception by any Regulatory Agency with respect to any report or statement relating to any examinations of the Company or any of its subsidiaries and (D) the Company and its subsidiaries are in compliance such discussion constitutes, in all material ~~respects with all laws administered by the Regulatory Agencies. (vii) Each~~ respects, a fair and accurate summary of the ~~Company and the Significant Subsidiary (A) is duly qualified to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason~~ United States federal income tax consequences of the ownership ~~or leasing~~ and disposition of ~~property or~~ the ~~conduct of business and~~ Securities to Non-U.S. Holders (B) holds all Governmental Licenses issued by Governmental Entities necessary to conduct the business now operated by them, except where the failure so to qualify or to be in good standing or to hold any such Governmental Licenses would not, singly or as defined in the ~~aggregate~~Prospectus Supplement). Based upon the foregoing and subject to the limitations, ~~result in a Material Adverse Effect. (viii) The outstanding shares of capital stock~~ qualifications, exceptions and assumptions stated herein, I am of the ~~Company, including~~ opinion that the ~~Securities,~~ Securities have been ~~duly authorized and~~ validly issued and are fully paid and non-assessable. ~~To such counsel’s knowledge, none~~ Xxxxxx Xxxxxxx & Co. LLC as Representatives of the ~~outstanding~~ several Underwriters c/o Merrill Lynch, Pierce, Xxxxxx & Xxxxx Incorporated Xxx Xxxxxx Xxxx Xxx Xxxx, Xxx Xxxx 00000 c/o Morgan Xxxxxxx & Co. LLC 0000 Xxxxxxxx Xxx Xxxx, Xxx Xxxx 00000 Re: Proposed Public Offering by DST Systems, Inc. Dear Sirs: The undersigned, a stockholder of DST Systems, Inc., a Delaware corporation (the “Company”), understands that Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (“Xxxxxxx Xxxxx”) Xxxxxx Xxxxxxx & Co. LLC (“Xxxxxx Xxxxxxx” and together with Xxxxxxx Xxxxx, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”) with the Company and the Selling Stockholders providing for the public offering by such Selling Stockholders of shares (the “Securities”) of ~~capital stock~~ the Company’s common stock, par value $0.01 per share (including the associated preferred share purchase right) (the “Common Stock”). In recognition of the benefit that such an offering will confer upon the undersigned as a stockholder of the Company, ~~including~~ and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned agrees with each underwriter to be named in the Underwriting Agreement that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the Underwriting Agreement, the undersigned will not, without the prior written consent of Xxxxxxx Xxxxx and Xxxxxx Xxxxxxx, directly or indirectly, (i) offer, 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 for the sale of, or otherwise dispose of or transfer any shares of the Company’s Common Stock or any securities convertible into or exchangeable or exercisable for Common Stock, whether now owned or hereafter acquired by the undersigned or with respect to which the undersigned has or hereafter acquires the power of disposition (collectively, the “Lock-Up Securities”), or exercise any right with respect to the registration of any of the Lock-up Securities, ~~were issued~~ or file or cause to be filed any registration statement in ~~violation~~ connection therewith, under the Securities Act of 1933, as amended, or (ii) enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the ~~preemptive~~ Lock-Up Securities, whether any such swap or transaction is to be settled by delivery of Common Stock or other ~~similar rights~~ securities, in cash or otherwise. Notwithstanding the foregoing, and subject to the conditions below, the undersigned may transfer the Lock-Up Securities without the prior written consent of Xxxxxxx Xxxxx and Xxxxxx Xxxxxxx, provided that (1) in the case of (i), (ii), (iii), (v), (vi), (ix) and (xi) below, the Representatives receive a signed lock-up agreement for the balance of the lockup period from each donee, trustee, distributee, or transferee, as the case may be, (2) other than (ix), any such transfer shall not involve a disposition for value, (3) other than (i), (ii) and (vi) (but only to the extent such disposition or transfer is made pursuant to (i) or (ii) below), such transfers are not required to be reported with the Securities and Exchange Commission on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended, and (4) the undersigned does not otherwise voluntarily effect any public filing or report regarding such transfers, other than an amendment to a previously filed Schedule 13D in respect of the Securities to be sold pursuant to the Underwriting Agreement: (i) as a bona fide gift or gifts; or (ii) to any trust, partnership, limited liability company or other entity for the direct or indirect benefit of the undersigned or the immediate family of the undersigned (for purposes of this lock-up agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin), or to the beneficiaries of any ~~securityholder~~ such trust; or (iii) as a distribution to limited partners, members or stockholders of the undersigned; or (iv) by will or intestacy; or (v) to any immediate family member or other dependent; or (vi) to a nominee or custodian of a person or entity to whom a disposition or transfer would be permissible herein; or (vii) pursuant to an order of a court or regulatory agency; (viii) from an executive officer of the Company upon death, disability or termination of employment, in each case, of such executive officer; or (ix) to the Company pursuant to the “cashless” exercise at expiration of options granted pursuant to any employee equity incentive plan of the Company or in respect of tax withholding payments due upon the exercise of options or the vesting of restricted stock grants pursuant to any ~~other entity. (ix) The Underwriting Agreement has been duly authorized, executed and delivered by each of the Company and the Bank.~~incentive plan; or (x) ~~The Certificate~~ the entry into a trading plan established in accordance with Rule 10b5-1 under the Exchange Act (“10b5-1 plan”), provided that (A) the restrictions set forth in this lock-up agreement shall apply in full force to any shares of ~~Designations for~~ Common Stock subject to such 10b-1 plan during the 90-day lock-up period and (B) entry into such 10b-1 plan is not required to be reported to the Securities ~~has been duly filed~~ and Exchange Commission in accordance with the ~~Secretary~~ Exchange Act and no other public announcement of ~~State of the State of Delaware. The form of certificate representing the Securities complies in all material respects with the requirements of Delaware state law, the Charter and the By~~such 10b5-~~Laws.~~1 plan is required; or (xi) To to the ~~best of such counsel~~undersigned’s ~~knowledge, except as described in~~ affiliates or to any investment fund or other entity controlled or managed by the ~~Registration Statement~~undersigned. Furthermore, the General Disclosure Package and the Prospectus, there is no action, suit, proceeding, inquiry or investigation before or brought by any Governmental Entity now pending or threatened against or affecting undersigned may sell shares of Common Stock of the Company purchased by the undersigned on the open market following the offering if and only if (i) such sales are not required to be reported in any public report or ~~any of its subsidiaries which could, singly or in~~ filing with the ~~aggregate, result in a Material Adverse Effect~~Securities Exchange Commission, or ~~which might reasonably be expected~~ otherwise and (ii) the undersigned does not otherwise voluntarily effect any public filing or report regarding such sales. (i) the Company notifies you in writing that it does not intend to ~~materially and adversely affect their respective properties~~proceed with the offering, ~~assets or operations or the consummation of the transactions contemplated in~~ (ii) the Underwriting Agreement is not executed on or ~~the performance by the Company of its obligations under the Operative Documents. The aggregate of all pending legal~~ prior to June 30, 2014 or ~~governmental proceedings known to such counsel to which the Company or~~ (iii) for any of its subsidiaries are a party or of which any of their respective properties, assets or operations are the subject which are not described in the Registration Statement, the General Disclosure Package and the Prospectus, including ordinary routine litigation incidental to the business, would not, singly or in the aggregate, result in a Material Adverse Effect. (xii) The information in the Registration Statement, the General Disclosure Package and the Prospectus under “Description of Capital Stock,” “Description of Series A Preferred Stock” and “Certain Material United States Federal Income Tax Considerations” or comparable captions and the information in the Registration Statement under “Item 15—Indemnification of Officers and Directors,” in each case to the extent that such information constitutes matters of law, summaries of legal matters, the Charter, By-Laws or legal proceedings, or legal conclusions, has been reviewed by such counsel and is correct in all material respects. (xiii) All descriptions in the Registration Statement, the General Disclosure Package and the Prospectus of contracts and other documents to which the Company or any of its subsidiaries are a party are accurate in all material respects. To the best of such counsel’s knowledge, there are no contracts, instruments or other documents required to be described in the Registration Statement, any preliminary prospectus or the Prospectus or to be filed as exhibits to the Registration Statement which have not been so described and filed as required. (xiv) To the best of such counsel’s knowledge, the execution, delivery and performance of the Operative Documents and the consummation of the transactions contemplated in the Underwriting Agreement and in the Registration Statement, [including the purchase by the Company of Securities in the offering,] the General Disclosure Package and the Prospectus and compliance by the Company with its obligations under the Operative Documents 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 ____) under, or result in the creation or imposition of any lien, charge or encumbrance uponreason the

Appears in 1 contract

Samples: Underwriting Agreement (DST Systems Inc)

Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof. If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company and the Attorney-in-Fact for the Selling Shareholders a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the Underwriters, the ~~Company, the Bank~~ Company and the Selling ~~Shareholder~~ Shareholders in accordance with its terms. Very truly yours, ~~FIRST FINANCIAL HOLDINGS~~AXONICS MODULATION TECHNOLOGIES, INC. ~~By:~~ By /s/ ~~Xxxxxx~~ Xxxxxxx X. Xxxxxxxxxx Name: Xxxxxx X. Xxxxxxxxxx Title: EVP and Chief Financial Officer FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF CHARLESTON By: /s/ Xxxxxx X. Xxxxxxxxxx Name: Xxxxxx X. Xxxxxxxxxx Title: EVP and Chief Financial Officer UNITED STATES DEPARTMENT OF THE TREASURY, as Selling Shareholder By: /s/ Xxxxxx Xxxxx Name: ~~Xxxxxx~~ Xxxxxxx X. Xxxxx Title: Chief ~~Investment~~ Executive Officer Xxxxxxx X. Xxxxx By /s/ Xxxxxxx X. Xxxxx As Attorney-in-Fact acting on behalf of the Selling Shareholders named in Schedule B hereto CONFIRMED AND ACCEPTED, as of the date first above written: ~~XXXXXXX LYNCH~~BOFA SECURITIES, ~~PIERCE, XXXXXX & XXXXX By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX By:~~ INC. By /s/ Xxxxxxx ~~X. Xxxxx~~ Xxxx Name: Xxxxxxx Xxxx Title: Managing Director BARCLAYS CAPITAL INC. By /s/ Xxxxxxxx Xxxx Name: Xxxxxxxx Xxxx Title: Vice President For ~~itself~~ themselves and as ~~Representative~~ Representatives of the other Underwriters named in Schedule A hereto. The public offering price per share for the Securities shall be $22.00. The purchase price per share for the Securities to be paid by the several Underwriters shall be $~~860.4073~~20.735, being an amount equal to the ~~initial~~ public offering price set forth ~~in Schedule B~~ above less $~~13.1027~~ 1.265 per share, subject to adjustment in accordance with Section 2(b) for dividends or distributions declared by the Company and payable on the Initial Securities but not payable on the Option Securities. Name of Underwriter Number of ofInitial Securities ~~Xxxxxxx Lynch~~BofA Securities, ~~Pierce, Xxxxxx &~~ Inc. 2,250,000 Barclays Capital Inc. 2,000,000 Xxxxx ~~Incorporated 60,125 Xxxxxx Xxxxxxxx, LLC 1,625 XX Xxxx Capital, LLC 1,625 TBC~~ Fargo Securities, LLC ~~1,625~~ 750,000 Total ~~65,000~~ 5,000,000 Number of InitialSecurities to be Sold Maximum Number of OptionSecurities to Be Sold Company 4,595,000 750,000 BioDiscovery 4 FCPR 300,000 0 Xxxxxxx X. Xxxxx 75,000 0 Xxx X. Xxxxxx 30,000 0 Total 5,000,000 750,000 1. The ~~initial~~ Company and the Selling Shareholders are selling 5,000,000 shares of Common Stock. 2. The Company has granted an option to the Underwriters, severally and not jointly, to purchase up to an additional 750,000 shares of Common Stock. 3. The public offering price per share for the Securities shall be $~~873.51~~22.00. ~~The number~~ None. None. Xxxxxxx X. Xxxxx Xxx X. Xxxxxx Xxxxx X. Sama Xxxxx Xxxxxxx Xxxxxxx Xxxxxx Guangqiang (Xxx) Jiang Xxxxxx Xxxx Xxxx Xxxxx Xxxxxxx X. Xxxxxxxxxx Xxxxxxx Xxxxxxxxxx Xxxx Xxxxx Juliet Tammenoms Xxxxxx Xxxxxx X. XxXxxxxx Xxxxxxx X. Xxxxxx Xxxxx Xxxxxxxxx Xxxx X. Xxxxxxx BioDiscovery 4 FCPR BofA Securities, Inc. Barclays Capital Inc. as Representatives of ~~Securities~~ the several Underwriters to be ~~sold~~ named in the within‑mentioned Underwriting Agreement c/o BofA Securities, Inc. Xxx Xxxxxx Xxxx Xxx Xxxx, Xxx Xxxx 00000 c/0 Barclays Capital Inc. 000 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 Re: Proposed Public Offering by Axonics Modulation Technologies, Inc. Dear Sirs: The undersigned, a stockholder, and/or an officer and/or a director, as applicable, of Axonics Modulation Technologies, Inc., a Delaware corporation (the “Company”), understands that BofA Securities, Inc. (“BofAS”) and Barclays Capital Inc. (“Barclays”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”) with the Company, the persons listed in Schedule B thereto and the other underwriters party thereto providing for the public offering (the “Public Offering”) of shares of the Company’s common stock, par value $0.0001 per share (the “Common Stock”). In recognition of the benefit that the Public Offering will confer upon the undersigned as a stockholder, and/or an officer and/or a director, as applicable, of the Company, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned agrees with each underwriter to be named in the Underwriting Agreement that, during the period beginning on the date hereof and ending on the date that is 60 days from the date of the Underwriting Agreement (the “Lock-Up Period”), the undersigned will not, without the prior written consent of BofAS and Barclays, (i) directly or indirectly, offer, 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 any shares of the Common Stock or any securities convertible into or exercisable or exchangeable for shares of the Common Stock, whether now owned or hereafter acquired by the ~~Selling Shareholder~~ undersigned or with respect to which the undersigned has or hereafter acquires the power of disposition (collectively, the “Lock-Up Securities”), or exercise any right with respect to the registration of any of the Lock-up Securities, or file, cause to be filed or cause to be confidentially submitted any registration statement in connection therewith, under the Securities Act of 1933, as amended, (ii) enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Xxxx- Up Securities, whether any such swap or transaction is to be settled by delivery of shares of the Common Stock or other securities, in cash or otherwise or (iii) publicly disclose the intention to do any of the foregoing described in clauses (i) and (ii). Notwithstanding the foregoing, and subject to the conditions below, the undersigned may transfer the Lock-Up Securities without the prior written consent of BofAS and Barclays, provided that (1) BofAS and Barclays receive a signed lock-up agreement for the balance of the Lock-Up Period from each donee, trustee, distributee, or transferee, as the case may be, (2) in the case of clauses (i) through (iv) and (vi) through (vii), any such transfer shall not involve a disposition for value, (3), in the cases of clauses (i) through (iv), such transfers are not required to be ~~65,000. The settlement date / closing time shall be April 3~~reported with the Securities and Exchange Commission (the “Commission”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, ~~2012. 1. NONE~~as amended (the “Exchange Act”), and (4) the undersigned does not otherwise voluntarily effect any public filing or report regarding such transfers: (i) ~~Each~~ as a bona fide gift or gifts; or (ii) to any trust for the direct or indirect benefit of the ~~Registration Statement and~~ undersigned or the immediate family of the undersigned (for purposes of this lock-up agreement, “immediate family” shall mean any ~~post-effective amendment thereto has been declared effective~~ relationship by blood, marriage or adoption, not more remote than first cousin); or (iii) as a distribution to limited partners, members or stockholders of the undersigned; (iv) to the undersigned’s affiliates or to any investment fund or other entity controlled or managed by the ~~Commission under~~ undersigned; (v) to the ~~1933 Act. Each preliminary prospectus~~Company (1) pursuant to the exercise, in each ~~Issuer Free Writing Prospectus and~~ case on a “cashless” or “net exercise” basis, of any option to purchase Common Stock granted by the ~~Prospectus have been~~ Company pursuant to any employee benefit plans or arrangements described in the prospectus relating to the Public Offering or filed as ~~required~~ an exhibit to the registration statement, provided that any shares of Common Stock received by ~~Rule 424(b~~the undersigned upon any such exercise will be subject to the terms of this lock-up agreement, or (2) for the purpose of satisfying any withholding taxes (including estimated taxes) due as a result of the exercise of any such option to purchase Common Stock or the vesting of any restricted stock awards granted by the Company pursuant to employee benefit plans or arrangements described in the prospectus relating to the Public Offering or filed as an exhibit to the registration statement, in each case on a “cashless” or “net exercise” basis, provided that any shares of Common Stock received by the undersigned upon any such exercise or vesting will be subject to the terms of this lock-up agreement; provided that in the case of any transfer to the Company pursuant this clause (v) (~~without reliance~~ x) during the period beginning on ~~Rule 424(b)(8)~~the date hereof and ending on the date that is 60 days from the date of the Underwriting Agreement, such transfer is not required to be reported with the Commission in a filing under Section 16(a) of the Exchange Act and ~~Rule 433~~(y) thereafter, any filing under Section 16(a) of the Exchange Act shall state in the footnotes thereto that such transfer to the Company relates to a “cashless” or “net exercise” of stock options or a tax withholding in connection with the exercise of stock options or the vesting of a restricted stock award, as applicable, ~~within~~ and that any shares of Common Stock received by the ~~time period prescribed by~~undersigned upon any such exercise or vesting and not transferred to the Company will be continue to be subject to the terms of this lock-up agreement; (vi) pursuant to an order of a court or regulatory agency; provided that in the case of any transfer pursuant this clause (vi), ~~and in compliance with, the 1933 Act Regulations. To the best of such counsel’s knowledge, no stop order suspending the effectiveness~~ any filing under Section 16(a) of the ~~Registration Statement or any post-effective amendment thereto has been issued under the 1933~~ Exchange Act, no shall state in the footnotes thereto that such transfer is pursuant to an order ~~preventing~~ of a court or ~~suspending~~ regulatory agency, unless such a statement would be prohibited by any applicable law, regulation or order of a court or regulatory authority; (vii) by will or intestate succession upon the ~~use~~ death of the undersigned; provided that in the case of any ~~preliminary prospectus or~~ transfer pursuant to this clause (vii), any filing under Section 16(a) of the ~~Prospectus or any amendment or supplement~~ Exchange Act shall state in the footnotes thereto ~~has been issued and no proceedings for any~~ that such transfer is as a result of ~~those purposes have been instituted or are pending or contemplated by~~ the ~~Securities and Exchange Commission.~~circumstances described above; or (iiviii) ~~The Registration Statement~~in response to a bona fide third-party tender offer made to all holders of shares of Common Stock or in connection with a merger, ~~the General Disclosure Package and the Prospectus and~~ consolidation, stock exchange or other similar transaction, in each ~~amendment~~ case, whereby all or supplement to the Registration Statement, the General Disclosure Package and the Prospectus, as of their respective effective or deemed effective or issue dates (other than (1) the financial statements (including notes thereto) and supporting schedules included therein or omitted therefrom and (2) the documents incorporated or deemed incorporated therein by reference, as to which such counsel need express no opinion), complied as to form in substantially all ~~material respects with the requirements~~ of the ~~1933 Act~~ shares of Common Stock are acquired by a third party and the 1933 Act Regulations. (iii) The documents incorporated or deemed incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus (other than the financial statements (including notes thereto) and supporting schedules included therein or omitted therefrom, as to which we express no opinion), when they were filed with the Commission, complied as to form in all material respects with the requirements of the 1934 Act and 1934 Act Regulations. (iv) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any Governmental Entity is necessary or required for the Company to enter into, or perform their respective obligations under, the Operative Documents or where such transaction occurs after the consummation of the ~~transactions contemplated~~ Public Offering and is approved by the board of directors of the Company; provided that, in the ~~Underwriting Agreement~~event that such tender offer, ~~except or such as have been already obtained or as may be required under the 1933 Act~~merger, ~~the 1933 Act Regulations~~consolidation, the securities laws of any state or non-U.S. jurisdiction or the rules of FINRA or by the Bank’s primary regulator for purposes of Section 7(e) of the Underwriting Agreement. (v) To the best of such counsel’s knowledge, there are no persons with registration rights stock exchange or other similar ~~rights to have any securities registered for sale pursuant~~ transaction is not completed, such shares of Common Stock shall remain subject to the ~~Registration Statement or otherwise registered for sale or sold by the Company under the 1933 Act pursuant to the Underwriting Agreement. (vi) The Company is not required, or upon consummation~~ terms of the transactions contemplated in the Underwriting Agreement will be required, to register as an “investment company” under the 1940 Act. Although we assume no responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, General Disclosure Package or Prospectus, nothing has come to the attention of such counsel that has lead such counsel to believe that (1) the Registration Statement or any amendment thereto, including any information deemed to be a part thereof pursuant to Rule 430B, at the time such Registration Statement or any such amendment became effective or as of the “new effective date,” 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, (2) the General Disclosure Package, at the Applicable Time, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of circumstances under which they were made, not misleading or (3) the Prospectus or any amendment or supplement thereto, at the time the Prospectus was issued, at the time any such amended or supplemented prospectus was issued or at the Closing Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleadingthis lock-up agreement; it being understood that such counsel makes no statement as to any financial statements (including notes thereto), supporting schedules and other financial data included in the Registration Statement, the General Disclosure Package and the Prospectus or omitted therefrom. 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). (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, to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and to enter into and perform its obligations under, and to consummate the transactions contemplated under, the Operative Documents. (iii) The Company is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended. (iv) The Significant Subsidiary has been duly organized and is validly existing and in good standing under the laws of the jurisdiction of its organization, has the requisite corporate power and authority to own, lease and operate its properties, to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and. To such counsel’s knowledge, except as otherwise described in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding shares of capital stock of or other equity interests in the Significant Subsidiary have been duly authorized and validly issued, are fully paid and non-assessable and are owned by the Company, directly or through subsidiaries, to the best of such counsel’s knowledge free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity. To such counsel’s knowledge, none of the outstanding shares of capital stock of or other equity interests in the Significant Subsidiary were issued in violation of the preemptive or similar rights of any securityholder of such Significant Subsidiary or any other entity. (v) The deposit accounts of each of the Company’s banking subsidiaries are insured up to the applicable limits by the Deposit Insurance Fund of the FDIC to the fullest extent permitted by law and the rules and regulations of the FDIC, and, to the best of such counsel’s knowledge, no proceeding for the revocation or termination of such insurance is pending or threatened. (vi) To the best of such counsel’s knowledge, except as described in the Registration Statement, the General Disclosure Package and the Prospectus, (A) neither the Company nor any of its subsidiaries is subject or party to, or has received any notice or advice from any Regulatory Agency that any of them are reasonably expected to become subject or party to any investigation with respect to, any Regulatory Agreement, (B) neither the Company nor any of its subsidiaries has been advised by any Regulatory Agency that it is considering issuing or requesting any Regulatory Agreement, (C) there is no unresolved violation, criticism or exception by any Regulatory Agency with respect to any report or statement relating to any examinations of the Company or any of its subsidiaries and (D) the Company and its subsidiaries are in compliance in all material respects with all laws administered by the Regulatory Agencies. (vii) Each of the Company and the Significant Subsidiary (A) is duly qualified 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 and (B) holds all Governmental Licenses issued by Governmental Entities necessary to conduct the business now operated by them, except where the failure so to qualify or to be in good standing or to hold any such Governmental Licenses would not, singly or in the aggregate, result in a Material Adverse Effect. (viii) The outstanding shares of capital stock of the Company, including the Securities, have been duly authorized and validly issued and are fully paid and non-assessable. To such counsel’s knowledge, none of the outstanding shares of capital stock of the Company, including the Securities, were issued in violation of the preemptive or other similar rights of any securityholder of the Company or any other entity.or (ix) ~~The Underwriting Agreement~~ sell or transfer Lock-Up Securities pursuant to a 10b5-l trading plan that complies with Rule 10b5-l under the Exchange Act (“10b5-l Trading Plan”) that has been ~~duly authorized~~entered into by the undersigned prior to the date of this lock-up agreement, ~~executed and delivered by each of the Company and the Bank.~~ provided that (x) ~~The Certificate of Designations for the Securities has been duly filed with the Secretary of State~~ any filing under Section 16 of the ~~State of Delaware. The form of certificate representing~~ Exchange Act made during the ~~Securities complies in all material respects with the requirements of Delaware state law, the Charter and the By~~Lock-~~Laws. (xi) To the best of such counsel’s knowledge, except as described~~ Up Period shall clearly indicate in the ~~Registration Statement,~~ footnotes thereto that the General Disclosure Package and the Prospectus, there is no action, suit, proceeding, inquiry or investigation before or brought by any Governmental Entity now pending or threatened against or affecting the Company or any of its subsidiaries which could, singly or in the aggregate, result in a Material Adverse Effect, or which might reasonably be expected to materially and adversely affect their respective properties, assets or operations or the consummation of the transactions contemplated in the Underwriting Agreement or the performance by the Company of its obligations under the Operative Documents. The aggregate of all pending legal or governmental proceedings known to such counsel to which the Company or any of its subsidiaries are a party or of which any of their respective properties, assets or operations are the subject which are not described in the Registration Statement, the General Disclosure Package and the Prospectus, including ordinary routine litigation incidental filing relates to the ~~business, would not, singly~~ circumstances described above and (y) the undersigned does not otherwise voluntarily effect any public filing or in report regarding such sales or transfers during the ~~aggregate, result in a Material Adverse Effect~~Lock-Up Period. (xii) The information in the Registration Statement, the General Disclosure Package and the Prospectus under “Description of Capital Stock,” “Description of Series A Preferred Stock” and “Certain Material United States Federal Income Tax Considerations” or comparable captions and the information in the Registration Statement under “Item 15—Indemnification of Officers and Directors,” in each case to the extent that such information constitutes matters of law, summaries of legal matters, the Charter, By-Laws or legal proceedings, or legal conclusions, has been reviewed by such counsel and is correct in all material respects. (xiii) All descriptions in the Registration Statement, the General Disclosure Package and the Prospectus of contracts and other documents to which the Company or any of its subsidiaries are a party are accurate in all material respects. To the best of such counsel’s knowledge, there are no contracts, instruments or other documents required to be described in the Registration Statement, any preliminary prospectus or the Prospectus or to be filed as exhibits to the Registration Statement which have not been so described and filed as required. (xiv) To the best of such counsel’s knowledge, the execution, delivery and performance of the Operative Documents and the consummation of the transactions contemplated in the Underwriting Agreement and in the Registration Statement, [including the purchase by the Company of Securities in the offering,] the General Disclosure Package and the Prospectus and compliance by the Company with its obligations under the Operative Documents 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 ____) under, or result in the creation or imposition of any lien, charge or encumbrance upon

Appears in 1 contract

Samples: Underwriting Agreement (Axonics Modulation Technologies, Inc.)

Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof. If the foregoing is in accordance with your understanding of our agreement, please sign and return to the ~~Company~~ Transaction Entities a counterpart hereof, whereupon this instrument, along with all counterparts, will become a valid and legally binding agreement among the Underwriters, the ~~Company~~Forward Seller, the ~~Bank~~ Forward Purchaser and the ~~Selling Shareholder~~ Transaction Entities in accordance with its terms. Very truly yours, ~~FIRST FINANCIAL HOLDINGS, INC.~~ AMERICOLD REALTY TRUST By: /s/ ~~Xxxxxx X. Xxxxxxxxxx~~ Xxxx Xxxxxxxx Name: ~~Xxxxxx X. Xxxxxxxxxx~~ Xxxx Xxxxxxxx Title: ~~EVP~~ Executive Vice President and Chief Financial Officer ~~FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF CHARLESTON~~ AMERICOLD REALTY OPERATING PARTNERSHIP, L.P. By: Americold Realty Trust, its General Partner By: /s/ ~~Xxxxxx X. Xxxxxxxxxx~~ Xxxx Xxxxxxxx Name: ~~Xxxxxx X. Xxxxxxxxxx~~ Xxxx Xxxxxxxx Title: ~~EVP~~ Executive Vice President and Chief Financial ~~Officer UNITED STATES DEPARTMENT OF THE TREASURY, as Selling Shareholder By: /s/ Xxxxxx Xxxxx Name: Xxxxxx Xxxxx Title: Chief Investment~~ Officer CONFIRMED AND ACCEPTED, as of the date first above written: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX ~~By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX~~ INCORPORATED By: /s/ ~~Xxxxxxx X.~~ Xxxxx Xxxxxxxxxxxxx XXXXXXX XXXXX & CO. LLC By: /s/ Xxxxxxxxx Xxxx For ~~itself~~ themselves and as ~~Representative~~ Representatives of the other Underwriters named in Schedule A hereto. CONFIRMED AND ACCEPTED, as of the date first above written: BANK OF AMERICA, N.A. Acting in its capacity as Forward Seller By: /s/ Xxxx Xxxxxxxxxx BANK OF AMERICA, N.A. Acting in its capacity as Forward Purchaser, solely as the recipient and/or beneficiary of certain representations, warranties, covenants and indemnities set forth in this Agreement By: /s/ Xxxx Xxxxxxxxxx The initial public offering price per share for the Securities shall be $29.75. The purchase price per share for the Securities to be paid by the several Underwriters shall be $~~860.4073~~28.70875, being an amount equal to the initial public offering price set forth ~~in Schedule B~~ above less $~~13.1027~~ 1.04125 per share, subject to adjustment in accordance with Section 2(b) for any distributions declared by the Company and payable on the Initial Securities but not payable on the Option Securities. Name of Underwriter Number of Initial Securities Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ~~60,125~~ 12,780,000 Xxxxxxx Sachs & Co. LLC 7,987,500 Citigroup Global Markets Inc. 3,727,500 X.X. Xxxxxx ~~Xxxxxxxx~~Securities LLC 3,727,500 RBC Capital Markets, LLC ~~1,625 XX Xxxx Capital~~2,130,000 BB&T Capital Markets, ~~LLC 1,625 TBC~~ a division of BB&T Securities, LLC ~~1,625~~ 710,000 BTIG, LLC 710,000 Citizens Capital Markets, Inc. 710,000 Rabo Securities USA, Inc. 710,000 Xxxxxxx Xxxxx & Associates, Inc. 710,000 Regions Securities LLC 710,000 SunTrust Xxxxxxxx Xxxxxxxx, Inc. 710,000 Xxxxxx X. Xxxxx & Co. Incorporated 177,500 Total ~~65,000~~ 35,500,000 Name of Underwriter Number of Underwritten Forward Shares to be Purchased Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated 2,970,000 Xxxxxxx Sachs & Co. LLC 1,856,250 Citigroup Global Markets Inc. 866,250 X.X. Xxxxxx Securities LLC 866,250 RBC Capital Markets, LLC 495,000 BB&T Capital Markets, a division of BB&T Securities, LLC 165,000 BTIG, LLC 165,000 Citizens Capital Markets, Inc. 165,000 Rabo Securities USA, Inc. 165,000 Xxxxxxx Xxxxx & Associates, Inc. 165,000 Regions Securities LLC 165,000 SunTrust Xxxxxxxx Xxxxxxxx, Inc. 165,000 Xxxxxx X. Xxxxx & Co. Incorporated 41,250 Total 8,250,000 Forward Seller Number of Underwritten Forward Shares to be Sold Bank of America, N.A. 8,250,000 Total 8,250,000 1. The Company is selling 35,500,000 Common Shares. 2. The Company has granted an option to the Underwriters, severally and not jointly, to purchase up to an additional 6,562,500 Common Shares. 3. The number of Underwritten Forward Shares: 8,250,000 Common Shares 4. The initial public offering price per share for the Securities shall be $~~873.51~~29.75. 5. The ~~number~~ initial forward sale price of ~~Securities~~ the Underwritten Forward Shares shall be $28.70875. None. Xxxx Xxxxxxx Xxxx Xxxxxxxx Xxxxx Xxxxxx Xxxxxx Xxxxxxx Xxxxx Xxxxxx Xxxxxx Xxxxxxxxx Xxxxx Xxxxxx Xxxxxx X. Xxxxxxxx, Xx. Xxxxxxx X. Xxxxx Xxxxx X. Xxxxxxxx Xxxxxxxx X. XxxXxx Xxxx X. Xxxxxxxxx Xxxxxx X. Power Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Xxxxxxx Sachs & Co. LLC as Representatives of the several Underwriters to be ~~sold~~ named in the within-mentioned Underwriting Agreement c/o Merrill Lynch, Pierce, Xxxxxx & Xxxxx Incorporated Xxx Xxxxxx Xxxx Xxx Xxxx, Xxx Xxxx 00000 Xxxxxxx Xxxxx & Co. LLC 000 Xxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 Re: Proposed Public Offering by Americold Realty Trust Dear Sirs: The undersigned, a shareholder, officer and/or trustee of Americold Realty Trust, a Maryland real estate investment trust (the ~~Selling Shareholder shall be 65,000. The settlement date / closing time shall be April 3~~“Company”), ~~2012. 1. NONE~~ understands that Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (i“Xxxxxxx Xxxxx”) ~~Each~~ and Xxxxxxx Sachs & Co. LLC (“Goldman,” and together with Xxxxxxx Xxxxx, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”) with the forward seller named therein, the forward purchaser named therein, the Company and Americold Realty Operating Partnership, L.P. (the “Operating Partnership”) providing for the public offering of the ~~Registration Statement and any post-effective amendment thereto has been declared effective by~~ Company’s common shares of beneficial interest, $0.01 par value per share (the ~~Commission under~~ “Common Shares”). In recognition of the ~~1933 Act. Each preliminary prospectus~~benefit that such an offering will confer upon the undersigned as a shareholder, ~~each Issuer Free Writing Prospectus and~~ officer and/or trustee of the ~~Prospectus have been filed as required by Rule 424(b) (without reliance on Rule 424(b)(8)) and Rule 433, as applicable, within the time period prescribed by~~Company, and ~~in compliance with~~for other good and valuable consideration, the ~~1933 Act Regulations. To~~ receipt and sufficiency of which are hereby acknowledged, the ~~best of such counsel’s knowledge~~undersigned agrees with each underwriter to be named in the Underwriting Agreement that, ~~no stop order suspending~~ during the ~~effectiveness~~ period beginning on the date of the ~~Registration Statement or any post-effective amendment thereto has been issued under the 1933 Act, no order preventing or suspending the use of any~~ preliminary prospectus or (as defined in the Prospectus or any amendment or supplement thereto has been issued and no proceedings for any of those purposes have been instituted or are pending or contemplated by the Securities and Exchange Commission. (iiUnderwriting Agreement) ~~The Registration Statement,~~ that is to be included in the General Disclosure Package ~~and the Prospectus and each amendment or supplement to the Registration Statement, the General Disclosure Package and the Prospectus,~~ (as of their respective effective or deemed effective or issue dates (other than (1) the financial statements (including notes thereto) and supporting schedules included therein or omitted therefrom and (2) the documents incorporated or deemed incorporated therein by reference, as to which such counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations. (iii) The documents incorporated or deemed incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus (other than the financial statements (including notes thereto) and supporting schedules included therein or omitted therefrom, as to which we express no opinion), when they were filed with the Commission, complied as to form in all material respects with the requirements of the 1934 Act and 1934 Act Regulations. (iv) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any Governmental Entity is necessary or required for the Company to enter into, or perform their respective obligations under, the Operative Documents or the consummation of the transactions contemplated defined in the Underwriting Agreement~~, except or such as have been already obtained or as may be required under~~ ) (the ~~1933 Act,~~ “Preliminary Prospectus”) and ending on the ~~1933 Act Regulations,~~ date (the ~~securities laws of any state or non-U.S. jurisdiction or~~ “Expiration Date”) that is 45 days from the ~~rules of FINRA or by the Bank’s primary regulator for purposes of Section 7(e)~~ date of the Underwriting Agreement. , the undersigned will not, without the prior written consent of Xxxxxxx Xxxxx, (vi) ~~To the best~~ directly or indirectly, offer, 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 lend or otherwise transfer or dispose of ~~such counsel’s knowledge~~(together, ~~there are no persons with registration rights~~ “Transfer”) any Common Shares or ~~other similar rights to have~~ any securities ~~registered~~ convertible into or exercisable or exchangeable for ~~sale pursuant to the Registration Statement or otherwise registered for sale or sold by the Company under the 1933 Act pursuant to the Underwriting Agreement.~~ Common Shares (vi) The Company is not required, or upon consummation of the transactions contemplated in the Underwriting Agreement will be required, to register as an “investment company” under the 1940 Act. Although we assume no responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, General Disclosure Package or Prospectus, nothing has come to the attention of such counsel that has lead such counsel to believe that (1) the Registration Statement or any amendment thereto, including any information deemed to be a part thereof pursuant to Rule 430B, at the time such Registration Statement or any such amendment became effective or as of the “new effective date,” 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, (2) the General Disclosure Package, at the Applicable Time, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of circumstances under which they were made, not misleading or (3) the Prospectus or any amendment or supplement thereto, at the time the Prospectus was issued, at the time any such amended or supplemented prospectus was issued or at the Closing Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; it being understood that such counsel makes no statement as to any financial statements (including notes thereto), supporting schedules and other financial data included in the Registration Statement, the General Disclosure Package and the Prospectus or omitted therefrom. 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, units of limited partnership interest in the ~~Legal Opinion Accord~~ Operating Partnership), whether now owned or hereafter acquired by the undersigned or with respect to which the undersigned has or hereafter acquires the power of disposition (collectively, the “Lock-Up Securities”), or exercise any right with respect to the registration of any of the ~~ABA~~ Lock-Up Securities or cause to be filed any registration statement in connection therewith, under the Securities Act of 1933, as amended, or publicly announce the intention to do any of the foregoing, or (ii) enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Lock-Up Securities, whether any such swap, other agreement or transaction is to be settled by delivery of Common Shares or other securities, in cash or otherwise (as described in this clause (ii), an “Other Transaction”). Notwithstanding the foregoing, and subject to the conditions below, the undersigned may Transfer the Lock-Up Securities (or, where provided below, enter into Other Transactions) without the prior written consent of Xxxxxxx Xxxxx, provided that (a) with respect to Transfers pursuant to clauses (i), (ii) and (iii) below, (1) Xxxxxxx Xxxxx receives a signed lock-up agreement for the balance of the period prior to the Expiration Date from each donee, trustee, distributee, or transferee, as the case may be (unless such donee, trustee, distributee or transferee has already signed such a lock-up agreement), (2) any such Transfer shall not involve a disposition for value, (3) such Transfers are not required to be reported with the Securities and Exchange Commission (the “Commission”) on Form 4 in accordance with Section 16 of ~~Business Law~~ the Securities Exchange Act of 1934, as amended (~~1991~~the “1934 Act”)., and (4) the undersigned does not otherwise voluntarily effect any public filing or report regarding such Transfers, (b) with respect to Transfers pursuant to clauses (iv) and (v) below, any Lock-Up Securities received upon such conversion, exchange or exercise shall remain subject to this lock-up agreement, and (c) with respect to Transfers pursuant to clauses (iv), (v), (vi) and (vii) below, any required filing reporting any such Transfer with the Commission pursuant to Section 16 of the 1934 Act shall briefly note the applicable circumstances that cause such exception to apply and explain that such filing relates solely to Transfers within such exception, unless, in the case of clause (vi), such disclosure would be prohibited by any applicable law, regulation or order of a court or regulatory agency (provided that in no event shall the undersigned voluntarily effect any public filing or report regarding such Transfers): (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.~~bona fide gift or gifts; or (ii) ~~The Company has corporate power and authority~~ to ~~own~~any immediate family member of the undersigned, ~~lease and operate its properties~~or to any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned (for purposes of this lock-up agreement, ~~to conduct its business as described in the Registration Statement~~“immediate family” shall mean any relationship by blood, ~~the General Disclosure Package and the Prospectus and to enter into and perform its obligations under~~marriage or adoption, ~~and to consummate the transactions contemplated under, the Operative Documents.~~not more remote than first cousin); or (iii) ~~The Company is duly registered as a bank holding company under~~ by will or intestacy upon the ~~Bank Holding Company Act~~ death of ~~1956, as amended.~~the undersigned; or (iv) ~~The Significant Subsidiary has been duly organized and is validly existing and in good standing under~~ through the ~~laws of the jurisdiction of its organization~~conversion, has the requisite corporate power and authority to own, lease and operate its properties, to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and. To such counsel’s knowledge, except as otherwise described in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding shares of capital stock of exchange or other equity interests in the Significant Subsidiary have been duly authorized and validly issued, are fully paid and non-assessable and are owned by the Company, directly or through subsidiaries, to the best of such counsel’s knowledge free and clear exercise of any ~~security interest, mortgage, pledge, lien, encumbrance, claim~~ securities convertible into or ~~equity. To such counsel’s knowledge, none of the outstanding shares of capital stock of~~ exercisable or ~~other equity interests in the Significant Subsidiary were issued in violation of the preemptive or similar rights of any securityholder of such Significant Subsidiary or any other entity.~~exchangeable for Lock-Up Securities; or (v) ~~The deposit accounts of each of~~ to exercise or settle, via a disposition to the Company~~’s banking subsidiaries are insured up~~ , equity awards disclosed in the registration statement relating to the ~~applicable limits by the Deposit Insurance Fund~~ public offering of ~~the FDIC~~ Common Shares, including through any “cashless” exercise thereof, including a disposition to the ~~fullest extent permitted by law and~~ Company for the ~~rules and regulations~~ purpose of ~~the FDIC, and, to the best~~ satisfying any withholding taxes (including estimated taxes) due as a result of such ~~counsel’s knowledge, no proceeding for the revocation~~ exercise or ~~termination of such insurance is pending or threatened.~~settlement; or (vi) To pursuant to an order of a court or regulatory agency or to comply with any regulations related to the ~~best~~ undersigned’s ownership of such counsel’s knowledge, except as described in the Registration Statement, the General Disclosure Package and the Prospectus, (A) neither the Company nor any of its subsidiaries is subject or party to, or has received any notice or advice from any Regulatory Agency that any of them are reasonably expected to become subject or party to any investigation with respect to, any Regulatory Agreement, (B) neither the Company nor any of its subsidiaries has been advised by any Regulatory Agency that it is considering issuing or requesting any Regulatory Agreement, (C) there is no unresolved violation, criticism or exception by any Regulatory Agency with respect to any report or statement relating to any examinations of the Company or any of its subsidiaries and (D) the Company and its subsidiaries are in compliance in all material respects with all laws administered by the Regulatory Agencies.Common Shares; or (vii) ~~Each~~ pursuant to a bona fide third party tender offer, merger, consolidation, equity purchase or other similar transaction or series of related transactions involving a change of control of the Company ~~and the Significant Subsidiary~~ (~~A) is duly qualified to transact business and is in good standing in each jurisdiction in which such qualification is required~~including, ~~whether by reason of the ownership~~ without limitation, entering into any lock-up, voting or leasing of property or the conduct of business and (B) holds all Governmental Licenses issued by Governmental Entities necessary to conduct the business now operated by them, except where the failure so to qualify or to be in good standing or to hold any such Governmental Licenses would not, singly or in the aggregate, result in a Material Adverse Effect. (viii) The outstanding shares of capital stock of the Company, including the Securities, have been duly authorized and validly issued and are fully paid and non-assessable. To such counsel’s knowledge, none of the outstanding shares of capital stock of the Company, including the Securities, were issued in violation of the preemptive or other similar rights of any securityholder of the Company or any other entity. (ix) The Underwriting Agreement has been duly authorized, executed and delivered by each of the Company and the Bank. (x) The Certificate of Designations for the Securities has been duly filed with the Secretary of State of the State of Delaware. The form of certificate representing the Securities complies in all material respects with the requirements of Delaware state law, the Charter and the By-Laws. (xi) To the best of such counsel’s knowledge, except as described in the Registration Statement, the General Disclosure Package and the Prospectus, there is no action, suit, proceeding, inquiry or investigation before or brought by any Governmental Entity now pending or threatened against or affecting the Company or any of its subsidiaries which could, singly or in the aggregate, result in a Material Adverse Effect, or which might reasonably be expected to materially and adversely affect their respective properties, assets or operations or the consummation of the transactions contemplated in the Underwriting Agreement or the performance by the Company of its obligations under the Operative Documents. The aggregate of all pending legal or governmental proceedings known to such counsel agreement pursuant to which the ~~Company~~ undersigned may agree to transfer, sell, tender or otherwise dispose of Lock-Up Securities in connection with such transaction or series of related transactions, or vote any Lock-Up Securities in favor of ~~its subsidiaries are a party~~ such transaction or series of ~~which any of their respective properties~~related transactions), ~~assets or operations are the subject which are not described~~ provided that in the ~~Registration Statement~~event such transaction or series of related transactions is not completed, the ~~General Disclosure Package and~~ Lock-Up Securities owned by the ~~Prospectus, including ordinary routine litigation incidental~~ undersigned shall remain subject to the ~~business, would not, singly or~~ restrictions contained in ~~the aggregate, result in a Material Adverse Effect~~this lock-up agreement. (xii) The information in the Registration Statement, the General Disclosure Package and the Prospectus under “Description of Capital Stock,” “Description of Series A Preferred Stock” and “Certain Material United States Federal Income Tax Considerations” or comparable captions and the information in the Registration Statement under “Item 15—Indemnification of Officers and Directors,” in each case to the extent that such information constitutes matters of law, summaries of legal matters, the Charter, By-Laws or legal proceedings, or legal conclusions, has been reviewed by such counsel and is correct in all material respects. (xiii) All descriptions in the Registration Statement, the General Disclosure Package and the Prospectus of contracts and other documents to which the Company or any of its subsidiaries are a party are accurate in all material respects. To the best of such counsel’s knowledge, there are no contracts, instruments or other documents required to be described in the Registration Statement, any preliminary prospectus or the Prospectus or to be filed as exhibits to the Registration Statement which have not been so described and filed as required. (xiv) To the best of such counsel’s knowledge, the execution, delivery and performance of the Operative Documents and the consummation of the transactions contemplated in the Underwriting Agreement and in the Registration Statement, [including the purchase by the Company of Securities in the offering,] the General Disclosure Package and the Prospectus and compliance by the Company with its obligations under the Operative Documents 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 ____) under, or result in the creation or imposition of any lien, charge or encumbrance upon

Appears in 1 contract

Samples: Underwriting Agreement (Americold Realty Trust)

Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof. If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company and the Selling Shareholders a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the Underwriters, the ~~Company, the Bank~~ Company and the Selling ~~Shareholder~~ Shareholders in accordance with its terms. ~~Very truly yours~~Sincerely, ~~FIRST FINANCIAL HOLDINGS~~INTAPP, INC. By: /s/ ~~Xxxxxx X. Xxxxxxxxxx~~ Sxxxxx Xxxx Name: ~~Xxxxxx X. Xxxxxxxxxx~~ Sxxxxx Xxxx Title: ~~EVP~~ Senior Vice President and ~~Chief Financial Officer FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF CHARLESTON~~ General Counsel GREAT HILL EQUITY PARTNERS IV, L.P. By: Great Hill Partners GX XX, LP, its General Partner By GHP IV, LLC, its General Partner By: /s/ ~~Xxxxxx X. Xxxxxxxxxx~~ Cxxxxxxxxxx Xxxxxxx Name: ~~Xxxxxx~~ Cxxxxxxxxxx X. ~~Xxxxxxxxxx~~ Xxxxxxx Title: ~~EVP and Chief Financial Officer UNITED STATES DEPARTMENT OF THE TREASURY~~Manager GREAT HILL INVESTORS, ~~as Selling Shareholder~~ LLC By: /s/ ~~Xxxxxx~~ Cxxxxxxxxxx Xxxxxxx Name: Cxxxxxxxxxx X. Xxxxxxx Title: Manager AXXXXXXX INVESTMENTS PTE. LTD. By: /s/ Fxxx Xxx Xxxxx Name: ~~Xxxxxx~~ Fxxx Xxx Xxxxx Title: ~~Chief Investment Officer~~ Authorized Signatory [Signature Page to Underwriting Agreement] SELLING SHAREHOLDER By: /s/ Jxxx Xxxx Name: Jxxx Xxxx SELLING SHAREHOLDER By: /s/ Sxxxxxx Xxxxxxxxx Name: Sxxxxxx Xxxxxxxxx CONFIRMED AND ACCEPTED, as of the date first above written: ~~XXXXXXX LYNCH~~BOFA SECURITIES, ~~PIERCE, XXXXXX & XXXXX By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX~~ INC. By: /s/ ~~Xxxxxxx X. Xxxxx~~ Jxxx Xxxxxxxx Name: Jxxx Xxxxxxxx Title: Authorized Signatory For itself and as Representative of the other Underwriters named in Schedule A hereto. The public offering price per share for the Securities shall be $36.50. The purchase price per share for the Securities to be paid by the several Underwriters shall be $~~860.4073~~35.04, being an amount equal to the ~~initial~~ public offering price set forth ~~in Schedule B~~ above less $~~13.1027~~ 1.46 per share, subject to adjustment in accordance with Section 2(b) for dividends or distributions declared by the Company and payable on the Initial Securities but not payable on the Option Securities. Name of Underwriter Number of Initial Securities BofA Securities, Inc. 1,875,000 Barclays Capital Inc. 1,562,500 Citigroup Global Markets Inc. 625,000 Rxxxxxx Jxxxx & Associates, Inc. 500,000 Credit Suisse Securities (USA) LLC 375,000 Pxxxx Xxxxxxx ~~Lynch, Pierce, Xxxxxx~~ & ~~Xxxxx Incorporated 60,125 Xxxxxx Xxxxxxxx~~Co. 375,000 BTIG, LLC ~~1,625 XX Xxxx Capital~~312,500 Oxxxxxxxxxx & Co. Inc. 312,500 Sxxxxx Xxxxxxxx & Company, Incorporated 312,500 Total 6,250,000 Intapp, Inc. 2,000,000 -- Axxxxxxx Investments Pte Ltd. 1,970,813 515,625 Great Hill Equity Partners IV, LP 1,619,742 420,365 Great Hill Investors, LLC ~~1,625 TBC Securities~~5,818 1,510 Jxxx Xxxx 553,627 -- Sxxxxxx Xxxxxxxxx 100,000 -- Total 6,250,000 937,500 1. The Company and the Selling Shareholders are selling 6,250,000 shares of Common Stock. 2. The Option Selling Shareholders have granted an option to the Underwriters, ~~LLC 1,625 Total 65,000~~ severally and not jointly, to purchase up to an additional 937,500 shares of Common Stock. 3. The ~~initial~~ public offering price per share for the Securities shall be $~~873.51~~36.50. ~~The number~~ None. Jxxx Xxxx Chief Executive Officer, Director and Selling Stockholder Bxxxxxx Xxxxx Director Nxxxx Xxxxxx Director Dxxxx Xxxxxxxxx Director Mxxxx Xxxxx Director Cxxxx Xxxxxxx Director Rxxxx Xxxxxx Director Cxxxxxx Xxxxx Director Gxxxxx Xxxxx Director Mxxxxx Xxxxxxxx Director Sxxxxxx Xxxxxxxxx Chief Financial Officer and Selling Stockholder Kxxxxxx Xxxxxx Chief Accounting Officer Txxx Xxxxxx Chief Product Officer Dxx Xxxxxxx Chief Operating Officer Mxxxxxx Xxxxxx Chief People and Places Officer Sxxxx Xxxxxxxxxx Chief Marketing Officer Great Hill Equity Partners IV, LP Selling Stockholder Great Hill Investors, LLC Selling Stockholder Axxxxxxx Investments Pte. Ltd. Selling Stockholder BofA Securities, Inc. as Representative of ~~Securities~~ the several underwriters (the “Underwriters”) to be ~~sold~~ named in the within-mentioned Underwriting Agreement c/o BofA Securities, Inc. One Bryant Park New York, New York 10036 Re: Proposed Public Offering by Intapp, Inc. To the ~~Selling Shareholder shall be 65,000~~addressees set forth above: The undersigned, a stockholder, optionholder, officer and/or director of Intapp, Inc., a Delaware corporation (the “Company”), understands that BofA Securities, Inc. (the “Representative”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”) with the Company and the selling shareholders providing for the public offering (the “Public Offering”) of shares of the Company’s common stock, par value $0.001 per share (the “Common Stock”). ~~The settlement~~ In recognition of the benefit that such an offering will confer upon the undersigned as a stockholder, optionholder, officer and/or director of the Company, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned agrees with the Representative on behalf of the Underwriters that, during the period beginning on the date ~~/ closing time shall be April 3~~hereof and ending on, ~~2012. 1. NONE~~ and including, the date that is 60 days from the date of the Underwriting Agreement (the “Lock-Up Period”), the undersigned will not, without the prior written consent of the Representative, (i) ~~Each~~ directly or indirectly, offer, 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 any shares of Common Stock or any securities convertible into or exercisable or exchangeable for shares of Common Stock, whether now owned or hereafter acquired by the undersigned or with respect to which the undersigned has or hereafter acquires the power of disposition (collectively, the “Lock-Up Securities”), or exercise any right with respect to the registration of any of the ~~Registration Statement and~~ Lock-Up Securities, or file, cause to be filed any ~~post-effective amendment thereto has been declared effective by the Commission~~ registration statement in connection therewith, under the ~~1933 Act. Each preliminary prospectus, each Issuer Free Writing Prospectus and the Prospectus have been filed as required by Rule 424(b) (without reliance on Rule 424(b)(8)) and Rule 433~~Securities Act of 1933, as ~~applicable~~amended (the “Securities Act”), within the time period prescribed by, and in compliance with, the 1933 Act Regulations. To the best of such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued under the 1933 Act, no order preventing or suspending the use of any preliminary prospectus or the Prospectus or any amendment or supplement thereto has been issued and no proceedings for any of those purposes have been instituted or are pending or contemplated by the Securities and Exchange Commission. (ii) ~~The Registration Statement~~enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the ~~General Disclosure Package and~~ economic consequence of ownership of the ~~Prospectus and~~ Lock-Up Securities, whether any such swap or transaction is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each ~~amendment or supplement to the Registration Statement, the General Disclosure Package and the Prospectus, as of their respective effective or deemed effective or issue dates (~~case other than (1A) the financial statements (including notes thereto) and supporting schedules included therein or omitted therefrom and (2) the documents incorporated or deemed incorporated therein by reference, as to which such counsel need express no opinion), complied as to form in all material respects with the requirements registration of the ~~1933 Act~~ offer and the 1933 Act Regulations. (iii) The documents incorporated or deemed incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus (other than the financial statements (including notes thereto) and supporting schedules included therein or omitted therefrom, as to which we express no opinion), when they were filed with the Commission, complied as to form in all material respects with the requirements sale of the ~~1934 Act and 1934 Act Regulations.~~ Lock-Up Securities (ivif any) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any Governmental Entity is necessary or required for the Company to enter into, or perform their respective obligations under, the Operative Documents or the consummation of the transactions contemplated in the Underwriting Agreement, except or such as have been already obtained or as may be required under the 1933 Act, the 1933 Act Regulations, the securities laws of any state or non-U.S. jurisdiction or the rules of FINRA or by the Bank’s primary regulator for purposes of Section 7(e) of the Underwriting Agreement. (v) To the best of such counsel’s knowledge, there are no persons with registration rights or other similar rights to have any securities registered for sale pursuant to the ~~Registration Statement~~ Underwriting Agreement and (B) any demands or ~~otherwise registered for sale~~ requests for, the exercise of any right with respect to, or ~~sold~~ the taking of any action in preparation of, the registration by the Company under the ~~1933~~ Securities Act of the undersigned’s Lock-Up Securities pursuant to that certain registration rights agreement as described in the Prospectus (as defined in the Underwriting Agreement); provided that no transfer of the undersigned’s Lock-Up Securities registered pursuant to the ~~Underwriting Agreement~~exercise of any such right shall be made with respect to any of the undersigned’s Lock-Up Securities during the Lock-Up Period. Notwithstanding the foregoing, and subject to the conditions below, the undersigned may, without the prior written consent of the Representative. (via) ~~The Company is not required~~transfer the Lock-Up Securities, or upon consummation of the transactions contemplated in the Underwriting Agreement will be required, to register as an “investment company” under the 1940 Act. Although we assume no responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, General Disclosure Package or Prospectus, nothing has come to the attention of such counsel that has lead such counsel to believe provided that (1) the ~~Registration Statement or any amendment thereto, including any information deemed to be~~ Representative receives a ~~part thereof pursuant to Rule 430B, at~~ signed lock-up agreement for the ~~time such Registration Statement or any such amendment became effective or as~~ balance of the ~~“new effective date,” contained an untrue statement of a material fact~~ Lock-Up Period from each donee, trustee, distributee, or ~~omitted to state a material fact required to be stated therein or necessary to make~~ transferee, as the ~~statements therein not misleading~~case may be, (2) ~~the General Disclosure Package~~any such transfer shall not involve a disposition for value, at the Applicable Time, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of circumstances under which they were made, not misleading or (3) such transfers are not required to be reported with the Prospectus or any amendment or supplement thereto, at the time the Prospectus was issued, at the time any such amended or supplemented prospectus was issued or at the Closing Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary Securities and Exchange Commission on Form 4 in ~~order to make the statements therein, in the light~~ accordance with Section 16 of the circumstances under which they were made, not misleading; it being understood that such counsel makes no statement as to any financial statements (including notes thereto), supporting schedules and other financial data included in the Registration Statement, the General Disclosure Package and the Prospectus or omitted therefrom. 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). (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, to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and to enter into and perform its obligations under, and to consummate the transactions contemplated under, the Operative Documents. (iii) The Company is duly registered as a bank holding company under the Bank Holding Company Securities Exchange Act of ~~1956~~1934, as amended~~. (iv) The Significant Subsidiary has been duly organized and is validly existing and in good standing under the laws of the jurisdiction of its organization~~, has the requisite corporate power and authority to own, lease and operate its properties, to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and. To such counsel’s knowledge, except as otherwise described in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding shares of capital stock of or other equity interests in the Significant Subsidiary have been duly authorized and validly issued, are fully paid and non-assessable and are owned by the Company, directly or through subsidiaries, to the best of such counsel’s knowledge free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity. To such counsel’s knowledge, none of the outstanding shares of capital stock of or other equity interests in the Significant Subsidiary were issued in violation of the preemptive or similar rights of any securityholder of such Significant Subsidiary or any other entity. (v) The deposit accounts of each of the Company’s banking subsidiaries are insured up to the applicable limits by the Deposit Insurance Fund of the FDIC to the fullest extent permitted by law and the rules and regulations of the ~~FDIC~~Securities and Exchange Commission promulgated thereunder (the “Exchange Act”), ~~and~~and (4) the undersigned does not otherwise voluntarily effect any public filing or report regarding such transfers: (i) to any immediate family member (for purposes of this lock-up agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin); (ii) to any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned; (iii) if the undersigned is a trust, to the ~~best~~ trustor or beneficiary of such ~~counsel’s knowledge, no proceeding for~~ trust or to the ~~revocation or termination~~ estate of a beneficiary of such ~~insurance is pending~~ trust; (iv) as a distribution to partners, stockholders, members of or ~~threatened.~~owners of similar equity interests of the undersigned; (v) to the undersigned’s affiliates or to any investment fund or other entity controlled or managed by the undersigned; (vi) ~~To the best of such counsel’s knowledge, except as described in the Registration Statement, the General Disclosure Package and the Prospectus, (A) neither~~ to the Company ~~nor any of its subsidiaries is subject or party to, or has received any notice or advice~~ from any Regulatory Agency that any of them are reasonably expected to become subject or party to any investigation with respect to, any Regulatory Agreement, (B) neither the Company nor any of its subsidiaries has been advised by any Regulatory Agency that it is considering issuing or requesting any Regulatory Agreement, (C) there is no unresolved violation, criticism or exception by any Regulatory Agency with respect to any report or statement relating to any examinations an employee of the Company upon death, disability or ~~any~~ termination of ~~its subsidiaries and~~ employment (Dwith or without cause) ~~the Company and its subsidiaries are~~ or resignation, in ~~compliance in all material respects with all laws administered by the Regulatory Agencies.~~each case, of such employee; (vii) ~~Each~~ as part of a sale of the undersigned’s Lock-Up Securities acquired in the Public Offering, excluding any shares purchased by directors or executive officers, or in open market transactions after the closing date for the Public Offering; or (viii) to a nominee or custodian of a person or entity to whom a disposition or transfer would be permissible under clauses (i) through (vi) above. (b) transfer the Lock-Up Securities, provided that (1) the Representative receives a signed lock-up agreement for the balance of the lockup period from each donee, trustee, distributee, or transferee, as the case may be, (2) any such transfer shall not involve a disposition for value, and (3) any filing under the Exchange Act required to be made during the Lock-Up Period shall clearly indicate in the footnotes thereto that the filing relates to circumstances described below, as applicable: (i) as a bona fide gift or gifts, or for bona fide estate planning purposes; (ii) to a partnership, limited liability company or other entity of which the undersigned and the immediate family of the undersigned are the legal and beneficial owner of all of the outstanding equity securities or similar interests; (iii) by will or intestacy to the legal representative, heir, beneficiary or any immediate family of the undersigned; (iv) by operation of law, such as pursuant to a qualified domestic order, divorce settlement, divorce decree or separation agreement or pursuant to any court order or the order of any other governmental authority having jurisdiction over the undersigned; or (v) to a nominee or custodian of a person or entity to whom a disposition or transfer would be permissible under clauses (i) through (iii) above. (c) transfer the Lock-Up Securities to the Company in connection with the vesting, settlement, or exercise of restricted stock units, options, warrants or other rights to purchase shares of Common Stock (including, in each case, by way of “net” or “cashless” exercise), including for the payment of exercise price and tax and remittance payments due as a result of the vesting, settlement, or exercise of such restricted stock units, options, warrants or rights, provided that any such shares of Common Stock received upon such exercise, vesting or settlement shall be subject to the terms of this lock-up agreement; provided, however, that (A) any filing under Section 16 of the Exchange Act made during the Lock-Up Period shall clearly indicate in the footnotes thereto that (1) the filing relates to the circumstances described above, and (2) no Lock-Up Securities were sold by the undersigned, other than such transfers to the Company as described and (B) the undersigned does not otherwise voluntarily effect any other public filings or report regarding such transfer during the Lock-Up Period; (d) transfer the Lock-Up Securities upon the completion of a bona fide third-party tender offer, merger, consolidation, or other similar transaction that is approved by the Board of Directors of the Company and made to all holders of the ~~Significant Subsidiary~~ Company’s securities involving a change of control of the Company (~~A) is duly qualified to transact business and is in good standing in each jurisdiction in which such qualification is required~~for purposes hereof, “change of control” shall mean the transfer (whether by ~~reason~~ tender offer, merger, consolidation or other similar transaction), in one transaction or a series of ~~the ownership~~ related transactions, to a person or ~~leasing~~ group of ~~property or the conduct~~ affiliated persons, of business and (B) holds all Governmental Licenses issued by Governmental Entities necessary to conduct the business now operated by them, except where the failure so to qualify or to be in good standing or to hold any such Governmental Licenses would not, singly or in the aggregate, result in a Material Adverse Effect. (viii) The outstanding shares of capital stock of the ~~Company~~Company if, ~~including the Securities~~after such transfer, ~~have been duly authorized and validly issued and are fully paid and non-assessable. To~~ such ~~counsel’s knowledge, none~~ person or group of affiliated persons would hold at least a majority of the outstanding ~~shares of capital stock~~ voting securities of the ~~Company~~Company (or the surviving entity)); provided that, ~~including~~ in the ~~Securities~~event that such tender offer, ~~were issued in violation of the preemptive~~ merger, consolidation, or other similar ~~rights of~~ transaction is not completed, any ~~securityholder of~~ Lock-Up Securities held by the ~~Company or any other entity.~~undersigned shall remain subject to the restrictions on transfer set forth in this lock-up agreement; (ixe) ~~The Underwriting Agreement has been duly authorized~~exercise outstanding options, executed and delivered by each of the Company and the Bank. (x) The Certificate of Designations for the Securities has been duly filed with the Secretary of State of the State of Delaware. The form of certificate representing the Securities complies in all material respects with the requirements of Delaware state lawsettle restricted stock units, ~~the Charter and the By-Laws. (xi) To the best of such counsel’s knowledge, except as~~ or other equity awards or exercise warrants pursuant to plans described in the Registration Statement, the General Disclosure Package and the Prospectus, there is no action, suit, proceeding, inquiry or investigation before or brought by any Governmental Entity now pending or threatened against or affecting the Company or any of its subsidiaries which could, singly or in the aggregate, result in a Material Adverse Effect, or which might reasonably be expected to materially and adversely affect their respective properties, assets or operations or the consummation of the transactions contemplated Prospectus (as defined in the Underwriting ~~Agreement~~ Agreement); provided that (A) any Lock-Up Securities received upon such exercise, vesting, or settlement shall continue to be subject to the ~~performance by~~ restrictions set forth herein until the ~~Company~~ expiration of ~~its obligations~~ the Lock-Up Period and (B) any filing under Section 16 of the ~~Operative Documents. The aggregate of all pending legal~~ Exchange Act shall clearly indicate in the footnotes thereto that the Lock-Up Securities received from such exercise, vesting, or ~~governmental proceedings known~~ settlement remain subject to ~~such counsel~~ the restrictions on transfer set forth in this lock-up agreement; (f) convert outstanding preferred stock, warrants to ~~which~~ acquire preferred stock, or convertible securities granted to the ~~Company or any of its subsidiaries are a party or of which any of their respective properties, assets or operations are the subject which are not~~ undersigned pursuant to plans described in the ~~Registration Statement,~~ Prospectus (as defined in the ~~General Disclosure Package and the Prospectus, including ordinary routine litigation incidental~~ Underwriting Agreement) into shares of Common Stock or warrants to acquire shares of Common Stock; provided that (A) any Lock-Up Securities received upon such conversion shall continue to be subject to the ~~business, would not, singly or~~ restrictions set forth herein until the expiration of the Lock-Up Period and (B) any filing under Section 16 of the Exchange Act shall clearly indicate in the ~~aggregate, result~~ footnotes thereto that the Lock-Up Securities received from such conversion remain subject to the restrictions on transfer set forth in ~~a Material Adverse Effect.~~this lock-up agreement; (~~xii~~g) ~~The information in~~ establish a trading plan under Rule 10b5-1 under the ~~Registration Statement,~~ Exchange Act (“10b5-1 Trading Plan”) so long as either there are no sales of Lock-Up Securities under such plan during the General Disclosure Package and the Prospectus under “Description of Capital Stock,” “Description of Series A Preferred Stock” and “Certain Material United States Federal Income Tax Considerations” Lock-Up Period or ~~comparable captions and the information in the Registration Statement under “Item 15—Indemnification of Officers and Directors,” in each case to the extent that~~ such ~~information constitutes matters of law, summaries of legal matters, the Charter, By~~10b5-~~Laws or legal proceedings, or legal conclusions,~~ 1 Trading Plan has been reviewed by the Representative prior to the date of the Underwriting Agreement; or (h) transfer the Lock-Up Securities pursuant to a 10b5-1 Trading Plan established prior to the date hereof; provided, that (i) such trading plan was established prior to the entry into this lock-up agreement and a copy of such trading plan has been provided to the Representative and their legal counsel and (ii) the undersigned is ~~correct in all material respects. (xiii) All descriptions~~ not selling shares of Common Stock in the ~~Registration Statement~~Public Offering, and provided further, that, to the ~~General Disclosure Package and~~ extent a public announcement or filing under the ~~Prospectus~~ Exchange Act, if any, is required of ~~contracts and other documents to which~~ or voluntarily made by or on behalf of the undersigned or the Company regarding such transfer, such announcement or ~~any of its subsidiaries are~~ filing shall include a ~~party are accurate~~ statement that such transfer is in all material respects. To the best of such counsel’s knowledge, there are no contracts, instruments or other documents required to be described in the Registration Statement, any preliminary prospectus or the Prospectus or to be filed as exhibits to the Registration Statement which have not been so described and filed as requiredaccordance with an established 10b5-1 Trading Plan. (xiv) To the best of such counsel’s knowledge, the execution, delivery and performance of the Operative Documents and the consummation of the transactions contemplated in the Underwriting Agreement and in the Registration Statement, [including the purchase by the Company of Securities in the offering,] the General Disclosure Package and the Prospectus and compliance by the Company with its obligations under the Operative Documents 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 ____) under, or result in the creation or imposition of any lien, charge or encumbrance upon

Appears in 1 contract

Samples: Underwriting Agreement (Intapp, Inc.)

Appears in 1 contract

Samples: Underwriting Agreement (Hudson Pacific Properties, Inc.)

Appears in 1 contract

Samples: Underwriting Agreement (Rexford Industrial Realty, Inc.)

Appears in 1 contract

Samples: Underwriting Agreement (Cadence Pharmaceuticals Inc)

Appears in 1 contract

Samples: Underwriting Agreement (Dutch Bros Inc.)

Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof. If the foregoing is in accordance with your understanding of our agreement, please sign and return to the ~~Company~~ Partnership a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the ~~Underwriters, the Company, the Bank~~ Underwriters and the ~~Selling Shareholder~~ StoneMor Parties in accordance with its terms. Very truly yours, ~~FIRST FINANCIAL HOLDINGS~~STONEMOR PARTNERS L.P. By: StoneMor GP LLC, ~~INC.~~ its general partner By: /s/ ~~Xxxxxx~~ Xxxxxxx X. ~~Xxxxxxxxxx~~ Xxxxx Name: ~~Xxxxxx~~ Xxxxxxx X. ~~Xxxxxxxxxx~~ Xxxxx Title: ~~EVP~~ Executive Vice President and Chief Financial Officer ~~FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF CHARLESTON~~ STONEMOR GP LLC By: /s/ ~~Xxxxxx~~ Xxxxxxx X. ~~Xxxxxxxxxx~~ Xxxxx Name: ~~Xxxxxx~~ Xxxxxxx X. ~~Xxxxxxxxxx~~ Xxxxx Title: ~~EVP~~ Executive Vice President and Chief Financial Officer ~~UNITED STATES DEPARTMENT OF THE TREASURY, as Selling Shareholder~~ STONEMOR OPERATING LLC By: /s/ ~~Xxxxxx~~ Xxxxxxx X. Xxxxx Name: ~~Xxxxxx~~ Xxxxxxx X. Xxxxx Title: Executive Vice President and Chief ~~Investment~~ Financial Officer CONFIRMED AND ACCEPTED, as of the date first above written: XXXXXXX ~~LYNCH~~XXXXX & ASSOCIATES, ~~PIERCE~~INC. By /s/ Xxxxxx X. Xxxxxxx Authorized Signatory Xxxxxx X. Xxxxxxx Managing Director – Inv Banking 1. The public offering price per unit for the Units, ~~XXXXXX & XXXXX By: XXXXXXX LYNCH~~determined as provided in said Section 2, ~~PIERCE, XXXXXX & XXXXX By: /s/ Xxxxxxx X. Xxxxx For itself and as Representative of the other Underwriters named in Schedule A hereto~~shall be $17.00. 2. The purchase price per ~~share~~ unit for the ~~Securities~~ Units to be paid by the ~~several Underwriters~~ Underwriter shall be $~~860.4073~~16.15, being an amount equal to the ~~initial~~ public offering price set forth ~~in Schedule B~~ above less $~~13.1027~~ 0.85 per ~~share~~unit; provided that the purchase price per unit for any Option Units purchased upon the exercise of the overallotment option described in Section 2(b) shall be reduced by an amount per common unit equal to any distributions declared by the Partnership and payable on the Initial Units but not payable on the Option Units. ~~Name~~ Certain wholly owned subsidiaries of ~~Underwriter Number~~ StoneMor Partners L.P. (the “Issuer”), are making a concurrent private offering of ~~Securities Xxxxxxx Lynch~~$150,000,000 aggregate principal amount of senior notes that priced on November 18, ~~Pierce~~2009. The senior notes mature on December 1, ~~Xxxxxx & Xxxxx Incorporated 60,125 Xxxxxx Xxxxxxxx, LLC 1,625 XX Xxxx Capital, LLC 1,625 TBC Securities, LLC 1,625 Total 65,000~~ 2017 and will bear interest at a rate of 10.25% per year. The senior notes are offered at an initial ~~public~~ offering price ~~per share for~~ of 97.352%. The senior notes offering is expected to settle and close on November 24, 2009, subject to customary closing conditions. The consummation of the offering to which this communication relates is contingent upon the successful closing of the concurrent private offering of senior notes. The consummation of the concurrent private offering of senior notes is contingent upon the execution of the amendment of the Issuer’s existing senior secured debt obligations. The senior notes offering is being made by a separate offering memorandum and is not part of the offering to which the prospectus supplement relates. The senior notes to be issued in the concurrent private offering have not been registered under the Securities ~~shall~~ Act of 1993, as amended (the “Securities Act”), or any state securities laws and may not be ~~$873.51~~offered or sold in the United States absent registration under, or on applicable exemption from, the registration requirements of the Securities Act and applicable state securities laws. The ~~number of Securities to be sold by the Selling Shareholder shall be 65,000. The settlement date / closing time shall be April 3~~Issuer previously filed a registration statement (including a prospectus) on Form S-3, ~~2012. 1. NONE (i) Each of the Registration Statement and any post-~~which became effective ~~amendment thereto has been declared effective by the Commission under the 1933 Act. Each preliminary prospectus~~on December 7, ~~each Issuer Free Writing Prospectus and the Prospectus have been filed as required by Rule 424(b) (without reliance on Rule 424(b)(8)) and Rule 433, as applicable, within the time period prescribed by~~2007, and in compliance with, the 1933 Act Regulations. To the best of such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued under the 1933 Act, no order preventing or suspending the use of any a preliminary prospectus ~~or the Prospectus or any amendment or~~ supplement ~~thereto has been issued and no proceedings for any of those purposes have been instituted or are pending or contemplated by~~ with the Securities and Exchange ~~Commission.~~ Commission (iithe “SEC”) ~~The Registration Statement~~for the offering to which this communication relates. Before you invest, you should read the prospectus in that registration statement, the ~~General Disclosure Package~~ preliminary prospectus supplement and other documents the Prospectus and each amendment or supplement to the Registration Statement, the General Disclosure Package and the Prospectus, as of their respective effective or deemed effective or issue dates (other than (1) the financial statements (including notes thereto) and supporting schedules included therein or omitted therefrom and (2) the documents incorporated or deemed incorporated therein by reference, as to which such counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations. (iii) The documents incorporated or deemed incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus (other than the financial statements (including notes thereto) and supporting schedules included therein or omitted therefrom, as to which we express no opinion), when they were Issuer has filed with the ~~Commission, complied as to form in all material respects with~~ SEC for more complete information about the ~~requirements of~~ Issuer and this offering. You may get these documents for free by visiting XXXXX on the 1934 Act and 1934 Act Regulations. (iv) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any Governmental Entity is necessary or required for the Company to enter into, or perform their respective obligations underSEC Web site a xxx.xxx.xxx. Alternatively, the ~~Operative Documents or~~ underwriter will arrange to send you the ~~consummation~~ prospectus if you request it by calling Xxxxxxx Xxxxx & Associates, Inc. at 0-000-000-0000. StoneMor GP LLC Xxxxxxxx Xxxxxx Xxxxxxx X. Xxxxx Xxxxxxx X. Xxxxxx Xxxxxx Xxxxxx Xxxxxxx Xxxx Xxxx Xxxxxxxx Xxxxx X. Xxxxxxxx Xxxxx X. Xxxxxxxxx Xxxxxx X. Xxxxxxx, Xx. Xxxxxx X. Xxxxxxx, Ph.X. Xxxxxx X. Xxxxxxx Xxxxxx X. Xxxxxx LDLM Associates, L.P. Ten Twenty L.P. Alleghany Memorial Park LLC LLC Alleghany Memorial Park Subsidiary, Inc. Corporation Altavista Memorial Park LLC LLC Altavista Memorial Park Subsidiary, Inc. Corporation Arlington Development Company Corporation Augusta Memorial Park Perpetual Care Company Corporation Birchlawn Burial Park LLC LLC Birchlawn Burial Park Subsidiary, Inc. Corporation Cedar Hill Funeral Home, Inc. Corporation Cemetery Investments LLC LLC Cemetery Investments Subsidiary, Inc. Corporation Cemetery Management Services, L.L.C. LLC Cemetery Management Services of ~~the transactions contemplated in the Underwriting Agreement~~Mid-Atlantic States, ~~except or such as have been already obtained or as may be required under the 1933 Act~~L.L.C. LLC Cemetery Management Services of Ohio, ~~the 1933 Act Regulations~~L.L.C. LLC Cemetery Management Services of Pennsylvania, ~~the securities laws~~ L.L.C. LLC CMS West LLC LLC CMS West Subsidiary LLC LLC Columbia Memorial Park LLC LLC Columbia Memorial Park Subsidiary, Inc. Corporation Cornerstone Family Insurance Services, Inc. Corporation Cornerstone Family Services of ~~any state or non-U.S. jurisdiction or the rules~~ New Jersey, Inc. Corporation Cornerstone Family Services of ~~FINRA or by the Bank’s primary regulator for purposes~~ West Virginia LLC LLC Cornerstone Family Services of ~~Section 7(e) of the Underwriting Agreement. (v) To the best of such counsel’s knowledge~~West Virginia Subsidiary, there are no persons with registration rights or other similar rights to have any securities registered for sale pursuant to the Registration Statement or otherwise registered for sale or sold by the Company under the 1933 Act pursuant to the Underwriting Agreement. (vi) The Company is not requiredInc. Corporation Cornerstone Funeral and Cremation Services LLC LLC Covenant Acquisition LLC LLC Covenant Acquisition Subsidiary, ~~or upon consummation of the transactions contemplated in the Underwriting Agreement will be required~~Inc. Corporation Xxxxxx X. Xxxxx Funeral Home, ~~to register as an “investment company” under the 1940 Act. Although we assume no responsibility for the accuracy~~Inc. Corporation Xxxx Haven Memorial Park LLC LLC Xxxx Haven Memorial Park Subsidiary, ~~completeness or fairness of the statements contained in the Registration Statement~~Inc. Corporation Henlopen Memorial Park LLC LLC Henlopen Memorial Park Subsidiary, ~~General Disclosure Package or Prospectus~~Inc. Corporation Xxxxx Memorial Park LLC LLC Xxxxx Memorial Park Subsidiary, ~~nothing has come to the attention of such counsel that has lead such counsel to believe that (1) the Registration Statement or any amendment thereto~~Inc. Corporation Juniata Memorial Park LLC LLC KIRIS LLC LLC KIRIS Subsidiary, ~~including any information deemed to be a part thereof pursuant to Rule 430B~~Inc. Corporation Lakewood/Xxxxxxxx Cemetery LLC LLC Lakewood/Xxxxxxxx Cemetery Subsidiary, at the time such Registration Statement or any such amendment became effective or as of the “new effective date,” 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 misleadingInc. Corporation Lakewood Memory Gardens South LLC LLC Lakewood Memory Gardens South Subsidiary, ~~(2) the General Disclosure Package~~Inc. Corporation Laurel Hill Memorial Park LLC LLC Laurel Hill Memorial Park Subsidiary, at the Applicable Time, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of circumstances under which they were made, not misleading or (3) the Prospectus or any amendment or supplement thereto, at the time the Prospectus was issued, at the time any such amended or supplemented prospectus was issued or at the Closing Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; it being understood that such counsel makes no statement as to any financial statements (including notes thereto), supporting schedules and other financial data included in the Registration Statement, the General Disclosure Package and the Prospectus or omitted therefrom. 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). (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, to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and to enter into and perform its obligations under, and to consummate the transactions contemplated under, the Operative Documents. (iii) The Company is duly registered as a bank holding company under the Bank Inc. Corporation Laurelwood Holding Company ~~Act~~ Corporation Legacy Estates, Inc. Corporation Xxxxxx [Virginia] LLC LLC Xxxxxx [Virginia] Subsidiary, Inc. Corporation Xxxxxxxx Xxxx Cemetery LLC LLC Xxxxxxxx Xxxx Cemetery Subsidiary, Inc. Corporation Modern Park Development LLC LLC Modern Park Development Subsidiary, Inc. Corporation Oak Hill Cemetery LLC LLC Oak Hill Cemetery Subsidiary, Inc. Corporation Osiris Holding Finance Company Corporation Osiris Holding of ~~1956~~Maryland LLC LLC Osiris Holding of Maryland Subsidiary, ~~as amended~~Inc. Corporation Osiris Holding of Pennsylvania LLC LLC Osiris Holding of Rhode Island LLC LLC Osiris Holding of Rhode Island Subsidiary, Inc. Corporation Osiris Management, Inc. Corporation Osiris Telemarketing Corp. Corporation Perpetual Xxxxxxx. ~~(iv)~~ Xxx, Inc. Corporation PVD Acquisitions LLC LLC PVD Acquisitions Subsidiary, Inc. Corporation Rockbridge Memorial Gardens LLC LLC Rockbridge Memorial Gardens Subsidiary Company Corporation Rolling Green Memorial Park LLC LLC Rose Lawn Cemeteries LLC LLC Rose Lawn Cemeteries Subsidiary, Incorporated Corporation Roselawn Development LLC LLC Roselawn Development Subsidiary Corporation Corporation Xxxxxxx Memorial Cemetery LLC LLC Xxxxxxx Memorial Cemetery Subsidiary, Inc. Corporation Shenandoah Memorial Park LLC LLC Shenandoah Memorial Park Subsidiary, Inc. Corporation Sierra View Memorial Park Corporation Southern Memorial Sales LLC LLC Southern Memorial Sales Subsidiary, Inc. Corporation Springhill Memory Gardens LLC LLC Springhill Memory Gardens Subsidiary, Inc. Corporation Star City Memorial Sales LLC LLC Star City Memorial Sales Subsidiary, Inc. Corporation Xxxxxxx X. Xxxx Funeral Home, Inc. Corporation Xxxxxxx LLC LLC Xxxxxxx Subsidiary, Incorporated Corporation StoneMor Alabama LLC LLC StoneMor Alabama Subsidiary, Inc. Corporation StoneMor Arkansas Subsidiary LLC LLC StoneMor California, Inc. Corporation StoneMor California Subsidiary, Inc. Corporation StoneMor Cemetery Products LLC LLC StoneMor Colorado LLC LLC StoneMor Colorado Subsidiary LLC LLC StoneMor Florida Subsidiary LLC LLC StoneMor Georgia LLC LLC StoneMor Georgia Subsidiary, Inc. Corporation StoneMor Hawaii LLC LLC StoneMor Hawaiian Joint Venture Group LLC LLC StoneMor Hawaii Subsidiary, Inc. Corporation StoneMor Holding of Pennsylvania LLC LLC StoneMor Illinois LLC LLC StoneMor Illinois Subsidiary LLC LLC StoneMor Indiana LLC LLC StoneMor Indiana Subsidiary LLC LLC StoneMor Iowa LLC LLC StoneMor Iowa Subsidiary LLC LLC StoneMor Kansas LLC LLC StoneMor Kansas Subsidiary LLC LLC StoneMor Kentucky LLC LLC StoneMor Kentucky Subsidiary LLC LLC StoneMor Michigan LLC LLC StoneMor Michigan Subsidiary LLC LLC StoneMor Missouri LLC LLC StoneMor Missouri Subsidiary LLC LLC StoneMor North Carolina LLC LLC StoneMor North Carolina Funeral Services, Inc. Corporation StoneMor North Carolina Subsidiary LLC LLC StoneMor Ohio LLC LLC StoneMor Ohio Subsidiary, Inc. Corporation StoneMor Oregon LLC LLC StoneMor Oregon Subsidiary LLC LLC StoneMor Pennsylvania LLC LLC StoneMor Pennsylvania Subsidiary LLC LLC StoneMor Puerto Rico LLC LLC StoneMor Puerto Rico Subsidiary LLC LLC StoneMor South Carolina LLC LLC StoneMor South Carolina Subsidiary LLC LLC StoneMor Tennessee Subsidiary, Inc. Corporation StoneMor Washington, Inc. Corporation StoneMor Washington Subsidiary LLC LLC Sunset Memorial Gardens LLC LLC Sunset Memorial Gardens Subsidiary, Inc. Corporation Sunset Memorial Park LLC LLC Sunset Memorial Park Subsidiary, Inc. Corporation Temple Hill LLC LLC Temple Hill Subsidiary Corporation Corporation The ~~Significant~~ Valhalla Cemetery Company LLC LLC The Valhalla Cemetery Subsidiary ~~has been duly organized and is validly existing and in good standing under the laws~~ Corporation Corporation Tioga County Memorial Gardens LLC LLC Virginia Memorial Service LLC LLC Virginia Memorial Service Subsidiary Corporation Corporation WNCI LLC LLC W N C Subsidiary, Inc. Corporation Wicomico Memorial Parks LLC LLC Wicomico Memorial Parks Subsidiary, Inc. Corporation Willowbrook Management Corp. Corporation Woodlawn Memorial Park Subsidiary LLC LLC Bethel Cemetery Association Non-profit Corporation Xxxx Israel Cemetery Association of ~~the jurisdiction of its organization~~Woodbridge, ~~has the requisite corporate power and authority to own~~New Jersey Non-profit Corporation Clover Leaf Park Cemetery Association Non-profit Corporation Crown Hill Cemetery Association Non-profit Corporation Highland Memorial Park, ~~lease and operate its properties~~Inc. Non-profit Corporation Hillside Memorial Park Association, ~~to conduct its business as described in the Registration Statement~~Inc. Non-profit Corporation Locustwood Cemetery Association Non-profit Corporation Northlawn Memorial Gardens Non-profit Corporation Ohio Cemetery Holdings, the General Disclosure Package and the Prospectus and. To such counsel’s knowledge, except as otherwise described in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding shares of capital stock of or other equity interests in the Significant Subsidiary have been duly authorized and validly issued, are fully paid and nonInc. Non-assessable and are owned by the Company, directly or through subsidiaries, to the best of such counsel’s knowledge free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity. To such counsel’s knowledge, none of the outstanding shares of capital stock of or other equity interests in the Significant Subsidiary were issued in violation of the preemptive or similar rights of any securityholder of such Significant Subsidiary or any other entity. (v) The deposit accounts of each of the Company’s banking subsidiaries are insured up to the applicable limits by the Deposit Insurance Fund of the FDIC to the fullest extent permitted by law and the rules and regulations of the FDIC, and, to the best of such counsel’s knowledge, no proceeding for the revocation or termination of such insurance is pending or threatened. (vi) To the best of such counsel’s knowledge, except as described in the Registration Statement, the General Disclosure Package and the Prospectus, (A) neither the Company nor any of its subsidiaries is subject or party to, or has received any notice or advice from any Regulatory Agency that any of them are reasonably expected to become subject or party to any investigation with respect to, any Regulatory Agreement, (B) neither the Company nor any of its subsidiaries has been advised by any Regulatory Agency that it is considering issuing or requesting any Regulatory Agreement, (C) there is no unresolved violation, criticism or exception by any Regulatory Agency with respect to any report or statement relating to any examinations of the Company or any of its subsidiaries and (D) the Company and its subsidiaries are in compliance in all material respects with all laws administered by the Regulatory Agencies. (vii) Each of the Company and the Significant Subsidiary (A) is duly qualified 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 and (B) holds all Governmental Licenses issued by Governmental Entities necessary to conduct the business now operated by them, except where the failure so to qualify or to be in good standing or to hold any such Governmental Licenses would not, singly or in the aggregate, result in a Material Adverse Effect. (viii) The outstanding shares of capital stock of the Company, including the Securities, have been duly authorized and validly issued and are fully paid and non-assessable. To such counsel’s knowledge, none of the outstanding shares of capital stock of the Company, including the Securities, were issued in violation of the preemptive or other similar rights of any securityholder of the Company or any other entity. (ix) The Underwriting Agreement has been duly authorized, executed and delivered by each of the Company and the Bank. (x) The Certificate of Designations for the Securities has been duly filed with the Secretary of State of the State of Delaware. The form of certificate representing the Securities complies in all material respects with the requirements of Delaware state law, the Charter and the By-Laws. (xi) To the best of such counsel’s knowledge, except as described in the Registration Statement, the General Disclosure Package and the Prospectus, there is no action, suit, proceeding, inquiry or investigation before or brought by any Governmental Entity now pending or threatened against or affecting the Company or any of its subsidiaries which could, singly or in the aggregate, result in a Material Adverse Effect, or which might reasonably be expected to materially and adversely affect their respective properties, assets or operations or the consummation of the transactions contemplated in the Underwriting Agreement or the performance by the Company of its obligations under the Operative Documents. The aggregate of all pending legal or governmental proceedings known to such counsel to which the Company or any of its subsidiaries are a party or of which any of their respective properties, assets or operations are the subject which are not described in the Registration Statement, the General Disclosure Package and the Prospectus, including ordinary routine litigation incidental to the business, would not, singly or in the aggregate, result in a Material Adverse Effect. (xii) The information in the Registration Statement, the General Disclosure Package and the Prospectus under “Description of Capital Stock,” “Description of Series A Preferred Stock” and “Certain Material United States Federal Income Tax Considerations” or comparable captions and the information in the Registration Statement under “Item 15—Indemnification of Officers and Directors,” in each case to the extent that such information constitutes matters of law, summaries of legal matters, the Charter, By-Laws or legal proceedings, or legal conclusions, has been reviewed by such counsel and is correct in all material respects. (xiii) All descriptions in the Registration Statement, the General Disclosure Package and the Prospectus of contracts and other documents to which the Company or any of its subsidiaries are a party are accurate in all material respects. To the best of such counsel’s knowledge, there are no contracts, instruments or other documents required to be described in the Registration Statement, any preliminary prospectus or the Prospectus or to be filed as exhibits to the Registration Statement which have not been so described and filed as required. (xiv) To the best of such counsel’s knowledge, the execution, delivery and performance of the Operative Documents and the consummation of the transactions contemplated in the Underwriting Agreement and in the Registration Statement, [including the purchase by the Company of Securities in the offering,] the General Disclosure Package and the Prospectus and compliance by the Company with its obligations under the Operative Documents 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 ____) under, or result in the creation or imposition of any lien, charge or encumbrance uponprofit Corporation

Appears in 1 contract

Samples: Underwriting Agreement (Stonemor Partners Lp)

Appears in 1 contract

Samples: Underwriting Agreement (Prothena Corp Public LTD Co)

Appears in 1 contract

Samples: Underwriting Agreement (First Midwest Bancorp Inc)

Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof. If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company and the Selling Shareholders a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the Underwriters, the ~~Company, the Bank~~ Company and the Selling ~~Shareholder~~ Shareholders in accordance with its terms. Very truly yours, ~~FIRST FINANCIAL HOLDINGS, INC.~~ By: /s/ ~~Xxxxxx~~ Lxxx X. ~~Xxxxxxxxxx~~ Xxxxxxxxxxx Name: ~~Xxxxxx~~ Lxxx X. ~~Xxxxxxxxxx~~ Xxxxxxxxxxx Title: ~~EVP~~ President and Chief ~~Financial~~ Executive Officer ~~FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF CHARLESTON~~ By: Grey Rock Energy Fund III-A, LP, its sole member By: Grey Rock Energy Partners GP III-A, L.P., its general partner By: GREP GP III Holdings, LLC, its general partner By: Grey Rock Energy Partners GP III, L.P., its sole member By: GREP GP III, LLC, its general partner By: /s/ Mxxxxxx Xxxxxx ~~X. Xxxxxxxxxx~~ Name: Mxxxxxx Xxxxxx ~~X. Xxxxxxxxxx~~ Title: ~~EVP~~ Manager By: Grey Rock Energy Fund III-B Holdings, L.P. and ~~Chief Financial Officer UNITED STATES DEPARTMENT OF THE TREASURY~~Grey Rock Energy Fund III-B, ~~as Selling Shareholder~~ LP, its sole members By: Grey Rock Energy Partners GP III-B, L.P., their general partner By: GREP GP III Holdings, LLC, its general partner By: Grey Rock Energy Partners GP III, L.P., its sole member By: GREP GP III, LLC, its general partner By: /s/ Mxxxxxx Xxxxxx ~~Xxxxx~~ Name: Mxxxxxx Xxxxxx ~~Xxxxx~~ Title: ~~Chief Investment Officer CONFIRMED AND ACCEPTED,~~ Manager as of the date first above written: ~~XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX~~ By: /s/ Rxx Xxxxx Name: Rxx Xxxxx Title: Managing Director By: /s/ Cxxxxxx X. Xxxxxxx Name: Cxxxxxx X. ~~Xxxxx~~ Xxxxxxx Title: Managing Director For ~~itself~~ themselves and as ~~Representative~~ Representatives of the other Underwriters named in Schedule A hereto. The public offering price per share for the Securities shall be $5.00. The purchase price per share for the Securities to be paid by the several Underwriters shall be $~~860.4073~~4.60, being an amount equal to the ~~initial~~ public offering price set forth ~~in Schedule B~~ above less $~~13.1027~~ 0.40 per share, subject to adjustment in accordance with Section 2(b) for dividends or distributions declared by the Company and payable on the Initial Securities but not payable on the Option Securities. Name of Underwriter Number of Initial Securities ~~Xxxxxxx Lynch~~BofA Securities, ~~Pierce~~Inc. 3,124,000 Evercore Group L.L.C. 2,059,000 Capital One Securities, ~~Xxxxxx & Xxxxx Incorporated 60,125 Xxxxxx Xxxxxxxx~~Inc. 887,500 Sxxxxxxx Inc. 887,500 TCBI Securities, Inc. 142,000 Total 7,100,000 GREP Holdco III-A, LLC ~~1,625 XX Xxxx Capital~~2,154,140 323,121 GREP Holdco III-B Holdings, LLC ~~1,625 TBC Securities~~4,945,860 741,879 Total 7,100,000 1,065,000 1. The Selling Shareholders are selling 7,100,000 shares of Common Stock. 2. The Selling Shareholders have granted an option to the Underwriters, ~~LLC 1,625 Total 65,000~~ severally and not jointly, to purchase up to an additional 1,065,000 shares of Common Stock. 3. The ~~initial~~ public offering price per share for the Securities shall be $~~873.51~~5.00. ~~The number~~ GREP Holdco III-A, LLC GREP Holdco III-B Holdings, LLC Lxxx X. Xxxxxxxxxxx Txxxx X. Xxxxxxxxxxx Zxxxx Xxxxxxxx Exxxx Xxxxxx Mxxxxxx Xxxxxx Gxxxxxx Xxxxx Axxxxx X. Xxxxxxxx Txxxxxxx Xxxxxx Mxxxxxx X. Xxxxxxx Kxxx Xxxxxxxx Jxxx XxXxxxxxx BofA Securities, Inc. One Bryant Park New York, New York 10036 Evercore Group L.L.C. 50 Xxxx 00xx Xxxxxx, 35th Floor New York, NY 10055 as Representatives of ~~Securities~~ the several Underwriters to be ~~sold~~ named in the within-mentioned Underwriting Agreement Re: Proposed Public Offering by Certain Selling Shareholders of Granite Ridge Resources, Inc. Dear Sirs: The undersigned, a stockholder, [an officer and/or director] of Granite Ridge Resources, Inc., a Delaware corporation (the “Company”), understands that BofA Securities, Inc. (“BofA”) and Evercore Group L.L.C. (“Evercore”), as Representatives of the several Underwriters, propose to enter into an Underwriting Agreement (the “Underwriting Agreement”) with the Company and the Selling Shareholders (as defined in the Underwriting Agreement) providing for the public offering of shares of the Company’s common stock, par value $0.0001 per share (the “Common Stock”). In recognition of the benefit that such an offering will confer upon the undersigned as a stockholder [, an officer and/or director] of the Company, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned agrees with each underwriter to be named in the Underwriting Agreement that, during the period beginning on the date hereof and ending on the date that is [60][90] days from the date of the Underwriting Agreement (the “Lock-up Period”), the undersigned will not, without the prior written consent of BofA and Evercore, (i) directly or indirectly, offer, 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 any shares of the Company’s Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, whether now owned or hereafter acquired by the ~~Selling Shareholder~~ undersigned or with respect to which the undersigned has or hereafter acquires the power of disposition (collectively, the “Lock-Up Securities”), or exercise any right with respect to the registration of any of the Lock-up Securities, or file, cause to be filed or cause to be confidentially submitted any registration statement in connection therewith, under the Securities Act of 1933, as amended, or (ii) enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Lock-Up Securities, whether any such swap or transaction is to be settled by delivery of Common Stock or other securities, in cash or otherwise. Notwithstanding the foregoing, and subject to the conditions below, the undersigned may transfer the Lock-Up Securities without the prior written consent of BofA and Evercore, provided that (1) BofA and Evercore receive a signed lock-up agreement for the balance of the Lock-up Period from each donee, trustee, distributee, or transferee, as the case may be, (2) any such transfer shall not involve a disposition for value, (3) such transfers are not required to be ~~65,000. The settlement date / closing time shall be April 3~~reported with the Securities and Exchange Commission on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, ~~2012. 1. NONE~~as amended, and (4) the undersigned does not otherwise voluntarily effect any public filing or report regarding such transfers: (i) Each of the Registration Statement and any post-effective amendment thereto has been declared effective by the Commission under the 1933 Act. Each preliminary prospectus, each Issuer Free Writing Prospectus and the Prospectus have been filed as required by Rule 424(b) (without reliance on Rule 424(b)(8)) and Rule 433, as applicable, within the time period prescribed by, and in compliance with, the 1933 Act Regulations. To the best of such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement a bona fide gift or any post-effective amendment thereto has been issued under the 1933 Act, no order preventing or suspending the use of any preliminary prospectus or the Prospectus or any amendment or supplement thereto has been issued and no proceedings for any of those purposes have been instituted or are pending or contemplated by the Securities and Exchange Commission.gifts; or (ii) ~~The Registration Statement,~~ to any trust for the ~~General Disclosure Package and the Prospectus and each amendment~~ direct or supplement to the Registration Statement, the General Disclosure Package and the Prospectus, as of their respective effective or deemed effective or issue dates (other than (1) the financial statements (including notes thereto) and supporting schedules included therein or omitted therefrom and (2) the documents incorporated or deemed incorporated therein by reference, as to which such counsel need express no opinion), complied as to form in all material respects with the requirements indirect benefit of the ~~1933 Act and~~ undersigned or the ~~1933 Act Regulations.~~immediate family of the undersigned (for purposes of this lock-up agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin); or (iii) ~~The documents incorporated~~ as a distribution to partners or deemed incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus (other than the financial statements (including notes thereto) and supporting schedules included therein or omitted therefrom, as to which we express no opinion), when they were filed with the Commission, complied as to form in all material respects with the requirements stockholders of the ~~1934 Act and 1934 Act Regulations.~~undersigned; or (iv) ~~No filing with,~~ to the undersigned’s affiliates or ~~authorization, approval, consent, license, order, registration, qualification~~ to any investment fund or ~~decree of, any Governmental Entity is necessary~~ other entity controlled or required for the Company to enter into, or perform their respective obligations under, the Operative Documents or the consummation of the transactions contemplated in the Underwriting Agreement, except or such as have been already obtained or as may be required under the 1933 Act, the 1933 Act Regulations, the securities laws of any state or non-U.S. jurisdiction or the rules of FINRA or managed by the ~~Bank’s primary regulator for purposes of Section 7(e) of the Underwriting Agreement.~~undersigned; or (v) To upon death by will or intestacy to a member of the ~~best~~ immediate family of ~~such counsel’s knowledge, there are no persons with registration rights or other similar rights to have any securities registered for sale pursuant to~~ the ~~Registration Statement or otherwise registered for sale or sold by the Company under the 1933 Act pursuant to the Underwriting Agreement.~~undersigned; or (vi) ~~The Company is not required~~by operation of law, ~~or upon consummation of the transactions contemplated in the Underwriting Agreement will be required, to register~~ such as an “investment company” under the 1940 Act. Although we assume no responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, General Disclosure Package or Prospectus, nothing has come to the attention of such counsel that has lead such counsel to believe that (1) the Registration Statement or any amendment thereto, including any information deemed to be a part thereof pursuant to ~~Rule 430B~~a qualified domestic order, ~~at the time such Registration Statement~~ divorce settlement, divorce decree or any such amendment became effective or as of the “new effective date,” 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, (2) the General Disclosure Package, at the Applicable Time, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of circumstances under which they were made, not misleading or (3) the Prospectus or any amendment or supplement thereto, at the time the Prospectus was issued, at the time any such amended or supplemented prospectus was issued or at the Closing Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleadingseparation agreement; it being understood that such counsel makes no statement as to any financial statements (including notes thereto), supporting schedules and other financial data included in the Registration Statement, the General Disclosure Package and the Prospectus or omitted therefrom. 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). (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, to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and to enter into and perform its obligations under, and to consummate the transactions contemplated under, the Operative Documents. (iii) The Company is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended. (iv) The Significant Subsidiary has been duly organized and is validly existing and in good standing under the laws of the jurisdiction of its organization, has the requisite corporate power and authority to own, lease and operate its properties, to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and. To such counsel’s knowledge, except as otherwise described in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding shares of capital stock of or other equity interests in the Significant Subsidiary have been duly authorized and validly issued, are fully paid and non-assessable and are owned by the Company, directly or through subsidiaries, to the best of such counsel’s knowledge free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity. To such counsel’s knowledge, none of the outstanding shares of capital stock of or other equity interests in the Significant Subsidiary were issued in violation of the preemptive or similar rights of any securityholder of such Significant Subsidiary or any other entity. (v) The deposit accounts of each of the Company’s banking subsidiaries are insured up to the applicable limits by the Deposit Insurance Fund of the FDIC to the fullest extent permitted by law and the rules and regulations of the FDIC, and, to the best of such counsel’s knowledge, no proceeding for the revocation or termination of such insurance is pending or threatened. (vi) To the best of such counsel’s knowledge, except as described in the Registration Statement, the General Disclosure Package and the Prospectus, (A) neither the Company nor any of its subsidiaries is subject or party to, or has received any notice or advice from any Regulatory Agency that any of them are reasonably expected to become subject or party to any investigation with respect to, any Regulatory Agreement, (B) neither the Company nor any of its subsidiaries has been advised by any Regulatory Agency that it is considering issuing or requesting any Regulatory Agreement, (C) there is no unresolved violation, criticism or exception by any Regulatory Agency with respect to any report or statement relating to any examinations of the Company or any of its subsidiaries and (D) the Company and its subsidiaries are in compliance in all material respects with all laws administered by the Regulatory Agencies.or (vii) ~~Each~~ to the Company from an employee of the Company ~~and the Significant Subsidiary (A) is duly qualified to transact business and is in good standing~~ upon death, disability or termination of employment, in each ~~jurisdiction in which such qualification is required~~case, whether by reason of the ownership or leasing of property or the conduct of business and (B) holds all Governmental Licenses issued by Governmental Entities necessary to conduct the business now operated by them, except where the failure so to qualify or to be in good standing or to hold any such Governmental Licenses would not, singly or in the aggregate, result in a Material Adverse Effect. (viii) The outstanding shares of capital stock of the Company, including the Securities, have been duly authorized and validly issued and are fully paid and non-assessable. To such counsel’s knowledge, none of the outstanding shares of capital stock of the Company, including the Securities, were issued in violation of the preemptive or other similar rights of any securityholder of the Company or any other entity. (ix) The Underwriting Agreement has been duly authorized, executed and delivered by each of the Company and the Bank. (x) The Certificate of Designations for the Securities has been duly filed with the Secretary of State of the State of Delaware. The form of certificate representing the Securities complies in all material respects with the requirements of Delaware state law, the Charter and the By-Laws. (xi) To the best of such counsel’s knowledge, except as described in the Registration Statement, the General Disclosure Package and the Prospectus, there is no action, suit, proceeding, inquiry or investigation before or brought by any Governmental Entity now pending or threatened against or affecting the Company or any of its subsidiaries which could, singly or in the aggregate, result in a Material Adverse Effect, or which might reasonably be expected to materially and adversely affect their respective properties, assets or operations or the consummation of the transactions contemplated in the Underwriting Agreement or the performance by the Company of its obligations under the Operative Documents. The aggregate of all pending legal or governmental proceedings known to such counsel to which the Company or any of its subsidiaries are a party or of which any of their respective properties, assets or operations are the subject which are not described in the Registration Statement, the General Disclosure Package and the Prospectus, including ordinary routine litigation incidental to the business, would not, singly or in the aggregate, result in a Material Adverse Effectemployee. (xii) The information in the Registration Statement, the General Disclosure Package and the Prospectus under “Description of Capital Stock,” “Description of Series A Preferred Stock” and “Certain Material United States Federal Income Tax Considerations” or comparable captions and the information in the Registration Statement under “Item 15—Indemnification of Officers and Directors,” in each case to the extent that such information constitutes matters of law, summaries of legal matters, the Charter, By-Laws or legal proceedings, or legal conclusions, has been reviewed by such counsel and is correct in all material respects. (xiii) All descriptions in the Registration Statement, the General Disclosure Package and the Prospectus of contracts and other documents to which the Company or any of its subsidiaries are a party are accurate in all material respects. To the best of such counsel’s knowledge, there are no contracts, instruments or other documents required to be described in the Registration Statement, any preliminary prospectus or the Prospectus or to be filed as exhibits to the Registration Statement which have not been so described and filed as required. (xiv) To the best of such counsel’s knowledge, the execution, delivery and performance of the Operative Documents and the consummation of the transactions contemplated in the Underwriting Agreement and in the Registration Statement, [including the purchase by the Company of Securities in the offering,] the General Disclosure Package and the Prospectus and compliance by the Company with its obligations under the Operative Documents 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 ____) under, or result in the creation or imposition of any lien, charge or encumbrance upon

Appears in 1 contract

Samples: Underwriting Agreement (Granite Ridge Resources, Inc.)

Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof. If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company the Selling Shareholder a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the Underwriters, the ~~Company, the Bank~~ Company and the Selling Shareholder in accordance with its terms. Very truly yours, ~~FIRST FINANCIAL HOLDINGS, INC. By:~~ VWR CORPORATION By /s/ ~~Xxxxxx X. Xxxxxxxxxx~~ Xxxxxxx Xxxxx Name: ~~Xxxxxx X. Xxxxxxxxxx~~ Xxxxxxx Xxxxx Title: ~~EVP and~~ Senior Vice President, Chief Financial Officer ~~FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF CHARLESTON By:~~ VARIETAL DISTRIBUTION HOLDINGS, LLC By /s/ Xxxxxxxx Xxxxxx ~~X. Xxxxxxxxxx~~ Name: Xxxxxxxx Xxxxxx ~~X. Xxxxxxxxxx~~ Title: ~~EVP and Chief Financial Officer UNITED STATES DEPARTMENT OF THE TREASURY, as Selling Shareholder By: /s/ Xxxxxx Xxxxx Name: Xxxxxx Xxxxx Title: Chief Investment Officer~~ Secretary CONFIRMED AND ACCEPTED, as of the date first above written: ~~XXXXXXX LYNCH~~XXXXXXX, ~~PIERCE, XXXXXX~~ XXXXX & ~~XXXXX By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX By:~~ CO. By /s/ Xxxxxxx ~~X. Xxxxx For itself and~~ Xxxx Name: Xxxxxxx Xxxx Title: Managing Director CONFIRMED AND ACCEPTED, as ~~Representative~~ of the ~~other Underwriters named in Schedule A hereto~~date first above written: BARCLAYS CAPITAL INC. By /s/ Xxxxxxxx Xxxx Name: Xxxxxxxx Xxxx Title: Vice President The public offering price per share for the Securities shall be $26.00. The purchase price per share for the Securities to be paid by the several ~~Underwriters~~ Underwriter shall be $~~860.4073~~25.85, being an amount equal to the ~~initial~~ public offering price set forth ~~in Schedule B~~ above less $~~13.1027~~ 0.15 per share. Name of Underwriter Number of Initial Securities ~~Xxxxxxx Lynch~~Number of Option Securities Xxxxxxx, ~~Pierce~~Sachs & Co. 4,000,000 600,000 Barclays Capital Inc. 4,000,000 600,000 Total 8,000,000 1,200,000 1. The Selling Shareholder is selling 8,000,000 shares of Common Stock. 2. The Selling Shareholder has granted an option to the Underwriters, ~~Xxxxxx & Xxxxx Incorporated 60,125 Xxxxxx Xxxxxxxx~~severally and not jointly, ~~LLC 1,625 XX Xxxx Capital, LLC 1,625 TBC Securities, LLC 1,625 Total 65,000~~ to purchase up to an additional 1,200,000 shares of Common Stock. 3. The ~~initial~~ public offering price per share for the Securities shall be $~~873.51~~26.00. None. Xxxxxxx, Xxxxx & Co. 000 Xxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 Barclays Capital Inc. 000 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 Re: Proposed Offering by Selling Shareholder Dear Sirs: The ~~number~~ undersigned, a [stockholder]/[and a director] of ~~Securities~~ VWR Corporation, a Delaware corporation, understands that Xxxxxxx, Sachs & Co. and Barclays Capital Inc., as underwriters, propose to ~~be sold by~~ enter into an Underwriting Agreement (the “Underwriting Agreement”) with the Company and the Selling Shareholder ~~shall~~ providing for the public offering of shares (the “Public Offering”) of the Company’s common stock, par value $0.01 per share (the “Securities”). In recognition of the benefit that such an offering will confer upon the undersigned as [a stockholder]/[and a director] of the Company, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned agrees with each underwriter to be ~~65,000~~named in the Underwriting Agreement that, during the period commencing on the date hereof and ending on the date that is 60 days from the date of the final prospectus relating to the Public Offering (the “Prospectus”), the undersigned will not, without the prior written consent of each Underwriter directly or indirectly, (i) offer, 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 for the sale of, or otherwise dispose of or transfer any shares of the common stock of the Company (the “Common Stock”) or any securities convertible into or exchangeable or exercisable for Common Stock, whether now owned or hereafter acquired by the undersigned or with respect to which the undersigned has or hereafter acquires the power of disposition (collectively, the “Lock-Up Securities”), or file or cause to be filed any registration statement in connection therewith, under the Securities Act of 1933, as amended, or (ii) enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Lock-Up Securities, whether any such swap or transaction is to be settled by delivery of Common Stock or other securities, in cash or otherwise. ~~The settlement date / closing time shall~~ Notwithstanding the foregoing, and subject to the conditions below, the undersigned may transfer or sell the Lock-Up Securities without the prior written consent of the Underwriters; provided that (1) with respect to a distribution, transfer, exchange, conversion or sale made pursuant to clause (3)(i), (3)(ii), (3)(iii) or (3)(iv) below, the Underwriters receive a signed lock-up agreement for the balance of the lock-up period from each donee, trustee, distributee, or transferee, as the case may be, that is a record holder or a beneficial owner, as defined by Rule 13d-3 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), of the Lock-Up Securities following such transfer; (2) with respect to a distribution, transfer, exchange, conversion or sale made pursuant to clause (3)(i), (3)(ii), (3)(iii) or (3)(iv) below, such distribution, transfer, exchange, conversion or sale is not required to be ~~April~~ reported with the Securities and Exchange Commission on Form 4 in accordance with Section 16 of the Exchange Act (except with respect to a distribution, transfer, exchange, conversion or sale to or with the direct or indirect members of Varietal Distribution Holdings, LLC), and the undersigned does not otherwise voluntarily effect any such filing or report regarding such distribution, transfer, exchange, conversion or sale; and (3) such distribution, ~~2012. 1. NONE~~transfer, exchange, conversion or sale is made, or such transaction constitutes: (i) ~~Each~~ as a distribution, transfer (including by way of merger or consolidation), exchange, conversion or sale to or among the direct or indirect members of the ~~Registration Statement and~~ undersigned; (ii) to the undersigned’s affiliates or to any ~~post-effective amendment thereto has been declared effective~~ investment fund or other entity controlled or managed by the ~~Commission under~~ undersigned; (iii) as a bona fide gift or gifts; (iv) as a sale of Common Stock acquired by the 1933 Act. Each preliminary prospectus, each Issuer Free Writing Prospectus and the Prospectus have been filed as required by Rule 424(b) (without reliance on Rule 424(b)(8)) and Rule 433, as applicable, within the time period prescribed by, and undersigned in ~~compliance with, the 1933 Act Regulations. To the best of such counsel’s knowledge, no stop order suspending the effectiveness~~ open market transactions after completion of the ~~Registration Statement or any post~~Public Offering; (v) the entry into a written plan meeting the requirements of Rule 10b5-~~effective amendment thereto has been issued~~ 1 under the 1933 Act, no order preventing or suspending the use of any preliminary prospectus or the Prospectus or any amendment or supplement thereto has been issued and no proceedings for any of those purposes have been instituted or are pending or contemplated by the Securities and Exchange ~~Commission. (ii) The Registration Statement~~Act, ~~the General Disclosure Package and the Prospectus and each amendment or supplement~~ relating to the ~~Registration Statement~~sale of the Common Stock; provided, that (a) no sales or transfers of Common Stock occur during the General Disclosure Package and the Prospectus, as of their respective effective or deemed effective or issue dates (other than (1) the financial statements (including notes thereto) and supporting schedules included therein or omitted therefrom 60-day period referred to above and (2b) no public announcement or filing under the ~~documents incorporated~~ Exchange Act regarding the establishment of such plan shall be required or ~~deemed incorporated therein by reference, as to which such counsel need express no opinion), complied as to form in all material respects with the requirements~~ voluntarily made on behalf of the ~~1933 Act and the 1933 Act Regulations. (iii) The documents incorporated~~ undersigned or deemed incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus (other than the financial statements (including notes thereto) and supporting schedules included therein or omitted therefrom, as to which we express no opinion), when they were filed with the Commission, complied as to form in all material respects with the requirements of the 1934 Act and 1934 Act Regulations. (iv) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any Governmental Entity is necessary or required for the Company during the 60-day period referred to enter into, or perform their respective obligations under, the Operative Documents or the consummation of the transactions contemplated in the Underwriting Agreement, except or such as have been already obtained or as may be required under the 1933 Act, the 1933 Act Regulations, the securities laws of any state or non-U.S. jurisdiction or the rules of FINRA or by the Bank’s primary regulator for purposes of Section 7(e) of the Underwriting Agreement. (v) To the best of such counsel’s knowledge, there are no persons with registration rights or other similar rights to have any securities registered for sale pursuant to the Registration Statement or otherwise registered for sale or sold by the Company under the 1933 Act pursuant to the Underwriting Agreement.above; or (vi) ~~The Company is not required, or upon consummation of~~ the transactions contemplated in the Underwriting Agreement will be required, to register as an “investment company” under the 1940 Act. Although we assume no responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, General Disclosure Package or Prospectus, nothing has come transfer to the ~~attention~~ Company of shares of Common Stock upon the vesting, conversion, exercise or exchange of securities convertible into or exercisable or exchangeable for Common Stock (A) deemed to occur upon the cashless exercise of such ~~counsel~~ securities provided that ~~has lead such counsel to believe that (1)~~ the ~~Registration Statement or any amendment thereto, including any information deemed~~ shares received upon exercise shall continue to be ~~a part thereof pursuant~~ subject to ~~Rule 430B~~the restrictions on transfer set forth in this Letter Agreement and provided, ~~at the time such Registration Statement~~ further that any public report or ~~any such amendment became effective or as of the “new effective date,” contained an untrue statement of a material fact or omitted to state a material fact~~ filing required to be ~~stated therein~~ made under Section 16(a) of the Exchange Act shall clearly indicate in the footnotes thereto that the filing relates to the “cashless” or ~~necessary to make the statements therein not misleading, (2) the General Disclosure Package, at the Applicable Time, included an untrue statement~~ “net” exercise of a ~~material fact or omitted to state a material fact necessary in order to make~~ stock option, that no shares were sold by the ~~statements therein, in~~ reporting person and that the light of circumstances under which they were made, not misleading or (3) the Prospectus or any amendment or supplement thereto, at the time the Prospectus was issued, at the time any such amended or supplemented prospectus was issued or at the Closing Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light shares received upon exercise of the ~~circumstances under which they were made, not misleading; it being understood that such counsel makes no statement as~~ stock option are subject to ~~any financial statements (including notes thereto), supporting schedules and other financial data included in~~ a lock-up letter agreement with the Registration Statement, the General Disclosure Package and the Prospectus or omitted therefrom. 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 Underwriters 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). (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, to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and to enter into and perform its obligations underPublic Offering, and to consummate the transactions contemplated under, the Operative Documents. (iii) The Company is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended. (iv) The Significant Subsidiary has been duly organized and is validly existing and provided further that no other public announcement shall be required or shall be made voluntarily in good standing under the laws of the jurisdiction of its organization, has the requisite corporate power and authority to own, lease and operate its properties, to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and. To connection with such ~~counsel’s knowledge, except as otherwise described in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding shares of capital stock of~~ transfer or other equity interests in the Significant Subsidiary have been duly authorized and validly issued, are fully paid and non-assessable and are owned by the Company, directly or through subsidiaries, to the best of such counsel’s knowledge free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity. To such counsel’s knowledge, none of the outstanding shares of capital stock of or other equity interests in the Significant Subsidiary were issued in violation of the preemptive or similar rights of any securityholder of such Significant Subsidiary or any other entity. (v) The deposit accounts of each of the Company’s banking subsidiaries are insured up to the applicable limits by the Deposit Insurance Fund of the FDIC to the fullest extent permitted by law and the rules and regulations of the FDIC, and, to the best of such counsel’s knowledge, no proceeding for the revocation or termination of such insurance is pending or threatened. (vi) To the best of such counsel’s knowledge, except as described in the Registration Statement, the General Disclosure Package and the Prospectus, (A) neither the Company nor any of its subsidiaries is subject or party to, or has received any notice or advice from any Regulatory Agency that any of them are reasonably expected to become subject or party to any investigation with respect to, any Regulatory Agreement, (B) ~~neither~~ for the ~~Company nor~~ purpose of paying the exercise price of such securities or for paying taxes (including estimated taxes) due as a result of the exercise of such securities provided that any of its subsidiaries has been advised by any Regulatory Agency that it is considering issuing or requesting any Regulatory Agreement, (C) there is no unresolved violation, criticism or exception by any Regulatory Agency with respect to any public report or statement relating to any examinations of the Company or any of its subsidiaries and (D) the Company and its subsidiaries are in compliance in all material respects with all laws administered by the Regulatory Agencies. (vii) Each of the Company and the Significant Subsidiary (A) is duly qualified 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 and (B) holds all Governmental Licenses issued by Governmental Entities necessary to conduct the business now operated by them, except where the failure so to qualify or to be in good standing or to hold any such Governmental Licenses would not, singly or in the aggregate, result in a Material Adverse Effect. (viii) The outstanding shares of capital stock of the Company, including the Securities, have been duly authorized and validly issued and are fully paid and non-assessable. To such counsel’s knowledge, none of the outstanding shares of capital stock of the Company, including the Securities, were issued in violation of the preemptive or other similar rights of any securityholder of the Company or any other entity. (ix) The Underwriting Agreement has been duly authorized, executed and delivered by each of the Company and the Bank. (x) The Certificate of Designations for the Securities has been duly filed with the Secretary of State of the State of Delaware. The form of certificate representing the Securities complies in all material respects with the requirements of Delaware state law, the Charter and the By-Laws. (xi) To the best of such counsel’s knowledge, except as described in the Registration Statement, the General Disclosure Package and the Prospectus, there is no action, suit, proceeding, inquiry or investigation before or brought by any Governmental Entity now pending or threatened against or affecting the Company or any of its subsidiaries which could, singly or in the aggregate, result in a Material Adverse Effect, or which might reasonably be expected to materially and adversely affect their respective properties, assets or operations or the consummation of the transactions contemplated in the Underwriting Agreement or the performance by the Company of its obligations under the Operative Documents. The aggregate of all pending legal or governmental proceedings known to such counsel to which the Company or any of its subsidiaries are a party or of which any of their respective properties, assets or operations are the subject which are not described in the Registration Statement, the General Disclosure Package and the Prospectus, including ordinary routine litigation incidental to the business, would not, singly or in the aggregate, result in a Material Adverse Effect. (xii) The information in the Registration Statement, the General Disclosure Package and the Prospectus under “Description of Capital Stock,” “Description of Series A Preferred Stock” and “Certain Material United States Federal Income Tax Considerations” or comparable captions and the information in the Registration Statement under “Item 15—Indemnification of Officers and Directors,” in each case to the extent that such information constitutes matters of law, summaries of legal matters, the Charter, By-Laws or legal proceedings, or legal conclusions, has been reviewed by such counsel and is correct in all material respects. (xiii) All descriptions in the Registration Statement, the General Disclosure Package and the Prospectus of contracts and other documents to which the Company or any of its subsidiaries are a party are accurate in all material respects. To the best of such counsel’s knowledge, there are no contracts, instruments or other documents filing required to be ~~described~~ made under Section 16(a) of the Exchange Act shall clearly indicate in the ~~Registration Statement, any preliminary prospectus~~ footnotes thereto that the purpose of such transfer is to cover such tax obligations or the ~~Prospectus~~ payment of taxes due in connection with the vesting event, and provided further that no other public announcement shall be required or to shall be ~~filed as exhibits to the Registration Statement which have not been so described and filed as required~~made voluntarily in connection with such transfer. (xiv) To the best of such counsel’s knowledge, the execution, delivery and performance of the Operative Documents and the consummation of the transactions contemplated in the Underwriting Agreement and in the Registration Statement, [including the purchase by the Company of Securities in the offering,] the General Disclosure Package and the Prospectus and compliance by the Company with its obligations under the Operative Documents 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 ____) under, or result in the creation or imposition of any lien, charge or encumbrance upon

Appears in 1 contract

Samples: Underwriting Agreement (VWR Corp)

Appears in 1 contract

Samples: Underwriting Agreement (Hannon Armstrong Sustainable Infrastructure Capital, Inc.)

Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof. If the foregoing is in accordance with your understanding of our agreement, please sign and return to the ~~Company~~ Transaction Entities a counterpart hereof, whereupon this instrument, along with all counterparts, will become a valid and legally binding agreement among the Underwriters, the ~~Company~~Forward Sellers, the ~~Bank~~ Forward Purchasers and the ~~Selling Shareholder~~ Transaction Entities in accordance with its terms. Very truly yours, ~~FIRST FINANCIAL HOLDINGS, INC.~~ AMERICOLD REALTY TRUST By: /s/ ~~Xxxxxx~~ Xxxx X. ~~Xxxxxxxxxx~~ Xxxxxxxx Name: ~~Xxxxxx~~ Xxxx X. ~~Xxxxxxxxxx~~ Xxxxxxxx Title: ~~EVP and~~ Chief Financial Officer ~~FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF CHARLESTON~~ and Executive Vice President AMERICOLD REALTY OPERATING PARTNERSHIP, L.P. By: Americold Realty Trust, its General Partner By: /s/ ~~Xxxxxx~~ Xxxx X. ~~Xxxxxxxxxx~~ Xxxxxxxx Name: ~~Xxxxxx~~ Xxxx X. ~~Xxxxxxxxxx~~ Xxxxxxxx Title: ~~EVP and~~ Chief Financial Officer ~~UNITED STATES DEPARTMENT OF THE TREASURY, as Selling Shareholder By: /s/ Xxxxxx Xxxxx Name: Xxxxxx Xxxxx Title: Chief Investment Officer~~ and Executive Vice President CONFIRMED AND ACCEPTED, as of the date first above written: ~~XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX~~ CITIGROUP GLOBAL MARKETS INC. By: /s/ ~~Xxxxxxx X.~~ Xxxx Xxxxx BOFA SECURITIES, INC. By: /s/ Xxxxx Xxxxxxxxxxxxx XXXXXXX SACHS & CO. LLC By: /s/ Xxxx Xxxx For ~~itself~~ themselves and as ~~Representative~~ Representatives of the other Underwriters named in Schedule A hereto. ~~The purchase price per share for~~ CONFIRMED AND ACCEPTED, as of the ~~Securities to be paid by~~ date first above written: CITIGROUP GLOBAL MARKETS INC. By: /s/ Xxxx Xxxxx BOFA SECURITIES, INC. By: /s/ Xxxxx Xxxxxxxxxxxxx XXXXXXX SACHS & CO. LLC By: /s/ Xxxx Xxxx As Forward Sellers CONFIRMED AND ACCEPTED, as of the ~~several Underwriters shall be $860.4073~~date first above written: CITIBANK, ~~being an amount equal to~~ N.A. By: /s/ Xxxx Xxxxx BANK OF AMERICA, N.A. By: /s/ Xxxxx Xxxxxxxxxxxxx XXXXXXX SACHS & CO. LLC By: /s/ Xxxx Xxxx As Forward Purchasers, solely as the ~~initial public offering price~~ recipient and/or beneficiary of certain representations, warranties, covenants and indemnities set forth in ~~Schedule B less $13.1027 per share.~~ this Agreement Name of Underwriter Number of Underwritten Shares to be Purchased Citigroup Global Markets Inc 9,570,000 BofA Securities, Inc 5,742,000 Xxxxxxx Sachs & Co. LLC 4,147,000 X.X. Xxxxxx Securities LLC 1,914,000 Xxxxxx Xxxxxxx ~~Lynch~~& Co. LLC 1,914,000 Rabo Securities USA, ~~Pierce, Xxxxxx & Xxxxx Incorporated 60,125 Xxxxxx Xxxxxxxx~~Inc 1,914,000 RBC Capital Markets, LLC ~~1,625 XX Xxxx Capital~~1,914,000 Truist Securities, Inc 1,914,000 BTIG, LLC ~~1,625 TBC~~ 638,000 Citizens Capital Markets, Inc 638,000 Xxxxxxx Xxxxx & Associates, Inc 638,000 Regions Securities LLC 638,000 Xxxxxx X. Xxxxx & Co. Incorporated 159,500 Berenberg Capital Markets LLC 159,500 Total 31,900,000 Name of Forward Seller Number of Borrowed Underwritten Shares to be Sold Maximum Number Of Borrowed Option Shares to be Sold Citigroup Global Markets Inc. 10,633,334 1,595,000 BofA Securities, Inc. 10,633,333 1,595,000 Xxxxxxx Xxxxx & Co. LLC ~~1,625~~ 10,633,333 1,595,000 Total ~~65,000~~ 31,900,000 4,785,000. 1. The number of Underwritten Shares: 31,900,000 Common Shares. 2. The number of Option Shares: 4,785,000 Common Shares. 3. The number of Shares: 36,685,000 Common Shares. 4. The initial public offering price of the Shares: $38.00 per Common Share. 5. The initial forward sale price of the Borrowed Underwritten Shares: $36.67 per Common Share. None. Citigroup Global Markets Inc. BofA Securities, Inc. Xxxxxxx Sachs & Co. LLC as Representatives of the several Underwriters to be named in the within-mentioned Underwriting Agreement c/o Citigroup Global Markets Inc. 000 Xxxxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 c/o BofA Securities, Inc. Xxx Xxxxxx Xxxx Xxx Xxxx, Xxx Xxxx 00000 c/o Goldman Xxxxx & Co. LLC 000 Xxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 Re: Proposed Public Offering by Americold Realty Trust Dear Sirs: The undersigned, a shareholder, officer and/or trustee of Americold Realty Trust, a Maryland real estate investment trust (the “Company”), understands that Citigroup Global Markets Inc. (“Citigroup”), BofA Securities, Inc. (“BofA”) and Xxxxxxx Sachs & Co. LLC (together with Citigroup and BofA, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”) with the forward sellers named therein, the forward purchasers named therein, the Company and Americold Realty Operating Partnership, L.P. (the “Operating Partnership”) providing for the public offering of the Company’s common shares of beneficial interest, $0.01 par value per share (the “Common Shares”). In recognition of the benefit that such an offering will confer upon the undersigned as a shareholder, officer and/or trustee of the Company, and for other good and valuable consideration, the ~~Securities shall be $873.51. The number~~ receipt and sufficiency of ~~Securities~~ which are hereby acknowledged, the undersigned agrees with each underwriter to be ~~sold by~~ named in the ~~Selling Shareholder shall be 65,000. The settlement~~ Underwriting Agreement that, during the period beginning on the date ~~/ closing time shall be April 3, 2012. 1. NONE (i) Each~~ of the Registration Statement and any post-effective amendment thereto has been declared effective by the Commission under the 1933 Act. Each preliminary prospectus, each Issuer Free Writing Prospectus and the Prospectus have been filed as required by Rule 424(b) (without reliance on Rule 424(b)(8)) and Rule 433, as applicable, within the time period prescribed by, and in compliance with, the 1933 Act Regulations. To the best of such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued under the 1933 Act, no order preventing or suspending the use of any preliminary prospectus or (as defined in the Prospectus or any amendment or supplement thereto has been issued and no proceedings for any of those purposes have been instituted or are pending or contemplated by the Securities and Exchange Commission. (iiUnderwriting Agreement) ~~The Registration Statement,~~ that is to be included in the General Disclosure Package ~~and the Prospectus and each amendment or supplement to the Registration Statement, the General Disclosure Package and the Prospectus,~~ (as of their respective effective or deemed effective or issue dates (other than (1) the financial statements (including notes thereto) and supporting schedules included therein or omitted therefrom and (2) the documents incorporated or deemed incorporated therein by reference, as to which such counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations. (iii) The documents incorporated or deemed incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus (other than the financial statements (including notes thereto) and supporting schedules included therein or omitted therefrom, as to which we express no opinion), when they were filed with the Commission, complied as to form in all material respects with the requirements of the 1934 Act and 1934 Act Regulations. (iv) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any Governmental Entity is necessary or required for the Company to enter into, or perform their respective obligations under, the Operative Documents or the consummation of the transactions contemplated defined in the Underwriting Agreement~~, except or such as have been already obtained or as may be required under~~ ) (the ~~1933 Act,~~ “Preliminary Prospectus”) and ending on the ~~1933 Act Regulations,~~ date (the ~~securities laws of any state or non-U.S. jurisdiction or~~ “Expiration Date”) that is 45 days from the ~~rules of FINRA or by the Bank’s primary regulator for purposes of Section 7(e)~~ date of the Underwriting Agreement. , the undersigned will not, without the prior written consent of the Representatives, (vi) ~~To the best~~ directly or indirectly, offer, 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 lend or otherwise transfer or dispose of ~~such counsel’s knowledge~~(together, ~~there are no persons with registration rights~~ “Transfer”) any Common Shares or ~~other similar rights to have~~ any securities ~~registered~~ convertible into or exercisable or exchangeable for ~~sale pursuant to the Registration Statement or otherwise registered for sale or sold by the Company under the 1933 Act pursuant to the Underwriting Agreement.~~ Common Shares (vi) The Company is not required, or upon consummation of the transactions contemplated in the Underwriting Agreement will be required, to register as an “investment company” under the 1940 Act. Although we assume no responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, General Disclosure Package or Prospectus, nothing has come to the attention of such counsel that has lead such counsel to believe that (1) the Registration Statement or any amendment thereto, including any information deemed to be a part thereof pursuant to Rule 430B, at the time such Registration Statement or any such amendment became effective or as of the “new effective date,” 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, (2) the General Disclosure Package, at the Applicable Time, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of circumstances under which they were made, not misleading or (3) the Prospectus or any amendment or supplement thereto, at the time the Prospectus was issued, at the time any such amended or supplemented prospectus was issued or at the Closing Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; it being understood that such counsel makes no statement as to any financial statements (including notes thereto), supporting schedules and other financial data included in the Registration Statement, the General Disclosure Package and the Prospectus or omitted therefrom. 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, units of limited partnership interest in the ~~Legal Opinion Accord~~ Operating Partnership), whether now owned or hereafter acquired by the undersigned or with respect to which the undersigned has or hereafter acquires the power of disposition (collectively, the “Lock-Up Shares”), or exercise any right with respect to the registration of any of the ~~ABA~~ Lock-Up Shares or cause to be filed any registration statement in connection therewith, under the Securities Act of 1933, as amended, or publicly announce the intention to do any of the foregoing, or (ii) enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Lock-Up Shares, whether any such swap, other agreement or transaction is to be settled by delivery of Common Shares or other securities, in cash or otherwise (as described in this clause (ii), an “Other Transaction”). Notwithstanding the foregoing, and subject to the conditions below, the undersigned may Transfer the Lock-Up Shares (or, where provided below, enter into Other Transactions) without the prior written consent of the Representatives, provided that (a) with respect to Transfers pursuant to clauses (i), (ii) and (iii) below, (1) the Representatives receive a signed lock-up agreement for the balance of the period prior to the Expiration Date from each donee, trustee, distributee, or transferee, as the case may be (unless such donee, trustee, distributee or transferee has already signed such a lock-up agreement), (2) any such Transfer shall not involve a disposition for value, (3) such Transfers are not required to be reported with the Securities and Exchange Commission (the “Commission”) on Form 4 in accordance with Section 16 of ~~Business Law~~ the Securities Exchange Act of 1934, as amended (~~1991~~the “1934 Act”)., and (4) the undersigned does not otherwise voluntarily effect any public filing or report regarding such Transfers, (b) with respect to Transfers pursuant to clauses (iv) and (v) below, any Lock-Up Shares received upon such conversion, exchange or exercise shall remain subject to this lock-up agreement, and (c) with respect to Transfers pursuant to clauses (iv), (v), (vi) and (vii) below, any required filing reporting any such Transfer with the Commission pursuant to Section 16 of the 1934 Act shall briefly note the applicable circumstances that cause such exception to apply and explain that such filing relates solely to Transfers within such exception, unless, in the case of clause (vi), such disclosure would be prohibited by any applicable law, regulation or order of a court or regulatory agency (provided that in no event shall the undersigned voluntarily effect any public filing or report regarding such Transfers): (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.~~bona fide gift or gifts; or (ii) ~~The Company has corporate power and authority~~ to ~~own~~any immediate family member of the undersigned, ~~lease and operate its properties~~or to any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned (for purposes of this lock-up agreement, ~~to conduct its business as described in the Registration Statement~~“immediate family” shall mean any relationship by blood, ~~the General Disclosure Package and the Prospectus and to enter into and perform its obligations under~~marriage or adoption, ~~and to consummate the transactions contemplated under, the Operative Documents.~~not more remote than first cousin); or (iii) ~~The Company is duly registered as a bank holding company under~~ by will or intestacy upon the ~~Bank Holding Company Act~~ death of ~~1956, as amended.~~the undersigned; or (iv) ~~The Significant Subsidiary has been duly organized and is validly existing and in good standing under~~ through the ~~laws of the jurisdiction of its organization~~conversion, has the requisite corporate power and authority to own, lease and operate its properties, to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and. To such counsel’s knowledge, except as otherwise described in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding shares of capital stock of exchange or other equity interests in the Significant Subsidiary have been duly authorized and validly issued, are fully paid and non-assessable and are owned by the Company, directly or through subsidiaries, to the best of such counsel’s knowledge free and clear exercise of any ~~security interest, mortgage, pledge, lien, encumbrance, claim~~ securities convertible into or ~~equity. To such counsel’s knowledge, none of the outstanding shares of capital stock of~~ exercisable or ~~other equity interests in the Significant Subsidiary were issued in violation of the preemptive or similar rights of any securityholder of such Significant Subsidiary or any other entity.~~exchangeable for Lock-Up Shares; or (v) ~~The deposit accounts of each of~~ to exercise or settle, via a disposition to the Company~~’s banking subsidiaries are insured up~~ , equity awards disclosed in the registration statement relating to the ~~applicable limits by the Deposit Insurance Fund~~ public offering of ~~the FDIC~~ Common Shares, including through any “cashless” exercise thereof, including a disposition to the ~~fullest extent permitted by law and~~ Company for the ~~rules and regulations~~ purpose of ~~the FDIC, and, to the best~~ satisfying any withholding taxes (including estimated taxes) due as a result of such ~~counsel’s knowledge, no proceeding for the revocation~~ exercise or ~~termination of such insurance is pending or threatened.~~settlement; or (vi) To pursuant to an order of a court or regulatory agency or to comply with any regulations related to the ~~best~~ undersigned’s ownership of such counsel’s knowledge, except as described in the Registration Statement, the General Disclosure Package and the Prospectus, (A) neither the Company nor any of its subsidiaries is subject or party to, or has received any notice or advice from any Regulatory Agency that any of them are reasonably expected to become subject or party to any investigation with respect to, any Regulatory Agreement, (B) neither the Company nor any of its subsidiaries has been advised by any Regulatory Agency that it is considering issuing or requesting any Regulatory Agreement, (C) there is no unresolved violation, criticism or exception by any Regulatory Agency with respect to any report or statement relating to any examinations of the Company or any of its subsidiaries and (D) the Company and its subsidiaries are in compliance in all material respects with all laws administered by the Regulatory Agencies.Common Shares; or (vii) ~~Each~~ pursuant to a bona fide third party tender offer, merger, consolidation, equity purchase or other similar transaction or series of related transactions involving a change of control of the Company ~~and the Significant Subsidiary~~ (~~A) is duly qualified to transact business and is in good standing in each jurisdiction in which such qualification is required~~including, ~~whether by reason of the ownership~~ without limitation, entering into any lock-up, voting or leasing of property or the conduct of business and (B) holds all Governmental Licenses issued by Governmental Entities necessary to conduct the business now operated by them, except where the failure so to qualify or to be in good standing or to hold any such Governmental Licenses would not, singly or in the aggregate, result in a Material Adverse Effect. (viii) The outstanding shares of capital stock of the Company, including the Securities, have been duly authorized and validly issued and are fully paid and non-assessable. To such counsel’s knowledge, none of the outstanding shares of capital stock of the Company, including the Securities, were issued in violation of the preemptive or other similar rights of any securityholder of the Company or any other entity. (ix) The Underwriting Agreement has been duly authorized, executed and delivered by each of the Company and the Bank. (x) The Certificate of Designations for the Securities has been duly filed with the Secretary of State of the State of Delaware. The form of certificate representing the Securities complies in all material respects with the requirements of Delaware state law, the Charter and the By-Laws. (xi) To the best of such counsel’s knowledge, except as described in the Registration Statement, the General Disclosure Package and the Prospectus, there is no action, suit, proceeding, inquiry or investigation before or brought by any Governmental Entity now pending or threatened against or affecting the Company or any of its subsidiaries which could, singly or in the aggregate, result in a Material Adverse Effect, or which might reasonably be expected to materially and adversely affect their respective properties, assets or operations or the consummation of the transactions contemplated in the Underwriting Agreement or the performance by the Company of its obligations under the Operative Documents. The aggregate of all pending legal or governmental proceedings known to such counsel agreement pursuant to which the ~~Company~~ undersigned may agree to transfer, sell, tender or otherwise dispose of Lock-Up Shares in connection with such transaction or series of related transactions, or vote any Lock-Up Shares in favor of ~~its subsidiaries are a party~~ such transaction or series of ~~which any of their respective properties~~related transactions), ~~assets or operations are the subject which are not described~~ provided that in the ~~Registration Statement~~event such transaction or series of related transactions is not completed, the ~~General Disclosure Package and~~ Lock-Up Shares owned by the ~~Prospectus, including ordinary routine litigation incidental~~ undersigned shall remain subject to the ~~business, would not, singly or~~ restrictions contained in ~~the aggregate, result in a Material Adverse Effect~~this lock-up agreement. (xii) The information in the Registration Statement, the General Disclosure Package and the Prospectus under “Description of Capital Stock,” “Description of Series A Preferred Stock” and “Certain Material United States Federal Income Tax Considerations” or comparable captions and the information in the Registration Statement under “Item 15—Indemnification of Officers and Directors,” in each case to the extent that such information constitutes matters of law, summaries of legal matters, the Charter, By-Laws or legal proceedings, or legal conclusions, has been reviewed by such counsel and is correct in all material respects. (xiii) All descriptions in the Registration Statement, the General Disclosure Package and the Prospectus of contracts and other documents to which the Company or any of its subsidiaries are a party are accurate in all material respects. To the best of such counsel’s knowledge, there are no contracts, instruments or other documents required to be described in the Registration Statement, any preliminary prospectus or the Prospectus or to be filed as exhibits to the Registration Statement which have not been so described and filed as required. (xiv) To the best of such counsel’s knowledge, the execution, delivery and performance of the Operative Documents and the consummation of the transactions contemplated in the Underwriting Agreement and in the Registration Statement, [including the purchase by the Company of Securities in the offering,] the General Disclosure Package and the Prospectus and compliance by the Company with its obligations under the Operative Documents 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 ____) under, or result in the creation or imposition of any lien, charge or encumbrance upon

Appears in 1 contract

Samples: Underwriting Agreement (Americold Realty Trust)

Appears in 1 contract

Samples: Underwriting Agreement (Runway Growth Finance Corp.)

Appears in 1 contract

Samples: Underwriting Agreement (Parkway Properties Inc)

Appears in 1 contract

Samples: Underwriting Agreement (Pebblebrook Hotel Trust)

Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof. If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company and the Selling Stockholder a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the Underwriters, the ~~Company, the Bank~~ Company and the Selling ~~Shareholder~~ Stockholder in accordance with its terms. Very truly yours, ~~FIRST FINANCIAL HOLDINGS, INC.~~ By: /s/ ~~Xxxxxx X. Xxxxxxxxxx~~ Xxxx Xxxx Name: ~~Xxxxxx X. Xxxxxxxxxx~~ Xxxx Xxxx Title: ~~EVP and~~ Executive Vice President, Chief Financial and Operating Officer ~~FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF CHARLESTON~~ By: TI IV JJ GP, LLC, its general partner By: /s/ Xxxxx Xxxxxx ~~X. Xxxxxxxxxx~~ Name: Xxxxx Xxxxxx ~~X. Xxxxxxxxxx~~ Title: ~~EVP~~ Vice President and ~~Chief Financial Officer UNITED STATES DEPARTMENT OF THE TREASURY, as Selling Shareholder By: /s/ Xxxxxx Xxxxx Name: Xxxxxx Xxxxx Title: Chief Investment Officer~~ Secretary CONFIRMED AND ACCEPTED, as of the date first above written: ~~XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX~~ By: ~~XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX~~ XXXXXXXXX LLC By: /s/ Xxxxxxx X. Xxxxx Name: Xxxxxxx Xxxxx Title: Managing Director By: XXXXXXX XXXXX & COMPANY, L.L.C. By: /s/ Xxxx Xxxxxxxxxx Name: Xxxx Xxxxxxxxxx Title: Managing Director By: TD SECURITIES (USA) LLC By: /s/ Xxxxxxx Xxxxxxxx Name: Xxxxxxx Xxxxxxxx Title: Managing Director For ~~itself~~ themselves and as ~~Representative~~ Representatives of the other Underwriters named in Schedule A hereto. The public offering price per share for the Securities shall be $31.00. The purchase price per share for the Securities to be paid by the several Underwriters shall be $~~860.4073~~29.45, being an amount equal to the ~~initial~~ public offering price set forth ~~in Schedule B~~ above less $~~13.1027~~ 1.55 per share, subject to adjustment in accordance with Section 2(b) for dividends or distributions declared by the Company and payable on the Initial Securities but not payable on the Option Securities. Name of Underwriter Number of Initial Securities Xxxxxxxxx LLC 724,339 Xxxxxxx ~~Lynch~~Xxxxx & Company, ~~Pierce, Xxxxxx & Xxxxx Incorporated 60,125 Xxxxxx Xxxxxxxx~~L.L.C. 724,339 TD Securities (USA) LLC 418,279 BTIG, LLC ~~1,625 XX Xxxx Capital~~86,087 Telsey Advisory Group LLC 46,956 Total 2,000,000 TI IV JJill Holdings, ~~LLC 1,625 TBC Securities~~LP 1,000,000 300,000 1. The Company and the Selling Stockholder are each selling 1,000,000 shares of Common Stock, ~~LLC 1,625 Total 65,000~~ for a total of 2,000,000 shares of Common Stock. 2. The ~~initial~~ Selling Stockholder has granted an option to the Underwriters, severally and not jointly, to purchase up to an additional 300,000 shares of Common Stock. 3. The public offering price per share for the Securities shall be $~~873.51~~31.00. None. Xxxxxxxxx LLC Xxxxxxx Xxxxx & Company, L.L.C. TD Securities (USA) LLC as Representatives of the several Underwriters c/x Xxxxxxxxx LLC 000 Xxxxxxx Xxxxxx New York, New York 10022 c/o Xxxxxxx Xxxxx & Company, L.L.C. 000 Xxxxx Xxxxxxxxx Xxxxx Chicago, Illinois 60606 c/o TD Securities (USA) LLC 0 Xxxxxxxxxx Xxxxxx, 00xx Floor New York, New York 10017 Re: Proposed Public Offering by J.Xxxx, Inc. Ladies and Gentlemen: The ~~number~~ undersigned, a stockholder, officer and/or director of J.Xxxx, Inc., a Delaware corporation (the “Company”), understands that Xxxxxxxxx LLC, Xxxxxxx Xxxxx & Company, L.L.C., and TD Securities (USA) LLC (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”) with the Company and the selling stockholder to be ~~sold~~ named in Schedule B to the Underwriting Agreement (the “Selling Stockholder”) providing for the public offering (the “Public Offering”) of shares of the Company’s common stock, par value $0.01 per share (the “Common Stock”). In recognition of the benefit that such an offering will confer upon the undersigned as a stockholder, officer and/or director of the Company, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned agrees with each underwriter to be named in the Underwriting Agreement that, during the period beginning on the date hereof and ending on the date that is 60 days from the date of the Underwriting Agreement (the “Lock-Up Period”), the undersigned will not, without the prior written consent of the Representatives, (i) directly or indirectly, offer, 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 any shares of the Company’s Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, whether now owned or hereafter acquired by the ~~Selling Shareholder~~ undersigned or with respect to which the undersigned has or hereafter acquires the power of disposition (collectively, the “Lock-Up Securities”), or exercise any right with respect to the registration of any of the Lock-up Securities, or file or cause to be filed any registration statement in connection therewith, under the Securities Act of 1933, as amended, or (ii) enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Lock-Up Securities, whether any such swap or transaction is to be settled by delivery of Common Stock or other securities, in cash or otherwise. Notwithstanding the foregoing, and subject to the conditions below, the undersigned may transfer the Lock-Up Securities without the prior written consent of the Representatives, provided that (1) in the case of clauses (i) through (vi) below, the Representatives receive a signed lock-up agreement for the balance of the Lock-Up Period from each donee, trustee, distributee, or transferee, as the case may be, (2) any such transfer shall not involve a public market disposition for value, (3) in the case of clauses (ii) through (iv) below, such transfers are not required to be ~~65,000. The settlement date / closing time~~ reported during the Lock-Up Period with the SEC on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and in the case of clause (i) or (vii) below, if the undersigned is required to file a report under Section 16 of the Exchange Act during the Lock-Up Period, the undersigned shall ~~be April 3~~include a statement in such report to the effect that such report relates to the circumstances described in such clause, ~~2012. 1. NONE~~and (4) the undersigned does not otherwise voluntarily effect any public filing or report regarding such transfers during the Lock-Up Period: (i) Each of the Registration Statement and any post-effective amendment thereto has been declared effective by the Commission under the 1933 Act. Each preliminary prospectus, each Issuer Free Writing Prospectus and the Prospectus have been filed as required by Rule 424(b) (without reliance on Rule 424(b)(8)) and Rule 433, as applicable, within the time period prescribed by, and in compliance with, the 1933 Act Regulations. To the best of such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement a bona fide gift or any post-effective amendment thereto has been issued under the 1933 Act, no order preventing or suspending the use of any preliminary prospectus or the Prospectus or any amendment or supplement thereto has been issued and no proceedings for any of those purposes have been instituted or are pending or contemplated by the Securities and Exchange Commission.gifts; or (ii) ~~The Registration Statement~~to: (a) any immediate family member, (b) any trust for the ~~General Disclosure Package and~~ direct or indirect benefit of the ~~Prospectus and each amendment~~ undersigned or ~~supplement to~~ the ~~Registration Statement,~~ immediate family of the ~~General Disclosure Package and the Prospectus, as~~ undersigned or any of their ~~respective effective~~ successors upon death, (c) any partnership or ~~deemed effective~~ limited liability company the partners or issue dates (other than (1) the financial statements (including notes thereto) and supporting schedules included therein or omitted therefrom and (2) the documents incorporated or deemed incorporated therein by reference, as to members of which ~~such counsel need express no opinion), complied as to form in all material respects with the requirements~~ consist of the ~~1933 Act~~ undersigned and one or more members of the ~~1933 Act Regulations.~~undersigned’s immediately family (for purposes of this lock-up agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin); or (iii) ~~The documents incorporated~~ as a distribution to limited or ~~deemed incorporated by reference in the Registration Statement~~general partners, ~~the General Disclosure Package and the Prospectus (other than the financial statements (including notes thereto) and supporting schedules included therein~~ members or ~~omitted therefrom, as to which we express no opinion), when they were filed with the Commission, complied as to form in all material respects with the requirements~~ stockholders of the ~~1934 Act and 1934 Act Regulations.~~undersigned; or (iv) ~~No filing with,~~ to the undersigned’s affiliates or ~~authorization, approval, consent, license, order, registration, qualification~~ to any investment fund or ~~decree of, any Governmental Entity is necessary~~ other entity under common control or ~~required for~~ management with the Company to enter into, or perform their respective obligations under, the Operative Documents or the consummation of the transactions contemplated in the Underwriting Agreement, except or such as have been already obtained or as may be required under the 1933 Act, the 1933 Act Regulations, the securities laws of any state or non-U.S. jurisdiction or the rules of FINRA or by the Bank’s primary regulator for purposes of Section 7(e) of the Underwriting Agreement.undersigned; or (v) To if the ~~best~~ undersigned is a trust, to the beneficiary of such ~~counsel’s knowledge~~trust; or (vi) by testate succession or intestate succession; or (vii) by operation of law, ~~there are no persons with registration rights or other similar rights to have any securities registered for sale~~ such as pursuant to ~~the Registration Statement~~ a qualified domestic order or ~~otherwise registered for sale or sold by the Company under the 1933 Act~~ in connection with a divorce settlement; or (viii) pursuant to the Underwriting Agreement. (vi) The Company is not required, or upon consummation of the transactions contemplated in the Underwriting Agreement will be required, to register as an “investment company” under the 1940 Act. Although we assume no responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, General Disclosure Package or Prospectus, nothing has come to the attention of such counsel that has lead such counsel to believe that (1) the Registration Statement or any amendment thereto, including any information deemed to be a part thereof pursuant to Rule 430B, at the time such Registration Statement or any such amendment became effective or as of the “new effective date,” 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, (2) the General Disclosure Package, at the Applicable Time, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of circumstances under which they were made, not misleading or (3) the Prospectus or any amendment or supplement thereto, at the time the Prospectus was issued, at the time any such amended or supplemented prospectus was issued or at the Closing Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; it being understood that such counsel makes no statement as to any financial statements (including notes thereto), supporting schedules and other financial data included in the Registration Statement, the General Disclosure Package and the Prospectus or omitted therefrom. 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). (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, to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and to enter into and perform its obligations under, and to consummate the transactions contemplated under, the Operative Documents. (iii) The Company is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended. (iv) The Significant Subsidiary has been duly organized and is validly existing and in good standing under the laws of the jurisdiction of its organization, has the requisite corporate power and authority to own, lease and operate its properties, to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and. To such counsel’s knowledge, except as otherwise described in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding shares of capital stock of or other equity interests in the Significant Subsidiary have been duly authorized and validly issued, are fully paid and non-assessable and are owned by the Company, directly or through subsidiaries, to the best of such counsel’s knowledge free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity. To such counsel’s knowledge, none of the outstanding shares of capital stock of or other equity interests in the Significant Subsidiary were issued in violation of the preemptive or similar rights of any securityholder of such Significant Subsidiary or any other entity. (v) The deposit accounts of each of the Company’s banking subsidiaries are insured up to the applicable limits by the Deposit Insurance Fund of the FDIC to the fullest extent permitted by law and the rules and regulations of the FDIC, and, to the best of such counsel’s knowledge, no proceeding for the revocation or termination of such insurance is pending or threatened. (vi) To the best of such counsel’s knowledge, except as described in the Registration Statement, the General Disclosure Package and the Prospectus, (A) neither the Company nor any of its subsidiaries is subject or party to, or has received any notice or advice from any Regulatory Agency that any of them are reasonably expected to become subject or party to any investigation with respect to, any Regulatory Agreement, (B) neither the Company nor any of its subsidiaries has been advised by any Regulatory Agency that it is considering issuing or requesting any Regulatory Agreement, (C) there is no unresolved violation, criticism or exception by any Regulatory Agency with respect to any report or statement relating to any examinations of the Company or any of its subsidiaries and (D) the Company and its subsidiaries are in compliance in all material respects with all laws administered by the Regulatory Agencies. (vii) Each of the Company and the Significant Subsidiary (A) is duly qualified 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 and (B) holds all Governmental Licenses issued by Governmental Entities necessary to conduct the business now operated by them, except where the failure so to qualify or to be in good standing or to hold any such Governmental Licenses would not, singly or in the aggregate, result in a Material Adverse Effect. (viii) The outstanding shares of capital stock of the Company, including the Securities, have been duly authorized and validly issued and are fully paid and non-assessable. To such counsel’s knowledge, none of the outstanding shares of capital stock of the Company, including the Securities, were issued in violation of the preemptive or other similar rights of any securityholder of the Company or any other entity.or (ix) ~~The Underwriting Agreement has been duly authorized, executed and delivered by each of~~ to the Company ~~and the Bank. (x) The Certificate of Designations~~ for the primary purposes of satisfying the exercise price or any tax or other governmental withholding obligation with respect to the Lock-Up Securities ~~has been duly filed with~~ issued upon the ~~Secretary~~ exercise or settlement of ~~State~~ an option, warrant, restricted stock unit, performance stock unit, or other rights to acquire shares of Common Stock (or upon the ~~State~~ exchange of ~~Delaware. The form of certificate representing the Securities complies in all material respects with the requirements of Delaware state law, the Charter and the By-Laws. (xi~~another security or securities) ~~To the best of such counsel’s knowledge, except as~~ described in the ~~Registration Statement,~~ prospectus relating to the ~~General Disclosure Package and~~ Public Offering (the “Prospectus, there is no action, suit, proceeding, inquiry or investigation before or brought by any Governmental Entity now pending or threatened against or affecting the Company or any of its subsidiaries which could, singly or in the aggregate, result in a Material Adverse Effect”), or which might reasonably be expected to materially and adversely affect their respective properties, assets or operations or the consummation of the transactions contemplated in the Underwriting Agreement or the performance by the Company of its obligations issued under the ~~Operative Documents. The aggregate of all pending legal~~ Company’s equity incentive or governmental proceedings known to such counsel to which the Company or any of its subsidiaries are a party or of which any of their respective properties, assets or operations are the subject which are not benefit plans described in the ~~Registration Statement, the General Disclosure Package and the~~ Prospectus~~, including ordinary routine litigation incidental to the business, would not, singly or in the aggregate, result in a Material Adverse Effect~~. (xii) The information in the Registration Statement, the General Disclosure Package and the Prospectus under “Description of Capital Stock,” “Description of Series A Preferred Stock” and “Certain Material United States Federal Income Tax Considerations” or comparable captions and the information in the Registration Statement under “Item 15—Indemnification of Officers and Directors,” in each case to the extent that such information constitutes matters of law, summaries of legal matters, the Charter, By-Laws or legal proceedings, or legal conclusions, has been reviewed by such counsel and is correct in all material respects. (xiii) All descriptions in the Registration Statement, the General Disclosure Package and the Prospectus of contracts and other documents to which the Company or any of its subsidiaries are a party are accurate in all material respects. To the best of such counsel’s knowledge, there are no contracts, instruments or other documents required to be described in the Registration Statement, any preliminary prospectus or the Prospectus or to be filed as exhibits to the Registration Statement which have not been so described and filed as required. (xiv) To the best of such counsel’s knowledge, the execution, delivery and performance of the Operative Documents and the consummation of the transactions contemplated in the Underwriting Agreement and in the Registration Statement, [including the purchase by the Company of Securities in the offering,] the General Disclosure Package and the Prospectus and compliance by the Company with its obligations under the Operative Documents 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 ____) under, or result in the creation or imposition of any lien, charge or encumbrance upon

Appears in 1 contract

Samples: Underwriting Agreement (J.Jill, Inc.)

Appears in 1 contract

Samples: Underwriting Agreement (OCI Partners LP)

Appears in 1 contract

Samples: Underwriting Agreement (Parkway Properties Inc)

Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof. If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the ~~Underwriters, the Company, the Bank~~ Underwriters and the ~~Selling Shareholder~~ Company in accordance with its terms. Very truly yours, ~~FIRST FINANCIAL HOLDINGS~~XXXXXXXXX.XXX, INC. ~~By:~~ By /s/ Xxxxxx X. Xxxxxxxxxx Name: Xxxxxx X. Xxxxxxxxxx Title: EVP and Chief Financial Officer FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF CHARLESTON By: /s/ Xxxxxx X. Xxxxxxxxxx Name: Xxxxxx X. Xxxxxxxxxx Title: EVP and Chief Financial Officer UNITED STATES DEPARTMENT OF THE TREASURY, as Selling Shareholder By: /s/ Xxxxxx Xxxxx Name: Xxxxxx Xxxxx Xxxxxxxx Xxx Title: Chief ~~Investment~~ Financial Officer CONFIRMED AND ACCEPTED, as of the date first above written: ~~XXXXXXX LYNCH~~BOFA SECURITIES, ~~PIERCE, XXXXXX & XXXXX~~ INC. By: ~~XXXXXXX LYNCH~~BOFA SECURITIES, ~~PIERCE, XXXXXX & XXXXX~~ INC. By /s/ Xxxxxx Xxxx Name: Xxxxxx Xxxx Title: Managing Director CREDIT SUISSE SECURITIES (USA) LLC By: ~~/s/ Xxxxxxx X.~~ CREDIT SUISSE SECURITIES (USA) LLC Name: Xxxxx Xxxxxx Title: Director For itself and as ~~Representative~~ Representatives of the other Underwriters named in Schedule A hereto. The initial public offering price per share for the Securities shall be $84.50. The purchase price per share for the Securities to be paid by the several Underwriters shall be $~~860.4073~~80.06375, being an amount equal to the initial public offering price set forth ~~in Schedule B~~ above less $~~13.1027~~ 4.43625 per share, subject to adjustment in accordance with Section 2(b) for dividends or distributions declared by the Company and payable on the Initial Securities but not payable on the Option Securities. Name of Underwriter Number of ofInitial Securities BofA Securities, Inc. 1,029,375 Credit Suisse Securities (USA) LLC 571,875 Xxxxx Xxxxxxx ~~Lynch, Pierce, Xxxxxx~~ & ~~Xxxxx Incorporated 60,125 Xxxxxx Xxxxxxxx~~Co.. 166,250 Xxxxxxx & Company, LLC ~~1,625 XX Xxxx Capital~~133,000 X.X. Xxxxxxxx & Co.. 116,375 Wedbush Securities Inc. 83,125 Total 2,100,000 Number of InitialSecurities to be Sold Maximum Number of OptionSecurities to Be Sold Xxxxxxxxx.xxx, ~~LLC 1,625 TBC Securities~~Inc. 2,100,000 315,000 Total 2,100,000 315,000 1. The Company is selling 2,100,000 shares of Common Stock. 2. The Company has granted an option to the Underwriters, ~~LLC 1,625 Total 65,000~~ severally and not jointly, to purchase up to an additional 315,000 shares of Common Stock. 3. The initial public offering price per share for the Securities shall be $~~873.51~~84.50. ~~The number~~ [None] Xxxxx Xxxxxxx Xxxxxxx X. Xxxxxxx Xxxxxxx X. Xxxxxx Xxxxxxxx X Xxxxxxx III Xxxxxx X Xxxxxxx, Xx. Xx. Xxxxxx X. Shapiro Xxxxxxxx Xxx Xxxxxxx Xxxxxxx Xxxxxxx Xxxxxxx BofA Securities, Inc. Credit Suisse Securities (USA) LLC as Representatives of ~~Securities~~ the several Underwriters to be ~~sold~~ named in the within‑mentioned Underwriting Agreement c/o BofA Securities, Inc. Xxx Xxxxxx Xxxx Xxx Xxxx, Xxx Xxxx 00000 c/o Credit Suisse Securities (USA) LLC Eleven Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 Re: Proposed Public Offering by Xxxxxxxxx.xxx, Inc. Dear Sirs: The undersigned, a stockholder and an officer and/or director of Xxxxxxxxx.xxx, Inc., a Delaware corporation (the “Company”), understands that BofA Securities, Inc. (“BofA”), Credit Suisse Securities (USA) LLC (“Credit Suisse”) and certain other firms (collectively with BofA and Credit Suisse, the “Underwriters”) proposes to enter into an Underwriting Agreement (the “Underwriting Agreement”) with the Company providing for the public offering of shares of the Company’s common stock, par value $0.0001 per share (the “Common Stock”). In recognition of the benefit that such an offering will confer upon the undersigned as a stockholder and an officer and/or director of the Company, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned agrees with each underwriter to be named in the Underwriting Agreement that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the Underwriting Agreement (subject to extensions as discussed below (the “Lock-Up Period”), the undersigned will not, without the prior written consent of BofA and Credit Suisse, on behalf of the Underwriters, (i) directly or indirectly, offer, 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 any shares of the Company’s Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, whether now owned or hereafter acquired by the ~~Selling Shareholder~~ undersigned or with respect to which the undersigned has or hereafter acquires the power of disposition (collectively, the “Lock-Up Securities”), or exercise any right with respect to the registration of any of the Lock-up Securities, or file or cause to be filed any registration statement in connection therewith, under the Securities Act of 1933, as amended, or (ii) enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Lock-Up Securities, whether any such swap or transaction is to be settled by delivery of Common Stock or other securities, in cash or otherwise. Notwithstanding the foregoing, and subject to the conditions below, the undersigned may transfer the Lock-Up Securities during the Lock-Up Period without the prior written consent of BofA and Credit Suisse, provided that (1) BofA and Credit Suisse receive a signed lock-up agreement for the balance of the lockup period from each donee, trustee, distributee, or transferee, as the case may be, (2) any such transfer shall not involve a disposition for value, (3) such transfers are not required to be ~~65,000. The settlement date / closing time shall be April 3~~reported with the Securities and Exchange Commission on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, ~~2012. 1. NONE~~as amended, and (4) the undersigned does not otherwise voluntarily effect any public filing or report regarding such transfers: (i) ~~Each~~ as a bona fide gift or gifts; (ii) to any trust for the direct or indirect benefit of the ~~Registration Statement and~~ undersigned or the immediate family of the undersigned (for purposes of this lock-up agreement, “immediate family” shall mean any ~~post~~relationship by blood, marriage or adoption, not more remote than first cousin); by will or intestate succession to the legal representative, heir, beneficiary or any immediate family member of the undersigned; (iii) as a distribution to limited partners, members or stockholders of the undersigned; (iv) to the undersigned’s affiliates or to any investment fund or other entity controlled or managed by the undersigned; (v) the exercise of warrants, the exercise of stock options granted pursuant to the Company’s stock option/incentive plans or otherwise, or the conversion of securities, in each case outstanding on the date of the prospectus relating to the Offering; provided, that the restrictions set forth herein shall apply to shares of Common Stock issued upon such exercise or conversion; (vi) the establishment of any contract, instruction or plan that satisfies all of the requirements of Rule 10b5-~~effective amendment thereto has been declared effective by~~ 1 (a “Rule 10b5-1 Plan”) under the Exchange Act; provided, however, that no sales of Common Stock or securities convertible into, or exchangeable or exercisable for, Common Stock, shall be made pursuant to a Rule 10b5-1 Plan prior to the expiration of the Lock-Up Period; provided further, that the Company is not required to report the establishment of such Rule 10b5-1 Plan in any public report or filing with the Commission under the ~~1933 Act. Each preliminary prospectus, each Issuer Free Writing Prospectus~~ Exchange Act during the Lock-Up Period and the Prospectus have been filed as required by Rule 424(b) (without reliance on Rule 424(b)(8)) and Rule 433, as applicable, within the time period prescribed by, and in compliance with, the 1933 Act Regulations. To the best of such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued under the 1933 Act, no order preventing or suspending the use of any preliminary prospectus or the Prospectus or any amendment or supplement thereto has been issued and no proceedings for any of those purposes have been instituted or are pending or contemplated by the Securities and Exchange Commission. (ii) The Registration Statement, the General Disclosure Package and the Prospectus and each amendment or supplement to the Registration Statement, the General Disclosure Package and the Prospectus, as of their respective effective or deemed effective or issue dates (other than (1) the financial statements (including notes thereto) and supporting schedules included therein or omitted therefrom and (2) the documents incorporated or deemed incorporated therein by reference, as to which such counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations. (iii) The documents incorporated or deemed incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus (other than the financial statements (including notes thereto) and supporting schedules included therein or omitted therefrom, as to which we express no opinion), when they were filed with the Commission, complied as to form in all material respects with the requirements of the 1934 Act and 1934 Act Regulations. (iv) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any Governmental Entity is necessary or required for the Company to enter into, or perform their respective obligations under, the Operative Documents or the consummation of the transactions contemplated in the Underwriting Agreement, except or such as have been already obtained or as may be required under the 1933 Act, the 1933 Act Regulations, the securities laws of any state or non-U.S. jurisdiction or the rules of FINRA or by the Bank’s primary regulator for purposes of Section 7(e) of the Underwriting Agreement. (v) To the best of such counsel’s knowledge, there are no persons with registration rights or other similar rights to have any securities registered for sale pursuant to the Registration Statement or does not otherwise registered for sale or sold by the Company under the 1933 Act pursuant to the Underwriting Agreement. (vi) The Company is not required, or upon consummation of the transactions contemplated in the Underwriting Agreement will be required, to register as an “investment company” under the 1940 Act. Although we assume no responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, General Disclosure Package or Prospectus, nothing has come to the attention of such counsel that has lead such counsel to believe that (1) the Registration Statement or any amendment thereto, including any information deemed to be a part thereof pursuant to Rule 430B, at the time such Registration Statement or voluntarily effect any such ~~amendment became effective~~ public filing or ~~as of~~ report regarding such Rule 10b5-1 Plan during the “new effective date,” 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, (2) the General Disclosure Package, at the Applicable Time, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of circumstances under which they were made, not misleading or (3) the Prospectus or any amendment or supplement thereto, at the time the Prospectus was issued, at the time any such amended or supplemented prospectus was issued or at the Closing Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; it being understood that such counsel makes no statement as to any financial statements (including notes thereto), supporting schedules and other financial data included in the Registration Statement, the General Disclosure Package and the Prospectus or omitted therefrom. 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). (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, to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and to enter into and perform its obligations under, and to consummate the transactions contemplated under, the Operative Documents. (iii) The Company is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended. (iv) The Significant Subsidiary has been duly organized and is validly existing and in good standing under the laws of the jurisdiction of its organization, has the requisite corporate power and authority to own, lease and operate its properties, to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and. To such counsel’s knowledge, except as otherwise described in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding shares of capital stock of or other equity interests in the Significant Subsidiary have been duly authorized and validly issued, are fully paid and nonLock-assessable and are owned by the Company, directly or through subsidiaries, to the best of such counsel’s knowledge free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity. To such counsel’s knowledge, none of the outstanding shares of capital stock of or other equity interests in the Significant Subsidiary were issued in violation of the preemptive or similar rights of any securityholder of such Significant Subsidiary or any other entity. (v) The deposit accounts of each of the Company’s banking subsidiaries are insured up to the applicable limits by the Deposit Insurance Fund of the FDIC to the fullest extent permitted by law and the rules and regulations of the FDIC, and, to the best of such counsel’s knowledge, no proceeding for the revocation or termination of such insurance is pending or threatened. (vi) To the best of such counsel’s knowledge, except as described in the Registration Statement, the General Disclosure Package and the Prospectus, (A) neither the Company nor any of its subsidiaries is subject or party to, or has received any notice or advice from any Regulatory Agency that any of them are reasonably expected to become subject or party to any investigation with respect to, any Regulatory Agreement, (B) neither the Company nor any of its subsidiaries has been advised by any Regulatory Agency that it is considering issuing or requesting any Regulatory Agreement, (C) there is no unresolved violation, criticism or exception by any Regulatory Agency with respect to any report or statement relating to any examinations of the Company or any of its subsidiaries and (D) the Company and its subsidiaries are in compliance in all material respects with all laws administered by the Regulatory Agencies.Up Period; (vii) ~~Each~~ any forfeiture, sale or other transfer to the Company in connection with the termination of the ~~Company and~~ undersigned’s employment with or services to the Significant Subsidiary (A) is duly qualified 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 and (B) holds all Governmental Licenses issued by Governmental Entities necessary to conduct the business now operated by them, except where the failure so to qualify or to be in good standing or to hold any such Governmental Licenses would not, singly or in the aggregate, result in a Material Adverse Effect.Company; or (viii) ~~The outstanding~~ the transfer of shares ~~of capital stock~~ to the Company to satisfy withholding taxes for any equity award granted prior to the date of the ~~Company~~prospectus relating to the Offering, ~~including the Securities~~such as upon exercise, ~~have been duly authorized and validly issued and are fully paid and non-assessable. To such counsel’s knowledge~~vesting, ~~none~~ lapse of ~~the outstanding shares~~ substantial risk of ~~capital stock of the Company~~forfeiture, ~~including the Securities, were issued in violation of the preemptive~~ or other similar ~~rights of any securityholder of the Company or any other entity. (ix) The Underwriting Agreement has been duly authorized~~taxable event, executed and delivered by each of the Company and the Bank. (x) The Certificate of Designations for the Securities has been duly filed with the Secretary of State of the State of Delaware. The form of certificate representing the Securities complies in all material respects with the requirements of Delaware state law, the Charter and the By-Laws. (xi) To the best of such counsel’s knowledge, except as described in the Registration Statement, the General Disclosure Package and the Prospectus, there is no action, suit, proceeding, inquiry or investigation before or brought by any Governmental Entity now pending or threatened against or affecting the Company or any of its subsidiaries which could, singly or in the aggregate, result in a Material Adverse Effect, or which might reasonably be expected to materially and adversely affect their respective properties, assets or operations or the consummation of the transactions contemplated in the Underwriting Agreement or the performance by the Company of its obligations under the Operative Documents. The aggregate of all pending legal or governmental proceedings known to such counsel to which the Company or any of its subsidiaries are a party or of which any of their respective properties, assets or operations are the subject which are not described in the Registration Statement, the General Disclosure Package and the Prospectus, including ordinary routine litigation incidental to the business, would not, singly or in the aggregate, result in a Material Adverse Effect. (xii) The information in the Registration Statement, the General Disclosure Package and the Prospectus under “Description of Capital Stock,” “Description of Series A Preferred Stock” and “Certain Material United States Federal Income Tax Considerations” or comparable captions and the information in the Registration Statement under “Item 15—Indemnification of Officers and Directors,” in each case ~~to the extent that such information constitutes matters of law, summaries of legal matters, the Charter, By-Laws~~ on a “cashless” or ~~legal proceedings, or legal conclusions, has been reviewed by such counsel and is correct in all material respects~~“net exercise” basis. (xiii) All descriptions in the Registration Statement, the General Disclosure Package and the Prospectus of contracts and other documents to which the Company or any of its subsidiaries are a party are accurate in all material respects. To the best of such counsel’s knowledge, there are no contracts, instruments or other documents required to be described in the Registration Statement, any preliminary prospectus or the Prospectus or to be filed as exhibits to the Registration Statement which have not been so described and filed as required. (xiv) To the best of such counsel’s knowledge, the execution, delivery and performance of the Operative Documents and the consummation of the transactions contemplated in the Underwriting Agreement and in the Registration Statement, [including the purchase by the Company of Securities in the offering,] the General Disclosure Package and the Prospectus and compliance by the Company with its obligations under the Operative Documents 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 ____) under, or result in the creation or imposition of any lien, charge or encumbrance upon

Appears in 1 contract

Samples: Underwriting Agreement (OVERSTOCK.COM, Inc)

Appears in 1 contract

Samples: Underwriting Agreement (Peoples Bancorp of North Carolina Inc)

Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof. If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement ~~among~~ between the ~~Underwriters, the Company, the Bank~~ Underwriters and the ~~Selling Shareholder~~ Company in accordance with its terms. Very truly yours, ~~FIRST FINANCIAL HOLDINGS, INC.~~ REGIS CORPORATION By: /s/ ~~Xxxxxx~~ Xxxx X. ~~Xxxxxxxxxx~~ Xxxxxxxxxxx Name: ~~Xxxxxx~~ Xxxx X. ~~Xxxxxxxxxx~~ Xxxxxxxxxxx Title: ~~EVP~~ Chairman of the Board of Directors and Chief Financial Officer FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF CHARLESTON By: /s/ Xxxxxx X. Xxxxxxxxxx Name: Xxxxxx X. Xxxxxxxxxx Title: EVP and Chief Financial Officer UNITED STATES DEPARTMENT OF THE TREASURY, as Selling Shareholder By: /s/ Xxxxxx Xxxxx Name: Xxxxxx Xxxxx Title: Chief Investment Executive Officer CONFIRMED AND ACCEPTED, as of the date first above written: XXXXXXX XXXXX & CO. XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED CREDIT SUISSE SECURITIES (USA) LLC By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED By: /s/ Xxxxx Xxxxxx By: CREDIT SUISSE SECURITIES (USA) LLC By: /s/ Xxxxx Xxxxx Xxxxxxx X. Lynch, Pierce, Xxxxxx & Xxxxx ~~For itself and as Representative of~~ Incorporated 7,015,000 Credit Suisse Securities (USA) LLC 4,485,000 Total 11,500,000 1. The initial public offering price per share for the ~~other Underwriters named in Schedule A hereto~~Securities shall be $12.37. 2. The purchase price per share for the Securities to be paid by the several Underwriters shall be $~~860.4073~~11.8289, being an amount equal to the initial public offering price set forth ~~in Schedule B~~ above less $~~13.1027~~ 0.5411 per share; provided that the purchase price per share for any Option Securities purchased upon the exercise of the overallotment option described in Section 2(b) shall be reduced by an amount per share equal to any dividends or distributions declared by the Company and payable on the Initial Securities but not payable on the Option Securities. ~~Name~~ Issuer Free Writing Prospectus dated, and filed with the Commission on, July 6, 2009 Issuer: Regis Corporation, a Minnesota corporation (“Regis”). Ticker/Exchange: RGS/The New York Stock Exchange. Title of ~~Underwriter Number~~ Securities: Common stock, par value $0.05 per share, of ~~Securities~~ Regis Corporation (the “Common Stock”). Shares Offered: 11,500,000 shares (excluding the underwriters’ option to purchase up to 1,725,000 additional shares to cover overallotments). Last Reported Sale Price of Common Stock: $12.37 on the New York Stock Exchange as of July 8, 2009. Public Offering Price Per Share: $12.37 Underwriting Discount Per Share: $0.5411 Proceeds Net of Any Commissions Payable to the Underwriters in Connection with the Offering $136,032,350 ($156,437,203 if the underwriters’ option to purchase up to 1,725,000 additional shares to cover overallotments is exercised in full). Trade Date: July 8, 2009. Expected Settlement Date: July 14, 2009. Joint Book-Running Managers: Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ~~60,125 Xxxxxx Xxxxxxxx~~and Credit Suisse Securities (USA) LLC Concurrent Offering of Convertible Senior Notes: Concurrently with this offering, ~~LLC 1,625 XX Xxxx Capital~~Regis is offering $150,000,000 aggregate principal amount of 5% Convertible Senior Notes due 2014 (plus an underwriters’ option to purchase up to an additional $22,500,000 aggregate principal amount to cover overallotments) in a separate public offering. The notes are convertible by holders at a conversion rate of 64.6726 shares of Common Stock per $1,000 principal amount of notes (subject to adjustment in certain circumstances), ~~LLC 1,625 TBC Securities, LLC 1,625 Total 65,000 The~~ which represents an initial ~~public~~ conversion price of approximately $15.46 per share. Neither offering ~~price per share for~~ is conditioned on the ~~Securities shall be $873.51~~other. Common Stock Outstanding After the Offering: 55,381,364 shares. The number of ~~Securities~~ shares of Common Stock outstanding after this offering is based on the number of shares outstanding as of June 30, 2009. This number excludes 1,725,000 shares issuable upon the exercise of the underwriters’ overallotment option and excludes 1,417,675 shares of Common Stock issuable upon exercise of outstanding stock options and any shares of Common Stock issuable upon conversion of the convertible senior notes offered in the concurrent offering. Use of Proceeds: The estimated net proceeds from this offering to Regis will be ~~sold~~ approximately $136.032 million ($156.437 million if the underwriters’ overallotment option is exercised in full), after deducting the underwriting discount but before taking into account offering expenses payable by ~~the Selling Shareholder shall be 65,000~~Regis. The ~~settlement date / closing time shall~~ estimated net proceeds to Regis from the concurrent convertible senior note offering will be ~~April 3~~approximately $145.5 million ($167.325 million if the underwriters’ overallotment option in that offering is exercised in full), ~~2012. 1~~after deducting the underwriting discount but before taking into account offering expenses payable by Regis. ~~NONE (i) Each~~ Regis plans to use approximately $277 million of the ~~Registration Statement~~ net proceeds from this offering, along with the net proceeds from the concurrent convertible senior note offering, to repay in the aggregate $267 million principal amount of its outstanding fixed rate 7.20% Senior Notes, Series B, due 2012, 4.97% Senior Notes, Series 0000-X, Xxxxxxx 1, due 2013 and ~~any post~~5.20% Senior Notes, Series 0000-~~effective amendment thereto has been declared effective by the Commission under the 1933 Act. Each preliminary prospectus~~X, ~~each Issuer Free Writing Prospectus~~ Xxxxxxx 2, due 2015 and ~~the Prospectus have been filed as required by Rule 424(b)~~ its outstanding Floating Rate Senior Notes, Series 0000-X, Xxxxxxx 1, due 2015 (~~without reliance on Rule 424(b)(8)~~which currently bear interest at 1.12% per annum) and ~~Rule 433~~Floating Rate Senior Notes, ~~as applicable~~Series 0000-X, ~~within~~ Xxxxxxx 2, due 2013 (which currently bear interest at 1.15% per annum). The fixed rate notes are being repaid with a premium over the ~~time period prescribed by, and in compliance with,~~ principal amount that is less than the ~~1933 Act Regulations~~current make-whole premium. To In connection with the ~~best of such counsel’s knowledge, no stop order suspending the effectiveness~~ repayment of the ~~Registration Statement or any post-effective amendment thereto has been issued under the 1933 Act~~floating rate senior notes, ~~no order preventing or suspending the use~~ Regis expects to incur an expense of any preliminary prospectus or the Prospectus or any amendment or supplement thereto has been issued and no proceedings for any of those purposes have been instituted or are pending or contemplated by the Securities and Exchange Commission. (ii) The Registration Statement, the General Disclosure Package and the Prospectus and each amendment or supplement approximately $3.6 million related to the ~~Registration Statement~~early settlement of certain interest rate swaps. Regis intends to use the remaining proceeds, if any, to pay down outstanding borrowings under its revolving credit facility and for general corporate purposes. Any disclaimers or other notices that may appear below are not applicable to this communication and should be disregarded. Such disclaimers were automatically generated as a result of this communication being sent via email or another communication system. Xxxx 0, 0000 XXXXXXX XXXXX & CO. Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated Xxx Xxxxxx Xxxx Xxx Xxxx, Xxx Xxxx 00000 CREDIT SUISSE SECURITIES (USA) LLC 00 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 Re: Proposed Public Offering by Regis Corporation Dear Sirs: The undersigned, a stockholder and an officer and/or director of Regis Corporation, a Minnesota corporation (the General Disclosure Package and the Prospectus, as of their respective effective or deemed effective or issue dates (other than (1) the financial statements (including notes thereto) and supporting schedules included therein or omitted therefrom and (2) the documents incorporated or deemed incorporated therein by reference, as to which such counsel need express no opinion“Company”), ~~complied as~~ understands that Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and Credit Suisse Securities (USA) LLC propose to ~~form in all material respects~~ enter into a Purchase Agreement (the “Purchase Agreement”) with the requirements of the 1933 Act and the 1933 Act Regulations. (iii) The documents incorporated or deemed incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus (other than the financial statements (including notes thereto) and supporting schedules included therein or omitted therefrom, as to which we express no opinion), when they were filed with the Commission, complied as to form in all material respects with the requirements of the 1934 Act and 1934 Act Regulations. (iv) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any Governmental Entity is necessary or required Company providing for the Company to enter into, or perform their respective obligations under, the Operative Documents or the consummation of the transactions contemplated in the Underwriting Agreement, except or such as have been already obtained or as may be required under the 1933 Act, the 1933 Act Regulations, the securities laws of any state or non-U.S. jurisdiction or the rules of FINRA or by the Bank’s primary regulator for purposes of Section 7(e) of the Underwriting Agreement. (v) To the best of such counsel’s knowledge, there are no persons with registration rights or other similar rights to have any securities registered for sale pursuant to the Registration Statement or otherwise registered for sale or sold public offering by the Company ~~under the 1933 Act pursuant to the Underwriting Agreement. (vi) The Company is not required, or upon consummation~~ of the transactions contemplated in the Underwriting Agreement will be required, to register as an “investment company” under the 1940 Act. Although we assume no responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, General Disclosure Package or Prospectus, nothing has come to the attention of such counsel that has lead such counsel to believe that (1) the Registration Statement or any amendment thereto, including any information deemed to be a part thereof pursuant to Rule 430B, at the time such Registration Statement or any such amendment became effective or as of the “new effective date,” 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, (2) the General Disclosure Package, at the Applicable Time, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of circumstances under which they were made, not misleading or (3) the Prospectus or any amendment or supplement thereto, at the time the Prospectus was issued, at the time any such amended or supplemented prospectus was issued or at the Closing Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; it being understood that such counsel makes no statement as to any financial statements (including notes thereto), supporting schedules and other financial data included in the Registration Statement, the General Disclosure Package and the Prospectus or omitted therefrom. 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). (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, to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and to enter into and perform its obligations under, and to consummate the transactions contemplated under, the Operative Documents. (iii) The Company is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended. (iv) The Significant Subsidiary has been duly organized and is validly existing and in good standing under the laws of the jurisdiction of its organization, has the requisite corporate power and authority to own, lease and operate its properties, to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and. To such counsel’s knowledge, except as otherwise described in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding shares of capital stock of or other equity interests in the Significant Subsidiary have been duly authorized and validly issued, are fully paid and non-assessable and are owned by the Company, directly or through subsidiaries, to the best of such counsel’s knowledge free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity. To such counsel’s knowledge, none of the outstanding shares of capital stock of or other equity interests in the Significant Subsidiary were issued in violation of the preemptive or similar rights of any securityholder of such Significant Subsidiary or any other entity. (v) The deposit accounts of each of the Company’s ~~banking subsidiaries~~ Common Stock, $0.05 par value per share (the “Common Stock”). In recognition of the benefit that such an offering will confer upon the undersigned as a stockholder and an officer and/or director of the Company, and for other good and valuable consideration, the receipt and sufficiency of which are ~~insured up~~ hereby acknowledged, the undersigned agrees with each underwriter to be named in the ~~applicable limits~~ Purchase Agreement that, during a period of 90 days from the date of the Purchase Agreement, the undersigned will not, without the prior written consent of the Underwriters, directly or indirectly, (i) offer, 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 dispose of or transfer any shares of the Company’s common stock, par value $0.05 per share (the “Common Stock”), or any securities convertible into or exchangeable or exercisable for Common Stock, whether now owned or hereafter acquired by the ~~Deposit Insurance Fund~~ undersigned or with respect to which the undersigned has or hereafter acquires the power of the FDIC to the fullest extent permitted by law and the rules and regulations of the FDIC, and, to the best of such counsel’s knowledge, no proceeding for the revocation or termination of such insurance is pending or threatened. (vi) To the best of such counsel’s knowledge, except as described in the Registration Statement, the General Disclosure Package and the Prospectus, (A) neither the Company nor any of its subsidiaries is subject or party todisposition, or ~~has received any notice~~ file, or ~~advice from any Regulatory Agency that any of them are reasonably expected~~ cause to ~~become subject or party to any investigation with respect to~~be filed, any ~~Regulatory Agreement~~registration statement under the Securities Act of 1933, ~~(B) neither the Company nor any of its subsidiaries has been advised by any Regulatory Agency that it is considering issuing or requesting any Regulatory Agreement~~as amended, ~~(C) there is no unresolved violation, criticism or exception by any Regulatory Agency~~ with respect to any ~~report or statement relating to any examinations~~ of the ~~Company~~ foregoing (collectively, the “Lock-Up Securities”) or (ii) enter into any of its subsidiaries and (D) the Company and its subsidiaries are in compliance in all material respects with all laws administered by the Regulatory Agencies. (vii) Each of the Company and the Significant Subsidiary (A) is duly qualified 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 and (B) holds all Governmental Licenses issued by Governmental Entities necessary to conduct the business now operated by them, except where the failure so to qualify or to be in good standing or to hold any such Governmental Licenses would not, singly or in the aggregate, result in a Material Adverse Effect. (viii) The outstanding shares of capital stock of the Company, including the Securities, have been duly authorized and validly issued and are fully paid and non-assessable. To such counsel’s knowledge, none of the outstanding shares of capital stock of the Company, including the Securities, were issued in violation of the preemptive or other similar rights of any securityholder of the Company swap or any other ~~entity. (ix) The Underwriting Agreement has been duly authorized~~agreement or any transaction that transfers, ~~executed and delivered by each~~ in whole or in part, directly or indirectly, the economic consequence of ownership of the ~~Company and the Bank. (x) The Certificate~~ Lock-Up Securities, whether any such swap or transaction is to be settled by delivery of ~~Designations for the Securities has been duly filed with the Secretary of State of the State of Delaware. The form of certificate representing the Securities complies~~ Common Stock or other securities, in ~~all material respects with the requirements of Delaware state law~~cash or otherwise; provided that, the ~~Charter and the By-Laws. (xi) To the best~~ undersigned shall not be prohibited from any transfer of ~~such counsel’s knowledge, except as described in the Registration Statement, the General Disclosure Package and the Prospectus, there is no action, suit, proceeding, inquiry~~ shares of Common Stock or ~~investigation before~~ options to purchase or ~~brought by any Governmental Entity now pending or threatened against or affecting the Company or any~~ sell shares of its subsidiaries which could, singly or in the aggregate, result in a Material Adverse Effect, or which might reasonably be expected to materially and adversely affect their respective properties, assets or operations or the consummation of the transactions contemplated in the Underwriting Agreement or the performance by the Company of its obligations under the Operative Documents. The aggregate of all pending legal or governmental proceedings known to such counsel to which the Company or any of its subsidiaries are a party or of which any of their respective properties, assets or operations are the subject which are not described in the Registration Statement, the General Disclosure Package and the Prospectus, including ordinary routine litigation incidental to the business, would not, singly or in the aggregate, result in a Material Adverse Effect. (xii) The information in the Registration Statement, the General Disclosure Package and the Prospectus under “Description of Capital Common Stock,” “Description of Series A Preferred Stock” and “Certain Material United States Federal Income Tax Considerations” or comparable captions and the information in the Registration Statement under “Item 15—Indemnification of Officers and Directors,” in each case to the extent that such information constitutes matters of law, summaries of legal matters, the Charter, By-Laws or legal proceedings, or legal conclusions, has been reviewed by such counsel and is correct in all material respects. (xiii) All descriptions in the Registration Statement, the General Disclosure Package and the Prospectus of contracts and other documents to which the Company or any of its subsidiaries are a party are accurate in all material respects. To the best of such counsel’s knowledge, there are no contracts, instruments or other documents required to be described in the Registration Statement, any preliminary prospectus or the Prospectus or to be filed as exhibits to the Registration Statement which have not been so described and filed as required. (xiv) To the best of such counsel’s knowledge, the execution, delivery and performance of the Operative Documents and the consummation of the transactions contemplated in the Underwriting Agreement and in the Registration Statement, [including the purchase by the Company of Securities in the offering,] the General Disclosure Package and the Prospectus and compliance by the Company with its obligations under the Operative Documents 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 ____) under, or result in the creation or imposition of any lien, charge or encumbrance upon

Appears in 1 contract

Samples: Purchase Agreement (Regis Corp)

Appears in 1 contract

Samples: Underwriting Agreement (Cedar Realty Trust, Inc.)

Appears in 1 contract

Samples: Underwriting Agreement (Noranda Aluminum Holding CORP)

Appears in 1 contract

Samples: Purchase Agreement (Owens Corning/Fibreboard Asbestos Personal Injury Trust)

Appears in 1 contract

Samples: Underwriting Agreement (Intercept Pharmaceuticals Inc)

Appears in 1 contract

Samples: Underwriting Agreement (Longboard Pharmaceuticals, Inc.)

Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof. If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the ~~Underwriters, the Company, the Bank~~ Underwriters and the ~~Selling Shareholder~~ Company in accordance with its terms. Very truly yours, ~~FIRST FINANCIAL HOLDINGS, INC. By:~~ PROQR THERAPEUTICS N.V. By /s/ ~~Xxxxxx X. Xxxxxxxxxx~~ Rxxx Xxxxxxx Name: Xxxxxx X. Xxxxxxxxxx Title: EVP and Chief Financial Officer FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF CHARLESTON By: /s/ Xxxxxx X. Xxxxxxxxxx Name: Xxxxxx X. Xxxxxxxxxx Title: EVP and Chief Financial Officer UNITED STATES DEPARTMENT OF THE TREASURY, as Selling Shareholder By: /s/ Xxxxxx Xxxxx Name: Xxxxxx Xxxxx Rxxx Xxxxxxx Title: Chief ~~Investment~~ Corporate Development Officer & General Counsel CONFIRMED AND ACCEPTED, as of the date first above written: ~~XXXXXXX LYNCH, PIERCE, XXXXXX~~ EVERCORE GROUP L.L.C. By /s/ Gxxxxx Xxxx Name: Gxxxxx Xxxx Title: Managing Director CANTOR FXXXXXXXXX & ~~XXXXX By~~CO. By /s/ Axxx Xxxxx Name: ~~XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX By~~Axxx Xxxxx Title: ~~/s/ Xxxxxxx X. Xxxxx~~ Co-Head of ECM For ~~itself~~ themselves and as ~~Representative~~ Representatives of the other Underwriters named in Schedule A hereto. The public offering price per share for the Securities shall be $3.50. The purchase price per share for the Securities to be paid by the several Underwriters shall be be: $~~860.4073~~3.29, ~~being an amount equal~~ subject to adjustment in accordance with Section 2(b) for dividends or distributions declared by the ~~initial public offering price set forth in Schedule B less $13.1027 per share~~Company and payable on the Initial Securities but not payable on the Option Securities. Name of Underwriter Number of Total Initial Securities ~~Xxxxxxx Lynch~~Evercore Group L.L.C. 7,425,000 Cantor Fxxxxxxxxx & Co. 5,625,000 Rxxxxxx Jxxxx & Associates, ~~Pierce~~Inc. 2,925,000 Oxxxxxxxxxx & Co. Inc. 2,025,000 Total 18,000,000 1. The Company is selling 18,000,000 Ordinary Shares. 2. The Company has granted an option to the Underwriters, ~~Xxxxxx & Xxxxx Incorporated 60,125 Xxxxxx Xxxxxxxx~~severally and not jointly, ~~LLC 1,625 XX Xxxx Capital, LLC 1,625 TBC Securities, LLC 1,625 Total 65,000~~ to purchase up to an additional 2,700,000 Ordinary Shares. 3. The ~~initial~~ public offering price per share for the Securities shall be $~~873.51~~3.50 (the “Public Offering Price”). Evercore Group L.L.C. Cantor Fxxxxxxxxx & Co. As Representatives of the several Underwriters, c/o Evercore Group L.L.C. 50 Xxxx 00xx Xxxxxx New York, New York 10055 c/o Cantor Fxxxxxxxxx & Co. 100 Xxxx 00xx Xxxxxx, 0xx Xxxxx New York, New York 10022 Re: Proposed Public Offering by ProQR Therapeutics N.V. Ladies and Gentlemen: The undersigned is a holder of ordinary shares, a member of the board of directors, and/or a member of senior management of ProQR Therapeutics N.V., a public company with limited liability (naamloze vennootschap) (the “Company”). The ~~number~~ undersigned understands that Evercore Group L.L.C. and Cxxxxx Fxxxxxxxxx & Co. (the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”) with the Company providing for a public offering (the “Public Offering”) of ~~Securities~~ the ordinary shares of the Company (the “Ordinary Shares”). In recognition of the benefit that such an offering will confer upon the undersigned, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned agrees with each underwriter to be ~~sold~~ named in the Underwriting Agreement (collectively, the “Underwriters”) that, during the period beginning on the date hereof and ending on the date that is 60 days from the date of the Underwriting Agreement (the “Lock-Up Period”), the undersigned will not, without the prior written consent of the Representatives, directly or indirectly, (i) offer, 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 for the sale of, or otherwise dispose of or transfer any Ordinary Shares or any securities convertible into or exchangeable or exercisable for Ordinary Shares, including depository receipts of the Company, whether now owned or hereafter acquired by the ~~Selling Shareholder~~ undersigned or with respect to which the undersigned has or hereafter acquires the power of disposition (collectively, the “Lock-Up Securities”), or exercise any right with respect to the registration of any of the Lock-Up Securities, or file or cause to be filed any registration statement in connection therewith, under the Securities Act of 1933, as amended, or (ii) enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Lock-Up Securities, whether any such swap or transaction is to be settled by delivery of Ordinary Shares or other securities, in cash or otherwise. Notwithstanding the foregoing, and subject to the conditions below, the undersigned may transfer the Lock-Up Securities during the Lock-Up Period without the prior written consent of the Representatives, provided that (1) in the case of clauses (i), (ii), (iii), (iv), (v) and (vi) below, the Representatives receive a signed agreement for the balance of the Lock-Up Period from each donee, trustee, distributee, or transferee, as the case may be, stating that such person is receiving and holding the Lock-Up Securities subject to the provisions of this lock-up agreement, (2) in the case of clauses (i), (ii), (iii), (iv), (v) and (vi), any such transfer shall not involve a disposition for value, (3) in the case of clauses (i), (ii), (iii), (vi) and (vii) below, such transfers are not required to be ~~65,000. The settlement date / closing time shall be April 3~~reported with the U.S. Securities and Exchange Commission (“SEC”) and do not trigger any filing or reporting obligation or require any public announcement during the Lock-Up Period under any other applicable laws, ~~2012. 1. NONE~~and (4) in the case of clauses (i), (ii), (iii), (vi) and (vii) below, the undersigned does not otherwise voluntarily effect any public filing or report regarding such transfers during the Lock-Up Period: (i) ~~Each of the Registration Statement and any post-effective amendment thereto has been declared effective by the Commission under the 1933 Act. Each preliminary prospectus~~as a bona fide gift or gifts, each Issuer Free Writing Prospectus and the Prospectus have been filed as required by Rule 424(b) (without reliance on Rule 424(b)(8)) and Rule 433, as applicable, within the time period prescribed by, and in compliance with, the 1933 Act Regulations. To the best of such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued under the 1933 Act, no order preventing or suspending the use of any preliminary prospectus or the Prospectus or any amendment or supplement thereto has been issued and no proceedings for ~~any of those purposes have been instituted or are pending or contemplated by the Securities and Exchange Commission.~~bona fide estate planning purposes; (ii) ~~The Registration Statement,~~ to any trust or limited family partnership for the ~~General Disclosure Package and the Prospectus and each amendment~~ direct or supplement to the Registration Statement, the General Disclosure Package and the Prospectus, as of their respective effective or deemed effective or issue dates (other than (1) the financial statements (including notes thereto) and supporting schedules included therein or omitted therefrom and (2) the documents incorporated or deemed incorporated therein by reference, as to which such counsel need express no opinion), complied as to form in all material respects with the requirements indirect benefit of the ~~1933 Act and~~ undersigned or the ~~1933 Act Regulations.~~immediate family of the undersigned or to any entity directly or indirectly wholly owned by the undersigned or the immediate family of the undersigned (for purposes of this lock-up agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin); (iii) ~~The documents incorporated~~ as a distribution to partners, members, other shareholders or ~~deemed incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus (~~other than the financial statements (including notes thereto) and supporting schedules included therein or omitted therefrom, as to which we express no opinion), when they were filed with the Commission, complied as to form in all material respects with the requirements equity holders of the ~~1934 Act and 1934 Act Regulations.~~undersigned (or their equivalents under the jurisdiction of the organization of the undersigned) or, if the undersigned is a trust, to the beneficiaries of the undersigned; (iv) ~~No filing with~~by wxxx, other testamentary document or ~~authorization~~intestate succession to the legal representative, ~~approval~~heir, ~~consent, license, order, registration, qualification~~ beneficiary or ~~decree of, any Governmental Entity is necessary or required for the Company to enter into, or perform their respective obligations under, the Operative Documents or the consummation~~ a member of the transactions contemplated in the Underwriting Agreement, except or such as have been already obtained or as may be required under the 1933 Act, the 1933 Act Regulations, the securities laws of any state or non-U.S. jurisdiction or the rules of FINRA or by the Bank’s primary regulator for purposes of Section 7(e) immediate family of the ~~Underwriting Agreement.~~undersigned upon the death of the undersigned; (v) ~~To the best~~ by operation of ~~such counsel’s knowledge~~law, there are no persons with registration rights or other similar rights to have any securities registered for sale pursuant to the Registration Statement or otherwise registered for sale or sold by the Company under the 1933 Act pursuant to the Underwriting Agreement.including domestic relations orders; (vi) The Company is not required, or upon consummation of the transactions contemplated in the Underwriting Agreement will be required, to register as an “investment company” under the 1940 Act. Although we assume no responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, General Disclosure Package or Prospectus, nothing has come to the ~~attention of such counsel that has lead such counsel to believe that (1) the Registration Statement~~ undersigned’s affiliates or any amendment thereto, including any information deemed to be a part thereof pursuant to Rule 430B, at the time such Registration Statement or any such amendment became effective or as of the “new effective date,” 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, (2) the General Disclosure Package, at the Applicable Time, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of circumstances under which they were made, not misleading or (3) the Prospectus or any amendment or supplement thereto, at the time the Prospectus was issued, at the time any such amended or supplemented prospectus was issued or at the Closing Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; it being understood that such counsel makes no statement as to any ~~financial statements (including notes thereto), supporting schedules and~~ investment fund or other ~~financial data included in the Registration Statement, the General Disclosure Package and the Prospectus~~ entity controlled or omitted therefrom. 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 managed by, or ~~that it is otherwise subject to~~under common control or management by, or any ~~treatise, written policy~~ investment fund or other ~~document relating to legal opinions, including, without limitation~~entity that controls or manages, the Legal Opinion Accord of the ABA Section of Business Law (1991). (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, to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and to enter into and perform its obligations under, and to consummate the transactions contemplated under, the Operative Documents. (iii) The Company is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended. (iv) The Significant Subsidiary has been duly organized and is validly existing and in good standing under the laws of the jurisdiction of its organization, has the requisite corporate power and authority to own, lease and operate its properties, to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and. To such counsel’s knowledge, except as otherwise described in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding shares of capital stock of or other equity interests in the Significant Subsidiary have been duly authorized and validly issued, are fully paid and non-assessable and are owned by the Company, directly or through subsidiaries, to the best of such counsel’s knowledge free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity. To such counsel’s knowledge, none of the outstanding shares of capital stock of or other equity interests in the Significant Subsidiary were issued in violation of the preemptive or similar rights of any securityholder of such Significant Subsidiary or any other entity. (v) The deposit accounts of each of the Company’s banking subsidiaries are insured up to the applicable limits by the Deposit Insurance Fund of the FDIC to the fullest extent permitted by law and the rules and regulations of the FDIC, and, to the best of such counsel’s knowledge, no proceeding for the revocation or termination of such insurance is pending or threatened. (vi) To the best of such counsel’s knowledge, except as described in the Registration Statement, the General Disclosure Package and the Prospectus, (A) neither the Company nor any of its subsidiaries is subject or party to, or has received any notice or advice from any Regulatory Agency that any of them are reasonably expected to become subject or party to any investigation with respect to, any Regulatory Agreement, (B) neither the Company nor any of its subsidiaries has been advised by any Regulatory Agency that it is considering issuing or requesting any Regulatory Agreement, (C) there is no unresolved violation, criticism or exception by any Regulatory Agency with respect to any report or statement relating to any examinations of the Company or any of its subsidiaries and (D) the Company and its subsidiaries are in compliance in all material respects with all laws administered by the Regulatory Agencies.undersigned; (vii) ~~Each~~ in connection with the exercise, including by “net” exercise, of any options or warrants to acquire Ordinary Shares or the ~~Company and the Significant Subsidiary (A) is duly qualified to transact business and is in good standing~~ conversion of any convertible security into Ordinary Shares, in each ~~jurisdiction in which such qualification is required, whether by reason of the ownership~~ case that are referred to or leasing of property or the conduct of business and (B) holds all Governmental Licenses issued by Governmental Entities necessary to conduct the business now operated by them, except where the failure so to qualify or to be in good standing or to hold any such Governmental Licenses would not, singly or described in the ~~aggregate~~prospectus for the Public Offering, ~~result in a Material Adverse Effect.~~so long as the Ordinary Shares received upon such exercise or conversion shall remain subject to the terms of this lock-up agreement; or (viii) The outstanding shares of capital stock of the Company, including the Securities, have been duly authorized and validly issued and are fully paid and non-assessable. To such counsel’s knowledge, none of the outstanding shares of capital stock of the Company, including the Securities, were issued in ~~violation of the preemptive~~ connection with a merger or ~~other similar rights of any securityholder~~ sale of the Company ~~or any other entity. (ix) The Underwriting Agreement has been duly authorized, executed and delivered by each~~ pursuant to which the shareholders of the Company ~~and the Bank. (x) The Certificate of Designations for the Securities has been duly filed with the Secretary of State~~ immediately prior to such transaction own less than 50% of the State of Delaware. The form of certificate representing the Securities complies in all material respects with the requirements of Delaware state law, the Charter and the By-Laws. (xi) To the best of such counsel’s knowledge, except as described in the Registration Statement, the General Disclosure Package and the Prospectus, there is no action, suit, proceeding, inquiry or investigation before or brought by any Governmental Entity now pending or threatened against or affecting the Company or any of its subsidiaries which could, singly or in the aggregate, result in a Material Adverse Effect, or which might reasonably be expected to materially and adversely affect their respective properties, assets or operations or the consummation voting power of the ~~transactions contemplated~~ resulting or acquiring corporation or entity after such transaction (it being further understood that this lock-up agreement shall not restrict the undersigned from entering into any agreement or arrangement in the Underwriting Agreement or the performance by the Company of its obligations under the Operative Documents. The aggregate of all pending legal or governmental proceedings known to such counsel to which the Company or any of its subsidiaries are a party or of which any of their respective properties, assets or operations are the subject which are not described in the Registration Statement, the General Disclosure Package and the Prospectusconnection therewith, including ~~ordinary routine litigation incidental~~ an agreement to ~~the business, would not, singly or~~ vote in the aggregate, result in a Material Adverse Effect. (xii) The information in the Registration Statement, the General Disclosure Package and the Prospectus under “Description of Capital Stock,” “Description of Series A Preferred Stock” and “Certain Material United States Federal Income Tax Considerations” or comparable captions and the information in the Registration Statement under “Item 15—Indemnification of Officers and Directors,” in each case to the extent that such information constitutes matters of law, summaries of legal matters, the Charter, By-Laws or legal proceedings, or legal conclusions, has been reviewed by such counsel and is correct in all material respects. (xiii) All descriptions in the Registration Statement, the General Disclosure Package and the Prospectus of contracts and other documents to which the Company or any of its subsidiaries are a party are accurate in all material respects. To the best of such counsel’s knowledge, there are no contracts, instruments or other documents required to be described in the Registration Statement, any preliminary prospectus or the Prospectus or to be filed as exhibits to the Registration Statement which have not been so described and filed as required. (xiv) To the best of such counsel’s knowledge, the execution, delivery and performance of the Operative Documents and the consummation of the transactions contemplated in the Underwriting Agreement and in the Registration Statement, [including the purchase by the Company of Securities in the offering,] the General Disclosure Package and the Prospectus and compliance by the Company with its obligations under the Operative Documents 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 favor of, or ~~default~~ tender Ordinary Shares or ~~Repayment Event (as defined~~ other securities of the Company in, any such transaction or taking any other action in ~~____) under, or result in the creation or imposition of~~ connection with any ~~lien, charge or encumbrance upon~~such transaction).

Appears in 1 contract

Samples: Underwriting Agreement (ProQR Therapeutics N.V.)

Appears in 1 contract

Samples: Underwriting Agreement (CorEnergy Infrastructure Trust, Inc.)

Appears in 1 contract

Samples: Underwriting Agreement (Rexford Industrial Realty, Inc.)

Appears in 1 contract

Samples: Underwriting Agreement (Verisk Analytics, Inc.)

Appears in 1 contract

Samples: Underwriting Agreement (Armada Hoffler Properties, Inc.)

Appears in 1 contract

Samples: Purchase Agreement (Wintrust Financial Corp)

Appears in 1 contract

Samples: Underwriting Agreement (Danaher Corp /De/)

Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof. If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the Underwriters, the ~~Company, the Bank~~ Company and the ~~Selling Shareholder~~ Operating Partnership in accordance with its terms. Very truly yours, ~~FIRST FINANCIAL HOLDINGS~~XXXXXXX INDUSTRIAL REALTY, INC. By: /s/ Xxxxxx ~~X. Xxxxxxxxxx~~ Xxxxxxxxx Name: Xxxxxx ~~X. Xxxxxxxxxx~~ Xxxxxxxxx Title: ~~EVP and~~ Co-Chief ~~Financial~~ Executive Officer ~~FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF CHARLESTON~~ By: /s/ Xxxxxxx Xxxxxxx Name: Xxxxxxx X. Xxxxxxx Title: Co-Chief Executive Officer XXXXXXX INDUSTRIAL REALTY, L.P. By: Xxxxxxx Industrial Realty, Inc., its general partner By: /s/ Xxxxxx ~~X. Xxxxxxxxxx~~ Xxxxxxxxx Name: Xxxxxx ~~X. Xxxxxxxxxx~~ Xxxxxxxxx Title: ~~EVP and~~ Co-Chief ~~Financial~~ Executive Officer ~~UNITED STATES DEPARTMENT OF THE TREASURY, as Selling Shareholder~~ By: /s/ ~~Xxxxxx Xxxxx~~ Xxxxxxx Xxxxxxx Name: ~~Xxxxxx Xxxxx~~ Xxxxxxx X. Xxxxxxx Title: Co-Chief ~~Investment~~ Executive Officer [Signature page to Underwriting Agreement.] CONFIRMED AND ACCEPTED, as of the date first above written: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX ~~By: XXXXXXX LYNCH, PIERCE, XXXXXX~~ INCORPORATED By /s/ Xxxx Xxxxx FBR CAPITAL MARKETS & ~~XXXXX By:~~ CO. By /s/ Xxxxxxx X. Xxxxxx XXXXX FARGO SECURITIES, LLC By /s/ Xxxxx Xxxxxx X.X. XXXXXX SECURITIES LLC By /s/ Xxxxx Xxxx For ~~itself~~ themselves and as ~~Representative~~ Representatives of the other Underwriters named in Schedule A hereto. [Signature page to Underwriting Agreement.] The initial public offering price per share for the Securities shall be $14.00. The purchase price per share for the Securities to be paid by the several Underwriters shall be $~~860.4073~~13.02, being an amount equal to the initial public offering price set forth ~~in Schedule B~~ above less $~~13.1027~~ 0.98 per share, subject to adjustment in accordance with Section 2(b) for dividends or distributions declared by the Company and payable on the Initial Securities but not payable on the Option Securities. Name of Underwriter Number of Initial Securities Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ~~60,125 Xxxxxx Xxxxxxxx, LLC 1,625 XX Xxxx Capital, LLC 1,625 TBC~~ 5,440,000 FBR Capital Markets & Co. 3,680,000 Xxxxx Fargo Securities, LLC ~~1,625~~ 3,680,000 X.X. Xxxxxx Securities LLC 2,000,000 PNC Capital Markets LLC 640,000 RBS Securities Inc. 560,000 Total ~~65,000~~ 16,000,000 1. The Company is selling 16,000,000 shares of Common Stock. 2. The Company has granted an option to the Underwriters, severally and not jointly, to purchase up to an additional 2,400,000 shares of Common Stock. 3. The initial public offering price per share for the Securities shall be $~~873.51. The number of Securities to be sold by the Selling Shareholder shall be 65,000. The settlement date / closing time shall be April 3, 2012~~14.00. 1. ~~NONE~~Contribution Agreement by and among Xxxxxxx Industrial Realty, L.P. and Xxxxxxx Industrial Fund I, LLC, dated as of July 24, 2013. ~~(i) Each~~ 2. Contribution Agreement by and among Xxxxxxx Industrial Realty, L.P. and Xxxxxxx Industrial Fund II, LLC, dated as of July 24, 2013. 3. Contribution Agreement by and among Xxxxxxx Industrial Realty, L.P. and Xxxxxxx Industrial Fund III, LLC, dated as of July 24, 2013. 4. Contribution Agreement by and among Xxxxxxx Industrial Realty, L.P. and Xxxxxxx Industrial Fund IV, LLC, dated as of July 24, 2013. 5. Contribution Agreement by and among Xxxxxxx Industrial Realty, L.P. and Xxxxx Xxxxx, as Special Trustee of the ~~Registration Statement~~ Declaration of Trust of Xxxxxxxx Xxxxx Trust, dated August 16, 1979, as amended, dated as of July 24, 2013. 6. Contribution Agreement by and ~~any post-effective amendment thereto has been declared effective~~ among Xxxxxxx Industrial Realty, L.P. and the Contributors named therein, dated as of July 24, 2013. 7. Contribution Agreement by and among Xxxxxxx Industrial Realty, L.P. and Xxxxxxxxxxx Xxxx, dated as of July 24, 2013. 1. Agreement and Plan of Merger by and among Xxxxxxx Industrial Realty, Inc. and Xxxxxxx Industrial Fund V REIT, LLC, dated as of July 24, 2013. 2. Agreement and Plan of Merger by and among Xxxxxxx Industrial Realty, Inc., Xxxxxxx Industrial Realty, L.P. and Xxxxxxx Industrial Fund V, LP, dated as of July 24, 2013. 3. Agreement and Plan of Merger by and among Xxxxxxx Industrial Realty, Inc., Xxxxxxx Industrial Realty, L.P., Xxxxxxx Fund V Manager Sub LLC and Xxxxxxx Sponsor V LLC, dated as of July 24, 2013. 4. Agreement and Plan of Merger by and among Xxxxxxx Industrial Realty, Inc., Xxxxxxx Industrial Realty, L.P., Xxxxxxx Sponsor V Merger Sub LLC and Xxxxxxx Fund V Manager LLC, dated as of July 24, 2013. 5. Agreement and Plan of Merger by and among Xxxxxxx Industrial Realty, Inc., Xxxxxxx Industrial Realty, L.P., Xxxxxxx Industrial Merger Sub LLC and Xxxxxxx Industrial LLC, dated as of July 24, 2013. 1. Representation, Warranty and Indemnity Agreement by and among Xxxxxxx Industrial Realty, Inc., Xxxxxxx Industrial Realty, L.P., Xxxxxxx Xxxxx, Xxxxxx Xxxxxxxxx and Xxxxxxx X. Xxxxxxx, dated as of July 24, 2013. 1. Indemnity Escrow Agreement by and among Xxxxxxx Industrial Realty, Inc., Xxxxxxx Industrial Realty, L.P., Xxxxxxx Xxxxx, Xxxxxx Xxxxxxxxx and Xxxxxxx X. Xxxxxxx, dated as of July 24, 2013. Xxxxxxx Xxxxx Xxxxxx Xxxxxxxxx Xxxxxxx X. Xxxxxxx Xxxxx Xxxx Xxxxxx X. Xxxxx Xxxxxx X. Xxxxx Xxxxxx X. Good Xxxx X. Xxxxxx Xxxxxxx Xxxxx 1. Credit Agreement dated July 24, 2013, among Xxxxxxx Industrial Realty, L.P., as Borrower, Xxxxxxx Industrial Realty, Inc., as Parent, Bank of America, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer, The Other Lenders Party Thereto, and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, as Sole Lead Arranger and Sole Bookrunner. 2. Term Loan Agreement, dated July 24, 2013, among RIF I—Xxx Xxxxxx, LLC, RIF I—Xxxxx Road, LLC, RIF I—Walnut, LLC, RIF I—Oxnard, LLC, RIF II—Kaiser, LLC and RIF III—Irwindale, LLC, collectively as Borrower, and Bank of America, N.A., as Lender. 3. Unconditional Guaranty Agreement, executed as of July 24, 2013, by the ~~Commission under~~ Subsidiary Guarantors party thereto, for the 1933 Act. Each preliminary prospectus, each Issuer Free Writing Prospectus and the Prospectus have been filed as required by Rule 424(b) (without reliance on Rule 424(b)(8)) and Rule 433, as applicable, within the time period prescribed by, and in compliance with, the 1933 Act Regulations. To the best of such counsel’s knowledge, no stop order suspending the effectiveness benefit of the ~~Registration Statement or any post-effective amendment thereto has been issued under~~ Credit Parties (as defined therein). I, Xxxxx Xxxx, Chief Financial Officer (“CFO”) of Xxxxxxx Industrial Realty, Inc., a Maryland corporation (the 1933 Act, no order preventing or suspending the use of any preliminary prospectus or the Prospectus or any amendment or supplement thereto has been issued and no proceedings for any of those purposes have been instituted or are pending or contemplated by the Securities and Exchange Commission. (ii) The Registration Statement, the General Disclosure Package and the Prospectus and each amendment or supplement to the Registration Statement, the General Disclosure Package and the Prospectus, as of their respective effective or deemed effective or issue dates (other than (1) the financial statements (including notes thereto) and supporting schedules included therein or omitted therefrom and (2) the documents incorporated or deemed incorporated therein by reference, as to which such counsel need express no opinion“Company”), ~~complied as~~ pursuant to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations. (iii) The documents incorporated or deemed incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus (other than the financial statements (including notes thereto) and supporting schedules included therein or omitted therefrom, as to which we express no opinion), when they were filed with the Commission, complied as to form in all material respects with the requirements of the 1934 Act and 1934 Act Regulations. (iv) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any Governmental Entity is necessary or required for the Company to enter into, or perform their respective obligations under, the Operative Documents or the consummation of the transactions contemplated in the Underwriting Agreement, ~~except or such~~ dated as ~~have been already obtained or~~ of July 18, 2013 (the “Underwriting Agreement”), among the Company, Xxxxxxx Industrial Realty, L.P., a Maryland limited partnership, and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, FBR Capital Markets & Co., Xxxxx Fargo Securities, LLC and X.X. Xxxxxx Securities LLC, on behalf of the several underwriters named on Schedule A to the Underwriting Agreement (the “Underwriters”), do hereby certify, in my capacity as ~~may be required under~~ CFO, on behalf of the ~~1933 Act,~~ Company to the ~~1933 Act Regulations,~~ Underwriters as of the ~~securities laws of any state or non-U.S. jurisdiction or~~ date first written above that: 1. I am providing this certificate in connection with the ~~rules of FINRA or~~ offering (the “Offering”) by the ~~Bank’s primary regulator for purposes~~ Company of ~~Section 7(e)~~ its shares of common stock, $0.01 par value per share, pursuant to the Underwriting Agreement. Capitalized terms used herein with definition have the meanings ascribed to them in the Underwriting Agreement. ~~(v) To~~ 2. I have reviewed and supervised the best of such counsel’s knowledge, there are no persons with registration rights or other similar rights to have any securities registered for sale pursuant to the Registration Statement or otherwise registered for sale or sold by the Company under the 1933 Act pursuant to the Underwriting Agreement. (vi) The Company is not required, or upon consummation preparation of the transactions contemplated in the Underwriting Agreement will be required, to register as an “investment company” under the 1940 Act. Although we assume no responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, General Disclosure Package or Prospectus, nothing has come to the attention of such counsel that has lead such counsel to believe that (1) the Registration Statement or any amendment thereto, including any information deemed to be a part thereof pursuant to Rule 430B, at the time such Registration Statement or any such amendment became effective or as of the “new effective date,” 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, (2) the General Disclosure Package, at the Applicable Time, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of circumstances under which they were made, not misleading or (3) the Prospectus or any amendment or supplement thereto, at the time the Prospectus was issued, at the time any such amended or supplemented prospectus was issued or at the Closing Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; it being understood that such counsel makes no statement as to any financial statements ~~(including notes thereto), supporting schedules~~ and other financial data included in the latest Preliminary Prospectus included in the Registration ~~Statement,~~ Statement or filed pursuant to Rule 424(b) prior to or on the ~~General Disclosure Package and~~ date hereof (the Prospectus or omitted therefrom. 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“Preliminary Prospectus”). ~~(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under~~ 3. In connection with the ~~laws~~ drafting of the ~~State of Delaware.~~ Preliminary Prospectus, I have reviewed the circled information contained on the attached Exhibit A (~~ii) The Company has corporate power and authority to own~~the “Circled Information”), ~~lease and operate its properties, to conduct its business as described~~ which is included in the Registration Statement, the General Disclosure Package and the Prospectus and to enter into and perform its obligations under, and to consummate the transactions contemplated under, the Operative Documents. (iii) The Company is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended. (iv) The Significant Subsidiary has been duly organized and is validly existing and in good standing under the laws of the jurisdiction of its organization, has the requisite corporate power and authority to own, lease and operate its properties, to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus andPreliminary Prospectus. To such counsel’s knowledge, except as otherwise described in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding shares of capital stock of or other equity interests in the Significant Subsidiary have been duly authorized and validly issued, are fully paid and non-assessable and are owned by the Company, directly or through subsidiaries, to the best of such counsel’s knowledge free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity. To such counsel’s knowledge, none of the outstanding shares of capital stock of or other equity interests in the Significant Subsidiary were issued in violation of the preemptive or similar rights of any securityholder of such Significant Subsidiary or any other entity. (v) The deposit accounts of each of the Company’s banking subsidiaries are insured up to the applicable limits by the Deposit Insurance Fund of the FDIC to the fullest extent permitted by law and the rules and regulations of the FDIC, and, to the best of such counsel’s knowledge, no proceeding for the revocation or termination of such insurance is pending or threatened. (vi) To the best of ~~such counsel’s knowledge, except as described in the Registration Statement~~my knowledge after reasonable investigation, the ~~General Disclosure Package~~ Circled Information is true, correct and accurate, in each case in all material respects. This certificate is being furnished to the ~~Prospectus, (A) neither the Company nor any of its subsidiaries is subject or party to, or has received any notice or advice from any Regulatory Agency that any of~~ Underwriters solely to assist them ~~are reasonably expected to become subject or party to any~~ in conducting and documenting their investigation with respect to, any Regulatory Agreement, (B) neither the Company nor any of its subsidiaries has been advised by any Regulatory Agency that it is considering issuing or requesting any Regulatory Agreement, (C) there is no unresolved violation, criticism or exception by any Regulatory Agency with respect to any report or statement relating to any examinations of the ~~Company or any~~ affairs of ~~its subsidiaries and (D)~~ the Company and its subsidiaries ~~are~~ in ~~compliance in all material respects~~ connection with ~~all laws administered by~~ the ~~Regulatory Agencies. (vii) Each of~~ Offering. This certificate shall not be used, quoted or otherwise referred to without the Company and the Significant Subsidiary (A) is duly qualified 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 and (B) holds all Governmental Licenses issued by Governmental Entities necessary to conduct the business now operated by them, except where the failure so to qualify or to be in good standing or to hold any such Governmental Licenses would not, singly or in the aggregate, result in a Material Adverse Effect. (viii) The outstanding shares of capital stock prior written consent of the Company, including the Securities, have been duly authorized and validly issued and are fully paid and non-assessable. To such counsel’s knowledge, none of the outstanding shares of capital stock of the Company, including the Securities, were issued in violation of the preemptive or other similar rights of any securityholder of the Company or any other entity. (ix) The Underwriting Agreement has been duly authorized, executed and delivered by each of the Company and the Bank. (x) The Certificate of Designations for the Securities has been duly filed with the Secretary of State of the State of Delaware. The form of certificate representing the Securities complies in all material respects with the requirements of Delaware state law, the Charter and the By-Laws. (xi) To the best of such counsel’s knowledge, except as described in the Registration Statement, the General Disclosure Package and the Prospectus, there is no action, suit, proceeding, inquiry or investigation before or brought by any Governmental Entity now pending or threatened against or affecting the Company or any of its subsidiaries which could, singly or in the aggregate, result in a Material Adverse Effect, or which might reasonably be expected to materially and adversely affect their respective properties, assets or operations or the consummation of the transactions contemplated in the Underwriting Agreement or the performance by the Company of its obligations under the Operative Documents. The aggregate of all pending legal or governmental proceedings known to such counsel to which the Company or any of its subsidiaries are a party or of which any of their respective properties, assets or operations are the subject which are not described in the Registration Statement, the General Disclosure Package and the Prospectus, including ordinary routine litigation incidental to the business, would not, singly or in the aggregate, result in a Material Adverse Effect. (xii) The information in the Registration Statement, the General Disclosure Package and the Prospectus under “Description of Capital Stock,” “Description of Series A Preferred Stock” and “Certain Material United States Federal Income Tax Considerations” or comparable captions and the information in the Registration Statement under “Item 15—Indemnification of Officers and Directors,” in each case to the extent that such information constitutes matters of law, summaries of legal matters, the Charter, By-Laws or legal proceedings, or legal conclusions, has been reviewed by such counsel and is correct in all material respects. (xiii) All descriptions in the Registration Statement, the General Disclosure Package and the Prospectus of contracts and other documents to which the Company or any of its subsidiaries are a party are accurate in all material respects. To the best of such counsel’s knowledge, there are no contracts, instruments or other documents required to be described in the Registration Statement, any preliminary prospectus or the Prospectus or to be filed as exhibits to the Registration Statement which have not been so described and filed as required. (xiv) To the best of such counsel’s knowledge, the execution, delivery and performance of the Operative Documents and the consummation of the transactions contemplated in the Underwriting Agreement and in the Registration Statement, [including the purchase by the Company of Securities in the offering,] the General Disclosure Package and the Prospectus and compliance by the Company with its obligations under the Operative Documents 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 ____) under, or result in the creation or imposition of any lien, charge or encumbrance upon

Appears in 1 contract

Samples: Underwriting Agreement (Rexford Industrial Realty, Inc.)

Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof. If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company and the Selling Stockholder a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the Underwriters, the Company, the ~~Bank~~ Operating Partnership and the Selling ~~Shareholder~~ Stockholder in accordance with its terms. Very truly yours, ~~FIRST FINANCIAL HOLDINGS~~BRIGHTSPIRE CAPITAL, INC. ~~By:~~ By /s/ Xxxxx X. Xxxxxx ~~X. Xxxxxxxxxx~~ Name: Xxxxx X. Xxxxxx ~~X. Xxxxxxxxxx~~ Title: ~~EVP and Chief Financial Officer FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF CHARLESTON By:~~ Executive Vice President BRIGHTSPIRE CAPITAL OPERATING COMPANY, LLC By /s/ Xxxxx X. Xxxxxx ~~X. Xxxxxxxxxx~~ Name: Xxxxx X. Xxxxxx ~~X. Xxxxxxxxxx~~ Title: ~~EVP and Chief Financial Officer UNITED STATES DEPARTMENT OF THE TREASURY~~Vice President DIGITALBRIDGE OPERATING COMPANY, ~~as Selling Shareholder By:~~ LLC By /s/ ~~Xxxxxx~~ Xxxxx Xx Name: ~~Xxxxxx~~ Xxxxx Xx Title: ~~Chief Investment Officer~~ Vice President CONFIRMED AND ACCEPTED, as of the date first above written: ~~XXXXXXX LYNCH, PIERCE,~~ X.X. XXXXXX ~~& XXXXX~~ SECURITIES LLC BARCLAYS CAPITAL INC. By: ~~XXXXXXX LYNCH, PIERCE,~~ X.X. XXXXXX ~~& XXXXX~~ SECURITIES LLC By /s/ Xxxxxxx Xxxxxx Authorized Signatory By: BARCLAYS CAPITAL INC. By /s/ ~~Xxxxxxx X. Xxxxx~~ Xxxxxx Xxxxxx Authorized Signatory For ~~itself~~ themselves and as ~~Representative~~ Representatives of the other Underwriters named in Schedule A hereto. The initial public offering price per share for the Securities shall be $6.00. The purchase price per share for the Securities to be paid by the several Underwriters shall be $~~860.4073~~5.76, being an amount equal to the initial public offering price set forth ~~in Schedule B~~ above less $~~13.1027~~ 0.24 per share, subject to adjustment in accordance with Section 2(b) for dividends or distributions declared by the Company and payable on the Initial Securities but not payable on the Option Securities. Name of Underwriter Number of Initial Securities ~~Xxxxxxx Lynch, Pierce,~~ Number of Optional Securities X.X. Xxxxxx ~~& Xxxxx Incorporated 60,125 Xxxxxx Xxxxxxxx,~~ Securities LLC ~~1,625 XX Xxxx Capital, LLC 1,625 TBC~~ 13,878,040 2,081,706 Barclays Capital Inc. 10,408,530 1,561,278 BofA Securities, ~~LLC 1,625~~ Inc. 3,035,821 455,373 X. Xxxxx Securities, Inc. 1,517,911 227,687 Xxxxxxx Xxxxx & Associates, Inc. 1,517,911 227,687 Total ~~65,000~~ 30,358,213 4,553,731 1. The Selling Stockholder is selling 30,358,213 shares of Common Stock. 2. The Selling Stockholder has granted an option to the Underwriters, severally and not jointly, to purchase up to an additional 4,553,731 shares of Common Stock. 3. The initial public offering price per share for the Securities shall be $~~873.51~~6.00. ~~The number~~ None. Xxxx X. Xxxxxxxxxxx Director Xxxxxx X. Xxxxxxxx Director Xxxxxxxxx X. Xxxx Director Xxx X. Xxxxxxx Director Xxxxxxxxx X. Xxxx Director Xxxxxxx X. Xxxxxx Chief Executive Officer and Director Xxxxxx X. Xxxx Chief Operating Officer and President Xxxxx X. Xxxxxx General Counsel, Secretary and Executive VicePresident Xxxxx X. Xxxxxxxx Chief Financial Officer, Treasurer and Executive Vice President DigitalBridge Operating Company, LLC CLNC Manager, LLC (i) [ ], 2023 X.X. Xxxxxx Securities LLC Barclays Capital Inc. as Representatives of ~~Securities~~ the several Underwriters to be ~~sold~~ named in the within-mentioned Underwriting Agreement c/o X.X. Xxxxxx Securities LLC 000 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 c/o Barclays Capital Inc. 000 0xx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 Re: Proposed Public Offering by BrightSpire Capital, Inc. Dear Sirs: The undersigned, a stockholder [and an officer and/or director] of BrightSpire Capital, Inc., a Maryland corporation (the “Company”), understands that X.X. Xxxxxx Securities LLC (“X.X. Xxxxxx”) and Barclays Capital Inc. (“Barclays”) propose(s) to enter into an Underwriting Agreement (the “Underwriting Agreement”) with the Company and the Selling Stockholder providing for the public offering of shares of the Company’s Class A common stock, par value $0.01 per share (the “Common Stock”). In recognition of the benefit that such an offering will confer upon the undersigned as a stockholder [and an officer and/or director] of the Company, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned agrees with each underwriter to be named in the Underwriting Agreement that, during the period beginning on the date hereof and ending on the date that is 45 days from the date of the Underwriting Agreement (the “Expiration Date”) (subject to extensions as discussed below), the undersigned will not, without the prior written consent of X.X. Xxxxxx and Barclays, (i) directly or indirectly, offer, 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 (together, “Transfer”) any shares of the Company’s Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, whether now owned or hereafter acquired by the ~~Selling Shareholder~~ undersigned or with respect to which the undersigned has or hereafter acquires the power of disposition (collectively, the “Lock-Up Securities”), or exercise any right with respect to the registration of any of the Lock-up Securities, or file or cause to be filed any registration statement in connection therewith, under the Securities Act of 1933, as amended, or (ii) enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Lock-Up Securities, whether any such swap or transaction is to be settled by delivery of Common Stock or other securities, in cash or otherwise. Notwithstanding the foregoing, and subject to the conditions below, the undersigned may transfer the Lock-Up Securities without the prior written consent of X.X. Xxxxxx and Barclays, provided that (a) with respect to Transfer pursuant to clause (i), (ii), (iii), (iv) and (v) below, (1) X.X. Xxxxxx and Barclays Capital Inc. receive a signed lock-up agreement for the balance of the lockup period from each donee, trustee, distributee, or transferee, as the case may be, (2) any such Transfer shall not involve a disposition for value, (3) such Transfers are not required to be ~~65,000. The settlement date / closing time~~ reported with the Securities and Exchange Commission on Form 4 (except for bona fide gifts) in accordance with Section 16 of the Securities Exchange Act of 1934, as amended, and (4) the undersigned does not otherwise voluntarily effect any public filing or report regarding such Transfers, (b) with respect to Transfers pursuant to clause (vi) below, any required filing reporting any such Transfer with the Commission pursuant to Section 16 of the 1934 Act shall briefly note the applicable circumstances that cause such exception to apply and explain that such filing relates solely to Transfers within such exception, unless, in the case of clause (vi), such disclosure would be ~~April 3~~prohibited by any applicable law, ~~2012. 1. NONE~~regulation or order of a court or regulatory agency (provided that in no event shall the undersigned voluntarily effect any public filing or report regarding such Transfers): (i) Each of the Registration Statement and any post-effective amendment thereto has been declared effective by the Commission under the 1933 Act. Each preliminary prospectus, each Issuer Free Writing Prospectus and the Prospectus have been filed as required by Rule 424(b) (without reliance on Rule 424(b)(8)) and Rule 433, as applicable, within the time period prescribed by, and in compliance with, the 1933 Act Regulations. To the best of such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement a bona fide gift or any post-effective amendment thereto has been issued under the 1933 Act, no order preventing or suspending the use of any preliminary prospectus or the Prospectus or any amendment or supplement thereto has been issued and no proceedings for any of those purposes have been instituted or are pending or contemplated by the Securities and Exchange Commission.gifts; or (ii) ~~The Registration Statement,~~ to any trust for the ~~General Disclosure Package and the Prospectus and each amendment~~ direct or supplement to the Registration Statement, the General Disclosure Package and the Prospectus, as of their respective effective or deemed effective or issue dates (other than (1) the financial statements (including notes thereto) and supporting schedules included therein or omitted therefrom and (2) the documents incorporated or deemed incorporated therein by reference, as to which such counsel need express no opinion), complied as to form in all material respects with the requirements indirect benefit of the ~~1933 Act and~~ undersigned or the ~~1933 Act Regulations.~~immediate family of the undersigned (for purposes of this lock-up agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin); or (iii) ~~The documents incorporated~~ by will or ~~deemed incorporated by reference in~~ intestacy upon the Registration Statement, the General Disclosure Package and the Prospectus (other than the financial statements (including notes thereto) and supporting schedules included therein or omitted therefrom, as to which we express no opinion), when they were filed with the Commission, complied as to form in all material respects with the requirements death of the ~~1934 Act and 1934 Act Regulations.~~undersigned; or (iv) ~~No filing with~~as a distribution to limited partners, members or ~~authorization~~stockholders of the undersigned (including, ~~approval, consent, license, order, registration, qualification or decree of~~to avoid doubt, any ~~Governmental Entity is necessary~~ internal allocation among such partners, members or ~~required for~~ stockholders of the undersigned of the equity interests in the Company pursuant to ~~enter into, or perform their respective obligations under,~~ the ~~Operative Documents or the consummation~~ terms and conditions of the transactions contemplated in the Underwriting Agreement, except or such as have been already obtained or as may be required under the 1933 Act, the 1933 Act Regulations, the securities laws of any state or non-U.S. jurisdiction or the rules of FINRA or by the Bank’s primary regulator for purposes of Section 7(e) governing documents of the ~~Underwriting Agreement.~~undersigned); or (v) To to the ~~best of such counsel~~undersigned’s ~~knowledge, there are no persons with registration rights~~ affiliates or to any investment fund or other ~~similar rights to have any securities registered for sale pursuant to~~ entity which controls or manages or is controlled or managed by, or under common control or management with, the ~~Registration Statement or otherwise registered for sale or sold by the Company under the 1933 Act pursuant to the Underwriting Agreement.~~undersigned; or (vi) ~~The Company is not required,~~ pursuant to an order of a court or ~~upon consummation of the transactions contemplated in the Underwriting Agreement will be required,~~ regulatory agency or to register as an “investment company” under the 1940 Act. Although we assume no responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, General Disclosure Package or Prospectus, nothing has come comply with any regulations related to the ~~attention~~ undersigned’s ownership of such counsel that has lead such counsel to believe that (1) the Registration Statement or any amendment thereto, including any information deemed to be a part thereof pursuant to Rule 430B, at the time such Registration Statement or any such amendment became effective or as of the “new effective date,” 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, (2) the General Disclosure Package, at the Applicable Time, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of circumstances under which they were made, not misleading or (3) the Prospectus or any amendment or supplement thereto, at the time the Prospectus was issued, at the time any such amended or supplemented prospectus was issued or at the Closing Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; it being understood that such counsel makes no statement as to any financial statements (including notes thereto), supporting schedules and other financial data included in the Registration Statement, the General Disclosure Package and the Prospectus or omitted therefrom. 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)Common Stock. (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, to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and to enter into and perform its obligations under, and to consummate the transactions contemplated under, the Operative Documents. (iii) The Company is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended. (iv) The Significant Subsidiary has been duly organized and is validly existing and in good standing under the laws of the jurisdiction of its organization, has the requisite corporate power and authority to own, lease and operate its properties, to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and. To such counsel’s knowledge, except as otherwise described in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding shares of capital stock of or other equity interests in the Significant Subsidiary have been duly authorized and validly issued, are fully paid and non-assessable and are owned by the Company, directly or through subsidiaries, to the best of such counsel’s knowledge free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity. To such counsel’s knowledge, none of the outstanding shares of capital stock of or other equity interests in the Significant Subsidiary were issued in violation of the preemptive or similar rights of any securityholder of such Significant Subsidiary or any other entity. (v) The deposit accounts of each of the Company’s banking subsidiaries are insured up to the applicable limits by the Deposit Insurance Fund of the FDIC to the fullest extent permitted by law and the rules and regulations of the FDIC, and, to the best of such counsel’s knowledge, no proceeding for the revocation or termination of such insurance is pending or threatened. (vi) To the best of such counsel’s knowledge, except as described in the Registration Statement, the General Disclosure Package and the Prospectus, (A) neither the Company nor any of its subsidiaries is subject or party to, or has received any notice or advice from any Regulatory Agency that any of them are reasonably expected to become subject or party to any investigation with respect to, any Regulatory Agreement, (B) neither the Company nor any of its subsidiaries has been advised by any Regulatory Agency that it is considering issuing or requesting any Regulatory Agreement, (C) there is no unresolved violation, criticism or exception by any Regulatory Agency with respect to any report or statement relating to any examinations of the Company or any of its subsidiaries and (D) the Company and its subsidiaries are in compliance in all material respects with all laws administered by the Regulatory Agencies. (vii) Each of the Company and the Significant Subsidiary (A) is duly qualified 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 and (B) holds all Governmental Licenses issued by Governmental Entities necessary to conduct the business now operated by them, except where the failure so to qualify or to be in good standing or to hold any such Governmental Licenses would not, singly or in the aggregate, result in a Material Adverse Effect. (viii) The outstanding shares of capital stock of the Company, including the Securities, have been duly authorized and validly issued and are fully paid and non-assessable. To such counsel’s knowledge, none of the outstanding shares of capital stock of the Company, including the Securities, were issued in violation of the preemptive or other similar rights of any securityholder of the Company or any other entity. (ix) The Underwriting Agreement has been duly authorized, executed and delivered by each of the Company and the Bank. (x) The Certificate of Designations for the Securities has been duly filed with the Secretary of State of the State of Delaware. The form of certificate representing the Securities complies in all material respects with the requirements of Delaware state law, the Charter and the By-Laws. (xi) To the best of such counsel’s knowledge, except as described in the Registration Statement, the General Disclosure Package and the Prospectus, there is no action, suit, proceeding, inquiry or investigation before or brought by any Governmental Entity now pending or threatened against or affecting the Company or any of its subsidiaries which could, singly or in the aggregate, result in a Material Adverse Effect, or which might reasonably be expected to materially and adversely affect their respective properties, assets or operations or the consummation of the transactions contemplated in the Underwriting Agreement or the performance by the Company of its obligations under the Operative Documents. The aggregate of all pending legal or governmental proceedings known to such counsel to which the Company or any of its subsidiaries are a party or of which any of their respective properties, assets or operations are the subject which are not described in the Registration Statement, the General Disclosure Package and the Prospectus, including ordinary routine litigation incidental to the business, would not, singly or in the aggregate, result in a Material Adverse Effect. (xii) The information in the Registration Statement, the General Disclosure Package and the Prospectus under “Description of Capital Stock,” “Description of Series A Preferred Stock” and “Certain Material United States Federal Income Tax Considerations” or comparable captions and the information in the Registration Statement under “Item 15—Indemnification of Officers and Directors,” in each case to the extent that such information constitutes matters of law, summaries of legal matters, the Charter, By-Laws or legal proceedings, or legal conclusions, has been reviewed by such counsel and is correct in all material respects. (xiii) All descriptions in the Registration Statement, the General Disclosure Package and the Prospectus of contracts and other documents to which the Company or any of its subsidiaries are a party are accurate in all material respects. To the best of such counsel’s knowledge, there are no contracts, instruments or other documents required to be described in the Registration Statement, any preliminary prospectus or the Prospectus or to be filed as exhibits to the Registration Statement which have not been so described and filed as required. (xiv) To the best of such counsel’s knowledge, the execution, delivery and performance of the Operative Documents and the consummation of the transactions contemplated in the Underwriting Agreement and in the Registration Statement, [including the purchase by the Company of Securities in the offering,] the General Disclosure Package and the Prospectus and compliance by the Company with its obligations under the Operative Documents 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 ____) under, or result in the creation or imposition of any lien, charge or encumbrance upon

Appears in 1 contract

Samples: Underwriting Agreement (BrightSpire Capital, Inc.)

Appears in 1 contract

Samples: Underwriting Agreement (Ascent Capital Group, Inc.)

Appears in 1 contract

Samples: Underwriting Agreement (Team Health Holdings Inc.)

Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof. If the foregoing is in accordance with your understanding of our agreement, please sign and return to the ~~Company~~ Company, the Operating Partnership and the Manager a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the Underwriters, the Company, the ~~Bank~~ Operating Partnership and the ~~Selling Shareholder~~ Manager in accordance with its terms. Very truly yours, ~~FIRST FINANCIAL HOLDINGS, INC.~~ By: /s/ ~~Xxxxxx~~ Xxxx X. ~~Xxxxxxxxxx~~ XxXxxxxxx Name: ~~Xxxxxx~~ Xxxx X. ~~Xxxxxxxxxx~~ XxXxxxxxx Title: ~~EVP and~~ Chief Financial Officer ~~FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF CHARLESTON~~ By: PennyMac GP OP, Inc., its general partner By: /s/ ~~Xxxxxx~~ Xxxx X. ~~Xxxxxxxxxx~~ XxXxxxxxx Name: ~~Xxxxxx~~ Xxxx X. ~~Xxxxxxxxxx~~ XxXxxxxxx Title: ~~EVP and~~ Chief Financial Officer ~~UNITED STATES DEPARTMENT OF THE TREASURY, as Selling Shareholder~~ By: /s/ ~~Xxxxxx Xxxxx~~ Xxxx X. XxXxxxxxx Name: ~~Xxxxxx Xxxxx~~ Xxxx X. XxXxxxxxx Title: Chief ~~Investment~~ Financial Officer ~~CONFIRMED AND ACCEPTED,~~ as of the date first above written: ~~XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX~~ By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED By: /s/ Xxxxxxx Xxxxx Managing Director By: CITIGROUP GLOBAL MARKETS INC. By: /s/ Xxxxxxxxx Xxxxxxxx Managing Director By: CREDIT SUISSE SECURITIES (USA) LLC By: /s/ Xxxxxx X. Xxxxxxxxxx Managing Director Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx ~~For itself and as Representative~~ Incorporated 3,333,334 Citigroup Global Markets Inc. 3,333,333 Credit Suisse Securities (USA) LLC 3,333,333 Total 10,000,000 1. The price paid by each initial purchaser of the ~~other Underwriters named in Schedule A hereto~~Securities. 1. The purchase price per share for the Securities to be paid by the ~~several~~ Underwriters shall be $~~860.4073, being~~ 19.35; provided that the purchase price per share for any Option Securities purchased upon the exercise of the option described in Section 2(b) shall be reduced by an amount per share equal to any dividends or distributions declared by the ~~initial public offering price set forth in Schedule B less $13.1027 per share~~Company and payable on the Initial Securities but not payable on the Option Securities. ~~Name of Underwriter Number of Securities~~ Individuals: Xxxxxxxx X. Xxxxxxx Xxxxx X. Xxxxxxx Xxxxxx X. Xxxxx Xxxxxxx Xxxxxx Xxxx X. XxXxxxxxx Xxxxxxx X. Xxxxxx Xxxxx X. Xxxxxx Xxxx Xxxxx Xxxxxxx Xxxxxx Xxxxx X. Xxxxxxxx Xxxxxx X. Xxxxxx Xxxx X. Xxxxxxxxx Xxxx X. Xxxxxx Xxxxxx X. Xxxxxxx Xxxxx X. Xxxxxx None. Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ~~60,125~~ 00000 Xxxxxxxx Xxxx, Xxx. 0000 Xxx Xxxxxxx, XX 00000 Citigroup Global Markets Inc. 000 Xxxxxxxxx Xxxxxx ~~Xxxxxxxx~~Xxx Xxxx, Xxx Xxxx 00000 Credit Suisse Securities (USA) LLC Eleven Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 Re: Proposed Public Offering by PennyMac Mortgage Investment Trust Dear Sirs: The undersigned, a shareholder and an officer and/or trustee of PennyMac Mortgage Investment Trust, a Maryland real estate investment trust (the “Company”), understands that each of Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Citigroup Global Markets Inc. and Credit Suisse Securities (USA) LLC (each, an “Underwriter” and collectively, the “Underwriters”, which term shall also include any underwriter substituted as hereinafter provided in Section 11 hereof) proposes to enter into a Purchase Agreement (the “Purchase Agreement”) with the Company, PennyMac Operating Partnership, L.P. and PNMAC Capital Management, LLC ~~1,625 XX Xxxx Capital, LLC 1,625 TBC Securities, LLC 1,625 Total 65,000 The initial~~ providing for the public offering ~~price~~ of the Company’s common shares of beneficial interest, par value $0.01 per share (the “Common Shares”). In recognition of the benefit that such an offering will confer upon the undersigned as a shareholder and an officer and/or trustee of the Company, and for other good and valuable consideration, the ~~Securities shall be $873.51. The number~~ receipt and sufficiency of ~~Securities~~ which are hereby acknowledged, the undersigned agrees with each Underwriter to be ~~sold by~~ named in the ~~Selling Shareholder shall be 65,000. The settlement~~ Purchase Agreement that, during a period of 30 days from the date ~~/ closing time shall be April 3~~of the Purchase Agreement, ~~2012. 1. NONE~~ the undersigned will not, without the prior written consent of each of the Underwriters, directly or indirectly, (i) ~~Each~~ offer, 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 for the sale of, or otherwise dispose of or transfer any of the ~~Registration Statement and~~ Company’s Common Shares or any ~~post-effective amendment thereto has been declared effective~~ securities convertible into or exchangeable or exercisable for Common Shares, whether now owned or hereafter acquired by the ~~Commission~~ undersigned or with respect to which the undersigned has or hereafter acquires the power of disposition, or file, or cause to be filed, any registration statement under the Securities Act of 1933, as amended (the “1933 Act~~. Each preliminary prospectus~~”), ~~each Issuer Free Writing Prospectus and~~ with respect to any of the ~~Prospectus have been filed as required by Rule 424(b)~~ foregoing (~~without reliance on Rule 424(b)(8)) and Rule 433, as applicable, within the time period prescribed by, and in compliance with~~collectively, the ~~1933 Act Regulations. To the best of such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement~~ “Lock-Up Securities”) or any post-effective amendment thereto has been issued under the 1933 Act, no order preventing or suspending the use of any preliminary prospectus or the Prospectus or any amendment or supplement thereto has been issued and no proceedings for any of those purposes have been instituted or are pending or contemplated by the Securities and Exchange Commission. (ii) ~~The Registration Statement~~enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the ~~General Disclosure Package~~ economic consequence of ownership of the Lock-Up Securities, whether any such swap or transaction is to be settled by delivery of Common Shares or other securities, in cash or otherwise. The foregoing paragraph shall not apply to transfers of Lock-Up Securities: (i) as a bona fide gift or gifts; (ii) as a donation to a charitable organization; (iii) by will or the laws of descent and distribution; (iv) to any trust for the ~~Prospectus and each amendment~~ direct or ~~supplement~~ indirect benefit of the undersigned or the immediate family of the undersigned; (v) to any corporation, partnership, limited liability company or other entity to the ~~Registration Statement~~extent such entity is wholly owned by the undersigned and/or members of the immediate family of the undersigned; (vi) to the shareholders, partners or members of the ~~General Disclosure Package~~ entities to which Lock-Up Securities were transferred under clause (v); or (vii) as forfeitures of Lock-Up Securities to satisfy tax withholding obligations of the undersigned in connection with the vesting of equity awards acquired by the undersigned pursuant to the Company’s 2009 Equity Incentive Plan; provided, however, in the case of clauses (i), (ii), (iii), (iv), (v) or (vi), it shall be a pre-condition to such transfer that (a) the transferee or donee executes and delivers to the ~~Prospectus~~Underwriters a lock-up agreement in the form hereof for the remainder of the 30-day lock-up period, as (b) no filing by any party (transferor, transferee, donor or donee) under the Securities Exchange Act of ~~their respective effective~~ 1934 (the “1934 Act”) shall be required or ~~deemed effective~~ shall be voluntarily made in connection with such transfer or ~~issue dates~~ distribution (other than a filing on a Form 5, Schedule 13D or Schedule 13G (1or 13D A or 13G A) made after the ~~financial statements~~ expiration of the 30-day lock-up period), (c) each party (transferor, transferee, donor or donee) shall not be required by law (including ~~notes thereto) and supporting schedules included therein or omitted therefrom and (2)~~ without limitation the ~~documents incorporated or deemed incorporated therein by reference, as to which such counsel need express no opinion), complied as to form in all material respects with the~~ disclosure requirements of the 1933 Act and the ~~1933~~ 1934 Act ~~Regulations. (iii) The documents incorporated or deemed incorporated by reference in the Registration Statement~~to make, ~~the General Disclosure Package~~ and ~~the Prospectus (other than the financial statements (including notes thereto) and supporting schedules included therein or omitted therefrom~~shall agree to not voluntarily make, ~~as to which we express no opinion), when they were filed with the Commission, complied as to form in all material respects with the requirements~~ any public announcement of the ~~1934 Act~~ transfer or disposition and ~~1934 Act Regulations.~~ (ivd) ~~No filing with,~~ the undersigned notifies the Underwriters at least three business days prior to the proposed transfer or ~~authorization, approval, consent, license, order, registration, qualification or decree of, any Governmental Entity is necessary or required for~~ disposition. For the Company to enter into, or perform their respective obligations under, the Operative Documents or the consummation of the transactions contemplated in the Underwriting Agreement, except or such as have been already obtained or as may be required under the 1933 Act, the 1933 Act Regulations, the securities laws of any state or non-U.S. jurisdiction or the rules of FINRA or by the Bank’s primary regulator for purposes of ~~Section 7(e) of~~ this lock-up agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. Notwithstanding the ~~Underwriting Agreement.~~foregoing, if: (v) To the best of such counsel’s knowledge, there are no persons with registration rights or other similar rights to have any securities registered for sale pursuant to the Registration Statement or otherwise registered for sale or sold by the Company under the 1933 Act pursuant to the Underwriting Agreement. (vi) The Company is not required, or upon consummation of the transactions contemplated in the Underwriting Agreement will be required, to register as an “investment company” under the 1940 Act. Although we assume no responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, General Disclosure Package or Prospectus, nothing has come to the attention of such counsel that has lead such counsel to believe that (1) during the Registration Statement or any amendment thereto, including any information deemed to be a part thereof pursuant to Rule 430B, at the time such Registration Statement or any such amendment became effective or as last 17 days of the ~~“new effective date,” contained~~ 30-day lock-up period, the Company issues an ~~untrue statement of~~ earnings release or material news or a material ~~fact or omitted~~ event relating to ~~state a material fact required to be stated therein or necessary to make~~ the ~~statements therein not misleading,~~ Company occurs; or (2) prior to the ~~General Disclosure Package~~expiration of the 30-day lock-up period, at the ~~Applicable Time, included an untrue statement of~~ Company announces that it will release earnings results or becomes aware that material news or a material ~~fact or omitted to state a material fact necessary in order to make~~ event will occur during the ~~statements therein, in~~ 16-day period beginning on the light of circumstances under which they were made, not misleading or (3) the Prospectus or any amendment or supplement thereto, at the time the Prospectus was issued, at the time any such amended or supplemented prospectus was issued or at the Closing Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light last day of the circumstances under which they were made, not misleading; it being understood that such counsel makes no statement as to any financial statements (including notes thereto), supporting schedules and other financial data included in the Registration Statement, the General Disclosure Package and the Prospectus or omitted therefrom. 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). (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, to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and to enter into and perform its obligations under, and to consummate the transactions contemplated under, the Operative Documents. (iii) The Company is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended. (iv) The Significant Subsidiary has been duly organized and is validly existing and in good standing under the laws of the jurisdiction of its organization, has the requisite corporate power and authority to own, lease and operate its properties, to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and. To such counsel’s knowledge, except as otherwise described in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding shares of capital stock of or other equity interests in the Significant Subsidiary have been duly authorized and validly issued, are fully paid and non30-assessable and are owned by the Company, directly or through subsidiaries, to the best of such counsel’s knowledge free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity. To such counsel’s knowledge, none of the outstanding shares of capital stock of or other equity interests in the Significant Subsidiary were issued in violation of the preemptive or similar rights of any securityholder of such Significant Subsidiary or any other entity. (v) The deposit accounts of each of the Company’s banking subsidiaries are insured day lock-up to the applicable limits by the Deposit Insurance Fund of the FDIC to the fullest extent permitted by law and the rules and regulations of the FDIC, and, to the best of such counsel’s knowledge, no proceeding for the revocation or termination of such insurance is pending or threatened. (vi) To the best of such counsel’s knowledge, except as described in the Registration Statement, the General Disclosure Package and the Prospectus, (A) neither the Company nor any of its subsidiaries is subject or party to, or has received any notice or advice from any Regulatory Agency that any of them are reasonably expected to become subject or party to any investigation with respect to, any Regulatory Agreement, (B) neither the Company nor any of its subsidiaries has been advised by any Regulatory Agency that it is considering issuing or requesting any Regulatory Agreement, (C) there is no unresolved violation, criticism or exception by any Regulatory Agency with respect to any report or statement relating to any examinations of the Company or any of its subsidiaries and (D) the Company and its subsidiaries are in compliance in all material respects with all laws administered by the Regulatory Agencies. (vii) Each of the Company and the Significant Subsidiary (A) is duly qualified 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 and (B) holds all Governmental Licenses issued by Governmental Entities necessary to conduct the business now operated by them, except where the failure so to qualify or to be in good standing or to hold any such Governmental Licenses would not, singly or in the aggregate, result in a Material Adverse Effect. (viii) The outstanding shares of capital stock of the Company, including the Securities, have been duly authorized and validly issued and are fully paid and non-assessable. To such counsel’s knowledge, none of the outstanding shares of capital stock of the Company, including the Securities, were issued in violation of the preemptive or other similar rights of any securityholder of the Company or any other entity. (ix) The Underwriting Agreement has been duly authorized, executed and delivered by each of the Company and the Bank. (x) The Certificate of Designations for the Securities has been duly filed with the Secretary of State of the State of Delaware. The form of certificate representing the Securities complies in all material respects with the requirements of Delaware state law, the Charter and the By-Laws. (xi) To the best of such counsel’s knowledge, except as described in the Registration Statement, the General Disclosure Package and the Prospectus, there is no action, suit, proceeding, inquiry or investigation before or brought by any Governmental Entity now pending or threatened against or affecting the Company or any of its subsidiaries which could, singly or in the aggregate, result in a Material Adverse Effect, or which might reasonably be expected to materially and adversely affect their respective properties, assets or operations or the consummation of the transactions contemplated in the Underwriting Agreement or the performance by the Company of its obligations under the Operative Documents. The aggregate of all pending legal or governmental proceedings known to such counsel to which the Company or any of its subsidiaries are a party or of which any of their respective properties, assets or operations are the subject which are not described in the Registration Statement, the General Disclosure Package and the Prospectus, including ordinary routine litigation incidental to the business, would not, singly or in the aggregate, result in a Material Adverse Effect. (xii) The information in the Registration Statement, the General Disclosure Package and the Prospectus under “Description of Capital Stockperiod,” “Description of Series A Preferred Stock” and “Certain Material United States Federal Income Tax Considerations” or comparable captions and the information in the Registration Statement under “Item 15—Indemnification of Officers and Directors,” in each case to the extent that such information constitutes matters of law, summaries of legal matters, the Charter, By-Laws or legal proceedings, or legal conclusions, has been reviewed by such counsel and is correct in all material respects. (xiii) All descriptions in the Registration Statement, the General Disclosure Package and the Prospectus of contracts and other documents to which the Company or any of its subsidiaries are a party are accurate in all material respects. To the best of such counsel’s knowledge, there are no contracts, instruments or other documents required to be described in the Registration Statement, any preliminary prospectus or the Prospectus or to be filed as exhibits to the Registration Statement which have not been so described and filed as required. (xiv) To the best of such counsel’s knowledge, the execution, delivery and performance of the Operative Documents and the consummation of the transactions contemplated in the Underwriting Agreement and in the Registration Statement, [including the purchase by the Company of Securities in the offering,] the General Disclosure Package and the Prospectus and compliance by the Company with its obligations under the Operative Documents 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 ____) under, or result in the creation or imposition of any lien, charge or encumbrance upon

Appears in 1 contract

Samples: Purchase Agreement (PennyMac Mortgage Investment Trust)

Appears in 1 contract

Samples: Purchase Agreement (Deutsche Bank Contingent Capital LLC II)

Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof. If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company and the Attorney-in-Fact for the Selling Stockholders listed on Schedule B hereto a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the ~~Underwriters~~Underwriter, the ~~Company, the Bank~~ Company and the Selling ~~Shareholder~~ Stockholders in accordance with its terms. Very truly yours, ~~FIRST FINANCIAL HOLDINGS~~XXXXXXXX XXXXX, INC. ~~By:~~ By /s/ Xxxxxx X. Xxxxxxxxxx Name: Xxxxxx X. Xxxxxxxxxx Title: EVP and Chief Financial Officer FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF CHARLESTON By: /s/ Xxxxxx X. Xxxxxxxxxx Name: Xxxxxx X. Xxxxxxxxxx Title: EVP and Chief Financial Officer UNITED STATES DEPARTMENT OF THE TREASURY, as Selling Shareholder By: /s/ Xxxxxx Xxxxxxxxxxx Xxxxx Name: ~~Xxxxxx~~ Xxxxxxxxxxx Xxxxx Title: ~~Chief Investment Officer~~ General Counsel If the foregoing and the provisions of Exhibit C hereto are in accordance with your understanding of our agreement, please sign and return to the Company and the Attorney-in-Fact for the Selling Stockholders listed on Schedule B hereto a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the Underwriter, the Company and the Selling Stockholders in accordance with its terms. The Selling Stockholders named in Schedule B hereto By /s/ Xxxxxxx X. Xxxxxxxx Name: Xxxxxxx X. Xxxxxxxx As Attorney-in-Fact acting on behalf of the Selling Stockholders named in Schedule B hereto CONFIRMED AND ACCEPTED, as of the date first above written: XXXXXX XXXXXXX ~~LYNCH, PIERCE, XXXXXX~~ & ~~XXXXX By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX By:~~ CO. LLC By /s/ ~~Xxxxxxx X. Xxxxx For itself and as Representative of~~ Xxxx XxXxxxxxx Authorized Signatory The initial public offering price per share for the ~~other Underwriters named in Schedule A hereto~~Securities shall be $47.25. The purchase price per share for the Securities to be paid by the ~~several Underwriters~~ Underwriter shall be $~~860.4073, being an amount equal to the initial public offering price set forth in Schedule B less $13.1027 per share~~46.75. Name of Underwriter Number of Securities Xxxxxx Xxxxxxx ~~Lynch~~& Co. LLC 4,000,000 Xxxxxxxx Xxxxx, ~~Pierce~~Inc. 2,000,000 Selling Stockholders: The Gold Stock Trust 20,728 The Xxxxxx Stock Trust 14,434 Xxxxxxx Stock Trust 13,732 Xxxx Xxxx Xxxxxxx Revocable Trust 110,139 Xxxxxxxxxxx, Xxxxxxx 106,796 Xxxxx, Xxxxx 104,680 Xxxxxxxxxx, Xxxx 9,417 Xxxx, Xxxxxx & 94,116 Xxxxx, Xxx 27,206 Xxxxxxxxxxx, Xxxxxxx 41,431 Xxxxxx, Xxxx (Xxxxxxx) 75,231 Xxxxxxx, Xxxxx ~~Incorporated 60,125~~ 8,888 Xxxxxxxxx, Xxxxx 72,302 Xxxx Xxxxx Stock Trust 5,698 Xxxxx, Xxxxxx 61,129 Xxxxxx, Xxxx 60,891 The ABM-HL Stock Trust 5,536 Xxxxxxx, Xxxx 55,811 Xxxxxxxx, ~~LLC 1,625~~ Xxxxx 55,952 Xxxxxxx, Xxxxxx 52,849 Xxxxx, Xxxxxxx 15,934 Xxxxxxx, Xxxxx 48,873 The Xxxxxx Stock Trust 23,812 Xxxxxxx, Xxxxxx 33,558 The Xxxx Stock Trust 31,851 Xxxxxxxx, Xxxxxx 20,632 The Xx Xxxxx Stock Trust 19,745 Xxxxxxxxx, Xxxxxxxx 29,436 Xxxxxxx, Xxxxxxx 26,034 Xxxxxxxxxx, Xxxxx 26,017 Xxxxxxx, Xxxx 7,926 Xxxxxxx, Xxxx 16,057 Xxxxxxx Xxxxx, Trustee of the Tchen Stock Trust 16,093 Xxxxxx, Xxxx-Xxxx 15,154 Xxxxxx, Xxxx 7,032 The Alley Stock Trust 22,549 Winthrop Family Trust 21,911 Xxxxx, Xxxxxxxxxxx 21,696 Xxxx, Xxxxxx 18,146 Xxxxxxxx-Xxxxxxx, Xxxxxx 14,068 Xxxxxx, Xxxx 17,371 Xxxxx, Xxxx 16,137 Xxxxxx, Xxxxxxx 14,614 Xxxxxxxxxx, Xxxx 14,566 Xxxxxxxx, Xxxxx 4,445 The Kolbrenner Stock Trust 13,804 Xxxxxxx, Xxxxx 8,828 Xxxxxx, Xxxxxxx 10,310 Xxxxxxxx, Xxxxx 8,129 Xxxxx, Xxxxxxx 6,291 Xxxxxxx, Xxxxxxx 11,418 Xxxxxx, Xxxxxxxxxxx 10,708 Xxxxxxx, Xxxxxxx 10,557 Xxxxxxx, Xxxxx 6,614 Xxxxxxxxx, Xxxx 3,127 Benshimon, Laurent 10,017 Xxxxxx, Xxxxxxxx 6,360 Xxxxxxx, Xxxxx 9,085 Xxxxxx, Xxxxx 8,866 Xxxxx, Xxxxx 8,553 Xxxxxx, Xxxxx 7,025 Finger, Xxxx 2,550 Lerche, Niklas 8,129 Xxxxxxxx, Xxxx 8,164 Xxxxxxxxxxxxx, Xxxx 7,952 Xxxxxx, Xxxxxxx 7,749 Xxxxxx, Xxxxx 7,430 Xxxxxxx, Xxxxxxx 7,316 Xxxxxx, Xxxxxx 6,316 Xxxxxxxx, Xxxx 7,405 Xxxxxx, Xxxxxxx 7,391 Xxxxxx, Xxxxxx 4,793 Xxxxxxxx, Xxxx 7,230 Xxxxxx, Xxxxx 6,910 Xxxxx, Xxxxxxxxxxx 4,599 Xxxxxxxx, Xxxx 5,590 Xxxxx, Xxxxx 5,415 Xxxxxx, Xxxxxx 4,244 Xxxx, Xxxxxx 6,509 Kent, Ranon 6,256 The Sheridan Family Trust 3,324 Xxxx, Xxxxxx 5,224 Xxxxxx, Xxxxxx 1,920 Xxxxxx, Xxxxxxxx 5,962 Xxxxx, Xxxx 6,036 Xxxxxxxx, Xxxxx 5,782 Xxxxxx, Xxxxxxx 3,885 Xxxx, Xxxx 5,908 Xxxxxxx, Xxxx 3,836 Dereuver, Gijs 5,787 X’Xxxxx, Xxxx 5,634 Xxxxx, Xxxx 5,744 The Xxxxxxxx Stock Trust 5,330 Xxxxxxx X. Xxxxxx and Xxxxx X. Xxxxxx Marital Trust 3,271 Xxxxxxxxx, Xxxxxx 4,818 Xxxxxx, Xxxx 1,471 Xxxxxxxx, Xxxxxxx 4,645 Xxxxxx, Xxx 4,630 Xxxxxxxxx, Xxxxxx 1,382 Xxxxxxxx, Xxxxx 1,370 The Xxxxxx XX Investment Trust 4,126 Voukadinov, Dimitar 3,853 Xxxxx, Xxxxxxxxxxx 3,839 Xxxxxx, Xxxxxxx 3,066 Xxxxxx, Xxxxx 1,110 Xxxxxxxxx, Xxxxxxx 1,850 Xxxxxxxxxx, Xxxxx 3,500 Xxxxxxx, Xxxxxxx 2,248 Xxxxxxxxxx, Xxxxxxx 2,737 Xxxxxxx, Xxxxxxx 3,200 Xxxxxx, Xxxx ~~Capital~~3,135 Xxxxxx, ~~LLC 1,625 TBC Securities~~Xxx 148 Xxxx, ~~LLC 1,625~~ Xxxxxx 1,915 Xxxxx, Xxx 2,888 Xx Xxxx, Xxxxxxx 2,802 The Xxxxxxx X. Xxxxxxxx Stock Trust 858 Xxxxxxxxx, Xxxxxxx 2,775 Xxxxxx, Xxxxx 1,784 Xxxxxxx, Xxxxxxx 1,785 Xxxxxx, Xxxx 2,659 Xxxxx, Xxxxxxx 2,664 Xxxxxx, Xxxxx 2,194 Xxxxx, Xxxxxxx 1,726 Xxxxxx, Xxxxxx 2,584 Xxxxx, Xxxxx 2,485 Xxxxxx, Xxxxx 2,491 Page, Xxxxx 2,459 Xxxxxxx, Xxxxxxx 2,347 Xxxxxxx, Xxxx 2,289 Xxxxxxxxxx, Xxxxx 2,228 Xxxxxxxx, Xxxxxx 2,517 Xxxxxxxxxx, Xxxxxxx 1,974 Xxxxx, Xxxxxxx 1,974 Wu, Xxxxxx 1,305 Xxxxx, Xxxxxx 589 The Xxxxx Stock Trust 1,549 Xxxxxxxxx, Xxxxxxx 1,501 Xxxxxx, Xander 1,815 Xxxxxxx, Xxxx 1,763 Xxxxxxxxxx, Xxx 1,734 Xxxxx, Xxxx 1,338 Xxxxxxxx, Xxxxxx 1,618 Xxxxxxxx, Xxxxxxx 1,225 Xxxxxxxx, Xxxxxxx 1,380 Xxxxxxxx, Xxxxxxx 1,485 Xxxxx, Xxxxxxx 1,416 Xxx-Xxxxxxxx, Xxxxxxx 1,394 Xxxxxxxx, Xxxxx 1,298 X’Xxxxxxx, Xxxxxx 1,083 Xxxxx, Xxxxx 1,300 Xxxxxxxx, Xxxx 1,063 Xxxxxx, Xxxxx 1,240 The Xxxxxxx Stock Trust 1,259 Xxxxxxx, Xxxxx 1,258 Xxxxxx, Xxxxxxxx 1,253 Wieshofer Stock Trust 1,262 Xxxxxx, Xxxxxx Sijbrand 1,437 Xxxxx, Xxxxxxx 1,220 Xxxxxx, Xxxxxxx 986 Xxxx, Xxxxxx 1,148 Xxxxxxxx, Xxxxx 1,172 Xxxx, Xxxxxxx 1,168 Xxxxx, Xxxxx 1,145 Xxxxxx, Chintin 1,061 Xxxx, Xxxxxxxx 838 Xxx, Xxxxxx 320 Xxxxxxx, Xxxxxxx 943 Xxxx, Xxx 900 Xxxxxxxx, Xxxxxx 1,188 Xxxxxxx, Xxxx 868 Xxxxxx, Xxxx 813 Abt, Xxxxx 814 Cho, Xxxx Xxx 829 Xxxxx, Xxxxx 805 Xxxxxx, Xxxxxxxx 670 Xxxxxx, Xxxxxxx 829 Xxxxxxxxx, Xxxx 526 Xxxx, Xxxxx 822 Xxxxxxx, Xxxxxx 000 Xxxxxxx, Xxxxx 777 Xxxxx, Xxxxxxx 724 Xxxxxxxxx, Xxxxxxxx 226 Xxxxxx, Xxxx 449 Xxxxx, Xxxx 655 Xxxxxxxx, Xxxx 381 Xxxxxxxxxx, Xxxx 586 Xxxxxx, Xxxxxx 603 Xxxxxx, Xxxxx 571 Xxxxx, Xxxx 522 Xxxxxxxxxx, Xxxxxx 746 Xxxxxxx, Xxxxx 746 Xxxxx, Xxxxxx 522 Xxxxxxxx, Xxxxxx Xxxxxxxxxx 577 Xxxxxxx, Xxxxx 467 Timblick, Xxxxx 484 Xxxx, Xxxxxx 540 Xxxxxxx, Xxxxxxxxx 127 Meyerguz, Alexander 64 Xxxxx, Xxxxxxx 000 Xxxxxx Xxxxx, Xxxxx 431 Gaulier, Pierre 418 Xxxxxxxxxxx, Xxxx 411 Xxxxxxx, Xxxxxxxxxx 380 Xxxxx, Xxxxxx 258 Xxxxx, Xxxxxx 362 Xxxxxxxxx, Xxxxxxx 373 Xxxxx, Xxxxxx 344 Xxxxxx, Xxxxx 000 Xxxxxxxxx, Xxxxx 333 Xxx, Xxxxxxxx 330 Xxxxxxxxxxx, Xxxxxx 96 Xxxxxx, Xxxx 287 Xxxxxxx, Xxxxxxx 272 Xxxxxxxxxxx, Xxxxxxx Xxxx 246 Xxxxxx, Xxxxx Xxxxxx 269 Xxxx, Xxxxxxxx 231 Xxxxx, Xxxxx 264 Xxxxxxxx, Xxxxx 256 Xxxxx, Xxxxx 254 Xxxxx, Xxxxxxxx 153 Xxxxxx, Xxxxxx 202 Xxxxxxxx, Xxxxxx 271 Xxx, Xxxxx 173 Xxxxxxx, Xxxxxxx 175 Xxxxxxxxx, Xxxxxxxxx 156 Xxxxx, Xxxx 154 Xxxx, Xxxxx 147 Xxxxxxxxx, Xxxx 104 Xxxxxxxx, Xxxx Xxxxxx 69 Xxxxx, Xxxxx 112 Xxxxxx, Xxxxxx Xxxx 45 Xxxxxxx, Xxxx 114 Khan, Xxxxx Xxx 63 Xxxxxx, Xxxx 000 Xxxxx, Xxx 95 Xxx, Xxxx 95 Xxxxxxxxx, Xxxxxx E 62 Xxxxxxx, Xxxxx 87 van Asselt, Xxxxxxx Xxxxxxxx 40 Xxxxx, Xxxxxx Xxxxxx 75 Xxxxx, Xxxx Xxxxxx 50 Xxxxxxx, Xxxxxxxxx 85 Xxxxx, Xxxxxxx 85 Xxxxxx, Xxxxx 61 van Mazijk, Xxxxxx Xxxxxxx 11 Xxxxxxx, Xxxxxxxxx 64 Tiekink, Xxxxxxx Xxxxxxxxx 16 Laurenziello, Xxxxxx 43 Papi, Marco 43 Xxxxxxx, Xxxxxx 14 Xxxxxxx, Xxxxxxx 9 Germany, Xxxxxx 5 Total ~~65,000~~ 2,000,000 1. The Company and the Selling Stockholders are selling 2,000,000 shares of Class A Common Stock and 2,000,000 shares of Class A Common Stock, respectively. 2. The initial public offering price per share for the Securities shall be $~~873.51~~47.25. ~~The number of Securities to be sold by the Selling Shareholder shall be 65,000~~None. The settlement date / closing time shall be April 3, 2012. 1. NONE (i) Each of the Registration Statement and any post-effective amendment thereto has been declared effective by the Commission under the 1933 Act. Each preliminary prospectus, each Issuer Free Writing Prospectus and the Prospectus have been filed as required by Rule 424(b) (without reliance on Rule 424(b)(8)) and Rule 433, as applicable, within the time period prescribed by, and in compliance with, the 1933 Act Regulations. To the best of such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued under the 1933 Act, no order preventing or suspending the use of any preliminary prospectus or the Prospectus or any amendment or supplement thereto has been issued and no proceedings for any of those purposes have been instituted or are pending or contemplated by the Securities and Exchange Commission. (ii) The Registration Statement, the General Disclosure Package and the Prospectus and each amendment or supplement to the Registration Statement, the General Disclosure Package and the Prospectus, as of their respective effective or deemed effective or issue dates (other than (1) the financial statements (including notes thereto) and supporting schedules included therein or omitted therefrom and (2) the documents incorporated or deemed incorporated therein by reference, as to which such counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations. (iii) The documents incorporated or deemed incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus (other than the financial statements (including notes thereto) and supporting schedules included therein or omitted therefrom, as to which we express no opinion), when they were filed with the Commission, complied as to form in all material respects with the requirements of the 1934 Act and 1934 Act Regulations. (iv) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any Governmental Entity is necessary or required for the Company to enter into, or perform their respective obligations under, the Operative Documents or the consummation of the transactions contemplated in the Underwriting Agreement, except or such as have been already obtained or as may be required under the 1933 Act, the 1933 Act Regulations, the securities laws of any state or non-U.S. jurisdiction or the rules of FINRA or by the Bank’s primary regulator for purposes of Section 7(e) of the Underwriting Agreement. (v) To the best of such counsel’s knowledge, there are no persons with registration rights or other similar rights to have any securities registered for sale pursuant to the Registration Statement or otherwise registered for sale or sold by the Company under the 1933 Act pursuant to the Underwriting Agreement. (vi) The Company is not required, or upon consummation of the transactions contemplated in the Underwriting Agreement will be required, to register as an “investment company” under the 1940 Act. Although we assume no responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, General Disclosure Package or Prospectus, nothing has come to the attention of such counsel that has lead such counsel to believe that (1) the Registration Statement or any amendment thereto, including any information deemed to be a part thereof pursuant to Rule 430B, at the time such Registration Statement or any such amendment became effective or as of the “new effective date,” 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, (2) the General Disclosure Package, at the Applicable Time, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of circumstances under which they were made, not misleading or (3) the Prospectus or any amendment or supplement thereto, at the time the Prospectus was issued, at the time any such amended or supplemented prospectus was issued or at the Closing Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; it being understood that such counsel makes no statement as to any financial statements (including notes thereto), supporting schedules and other financial data included in the Registration Statement, the General Disclosure Package and the Prospectus or omitted therefrom. 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). (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, to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and to enter into and perform its obligations under, and to consummate the transactions contemplated under, the Operative Documents. (iii) The Company is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended. (iv) The Significant Subsidiary has been duly organized and is validly existing and in good standing under the laws of the jurisdiction of its organization, has the requisite corporate power and authority to own, lease and operate its properties, to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and. To such counsel’s knowledge, except as otherwise described in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding shares of capital stock of or other equity interests in the Significant Subsidiary have been duly authorized and validly issued, are fully paid and non-assessable and are owned by the Company, directly or through subsidiaries, to the best of such counsel’s knowledge free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity. To such counsel’s knowledge, none of the outstanding shares of capital stock of or other equity interests in the Significant Subsidiary were issued in violation of the preemptive or similar rights of any securityholder of such Significant Subsidiary or any other entity. (v) The deposit accounts of each of the Company’s banking subsidiaries are insured up to the applicable limits by the Deposit Insurance Fund of the FDIC to the fullest extent permitted by law and the rules and regulations of the FDIC, and, to the best of such counsel’s knowledge, no proceeding for the revocation or termination of such insurance is pending or threatened. (vi) To the best of such counsel’s knowledge, except as described in the Registration Statement, the General Disclosure Package and the Prospectus, (A) neither the Company nor any of its subsidiaries is subject or party to, or has received any notice or advice from any Regulatory Agency that any of them are reasonably expected to become subject or party to any investigation with respect to, any Regulatory Agreement, (B) neither the Company nor any of its subsidiaries has been advised by any Regulatory Agency that it is considering issuing or requesting any Regulatory Agreement, (C) there is no unresolved violation, criticism or exception by any Regulatory Agency with respect to any report or statement relating to any examinations of the Company or any of its subsidiaries and (D) the Company and its subsidiaries are in compliance in all material respects with all laws administered by the Regulatory Agencies. (vii) Each of the Company and the Significant Subsidiary (A) is duly qualified 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 and (B) holds all Governmental Licenses issued by Governmental Entities necessary to conduct the business now operated by them, except where the failure so to qualify or to be in good standing or to hold any such Governmental Licenses would not, singly or in the aggregate, result in a Material Adverse Effect. (viii) The outstanding shares of capital stock of the Company, including the Securities, have been duly authorized and validly issued and are fully paid and non-assessable. To such counsel’s knowledge, none of the outstanding shares of capital stock of the Company, including the Securities, were issued in violation of the preemptive or other similar rights of any securityholder of the Company or any other entity. (ix) The Underwriting Agreement has been duly authorized, executed and delivered by each of the Company and the Bank. (x) The Certificate of Designations for the Securities has been duly filed with the Secretary of State of the State of Delaware. The form of certificate representing the Securities complies in all material respects with the requirements of Delaware state law, the Charter and the By-Laws. (xi) To the best of such counsel’s knowledge, except as described in the Registration Statement, the General Disclosure Package and the Prospectus, there is no action, suit, proceeding, inquiry or investigation before or brought by any Governmental Entity now pending or threatened against or affecting the Company or any of its subsidiaries which could, singly or in the aggregate, result in a Material Adverse Effect, or which might reasonably be expected to materially and adversely affect their respective properties, assets or operations or the consummation of the transactions contemplated in the Underwriting Agreement or the performance by the Company of its obligations under the Operative Documents. The aggregate of all pending legal or governmental proceedings known to such counsel to which the Company or any of its subsidiaries are a party or of which any of their respective properties, assets or operations are the subject which are not described in the Registration Statement, the General Disclosure Package and the Prospectus, including ordinary routine litigation incidental to the business, would not, singly or in the aggregate, result in a Material Adverse Effect. (xii) The information in the Registration Statement, the General Disclosure Package and the Prospectus under “Description of Capital Stock,” “Description of Series A Preferred Stock” and “Certain Material United States Federal Income Tax Considerations” or comparable captions and the information in the Registration Statement under “Item 15—Indemnification of Officers and Directors,” in each case to the extent that such information constitutes matters of law, summaries of legal matters, the Charter, By-Laws or legal proceedings, or legal conclusions, has been reviewed by such counsel and is correct in all material respects. (xiii) All descriptions in the Registration Statement, the General Disclosure Package and the Prospectus of contracts and other documents to which the Company or any of its subsidiaries are a party are accurate in all material respects. To the best of such counsel’s knowledge, there are no contracts, instruments or other documents required to be described in the Registration Statement, any preliminary prospectus or the Prospectus or to be filed as exhibits to the Registration Statement which have not been so described and filed as required. (xiv) To the best of such counsel’s knowledge, the execution, delivery and performance of the Operative Documents and the consummation of the transactions contemplated in the Underwriting Agreement and in the Registration Statement, [including the purchase by the Company of Securities in the offering,] the General Disclosure Package and the Prospectus and compliance by the Company with its obligations under the Operative Documents 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 ____) under, or result in the creation or imposition of any lien, charge or encumbrance uponXxxxx X. Xxxxxxx

Appears in 1 contract

Samples: Underwriting Agreement (Houlihan Lokey, Inc.)

Appears in 1 contract

Samples: Underwriting Agreement (Claros Mortgage Trust, Inc.)

Appears in 1 contract

Samples: Underwriting Agreement (Cedar Realty Trust, Inc.)

Appears in 1 contract

Samples: Underwriting Agreement (Convey Holding Parent, Inc.)

Appears in 1 contract

Samples: Underwriting Agreement (Cedar Realty Trust, Inc.)

Appears in 1 contract

Samples: Underwriting Agreement (Hampton Roads Bankshares Inc)

Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof. If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the ~~Underwriters, the Company, the Bank~~ Underwriters and the ~~Selling Shareholder~~ Company in accordance with its terms. Very truly yours, ~~FIRST FINANCIAL HOLDINGS~~TREEHOUSE FOODS, INC. By: /s/ Xxxxxx X. ~~Xxxxxxxxxx Name: Xxxxxx X. Xxxxxxxxxx~~ X’Xxxxx Title: ~~EVP~~ General Counsel, Chief Administrative Officer and Chief Financial Officer FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF CHARLESTON By: /s/ Xxxxxx X. Xxxxxxxxxx Name: Xxxxxx X. Xxxxxxxxxx Title: EVP and Chief Financial Officer UNITED STATES DEPARTMENT OF THE TREASURY, as Selling Shareholder By: /s/ Xxxxxx Xxxxx Name: Xxxxxx Xxxxx Title: Chief Investment Officer Senior Vice President CONFIRMED AND ACCEPTED, as of the date first above written: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED XXXXXX XXXXXXX & CO. INCORPORATED By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED By: /s/ ~~Xxxxxxx X.~~ Xxxxxxxx Xxx-Xxxxx Authorized Signatory By: XXXXXX XXXXXXX & CO. INCORPORATED By: /s/ Xxxxxx Xxxxxxxxxx, Managing Director Authorized Signatory For ~~itself~~ themselves and as ~~Representative~~ Representatives of the other Underwriters named in Schedule A hereto. The initial public offering price per share for the Securities shall be $43.00. The purchase price per share for the Securities to be paid by the several Underwriters shall be $~~860.4073~~40.9575, being an amount equal to the initial public offering price set forth ~~in Schedule B~~ above less $~~13.1027~~ 2.0425 per share, subject to adjustment in accordance with Section 2(b) for dividends or distributions declared by the Company and payable on the Initial Securities but not payable on the Option Securities. Name of Underwriter Number of Initial Securities Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ~~60,125~~ 705,000 Xxxxxx Xxxxxxx & Co. Incorporated 705,000 Barclays Capital Inc. 235,000 SunTrust Xxxxxxxx Xxxxxxxx, ~~LLC 1,625 XX Xxxx Capital, LLC 1,625 TBC~~ Inc. 235,000 Xxxxxxx Xxxxx & Co. 117,500 BMO Capital Markets Corp. 117,500 KeyBanc Capital Markets Inc. 117,500 Xxxxx Fargo Securities, LLC ~~1,625~~ 117,500 Total ~~65,000~~ 2,350,000 1. The Company is selling 2,350,000 shares of Common Stock. 2. The Company has granted an option to the Underwriters, severally and not jointly, to purchase up to an additional 352,500 shares of Common Stock. 3. The initial public offering price per share for the Securities shall be $~~873.51. The number of Securities to be sold by the Selling Shareholder shall be 65,000. The settlement date / closing time shall be April 3, 2012~~43.00. 1. ~~NONE~~TreeHouse Foods, Inc. Press Release, dated February 16, 2010 XXXXXXX XXXXX & CO. Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Xxxxxx Xxxxxxx & Co. Incorporated as Representative(s) of the several Underwriters to be named in the within-mentioned Purchase Agreement x/x Xxxxxxx Xxxxx & Co. Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated 0 Xxxxx Xxxxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 Re: Proposed Public Offering by TreeHouse Foods, Inc. Dear Sirs: The undersigned, a stockholder [and an officer and/or director] of TreeHouse Foods, Inc., a Delaware corporation (the “Company”), understands that Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and Xxxxxx Xxxxxxx & Co. Incorporated (in such capacity, the “Representatives”) propose to enter into a Purchase Agreement (the “Purchase Agreement”) with the Company providing for the public offering of shares (the “Securities”) of the Company’s common stock, par value $0.01 per share (the “Common Stock”). In recognition of the benefit that such an offering will confer upon the undersigned as a stockholder [and an officer and/or director] of the Company, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned agrees with each underwriter to be named in the Purchase Agreement that, during a period of 90 days from the date of the Purchase Agreement, the undersigned will not, without the prior written consent of the Representatives, directly or indirectly, (1) offer, 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 for the sale of, or otherwise dispose of or transfer any shares of the Company’s Common Stock or any securities convertible into or exchangeable or exercisable for Common Stock, whether now owned or hereafter acquired by the undersigned or with respect to which the undersigned has or hereafter acquires the power of disposition, or file, or cause to be filed, any registration statement under the Securities Act of 1933, as amended, with respect to any of the foregoing (collectively, the “Lock-Up Securities”) or (2) enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Lock-Up Securities, whether any such swap or transaction is to be settled by delivery of Common Stock or other securities, in cash or otherwise. Notwithstanding the foregoing, and subject to the conditions below, the undersigned may transfer the Lock-Up Securities without the prior written consent of the Representatives, provided that, except in the case of clause (v) below, (1) the Representatives receive a signed lock-up agreement for the balance of the lockup period from each donee, trustee, distributee, or transferee, as the case may be, (2) any such transfer shall not involve a disposition for value, (3) such transfers are not required to be reported with the Securities and Exchange Commission on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended, and (4) the undersigned does not otherwise voluntarily effect any public filing or report regarding such transfers: (i) Each of the Registration Statement and any post-effective amendment thereto has been declared effective by the Commission under the 1933 Act. Each preliminary prospectus, each Issuer Free Writing Prospectus and the Prospectus have been filed as required by Rule 424(b) (without reliance on Rule 424(b)(8)) and Rule 433, as applicable, within the time period prescribed by, and in compliance with, the 1933 Act Regulations. To the best of such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement a bona fide gift or any post-effective amendment thereto has been issued under the 1933 Act, no order preventing or suspending the use of any preliminary prospectus or the Prospectus or any amendment or supplement thereto has been issued and no proceedings for any of those purposes have been instituted or are pending or contemplated by the Securities and Exchange Commission.gifts; or (ii) ~~The Registration Statement~~to any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned (for purposes of this lock-up agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin); or (iii) as a distribution to limited partners or stockholders of the undersigned; or (iv) to the undersigned’s affiliates or to any investment fund or other entity controlled or managed by the undersigned; or (v) to the Company for the purpose of satisfying any tax withholding obligations of the Company that are incurred upon the vesting of any currently outstanding restricted stock units or restricted stock grants of Common Stock or other incentive shares, unit or equity security grants pursuant to currently existing incentive plans in favor of the undersigned. Furthermore, the ~~General Disclosure Package~~ undersigned may sell shares of Common Stock of the Company purchased by the undersigned on the open market following the Public Offering if and the Prospectus and each amendment or supplement to the Registration Statement, the General Disclosure Package and the Prospectus, as of their respective effective or deemed effective or issue dates (other than only if (1) such sales are not required to be reported in any public report or filing with the ~~financial statements (including notes thereto) and supporting schedules included therein~~ Securities Exchange Commission, or ~~omitted therefrom~~ otherwise and (2) the ~~documents incorporated~~ undersigned does not otherwise voluntarily effect any public filing or ~~deemed incorporated therein by reference~~report regarding such sales. Notwithstanding the foregoing, ~~as to which such counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations.~~if: (iii) The documents incorporated or deemed incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus (other than the financial statements (including notes thereto) and supporting schedules included therein or omitted therefrom, as to which we express no opinion), when they were filed with the Commission, complied as to form in all material respects with the requirements of the 1934 Act and 1934 Act Regulations. (iv) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any Governmental Entity is necessary or required for the Company to enter into, or perform their respective obligations under, the Operative Documents or the consummation of the transactions contemplated in the Underwriting Agreement, except or such as have been already obtained or as may be required under the 1933 Act, the 1933 Act Regulations, the securities laws of any state or non-U.S. jurisdiction or the rules of FINRA or by the Bank’s primary regulator for purposes of Section 7(e) of the Underwriting Agreement. (v) To the best of such counsel’s knowledge, there are no persons with registration rights or other similar rights to have any securities registered for sale pursuant to the Registration Statement or otherwise registered for sale or sold by the Company under the 1933 Act pursuant to the Underwriting Agreement. (vi) The Company is not required, or upon consummation of the transactions contemplated in the Underwriting Agreement will be required, to register as an “investment company” under the 1940 Act. Although we assume no responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, General Disclosure Package or Prospectus, nothing has come to the attention of such counsel that has lead such counsel to believe that (1) during the Registration Statement or any amendment thereto, including any information deemed to be a part thereof pursuant to Rule 430B, at the time such Registration Statement or any such amendment became effective or as last 17 days of the ~~“new effective date,” contained~~ 90-day lock-up period, the Company issues an ~~untrue statement of~~ earnings release or material news or a material ~~fact or omitted~~ event relating to ~~state a material fact required to be stated therein or necessary to make~~ the ~~statements therein not misleading,~~ Company occurs; or (2) prior to the ~~General Disclosure Package~~expiration of the 90-day lock-up period, at the ~~Applicable Time, included an untrue statement of~~ Company announces that it will release earnings results or becomes aware that material news or a material ~~fact or omitted to state a material fact necessary in order to make~~ event will occur during the ~~statements therein, in~~ 16-day period beginning on the light of circumstances under which they were made, not misleading or (3) the Prospectus or any amendment or supplement thereto, at the time the Prospectus was issued, at the time any such amended or supplemented prospectus was issued or at the Closing Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light last day of the circumstances under which they were made, not misleading; it being understood that such counsel makes no statement as to any financial statements (including notes thereto), supporting schedules and other financial data included in the Registration Statement, the General Disclosure Package and the Prospectus or omitted therefrom. 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). (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, to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and to enter into and perform its obligations under, and to consummate the transactions contemplated under, the Operative Documents. (iii) The Company is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended. (iv) The Significant Subsidiary has been duly organized and is validly existing and in good standing under the laws of the jurisdiction of its organization, has the requisite corporate power and authority to own, lease and operate its properties, to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and. To such counsel’s knowledge, except as otherwise described in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding shares of capital stock of or other equity interests in the Significant Subsidiary have been duly authorized and validly issued, are fully paid and non90-assessable and are owned by the Company, directly or through subsidiaries, to the best of such counsel’s knowledge free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity. To such counsel’s knowledge, none of the outstanding shares of capital stock of or other equity interests in the Significant Subsidiary were issued in violation of the preemptive or similar rights of any securityholder of such Significant Subsidiary or any other entity. (v) The deposit accounts of each of the Company’s banking subsidiaries are insured day lock-up to the applicable limits by the Deposit Insurance Fund of the FDIC to the fullest extent permitted by law and the rules and regulations of the FDIC, and, to the best of such counsel’s knowledge, no proceeding for the revocation or termination of such insurance is pending or threatened. (vi) To the best of such counsel’s knowledge, except as described in the Registration Statement, the General Disclosure Package and the Prospectus, (A) neither the Company nor any of its subsidiaries is subject or party to, or has received any notice or advice from any Regulatory Agency that any of them are reasonably expected to become subject or party to any investigation with respect to, any Regulatory Agreement, (B) neither the Company nor any of its subsidiaries has been advised by any Regulatory Agency that it is considering issuing or requesting any Regulatory Agreement, (C) there is no unresolved violation, criticism or exception by any Regulatory Agency with respect to any report or statement relating to any examinations of the Company or any of its subsidiaries and (D) the Company and its subsidiaries are in compliance in all material respects with all laws administered by the Regulatory Agencies. (vii) Each of the Company and the Significant Subsidiary (A) is duly qualified 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 and (B) holds all Governmental Licenses issued by Governmental Entities necessary to conduct the business now operated by them, except where the failure so to qualify or to be in good standing or to hold any such Governmental Licenses would not, singly or in the aggregate, result in a Material Adverse Effect. (viii) The outstanding shares of capital stock of the Company, including the Securities, have been duly authorized and validly issued and are fully paid and non-assessable. To such counsel’s knowledge, none of the outstanding shares of capital stock of the Company, including the Securities, were issued in violation of the preemptive or other similar rights of any securityholder of the Company or any other entity. (ix) The Underwriting Agreement has been duly authorized, executed and delivered by each of the Company and the Bank. (x) The Certificate of Designations for the Securities has been duly filed with the Secretary of State of the State of Delaware. The form of certificate representing the Securities complies in all material respects with the requirements of Delaware state law, the Charter and the By-Laws. (xi) To the best of such counsel’s knowledge, except as described in the Registration Statement, the General Disclosure Package and the Prospectus, there is no action, suit, proceeding, inquiry or investigation before or brought by any Governmental Entity now pending or threatened against or affecting the Company or any of its subsidiaries which could, singly or in the aggregate, result in a Material Adverse Effect, or which might reasonably be expected to materially and adversely affect their respective properties, assets or operations or the consummation of the transactions contemplated in the Underwriting Agreement or the performance by the Company of its obligations under the Operative Documents. The aggregate of all pending legal or governmental proceedings known to such counsel to which the Company or any of its subsidiaries are a party or of which any of their respective properties, assets or operations are the subject which are not described in the Registration Statement, the General Disclosure Package and the Prospectus, including ordinary routine litigation incidental to the business, would not, singly or in the aggregate, result in a Material Adverse Effect. (xii) The information in the Registration Statement, the General Disclosure Package and the Prospectus under “Description of Capital Stockperiod,” “Description of Series A Preferred Stock” and “Certain Material United States Federal Income Tax Considerations” or comparable captions and the information in the Registration Statement under “Item 15—Indemnification of Officers and Directors,” in each case to the extent that such information constitutes matters of law, summaries of legal matters, the Charter, By-Laws or legal proceedings, or legal conclusions, has been reviewed by such counsel and is correct in all material respects. (xiii) All descriptions in the Registration Statement, the General Disclosure Package and the Prospectus of contracts and other documents to which the Company or any of its subsidiaries are a party are accurate in all material respects. To the best of such counsel’s knowledge, there are no contracts, instruments or other documents required to be described in the Registration Statement, any preliminary prospectus or the Prospectus or to be filed as exhibits to the Registration Statement which have not been so described and filed as required. (xiv) To the best of such counsel’s knowledge, the execution, delivery and performance of the Operative Documents and the consummation of the transactions contemplated in the Underwriting Agreement and in the Registration Statement, [including the purchase by the Company of Securities in the offering,] the General Disclosure Package and the Prospectus and compliance by the Company with its obligations under the Operative Documents 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 ____) under, or result in the creation or imposition of any lien, charge or encumbrance upon

Appears in 1 contract

Samples: Purchase Agreement (TreeHouse Foods, Inc.)

Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof. If the foregoing is in accordance with your understanding of our agreement, please sign and return to the ~~Company~~ Transaction Entities and the Manger a counterpart hereof, whereupon this instrument, along with all counterparts, will become a valid and legally binding agreement among the Underwriters, the ~~Company, the Bank~~ Transaction Entities and the ~~Selling Shareholder~~ Manager in accordance with its terms. Very truly yours, ~~FIRST FINANCIAL HOLDINGS~~SAFETY, INCOME AND GROWTH, INC. By: /s/ ~~Xxxxxx~~ Xxxxxxxx X. ~~Xxxxxxxxxx~~ Xxxxx Name: ~~Xxxxxx~~ Xxxxxxxx X. ~~Xxxxxxxxxx~~ Xxxxx Title: ~~EVP and Chief Financial Officer FIRST FEDERAL SAVINGS~~ General Counsel, Corporate & Secretary SAFETY INCOME AND ~~LOAN ASSOCIATION OF CHARLESTON~~ GROWTH OPERATING PARTNERSHIP LP By: SIGOP Gen Par LLC, as General Partner By: /s/ ~~Xxxxxx~~ Xxxxxxxx X. ~~Xxxxxxxxxx~~ Xxxxx Name: ~~Xxxxxx~~ Xxxxxxxx X. ~~Xxxxxxxxxx~~ Xxxxx Title: ~~EVP and Chief Financial Officer UNITED STATES DEPARTMENT OF THE TREASURY~~General Counsel, ~~as Selling Shareholder~~ Corporate & Secretary SFTY MANAGER LLC By: /s/ ~~Xxxxxx~~ Xxxxxxxx X. Xxxxx Name: ~~Xxxxxx~~ Xxxxxxxx X. Xxxxx Title: ~~Chief Investment Officer CONFIRMED AND ACCEPTED~~General Counsel, Corporate & Secretary as of the date first above written: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX ~~By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX~~ INCORPORATED By: /s/ Xxxxx Xxxxxx X.X. XXXXXX SECURITIES LLC By: /s/ Xxxxxx Xxxxxxx ~~X. Xxxxx~~ BARCLAYS CAPITAL INC. By: /s/ Schecky Xxxxxxxxx For ~~itself~~ themselves and as ~~Representative~~ Representatives of the other Underwriters named in Schedule A hereto. The initial public offering price per share for the Securities shall be $20.00. The purchase price per share for the Securities to be paid by the several Underwriters shall be $~~860.4073~~18.60, being an amount equal to the initial public offering price set forth ~~in Schedule B~~ above less $~~13.1027~~ 1.40 per share, subject to adjustment in accordance with Section 2(b) for distributions declared by the Company and payable on the Initial Securities but not payable on the Option Securities. ~~Name of Underwriter Number of Securities~~ Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ~~60,125~~ 3,280,000 X.X. Xxxxxx ~~Xxxxxxxx~~Securities LLC 2,408,750 Barclays Capital Inc. 2,408,750 Citigroup Global Markets Inc. 922,500 Xxxxxxx Xxxxx & Associates, Inc. 922,500 Mizuho Securities USA LLC ~~1,625 XX Xxxx Capital~~307,500 Total 10,250,000 1. The Company is selling 10,250,00 shares of Common Stock. 2. The Company has granted an option to the Underwriters, ~~LLC 1,625 TBC Securities~~severally and not jointly, ~~LLC 1,625 Total 65,000~~ to purchase up to an additional 1,537,500 shares of Common Stock. 3. The initial public offering price per share for the Securities shall be $~~873.51~~20.00. ~~The number~~ None Investor Presentation dated April 2017 iStar Inc. SFTY Venture LLC SFTY VII-B, LLC Xxx Xxxxxxxx Xxxx X. Xxxxx Xxxxxxxx X. Xxxxxx Xxxx X. Xxxxx Xxxxx Xxxxxxx Xxx X. Xxxxxx Xxxxxx X. Xxxxx Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated Xxx Xxxxxx Xxxx Xxx Xxxx, Xxx Xxxx 00000 X.X. Xxxxxx Securities LLC 000 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 Barclays Capital Inc. 000 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 as Representatives of ~~Securities~~ the several Underwriters to be ~~sold~~ named in the within-mentioned Underwriting Agreement Re: Proposed Public Offering by Safety, Income and Growth, Inc. Dear Sirs: The undersigned, a stockholder, officer and/or director of Safety, Income and Growth, Inc., a Maryland corporation (the ~~Selling Shareholder shall be 65,000. The settlement date / closing time shall be April 3~~“Company”), ~~2012. 1. NONE~~ understands that Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, X.X. Xxxxxx Securities LLC and Barclays Capital Inc. (itogether, the “Representatives”) ~~Each~~ propose to enter into an Underwriting Agreement (the “Underwriting Agreement”) with the Company, Safety Income and Growth Operating Partnership LP (the “Operating Partnership”) and SFTY Manager LLC providing for the public offering of the ~~Registration Statement and any post-effective amendment thereto has been declared effective by~~ Company’s shares of common stock, $0.01 par value per share (the ~~Commission under~~ “Common Stock”). In recognition of the ~~1933 Act. Each preliminary prospectus~~benefit that such an offering will confer upon the undersigned as a stockholder, ~~each Issuer Free Writing Prospectus and~~ officer and/or director of the ~~Prospectus have been filed as required by Rule 424(b) (without reliance on Rule 424(b)(8)) and Rule 433, as applicable, within the time period prescribed by~~Company, and ~~in compliance with~~for other good and valuable consideration, the ~~1933 Act Regulations. To the best~~ receipt and sufficiency of such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued under the 1933 Act, no order preventing or suspending the use of any preliminary prospectus or the Prospectus or any amendment or supplement thereto has been issued and no proceedings for any of those purposes have been instituted or which are ~~pending or contemplated by the Securities and Exchange Commission. (ii) The Registration Statement~~hereby acknowledged, the ~~General Disclosure Package and the Prospectus and~~ undersigned agrees with each ~~amendment or supplement~~ underwriter to the Registration Statement, the General Disclosure Package and the Prospectus, as of their respective effective or deemed effective or issue dates (other than (1) the financial statements (including notes thereto) and supporting schedules included therein or omitted therefrom and (2) the documents incorporated or deemed incorporated therein by reference, as to which such counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations. (iii) The documents incorporated or deemed incorporated by reference be named in the ~~Registration Statement~~Underwriting Agreement that, during the ~~General Disclosure Package~~ period beginning on the date hereof and ending on the ~~Prospectus~~ date (~~other than~~ the ~~financial statements (including notes thereto~~“Expiration Date”) ~~and supporting schedules included therein or omitted therefrom, as to which we express no opinion), when they were filed with~~ that is 180 days from the ~~Commission, complied as to form in all material respects with the requirements~~ date of the 1934 Act and 1934 Act Regulations. (iv) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any Governmental Entity is necessary or required for the Company to enter into, or perform their respective obligations under, the Operative Documents or the consummation of the transactions contemplated in the Underwriting Agreement, ~~except~~ the undersigned will not, without the prior written consent of the Representatives, (i) directly or ~~such as have been already obtained~~ indirectly, offer, pledge, sell, contract to sell, sell any option or ~~as may~~ contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase or lend or otherwise transfer or dispose of any shares of Common Stock or any securities convertible into or exercisable or exchangeable for shares of Common Stock (including, without limitation, units of limited partnership interest in the Operating Partnership), whether now owned or hereafter acquired by the undersigned or with respect to which the undersigned has or hereafter acquires the power of disposition (collectively, the “Lock-Up Securities”), or exercise any right with respect to the registration of any of the Lock-Up Securities or cause to be ~~required~~ filed any registration statement in connection therewith, under the ~~1933 Act~~Securities Act of 1933, as amended, or publicly announce the intention to do any of the foregoing or (ii) enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the ~~1933 Act Regulations~~economic consequence of ownership of the Lock-Up Securities, whether any such swap, other agreement or transaction is to be settled by delivery of shares of Common Stock or other securities, in cash or otherwise. Notwithstanding the foregoing, and subject to the conditions below, the ~~securities laws of any state or non~~undersigned may transfer the Lock-~~U.S. jurisdiction or~~ Up Securities without the ~~rules of FINRA or by the Bank’s primary regulator for purposes of Section 7(e)~~ prior written consent of the ~~Underwriting Agreement. (v) To the best of such counsel’s knowledge~~Representatives, there are no persons with registration rights or other similar rights to have any securities registered for sale pursuant to the Registration Statement or otherwise registered for sale or sold by the Company under the 1933 Act pursuant to the Underwriting Agreement. (vi) The Company is not required, or upon consummation of the transactions contemplated in the Underwriting Agreement will be required, to register as an “investment company” under the 1940 Act. Although we assume no responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, General Disclosure Package or Prospectus, nothing has come to the attention of such counsel that has lead such counsel to believe provided that (1) the ~~Registration Statement or any amendment thereto, including any information deemed to be~~ Representatives receive a ~~part thereof pursuant to Rule 430B, at~~ signed lock-up agreement for the ~~time such Registration Statement or any such amendment became effective or as~~ balance of the ~~“new effective date,” contained an untrue statement of a material fact~~ period prior to the Expiration Date from each donee, trustee, distributee, or ~~omitted to state a material fact required to be stated therein or necessary to make~~ transferee, as the ~~statements therein not misleading~~case may be, (2) ~~the General Disclosure Package~~any such transfer shall not involve a disposition for value, at the Applicable Time, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of circumstances under which they were made, not misleading or (3) such transfers are not required to be reported with the Prospectus or any amendment or supplement thereto, at the time the Prospectus was issued, at the time any such amended or supplemented prospectus was issued or at the Closing Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary Securities and Exchange Commission on Form 4 in ~~order to make the statements therein, in the light~~ accordance with Section 16 of the ~~circumstances under which they were made~~Securities Exchange Act of 1934, as amended, and (4) the undersigned does not ~~misleading; it being understood that~~ otherwise voluntarily effect any public filing or report regarding such counsel makes no statement as to any financial statements (including notes thereto), supporting schedules and other financial data included in the Registration Statement, the General Disclosure Package and the Prospectus or omitted therefrom. 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).transfers: (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.~~bona fide gift or gifts; or (ii) ~~The Company has corporate power and authority~~ to ~~own~~any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned (for purposes of this lock-up agreement, ~~lease and operate its properties~~“immediate family” shall mean any relationship by blood, ~~to conduct its business as described in the Registration Statement~~marriage or adoption, ~~the General Disclosure Package and the Prospectus and to enter into and perform its obligations under, and to consummate the transactions contemplated under, the Operative Documents.~~not more remote than first cousin); or (iii) ~~The Company is duly registered~~ as a ~~bank holding company under~~ distribution to limited partners, members or stockholders of the ~~Bank Holding Company Act of 1956, as amended.~~undersigned; or (iv) ~~The Significant Subsidiary has been duly organized and is validly existing and in good standing under~~ to the ~~laws of the jurisdiction of its organization, has the requisite corporate power and authority~~ undersigned’s affiliates or to own, lease and operate its properties, to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and. To such counsel’s knowledge, except as otherwise described in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding shares of capital stock of any investment fund or other ~~equity interests in the Significant Subsidiary have been duly authorized and validly issued, are fully paid and non-assessable and are owned~~ entity controlled or managed by the Company, directly or through subsidiaries, to the best of such counsel’s knowledge free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity. To such counsel’s knowledge, none of the outstanding shares of capital stock of or other equity interests in the Significant Subsidiary were issued in violation of the preemptive or similar rights of any securityholder of such Significant Subsidiary or any other entityundersigned. (v) The deposit accounts of each of the Company’s banking subsidiaries are insured up to the applicable limits by the Deposit Insurance Fund of the FDIC to the fullest extent permitted by law and the rules and regulations of the FDIC, and, to the best of such counsel’s knowledge, no proceeding for the revocation or termination of such insurance is pending or threatened. (vi) To the best of such counsel’s knowledge, except as described in the Registration Statement, the General Disclosure Package and the Prospectus, (A) neither the Company nor any of its subsidiaries is subject or party to, or has received any notice or advice from any Regulatory Agency that any of them are reasonably expected to become subject or party to any investigation with respect to, any Regulatory Agreement, (B) neither the Company nor any of its subsidiaries has been advised by any Regulatory Agency that it is considering issuing or requesting any Regulatory Agreement, (C) there is no unresolved violation, criticism or exception by any Regulatory Agency with respect to any report or statement relating to any examinations of the Company or any of its subsidiaries and (D) the Company and its subsidiaries are in compliance in all material respects with all laws administered by the Regulatory Agencies. (vii) Each of the Company and the Significant Subsidiary (A) is duly qualified 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 and (B) holds all Governmental Licenses issued by Governmental Entities necessary to conduct the business now operated by them, except where the failure so to qualify or to be in good standing or to hold any such Governmental Licenses would not, singly or in the aggregate, result in a Material Adverse Effect. (viii) The outstanding shares of capital stock of the Company, including the Securities, have been duly authorized and validly issued and are fully paid and non-assessable. To such counsel’s knowledge, none of the outstanding shares of capital stock of the Company, including the Securities, were issued in violation of the preemptive or other similar rights of any securityholder of the Company or any other entity. (ix) The Underwriting Agreement has been duly authorized, executed and delivered by each of the Company and the Bank. (x) The Certificate of Designations for the Securities has been duly filed with the Secretary of State of the State of Delaware. The form of certificate representing the Securities complies in all material respects with the requirements of Delaware state law, the Charter and the By-Laws. (xi) To the best of such counsel’s knowledge, except as described in the Registration Statement, the General Disclosure Package and the Prospectus, there is no action, suit, proceeding, inquiry or investigation before or brought by any Governmental Entity now pending or threatened against or affecting the Company or any of its subsidiaries which could, singly or in the aggregate, result in a Material Adverse Effect, or which might reasonably be expected to materially and adversely affect their respective properties, assets or operations or the consummation of the transactions contemplated in the Underwriting Agreement or the performance by the Company of its obligations under the Operative Documents. The aggregate of all pending legal or governmental proceedings known to such counsel to which the Company or any of its subsidiaries are a party or of which any of their respective properties, assets or operations are the subject which are not described in the Registration Statement, the General Disclosure Package and the Prospectus, including ordinary routine litigation incidental to the business, would not, singly or in the aggregate, result in a Material Adverse Effect. (xii) The information in the Registration Statement, the General Disclosure Package and the Prospectus under “Description of Capital Stock,” “Description of Series A Preferred Stock” and “Certain Material United States Federal Income Tax Considerations” or comparable captions and the information in the Registration Statement under “Item 15—Indemnification of Officers and Directors,” in each case to the extent that such information constitutes matters of law, summaries of legal matters, the Charter, By-Laws or legal proceedings, or legal conclusions, has been reviewed by such counsel and is correct in all material respects. (xiii) All descriptions in the Registration Statement, the General Disclosure Package and the Prospectus of contracts and other documents to which the Company or any of its subsidiaries are a party are accurate in all material respects. To the best of such counsel’s knowledge, there are no contracts, instruments or other documents required to be described in the Registration Statement, any preliminary prospectus or the Prospectus or to be filed as exhibits to the Registration Statement which have not been so described and filed as required. (xiv) To the best of such counsel’s knowledge, the execution, delivery and performance of the Operative Documents and the consummation of the transactions contemplated in the Underwriting Agreement and in the Registration Statement, [including the purchase by the Company of Securities in the offering,] the General Disclosure Package and the Prospectus and compliance by the Company with its obligations under the Operative Documents 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 ____) under, or result in the creation or imposition of any lien, charge or encumbrance upon

Appears in 1 contract

Samples: Underwriting Agreement (Safety, Income & Growth, Inc.)

Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof. If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the Underwriters, the Company, the Bank and the Selling Shareholder in accordance with its terms. Very truly yours, ~~FIRST~~ MAINSOURCE FINANCIAL ~~HOLDINGS~~GROUP, INC. ., an Indiana corporation By: /s/ Xxxxxx X. ~~Xxxxxxxxxx~~ Xxxxx, Xx. Name: Xxxxxx X. ~~Xxxxxxxxxx~~ Xxxxx, Xx. Title: ~~EVP~~ President and Chief ~~Financial~~ Executive Officer ~~FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF CHARLESTON~~ MAINSOURCE BANK By: /s/ ~~Xxxxxx~~ Xxxxx X. ~~Xxxxxxxxxx~~ Xxxxxxxx Name: ~~Xxxxxx~~ Xxxxx X. ~~Xxxxxxxxxx~~ Xxxxxxxx Title: ~~EVP~~ President and Chief ~~Financial~~ Executive Officer UNITED STATES DEPARTMENT OF THE TREASURY, as Selling Shareholder By: /s/ Xxxxxx Xxxxx Name: Xxxxxx Xxxxx Title: Chief Investment Officer CONFIRMED AND ACCEPTED, as of the date first above written: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED SANDLER X’XXXXX & PARTNERS, L.P. By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED By: /s/ Xxxxxxx X. Xxxxx Authorized Signatory By: SANDLER X’XXXXX & PARTNERS, L.P. By: Sandler X’Xxxxx & Partners Corp., the sole general partner By: /s/ XX Xxxxxxxx Name: Xxxxxx X. Xxxxxxxx Title: An Officer of the Corporation For ~~itself~~ themselves and as ~~Representative~~ Representatives of the other Underwriters named in Schedule A hereto. The purchase price per share for the Securities to be paid by the several Underwriters shall be $~~860.4073~~917.1433, being an amount equal to the initial public offering price set forth in Schedule B less $~~13.1027~~ 13.9667 per share. ~~Name of Underwriter Number of Securities~~ Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ~~60,125~~ 26,363 Sandler X’Xxxxx & Partners, L.P. 26,362 Xxxxxx Xxxxxxxx, LLC ~~1,625~~ 1,425 XX Xxxx Capital, ~~LLC 1,625~~ Inc. 1,425 TBC Securities, LLC ~~1,625~~ 1,425 Total ~~65,000~~ 57,000 The initial public offering price per share for the Securities shall be $~~873.51. The number of Securities to be sold by the Selling Shareholder shall be 65,000~~931.11. The settlement date / closing time shall be April 3, 2012. None. ~~1. NONE~~ (i) The Company has been duly incorporated and is validly existing as a corporation under the laws of the State of Indiana. (ii) The Company has corporate power and authority to own, lease and operate its properties, to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and to enter into and perform its obligations under, and to consummate the transactions contemplated under, the Operative Documents, including the purchase by the Company of Securities in the offering. (iii) The Company is duly registered as a financial holding company under the Xxxxx-Xxxxx-Xxxxxx Act. (iv) Each Significant Subsidiary has been duly organized and is validly existing and in good standing under the laws of the jurisdiction of its organization, has the requisite power and authority to own, lease and operate its properties, to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and, in the case of the Bank, to enter into, and perform its obligations under, this Agreement. Except as otherwise described in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding shares of capital stock of or other equity interests in each Significant Subsidiary have been duly authorized and validly issued, are fully paid and non-assessable and are owned by the Company, directly or through subsidiaries, to the best of such counsel’s knowledge free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity. None of the outstanding shares of capital stock of or other equity interests in any Significant Subsidiary were issued in violation of the preemptive or similar rights of any securityholder of such Significant Subsidiary or any other entity. (v) To the best of such counsel’s knowledge, except as described in the Registration Statement, the General Disclosure Package and the Prospectus, (A) neither the Company nor any of its subsidiaries is subject or party to, or has received any notice or advice that any of them may become subject or party to any investigation with respect to, any Regulatory Agreement, (B) neither the Company nor any of its subsidiaries has been advised by any Regulatory Agency that it is considering issuing or requesting any Regulatory Agreement, (C) there is no unresolved violation, criticism or exception by any Regulatory Agency with respect to any report or statement relating to any examinations of the Company or any of its subsidiaries and (D) the Company and its subsidiaries are in compliance in all material respects with all laws administered by the Regulatory Agencies. (vi) Each of the Company and the Significant Subsidiaries (A) is duly qualified 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 and (B) holds all Governmental Licenses issued by Governmental Entities necessary to conduct the business now operated by them, except where the failure so to qualify or to be in good standing or to hold any such Governmental Licenses would not, singly or in the aggregate, result in a Material Adverse Effect. (vii) The authorized, issued and outstanding shares of Preferred Stock are as set forth in the Registration Statement, the General Disclosure Package and the Prospectus. The outstanding shares of capital stock of the Company, including the Securities, have been duly authorized and validly issued and are fully paid and non-assessable. None of the outstanding shares of capital stock of the Company, including the Securities, were issued in violation of the preemptive or other similar rights of any securityholder of the Company or any other entity. (viii) The Underwriting Agreement has been duly authorized, executed and delivered by each of the Company and the Bank. (ix) The Articles of Amendment for the Securities has been duly filed with the Secretary of State of the State of Indiana. The form of certificate representing the Securities complies in all material respects with the requirements of Indiana state law, the Charter and the By-Laws. (x) Each of the Registration Statement and any post-effective amendment thereto has been declared effective by the Commission under the 1933 Act. Each preliminary prospectus, each Issuer Free Writing Prospectus and the Prospectus have been filed as required by Rule 424(b) (without reliance on Rule 424(b)(8)) and Rule 433, as applicable, within the time period prescribed by, and in compliance with, the 1933 Act Regulations. To the best of such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued under the 1933 Act, no order preventing or suspending the use of any preliminary prospectus or the Prospectus or any amendment or supplement thereto has been issued and no proceedings for any of those purposes have been instituted or are pending or ~~contemplated by the Securities and Exchange Commission~~contemplated. (iixi) The Registration Statement, the General Disclosure Package and the Prospectus and each amendment or supplement to the Registration Statement, the General Disclosure Package and the Prospectus, as of their respective effective or deemed effective or issue dates (other than (1) the financial statements (including notes thereto) and supporting schedules included therein or omitted therefrom and (2) the documents incorporated or deemed incorporated therein by reference, as to which such counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations. (~~iii~~xii) The documents incorporated or deemed incorporated by reference in the Registration Statement, the General Disclosure Package and the ~~Prospectus (other than the financial statements (including notes thereto) and supporting schedules included therein or omitted therefrom, as to which we express no opinion)~~Prospectus, when they were filed with the Commission, complied as to form in all material respects with the requirements of the 1934 Act and 1934 Act Regulations. (iv) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any Governmental Entity is necessary or required for the Company to enter into, or perform their respective obligations under, the Operative Documents or the consummation of the transactions contemplated in the Underwriting Agreement, except or such as have been already obtained or as may be required under the 1933 Act, the 1933 Act Regulations, the securities laws of any state or non-U.S. jurisdiction or the rules of FINRA or by the Bank’s primary regulator for purposes of Section 7(e) of the Underwriting Agreement. (v) To the best of such counsel’s knowledge, there are no persons with registration rights or other similar rights to have any securities registered for sale pursuant to the Registration Statement or otherwise registered for sale or sold by the Company under the 1933 Act pursuant to the Underwriting Agreement. (vi) The Company is not required, or upon consummation of the transactions contemplated in the Underwriting Agreement will be required, to register as an “investment company” under the 1940 Act. Although we assume no responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, General Disclosure Package or Prospectus, nothing has come to the attention of such counsel that has lead such counsel to believe that (1) the Registration Statement or any amendment thereto, including any information deemed to be a part thereof pursuant to Rule 430B, at the time such Registration Statement or any such amendment became effective or as of the “new effective date,” 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, (2) the General Disclosure Package, at the Applicable Time, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of circumstances under which they were made, not misleading or (3) the Prospectus or any amendment or supplement thereto, at the time the Prospectus was issued, at the time any such amended or supplemented prospectus was issued or at the Closing Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; it being understood that such counsel makes no statement as to any financial statements (including notes thereto), supporting schedules and other financial data included in the Registration Statement, the General Disclosure Package and the Prospectus or omitted therefrom. 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). (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, to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and to enter into and perform its obligations under, and to consummate the transactions contemplated under, the Operative Documents. (iii) The Company is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended. (iv) The Significant Subsidiary has been duly organized and is validly existing and in good standing under the laws of the jurisdiction of its organization, has the requisite corporate power and authority to own, lease and operate its properties, to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and. To such counsel’s knowledge, except as otherwise described in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding shares of capital stock of or other equity interests in the Significant Subsidiary have been duly authorized and validly issued, are fully paid and non-assessable and are owned by the Company, directly or through subsidiaries, to the best of such counsel’s knowledge free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity. To such counsel’s knowledge, none of the outstanding shares of capital stock of or other equity interests in the Significant Subsidiary were issued in violation of the preemptive or similar rights of any securityholder of such Significant Subsidiary or any other entity. (v) The deposit accounts of each of the Company’s banking subsidiaries are insured up to the applicable limits by the Deposit Insurance Fund of the FDIC to the fullest extent permitted by law and the rules and regulations of the FDIC, and, to the best of such counsel’s knowledge, no proceeding for the revocation or termination of such insurance is pending or threatened. (vi) To the best of such counsel’s knowledge, except as described in the Registration Statement, the General Disclosure Package and the Prospectus, (A) neither the Company nor any of its subsidiaries is subject or party to, or has received any notice or advice from any Regulatory Agency that any of them are reasonably expected to become subject or party to any investigation with respect to, any Regulatory Agreement, (B) neither the Company nor any of its subsidiaries has been advised by any Regulatory Agency that it is considering issuing or requesting any Regulatory Agreement, (C) there is no unresolved violation, criticism or exception by any Regulatory Agency with respect to any report or statement relating to any examinations of the Company or any of its subsidiaries and (D) the Company and its subsidiaries are in compliance in all material respects with all laws administered by the Regulatory Agencies. (vii) Each of the Company and the Significant Subsidiary (A) is duly qualified 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 and (B) holds all Governmental Licenses issued by Governmental Entities necessary to conduct the business now operated by them, except where the failure so to qualify or to be in good standing or to hold any such Governmental Licenses would not, singly or in the aggregate, result in a Material Adverse Effect. (viii) The outstanding shares of capital stock of the Company, including the Securities, have been duly authorized and validly issued and are fully paid and non-assessable. To such counsel’s knowledge, none of the outstanding shares of capital stock of the Company, including the Securities, were issued in violation of the preemptive or other similar rights of any securityholder of the Company or any other entity. (ix) The Underwriting Agreement has been duly authorized, executed and delivered by each of the Company and the Bank. (x) The Certificate of Designations for the Securities has been duly filed with the Secretary of State of the State of Delaware. The form of certificate representing the Securities complies in all material respects with the requirements of Delaware state law, the Charter and the By-Laws. (xixiii) To the best of such counsel’s knowledge, except as described in the Registration Statement, the General Disclosure Package and the Prospectus, there is no action, suit, proceeding, inquiry or investigation before or brought by any Governmental Entity now pending or threatened against or affecting the Company or any of its subsidiaries which could, singly or in the aggregate, result in a Material Adverse Effect, or which might ~~reasonably be expected to~~ materially and adversely affect their respective properties, assets or operations or the consummation of the transactions contemplated in the Underwriting Agreement or the performance by the Company of its obligations under the Operative Documents. The aggregate of all pending legal or governmental proceedings known to such counsel to which the Company or any of its subsidiaries are a party or of which any of their respective properties, assets or operations are the subject which are not described in the Registration Statement, the General Disclosure Package and the Prospectus, including ordinary routine litigation incidental to the business, would not, singly or in the aggregate, result in a Material Adverse Effect. In this regard, we hereby advise you that we have made no independent search of the records or dockets of any court or any Governmental Entity. (~~xii~~xiv) The information in the Registration Statement, the General Disclosure Package and the Prospectus under “Description of Capital Stock,” “Description of ~~Series A~~ Preferred Stock” and “Certain Material United States Federal Income Tax Considerations,” or comparable ~~captions~~ captions, the information in the Company’s most recent Annual Report on Form 10-K under “Item 2—Property” and “Item 3—Litigation,” the information in the Company’s most recent definitive proxy statement on Schedule 14A under “Board of Directors and Corporate Governance” and “Executive Compensation,” and the information in the Registration Statement under “Item 15—Indemnification of ~~Officers~~ Directors and ~~Directors~~Officers,” ~~in each case~~ to the extent that such information constitutes matters of law, summaries of legal matters, the Charter, By-Laws or legal proceedings, or legal conclusions, has been reviewed by such counsel and is correct in all material respects. (~~xiii~~xv) ~~All descriptions in the Registration Statement~~No filing with, ~~the General Disclosure Package and the Prospectus of contracts and other documents to which~~ or authorization, approval, consent, license, order, registration, qualification or decree of, any Governmental Entity is necessary or required for the Company or ~~any~~ the Bank to enter into, or perform their respective obligations under, the Operative Documents or the consummation of ~~its subsidiaries are a party are accurate in all material respects. To~~ the ~~best of such counsel’s knowledge, there are no contracts, instruments or other documents required to be described~~ transactions contemplated in the ~~Registration Statement~~Underwriting Agreement, except or such as have been already obtained or as may be required under the 1933 Act, the 1933 Act Regulations, the securities laws of any ~~preliminary prospectus~~ state or non-U.S. jurisdiction or the ~~Prospectus or to be filed as exhibits to the Registration Statement which have not been so described and filed as required~~rules of FINRA. (~~xiv~~xvi) To the best of such counsel’s knowledge, the execution, delivery and performance of the Operative Documents and the consummation of the transactions contemplated in the Underwriting Agreement and in the Registration Statement, [including the purchase by the Company of Securities in the offering,] , the General Disclosure Package and the Prospectus and compliance by the Company and the Bank with ~~its~~ their respective obligations under the Operative Documents 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 ____)~~ under, or result in the creation or imposition of any lien, charge or encumbrance ~~upon~~upon any properties, assets or operations of the Company or any of its subsidiaries pursuant to, the Agreements and Instruments, except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not, singly or in the aggregate, result in a Material Adverse Effect, nor will such action result in any violation of the provisions of the Charter, By-Laws or similar organizational documents of the Company or any of its subsidiaries or any applicable law, statute, rule, regulation, judgment, order, writ or decree, known to such counsel, of any Governmental Entity. (xvii) To the best of such counsel’s knowledge, there are no persons with registration rights or other similar rights to have any securities registered for sale pursuant to the Registration Statement or otherwise registered for sale or sold by the Company under the 1933 Act pursuant to the Underwriting Agreement. (xviii) Neither the Company nor the Bank is required, or upon consummation of the transactions contemplated in the Underwriting Agreement will be required, to register as an “investment company” under the 1940 Act.

Appears in 1 contract

Samples: Underwriting Agreement (Mainsource Financial Group)

Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof. If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company and the Attorney-in-Fact for the Selling Stockholders listed on Schedule B-2 hereto a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the ~~Underwriters~~Underwriter, the ~~Company, the Bank~~ Company and the Selling ~~Shareholder~~ Stockholders in accordance with its terms. Very truly yours, ~~FIRST FINANCIAL HOLDINGS~~XXXXXXXX XXXXX, INC. By: /s/ Xxxxxx X. Xxxxxxxxxx Name: Xxxxxx X. Xxxxxxxxxx Title: EVP and Chief Financial Officer FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF CHARLESTON By: /s/ Xxxxxx X. Xxxxxxxxxx Name: Xxxxxx X. Xxxxxxxxxx Title: EVP and Chief Financial Officer UNITED STATES DEPARTMENT OF THE TREASURY, as Selling Shareholder By: /s/ Xxxxxx J. Xxxxxxx Xxxxx Name: ~~Xxxxxx~~ J. Xxxxxxx Xxxxx Title: Chief ~~Investment~~ Financial Officer ORIX HLHZ HOLDING LLC By: ORIX OPCO HOLDINGS, LLC, its sole member By: ORIX CAPITAL MARKETS, LLC, its sole member By: /s/ Xxxx Xxxxxx Name: Xxxx Xxxxxx Title: Chief Financial Officer The Selling Stockholders named in Schedule B-2 hereto By: /s/ Xxxxxxxxxxx Xxxxx Name: Xxxxxxxxxxx Xxxxx As Attorney-in-Fact acting on behalf of the Selling Stockholders named in Schedule B-2 hereto CONFIRMED AND ACCEPTED, as of the date first above written: XXXXXXX ~~LYNCH, PIERCE, XXXXXX~~ SACHS & ~~XXXXX By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX~~ CO. LLC By: /s/ Xxxx Xxxxxxx ~~X. Xxxxx For itself and as Representative of~~ Name: Xxxx Xxxxxxx Title: Managing Director The initial public offering price per share for the ~~other Underwriters named in Schedule A hereto~~Securities shall be $49.15. The purchase price per share for the Securities to be paid by the ~~several Underwriters~~ Underwriter shall be $~~860.4073~~49.11, being an amount equal to the initial public offering price set forth ~~in Schedule B~~ above less $~~13.1027~~ 0.04 per share. Name of Underwriter Number of Securities Xxxxxxx ~~Lynch~~Xxxxx & Co. LLC 3,000,000 ORIX HLHZ Holding LLC 1,985,983 Selling Stockholders: Number of Securities to be Sold Xxxx Xxxx Xxxxxxx Revocable Trust 68,768 Xxxxx, ~~Pierce~~Xxxxx 65,821 Xxxxxxxxxxx, Xxxxxxx 64,526 Xxxx, Xxxxxx & 57,843 Xxxxxx, Tuck (Xxxxxxx) 48,138 Xxxxxxxxx, Xxxxx ~~Incorporated 60,125~~ 45,065 Xxxxx, Xxxxxx 38,037 Xxxxxx, Xxxx 38,020 Xxxxxxx, Xxxx 35,794 Xxxxxxxx, ~~LLC 1,625 XX~~ Xxxxx 34,908 Xxxxxxx, Xxxxxx 33,034 Xxxxxxx, Xxxxx 30,503 Xxxxxxx, Xxxxxx 21,297 The Xxxx ~~Capital~~Stock Trust 19,436 Xxxxxxxxx, ~~LLC 1,625 TBC Securities~~Xxxxxxxx 17,807 Xxxxxxx, ~~LLC 1,625 Total 65,000~~ Xxxxxxx 16,046 Xxxxxxxxxx, Xxxxx 15,985 The Alley Stock Trust 13,895 Xxxxx, Xxxxxxxxxxx 13,887 Winthrop Family Trust 13,764 Xxxx, Xxxxxx 10,517 Xxxxxx, Xxxx 9,961 Xxxxx, Xxxx 9,794 Xxxxxx, Xxxxxxx 9,052 Xxxxxxxxxx-Xxxxx Living Trust 8,854 The Kolbrenner Stock Trust 8,468 Xxxxxxx, Xxxxxxx 7,118 Xxxxxx, Xxxxxxxxxxx 7,053 Xxxxxxx, Xxxxxxx 6,473 Xxxxxxxx-Xxxxxxx, Xxxxxx 6,316 Benshimon, Laurent 6,125 Xxxxxxx, Xxxxx 5,634 Xxxxx, Xxxxx 5,510 Xxxxxx, Xxxxx 5,470 Xxxxxx, Xxxxx 5,027 Xxxxxxx, Xxxxxxx 5,003 Lerche, Niklas 4,982 Xxxxxxxxxxxxx, Xxxx 4,967 Xxxxxxxx, Xxxx 4,933 Xxxxxx, Xxxxxxx 4,790 Xxxxxx, Xxxxxxx 4,779 Xxxxxxxx, Xxxx 4,763 Xxxxxx, Xxxxxxx 4,757 Xxxxxxxx, Xxxx 4,534 Xxxxxx, Xxxxx 4,286 Kent, Ranon 4,141 Xxxx, Xxxxxx 3,932 Xxxxxx, Xxxxxxxx 3,846 Xxxxxxxx, Xxxxx 3,781 X’Xxxxx, Xxxx 3,775 Dereuver, Gijs 3,670 Xxxxx, Xxxx 3,646 Xxxx, Xxxx 3,622 Xxxxx, Xxxx 3,471 The Xxxxxx Stock Trust 3,185 Xxxxxxxxx, Xxxxxx 3,014 The Xxxxxxxx Stock Trust 2,981 Xxxxxx, Xxxxx 2,926 Xxxxxxxx, Xxxxxx 2,841 Xxxxxxxx, Xxxxxxx 2,814 Xxxxxx, Xxx 2,798 The Xx Xxxxx Stock Trust 2,752 The Xxxxxx Stock Trust 2,725 Xxxxxx, Xxxxxx 2,679 Xxxxxx, Xxxx-Xxxx 2,522 Xxxxxxxx, Xxxx 2,425 Xxxxx, Xxxxxxxxxxx 2,413 Voukadinov, Dimitar 2,407 Xxxxx, Xxxxx 2,311 Xxxxxxx, Xxxx 2,153 Xxxxxxxxxx, Xxxxx 2,152 Xxxx, Xxxxxx 2,151 Xxxxxxx, Xxxxxxx 2,030 Xxxxxxx Xxxxx, Trustee of the Tchen Stock Trust 1,952 Xxxxxx, Xxxx 1,895 Xxxxx, Xxx 1,805 Xx Xxxx, Xxxxxxx 1,776 Xxxxxxxxx, Xxxxxxx 1,676 Xxxxxx, Xxxx 1,657 Xxxxx, Xxxxxxx 1,650 Xxxxxx, Xxxxxx 1,638 Xxxxx, Xxxxx 1,536 Page, Xxxxx 1,536 Xxxxxx, Xxxxx 1,505 Xxxxxxxxxx, Xxxxx 1,488 Xxxxxxx, Xxxxxxx 1,446 Xxxxxxx, Xxxx 1,431 Xxxxxx, Xxxxxxx 1,425 Xxxxxxx, Xxxxx 1,288 Xxxxxxxxxx, Xxxxxxx 1,263 Xxxxxxxxxx, Xxxxxxx 1,246 Xxxxx, Xxxxxxx 1,240 Xxxxxx, Xander 1,159 Xxxxxxx, Xxxx 1,145 Xxxxxxxxxx, Xxx 1,110 Xxxxxxxx, Xxxxxx 1,090 Xxxxxxxx, Xxxxx 1,051 Xxxxxxxx, Xxxxxxx 1,046 Xxxxxxx, Xxxxx 1,010 Xxxxxxxx, Xxxxxx 977 Xxx-Xxxxxxxx, Xxxxxxx 958 Xxxxx, Xxxxxxx 949 Xxxxxx, Xxxxx 943 Xxxxxxxx, Xxxxxxx 924 Xxxxxxxx, Xxxxx 900 Xxxxxx, Xxxxxxxx 860 Xxxxxx, Xxxxx 850 The Xxxxxxx Stock Trust 818 Xxxxxxx, Xxxxx 817 Xxxxxx, Xxxxxxxx 813 Xxxxx, Xxxxx 810 Xxxxx, Xxxxxxx 795 Wieshofer Stock Trust 776 Xxxx, Xxxxxx 737 Xxxxx, Xxxxx 733 Xxxx, Xxxxxxx 712 Xxxxxx, Xxxxx 710 Xxxxxxxxx, Xxxxxxx 708 Xxxxxxxx, Xxxxx 708 Xxxxxx, Chintin 706 Xxxxxx, Xxxxxx 691 The Xxxxx Stock Trust 671 Xxxxx, Xxxxxxxxxxx 655 Xxxxxxx, Xxxxxxx 636 Xxxxxx, Xxxxxx 628 Xxxxxx, Xxxxxx Sijbrand 593 Xxxxx, Xxxx 585 Xxxxxx, Xxxx 577 Xxxx, Xxx 568 Xxxxxxxx, Xxxxxxx 562 Abt, Xxxxx 554 Xxxxx, Xxxxx 551 Xxxxxxx, Xxxx 545 Cho, Xxxx Xxx (Xxxx) 531 Xxxxxxx, Xxxx 525 Xxxxxx, Xxxxxxx 524 Xxxxxx, Xxxxxxx 500 Xxxx, Xxxxx 000 Xxxxxxxx, Xxxx 472 Xxxxxxx, Xxxxx 470 Xxxxx, Xxxxxxx 468 X’Xxxxxxx, Xxxxxx 466 Xxxxxx, Xxxxxxx 436 Xxxxxxx X. Xxxxxx and Xxxxx X. Xxxxxx Marital Trust 430 Xxxxx, Xxxx 395 Xxxxxxxxxx, Xxxx 394 Xxxx, Xxxxxxxx 392 Xxxxxx, Xxxxx 387 Xxxxxx, Xxxxxx 365 Xxxxx, Xxxx 362 Xxxxxxx, Xxxxx 324 Xxxxxx, Xxxxxxxx 316 Xxxxx, Xxxxxx 315 Xxxxxxx, Xxxxxxx 301 Timblick, Xxxxx 000 Xxxxxxx, Xxxxxx 000 Xxxxxx Xxxxx, Xxxxx 281 Xxxxxxx, Xxxxxx 280 Xxxxxxxxxxx, Xxxx 276 Xxxxx, Xxxxxxx 271 Xxxxxx, Xxxxx 261 Xxxxxxx, Xxxxxxxxxx 259 Xxxx, Xxxxxx 255 Xxxxxxxx, Xxxxxx Christiaan 253 Xxxxx, Xxxxxxx 249 Xxxxx, Xxxxxx 242 Xxxxx, Xxxxxx 231 Xxxx, Xxxxxx 223 Xxxxxxx, Xxxxxxx 215 Xxxxxxxx, Xxxxxx 000 Xxxxxxxxx, Xxxxx 204 Xxx, Xxxxxxxx 199 Xxxxxx, Xxxx 191 Xxxxxxx, Xxxxxxx 186 Xxxxxx, Xxxxx Xxxxxx 182 Xxxxx, Xxxxx 176 Xxxxxxxx, Xxxxx 174 Xxxxx, Xxxxx 169 Wu, Xxxxxx 157 Xxxxxxxxxxx, Xxxxxxx Xxxx 149 Xxxxxx, Xxxxxx 136 Xxxxxx, Xxxxx 134 Xxxxxxxxxx, Xxxxxx 129 Xxxxxxx, Xxxxx 129 Xxxx, Xxxxxxxx 129 Xxx, Xxxxx 117 Xxxxxxx, Xxxxxxx 106 Xxxxxxxxx, Xxxxxxxxx 101 Xxxx, Xxxxx 101 Xxxxx, Xxxx 93 Xxxxxxxxx, Xxxx 84 Xxxxxxxx, Xxxx 83 Xxxxx, Xxxxx 76 Xxxxxx, Xxxx 70 Xxxxxxx, Xxxx 69 Xxxxx, Xxx 63 Xxx, Xxxx 62 Xxxxxx, Xxxxxx Xxxx 58 Xxxxxxx, Xxxxx 57 Xxxxxxxxx, Xxxxxxx 56 Xxxxxx, Xxxx 54 Xxxxxxxxx, Xxxx 50 Xxxxx, Xxxxxx Xxxxxx 50 Xxxxxxxx, Xxxxxx 47 Xxxxxx, Xxxxx 37 Xxxxx, Xxxxxx 30 Xxxxx, Xxxxxxxx 30 Xxxxx, Xxxx Xxxxxx 18 Xxxxxxx, Xxxxxxxxx 17 Xxxxxxxxx, Xxxxxx E 15 Xxxxxxx, Xxxxxxxxx 15 Xxxxx, Xxxxxxx 15 van Mazijk, Xxxxxx Xxxxxxx 13 Xxxxxxx, Xxxxxxxxx 11 Xxxxxxx, Xxxxxx 8 Laurenziello, Xxxxxx 7 Papi, Marco 7 Xxxxxxx, Xxxxxxx 5 Xxxxxxxx, Xxxx Xxxxxx 4 Khan, Xxxxx Xxx 3 Germany, Xxxxxx 3 1. The Selling Stockholders are selling 3,000,000 shares of Class A Common Stock. 2. The initial public offering price per share for the Securities shall be $~~873.51~~49.15. ~~The number of Securities to be sold by the Selling Shareholder shall be 65,000~~None. The settlement date / closing time shall be April 3, 2012. 1. NONE (i) Each of the Registration Statement and any post-effective amendment thereto has been declared effective by the Commission under the 1933 Act. Each preliminary prospectus, each Issuer Free Writing Prospectus and the Prospectus have been filed as required by Rule 424(b) (without reliance on Rule 424(b)(8)) and Rule 433, as applicable, within the time period prescribed by, and in compliance with, the 1933 Act Regulations. To the best of such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued under the 1933 Act, no order preventing or suspending the use of any preliminary prospectus or the Prospectus or any amendment or supplement thereto has been issued and no proceedings for any of those purposes have been instituted or are pending or contemplated by the Securities and Exchange Commission. (ii) The Registration Statement, the General Disclosure Package and the Prospectus and each amendment or supplement to the Registration Statement, the General Disclosure Package and the Prospectus, as of their respective effective or deemed effective or issue dates (other than (1) the financial statements (including notes thereto) and supporting schedules included therein or omitted therefrom and (2) the documents incorporated or deemed incorporated therein by reference, as to which such counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations. (iii) The documents incorporated or deemed incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus (other than the financial statements (including notes thereto) and supporting schedules included therein or omitted therefrom, as to which we express no opinion), when they were filed with the Commission, complied as to form in all material respects with the requirements of the 1934 Act and 1934 Act Regulations. (iv) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any Governmental Entity is necessary or required for the Company to enter into, or perform their respective obligations under, the Operative Documents or the consummation of the transactions contemplated in the Underwriting Agreement, except or such as have been already obtained or as may be required under the 1933 Act, the 1933 Act Regulations, the securities laws of any state or non-U.S. jurisdiction or the rules of FINRA or by the Bank’s primary regulator for purposes of Section 7(e) of the Underwriting Agreement. (v) To the best of such counsel’s knowledge, there are no persons with registration rights or other similar rights to have any securities registered for sale pursuant to the Registration Statement or otherwise registered for sale or sold by the Company under the 1933 Act pursuant to the Underwriting Agreement. (vi) The Company is not required, or upon consummation of the transactions contemplated in the Underwriting Agreement will be required, to register as an “investment company” under the 1940 Act. Although we assume no responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, General Disclosure Package or Prospectus, nothing has come to the attention of such counsel that has lead such counsel to believe that (1) the Registration Statement or any amendment thereto, including any information deemed to be a part thereof pursuant to Rule 430B, at the time such Registration Statement or any such amendment became effective or as of the “new effective date,” 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, (2) the General Disclosure Package, at the Applicable Time, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of circumstances under which they were made, not misleading or (3) the Prospectus or any amendment or supplement thereto, at the time the Prospectus was issued, at the time any such amended or supplemented prospectus was issued or at the Closing Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; it being understood that such counsel makes no statement as to any financial statements (including notes thereto), supporting schedules and other financial data included in the Registration Statement, the General Disclosure Package and the Prospectus or omitted therefrom. 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). (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, to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and to enter into and perform its obligations under, and to consummate the transactions contemplated under, the Operative Documents. (iii) The Company is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended. (iv) The Significant Subsidiary has been duly organized and is validly existing and in good standing under the laws of the jurisdiction of its organization, has the requisite corporate power and authority to own, lease and operate its properties, to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and. To such counsel’s knowledge, except as otherwise described in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding shares of capital stock of or other equity interests in the Significant Subsidiary have been duly authorized and validly issued, are fully paid and non-assessable and are owned by the Company, directly or through subsidiaries, to the best of such counsel’s knowledge free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity. To such counsel’s knowledge, none of the outstanding shares of capital stock of or other equity interests in the Significant Subsidiary were issued in violation of the preemptive or similar rights of any securityholder of such Significant Subsidiary or any other entity. (v) The deposit accounts of each of the Company’s banking subsidiaries are insured up to the applicable limits by the Deposit Insurance Fund of the FDIC to the fullest extent permitted by law and the rules and regulations of the FDIC, and, to the best of such counsel’s knowledge, no proceeding for the revocation or termination of such insurance is pending or threatened. (vi) To the best of such counsel’s knowledge, except as described in the Registration Statement, the General Disclosure Package and the Prospectus, (A) neither the Company nor any of its subsidiaries is subject or party to, or has received any notice or advice from any Regulatory Agency that any of them are reasonably expected to become subject or party to any investigation with respect to, any Regulatory Agreement, (B) neither the Company nor any of its subsidiaries has been advised by any Regulatory Agency that it is considering issuing or requesting any Regulatory Agreement, (C) there is no unresolved violation, criticism or exception by any Regulatory Agency with respect to any report or statement relating to any examinations of the Company or any of its subsidiaries and (D) the Company and its subsidiaries are in compliance in all material respects with all laws administered by the Regulatory Agencies. (vii) Each of the Company and the Significant Subsidiary (A) is duly qualified 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 and (B) holds all Governmental Licenses issued by Governmental Entities necessary to conduct the business now operated by them, except where the failure so to qualify or to be in good standing or to hold any such Governmental Licenses would not, singly or in the aggregate, result in a Material Adverse Effect. (viii) The outstanding shares of capital stock of the Company, including the Securities, have been duly authorized and validly issued and are fully paid and non-assessable. To such counsel’s knowledge, none of the outstanding shares of capital stock of the Company, including the Securities, were issued in violation of the preemptive or other similar rights of any securityholder of the Company or any other entity. (ix) The Underwriting Agreement has been duly authorized, executed and delivered by each of the Company and the Bank. (x) The Certificate of Designations for the Securities has been duly filed with the Secretary of State of the State of Delaware. The form of certificate representing the Securities complies in all material respects with the requirements of Delaware state law, the Charter and the By-Laws. (xi) To the best of such counsel’s knowledge, except as described in the Registration Statement, the General Disclosure Package and the Prospectus, there is no action, suit, proceeding, inquiry or investigation before or brought by any Governmental Entity now pending or threatened against or affecting the Company or any of its subsidiaries which could, singly or in the aggregate, result in a Material Adverse Effect, or which might reasonably be expected to materially and adversely affect their respective properties, assets or operations or the consummation of the transactions contemplated in the Underwriting Agreement or the performance by the Company of its obligations under the Operative Documents. The aggregate of all pending legal or governmental proceedings known to such counsel to which the Company or any of its subsidiaries are a party or of which any of their respective properties, assets or operations are the subject which are not described in the Registration Statement, the General Disclosure Package and the Prospectus, including ordinary routine litigation incidental to the business, would not, singly or in the aggregate, result in a Material Adverse Effect. (xii) The information in the Registration Statement, the General Disclosure Package and the Prospectus under “Description of Capital Stock,” “Description of Series A Preferred Stock” and “Certain Material United States Federal Income Tax Considerations” or comparable captions and the information in the Registration Statement under “Item 15—Indemnification of Officers and Directors,” in each case to the extent that such information constitutes matters of law, summaries of legal matters, the Charter, By-Laws or legal proceedings, or legal conclusions, has been reviewed by such counsel and is correct in all material respects. (xiii) All descriptions in the Registration Statement, the General Disclosure Package and the Prospectus of contracts and other documents to which the Company or any of its subsidiaries are a party are accurate in all material respects. To the best of such counsel’s knowledge, there are no contracts, instruments or other documents required to be described in the Registration Statement, any preliminary prospectus or the Prospectus or to be filed as exhibits to the Registration Statement which have not been so described and filed as required. (xiv) To the best of such counsel’s knowledge, the execution, delivery and performance of the Operative Documents and the consummation of the transactions contemplated in the Underwriting Agreement and in the Registration Statement, [including the purchase by the Company of Securities in the offering,] the General Disclosure Package and the Prospectus and compliance by the Company with its obligations under the Operative Documents 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 ____) under, or result in the creation or imposition of any lien, charge or encumbrance uponXxxxx X. Xxxxxxx

Appears in 1 contract

Samples: Underwriting Agreement (Houlihan Lokey, Inc.)

Appears in 1 contract

Samples: Underwriting Agreement (Peoples Bancorp of North Carolina Inc)

Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof. If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the Underwriters, the ~~Company, the Bank~~ Company and the ~~Selling Shareholder~~ Operating Partnership in accordance with its terms. Very truly yours, ~~FIRST FINANCIAL HOLDINGS, INC. By:~~ MGM Growth Properties LLC By /s/ ~~Xxxxxx X.~~ Xxxxxxx Xxxxxxxxxx Name: ~~Xxxxxx X.~~ Xxxxxxx Xxxxxxxxxx Title: ~~EVP and Chief Financial Officer FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF CHARLESTON By:~~ Secretary MGM Growth Properties Operating Partnership LP By /s/ ~~Xxxxxx X.~~ Xxxxxxx Xxxxxxxxxx Name: ~~Xxxxxx X.~~ Xxxxxxx Xxxxxxxxxx Title: ~~EVP and Chief Financial Officer UNITED STATES DEPARTMENT OF THE TREASURY, as Selling Shareholder By: /s/ Xxxxxx Xxxxx Name: Xxxxxx Xxxxx Title: Chief Investment Officer~~ Secretary CONFIRMED AND ACCEPTED, as of the date first above written: ~~XXXXXXX LYNCH~~BofA Securities, ~~PIERCE, XXXXXX & XXXXX~~ Inc. X.X. Xxxxxx Securities LLC Barclays Capital Inc. Scotia Capital (USA) Inc. By: ~~XXXXXXX LYNCH~~BofA Securities, ~~PIERCE, XXXXXX & XXXXX~~ Inc. By: /s/ Xxxx Xxxxxxxxx Name: Xxxx Xxxxxxxxx Title: Managing Director By: X.X. Xxxxxx Securities LLC By: /s/ Xxxxxxx ~~X. Xxxxx~~ Xxx Name: Xxxxxxx Xxx Title: Executive Director By: Barclays Capital Inc. By: /s/ Xxxxxxxx Xxxx Name: Xxxxxxxx Xxxx Title: Authorized Signatory By: Scotia Capital (USA) Inc. By: /s/ Xxxx Xxxxxx Name: Xxxx Xxxxxx Title: Managing Director & Head For ~~itself~~ themselves and as ~~Representative~~ Representatives of the other Underwriters named in Schedule A hereto. The public offering price per share for the Securities shall be $32.15. The purchase price per share for the Securities to be paid by the several Underwriters shall be $~~860.4073~~30.944375, being an amount equal to the ~~initial~~ public offering price set forth ~~in Schedule B~~ above less $~~13.1027~~ 1.205625 per share, subject to adjustment in accordance with Section 2(b) for dividends or distributions declared by the Company and payable on the Initial Securities but not payable on the Option Securities. Name of Underwriter Number of Initial Securities to be Purchased BofA Securities, Inc. 3,562,500 X.X. Xxxxxx Securities LLC 2,612,500 Barclays Capital Inc. 1,567,500 Scotia Capital (USA) Inc. 1,567,500 BNP Paribas Securities Corp. 1,092,500 Citizens Capital Markets, Inc. 1,092,500 Credit Agricole Securities (USA) Inc. 1,092,500 Fifth Third Securities, Inc. 1,092,500 SMBC Nikko Securities America, Inc. 1,092,500 Deutsche Bank Securities Inc. 712,500 Evercore Group L.L.C 712,500 Xxxxxx Xxxxxxx ~~Lynch~~& Co. LLC 712,500 Truist Securities, ~~Pierce~~Inc. 712,500 UBS Securities LLC 712,500 KeyBanc Capital Markets Inc. 380,000 Ladenburg Xxxxxxxx & Co. Inc. 95,000 Xxxxxxx Xxxxx & Associates, ~~Xxxxxx & Xxxxx Incorporated 60,125 Xxxxxx Xxxxxxxx, LLC 1,625 XX Xxxx Capital, LLC 1,625 TBC~~ Inc. 95,000 Union Gaming Securities, LLC ~~1,625~~ 95,000 Total ~~65,000~~ 19,000,000 1. The ~~initial~~ Company is selling 19,000,000 Class A Common Shares. 2. The Company has granted an option to the Underwriters, severally and not jointly, to purchase up to an additional 2,850,000 Class A Common Shares. 3. The public offering price per share for the Securities shall be $~~873.51~~32.15. None. Xxxxx X. Xxxxxxx Xxxx X. Xxxxx Xxxxxxx Xxxxxxx Xxxxxxx Xxxxxx Xxxx X. XxXxxxx Xxxxx Xxxxxxx Xxxx Xxxxx Xxxxxx Xxxxxxx Xxxxxx X. Xxxxxx MGM Resorts International MGM Grand Detroit, LLC Mandalay Bay, LLC Park MGM, LLC Park District Holdings, LLC Beau Rivage Resorts, LLC The ~~number~~ Mirage Casino-Hotel, LLC New York-New York Hotel & Casino, LLC Marina District Development Company, LLC MGM National Harbor, LLC MGM Yonkers, Inc. MGM Growth Properties OP GP LLC MGM Growth Properties Operating Partnership LP MGP Finance Co-Issuer Inc. MGP Lessor Holdings, LLC MGP Lessor, LLC MGP Yonkers Realty Sub, LLC YRL Associates L.P. MGP Lessor II, LLC MGP XX XXXXXXXX 1 LLC MGP XXXXX VENTURE 1 LLC* Mandalay Propco, LLC* MGM Grand Propco, LLC* * MGP XXXXX VENTURE 1 LLC is owned 50.1% by MGP XX XXXXXXXX 1 LLC and 49.9% by BCORE Windmill Parent LLC. MGP XXXXX VENTURE 1 LLC is not controlled by the Company or its subsidiaries and, accordingly it, and its subsidiaries, are not consolidated in the Company’s financial statements. BofA Securities, Inc. X.X. Xxxxxx Securities LLC Barclays Capital Inc. Scotia Capital (USA) Inc. as Representatives of the several Underwriters named in Schedule A to the Underwriting Agreement referred to below Re: Proposed Public Offering by MGM Growth Properties LLC Ladies and Gentlemen: The undersigned understands that BofA Securities, Inc., X.X. Xxxxxx Securities LLC, Barclays Capital Inc. and Scotia Capital (USA) Inc., as representatives, propose to enter into an Underwriting Agreement (the “Underwriting Agreement”) on behalf of the several Underwriters to be ~~sold~~ named in Schedule A to such agreement (the “Underwriters”), with MGM Growth Properties LLC, a Delaware limited liability company (the “Company”), providing for the public offering (the “Public Offering”) of shares (the “Securities”) of the Company’s Class A common shares (the “Class A Common Shares”). In consideration of the agreement by the ~~Selling Shareholder shall be 65,000. The settlement~~ Underwriters to offer and sell the Securities, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned agrees with each Underwriter that, during the period beginning on the date ~~/ closing time shall be April 3~~hereof and ending on the date that is 30 days from the date of the Underwriting Agreement (the “Restricted Period”), ~~2012. 1. NONE~~ the undersigned will not, without the prior written consent of the Representatives, (i) ~~Each~~ except as permitted by the following paragraph, directly or indirectly offer, 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 any of the Registration Statement and any post-effective amendment thereto has been declared effective by the Commission under the 1933 Act. Each preliminary prospectus, each Issuer Free Writing Prospectus and the Prospectus have been filed as required by Rule 424(b) (without reliance on Rule 424(b)(8)) and Rule 433, as applicable, within the time period prescribed by, and in compliance with, the 1933 Act Regulations. To the best of such counselCompany’s ~~knowledge, no stop order suspending the effectiveness of the Registration Statement~~ Class A Common Shares or any ~~post-effective amendment thereto has been issued under the 1933 Act, no order preventing~~ securities convertible into or ~~suspending the use of any preliminary prospectus~~ exercisable or the Prospectus or any amendment or supplement thereto has been issued and no proceedings for any of those purposes have been instituted or are pending or contemplated by the Securities and Exchange Commission. (ii) The Registration Statement, the General Disclosure Package and the Prospectus and each amendment or supplement to the Registration Statement, the General Disclosure Package and the Prospectus, as of their respective effective or deemed effective or issue dates (other than (1) the financial statements (including notes thereto) and supporting schedules included therein or omitted therefrom and (2) the documents incorporated or deemed incorporated therein by reference, as to which such counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations. (iii) The documents incorporated or deemed incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus (other than the financial statements (including notes thereto) and supporting schedules included therein or omitted therefrom, as to which we express no opinion), when they were filed with the Commission, complied as to form in all material respects with the requirements of the 1934 Act and 1934 Act Regulations. (iv) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any Governmental Entity is necessary or required exchangeable for the Company to enter into, or perform their respective obligations under, the Operative Documents or the consummation of the transactions contemplated in the Underwriting Agreement, except or such as have been already obtained or as may be required under the 1933 Act, the 1933 Act Regulations, the securities laws of any state or non-U.S. jurisdiction or the rules of FINRA or by the BankCompany’s primary regulator for purposes of Section 7(e) of the Underwriting Agreement. (v) To the best of such counsel’s knowledge, there are no persons with registration rights or other similar rights to have any securities registered for sale pursuant to the Registration Statement or otherwise registered for sale or sold by the Company under the 1933 Act pursuant to the Underwriting Agreement. (vi) The Company is not required, or upon consummation of the transactions contemplated in the Underwriting Agreement will be required, to register as an “investment company” under the 1940 Act. Although we assume no responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, General Disclosure Package or Prospectus, nothing has come to the attention of such counsel that has lead such counsel to believe that (1) the Registration Statement or any amendment thereto, including any information deemed to be a part thereof pursuant to Rule 430B, at the time such Registration Statement or any such amendment became effective or as of the “new effective date,” 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, (2) the General Disclosure Package, at the Applicable Time, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of circumstances under which they were made, not misleading or (3) the Prospectus or any amendment or supplement thereto, at the time the Prospectus was issued, at the time any such amended or supplemented prospectus was issued or at the Closing Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; it being understood that such counsel makes no statement as to any financial statements (including notes thereto), supporting schedules and other financial data included in the Registration Statement, the General Disclosure Package and the Prospectus or omitted therefrom. 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 opinionsClass A Common Shares, including, without limitation, partnership units in MGM Growth Properties Operating Partnership LP (the ~~Legal Opinion Accord~~ “Operating Partnership,” and such partnership units therein, the “Operating Partnership Units”) whether now owned or hereafter acquired by the undersigned or with respect to which the undersigned has or hereafter acquires the power of disposition (collectively, the “Lock-Up Securities”), or make any demand for, or exercise any right with respect to, the registration of any of the ~~ABA Section~~ Lock-up Securities or file or cause to be filed any registration statement in connection therewith, under the Securities Act of ~~Business Law~~ 1933, as amended, or publicly disclose the intention to make any such offer, sale, pledge or disposition[; provided that this clause (~~1991).~~i) shall not prohibit (a) any communications that MGM Resorts International (“MGM”) may have with third parties about potential real estate and other third party transactions, some or all of the consideration for which may consist of Lock-Up Securities, which communications shall not be considered “offers” for purposes of this clause (i) or (b) public disclosure by MGM of its intentions with respect to such Lock-Up Securities to the extent such public disclosure is consistent with prior public disclosure by MGM or considered appropriately responsive investor relations activity, in each case, as determined in good faith by MGM]1, or (ii) enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Lock-Up Securities, regardless of whether any such swap or transaction is to be settled by delivery of Class A Common Shares or such other securities, in cash or otherwise. 1 Note to Draft: Bracketed text to be included in MGM Lock-Up Agreement only. Notwithstanding the foregoing, and subject to the conditions below, the undersigned may transfer the Lock-Up Securities without the prior written consent of the Representatives: (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.~~bona fide gift or gifts or as dispositions by will or intestacy; or (ii) ~~The Company has corporate power and authority~~ to ~~own~~any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned (for purposes of this lock-up agreement, ~~lease and operate its properties~~“immediate family” shall mean any relationship by blood, ~~to conduct its business as described in the Registration Statement~~marriage or adoption, ~~the General Disclosure Package and the Prospectus and to enter into and perform its obligations under, and to consummate the transactions contemplated under, the Operative Documents.~~not more remote than first cousin); or (iii) ~~The Company is duly registered~~ as a ~~bank holding company under~~ distribution to limited partners, members or stockholders of or other holders of equity interests in the ~~Bank Holding Company Act~~ undersigned or the estate of ~~1956, as amended.~~any of the foregoing; or (iv) ~~The Significant Subsidiary has been duly organized and~~ to a corporation, partnership, limited liability company or other entity that controls or is ~~validly existing and in good standing~~ controlled by, or is under common control with, the ~~laws~~ undersigned, or is wholly-owned by the undersigned and/or members of the ~~jurisdiction~~ undersigned’s immediate family; or (v) to the undersigned’s affiliates or to any investment fund or other entity controlled or managed by the undersigned; or (vi) to a nominee or custodian or a person or entity to whom a disposition or transfer would be permissible under clauses (i) through (v) above; or (vii) with respect to Operating Partnership Units, as an exchange of ~~its organization, has~~ Operating Partnership Units for Class A Common Shares as permitted or required by the ~~requisite corporate power and authority to own, lease and operate its properties, to conduct its business as described~~ MGM Growth Properties LLC Agreement in the ~~Registration Statement, the General Disclosure Package and the Prospectus and. To such counsel’s knowledge, except as otherwise described~~ manner set forth in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding shares of capital stock of or other equity interests in the Significant Subsidiary have been duly authorized and validly issued, are fully paid and non-assessable and are owned by the Company, directly or through subsidiaries, to the best of such counsel’s knowledge free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity. To such counsel’s knowledge, none of the outstanding shares of capital stock of or other equity interests in the Significant Subsidiary were issued in violation of the preemptive or similar rights of any securityholder of such Significant Subsidiary or any other entity. (v) The deposit accounts of each of the Company’s banking subsidiaries are insured up to the applicable limits by the Deposit Insurance Fund of the FDIC to the fullest extent permitted by law and the rules and regulations of the FDIC, and, to the best of such counsel’s knowledge, no proceeding for the revocation or termination of such insurance is pending or threatened. (vi) To the best of such counsel’s knowledge, except as described in the Registration Statement, the General Disclosure Package and the Prospectus, (A) neither the Company nor any of its subsidiaries is subject or party to, or has received any notice or advice from any Regulatory Agency that any of them are reasonably expected to become subject or party to any investigation with respect to, any Regulatory Agreement, (B) neither the Company nor any of its subsidiaries has been advised by any Regulatory Agency that it is considering issuing or requesting any Regulatory Agreement, (C) there is no unresolved violation, criticism or exception by any Regulatory Agency with respect to any report or statement relating to any examinations of the Company or any of its subsidiaries and (D) the Company and its subsidiaries are in compliance in all material respects with all laws administered by the Regulatory Agencies. (vii) Each of the Company and the Significant Subsidiary (A) is duly qualified 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 and (B) holds all Governmental Licenses issued by Governmental Entities necessary to conduct the business now operated by them, except where the failure so to qualify or to be in good standing or to hold any such Governmental Licenses would not, singly or in the aggregate, result in a Material Adverse Effect.; or (viii) ~~The outstanding shares~~ pursuant to a bona fide third party tender offer, merger, consolidation or other similar transaction made to all holders of ~~capital~~ Class A Common Shares involving a “change of control” (as defined below) of the Company occurring after the consummation of the Public Offering, that has been approved by the board of directors of the Company; provided that in the event that the tender offer, merger, consolidation or other such transaction is not completed, the undersigned’s Class A Common Shares shall remain subject to the terms of this agreement. For purposes of this clause (viii), “change of control” means the consummation of any bona fide third party tender offer, merger, consolidation or other similar transaction the result of which is that any “person” (as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or group of persons, other than the Company, becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 of the Exchange Act) of 50% of total voting power of the voting stock of the Company, including the Securities, have been duly authorized and validly issued and are fully paid and non-assessable. To such counsel’s knowledge, none of the outstanding shares of capital stock of the Company, including the Securities, were issued in violation of the preemptive or other similar rights of any securityholder of the Company or any other entity.[; or (ix) The Underwriting Agreement has been duly authorized, executed and delivered by each of the Company and the Bank. (x) The Certificate of Designations for the Securities has been duly filed with the Secretary of State of the State of Delaware. The form of certificate representing the Securities complies in all material respects with the requirements of Delaware state law, the Charter and the By-Laws. (xi) To the best of such counsel’s knowledge, except as described in the Registration Statement, the General Disclosure Package and the Prospectus, there is no action, suit, proceeding, inquiry or investigation before or brought by any Governmental Entity now pending or threatened against or affecting to the Company or ~~any of its subsidiaries which could~~the Operating Partnership, singly or in the aggregate, result in a Material Adverse Effect, or which might reasonably be expected to materially and adversely affect their respective properties, assets or operations or the consummation of the transactions contemplated in the Underwriting Agreement or the performance by the Company of its obligations under the Operative Documents. The aggregate of all pending legal or governmental proceedings known to such counsel to which the Company or any of its subsidiaries are a party or of which any of their respective properties, assets or operations are the subject which are not described in the Registration Statement, the General Disclosure Package and the Prospectus, including ordinary routine litigation incidental to the business, would not, singly or in the aggregate, result in a Material Adverse Effect. (xii) The information in the Registration Statement, the General Disclosure Package and the Prospectus under “Description of Capital Stock,” “Description of Series A Preferred Stock” and “Certain Material United States Federal Income Tax Considerations” or comparable captions and the information in the Registration Statement under “Item 15—Indemnification of Officers and Directors,” in each case to the extent ~~that~~ such ~~information constitutes matters of law, summaries of legal matters, the Charter, By~~Lock-~~Laws~~ Up Securities are held by MGM or legal proceedings, or legal conclusions, has been reviewed by such counsel and is correct in all material respects. (xiii) All descriptions in the Registration Statement, the General Disclosure Package and the Prospectus of contracts and other documents to which the Company or any of its subsidiaries are a party are accurate in all material respects. To the best of such counsel’s knowledge, there are no contracts, instruments or other documents required to be described in the Registration Statement, any preliminary prospectus or the Prospectus or to be filed as exhibits to the Registration Statement which have not been so described and filed as required. (xiv) To the best of such counsel’s knowledge, the execution, delivery and performance of the Operative Documents and the consummation of the transactions contemplated in the Underwriting Agreement and in the Registration Statement, [including the purchase by the Company of Securities in the offeringsubsidiaries]2,] the General Disclosure Package and the Prospectus and compliance by the Company with its obligations under the Operative Documents 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 ____) under, or result in the creation or imposition of any lien, charge or encumbrance upon

Appears in 1 contract

Samples: Underwriting Agreement (MGM Growth Properties Operating Partnership LP)

Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof. If the foregoing is in accordance with your understanding of our agreement, please sign and return to the ~~Company~~ Blue Bird Parties and the Selling Stockholders a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the Underwriters, the ~~Company, the Bank~~ Blue Bird Parties and the Selling ~~Shareholder~~ Stockholders in accordance with its terms. Very truly yours, ~~FIRST FINANCIAL HOLDINGS, INC. By:~~ BLUE BIRD CORPORATION By /s/ Xxxxxx ~~X. Xxxxxxxxxx~~ Xxxxxxxxx Name: Xxxxxx ~~X. Xxxxxxxxxx~~ Xxxxxxxxx Title: ~~EVP and~~ Chief Financial Officer ~~FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF CHARLESTON By:~~ SCHOOL BUS HOLDINGS INC. By /s/ Xxxxxx ~~X. Xxxxxxxxxx~~ Xxxxxxxxx Name: Xxxxxx ~~X. Xxxxxxxxxx~~ Xxxxxxxxx Title: ~~EVP and~~ Chief Financial Officer ~~UNITED STATES DEPARTMENT OF THE TREASURY,~~ COLISEUM PARTNERS L.P. as Selling ~~Shareholder~~ Stockholder By: Coliseum Capital, LLC, its general partner By /s/ ~~Xxxxxx Xxxxx~~ Xxxx Xxxx Name: ~~Xxxxxx Xxxxx~~ Xxxx Xxxx Title: ~~Chief Investment Officer~~ Manager XXXXXXXXX PARTNERS LLC – SERIES A as Selling Stockholder By: Coliseum Capital Management, LLC, its Attorney-in-Fact By /s/ Xxxx Xxxx Name: Xxxx Xxxx Title: Managing Partner ASP BB HOLDINGS LLC as Selling Stockholder By /s/ Xxxxx Xxxx Name: Xxxxx Xxxx Title: President CONFIRMED AND ACCEPTED, as of the date first above written: ~~XXXXXXX LYNCH~~BOFA SECURITIES, ~~PIERCE, XXXXXX & XXXXX~~ INC. By: ~~XXXXXXX LYNCH~~BOFA SECURITIES, ~~PIERCE, XXXXXX & XXXXX~~ INC. By /s/ Xxxx Xxxxxx BARCLAYS CAPITAL INC. By: BARCLAYS CAPITAL INC. By /s/ ~~Xxxxxxx X.~~ Xxxxxx Xxxxx For ~~itself~~ themselves and as ~~Representative~~ a Representatives of the other Underwriters named in Schedule A hereto. The initial public offering price per share for the Securities shall be $20.00. The purchase price per share for the Securities to be paid by the several Underwriters shall be $~~860.4073~~19.20, being an amount equal to the initial public offering price set forth ~~in Schedule B~~ above less $~~13.1027~~ 0.80 per share, subject to adjustment in accordance with Section 2(b) for dividends or distributions declared by the Company and payable on the Initial Securities but not payable on the Option Securities. Name of Underwriter Number of Initial Securities BofA Securities, Inc. 1,215,000 Barclays Capital Inc. 1,215,000 Xxxxxxxxx LLC 675,000 BMO Capital Markets Corp. 337,500 Xxxxx Xxxxxxx ~~Lynch, Pierce,~~ & Co. 337,500 Xxxxx-Xxxxxx Capital Group LLC. 225,000 X.X. Xxxxxxxx & ~~Xxxxx Incorporated 60,125 Xxxxxx Xxxxxxxx~~Co. 225,000 Xxxx Capital Partners, LLC ~~1,625 XX Xxxx Capital, LLC 1,625 TBC~~ 225,000 Academy Securities, Inc. 45,000 Total 4,500,000 ASP BB Holdings LLC ~~1,625~~ 1,500,000 225,000 Coliseum Capital Partners L.P. 2,281,311 342,197 Xxxxxxxxx Partners LLC – Series A 718,689 107,803 Total ~~65,000~~ 4,500,000 675,000 1. The Selling Stockholders are selling 4,500,000 shares of Common Stock. 2. The Selling Stockholders have granted an option to the Underwriters, severally and not jointly, to purchase up to an additional 675,000 shares of Common Stock. 3. The initial public offering price per share for the Securities shall be $~~873.51~~20.00. 4. ~~The number~~ Number of Initial Securities to be ~~sold by~~ Sold Maximum Number of Option Securities to Be Sold (a) transfer the ~~Selling Shareholder shall be 65,000. The settlement date / closing time shall be April 3, 2012. 1. NONE~~undersigned’s Lock-Up Securities: (i) ~~Each of the Registration Statement and any post-effective amendment thereto has been declared effective by the Commission under the 1933 Act. Each preliminary prospectus~~as a bona fide gift or gifts, each Issuer Free Writing Prospectus and the Prospectus have been filed as required by Rule 424(b) (without reliance on Rule 424(b)(8)) and Rule 433, as applicable, within the time period prescribed by, and in compliance with, the 1933 Act Regulations. To the best of such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement or ~~any post-effective amendment thereto has been issued under the 1933 Act, no order preventing~~ for bona fide tax or suspending the use of any preliminary prospectus or the Prospectus or any amendment or supplement thereto has been issued and no proceedings for any of those purposes have been instituted or are pending or contemplated by the Securities and Exchange Commission.estate planning purposes; (ii) ~~The Registration Statement~~by xxxx, ~~the General Disclosure Package and the Prospectus and each amendment~~ other testamentary document or ~~supplement~~ intestacy succession to the ~~Registration Statement~~legal representative, ~~the General Disclosure Package and the Prospectus~~heir, ~~as of their respective effective~~ beneficiary or deemed effective or issue dates (other than (1) the financial statements (including notes thereto) and supporting schedules included therein or omitted therefrom and (2) the documents incorporated or deemed incorporated therein by reference, as to which such counsel need express no opinion), complied as to form in all material respects with the requirements a member of the ~~1933 Act and~~ immediate family of the ~~1933 Act Regulations.~~undersigned; (iii) ~~The documents incorporated~~ to any trust, partnership, limited liability company or ~~deemed incorporated by reference in~~ other entity for the ~~Registration Statement, the General Disclosure Package and the Prospectus (other than the financial statements (including notes thereto) and supporting schedules included therein~~ direct or ~~omitted therefrom, as to which we express no opinion), when they were filed with the Commission, complied as to form in all material respects with the requirements~~ indirect benefit of the ~~1934 Act and 1934 Act Regulations.~~undersigned or the immediate family or affiliate of the undersigned, or if the undersigned is a trust, to a trustor or beneficiary of the trust or to the estate of a beneficiary of such trust (for purposes of this lock-up agreement, “immediate family” shall mean any relationship by blood, current or former marriage, domestic partnership or adoption, not more remote than first cousin); (iv) ~~No filing with~~to any partnership, limited liability company or ~~authorization, approval, consent, license, order, registration, qualification or decree of, any Governmental Entity is necessary or required for~~ other entity of which the ~~Company to enter into, or perform their respective obligations under,~~ undersigned and the ~~Operative Documents or the consummation~~ immediate family of the ~~transactions contemplated in~~ undersigned are the ~~Underwriting Agreement, except or such as have been already obtained or as may be required under the 1933 Act, the 1933 Act Regulations, the securities laws~~ legal and beneficial owner of ~~any state or non-U.S. jurisdiction or the rules of FINRA or by the Bank’s primary regulator for purposes of Section 7(e)~~ all of the ~~Underwriting Agreement.~~outstanding equity securities or similar interests; (v) ~~To the best of such counsel’s knowledge, there are no persons with registration rights~~ to any immediate family member or any investment fund or other ~~similar rights to have any securities registered for sale pursuant to the Registration Statement~~ entity controlled or ~~otherwise registered for sale or sold~~ managed by the ~~Company under the 1933 Act pursuant to the Underwriting Agreement.~~undersigned; (vi) ~~The Company~~ if the undersigned is ~~not required~~a corporation, partnership, limited liability company, trust or other business entity, (A) to another corporation, partnership, limited liability company, trust or other business entity that is an affiliate (as defined in Rule 405 promulgated under the Securities Act of 1933, as amended) of the undersigned, or ~~upon consummation~~ to any investment fund or other entity controlling, controlled by, managing or managed by or under common control with the undersigned or affiliates of the ~~transactions contemplated in~~ undersigned (including, for the ~~Underwriting Agreement will be required~~avoidance of doubt, where the undersigned is a partnership, to ~~register~~ its general partner or a successor partnership or fund, or any other funds managed by such partnership), or (B) as ~~an “investment company” under~~ part of a distribution, transfer or disposition by the ~~1940 Act. Although we assume no responsibility for the accuracy~~undersigned to its stockholders, ~~completeness~~ limited partners, general partners, limited liability company members or ~~fairness of the statements contained in the Registration Statement, General Disclosure Package~~ other equityholders or ~~Prospectus, nothing has come~~ to the ~~attention~~ estate of any such ~~counsel that has lead~~ stockholders, limited partners, general partners, limited liability company members or equityholders; or (vii) by operation of law, such ~~counsel to believe that (1) the Registration Statement or any amendment thereto, including any information deemed to be a part thereof~~ as pursuant to ~~Rule 430B~~a qualified domestic order, ~~at the time such Registration Statement~~ divorce settlement, divorce decree or ~~any such amendment became effective~~ separation agreement; (viii) to a nominee or ~~as of the “new effective date,” contained an untrue statement~~ custodian of a ~~material fact~~ person or ~~omitted~~ entity to ~~state~~ whom a ~~material fact required to~~ disposition or transfer would be stated therein or necessary to make the statements therein not misleading, (2) the General Disclosure Package, at the Applicable Time, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of circumstances permissible under which they were made, not misleading or (3) the Prospectus or any amendment or supplement thereto, at the time the Prospectus was issued, at the time any such amended or supplemented prospectus was issued or at the Closing Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; it being understood that such counsel makes no statement as to any financial statements (including notes thereto), supporting schedules and other financial data included in the Registration Statement, the General Disclosure Package and the Prospectus or omitted therefrom. 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). clauses (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, to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and to enter into and perform its obligations under, and to consummate the transactions contemplated under, the Operative Documents. (iii) The Company is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended. through (iv) ~~The Significant Subsidiary has been duly organized and is validly existing and~~ above; (ix) pursuant to an order of a court or regulatory agency having jurisdiction over the undersigned; (x) to the Company or its subsidiaries upon death, disability or termination of employment or other service relationship with the Company or the undersigned’s failure to meet certain conditions set out upon receipt of such Lock-Up Securities, in ~~good standing under the laws~~ each case, of the ~~jurisdiction~~ undersigned; (xi) as part of ~~its organization~~a sale of the undersigned’s Lock-Up Securities acquired in open market transactions after the closing date of the Public Offering; (xii) to the Company in connection with the vesting, ~~has~~ settlement, or exercise of restricted stock units, options, warrants or other rights to purchase shares of Common Stock (including, in each case, by way of “net” or “cashless” exercise), including for the ~~requisite corporate power~~ payment of exercise price and ~~authority~~ tax and remittance payments due as a result of the vesting, settlement, or exercise of such restricted stock units, options, warrants or rights, provided that any such shares of Common Stock received upon such exercise, vesting or settlement shall be subject to ~~own~~the terms of this lock-up agreement, ~~lease~~ and ~~operate its properties~~provided further that any such restricted stock units, options, warrants or rights are held by the undersigned pursuant to ~~conduct its business as described in the Registration Statement~~an agreement or equity awards granted under a stock incentive plan or other equity award plan, ~~the General Disclosure Package and the Prospectus and. To~~ each such ~~counsel’s knowledge, except as otherwise~~ agreement or plan which is described in the Registration Statement, the General Disclosure Package and the Prospectus, (xiii) pursuant to a bona fide third party tender offer, ~~all~~ merger, consolidation or other similar transaction that is approved by the Board of Directors of the ~~issued~~ Company and ~~outstanding~~ made to all holders of Common Stock involving a “Change of Control” (as defined below) of the Company (for purposes hereof, “Change of Control” shall mean the transfer (whether by tender offer, merger, consolidation or other similar transaction), in one transaction or a series of related transactions, to a person or group of affiliated persons, of shares of capital stock if, after such transfer, such person or group of or other equity interests in the Significant Subsidiary have been duly authorized and validly issued, are fully paid and non-assessable and are owned by the Company, directly or through subsidiaries, to the best of such counsel’s knowledge free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity. To such counsel’s knowledge, none affiliated persons would hold at least a majority of the outstanding shares of capital stock of or other equity interests in the Significant Subsidiary were issued in violation of the preemptive or similar rights of any securityholder of such Significant Subsidiary or any other entity. (v) The deposit accounts of each of the Company’s banking subsidiaries are insured up to the applicable limits by the Deposit Insurance Fund of the FDIC to the fullest extent permitted by law and the rules and regulations of the FDIC, and, to the best of such counsel’s knowledge, no proceeding for the revocation or termination of such insurance is pending or threatened. (vi) To the best of such counsel’s knowledge, except as described in the Registration Statement, the General Disclosure Package and the Prospectus, (A) neither the Company nor any of its subsidiaries is subject or party to, or has received any notice or advice from any Regulatory Agency that any of them are reasonably expected to become subject or party to any investigation with respect to, any Regulatory Agreement, (B) neither the Company nor any of its subsidiaries has been advised by any Regulatory Agency that it is considering issuing or requesting any Regulatory Agreement, (C) there is no unresolved violation, criticism or exception by any Regulatory Agency with respect to any report or statement relating to any examinations voting securities of the Company ~~or any of its subsidiaries and~~ (D) the Company and its subsidiaries are in compliance in all material respects with all laws administered by the Regulatory Agencies. (vii) Each of the Company and the Significant Subsidiary (A) is duly qualified 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 and (B) holds all Governmental Licenses issued by Governmental Entities necessary to conduct~~ surviving entity), provided that if such transaction is not consummated, the business now operated by them, except where the failure so to qualify or to be in good standing or to hold any such Governmental Licenses would not, singly or in the aggregate, result in a Material Adverse Effect. (viii) The outstanding undersigned’s shares of capital stock of the Company, including the Securities, have been duly authorized and validly issued and are fully paid and non-assessable. To such counsel’s knowledge, none of the outstanding shares of capital stock of the Company, including the Securities, were issued in violation of the preemptive or other similar rights of any securityholder of the Company or any other entity. (ix) The Underwriting Agreement has been duly authorized, executed and delivered by each of the Company and the Bank. (x) The Certificate of Designations for the Securities has been duly filed with the Secretary of State of the State of Delaware. The form of certificate representing the Securities complies in all material respects with the requirements of Delaware state law, the Charter and the By-Laws. (xi) To the best of such counsel’s knowledge, except as described in the Registration Statement, the General Disclosure Package and the Prospectus, there is no action, suit, proceeding, inquiry or investigation before or brought by any Governmental Entity now pending or threatened against or affecting the Company or any of its subsidiaries which could, singly or in the aggregate, result in a Material Adverse Effect, or which might reasonably be expected to materially and adversely affect their respective properties, assets or operations or the consummation of the transactions contemplated in the Underwriting Agreement or the performance by the Company of its obligations under the Operative Documents. The aggregate of all pending legal or governmental proceedings known to such counsel to which the Company or any of its subsidiaries are a party or of which any of their respective properties, assets or operations are the Common Stock shall remain subject ~~which are not described in the Registration Statement, the General Disclosure Package and the Prospectus, including ordinary routine litigation incidental~~ to the ~~business~~restrictions set forth herein, would not, singly or in the aggregate, result in a Material Adverse Effect. (xii) The information in the Registration Statement, the General Disclosure Package and the Prospectus under “Description of Capital Stock,” “Description of Series A Preferred Stock” and “Certain Material United States Federal Income Tax Considerations” or comparable captions and the information in the Registration Statement under “Item 15—Indemnification of Officers and Directors,” in each case to the extent that such information constitutes matters of law, summaries of legal matters, the Charter, By-Laws or legal proceedings, or legal conclusions, has been reviewed by such counsel and is correct in all material respects. (xiii) All descriptions in the Registration Statement, the General Disclosure Package and the Prospectus of contracts and other documents to which the Company or any of its subsidiaries are a party are accurate in all material respects. To the best of such counsel’s knowledge, there are no contracts, instruments or other documents required to be described in the Registration Statement, any preliminary prospectus or the Prospectus or to be filed as exhibits to the Registration Statement which have not been so described and filed as required. (xiv) To the best of such counsel’s knowledge, the execution, delivery and performance of the Operative Documents and the consummation of the transactions contemplated in the Underwriting Agreement and in the Registration Statement, [including the purchase by the Company of Securities in the offering,] the General Disclosure Package and the Prospectus and compliance by the Company with its obligations under the Operative Documents 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 ____) under, or result in the creation or imposition of any lien, charge or encumbrance uponor

Appears in 1 contract

Samples: Underwriting Agreement (Blue Bird Corp)

Appears in 1 contract

Samples: Underwriting Agreement (Ameris Bancorp)

Appears in 1 contract

Samples: Underwriting Agreement (Heartland Media Acquisition Corp.)

Appears in 1 contract

Samples: Underwriting Agreement (Eagle Bulk Shipping Inc.)

Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof. If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company and the Selling Shareholder a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the Underwriters, the ~~Company, the Bank~~ Company and the Selling Shareholder in accordance with its terms. Very truly yours, ~~FIRST FINANCIAL HOLDINGS, INC. By:~~ TORM PLC By /s/ ~~Xxxxxx X. Xxxxxxxxxx Name: Xxxxxx X. Xxxxxxxxxx~~ Xxxxx Xxxxxxxxx Title: ~~EVP~~ Executive Director and ~~Chief Financial~~ Principal Executive Officer FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF CHARLESTON By: /s/ Xxxxxx X. Xxxxxxxxxx Name: Xxxxxx X. Xxxxxxxxxx Title: EVP and Chief Financial Officer UNITED STATES DEPARTMENT OF THE TREASURY, as Selling Shareholder By: OCM NJORD HOLDINGS S.À.X.X. By /s/ Xxxxxx Xxxxx ~~Name: Xxxxxx Xxxxx~~ /s/ Xxxx Xxxxxxx Title: ~~Chief Investment Officer~~ Manager Manager CONFIRMED AND ACCEPTED, as of the date first above written: ~~XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX By:~~ CITIGROUP GLOBAL MARKETS INC. By /s/ Xxxxxxx X. ~~Xxxxx~~ Xxxxxxxxxx For ~~itself~~ themselves and as ~~Representative~~ Representatives of the other Underwriters named in Schedule A hereto. The purchase price per share for the Securities to be paid by the several Underwriters shall be $~~860.4073~~36.25, ~~being an amount equal~~ subject to adjustment in accordance with Section 2(b) for dividends or distributions declared by the ~~initial public offering price set forth in Schedule B less $13.1027 per share~~Company and payable on the Initial Securities but not payable on the Option Securities. Name of Underwriter Number of Initial Securities Citigroup Global Markets Inc. 6,896,552 Total 6,896,552 OCM Njord Holdings S.à x.x., 6,896,552 1,034,482 Total 6,896,552 1,034,482 1. The Selling Shareholder is selling 6,896,552 shares of Common Stock. 2. The Selling Shareholder has granted an option to the Underwriters, severally and not jointly, to purchase up to an additional 1,034,482 shares of Common Stock. None. OCM Njord Holdings S.à x.x. Xxxxxxxxxxx Xxxxxx Xxxxxxxxxx Xxxxx Xxxx Xxxxxxxxx Xxxxxxx ~~Lynch~~Xxxx Xxxxxx Pär Xxxxx Xxxxx Xxxxx Xxxxxxx Xxxxxxxxx TORM Xxxxx LR2 114,000 2018 GSI Nansha TORM Hermia LR2 114,000 2018 GSI Nansha TORM Xxxxxxx LR2 114,445 2015 Hyundai HI (Gunsan) TORM Xxxxxxxx LR2 114,323 2015 Hyundai HI (Gunsan) TORM Xxxxx LR2 109,672 2008 Dalian Shipbuilding TORM Mathilde LR2 109,672 2008 Dalian Shipbuilding TORM Elise LR1 75,000 2020 GSI Nansha TORM Xxxxxxxxx LR1 75,000 2020 GSI Nansha TORM Venture LR1 73,700 2007 New Century SB TORM Adventurer MR 46,042 2007 Xxxx. Trogir TORM Allegro MR 46,184 2012 Xxxx. Trogir XXXX Xxxxxxx MR 46,184 2012 Xxxx. Trogir TORM Cavatina MR 46,200 2010 Xxxx. Trogir TORM Corrido MR 46,156 2011 Xxxx. Trogir TORM Discoverer MR 45,012 2008 Xxxx. Trogir TORM Xxxx MR 51,266 2006 STX SB (Jinhae) TORM Xxxxxx MR 46,187 2005 STX SB (Jinhae) TORM India MR 49,999 2010 Hyundai Mipo TORM Kansas MR 46,955 2006 Hyundai Mipo TORM Xxxxx MR 49,999 2008 GSI Liwan TORM Leader MR 46,070 2009 Xxxx. Trogir TORM Lene MR 49,999 2008 GSI Liwan TORM Xxxxx MR 49,999 2009 GSI Liwan TORM Lotte MR 49,999 2009 GSI Liwan XXXX Xxxxxx MR 49,999 2009 GSI Liwan TORM Philippines MR 49,999 2010 Hyundai Mipo TORM Platte MR 46,959 2006 Hyundai Mipo TORM Ragnhild MR 46,187 2005 STX SB (Jinhae) TORM Republican MR 46,955 2006 Hyundai Mipo TORM Resilience MR 49,999 2005 STX SB (Jinhae) TORM Solution MR 49,999 2019 GSI Nansha TORM Sovereign MR 49,999 2017 Hyundai Mipo TORM Splendid MR 49,999 2020 GSI Nansha TORM Stellar MR 49,999 2020 GSI Nansha TORM Strength MR 49,999 2019 GSI Nansha TORM Strong MR 49,999 2019 GSI Nansha TORM Sublime MR 49,999 2019 GSI Nansha TORM Success MR 49,999 2019 GSI Nansha TORM Supreme MR 49,999 2017 Hyundai Mipo TORM Thames MR 47,036 2005 Hyundai Mipo TORM Thor MR 49,842 2015 Sungdong SB TORM Thunder MR 49,842 2015 Sungdong SB XXXX Xxxxxxx MR 49,842 2015 Sungdong SB TORM Troilus MR 49,842 2016 Sungdong SB TORM Voyager MR 45,916 2008 Xxxx. Trogir XXXX Xxxxxxxx MR 49,995 2013 STX, ~~Pierce~~Korea XXXX Xxxxx MR 49,995 2013 STX, Korea XXXX Xxxxxxxx MR 49,995 2013 STX, Korea TORM Torino MR 49,842 2016 Sungdong SB TORM Australia MR 51,737 2011 Hyundai Mipo TORM Malaysia MR 51,737 2011 Hyundai Mipo TORM New Zealand MR 51,737 2011 Hyundai Mipo TORM Singapore MR 51,737 2011 Hyundai Mipo TORM Titan MR 49,842 2016 Sungdong SB TORM Xxxxxx & MR 49,999 2015 Hyundai Mipo TORM Xxxxxx MR 49,999 2015 Hyundai Mipo XXXX Xxxxx ~~Incorporated 60,125~~ MR 49,999 2016 Hyundai Mipo XXXX Xxxxxxxxx LR2 119,456 2010 Hyundai Samho HI TORM Gabriella LR2 119,456 2010 Hyundai Samho HI TORM Gwyneth LR2 119,456 2010 Hyundai Samho HI XXXX Xxxxxx ~~Xxxxxxxx~~MR 49,999 2015 Hyundai Mipo TORM Gitte LR2 119,456 2010 Hyundai Samho HI TORM Ganga LR2 119,456 2010 Hyundai Samho HI TORM Gemma LR2 119,456 2012 Hyundai Samho HI TORM Grace LR2 119,456 2012 Hyundai Samho HI TORM Genesis LR2 119,456 2011 Hyundai Samho HI TORM Xxxxxx LR2 119,456 2011 Hyundai Samho HI XXXX Xxxxx MR 49,999 2011 GSI Liwan TORM Agnete MR 49,999 2010 GSI Liwan XXXX Xxxxxx MR 49,999 2010 GSI Liwan TORM Amalie MR 49,999 2011 GSI Liwan TORM Xxxxxx MR 49,999 2012 GSI Liwan TORM Xxxxxx MR 49,999 2012 GSI Liwan XXXX Xxxxx MR 49,999 2012 GSI Liwan XXXX Xxxxxx MR 49,999 2010 GSI Liwan TORM Atlantic MR 49,999 2010 GSI Liwan TORM Kiara LR2 114,445 2015 Hyundai HI (Gunsan) TORM Xxxxxx LR2 114,000 2021 GSI Nansha TORM Hellerup LR2 114,000 2018 GSI Nansha TORM Xxxxxx LR2 114,000 2018 GSI Nansha XXXX Xxxxxxxxx MR 49,999 2010 GSI Liwan TORM Xxxxx MR 49,999 2010 GSI Liwan TORM Xxxxxx LR2 109,999 2016 GSI Nansha TORM Houston LR2 114,000 2022 GSI Nansha TORM Emilie LR1 75,013 2013 STX, ~~LLC 1,625 XX Xxxx Capital~~Korea TORM Eva LR1 74,552 2011 Hyundai Mipo TORM Innovation LR1 73,847 2013 New Times, ~~LLC 1,625 TBC Securities~~China TORM Integrity (10) LR1 73,800 2013 New Times, ~~LLC 1,625 Total 65,000~~ China TORM Emma LR1 75,000 2012 STX TORM Xxxxxx LR1 74,606 2011 Hyundai Mipo Please see attached. Please see attached. Please see attached. Please see attached. [Form of lock-up from directors or other stockholders pursuant to Section 5(j)] Citigroup Global Markets Inc. as Representatives of the several Underwriters to be named in the within-mentioned Underwriting Agreement 000 Xxxxxxxxx Xxxxxx New York, New York 10013 Re: Proposed Public Offering by TORM plc Dear Sirs: The ~~initial~~ undersigned, a stockholder or director of TORM plc, a public limited company incorporated under the laws of England and Wales (the “Company”), understands that Citigroup Global Markets Inc. (“Citigroup”), as Representative of the several underwriters named in the Underwriting Agreement (“Underwriters”), propose to enter into an Underwriting Agreement (the “Underwriting Agreement”) with the Company and OCM Njord Holdings S.à x.x. (the “Selling Shareholder”) providing for the public offering ~~price~~ of shares of the Company’s Class A Common Shares, par value $0.01 per share ~~for~~ (the ~~Securities shall be $873.51. The number of Securities to be sold~~ “Common Stock”) by the Selling Shareholder (the “Public Offering”). In recognition of the benefit that such an offering will confer upon the undersigned as a stockholder or director of the Company, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned agrees with each Underwriter that, during the period beginning on the date hereof and ending on the date that is 60 days from the date of the Underwriting Agreement, the undersigned will not, without the prior written consent of the Representatives, (i) directly or indirectly, offer, 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 any shares of the Company’s Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, whether now owned or hereafter acquired by the undersigned or with respect to which the undersigned has or hereafter acquires the power of disposition (collectively, the “Lock-Up Securities”), or exercise any right with respect to the registration of any of the Lock-up Securities, or file, cause to be filed or cause to be confidentially submitted any registration statement in connection therewith, under the Securities Act of 1933, as amended, (ii) enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Lock-Up Securities, whether any such swap or transaction is to be settled by delivery of Common Stock or other securities, in cash or otherwise or (iii) publicly announce the intention to do any of the foregoing. Notwithstanding the foregoing, and subject to the conditions below, the undersigned may transfer the Lock-Up Securities without the prior written consent of the Representatives, provided that (1) Citigroup receives a signed lock-up agreement for the balance of the lockup period from each donee, trustee, distributee, or transferee, as the case may be, (2) any such transfer shall not involve a disposition for value, (3) such transfers are not required to be ~~65,000. The settlement date / closing time shall be April 3, 2012. 1. NONE~~reported with the Securities and Exchange Commission and (4) the undersigned does not otherwise voluntarily effect any public filing or report regarding such transfers: (i) Each of the Registration Statement and any post-effective amendment thereto has been declared effective by the Commission under the 1933 Act. Each preliminary prospectus, each Issuer Free Writing Prospectus and the Prospectus have been filed as required by Rule 424(b) (without reliance on Rule 424(b)(8)) and Rule 433, as applicable, within the time period prescribed by, and in compliance with, the 1933 Act Regulations. To the best of such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement a bona fide gift or any post-effective amendment thereto has been issued under the 1933 Act, no order preventing or suspending the use of any preliminary prospectus or the Prospectus or any amendment or supplement thereto has been issued and no proceedings for any of those purposes have been instituted or are pending or contemplated by the Securities and Exchange Commission.gifts; or (ii) ~~The Registration Statement,~~ to any trust for the ~~General Disclosure Package and the Prospectus and each amendment~~ direct or supplement to the Registration Statement, the General Disclosure Package and the Prospectus, as of their respective effective or deemed effective or issue dates (other than (1) the financial statements (including notes thereto) and supporting schedules included therein or omitted therefrom and (2) the documents incorporated or deemed incorporated therein by reference, as to which such counsel need express no opinion), complied as to form in all material respects with the requirements indirect benefit of the ~~1933 Act and~~ undersigned or the ~~1933 Act Regulations.~~immediate family of the undersigned (for purposes of this lock-up agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin); or (iii) ~~The documents incorporated~~ as a distribution to members, limited partners or deemed incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus (other than the financial statements (including notes thereto) and supporting schedules included therein or omitted therefrom, as to which we express no opinion), when they were filed with the Commission, complied as to form in all material respects with the requirements stockholders of the ~~1934 Act and 1934 Act Regulations.~~undersigned; or (iv) ~~No filing with,~~ to the undersigned’s affiliates or ~~authorization, approval, consent, license, order, registration, qualification~~ to any investment fund or ~~decree of, any Governmental Entity is necessary~~ other entity controlled or required for the Company to enter into, or perform their respective obligations under, the Operative Documents or the consummation of the transactions contemplated in the Underwriting Agreement, except or such as have been already obtained or as may be required under the 1933 Act, the 1933 Act Regulations, the securities laws of any state or non-U.S. jurisdiction or the rules of FINRA or managed by the ~~Bank’s primary regulator for purposes of Section 7(e) of the Underwriting Agreement~~undersigned. (v) To the best of such counsel’s knowledge, there are no persons with registration rights or other similar rights to have any securities registered for sale pursuant to the Registration Statement or otherwise registered for sale or sold by the Company under the 1933 Act pursuant to the Underwriting Agreement. (vi) The Company is not required, or upon consummation of the transactions contemplated in the Underwriting Agreement will be required, to register as an “investment company” under the 1940 Act. Although we assume no responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, General Disclosure Package or Prospectus, nothing has come to the attention of such counsel that has lead such counsel to believe that (1) the Registration Statement or any amendment thereto, including any information deemed to be a part thereof pursuant to Rule 430B, at the time such Registration Statement or any such amendment became effective or as of the “new effective date,” 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, (2) the General Disclosure Package, at the Applicable Time, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of circumstances under which they were made, not misleading or (3) the Prospectus or any amendment or supplement thereto, at the time the Prospectus was issued, at the time any such amended or supplemented prospectus was issued or at the Closing Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; it being understood that such counsel makes no statement as to any financial statements (including notes thereto), supporting schedules and other financial data included in the Registration Statement, the General Disclosure Package and the Prospectus or omitted therefrom. 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). (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, to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and to enter into and perform its obligations under, and to consummate the transactions contemplated under, the Operative Documents. (iii) The Company is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended. (iv) The Significant Subsidiary has been duly organized and is validly existing and in good standing under the laws of the jurisdiction of its organization, has the requisite corporate power and authority to own, lease and operate its properties, to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and. To such counsel’s knowledge, except as otherwise described in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding shares of capital stock of or other equity interests in the Significant Subsidiary have been duly authorized and validly issued, are fully paid and non-assessable and are owned by the Company, directly or through subsidiaries, to the best of such counsel’s knowledge free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity. To such counsel’s knowledge, none of the outstanding shares of capital stock of or other equity interests in the Significant Subsidiary were issued in violation of the preemptive or similar rights of any securityholder of such Significant Subsidiary or any other entity. (v) The deposit accounts of each of the Company’s banking subsidiaries are insured up to the applicable limits by the Deposit Insurance Fund of the FDIC to the fullest extent permitted by law and the rules and regulations of the FDIC, and, to the best of such counsel’s knowledge, no proceeding for the revocation or termination of such insurance is pending or threatened. (vi) To the best of such counsel’s knowledge, except as described in the Registration Statement, the General Disclosure Package and the Prospectus, (A) neither the Company nor any of its subsidiaries is subject or party to, or has received any notice or advice from any Regulatory Agency that any of them are reasonably expected to become subject or party to any investigation with respect to, any Regulatory Agreement, (B) neither the Company nor any of its subsidiaries has been advised by any Regulatory Agency that it is considering issuing or requesting any Regulatory Agreement, (C) there is no unresolved violation, criticism or exception by any Regulatory Agency with respect to any report or statement relating to any examinations of the Company or any of its subsidiaries and (D) the Company and its subsidiaries are in compliance in all material respects with all laws administered by the Regulatory Agencies. (vii) Each of the Company and the Significant Subsidiary (A) is duly qualified 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 and (B) holds all Governmental Licenses issued by Governmental Entities necessary to conduct the business now operated by them, except where the failure so to qualify or to be in good standing or to hold any such Governmental Licenses would not, singly or in the aggregate, result in a Material Adverse Effect. (viii) The outstanding shares of capital stock of the Company, including the Securities, have been duly authorized and validly issued and are fully paid and non-assessable. To such counsel’s knowledge, none of the outstanding shares of capital stock of the Company, including the Securities, were issued in violation of the preemptive or other similar rights of any securityholder of the Company or any other entity. (ix) The Underwriting Agreement has been duly authorized, executed and delivered by each of the Company and the Bank. (x) The Certificate of Designations for the Securities has been duly filed with the Secretary of State of the State of Delaware. The form of certificate representing the Securities complies in all material respects with the requirements of Delaware state law, the Charter and the By-Laws. (xi) To the best of such counsel’s knowledge, except as described in the Registration Statement, the General Disclosure Package and the Prospectus, there is no action, suit, proceeding, inquiry or investigation before or brought by any Governmental Entity now pending or threatened against or affecting the Company or any of its subsidiaries which could, singly or in the aggregate, result in a Material Adverse Effect, or which might reasonably be expected to materially and adversely affect their respective properties, assets or operations or the consummation of the transactions contemplated in the Underwriting Agreement or the performance by the Company of its obligations under the Operative Documents. The aggregate of all pending legal or governmental proceedings known to such counsel to which the Company or any of its subsidiaries are a party or of which any of their respective properties, assets or operations are the subject which are not described in the Registration Statement, the General Disclosure Package and the Prospectus, including ordinary routine litigation incidental to the business, would not, singly or in the aggregate, result in a Material Adverse Effect. (xii) The information in the Registration Statement, the General Disclosure Package and the Prospectus under “Description of Capital Stock,” “Description of Series A Preferred Stock” and “Certain Material United States Federal Income Tax Considerations” or comparable captions and the information in the Registration Statement under “Item 15—Indemnification of Officers and Directors,” in each case to the extent that such information constitutes matters of law, summaries of legal matters, the Charter, By-Laws or legal proceedings, or legal conclusions, has been reviewed by such counsel and is correct in all material respects. (xiii) All descriptions in the Registration Statement, the General Disclosure Package and the Prospectus of contracts and other documents to which the Company or any of its subsidiaries are a party are accurate in all material respects. To the best of such counsel’s knowledge, there are no contracts, instruments or other documents required to be described in the Registration Statement, any preliminary prospectus or the Prospectus or to be filed as exhibits to the Registration Statement which have not been so described and filed as required. (xiv) To the best of such counsel’s knowledge, the execution, delivery and performance of the Operative Documents and the consummation of the transactions contemplated in the Underwriting Agreement and in the Registration Statement, [including the purchase by the Company of Securities in the offering,] the General Disclosure Package and the Prospectus and compliance by the Company with its obligations under the Operative Documents 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 ____) under, or result in the creation or imposition of any lien, charge or encumbrance upon

Appears in 1 contract

Samples: Underwriting Agreement (TORM PLC)

Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof. If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company and the Attorney-in-Fact for the Selling Stockholders a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the Underwriters, the ~~Company, the Bank~~ Company and the Selling ~~Shareholder~~ Stockholders in accordance with its terms. Very truly yours, ~~FIRST FINANCIAL HOLDINGS~~THE FRESH MARKET, INC. ~~By:~~ By /s/ Xxxxxx X. Xxxxxxxxxx Name: Xxxxxx X. Xxxxxxxxxx Title: EVP and Chief Financial Officer FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF CHARLESTON By: /s/ Xxxxxx X. Xxxxxxxxxx Name: Xxxxxx X. Xxxxxxxxxx Title: EVP and Chief Financial Officer UNITED STATES DEPARTMENT OF THE TREASURY, as Selling Shareholder By: /s/ Xxxxxx Xxxxx ~~Name: Xxxxxx Xxxxx~~ Xxxxxxx Title: Chief ~~Investment~~ Executive Officer XXXXX XXXXXXX By /s/ Xxxxx Xxxxxxx As Attorney-in-Fact acting on behalf of the Selling Stockholders named in Schedule B hereto XXXX XXXXXXX By /s/ Xxxx Xxxxxxx As Attorney-in-Fact acting on behalf of the Selling Stockholders named in Schedule B hereto CONFIRMED AND ACCEPTED, as of the date first above written: X.X. XXXXXX SECURITIES LLC XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED By: X.X. XXXXXX SECURITIES LLC By /s/ Xxxxxx X. Xxxxx By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX ~~By:~~ INCORPORATED By /s/ ~~Xxxxxxx X. Xxxxx~~ For ~~itself~~ themselves and as ~~Representative~~ Representatives of the other Underwriters named in Schedule A hereto. The public offering price per share for the Securities shall be $42.50. The purchase price per share for the Securities to be paid by the several Underwriters shall be $~~860.4073~~41.0125, being an amount equal to the ~~initial~~ public offering price set forth ~~in Schedule B~~ above less $~~13.1027~~ 1.4875 per share, subject to adjustment in accordance with Section 2(b) for dividends or distributions declared by the Company and payable on the Initial Securities but not payable on the Option Securities. ~~Name of Underwriter Number of~~ X.X. Xxxxxx Securities LLC 5,363,577 Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ~~60,125~~ 4,767,623 Xxxxxx ~~Xxxxxxxx~~Xxxxxxx & Co. Incorporated 1,191,906 Xxxxxxx Xxxxx & Company, LLC ~~1,625 XX Xxxx Capital~~297,976 RBC Capital Markets Corporation 297,976 Total 11,919,058 Jenner Trust 381,410 57,211 Xxxxx Trust 381,410 57,211 Xxxxx Trust 1,490,597 223,590 Keigan Trust 1,499,060 224,859 Rossler Trust 989,282 148,392 Xxxxxx Trust 476,763 71,514 Xxxxxxx Trust 476,763 71,514 Lerra Trust 429,086 64,363 Xxxxx Trust 429,086 64,363 Xxxxx Trust 429,086 64,363 Paiko Trust 2,957,951 443,694 Xxxxxx Trust 1,084,634 162,695 Atma Trust 893,930 134,089 1. The Selling Stockholders are selling 11,919,058 shares of Common Stock. 2. The Selling Stockholders have granted an option to the Underwriters, ~~LLC 1,625 TBC Securities~~severally and not jointly, ~~LLC 1,625 Total 65,000~~ to purchase up to an additional 1,787,858 shares of Common Stock. 3. The ~~initial~~ public offering price per share for the Securities shall be $~~873.51~~42.50. ~~The number~~ None. X.X. Xxxxxx Securities LLC Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, as Representatives of ~~Securities~~ the several Underwriters to be ~~sold~~ named in the within-mentioned Underwriting Agreement c/o X.X. Xxxxxx Securities LLC 000 Xxxxxxx Xxxxxx, Xxxxx 00 Xxx Xxxx, Xxx Xxxx 00000 Re: Proposed Secondary Public Offering by The Fresh Market, Inc. Dear Sirs: The undersigned, a stockholder of The Fresh Market, Inc., a Delaware corporation (the “Company”), understands that X.X. Xxxxxx Securities LLC (“X.X. Xxxxxx”) and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (“ML”) are acting as representatives on behalf of the underwriters (collectively, in such capacity, the “Representatives”) propose to enter into a Underwriting Agreeement (the “Underwriting Agreement”) with the Company and the Selling Stockholders providing for the public offering of shares (the “Securities”) of the Company’s common stock, par value $0.01 per share (the “Common Stock”). References herein to “Common Stock” include any shares currently outstanding. In recognition of the benefit that such an offering will confer upon the undersigned as a stockholder of the Company, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned agrees with each underwriter to be named in the Underwriting Agreement that, during the period beginning on the date hereof and ending on the date that is 90 days from the date of the Underwriting Agreement (subject to extensions as discussed below), the undersigned will not, without the prior written consent of X.X. Xxxxxx and ML, directly or indirectly, (i) offer, 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 for the sale of, or lend or otherwise dispose of or transfer any shares of the Company’s Common Stock or any securities convertible into or exchangeable or exercisable for Common Stock, whether now owned or hereafter acquired by the ~~Selling Shareholder~~ undersigned or with respect to which the undersigned has or hereafter acquires the power of disposition (collectively, the “Lock-Up Securities”), or exercise any right with respect to the registration of any of the Lock-up Securities, or file or cause to be filed any registration statement in connection therewith, under the Securities Act of 1933, as amended, or (ii) enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Lock-Up Securities, whether any such swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise. Notwithstanding the foregoing, and subject to the conditions below, the undersigned may transfer the Lock-Up Securities without the prior written consent of X.X. Xxxxxx and ML, provided that (1) the Representatives receive a signed lock-up agreement for the balance of the lockup period from each donee, trustee, distributee, or transferee, as the case may be, (2) any such transfer shall not involve a disposition for value, (3) such transfers are not required to be ~~65,000. The settlement date / closing time shall be April 3~~reported with the Securities and Exchange Commission on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, ~~2012. 1. NONE~~as amended, and (4) the undersigned does not otherwise voluntarily effect any public filing or report regarding such transfers: (i) ~~Each~~ as a bona fide gift or gifts in any amount exceeding 300,000 shares of Common Stock; or (ii) to any trust for the direct or indirect benefit of the ~~Registration Statement and~~ undersigned or the immediate family of the undersigned (for purposes of this lock-up agreement, “immediate family” shall mean any ~~post-effective amendment thereto has been declared effective~~ relationship by blood, marriage or adoption, not more remote than first cousin); or (iii) as a distribution to beneficiaries, limited partners or stockholders of the undersigned; or (iv) to the undersigned’s affiliates or to any investment fund or other entity controlled or managed by the ~~Commission under~~ undersigned; (v) any transfer pursuant to a will or other testamentary document or applicable laws of descent; or (vi) any transfers by operation of law; provided, however, that any bona fide gift or gifts made by the ~~1933 Act~~Selling Stockholders (whether such gifts are made jointly by the Selling Stockholders or individually by a Selling Stockholder) in an aggregate amount equal to or less than 300,000 shares of Common Stock may be made free from the requirement of subsection (1) above. Each preliminary prospectus, each Issuer Free Writing Prospectus and the Prospectus have been filed as required by Rule 424(b) (without reliance on Rule 424(b)(8)) and Rule 433, as applicable, within the time period prescribed by, and in compliance withFurthermore, the ~~1933 Act Regulations. To the best~~ undersigned may sell shares of ~~such counsel’s knowledge, no stop order suspending the effectiveness~~ Common Stock of the ~~Registration Statement~~ Company purchased by the undersigned on the open market following the Public Offering if and only if (i) such sales are not required to be reported in any public report or any post-effective amendment thereto has been issued under the 1933 Act, no order preventing or suspending the use of any preliminary prospectus or the Prospectus or any amendment or supplement thereto has been issued and no proceedings for any of those purposes have been instituted or are pending or contemplated by filing with the Securities and Exchange Commission. , or otherwise and (ii) ~~The Registration Statement~~the undersigned does not otherwise voluntarily effect any public filing or report regarding such sales. Notwithstanding the foregoing, the General Disclosure Package and the Prospectus and each amendment or supplement to the Registration Statement, the General Disclosure Package and the Prospectus, as of their respective effective or deemed effective or issue dates (other than if: (1) during the ~~financial statements (including notes thereto) and supporting schedules included therein~~ last 17 days of the 90-day lock-up period, the Company issues an earnings release or ~~omitted therefrom and~~ material news or a material event relating to the Company occurs; or (2) prior to the ~~documents incorporated or deemed incorporated therein by reference, as to which such counsel need express no opinion), complied as to form in all material respects with the requirements~~ expiration of the ~~1933 Act and the 1933 Act Regulations. (iii) The documents incorporated or deemed incorporated by reference in the Registration Statement~~90-day lock-up period, the ~~General Disclosure Package and~~ Company announces that it will release earnings results or becomes aware that material news or a material event will occur during the ~~Prospectus (other than~~ 16-day period beginning on the financial statements (including notes thereto) and supporting schedules included therein or omitted therefrom, as to which we express no opinion), when they were filed with the Commission, complied as to form in all material respects with the requirements last day of the 1934 Act and 1934 Act Regulations. (iv) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any Governmental Entity is necessary or required for the Company to enter into, or perform their respective obligations under, the Operative Documents or the consummation of the transactions contemplated in the Underwriting Agreement, except or such as have been already obtained or as may be required under the 1933 Act, the 1933 Act Regulations, the securities laws of any state or non90-U.S. jurisdiction or the rules of FINRA or by the Bank’s primary regulator for purposes of Section 7(e) of the Underwriting Agreement. (v) To the best of such counsel’s knowledge, there are no persons with registration rights or other similar rights to have any securities registered for sale pursuant to the Registration Statement or otherwise registered for sale or sold by the Company under the 1933 Act pursuant to the Underwriting Agreement. (vi) The Company is not required, or upon consummation of the transactions contemplated in the Underwriting Agreement will be required, to register as an “investment company” under the 1940 Act. Although we assume no responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, General Disclosure Package or Prospectus, nothing has come to the attention of such counsel that has lead such counsel to believe that (1) the Registration Statement or any amendment thereto, including any information deemed to be a part thereof pursuant to Rule 430B, at the time such Registration Statement or any such amendment became effective or as of the “new effective dateday lock-up period,” 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, (2) the General Disclosure Package, at the Applicable Time, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of circumstances under which they were made, not misleading or (3) the Prospectus or any amendment or supplement thereto, at the time the Prospectus was issued, at the time any such amended or supplemented prospectus was issued or at the Closing Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; it being understood that such counsel makes no statement as to any financial statements (including notes thereto), supporting schedules and other financial data included in the Registration Statement, the General Disclosure Package and the Prospectus or omitted therefrom. 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). (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, to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and to enter into and perform its obligations under, and to consummate the transactions contemplated under, the Operative Documents. (iii) The Company is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended. (iv) The Significant Subsidiary has been duly organized and is validly existing and in good standing under the laws of the jurisdiction of its organization, has the requisite corporate power and authority to own, lease and operate its properties, to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and. To such counsel’s knowledge, except as otherwise described in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding shares of capital stock of or other equity interests in the Significant Subsidiary have been duly authorized and validly issued, are fully paid and non-assessable and are owned by the Company, directly or through subsidiaries, to the best of such counsel’s knowledge free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity. To such counsel’s knowledge, none of the outstanding shares of capital stock of or other equity interests in the Significant Subsidiary were issued in violation of the preemptive or similar rights of any securityholder of such Significant Subsidiary or any other entity. (v) The deposit accounts of each of the Company’s banking subsidiaries are insured up to the applicable limits by the Deposit Insurance Fund of the FDIC to the fullest extent permitted by law and the rules and regulations of the FDIC, and, to the best of such counsel’s knowledge, no proceeding for the revocation or termination of such insurance is pending or threatened. (vi) To the best of such counsel’s knowledge, except as described in the Registration Statement, the General Disclosure Package and the Prospectus, (A) neither the Company nor any of its subsidiaries is subject or party to, or has received any notice or advice from any Regulatory Agency that any of them are reasonably expected to become subject or party to any investigation with respect to, any Regulatory Agreement, (B) neither the Company nor any of its subsidiaries has been advised by any Regulatory Agency that it is considering issuing or requesting any Regulatory Agreement, (C) there is no unresolved violation, criticism or exception by any Regulatory Agency with respect to any report or statement relating to any examinations of the Company or any of its subsidiaries and (D) the Company and its subsidiaries are in compliance in all material respects with all laws administered by the Regulatory Agencies. (vii) Each of the Company and the Significant Subsidiary (A) is duly qualified 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 and (B) holds all Governmental Licenses issued by Governmental Entities necessary to conduct the business now operated by them, except where the failure so to qualify or to be in good standing or to hold any such Governmental Licenses would not, singly or in the aggregate, result in a Material Adverse Effect. (viii) The outstanding shares of capital stock of the Company, including the Securities, have been duly authorized and validly issued and are fully paid and non-assessable. To such counsel’s knowledge, none of the outstanding shares of capital stock of the Company, including the Securities, were issued in violation of the preemptive or other similar rights of any securityholder of the Company or any other entity. (ix) The Underwriting Agreement has been duly authorized, executed and delivered by each of the Company and the Bank. (x) The Certificate of Designations for the Securities has been duly filed with the Secretary of State of the State of Delaware. The form of certificate representing the Securities complies in all material respects with the requirements of Delaware state law, the Charter and the By-Laws. (xi) To the best of such counsel’s knowledge, except as described in the Registration Statement, the General Disclosure Package and the Prospectus, there is no action, suit, proceeding, inquiry or investigation before or brought by any Governmental Entity now pending or threatened against or affecting the Company or any of its subsidiaries which could, singly or in the aggregate, result in a Material Adverse Effect, or which might reasonably be expected to materially and adversely affect their respective properties, assets or operations or the consummation of the transactions contemplated in the Underwriting Agreement or the performance by the Company of its obligations under the Operative Documents. The aggregate of all pending legal or governmental proceedings known to such counsel to which the Company or any of its subsidiaries are a party or of which any of their respective properties, assets or operations are the subject which are not described in the Registration Statement, the General Disclosure Package and the Prospectus, including ordinary routine litigation incidental to the business, would not, singly or in the aggregate, result in a Material Adverse Effect. (xii) The information in the Registration Statement, the General Disclosure Package and the Prospectus under “Description of Capital Stock,” “Description of Series A Preferred Stock” and “Certain Material United States Federal Income Tax Considerations” or comparable captions and the information in the Registration Statement under “Item 15—Indemnification of Officers and Directors,” in each case to the extent that such information constitutes matters of law, summaries of legal matters, the Charter, By-Laws or legal proceedings, or legal conclusions, has been reviewed by such counsel and is correct in all material respects. (xiii) All descriptions in the Registration Statement, the General Disclosure Package and the Prospectus of contracts and other documents to which the Company or any of its subsidiaries are a party are accurate in all material respects. To the best of such counsel’s knowledge, there are no contracts, instruments or other documents required to be described in the Registration Statement, any preliminary prospectus or the Prospectus or to be filed as exhibits to the Registration Statement which have not been so described and filed as required. (xiv) To the best of such counsel’s knowledge, the execution, delivery and performance of the Operative Documents and the consummation of the transactions contemplated in the Underwriting Agreement and in the Registration Statement, [including the purchase by the Company of Securities in the offering,] the General Disclosure Package and the Prospectus and compliance by the Company with its obligations under the Operative Documents 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 ____) under, or result in the creation or imposition of any lien, charge or encumbrance upon

Appears in 1 contract

Samples: Underwriting Agreement (Fresh Market, Inc.)

Appears in 1 contract

Samples: Underwriting Agreement (First Capital Bancorp, Inc.)

Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof. If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company and the Selling Shareholder a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the Underwriters, the ~~Company, the Bank~~ Company and the Selling Shareholder in accordance with its terms. Very truly yours, ~~FIRST FINANCIAL HOLDINGS, INC. By:~~ TORM PLC By /s/ ~~Xxxxxx X. Xxxxxxxxxx Name: Xxxxxx X. Xxxxxxxxxx~~ Xxxxx Xxxxxxx Xxxxxxxxx Title: ~~EVP~~ Principal Executive Officer of Torm plc and Chief ~~Financial~~ Executive Officer FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF CHARLESTON By: /s/ Xxxxxx X. Xxxxxxxxxx Name: Xxxxxx X. Xxxxxxxxxx Title: EVP and Chief Financial Officer UNITED STATES DEPARTMENT OF THE TREASURY, as Selling Shareholder By: of Torm A/S OCM NJORD HOLDINGS S.À.X.X. By /s/ Xxxxxx Xxxxx ~~Name: Xxxxxx Xxxxx~~ and Xxxx Xxxxxxx Title: ~~Chief Investment Officer CONFIRMED AND ACCEPTED,~~ Managers as of the date first above written: ~~XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX By:~~ CITIGROUP GLOBAL MARKETS INC. By /s/ Xxxxxxx X. ~~Xxxxx~~ Xxxxxxxxxx Authorized Signatory For ~~itself~~ themselves and as ~~Representative~~ Representatives of the other Underwriters named in Schedule A hereto. The purchase price per share for the Securities to be paid by the several Underwriters shall be $~~860.4073~~36.25, ~~being an amount equal~~ subject to adjustment in accordance with Section 2(b) for dividends or distributions declared by the ~~initial public offering price set forth in Schedule B less $13.1027 per share~~Company and payable on the Initial Securities but not payable on the Option Securities. Name of Underwriter Number of Initial Securities Citigroup Global Markets Inc. 6,896,552 Total 6,896,552 OCM Njord Holdings S.à x.x., 6,896,552 1,034,482 Total 6,896,552 1,034,482 1. The Selling Shareholder is selling 6,896,552 shares of Common Stock. 2. The Selling Shareholder has granted an option to the Underwriters, severally and not jointly, to purchase up to an additional 1,034,482 shares of Common Stock. None. SCHEDULE D OCM Njord Holdings S.à x.x. Xxxxxxxxxxx Xxxxxx Xxxxxxxxxx Xxxxx Xxxx Xxxxxxxxx Xxxxxxx ~~Lynch~~Xxxx Xxxxxx Pär Xxxxx Xxxxx Xxxxx Xxxxxxx Xxxxxxxxx TORM Xxxxx LR2 114,000 2018 GSI Nansha TORM Hermia LR2 114,000 2018 GSI Nansha TORM Xxxxxxx LR2 114,445 2015 Hyundai HI (Gunsan) TORM Xxxxxxxx LR2 114,323 2015 Hyundai HI (Gunsan) TORM Xxxxx LR2 109,672 2008 Dalian Shipbuilding TORM Mathilde LR2 109,672 2008 Dalian Shipbuilding TORM Elise LR1 75,000 2020 GSI Nansha TORM Xxxxxxxxx LR1 75,000 2020 GSI Nansha TORM Venture LR1 73,700 2007 New Century SB TORM Adventurer MR 46,042 2007 Xxxx. Trogir TORM Allegro MR 46,184 2012 Xxxx. Trogir XXXX Xxxxxxx MR 46,184 2012 Xxxx. Trogir TORM Cavatina MR 46,200 2010 Xxxx. Trogir TORM Corrido MR 46,156 2011 Xxxx. Trogir TORM Discoverer MR 45,012 2008 Xxxx. Trogir TORM Xxxx MR 51,266 2006 STX SB (Jinhae) TORM Xxxxxx MR 46,187 2005 STX SB (Jinhae) TORM India MR 49,999 2010 Hyundai Mipo TORM Kansas MR 46,955 2006 Hyundai Mipo TORM Xxxxx MR 49,999 2008 GSI Liwan TORM Leader MR 46,070 2009 Xxxx. Trogir TORM Lene MR 49,999 2008 GSI Liwan TORM Xxxxx MR 49,999 2009 GSI Liwan TORM Lotte MR 49,999 2009 GSI Liwan XXXX Xxxxxx MR 49,999 2009 GSI Liwan TORM Philippines MR 49,999 2010 Hyundai Mipo TORM Platte MR 46,959 2006 Hyundai Mipo TORM Ragnhild MR 46,187 2005 STX SB (Jinhae) TORM Republican MR 46,955 2006 Hyundai Mipo TORM Resilience MR 49,999 2005 STX SB (Jinhae) TORM Solution MR 49,999 2019 GSI Nansha TORM Sovereign MR 49,999 2017 Hyundai Mipo TORM Splendid MR 49,999 2020 GSI Nansha TORM Stellar MR 49,999 2020 GSI Nansha TORM Strength MR 49,999 2019 GSI Nansha TORM Strong MR 49,999 2019 GSI Nansha TORM Sublime MR 49,999 2019 GSI Nansha TORM Success MR 49,999 2019 GSI Nansha TORM Supreme MR 49,999 2017 Hyundai Mipo TORM Thames MR 47,036 2005 Hyundai Mipo TORM Thor MR 49,842 2015 Sungdong SB TORM Thunder MR 49,842 2015 Sungdong SB XXXX Xxxxxxx MR 49,842 2015 Sungdong SB TORM Troilus MR 49,842 2016 Sungdong SB TORM Voyager MR 45,916 2008 Xxxx. Trogir XXXX Xxxxxxxx MR 49,995 2013 STX, ~~Pierce~~Korea XXXX Xxxxx MR 49,995 2013 STX, Korea XXXX Xxxxxxxx MR 49,995 2013 STX, Korea TORM Torino MR 49,842 2016 Sungdong SB TORM Australia MR 51,737 2011 Hyundai Mipo TORM Malaysia MR 51,737 2011 Hyundai Mipo TORM New Zealand MR 51,737 2011 Hyundai Mipo TORM Singapore MR 51,737 2011 Hyundai Mipo TORM Titan MR 49,842 2016 Sungdong SB TORM Xxxxxx & MR 49,999 2015 Hyundai Mipo TORM Xxxxxx MR 49,999 2015 Hyundai Mipo XXXX Xxxxx ~~Incorporated 60,125~~ MR 49,999 2016 Hyundai Mipo XXXX Xxxxxxxxx LR2 119,456 2010 Hyundai Samho HI TORM Gabriella LR2 119,456 2010 Hyundai Samho HI TORM Gwyneth LR2 119,456 2010 Hyundai Samho HI XXXX Xxxxxx ~~Xxxxxxxx~~MR 49,999 2015 Hyundai Mipo TORM Gitte LR2 119,456 2010 Hyundai Samho HI TORM Ganga LR2 119,456 2010 Hyundai Samho HI TORM Gemma LR2 119,456 2012 Hyundai Samho HI TORM Grace LR2 119,456 2012 Hyundai Samho HI TORM Genesis LR2 119,456 2011 Hyundai Samho HI TORM Xxxxxx LR2 119,456 2011 Hyundai Samho HI XXXX Xxxxx MR 49,999 2011 GSI Liwan TORM Agnete MR 49,999 2010 GSI Liwan XXXX Xxxxxx MR 49,999 2010 GSI Liwan TORM Amalie MR 49,999 2011 GSI Liwan TORM Xxxxxx MR 49,999 2012 GSI Liwan TORM Xxxxxx MR 49,999 2012 GSI Liwan XXXX Xxxxx MR 49,999 2012 GSI Liwan XXXX Xxxxxx MR 49,999 2010 GSI Liwan TORM Atlantic MR 49,999 2010 GSI Liwan TORM Kiara LR2 114,445 2015 Hyundai HI (Gunsan) TORM Xxxxxx LR2 114,000 2021 GSI Nansha TORM Hellerup LR2 114,000 2018 GSI Nansha TORM Xxxxxx LR2 114,000 2018 GSI Nansha XXXX Xxxxxxxxx MR 49,999 2010 GSI Liwan TORM Xxxxx MR 49,999 2010 GSI Liwan TORM Xxxxxx LR2 109,999 2016 GSI Nansha TORM Houston LR2 114,000 2022 GSI Nansha TORM Emilie LR1 75,013 2013 STX, ~~LLC 1,625 XX Xxxx Capital~~Korea TORM Eva LR1 74,552 2011 Hyundai Mipo TORM Innovation LR1 73,847 2013 New Times, ~~LLC 1,625 TBC Securities~~China TORM Integrity (10) LR1 73,800 2013 New Times, ~~LLC 1,625 Total 65,000~~ China TORM Emma LR1 75,000 2012 STX TORM Xxxxxx LR1 74,606 2011 Hyundai Mipo Please see attached. Please see attached. Please see attached. Please see attached. Citigroup Global Markets Inc. as Representatives of the several Underwriters to be named in the within‑mentioned Underwriting Agreement 000 Xxxxxxxxx Xxxxxx New York, New York 10013 Re: Proposed Public Offering by TORM plc Dear Sirs: The ~~initial~~ undersigned, a stockholder or director of TORM plc, a public limited company incorporated under the laws of England and Wales (the “Company”), understands that Citigroup Global Markets Inc. (“Citigroup”), as Representative of the several underwriters named in the Underwriting Agreement (“Underwriters”), propose to enter into an Underwriting Agreement (the “Underwriting Agreement”) with the Company and OCM Njord Holdings S.à x.x. (the “Selling Shareholder”) providing for the public offering ~~price~~ of shares of the Company’s Class A Common Shares, par value $0.01 per share ~~for~~ (the ~~Securities shall be $873.51. The number of Securities to be sold~~ “Common Stock”) by the Selling Shareholder ~~shall be 65,000~~(the “Public Offering”). ~~The settlement~~ In recognition of the benefit that such an offering will confer upon the undersigned as a stockholder or director of the Company, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned agrees with each Underwriter that, during the period beginning on the date ~~/ closing time shall be April 3~~hereof and ending on the date that is 60 days from the date of the Underwriting Agreement, ~~2012. 1. NONE~~ the undersigned will not, without the prior written consent of the Representatives, (i) ~~Each~~ directly or indirectly, offer, 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 any shares of the ~~Registration Statement and~~ Company’s Common Stock or any ~~post-effective amendment thereto has been declared effective~~ securities convertible into or exercisable or exchangeable for Common Stock, whether now owned or hereafter acquired by the ~~Commission~~ undersigned or with respect to which the undersigned has or hereafter acquires the power of disposition (collectively, the “Lock-Up Securities”), or exercise any right with respect to the registration of any of the Lock-up Securities, or file, cause to be filed or cause to be confidentially submitted any registration statement in connection therewith, under the ~~1933 Act. Each preliminary prospectus, each Issuer Free Writing Prospectus and the Prospectus have been filed as required by Rule 424(b) (without reliance on Rule 424(b)(8)) and Rule 433~~Securities Act of 1933, as ~~applicable~~amended, ~~within~~ (ii) enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the ~~time period prescribed by~~economic consequence of ownership of the Lock-Up Securities, whether any such swap or transaction is to be settled by delivery of Common Stock or other securities, in cash or otherwise or (iii) publicly announce the intention to do any of the foregoing. Notwithstanding the foregoing, and ~~in compliance with~~subject to the conditions below, the ~~1933 Act Regulations. To~~ undersigned may transfer the ~~best of such counsel’s knowledge, no stop order suspending~~ Lock-Up Securities without the ~~effectiveness~~ prior written consent of the ~~Registration Statement~~ Representatives, provided that (1) Citigroup receives a signed lock-up agreement for the balance of the lockup period from each donee, trustee, distributee, or transferee, as the case may be, (2) any ~~post-effective amendment thereto has been issued under the 1933 Act~~such transfer shall not involve a disposition for value, no order preventing or suspending the use of any preliminary prospectus or the Prospectus or any amendment or supplement thereto has been issued and no proceedings for any of those purposes have been instituted or (3) such transfers are ~~pending or contemplated by~~ not required to be reported with the Securities and Exchange ~~Commission.~~ Commission and (ii) The Registration Statement, the General Disclosure Package and the Prospectus and each amendment or supplement to the Registration Statement, the General Disclosure Package and the Prospectus, as of their respective effective or deemed effective or issue dates (other than (14) the ~~financial statements (including notes thereto) and supporting schedules included therein~~ undersigned does not otherwise voluntarily effect any public filing or ~~omitted therefrom and (2) the documents incorporated or deemed incorporated therein by reference, as to which~~ report regarding such counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations. (iii) The documents incorporated or deemed incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus (other than the financial statements (including notes thereto) and supporting schedules included therein or omitted therefrom, as to which we express no opinion), when they were filed with the Commission, complied as to form in all material respects with the requirements of the 1934 Act and 1934 Act Regulations. (iv) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any Governmental Entity is necessary or required for the Company to enter into, or perform their respective obligations under, the Operative Documents or the consummation of the transactions contemplated in the Underwriting Agreement, except or such as have been already obtained or as may be required under the 1933 Act, the 1933 Act Regulations, the securities laws of any state or non-U.S. jurisdiction or the rules of FINRA or by the Bank’s primary regulator for purposes of Section 7(e) of the Underwriting Agreement. (v) To the best of such counsel’s knowledge, there are no persons with registration rights or other similar rights to have any securities registered for sale pursuant to the Registration Statement or otherwise registered for sale or sold by the Company under the 1933 Act pursuant to the Underwriting Agreement. (vi) The Company is not required, or upon consummation of the transactions contemplated in the Underwriting Agreement will be required, to register as an “investment company” under the 1940 Act. Although we assume no responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, General Disclosure Package or Prospectus, nothing has come to the attention of such counsel that has lead such counsel to believe that (1) the Registration Statement or any amendment thereto, including any information deemed to be a part thereof pursuant to Rule 430B, at the time such Registration Statement or any such amendment became effective or as of the “new effective date,” 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, (2) the General Disclosure Package, at the Applicable Time, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of circumstances under which they were made, not misleading or (3) the Prospectus or any amendment or supplement thereto, at the time the Prospectus was issued, at the time any such amended or supplemented prospectus was issued or at the Closing Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; it being understood that such counsel makes no statement as to any financial statements (including notes thereto), supporting schedules and other financial data included in the Registration Statement, the General Disclosure Package and the Prospectus or omitted therefrom. 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). (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, to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and to enter into and perform its obligations under, and to consummate the transactions contemplated under, the Operative Documents. (iii) The Company is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended. (iv) The Significant Subsidiary has been duly organized and is validly existing and in good standing under the laws of the jurisdiction of its organization, has the requisite corporate power and authority to own, lease and operate its properties, to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and. To such counsel’s knowledge, except as otherwise described in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding shares of capital stock of or other equity interests in the Significant Subsidiary have been duly authorized and validly issued, are fully paid and non-assessable and are owned by the Company, directly or through subsidiaries, to the best of such counsel’s knowledge free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity. To such counsel’s knowledge, none of the outstanding shares of capital stock of or other equity interests in the Significant Subsidiary were issued in violation of the preemptive or similar rights of any securityholder of such Significant Subsidiary or any other entity. (v) The deposit accounts of each of the Company’s banking subsidiaries are insured up to the applicable limits by the Deposit Insurance Fund of the FDIC to the fullest extent permitted by law and the rules and regulations of the FDIC, and, to the best of such counsel’s knowledge, no proceeding for the revocation or termination of such insurance is pending or threatened. (vi) To the best of such counsel’s knowledge, except as described in the Registration Statement, the General Disclosure Package and the Prospectus, (A) neither the Company nor any of its subsidiaries is subject or party to, or has received any notice or advice from any Regulatory Agency that any of them are reasonably expected to become subject or party to any investigation with respect to, any Regulatory Agreement, (B) neither the Company nor any of its subsidiaries has been advised by any Regulatory Agency that it is considering issuing or requesting any Regulatory Agreement, (C) there is no unresolved violation, criticism or exception by any Regulatory Agency with respect to any report or statement relating to any examinations of the Company or any of its subsidiaries and (D) the Company and its subsidiaries are in compliance in all material respects with all laws administered by the Regulatory Agencies. (vii) Each of the Company and the Significant Subsidiary (A) is duly qualified 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 and (B) holds all Governmental Licenses issued by Governmental Entities necessary to conduct the business now operated by them, except where the failure so to qualify or to be in good standing or to hold any such Governmental Licenses would not, singly or in the aggregate, result in a Material Adverse Effect. (viii) The outstanding shares of capital stock of the Company, including the Securities, have been duly authorized and validly issued and are fully paid and non-assessable. To such counsel’s knowledge, none of the outstanding shares of capital stock of the Company, including the Securities, were issued in violation of the preemptive or other similar rights of any securityholder of the Company or any other entity. (ix) The Underwriting Agreement has been duly authorized, executed and delivered by each of the Company and the Bank. (x) The Certificate of Designations for the Securities has been duly filed with the Secretary of State of the State of Delaware. The form of certificate representing the Securities complies in all material respects with the requirements of Delaware state law, the Charter and the By-Laws. (xi) To the best of such counsel’s knowledge, except as described in the Registration Statement, the General Disclosure Package and the Prospectus, there is no action, suit, proceeding, inquiry or investigation before or brought by any Governmental Entity now pending or threatened against or affecting the Company or any of its subsidiaries which could, singly or in the aggregate, result in a Material Adverse Effect, or which might reasonably be expected to materially and adversely affect their respective properties, assets or operations or the consummation of the transactions contemplated in the Underwriting Agreement or the performance by the Company of its obligations under the Operative Documents. The aggregate of all pending legal or governmental proceedings known to such counsel to which the Company or any of its subsidiaries are a party or of which any of their respective properties, assets or operations are the subject which are not described in the Registration Statement, the General Disclosure Package and the Prospectus, including ordinary routine litigation incidental to the business, would not, singly or in the aggregate, result in a Material Adverse Effect. (xii) The information in the Registration Statement, the General Disclosure Package and the Prospectus under “Description of Capital Stock,” “Description of Series A Preferred Stock” and “Certain Material United States Federal Income Tax Considerations” or comparable captions and the information in the Registration Statement under “Item 15—Indemnification of Officers and Directors,” in each case to the extent that such information constitutes matters of law, summaries of legal matters, the Charter, By-Laws or legal proceedings, or legal conclusions, has been reviewed by such counsel and is correct in all material respects. (xiii) All descriptions in the Registration Statement, the General Disclosure Package and the Prospectus of contracts and other documents to which the Company or any of its subsidiaries are a party are accurate in all material respects. To the best of such counsel’s knowledge, there are no contracts, instruments or other documents required to be described in the Registration Statement, any preliminary prospectus or the Prospectus or to be filed as exhibits to the Registration Statement which have not been so described and filed as required. (xiv) To the best of such counsel’s knowledge, the execution, delivery and performance of the Operative Documents and the consummation of the transactions contemplated in the Underwriting Agreement and in the Registration Statement, [including the purchase by the Company of Securities in the offering,] the General Disclosure Package and the Prospectus and compliance by the Company with its obligations under the Operative Documents 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 ____) under, or result in the creation or imposition of any lien, charge or encumbrance upontransfers:

Appears in 1 contract

Samples: Underwriting Agreement (Oaktree Capital Group Holdings GP, LLC)

Appears in 1 contract

Samples: Underwriting Agreement (INVO Bioscience, Inc.)

Appears in 1 contract

Samples: Underwriting Agreement (National Health Investors Inc)

Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof. If the foregoing is in accordance with your ~~understanding of our agreement~~understanding, please sign and return to ~~the Company a counterpart~~ us counterparts hereof, ~~whereupon~~ and upon the acceptance hereof by you, on behalf of each of the Underwriters, this ~~instrument, along with all counterparts, will become~~ letter and such acceptance hereof shall constitute a binding agreement between each of the Underwriters and the Company. It is understood that your acceptance of this letter on behalf of each of the Underwriters is pursuant to the authority set forth in a form of Agreement among ~~the~~ Underwriters, the ~~Company~~form of which shall be submitted to the Company for examination upon request, but without warranty on your part as to the ~~Bank and~~ authority of the ~~Selling Shareholder in accordance with its terms~~signers thereof. Very truly yours, ~~FIRST FINANCIAL~~ VALIDUS HOLDINGS, ~~INC~~LTD. ~~By:~~ By /s/ Xxxxxx ~~X. Xxxxxxxxxx~~ Xxxxxxxx Name: Xxxxxx ~~X. Xxxxxxxxxx~~ Xxxxxxxx Title: EVP and Chief Financial Officer FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF CHARLESTON By: /s/ Xxxxxx X. Xxxxxxxxxx Name: Xxxxxx X. Xxxxxxxxxx Title: EVP and Chief Financial Officer UNITED STATES DEPARTMENT OF THE TREASURY, as Selling Shareholder By: /s/ Xxxxxx Xxxxx Name: Xxxxxx Xxxxx Title: Chief Investment Officer Executive Vice President & General Counsel CONFIRMED AND ACCEPTED, as of the date first above written: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX ~~By:~~ INCORPORATED By /s/ Xxxxxxxx Xxxxxxxx Authorized Signatory XXXXXX XXXXXXX ~~LYNCH, PIERCE, XXXXXX~~ & ~~XXXXX By:~~ CO. LLC By /s/ ~~Xxxxxxx X.~~ Yurij Slyz Authorized Signatory UBS SECURITIES LLC By /s/ Xxxxxxxxx Xxxxxxxxx Authorized Signatory By /s/ Xxxxx Xxxxxx Authorized Signatory For ~~itself~~ themselves and as ~~Representative~~ Representatives of the other Underwriters named in Schedule A hereto. Name of Underwriter Number of Depositary Shares Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated 1,560,000 Xxxxxx Xxxxxxx & Co. LLC 1,560,000 UBS Securities LLC 1,560,000 Citigroup Global Markets Inc. 360,000 HSBC Securities (USA) Inc. 360,000 Xxxxx, Xxxxxxxx & Xxxxx, Inc. 360,000 Barclays Capital Inc. 60,000 Xxxxxxx, Sachs & Co. 60,000 X.X. Xxxxxx Securities LLC 60,000 Lloyds Securities Inc. 60,000 Total 6,000,000 1. The Company is selling 6,000,000 Depositary Shares. 2. The initial public offering price shall be $25.00 per Depositary Share with respect to 300,000 Depositary Shares (representing Depositary Shares reserved for institutional orders) and $25.00 per Depositary Share with respect to 5,700,000 Depositary Shares (representing Depositary Shares reserved for retail orders). 3. The purchase price per share ~~for the Securities to be paid by the several Underwriters~~ shall be $~~860.4073,~~ 24.5000 per Depositary Share with respect to 300,000 Depositary Shares (representing Depositary Shares reserved for institutional orders) being an amount equal to the initial public offering price set forth ~~in Schedule B~~ above less $~~13.1027~~ 0.5000 and $24.2125 per share. Name of Underwriter Number of Securities Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated 60,125 Xxxxxx Xxxxxxxx, LLC 1,625 XX Xxxx Capital, LLC 1,625 TBC Securities, LLC 1,625 Total 65,000 The Depositary Share with respect to 5,700,000 Depositary Shares (representing Depositary Shares reserved for retail orders) being an amount equal to the initial public offering price set forth above less $0.7875 per ~~share for the Securities shall be $873.51~~Depositary Share. The number of Securities to be sold by the Selling Shareholder shall be 65,000. The settlement date / closing time shall be April 3, 2012. 1. NONE (i) Each of the Registration Statement and any post-effective amendment thereto has been declared effective by the Commission under the 1933 Act. Each preliminary prospectus, each Issuer Free Writing Prospectus and the Prospectus have been filed as required by Rule 424(b) (without reliance on Rule 424(b)(8)) and Rule 433, as applicable, within the time period prescribed by, and in compliance with, the 1933 Act Regulations. To the best of such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued under the 1933 Act, no order preventing or suspending the use of any preliminary prospectus or the Prospectus or any amendment or supplement thereto has been issued and no proceedings for any of those purposes have been instituted or are pending or contemplated by the Securities and Exchange Commission. (ii) The Registration Statement, the General Disclosure Package and the Prospectus and each amendment or supplement to the Registration Statement, the General Disclosure Package and the Prospectus, as of their respective effective or deemed effective or issue dates (other than (1) the financial statements (including notes thereto) and supporting schedules included therein or omitted therefrom and (2) the documents incorporated or deemed incorporated therein by reference, as to which such counsel need express no opinion), complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations. (iii) The documents incorporated or deemed incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus (other than the financial statements (including notes thereto) and supporting schedules included therein or omitted therefrom, as to which we express no opinion), when they were filed with the Commission, complied as to form in all material respects with the requirements of the 1934 Act and 1934 Act Regulations. (iv) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any Governmental Entity is necessary or required for the Company to enter into, or perform their respective obligations under, the Operative Documents or the consummation of the transactions contemplated in the Underwriting Agreement, except or such as have been already obtained or as may be required under the 1933 Act, the 1933 Act Regulations, the securities laws of any state or non-U.S. jurisdiction or the rules of FINRA or by the Bank’s primary regulator for purposes of Section 7(e) of the Underwriting Agreement. (v) To the best of such counsel’s knowledge, there are no persons with registration rights or other similar rights to have any securities registered for sale pursuant to the Registration Statement or otherwise registered for sale or sold by the Company under the 1933 Act pursuant to the Underwriting Agreement. (vi) The Company is not required, or upon consummation of the transactions contemplated in the Underwriting Agreement will be required, to register as an “investment company” under the 1940 Act. Although we assume no responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, General Disclosure Package or Prospectus, nothing has come to the attention of such counsel that has lead such counsel to believe that (1) the Registration Statement or any amendment thereto, including any information deemed to be a part thereof pursuant to Rule 430B, at the time such Registration Statement or any such amendment became effective or as of the “new effective date,” 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, (2) the General Disclosure Package, at the Applicable Time, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of circumstances under which they were made, not misleading or (3) the Prospectus or any amendment or supplement thereto, at the time the Prospectus was issued, at the time any such amended or supplemented prospectus was issued or at the Closing Time, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; it being understood that such counsel makes no statement as to any financial statements (including notes thereto), supporting schedules and other financial data included in the Registration Statement, the General Disclosure Package and the Prospectus or omitted therefrom. 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 Final Term Sheet relating to legal opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991). (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, to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and to enter into and perform its obligations under, and to consummate the transactions contemplated under, the Operative Documents. (iii) The Company is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended. (iv) The Significant Subsidiary has been duly organized and is validly existing and in good standing under the laws of the jurisdiction of its organization, has the requisite corporate power and authority to own, lease and operate its properties, to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and. To such counsel’s knowledge, except as otherwise described in the Registration Statement, the General Disclosure Package and the Prospectus, all of the issued and outstanding shares of capital stock of or other equity interests in the Significant Subsidiary have been duly authorized and validly issued, are fully paid and non-assessable and are owned by the Company, directly or through subsidiaries, to the best of such counsel’s knowledge free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity. To such counsel’s knowledge, none of the outstanding shares of capital stock of or other equity interests in the Significant Subsidiary were issued in violation of the preemptive or similar rights of any securityholder of such Significant Subsidiary or any other entity. (v) The deposit accounts of each of the Company’s banking subsidiaries are insured up to the applicable limits by the Deposit Insurance Fund of the FDIC to the fullest extent permitted by law and the rules and regulations of the FDIC, and, to the best of such counsel’s knowledge, no proceeding for the revocation or termination of such insurance is pending or threatened. (vi) To the best of such counsel’s knowledge, except as described in the Registration Statement, the General Disclosure Package and the Prospectus, (A) neither the Company nor any of its subsidiaries is subject or party to, or has received any notice or advice from any Regulatory Agency that any of them are reasonably expected to become subject or party to any investigation with respect to, any Regulatory Agreement, (B) neither the Company nor any of its subsidiaries has been advised by any Regulatory Agency that it is considering issuing or requesting any Regulatory Agreement, (C) there is no unresolved violation, criticism or exception by any Regulatory Agency with respect to any report or statement relating to any examinations of the Company or any of its subsidiaries and (D) the Company and its subsidiaries are in compliance in all material respects with all laws administered by the Regulatory Agencies. (vii) Each of the Company and the Significant Subsidiary (A) is duly qualified 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 and (B) holds all Governmental Licenses issued by Governmental Entities necessary to conduct the business now operated by them, except where the failure so to qualify or to be in good standing or to hold any such Governmental Licenses would not, singly or in the aggregate, result in a Material Adverse Effect. (viii) The outstanding shares of capital stock of the Company, including the Securities, ~~have been duly authorized and validly issued and are fully paid and non-assessable~~dated June 6, 2016 None. ~~To such counsel’s knowledge~~Issuer: Validus Holdings, none of the outstanding shares of capital stock of the Company, including the Securities, were issued in violation of the preemptive or other similar rights of any securityholder of the Company or any other entity. (ix) The Underwriting Agreement has been duly authorized, executed and delivered by each of the Company and the Bank. (x) The Certificate of Designations for the Securities has been duly filed with the Secretary of State of the State of Delaware. The form of certificate representing the Securities complies in all material respects with the requirements of Delaware state law, the Charter and the By-Laws. (xi) To the best of such counsel’s knowledge, except as described in the Registration Statement, the General Disclosure Package and the Prospectus, there is no action, suit, proceeding, inquiry or investigation before or brought by any Governmental Entity now pending or threatened against or affecting the Company or any of its subsidiaries which could, singly or in the aggregate, result in a Material Adverse Effect, or which might reasonably be expected to materially and adversely affect their respective properties, assets or operations or the consummation of the transactions contemplated in the Underwriting Agreement or the performance by the Company of its obligations under the Operative Documents. The aggregate of all pending legal or governmental proceedings known to such counsel to which the Company or any of its subsidiaries are a party or of which any of their respective properties, assets or operations are the subject which are not described in the Registration Statement, the General Disclosure Package and the Prospectus, including ordinary routine litigation incidental to the business, would not, singly or in the aggregate, result in a Material Adverse Effect. (xii) The information in the Registration Statement, the General Disclosure Package and the Prospectus under “Description of Capital Stock,” “Description of Series A Preferred Stock” and “Certain Material United States Federal Income Tax Considerations” or comparable captions and the information in the Registration Statement under “Item 15—Indemnification of Officers and Directors,” in each case to the extent that such information constitutes matters of law, summaries of legal matters, the Charter, By-Laws or legal proceedings, or legal conclusions, has been reviewed by such counsel and is correct in all material respects. (xiii) All descriptions in the Registration Statement, the General Disclosure Package and the Prospectus of contracts and other documents to which the Company or any of its subsidiaries are a party are accurate in all material respects. To the best of such counsel’s knowledge, there are no contracts, instruments or other documents required to be described in the Registration Statement, any preliminary prospectus or the Prospectus or to be filed as exhibits to the Registration Statement which have not been so described and filed as required. (xiv) To the best of such counsel’s knowledge, the execution, delivery and performance of the Operative Documents and the consummation of the transactions contemplated in the Underwriting Agreement and in the Registration Statement, [including the purchase by the Company of Securities in the offering,] the General Disclosure Package and the Prospectus and compliance by the Company with its obligations under the Operative Documents 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 ____) under, or result in the creation or imposition of any lien, charge or encumbrance uponLtd.

Appears in 1 contract

Samples: Underwriting Agreement (Validus Holdings LTD)

Appears in 1 contract

Samples: Underwriting Agreement (Safe Bulkers, Inc.)

Appears in 1 contract

Samples: Underwriting Agreement (Southern First Bancshares Inc)

Common use of Effect of Headings Clause in Contracts