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EXHIBIT 1.1
1,000,000 SHARES*
COLUMBIA BANCORP
COMMON STOCK
(WITHOUT PAR VALUE)
FORM OF
UNDERWRITING AGREEMENT
_________________, 0000
Xxxxxxx Xxxxx Securities Inc.
As Representative of Several Underwriters
000 XX Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, Xxxxxx 00000
Ladies and Gentlemen:
Columbia Bancorp, an Oregon corporation (the "Company"), proposes to
sell an aggregate of 1,000,000 shares (the "Firm Shares") of the Company's
common stock, no par value per share (the "Common Stock"), to you and to the
several other underwriters named in Schedule I hereto (collectively, the
"Underwriters") for whom you are acting as representative (the
"Representative"). The Company also proposes to sell at the Underwriters' option
(the "Option") an aggregate of up to 150,000 additional shares of Common Stock
(the "Option Shares") on the terms and for the purposes set forth in Section
1(c). The Firm Shares and the Option Shares are referred to collectively herein
as the "Shares."
The Company confirms as follows its agreement with the Representative
and the several other Underwriters.
1. AGREEMENT TO SELL AND PURCHASE.
(a) On the basis of the representations, warranties and agreements of
the parties herein contained and subject to all of the terms and conditions of
this Agreement, (i) the Company agrees to sell an aggregate of 1,000,000 shares
of Common Stock to the several Underwriters, and (ii) each of the Underwriters,
severally and not jointly, agree to purchase from the Company the respective
number of Firm Shares set forth opposite that Underwriter's name in Schedule I
hereto, at the purchase price of $_________ for each Firm Share, subject to
adjustments in accordance with Section 8 hereof.
(b) The Underwriters propose to make a public offering of their
respective portions of the Shares as soon after the registration statement on
Form S-1 (File No. 333-64225), as amended, has become effective as in the
Representative's judgment is advisable.
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* Plus an option to purchase up to an additional 150,000 shares to cover
over-allotments.
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(c) Subject to all the terms and conditions of this Agreement, the
Company grants the Option to the Underwriters to purchase, severally and not
jointly, up to the maximum number of Option Shares at the same price per share
as the Underwriters shall pay for the Firm Shares. The Option may be exercised
only to cover overallotments in the sale of the Firm Shares by the Underwriters
and may be exercised in whole or in part at any time (but not more than once) on
or before the 30th day after the date of this Agreement upon written or
facsimile notice (the "Option Shares Notice") by the Representative to the
Company no later than 12:00 noon, New York City time, at least two and no more
than five business days before the date specified for the closing in the Option
Shares Notice (the "Option Closing Date") setting forth the aggregate number of
Option Shares to be purchased and the time and date for such purchase. The
number of Option Shares to be purchased by each Underwriter shall be in the same
proportion to the total number of Option Shares being purchased as the number of
Firm Shares being purchased by such Underwriter bears to the total number of
Firm Shares, adjusted by you in such manner as to avoid fractional shares.
2. DELIVERY AND PAYMENT.
(a) Payment for the Firm Shares to be sold hereunder is to be made in
New York Clearing House funds by wire transfer to an account designated in
writing by the Company against delivery of the Shares. The Company will deliver
the Shares to the Underwriter by book entry, as confirmed by the Company's
transfer agent by telephone or other means acceptable to the Underwriter. Such
payment and delivery are to be authorized at a closing to take place at the
offices of the Underwriter, 000 XX Xxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxx, Xxxxxx
00000, at 9:00 a.m., Portland time, on ______, 1998 or at such other time and
date not later than four business days thereafter as you and the Company shall
agree upon, such time and date being herein referred to as the "Closing Date."
(As used herein, "business day" means a day on which the New York Stock Exchange
is open for trading and on which banks in New York are open for business and not
permitted by law or executive order to be closed.)
(b) To the extent the Option is exercised, delivery of the Option Shares
against payment by the Underwriters (in the manner specified above) will take
place at the offices specified above at the time and date (which may be the
Closing Date) specified in the Option Shares Notice.
(c) The Shares shall be in book entry form and shall be registered in
such names and such denominations as the Representative shall request at least
two business days prior to the Closing Date or the Option Closing Date, as the
case may be, by written notice to the Company.
(d) The cost of any original issue tax stamps and any transfer or other
taxes in connection with the issuance and delivery of the Firm Shares and Option
Shares by the Company to the respective Underwriters shall be borne by the
Company. The Company will hold each Underwriter and any subsequent holder of the
Shares harmless from any and all liabilities with respect to, or resulting from
any failure or delay by the Company in paying, federal and state stamp and other
transfer taxes, if any, that may be payable or determined to be payable in
connection with the original issuance, transfer or sale to such Underwriter of
the Firm Shares and Option Shares.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents, warrants and covenants to each Underwriter that:
(a) A registration statement on Form S-1 (File No. 333-64225) with
respect to the Shares has been carefully prepared by the Company in conformity
with the requirements of the Securities Act of 1933, as amended (the "Act"), and
the Rules and Regulations (the "Rules and Regulations") of the United
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States Securities and Exchange Commission (the "Commission") thereunder and has
been filed with the Commission. Copies of such registration statement, including
any amendments thereto, the preliminary prospectuses (meeting the requirements
of the Rules and Regulations) contained therein and the exhibits, financial
statements and schedules, as finally amended and revised, have heretofore been
delivered by the Company to you. Such registration statement, as amended,
together with any registration statement filed by the Company pursuant to Rule
462(b) of the Act, herein referred to collectively as the "Registration
Statement," which shall be deemed to include all information omitted therefrom
in reliance upon Rule 430A and contained in the Prospectus referred to below,
has been declared effective by the Commission under the Act and no
post-effective amendment to the Registration Statement has been filed as of the
date of this Agreement. "Prospectus" means (i) the form of prospectus first
filed with the Commission pursuant to Rule 424(b), or (ii) the last preliminary
prospectus included in the Registration Statement filed prior to the time it
becomes effective or filed pursuant to Rule 424(a) under the Act that is
delivered by the Company to the Underwriter, for delivery to purchasers of the
Shares, together with the term sheet or abbreviated term sheet filed with the
Commission pursuant to Rule 424(b)(7) under the Act. Each preliminary prospectus
included in the Registration Statement prior to the time it becomes effective is
herein referred to as a "Preliminary Prospectus."
(b) The Company has been duly organized and is an active corporation
under the laws of the State of Oregon, with corporate power and authority to own
or lease its properties and conduct its business as described in the
Registration Statement, and has only one subsidiary, Columbia River Bank
Company (the "Bank"), an Oregon state chartered bank. The Bank has been duly
organized and is validly existing as a state bank under the laws of the State of
Oregon. The Bank continues to hold a valid certificate or license to do business
as a state bank in Oregon and has full power and authority to conduct its
business as such and as described in the Registration Statement.
(c) The outstanding shares of Common Stock of the Company have been duly
authorized and validly issued, are fully paid and nonassessable, and were not
issued in violation of or subject to any preemptive rights or other rights to
subscribe for or purchase securities. The Shares have been duly authorized by
all necessary corporate action of the Company and when issued and paid for as
contemplated by this Agreement will be validly issued, fully paid and
nonassessable, and no preemptive rights of shareholders exist under any statute
or otherwise with respect to any of the Shares or the issue and sale thereof.
All of the issued shares of capital stock of the Bank have been duly and validly
authorized and issued, are fully paid and non-assessable, and are owned directly
by the Company, free and clear of all liens, encumbrances, equities or claims.
No holder of any securities of the Company or any other person has the right,
contractual or otherwise, which has not been satisfied or effectively waived, to
cause the Company to sell or otherwise issue to them, or to permit them to
underwrite the sale of, any of the Shares or the right to have any shares of
Common Stock or other securities of the Company included in the Registration
Statement or the right, as a result of the filing of the Registration Statement,
to require registration under the Act of any shares of Common Stock or other
securities of the Company. Except as described in the Prospectus, there are no
(i) outstanding securities or obligations of the Company or the Bank convertible
into or exchangeable for or evidencing the right to purchase or subscribe for
any capital stock of the Company or the Bank, (ii) warrants, rights or options
to subscribe for or purchase from the Company or the Bank any such capital stock
or any such convertible or exchangeable securities or obligations, or (iii)
obligations of the Company or the Bank to issue any shares of capital stock, any
such convertible or exchangeable securities or obligations, or any such
warrants, rights or options.
(d) The information set forth under "Capitalization" in the Prospectus
is true and correct. All of the Shares conform to the description set forth
under "Description of Capital Stock" in the Registration Statement.
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(e) The Commission has not issued an order preventing or suspending the
use of any Preliminary Prospectus relating to the proposed offering of the
Shares or instituted proceedings for that purpose. The Registration Statement
contains, and the Prospectus and any amendments or supplements thereto will
contain, all statements that are required to be stated therein by, and will
conform to, the requirements of the Act and the Rules and Regulations. There are
no contracts or documents that would be required by the Act or by the Rules and
Regulations to be filed as exhibits to the Registration Statement or described
in the Registration Statement that have not been so filed or described. The
Registration Statement and any amendment thereto do not contain, and through the
Closing Date will not contain, any untrue statement of a material fact and do
not omit, and through the Closing Date will not omit, to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading. The Prospectus and any amendments or supplements thereto do not
contain and will not contain, any untrue statement of material fact and do not
omit, and will not omit, to state any material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however,
that the Company makes no representations or warranties as to information
contained in or omitted from the Registration Statement or the Prospectus, or
any such amendment or supplement, in reliance upon, and in conformity with,
written information furnished to the Company by or on behalf of any Underwriter
through the Representative specifically for use in the preparation thereof.
(f) The consolidated financial statements of the Company, together with
related notes and schedules as set forth in the Registration Statement, present
fairly the financial position and the results of operations and cash flows of
the Company at the indicated dates and for the indicated periods. Such
consolidated financial statements and related schedules have been prepared in
accordance with generally accepted accounting principles, consistently applied
throughout the periods involved, except as disclosed therein, and all
adjustments necessary for a fair presentation of results for such periods have
been made. The summary consolidated financial and statistical data included in
the Registration Statement present fairly the information shown therein, and
such data have been compiled on a basis consistent with the financial statements
of the Company presented therein.
(g) The Company and the Bank are in compliance in all material respects
with all applicable laws administered by and regulations of the Board of
Governors of the Federal Reserve System, the Federal Deposit Insurance
Corporation, the Oregon Department of Consumer and Business Services, and the
Washington Department of Financial Institutions, as the case may be (the "Bank
Regulatory Authorities"), the failure to comply with which would have a material
adverse effect upon the assets or properties, business prospects, results of
operations or financial condition of the Company and the Bank, taken as a whole.
Other than the Bank Regulatory Authorities, neither the Company nor the Bank is
subject to regulation as a bank holding company or a bank, respectively, by any
other governmental authority. Neither the Company nor the Bank is a party to any
written agreement or memorandum of understanding with, or a party to any
commitment letter or similar undertaking to, or is subject to an order or
directive by, or is a recipient of any extraordinary supervisory letter from any
Bank Regulatory Authority, specifically directed at the Company or the Bank,
which restricts materially the conduct of its business, or in any manner relates
to its capital adequacy, its credit policies or its management, nor have the
Company and the Bank, been advised in writing by any Bank Regulatory Authority
that it is contemplating issuing or requesting (or is considering the
appropriateness of issuing or requesting) any such order, decree, agreement,
memorandum of understanding, extraordinary supervisory letter, commitment letter
or similar submission, specifically directed at the Company or the Bank. The
Company and the Bank, and their respective operations, comply in all material
respects with all applicable laws and regulations, including, without
limitation, those relating to the practice of banking.
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(h) Xxxx Xxxxx (the "Accountants"), who have certified certain of the
consolidated financial statements filed with the Commission as part of the
Registration Statement, are independent public accountants as required by the
Act and the Rules and Regulations.
(i) There is no action, suit, claim or proceeding pending or, to the
knowledge of the Company, threatened against the Company or the Bank, before any
court or administrative agency or otherwise that if determined adversely to the
Company or the Bank would (i) result in a material adverse change in the
condition (financial or other), business prospects, net worth, or (ii) prevent
the consummation of the transactions contemplated hereby.
(j) The Company and the Bank have good and marketable title in fee
simple to all items of real property and marketable title to all personal
property owned by them, in each case free and clear of any security interests,
liens, encumbrances, equities, claims and other defects, except such as do not
materially and adversely affect the value of such property and do not interfere
with the use made or proposed to be made of such property by the Company or the
Bank, and any real property and buildings held under lease by the Company or the
Bank are held under valid, subsisting and enforceable leases, with such
exceptions as are not material and do not interfere with the use made or
proposed to be made of such property and buildings by the Company and the Bank.
(k) The Company and the Bank have filed all federal, state and local
income tax returns that have been required to be filed and has paid all taxes
indicated by said returns and all assessments received by it to the extent that
such taxes have become due and are not being contested in good faith. All tax
liabilities have been adequately provided for in the financial statements of the
Company.
(l) Since the respective dates as of which information is given in the
Registration Statement, as it may be amended or supplemented, (i) there has not
been a material adverse change in or, to the knowledge of the Company, any
development involving a prospective change in or affecting, the condition
(financial or other), business prospects, net worth or results of operations of
the Company, whether or not occurring in the ordinary course of business; (ii)
the Company and the Bank, have not incurred any material liability or
obligation, direct or contingent, nor entered into any material transaction not
in the ordinary course of business; (iii) the Company has not purchased any of
its outstanding capital stock, nor declared, paid or otherwise made any dividend
or distribution of any kind on its capital stock; (iv) there has not been any
material change in the capital stock, short-term debt or long-term debt of the
Company and (v) there is no transaction that is probable of being entered into
by the Company that is material to the Company, except in each case as set forth
in the Registration Statement. The Company has no material contingent
obligations that are not disclosed in the Company's consolidated financial
statements, that are included in the Registration Statement, as it may be
amended or supplemented.
(m) The Company and the Bank are not, and with the giving of notice or
lapse of time or both will not be, in violation of or in default under their
respective Articles of Incorporation or bylaws. Neither the Company nor the Bank
is, or with the giving of notice or lapse of time or both will be, in violation
of or in default under any agreement, lease, contract, indenture or other
instrument or obligation to which the Company or the Bank is a party or by which
they, or any of their properties, are bound and which default is of material
significance in respect of the condition (financial or other), business
prospects, net worth or results of operations of the Company. The execution and
delivery of this Agreement and the consummation of the transactions herein
contemplated and the fulfillment of the terms hereof will not conflict with or
result in a breach of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, lease or other agreement or
instrument to which the Company or the Bank is a party or by which the Company,
the Bank or any of their respective
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properties are bound, or of the Articles of Incorporation or bylaws of the
Company or the Bank or any order, rule or regulation applicable to the Company
or the Bank of any court or of any regulatory body or administrative agency or
other governmental body having jurisdiction.
(n) The Company has full legal right, power and authority to enter into
this Agreement and to perform the transactions contemplated hereby and thereby
and to file the Registration Statement, and each has been duly authorized,
executed and delivered by the Company, and this Agreement, each constitutes a
valid and binding obligation of the Company enforceable in accordance with its
terms, except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting the
rights of creditors' generally, and except to the extent that rights of
indemnity or contribution under this Agreement may be limited by federal or
state securities laws or the public policies underlying such laws or by general
equitable principles. Each approval, consent, order, authorization designation,
declaration or filing by or with any regulatory, administrative or other
governmental body necessary in connection with the execution and delivery by the
Company of this Agreement and the consummation of the transactions herein
contemplated (except such additional steps as may be required by the Commission,
the National Association of Securities Dealers, Inc. (the "NASD") or such
additional steps as may be necessary to qualify the Shares for public offering
by the Underwriters under state securities or Blue Sky laws) has been obtained
or made and is in full force and effect.
(o) The Company and the Bank each owns or possesses all material
trademarks, service marks, trade names, licenses, copyrights and proprietary or
other confidential information currently employed by it in connection with its
businesses, and neither the Company nor the Bank has received any notice of
infringement of or conflict with asserted rights of any third party with respect
to any of the foregoing.
(p) There are no material labor disputes with the employees of the
Company or the Bank other than as set forth in the Registration Statement.
(q) Neither the Company nor the Bank is in violation of any federal or
state law or regulation relating to occupational safety and health or to the
storage, handling or transportation of hazardous or toxic material, except where
such non-compliance with such laws or regulations would not, individually or in
the aggregate, have a material adverse effect on the condition (financial or
otherwise), earnings, business or properties of the Company and the Bank, taken
as a whole; and the Company and the Bank, have received all permits, licenses or
other approvals required of them under applicable federal and state occupational
safety and health and environmental laws and regulations to conduct their
respective businesses, and each of the Company and the Bank, are in compliance
with all terms and conditions of any such permit, license or approval.
(r) The Company and the Bank are insured by insurers of recognized
financial responsibility against such losses and risks and in such amounts as
are prudent and customary in the businesses in which they are engaged; neither
the Company nor the Bank has been refused any insurance coverage sought or
applied for; and neither the Company nor the Bank has any reason to believe that
it will not be able to renew its existing insurance coverage as and when such
coverage expires or to obtain similar coverage from similar insurers as may be
necessary to continue its business at a cost that would not materially and
adversely affect the condition (financial or otherwise), business prospects, net
worth, or results of operations of the Company and the Bank taken as a whole.
(s) Other than the Company's interest in the Bank and the Bank's
interest in the Federal Home Loan Bank of Seattle and the Federal Agricultural
Mortgage Corporation, neither the Company
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nor the Bank owns any shares of stock or any other equity securities of any
corporation or has any equity interest in any firm, partnership, association or
other entity.
(t) All offers and sales of the Company's capital stock prior to the
date hereof were at all relevant times exempt from the registration requirements
of the Act, and were the subject of an available exemption from the registration
requirements of all applicable state securities or Blue Sky laws; and all
offering materials prepared in connection therewith, if any, did not include any
untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
(u) The Company and the Bank have not taken, directly or indirectly, any
action designed to cause or result in, or which has constituted or which might
reasonably be expected to constitute, the stabilization or manipulation of the
price of the shares of its capital stock to facilitate the sale or resale of the
Shares.
(v) The Company is not an investment company within the meaning of such
term under the Investment Company Act of 1940, as amended (the "1940 Act") and
the rules and regulations of the Commission thereunder, and this transaction
will not cause the Company to become an investment company subject to
registration under the 1940 Act.
(w) The Company and the Bank maintain a system of internal accounting
controls sufficient to provide reasonable assurances that (i) transactions are
executed in accordance with management's general or specific authorization, (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain accountability for assets, (iii) access to assets is permitted only in
accordance with management's general or specific authorization, and (iv) the
recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(x) The Company and the Bank are in compliance in all material respects
with all presently applicable provisions of the Employee Retirement Income
Security Act of 1974, as amended, including the regulations and published
interpretations thereunder ("ERISA"); no "reportable event" (as defined in
ERISA) has occurred with respect to any "pension plan" (as defined in ERISA) for
which the Company or the Bank would have any liability; neither the Company nor
the Bank has incurred, or expects to incur, liability under (i) Title IV of
ERISA with respect to termination of, or withdrawal from, any "pension plan" or
(ii) Sections 412 or 4971 of the Internal Revenue Code of 1986, as amended,
including the regulations and published interpretations thereunder (the "Code");
and each "pension plan" for which the Company or the Bank would have any
liability that is intended to be qualified under Section 401(a) of the Code is
so qualified in all material respects and nothing has occurred, whether by
action or by failure to act, that would cause the loss of such qualification.
(y) Neither the Company nor the Bank has at any time during the last
five years (i) made any unlawful contribution to any candidate for public
office, or failed to disclose fully any contribution in violation of law, or
(ii) made any payment to any federal or state governmental officer or official,
or other person charged with similar public or quasi-public duties, other than
payments required or permitted by the laws of the United States or any
jurisdiction thereof.
(z) Neither the Company, the Bank nor any of their respective officers,
directors or affiliates have caused any person, other than the Underwriters, to
be entitled to reimbursement or compensation of any kind, including, without
limitation, any compensation that would be includable as underwriter
compensation under the NASD's Corporate Financing Rule with respect to the
offering of the Shares, as a
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result of the consummation of such offering based on any activity of such person
as a finder, agent, broker, investment adviser or other financial service
provider.
4. AGREEMENTS OF THE COMPANY.
The Company agrees with the several Underwriters as follows:
(a) The Company will not, either prior to the date on which the
Registration Statement is declared effective (the "Effective Date") or
thereafter during such period as the Prospectus is required by law to be
delivered in connection with sale of the Shares by an Underwriter or dealer,
file any amendment or supplement to the Registration Statement or the
Prospectus, unless a copy thereof shall first have been submitted to the
Representative within a reasonable period of time prior to the filing and the
Representative shall not have objected thereto in good faith.
(b) The Company will use its best efforts to cause the Registration
Statement to become effective and will notify the Representative and its counsel
promptly, and will confirm such advice in writing, (i) when the Registration
Statement has become effective and when any post-effective amendment thereto
becomes effective, (ii) of any request by the Commission for amendments or
supplements to the Registration Statement or the Prospectus or for additional
information, (iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the initiation of
any proceedings for that purpose or the threat thereof, (iv) of the happening of
any event during the period mentioned in the second sentence of Section 4(e)
that in the judgment of the Company makes any statement made in the Registration
Statement or the Prospectus untrue or that requires the making of any changes in
the Registration Statement or the Prospectus in order to make the statements
therein, in light of the circumstances in which they are made, not misleading,
and (v) of receipt by the Company or any representative or attorney of the
Company of any other communication from the Commission relating to the Company,
the Registration Statement, any Preliminary Prospectus, or the Prospectus. If at
any time the Commission issues any stop order suspending the effectiveness of
the Registration Statement, the Company will make every reasonable effort to
obtain the withdrawal of such order at the earliest possible moment. If the
Company has omitted any information from the Registration Statement pursuant to
Rule 430A of the Rules and Regulations, the Company will use its best efforts to
comply with the provisions of and make all requisite filings with the Commission
pursuant to said Rule 430A and to notify the Underwriter promptly of all such
filings.
(c) The Company will furnish to the Representative or its counsel,
without charge, two signed copies of the Registration Statement and any
post-effective amendment thereto, including financial statements and schedules,
and all exhibits thereto and will furnish to the Representative, without charge,
for transmittal to each of the Underwriters, a copy of the Registration
Statement and any post-effective amendment thereto, including financial
statements and schedules but without exhibits.
(d) The Company will comply with all the provisions of any undertakings
contained in the Registration Statement.
(e) As soon as practicable after the Effective Date, and thereafter from
time to time, the Company will deliver to the each of Underwriters, without
charge, as many copies of the Prospectus or any amendment or supplement thereto
as the Representative may reasonably request. The Company consents to the use of
the Prospectus or any amendment or supplement thereto by the several
Underwriters and by all dealers to whom the Shares may be sold, both in
connection with the offering or sale of the Shares and for any period of time
thereafter during which the Prospectus is required by law to be delivered in
connection therewith. If during such period of time any event shall occur that,
in the
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judgment of the Company or counsel to the Underwriters, should be set forth in
the Prospectus in order to make any statement therein, in the light of the
circumstances under which it was made, not misleading, or if it is necessary to
supplement or amend the Prospectus to comply with law, the Company will
forthwith prepare and duly file with the Commission an appropriate supplement or
amendment thereto and will deliver to each of the Underwriters, without charge,
such number of copies of such supplement or amendment to the Prospectus as the
Representative may reasonably request.
(f) Prior to any public offering of the Shares, the Company will
cooperate with the Representative and counsel to the Underwriters in connection
with the registration or qualification of the Shares for offer and sale under
the securities or Blue Sky laws of such jurisdictions as the Representative may
reasonably request; provided, however, that in no event shall the Company be
obligated to qualify to do business in any jurisdiction where it is not now so
qualified or to take any action that would subject it to general service of
process in any jurisdiction where it is not now so subject.
(g) During the period of five years commencing on the Effective Date,
the Company will furnish to the Representative and each other Underwriter who
may so request copies of such financial statements and other periodic and
special reports as the Company may from time to time distribute generally to the
holders of any class of its capital stock and will furnish to the Representative
and each other Underwriter who may so request a copy of each annual or other
report it shall be required to file with the Commission.
(h) The Company will make generally available to holders of its
securities as soon as may be practicable, but no later than the last day of the
15th full calendar month following the calendar quarter in which the Effective
Date falls, an earnings statement (which need not be audited but shall be in
reasonable detail) for a period of 12 months commencing after the Effective Date
and satisfying the provisions of Section 11(a) of the Act (including Rule 158 of
the Rules and Regulations).
(i) The Company will use its best efforts to have the Shares accepted
for listing, upon notice of issuance on the Nasdaq National Market.
(j) Whether or not the transactions contemplated by this Agreement are
consummated or this Agreement is terminated, the Company will pay, or reimburse
if paid by the Representative, all costs and expenses incident to the
performance of the obligations of the Company under this Agreement, including
but not limited to costs and expenses of or relating to (i) the preparation,
printing and filing of the Registration Statement and the exhibits thereto, each
Preliminary Prospectus, Prospectus and any amendment or supplement to the
Registration Statement or Prospectus, (ii) the preparation and delivery of
certificates representing the Shares, (iii) the photocopying of this Agreement,
the Agreement among Underwriters, any Dealer Agreements, and any Underwriters'
Questionnaires, (iv) printing and furnishing to the Underwriters (including
costs of shipping and mailing) such copies of the Registration Statement, the
Prospectus and any Preliminary Prospectus, and all amendments and supplements
thereto, as may be requested for use in connection with the offering and sale of
the Shares by the Underwriters or by dealers to whom Shares may be sold, (v) the
listing of the Shares on the Nasdaq National Market, (vi) the fees payable to
the NASD relating to any filings required to be made by the Underwriters with
the NASD, including the fees, disbursements and other charges of counsel to the
Underwriter in connection therewith, (vii) the registration or qualification of
the Shares for offer and sale under the securities or Blue Sky laws of such
jurisdictions designated pursuant to Section 4(f), including the fees,
disbursements and other charges of counsel to the Underwriters in connection
therewith, and the preparation and photocopying of preliminary, supplemental and
final Blue Sky memoranda, (viii) fees, disbursements and other charges of
counsel to the Company (but not those of counsel for the Underwriters, except as
otherwise provided herein), (ix) the transfer agent for the Shares, (x) the
Company's and the
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Underwriters' costs associated with preparation of "road show" meal and travel
expenses related to "road show" meetings, and (xi) the Company's and the
Underwriters' advertising expenses. The Company's obligation to reimburse the
Underwriter for Blue Sky and NASD costs and expenses (referenced under clauses
(vi) and (vii) above) will be limited to a total of $5,000.
(k) If this Agreement is terminated by the Company pursuant to any of
the provisions hereof (other than pursuant to Section 8 hereof) or if for any
reason the Company is unable to perform its obligations hereunder, the Company
will reimburse the several Underwriters for all out-of-pocket expenses
(including the fees, disbursements and other charges of counsel to the
Underwriters) reasonably incurred by them in connection herewith.
(l) The Company will not at any time, directly or indirectly, take any
action designed, or that might reasonably be expected, to cause or result in, or
that will constitute, stabilization of the price of the shares of Common Stock
to facilitate the sale or resale of any of the Shares.
(m) The Company will apply the net proceeds from the offering and sale
of the Shares to be sold by the Company in the manner set forth in the
Prospectus under "Use of Proceeds."
(n) The Company will not, and will cause each of its senior officers,
directors and each beneficial holder of more than five percent (5%) of the
Company's outstanding Common Stock to enter into agreements with the
Representative to the effect that such officer, director or shareholder, as the
case may be, will not, without the prior written consent of the Representative,
sell, contract to sell, sell short or otherwise dispose of any shares of Common
Stock or other capital stock of the Company or any other securities exchangeable
for or convertible into Common Stock for a period beginning from the date of
execution and ending one hundred eighty (180) days after the Closing Date,
except (i) directors, officers and shareholders may make bona fide gifts to
donees who agree to be bound by such restrictions and (ii) the Company may issue
Common Stock or options to purchase Common Stock under the Company's stock
option plan and employee stock purchase plan described in the Prospectus.
(o) If Closing does not occur because the Company accepts a third
party's unsolicited offer to acquire the Company (including any acquisition by
merger), the Company will at such time negotiate in good faith with the
Representative an agreement, with fee structures consistent with industry
standards, to provide financial advisory services to the Company in connection
with such acquisition.
(p) For a period of 18 months following the Closing Date as long as the
Representative is a market maker for the Common Stock (if the Common Stock
continues to be listed on the Nasdaq National Market, and the Company is
included on the Representative's research coverage list), the Company agrees to
negotiate in good faith with the Representative, before negotiating with any
other underwriter, an agreement with fee structures consistent with industry
standards, to serve as lead managing underwriter for any public offerings
undertaken by the Company.
5. CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITERS.
The obligations of each Underwriter hereunder are subject to the
following conditions:
(a) Notification that the Registration Statement has become effective
shall be received by the Representative not later than 5:00 p.m., New York City
time, on the date of this Agreement or at such later date and time as shall be
consented to in writing by the Representative and all filings required by Rule
424 and Rule 430A of the Rules and Regulations shall have been made, and the
Shares shall be qualified or registered for sale in such jurisdictions as the
Representative shall request, except where the
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failure to qualify or register Shares would not, in the reasonable judgment of
the Underwriter, have a material adverse effect on its ability to market the
Shares.
(b) (i) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall be
pending or threatened by the Commission, (ii) no order suspending the
effectiveness of the Registration Statement or the qualification or registration
of the Shares under the securities or Blue Sky laws of any jurisdiction shall be
in effect, and no proceeding for such purpose shall be pending before or
threatened or contemplated by the authorities of any such jurisdiction, except
where the failure to qualify or register Shares in such jurisdiction would not,
in the reasonable judgment of the Representative, have a material adverse effect
on its ability to market the Shares, (iii) any request for additional
information on the part of the staff of the Commission or any such authorities
shall have been complied with to the satisfaction of the staff of the Commission
or such authorities and (iv) after the date hereof no amendment or supplement to
the Registration Statement or the Prospectus shall have been filed unless a copy
thereof was first submitted to the Representative and the Representative does
not object thereto in good faith, and the Representative shall have received
certificates, dated the Closing Date and the Option Closing Date and signed by
the Chief Executive Officer of the Company and the Chief Financial Officer of
the Company (who may, as to proceedings threatened, rely upon the best of their
information and belief) to the effect of clauses (i), (ii) and (iii).
(c) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, (i) there shall not have been a
material adverse change in the general affairs, business, business prospects,
properties, management, condition (financial or other) or results of operations
of the Company, whether or not arising from transactions in the ordinary course
of business, in each case other than as set forth in the Registration Statement
and the Prospectus and (ii) the Company shall not have sustained any material
loss or interference with its business or properties from fire, explosion, flood
or other casualty, whether or not covered by insurance, or from any labor
dispute or any court or legislative or other governmental order or decree, that
is not set forth in the Registration Statement and the Prospectus, if in the
reasonable judgment of the Representative any such development makes it
impracticable or inadvisable to consummate the sale and delivery of the Shares
by the Underwriters at the public offering price.
(d) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there shall have been no litigation
or other proceeding instituted against the Company or any of its officers or
directors in their capacities as such, before or by any federal, state or local
court, commission, regulatory body, administrative agency or other governmental
body, domestic or foreign, in which litigation or proceeding an unfavorable
ruling, decision or finding would materially and adversely affect the business,
business prospects, properties, management, condition (financial or other) or
results of operations of the Company.
(e) Each of the representations and warranties of the Company contained
herein shall be true and correct in all material respects at the Closing Date
and, with respect to the Option Shares, at the Option Closing Date, and all
covenants and agreements contained herein to be performed on the part of the
Company and all conditions contained herein to be fulfilled or complied with by
the Company at or prior to the Closing Date and, with respect to the Option
Shares, at or prior to the Option Closing Date, shall have been duly performed,
fulfilled or complied with.
(f) The Representative shall have received on the Closing Date or the
Option Closing Date, as the case may be, the opinion of Xxxxxxx X. Xxxxxxxxx,
counsel for the Company, dated the Closing
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Date, or the Option Closing Date, as the case may be, addressed to the
Underwriters (and stating that it may be relied upon by counsel to the
Underwriters) to the effect that:
(i) The Company has been duly organized and is an active
corporation under the laws of the State of Oregon; and the Bank, an
Oregon state-chartered bank, has been duly organized and is validly
existing as a state bank under the laws of the State of Oregon and
continues to hold a valid certificate or license to do business as a
state bank in Oregon and has full power and authority to conduct its
business as such and as described in the Registration Statement.
(ii) Each of the Company and the Bank has corporate power and
authority to own or lease its properties and the Company and the Bank
have the corporate power to conduct their respective businesses as
described in the Registration Statement and the Prospectus, and the
Company has corporate power to enter into this Agreement and to carry
out all the terms and provisions hereof to be carried out by it.
(iii) The Company has authorized, issued and outstanding capital
stock as set forth under the caption "Description of Capital Stock" in
the Prospectus; the issued and outstanding shares of the Common Stock
have been duly authorized and validly issued, are fully paid and
non-assessable, and were not issued in violation of or subject to any
preemptive rights or other rights to subscribe for or purchase
securities; all offers and sales of the issued and outstanding shares of
the Common Stock were at all relevant times exempt from the registration
requirements of the Act, and were the subject of an available exemption
from the registration requirements of all applicable state securities or
Blue Sky laws.
(iv) All of the issued shares of capital stock of the Bank have
been duly and validly authorized and issued, are fully paid and
non-assessable and are owned directly by the Company, free and clear of
all liens, encumbrances, equities or claims.
(v) The Shares have been duly authorized by all necessary
corporate action of the Company and when issued and paid for as
contemplated by this Agreement will be validly issued, fully paid and
non-assessable; no preemptive rights of shareholders exist under any
statute or otherwise with respect to any of the Shares or the issue or
sale thereof; the Shares conform to the description thereof contained in
the Registration Statement; and the registration of the Shares by book
entry or in certificateless form comply with the requirements of Oregon
law.
(vi) Except as described in the Prospectus, to the knowledge of
such counsel there are no (A) outstanding securities or obligations of
the Company or the Bank convertible or exchangeable into or evidencing
the right to purchase or subscribe for, any shares of capital stock of
the Company or the Bank or (B) outstanding or authorized options,
warrants or rights of any character obligating the Company or the Bank
to issue any shares of its capital stock or any securities convertible
into or exchangeable for or evidencing the right to purchase or
subscribe for any capital stock of the Company or the Bank, and, except
as described in the Prospectus, no holder of any securities of the
Company or any other person has the right, contractual or otherwise,
which has not been satisfied or effectively waived, to cause the Company
to sell or otherwise issue to them, or to permit them to underwrite the
sale of, any of the Shares or the right to have any shares of Common
Stock or other securities of the Company included in the Registration
Statement or the right, as a result of the filing of the Registration
Statement, to
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require registration under the Act of any shares of Common Stock or
other securities of the Company.
(vii) The Registration Statement is effective under the Act and
no stop order proceedings with respect thereto have been instituted or
are pending or, to the knowledge of such counsel, threatened under the
Act.
(viii) The Registration Statement, the Prospectus and each
amendment or supplement thereto comply as to form in all material
respects with the requirements of the Act and the Rules and Regulations
(except that such counsel need not express an opinion as to the
financial statements and related schedules thereto).
(ix) There are no contracts or documents known to such counsel
which are required to be filed as exhibits to the Registration Statement
or described in the Registration Statement or the Prospectus that are
not so filed or described as required, and such contracts and documents
as are summarized in the Registration Statement or the Prospectus are
fairly summarized in all material respects.
(x) The statements under the captions "Risk Factors--Supervision
and Regulation," "Regulation and Supervision" and "Description of
Capital Stock" in the Prospectus and in Part I of the Registration
Statement, insofar as such statements constitute a summary of documents
referred to therein or matters of law, fairly summarize in all material
respects the information called for with respect to such documents and
matters.
(xi) To the knowledge of such counsel, no legal or governmental
proceedings are pending to which the Company or the Bank is a party or
to which the property of the Company or the Bank is subject that are
required to be described in the Registration Statement or the Prospectus
and are not described therein, and, to the knowledge of such counsel, no
such proceedings have been threatened against the Company or the Bank or
with respect to any of their respective properties.
(xii) The Company and the Bank possess all certificates,
authorizations, licenses and permits issued by the appropriate federal
or state regulatory authorities necessary to conduct their respective
businesses and, to the knowledge of such counsel, neither the Company
nor any Bank has received any notice of proceedings relating to the
revocation or modification of any such certificate, authorization,
license or permit.
(xiii) This Agreement has been duly and validly authorized by
all necessary corporate action of the Company, and this Agreement has
been duly and validly executed and delivered by and on behalf of the
Company, and are valid, binding and enforceable agreements of the
Company, enforceable in accordance with their respective terms, except
as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or
affecting the rights of creditors' generally, and except to the extent
that rights of indemnity or contribution under this Agreement may be
limited by federal or state securities laws or the public policies
underlying such laws or by general equitable principles.
(xiv) The issuance, offering and sale of the Shares to the
Underwriters by the Company pursuant to this Agreement, the compliance
by the Company with the other provisions of this Agreement and the
consummation of the other transactions herein contemplated do not (A)
require the consent, approval, authorization, registration or
qualification of or with any
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governmental authority, except such as have been obtained and such as
may be required under state securities or Blue Sky laws, or (B) conflict
with or result in a breach or violation of any of the terms and
provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, lease or other agreement or instrument known to such
counsel to which the Company or the Bank is a party or by which the
Company, the Bank or any of their respective properties are bound, or
the Articles of Incorporation or bylaws of the Company or the Bank, or
any statute or any judgment, decree, order, rule or regulation of any
court or other governmental authority or any arbitrator known to such
counsel and applicable to the Company or the Bank.
(xv) The Company is not, nor will become, as a result of the
consummation of the transactions contemplated by this Agreement and
application of the net proceeds therefrom as described in the
Prospectus, required to register as an investment company under the 1940
Act.
In rendering such opinion, counsel for the Company may rely as to
matters governed by the laws of states other than Oregon or federal laws on
local counsel in such jurisdictions, provided, however, that in each case
counsel for the Company shall state that counsel believes that counsel and the
Underwriters are justified in relying on such other counsel. In addition to the
matters set forth above, such opinion shall also include a statement to the
effect that nothing has come to the attention of such counsel which leads
counsel to believe that (i) the Registration Statement, at the time it became
effective under the Act (but after giving effect to any modifications
incorporated therein pursuant to Rule 430A of the Rules and Regulations) and as
of the Closing Date or the Option Closing Date, as the case may be, 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
(except that such counsel need express no view as to financial statements,
financial data and statistical information therein), and (ii) the Prospectus, or
any supplement thereto, on the date it was filed pursuant to the Rules and
Regulations and as of Closing Date or the Option Closing Date, as the case may
be, contained an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements, in the light of the
circumstances under which they are made, not misleading (except that such
counsel need express no view as to financial statements, financial data and
statistical information therein).
(g) The Representative shall have received from Xxxxxx & Xxxx PC,
counsel for the Underwriters, an opinion dated the Closing Date or the Option
Closing Date, as the case may be, substantially to the effect specified in
subparagraphs (vii) and (viii) of Paragraph (f) of this Section 5. In rendering
such opinion, counsel for the Underwriters may rely as to all matters governed
by the laws of states other than the State of Washington or federal laws on the
opinion of counsel referred to in Paragraph (f) of this Section 5. In addition
to the matters set forth above, such opinion shall also include a statement to
the effect that nothing has come to the attention of such counsel that leads
them to believe that (i) the Registration Statement, or any amendment thereto,
as of the time it became effective under the Act (but after giving effect to any
modifications incorporated therein pursuant to Rule 430A of the Rules and
Regulations) as of the Closing Date or the Option Closing Date, as the case may
be, 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 and (ii) the Prospectus, or any supplement thereto, on
the date it was filed pursuant to the Rules and Regulations and as of the
Closing Date or the Option Closing Date, as the case may be, contained an untrue
statement of a material fact or omitted to state a material fact necessary in
order to make the statements, in the light of the circumstances under which they
are made, not misleading (except that such counsel need express no view as to
financial statements, schedules and statistical information therein).
(h) The Representative shall have received at or prior to the Closing
Date from counsel for the Underwriters a memorandum or summary, in form and
substance satisfactory to the Representative,
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with respect to the qualification for offering and sale by the Underwriters of
the Shares under the state securities or Blue Sky laws of such jurisdictions as
the Representative may reasonably have designated to the Company.
(i) Concurrently with the execution and delivery of this Agreement, the
Accountants shall have furnished to the Representative a letter or letters,
dated the date of its or their delivery, addressed to the Representative and in
form and substance satisfactory to the Representative, confirming that they are
independent accountants with respect to the Company as required by the Act and
the Rules and Regulations and with respect to certain financial and other
statistical and numerical information contained in the Registration Statement.
At the Closing Date and, as to the Option Shares, the Option Closing Date, the
Accountants shall have furnished to the Representative a letter or letters,
dated the date of its or their delivery, that shall confirm, on the basis of a
review in accordance with the procedures set forth in the letter or letters from
the Accountants, that nothing has come to their attention during the period from
the date of the letter referred to in the prior sentence to a date (specified in
the letter) not more than five days prior to the Closing Date and the Option
Closing Date, as the case may be, that would require any change in their letter
dated the date hereof if it were required to be dated and delivered at the
Closing Date and the Option Closing Date.
(j) On the Closing Date and, as to the Option Shares, the Option Closing
Date, there shall be furnished to the Representative an accurate certificate of
the Company, dated the date of its delivery, signed by each of the Chief
Executive Officer, the Chief Financial Officer and the Chief Operating Officer
of the Company on behalf of the Company, in form and substance satisfactory to
the Representative, to the effect that:
(i) Each signer of such certificate has carefully examined the
Registration Statement and the Prospectus on behalf of the Company. As
of the date of such certificate, such documents are true and correct in
all material respects and do not omit to state a material fact required
to be stated therein or necessary in order to make the statements
therein not untrue or misleading. In the case of the certificate
delivered at the Closing Date and the Option Closing Date, since the
Effective Date no event has occurred as a result of which it is
necessary to amend or supplement the Prospectus in order to make the
statements therein not untrue or misleading in any material respect.
(ii) Each of the representations and warranties of the Company
contained in this Agreement was, when originally made, and is, at the
time such certificate is delivered, true and correct in all material
respects.
(iii) Each of the covenants required to be performed by the
Company herein on or prior to the date of such certificate has been
duly, timely and fully performed, and each condition herein required to
be satisfied or fulfilled on or prior to the date of such certificate
has been duly, timely and fully satisfied or fulfilled.
(k) On or prior to the Closing Date, the Representative shall have
received the executed agreements referred to in Section 4(n).
(l) Prior to the Closing Date, the Shares shall have been duly accepted
for listing, upon notice of issuance, on the Nasdaq National Market.
(m) The Company shall have furnished to the Representative such
certificates, in addition to those specifically mentioned herein, as the
Representative may have reasonably requested as to the
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accuracy and completeness at the Closing Date and the Option Closing Date of any
statement in the Registration Statement or the Prospectus, as to the accuracy at
the Closing Date and the Option Closing Date of the representations and
warranties of the Company herein, as to the performance by the Company of its
obligations hereunder, or as to the fulfillment of the conditions concurrent and
precedent to the obligations hereunder of the Representative.
6. INDEMNIFICATION.
(a) The Company will indemnify and hold harmless each Underwriter, the
directors, officers, employees and agents of each Underwriter and each person,
if any, who controls each Underwriter within the meaning of Section 15 of the
Act or Section 20 of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") from and against any and all losses, claims, liabilities,
expenses and damages (including any and all investigative, legal and other
expenses reasonably incurred in connection with, and any amount paid in
settlement of, any action, suit or proceeding or any claim asserted) to which
they, or any of them, may become subject under the Act, the Exchange Act or
other federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, liabilities, expenses or damages arise out of or
are based on any untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement or the
Prospectus or any amendment or supplement to the Registration Statement or the
Prospectus, or the omission or alleged omission to state in such document a
material fact required to be stated in it or necessary to make the statements in
it not misleading in light of the circumstances in which they were made,
provided, however, that the Company will not be liable to the extent that such
loss, claim, liability, expense or damage arises from the sale of the Shares in
the public offering to any person by an Underwriter and is based on an untrue
statement or omission or alleged untrue statement or omission made in reliance
on and in conformity with information relating to any Underwriter furnished in
writing to the Company by the Representative on behalf of any Underwriter
expressly for inclusion in the Registration Statement, the Preliminary
Prospectus or the Prospectus, and provided further, however, that the Company
will not be liable to any Underwriter, the directors, officers, employees or
agents of such Underwriter or any person controlling such Underwriter with
respect to any loss, claim, liability, expense, charge or damage arising out of
or based on any untrue statement or omission or alleged untrue statement or
omission or alleged omission to state a material fact in the Preliminary
Prospectus that is corrected in the Prospectus if the person asserting any such
loss, claim, liability, charge or damage purchased Shares from such Underwriter
but was not sent or given a copy of the Prospectus at or prior to the written
confirmation of the sale of such Shares to such person. This indemnity agreement
will be in addition to any liability that the Company might otherwise have.
(b) Each Underwriter will indemnify and hold harmless the Company, its
directors, officers, employees and agents and each person, if any, who controls
the Company within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, each director of the Company and each officer of the Company who
signs the Registration Statement to the same extent as the foregoing indemnity
from the Company to each Underwriter, but only insofar as losses, claims,
liabilities, expenses or damages arise out of or are based on any untrue
statement or omission or alleged untrue statement or omission made in reliance
on and in conformity with information relating to any Underwriter furnished in
writing to the Company by the Representative on behalf of such Underwriter
expressly for use in the Registration Statement, the Preliminary Prospectus or
the Prospectus. The Company acknowledges that the statements set forth in the
last paragraph of the outside front cover page of the Prospectus and the third,
eighth, and ninth paragraphs under the heading "Underwriting" in the
Preliminary Prospectus and the Prospectus constitute the only information
relating to any Underwriter furnished in writing to the Company by the
Representative on behalf of the Underwriters expressly for inclusion in the
Registration
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Statement, the Preliminary Prospectus or the Prospectus. This indemnity will be
in addition to any liability that each Underwriter might otherwise have.
(c) Any party that proposes to assert the right to be indemnified under
this Section 6 will, promptly after receipt of notice of commencement of any
action against such party in respect of which a claim is to be made against an
indemnifying party or under this Section 6, notify each such indemnifying party
of the commencement of such action, enclosing a copy of all papers served, but
the omission so to notify any such indemnifying party will not relieve it from
any liability that it may have to any indemnified party under the foregoing
provisions of this Section unless, and only to the extent that, such omission
results in the loss of substantive rights or defenses by the indemnifying party.
If such action is brought against any indemnified party and it notifies the
indemnifying party of its commencement, the indemnifying party will be entitled
to participate in and, to the extent that it elects by delivering written notice
to the indemnified party promptly after notice of the commencement of the action
from the indemnified party, jointly with any other indemnifying party similarly
notified, to assume the defense of the action, with counsel reasonably
satisfactory to the indemnified party, and after notice from the indemnifying
party to the indemnified party of its election to assume the defense, the
indemnifying party will not be liable to the indemnified party for any legal or
other expenses except as provided below and except for the reasonable costs of
investigation subsequently incurred by the indemnified party in connection with
the defense. The indemnified party will have the right to employ its own counsel
in any such action, but the expenses and other charges of such counsel will be
at the expense of such indemnified party unless (i) the employment of counsel by
the indemnified party has been authorized in writing by the indemnifying party,
(ii) the indemnified party has reasonably concluded (based on advice of counsel)
that there may be legal defenses available to it or other indemnified parties
that are different from or in addition to those available to the indemnifying
party, (iii) a conflict or potential conflict exists (based on advice of counsel
to the indemnified party) between the indemnified party and the indemnifying
party (in which case the indemnifying party will not have the right to direct
the defense of such action on behalf of the indemnified party) or (iv) the
indemnifying party has not in fact employed counsel to assume the defense of
such action within a reasonable time after receiving notice of the commencement
of the action, in each of which cases the reasonable fees, disbursements and
other charges of counsel will be at the expense of the indemnifying party or
parties. It is understood that the indemnifying party or parties shall not, in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the reasonable fees, disbursements and other charges of more than
one separate firm admitted to practice in such jurisdiction at any one time. All
such fees, disbursements and other charges will be reimbursed by the
indemnifying party promptly as they are incurred. Any indemnifying party will
not be liable for any settlement of any action or claim effected without its
written consent (which consent will not be unreasonably withheld).
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in the foregoing
paragraphs of this Section 6 is applicable in accordance with its terms but for
any reason is held to be unavailable from the Company or the Underwriters, the
Company and the Underwriters will contribute to the total losses, claims,
liabilities, expenses and damages (including any investigative, legal and other
expenses reasonably incurred in connection with, and any amount paid in
settlement of, any action, suit or proceeding or any claim asserted, but after
deducting any contribution received by the Company from persons other than the
Underwriters, such as persons who control the Company within the meaning of the
Act, officers of the Company who signed the Registration Statement and directors
of the Company, who also may be liable for contribution) to which the Company or
one or more of the Underwriters may be subject in such proportion as shall be
appropriate to reflect the relative benefits received by the Company and the
Underwriter. The relative benefits received by the Company and the Underwriters
shall be deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Company bear to the
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total underwriting discounts and commissions received by the Underwriters, in
each case as set forth in the table on the outside front cover page of the
Prospectus. If, but only if, the allocation provided by the foregoing sentence
is not permitted by applicable law, the allocation of contribution shall be made
in such proportion as is appropriate to reflect not only the relative benefits
referred to in the foregoing sentence but also the relative fault of the Company
and the Underwriters, with respect to the statements or omissions that resulted
in such loss, claim, liability, expenses or damage, or action in respect
thereof, as well as any other relevant equitable considerations with respect to
such offering. Such relative fault shall be determined by reference to whether
the untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by the Company
or the Representative on behalf of the Underwriter, the intent of the parties
and their relative knowledge, access to information and opportunity to correct
or prevent such statement or omission. The Company and the Underwriters agree
that it would not be just and equitable if contributions pursuant to this
Section 6(d) were to be determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other method
of allocation that does not take into account the equitable considerations
referred to herein. The amount paid or payable by an indemnified party as a
result of the loss, claim, liability, expense or damage, or action in respect
thereof, referred to above in this Section 6(d) shall be deemed to include, for
purposes of this Section 6(d), any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 6(d), (i) no
Underwriter shall be required to contribute any amount in excess of the
underwriting discounts received by it and (ii) no person found guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
will be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute as
provided in this Section 6(d) are several in proportion to their respective
underwriting obligations and not joint. For purposes of this Section 6(d), any
person who controls a party to this Agreement within the meaning of the Act will
have the same rights to contribution as that party, and each director and
officer of the Company who signed the Registration Statement will have the same
rights to contribution as the Company, subject in each case to the provisions
hereof. Any party entitled to contribution, promptly after receipt of notice of
commencement of any action against any such party in respect of which a claim
for contribution may be made under this Section 6(d), will notify any such party
or parties from whom contribution may be sought, but the omission to so notify
will not relieve the party or parties from whom contribution may be sought from
any other obligation it or they may have under this Section 6(d). No party will
be liable for contribution with respect to any action or claim settled without
its consent (which consent will not be unreasonably withheld).
(e) The indemnity and contribution agreements contained in this Section
6 and the representations and warranties of the Company contained in this
Agreement shall remain operative and in full force and effect regardless of (i)
any investigation made by or on behalf of the Underwriter or the Company, (ii)
acceptance of any of the Shares and payment therefor or (iii) any termination of
this Agreement.
7. TERMINATION.
The obligations of the several Underwriters under this Agreement may be
terminated at any time on or prior to the Closing Date (or, with respect to the
Option Shares, on or prior to the Option Closing Date) by notice to the Company
from the Representative, without liability on the part of any Underwriter to the
Company if, prior to delivery and payment for the Shares, as the case may be,
(a) trading in any of the equity securities of the Company shall have been
suspended by the Commission or by Nasdaq, (b) trading in securities generally on
the New York Stock Exchange shall have been suspended or limited or minimum or
maximum prices shall have been generally established on such exchange, or
additional material governmental restrictions, not in force on the date of this
Agreement, shall have been imposed
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upon trading in securities generally by such exchange or by order of the
Commission or any court or other governmental authority, (c) a general banking
moratorium shall have been declared by either federal or New York State
authorities or (d) in the reasonable opinion of the Representative, there is any
material adverse change in the financial or securities markets in the United
States or in political, financial or economic conditions in the United States or
any outbreak or material escalation of hostilities or other calamity or crisis
shall have occurred, the effect of which is such as to make it, in the
reasonable judgment of the Representative, impracticable to market the Shares.
8. SUBSTITUTION OF UNDERWRITERS.
If any one or more of the Underwriters shall fail or refuse to purchase
any of the Firm Shares that it or they have agreed to purchase hereunder, and
the aggregate number of Firm Shares that such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than one-tenth
of the aggregate number of Firm Shares, the other Underwriters shall be
obligated, severally, to purchase the Firm Shares that such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase in the
proportions that the number of Firm Shares that they have respectively agreed to
purchase pursuant to Section 1 bears to the aggregate number of Firm Shares that
all such nondefaulting Underwriters have so agreed to purchase, or in such other
proportions as the Representative may specify; provided, however, that in no
event shall the maximum number of Firm Shares that any Underwriter has become
obligated to purchase pursuant to Section 1 be increased pursuant to this
Section 8 by more than one-ninth of such number of Firm Shares without the prior
written consent of such Underwriter. If any Underwriter or Underwriters shall
fail or refuse to purchase any Firm Shares and the aggregate number of Firm
Shares that such defaulting Underwriter or Underwriters agreed but failed or
refused to purchase exceeds one-tenth of the aggregate number of the Firm Shares
and arrangements satisfactory to the Representative and the Company for the
purchase of such Firm Shares are not made within 48 hours after such default,
this Agreement will terminate without liability on the part of any nondefaulting
Underwriter or the Company for the purchase or sale of any Shares under this
Agreement. In any such case either the Representative or the Company shall have
the right to postpone the Closing but in no event for longer than seven days, in
order that the required changes, if any, in the Registration Statement and the
Prospectus or in any other documents or arrangements may be effected. Any action
taken pursuant to this Section 8 shall not relieve any defaulting Underwriter
from liability in respect of any default of such Underwriter under this
Agreement.
9. MISCELLANEOUS.
(a) Notice given pursuant to any of the provisions of this Agreement
shall be in writing and, unless otherwise specified, shall be mailed or
delivered as follows: (i) if to the Company, at the office of the Company, 000
Xxxx Xxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxxx, Xxxxxx, Attention: Chief Executive
Officer, with a copy to Xxxxxxx X. Xxxxxxxxx, 0000 XX Xx. Xxxxxx Xxxxx,
Xxxxxxxx, Xxxxxx 00000; or (ii) if to the Underwriters, to the Representative at
the offices of Pacific Crest Securities Inc., 000 XX Xxxxx Xxxxxx, 00xx Xxxxx,
Xxxxxxxx, Xxxxxx 00000, Attention: Corporate Finance Department, with a copy to
Xxxxxxx X. Xxxxx, Xxxxxx & Xxxx PC, 0000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxx,
Xxxxxxxxxx 00000-0000. Any such notice shall be effective only upon receipt. Any
notice may be made by telex, telephone or facsimile, but if so made shall be
subsequently confirmed in writing.
(b) This Agreement has been and is made solely for the benefit of the
several Underwriters, the Company and of the controlling persons, directors and
officers referred to in Section 6, and their respective successors and assigns,
and no other person shall acquire or have any right under or by virtue of this
Agreement. The term "successors and assigns" as used in this Agreement shall not
include a purchaser, as such purchaser, of Shares from any of the several
Underwriters.
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(c) This Agreement shall be governed by and construed in accordance with
the laws of the State of Oregon applicable to contracts made and to be performed
entirely within such state.
(d) This Agreement may be signed in two or more counterparts with the
same effect as if the signatures thereto and hereto were upon the same
instrument.
(e) In case any provision in this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
(f) The Company and the Underwriters each hereby waive any right they
may have to a trial by jury in respect of any claim based upon or arising out of
this Agreement or the transactions contemplated hereby.
Please confirm that the foregoing correctly sets forth the agreement
among the Company and the several Underwriters.
Very truly yours,
COLUMBIA BANCORP
By:________________________________
Name:______________________________
Title:_____________________________
Confirmed as of the date first above mentioned:
PACIFIC CREST SECURITIES INC.
Acting on behalf of itself and as the Representative
of the other several Underwriters named in Schedule I
hereto the Underwriter.
By: PACIFIC CREST SECURITIES INC.
By:________________________________
Name:______________________________
Title:_____________________________
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SCHEDULE I
Name of Underwriter Firm Shares
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Pacific Crest Securities, Inc.
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