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EXHIBIT 1.1
SUNCOAST BANCORP, INC.
COMMON SHARES
(PAR VALUE $0.01 PER SHARE)
UNDERWRITING AGREEMENT
February ___, 0000
XXXXXX XXXXX & CO.
000 Xxxxx Xxxxxx Xxxxx
Xxxxxx, XX 00000
Gentlemen:
Suncoast Bancorp, Inc., a Florida corporation (the "Company"), hereby
confirms its agreement with Xxxxxx Xxxxx & Co., as the underwriter (the
"Underwriter"), as follows:
SECTION 1. Introduction. Subject to the terms and conditions set forth
in this Underwriting Agreement (this "Agreement"), the Company proposes to
issue and sell to the Underwriter an aggregate of 700,000 common shares ("Firm
Shares"), $0.01 par value per share (the "Common Shares"), of the Company. In
addition, the Company proposes to grant to the Underwriter an option to
purchase up to 105,000 additional Common Shares (the "Option Shares") as
provided in Section 4 hereof. The Firm Shares and the Option Shares are
hereinafter referred to collectively as the "Shares."
As part of the offering of the Firm Shares contemplated by this
Agreement, the Underwriter has agreed to reserve out of the Firm Shares up to
150,000 Shares for sale to the Company's employees, officers, and directors,
and other parties associated with the Company (collectively, the
"Participants") as set forth in the Prospectus (as defined below) in the
section entitled "Underwriting" (the "Directed Share Program"). The Shares to
be sold by the Underwriter pursuant to the Directed Share Program (the
"Directed Shares") will be sold by the Underwriter pursuant to this Agreement
at the public offering price as set forth on the cover page of the Prospectus.
Any Directed Shares not orally confirmed for purchase by any Participant prior
to the end of the first business day after the date on which this Agreement is
executed will be offered to the public by the Underwriter as set forth in the
Prospectus.
SECTION 2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, the Underwriter as follows:
(a) (i) A registration statement on Form SB-2 (File No._________)
with respect to the Shares, including a related preliminary prospectus, has
been carefully prepared by the Company in conformity with the requirements of
the Securities Act of 1933, as amended (the "Securities Act"), and the rules
and regulations of the Securities and Exchange Commission ("Commission")
promulgated thereunder, and has been filed with the Commission. The Company has
prepared and filed such amendments thereto, if any, and such amended
preliminary prospectuses, if any, as may have been required to the date hereof,
and will file such additional amendments thereto and such amended preliminary
prospectuses as may hereafter be required.
(ii) For purposes of this Agreement, the term "Registration
Statement" means the registration statement referred to in Section 2(a)(i) of
this Agreement as amended at the time when it was declared effective by the
Commission (including the related prospectus, Part II, any documents or a
portion thereof incorporated by reference therein, all financial schedules and
exhibits thereto, and all information deemed to be part of the registration
statement at the time it became effective pursuant to Rule 430A(b) under the
Securities Act), except that if the Company files a post-effective amendment to
such registration statement which is declared effective prior to the First
Closing Date (as defined in Section 4 hereof), "Registration Statement" shall
refer to such registration statement as so amended. The date on which the
Registration
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Statement is declared effective by the Commission shall be referred to as the
"Effective Date." If the Company has filed an abbreviated registration
statement to register additional Shares pursuant to Rule 462(b) under the
Securities Act (including the exhibits thereto, the "Rule 462 Registration
Statement"), then any reference herein to the Registration Statement also shall
be deemed to include the Rule 462 Registration Statement. "Preliminary
Prospectus" shall mean: (A) any prospectus included in the registration
statement, or amendments, before it was declared effective under the Securities
Act, (B) any prospectus filed with the Commission by the Company with the
consent of the Underwriter pursuant to Rule 424(a) under the Securities Act
(including documents incorporated by reference therein), and (C) any prospectus
included in the Registration Statement at the Effective Date that omits the
Rule 430A Information (as defined below). The term "Prospectus" means the final
prospectus documents as first filed with the Commission pursuant to Rule 424(b)
under the Securities Act or, if no filing pursuant to Rule 424(b) is required,
shall mean the form of final prospectus relating to the Shares included in the
Registration Statement at the Effective Date, in either case, including all
documents (or portions thereof) incorporated by reference therein. "Rules and
Regulations" means the rules and regulations adopted by the Commission under
either the Securities Act or the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), as applicable. "Rule 430A Information" means information
with respect to the Shares and the offering thereof which, pursuant to Rule
430A promulgated under the Securities Act, is permitted to be omitted from the
Registration Statement and the related prospectus at the time the Registration
Statement is declared effective by the Commission.
(b) The Commission has not issued any order preventing or suspending
the use of any Preliminary Prospectus, and each Preliminary Prospectus complies
with the requirements of, and contains all statements which are required to be
stated therein in accordance with, the Securities Act and the Rules and
Regulations, and does not include any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances in which they were
made, not misleading; provided, however, that no representation or warranty is
made as to information contained in or omitted from the Preliminary Prospectus
in reliance on and in conformity with the written information furnished to the
Company by or on behalf of the Underwriter specifically for use therein.
(c) The Registration Statement has been declared effective and no
stop order suspending the effectiveness of the Registration Statement or any
part thereof has been issued or is in effect and no proceedings for that
purpose have been initiated, are pending or, to the knowledge of the Company,
have been threatened by the Commission or the securities authority of any state
or other jurisdiction. The Registration Statement and the Prospectus comply
and, as amended or supplemented, will comply, in all respects with the
requirements of, and contain and, as amended or supplemented, if applicable,
will contain, all statements that are required to be stated therein by, the
Securities Act and the Rules and Regulations. The Registration Statement, at
the Effective Date, did not contain and the Prospectus does not contain and, as
amended or supplemented, if applicable, will not contain, and at all times
subsequent thereto up to each of the Closing Dates (as defined in Section 4
hereof) will not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances in which they were
made, not misleading; provided, however, that no representation or warranty is
made as to information contained in or omitted from the Registration Statement,
the Prospectus, or any amendment or supplement thereto in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
the Underwriter specifically for use therein.
(d) The Company has been duly incorporated and is validly existing as
a corporation with active status under the laws of the State of Florida and,
subject to Section 2(i) of this Agreement and commencement of the business of
the Suncoast National Bank, a national bank (in organization) to be located in
Sarasota, Florida (the "Bank"), is duly registered and in good standing under
the Bank Holding Company Act of 1956, as amended (the "BHCA"), with the full
power and authority (corporate and other) to own, lease, and operate its
properties and conduct its business as described in the Registration Statement
and the Prospectus (and any amendment or supplement thereto); the Company is
duly registered or qualified to do business as a foreign corporation under the
corporation and banking laws of, and is in good standing as such in, each
jurisdiction in which the conduct of its business or where the nature of its
properties requires such registration or
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qualification, except to the extent that the failure to be so registered or
qualified would not have a material adverse effect on the condition (financial
or other), business, properties, net worth, prospects, or results of operations
of the Company or any of its Subsidiaries (as defined below) ("Material Adverse
Effect"); and no proceeding has been instituted in any jurisdiction revoking,
limiting, or curtailing, or seeking to revoke, limit, or curtail, such power
and authority or qualification.
(e) The Company has the requisite power and authority (corporate and
other) to execute and deliver this Agreement and to perform its obligations
under this Agreement. The execution and delivery of this Agreement, and the
performance by the Company of its obligations hereunder and consummation of the
transactions described herein, have been duly and validly authorized by the
Company. This Agreement has been duly executed and delivered by the Company and
constitutes a legal, valid, and binding obligation of the Company, enforceable
against the Company in accordance with its terms (except in all cases (i) to
the extent that such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, receivership, moratorium, or similar laws affecting
the enforcement of creditor rights and remedies generally, (ii) that the
availability of the equitable remedy of specific performance and injunctive
relief is subject to the discretion of the court before which the proceeding
may be brought, and (iii) that the enforceability of the indemnification and
contribution provisions hereof may be limited under applicable federal or state
or other securities laws or the public policy underlying such laws).
(f) Neither the execution and delivery by the Company of this
Agreement, nor the performance by the Company of its obligations hereunder or
the consummation of the transactions contemplated hereby (including the offer,
sale, or delivery of the Shares) and compliance by the Company with any of the
provisions hereof will (i) conflict with, violate, or contravene any provision
of the articles of incorporation, bylaws, or other corporate governance
documents of the Company or any Subsidiary, (ii) violate, conflict with, or
result in a breach of any term, condition, or provision of, or constitute a
default (with or without notice or the lapse of time, or both) under, or give
rise to any right of termination, cancellation, or acceleration of any
obligation or loss of benefit under, or result in the creation of any claim,
lien, pledge, security, intent, charge, or other encumbrance of any kind
whatsoever (a "Lien") upon any assets or properties of the Company or any
Subsidiary pursuant to the terms, provisions, or conditions of any loan
agreement, indenture, note, bond, or other evidence of indebtedness, or of any
agreement, lease, deed of trust, mortgage, contract, or other material
agreement or instrument to which the Company or any Subsidiary is a party or by
which any of them or any of their assets or properties are bound or affected,
or (iii) conflict with or violate any statute, law, ordinance, rule, or
regulation applicable to the Company, any Subsidiary, or any of their
respective assets or properties, or any order, judgment, writ, injunction, or
decree of any court, or any governmental, regulatory, or administrative agency,
commission, authority, or other body, domestic or foreign, having jurisdiction
over the Company, any Subsidiary, or any of their respective assets or
properties. No consent, approval, filing, authorization, registration,
qualification, or order, including with or by any bank regulatory agency, is
required for the execution, delivery, and performance of this Agreement or the
consummation of the transactions contemplated by this Agreement, other than
such that have been obtained or made, except as such may be required for
compliance with the Securities Act, the Exchange Act, and the Blue Sky Laws
applicable to the public offering of the Shares by the Underwriter, and the
clearance of such offering and the underwriting arrangements evidenced hereby
with the National Association of Securities Dealers, Inc. ("NASD").
(g) The Company had the outstanding capitalization as set forth under
"Capitalization" in the Registration Statement and the Prospectus as of the
date indicated therein and there has been no change therein since such date.
The Common Shares issued and outstanding prior to the issuance of the Shares to
be sold by the Company hereunder have been duly authorized and validly issued,
are fully paid and nonassessable; the Shares to be sold by the Company
hereunder have been duly authorized and, when issued and paid for against
delivery thereof as contemplated by this Agreement, will be validly issued,
fully paid and nonassessable; and, the securities of the Company conform to the
descriptions thereof contained in the Registration Statement and Prospectus,
and the certificates representing the Shares are in due and proper legal form
under, and conform in all respects to the requirements of, the laws of the
State of Florida. There are no preemptive, preferential, or other rights
(including rights of first refusal) to subscribe for or to purchase any of the
Common Shares
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(including the Shares) and no Common Shares have been issued in violation of
any such rights, nor are there any restrictions upon the voting or transfer of
any Common Shares (including the Shares) pursuant to the Company's articles of
incorporation, bylaws, and other governing documents, or any agreement or other
instrument to which the Company or any Subsidiary is a party or by which any of
them may be bound. All of the securities previously issued by the Company and
each of its Subsidiaries, including the Common Shares and any warrants and
stock options to purchase Common Shares, were duly offered, sold, issued, or
granted in compliance with, and were registered under or exempt from the
registration requirements of, the Securities Act, and were duly registered or
qualified under, or the subject of an available exemption from, the
registration provisions of all applicable state securities laws ("Blue Sky
Laws").
(h) Except as set forth in the Prospectus, the Company does not have
any outstanding options to purchase, or warrants to subscribe for, or any
securities or obligations convertible into or exchangeable for, or any
contracts or commitments to issue or sell, any Common Shares or any such
options, warrants, convertible or exchangeable securities, or obligations, or
other rights of any description, contractual or otherwise, entitling any person
to receive any class of security from the Company. No holder of the Common
Shares or other securities of the Company or any other person has the right,
contractual or otherwise, to cause the Company to register any securities of
the Company under the Securities Act or any Blue Sky Laws.
(i) The Company has prepared and filed with the Board of Governors of
the Federal Reserve System (the "FRB") in accordance with Section 3(a)(1) of
the BHCA and Section 225.15 of Regulation Y promulgated thereunder, an
application to become a bank holding company (together with all exhibits,
schedules, amendments, and supplements thereto, the "BHC Application"). On
_____, 1999, the FRB approved the Company's application to become a bank
holding company through the acquisition of all of the outstanding voting
securities of the Bank, effective upon the Company's compliance with
commitments and representations made in connection with the BHC Application
(the "FRB Approval"). The FRB Approval provides that the acquisition by the
Company of the Bank must be made before three months after ________, 1999,
unless extended by the FRB. The FRB Approval also requires the Company to
provide the FRB with certain further information set forth therein within
thirty days following the Company's acquisition of the Bank's voting stock.
(j) The organizers of the Bank have prepared and filed with the
United States Office of the Comptroller of the Currency ("OCC") in accordance
with the National Bank Act (the "NBA") an Application to Organize a National
Bank (together with all exhibits, schedules, amendments, and supplements
thereto, the "Charter Application"). On ______, 1999, the OCC approved the
Charter Application for authority to organize the Bank, subject to certain
terms and conditions specified in such approval (the "Charter Approval"). The
Charter Approval remains in full force and effect on the date hereof and will
be in full force and effect on each of the Closing Dates. The organizers of the
Bank have prepared and filed with the Federal Deposit Insurance Corporation
("FDIC") in accordance with Section 5(a)(1) of the Federal Deposit Insurance
Act, as amended (the "FDIA"), an Application for Federal Deposit Insurance
(together with all exhibits, schedules, amendments, and supplements thereto,
the "Deposit Insurance Application"). On ______, 1999, the FDIC approved the
Deposit Insurance Application, subject to certain terms and conditions
specified in such approval (the "Deposit Insurance Approval").
(k) The Company has provided the Underwriter with true and complete
copies of the BHC Company Application, the Charter Application, and the Deposit
Insurance Application, as each has been amended or supplemented from time to
time (together, the "Applications"), and the FRB Approval, the Charter
Approval, and the Deposit Insurance Approval (together, the "Regulatory
Approvals"). When the Applications were filed with the respective bank
regulatory authorities, and upon the filing with the Commission or the first
delivery to the Underwriter of the Prospectus, and as of the date of this
Agreement and each of the Closing Dates: (i) each such Application conformed
with and will conform with the respective requirements of the BHCA, the NBA,
and the FDIA and the rules and regulations promulgated thereunder, and (ii)
none of the Applications contained or will contain any untrue statement of a
material fact or omitted or will omit to state any material fact required to be
stated therein or necessary in order to make the statements
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therein, in light of the circumstances under which they were made, not
misleading. As of each of the Closing Dates, all such Regulatory Approvals are
in full force and effect, and no actions or proceedings to suspend, revoke, or
terminate any of such Regulatory Approvals have been taken or, to the knowledge
of the Company, are pending, threatened, or contemplated, and neither the
Company nor the Bank is in breach of or default under any condition or of any
commitment contained in any Regulatory Approval.
(l) The Company does not have any Subsidiaries and does not, directly
or indirectly, own any equity interest in, or control, any corporation, limited
liability company, association, partnership, joint venture, trust,
proprietorship, or other commercial or business entity or organization, except
that the Company has the sole right to acquire all of the outstanding capital
stock of the Bank, which stock will be acquired upon receipt of all necessary
regulatory approvals, including the Regulatory Approvals, and upon acquisition
of such stock the Bank will be the Company's only subsidiary ("Subsidiary"). On
the First Closing Date, immediately following the sale of the Firm Shares to
the Underwriter pursuant to this Agreement, a minimum of $6,000,000 of the net
proceeds therefrom shall be contributed by the Company to the Bank, and after
receipt thereof the Bank shall issue shares of its common stock to the Company,
and following such issuance, and at all times subsequent thereto up to and as
of the Second Closing Date (as defined in Section 4 hereof), if any, all of the
outstanding shares of capital stock of the Bank (i) will have been issued to
the Company, (ii) when issued to the Company, will have been duly authorized
and validly issued, and will be fully paid and nonassessable, and (iii) will be
owned beneficially and of record by the Company, free and clear of any claim,
lien, encumbrance, or security interest, or restriction on transfer (except for
restrictions under federal or state banking laws). Subject to receipt by the
Bank of such capital contribution from the Company, and satisfaction of the
conditions set forth in the Bank Approvals (as defined in Section 7(g) hereof),
the Bank will be duly organized and validly existing as a nationally chartered
banking association in good standing under the laws of the United States of
America, with full power and authority (corporate and other) to own, lease, and
operate its properties and conduct its business as described in the
Registration Statement, the Prospectus, the Applications, and the Regulatory
Approvals; the Bank is not required to be registered or qualified to do
business as a foreign corporation under the laws of any jurisdiction; and no
proceeding will have been instituted in any jurisdiction revoking, limiting, or
curtailing, or seeking to revoke, limit, or curtail, such power and authority
or qualification. No options to purchase, or warrants to subscribe for, or any
securities or obligations convertible into or exchangeable for, or any
contracts or commitments to issue or sell, any capital stock or ownership
interests in the Bank or any such options, warrants, convertible or
exchangeable securities, or obligations or other rights of any description,
contractual or otherwise, entitling any person to receive any class of security
from the Bank, are outstanding. The Bank is not subject to any current formal
arrangement or memorandum of understanding with, or cease and desist order by,
any bank regulatory agency.
(m) Xxxx, Xxxxx & Xxxx, Inc., the certified public accountants which
have audited, reviewed, and expressed its opinion with respect to certain of
the financial statements and schedules filed with the Commission as a part of
the Registration Statement and included or to be included, as the case may be,
in the Registration Statement and in the Prospectus, and whose report is
included in the Registration Statement and in the Prospectus were and are
independent accountants as required by, and within the meaning of, the
Securities Act and the Rules and Regulations.
(n) The financial statements and schedules and the related notes
thereto included or to be included, as the case may be, in the Registration
Statement, any Preliminary Prospectus, or the Prospectus present fairly the
financial position of the entities purported to be shown thereby as of the
respective dates of such financial statements and schedules, and the results of
operations and changes in equity and in cash flows of the entities purported to
be shown thereby for the respective periods covered thereby, all prepared in
conformity with generally accepted accounting principles consistently applied
throughout the periods involved, except as may be disclosed in the Registration
Statement and the Prospectus. All adjustments necessary for a fair presentation
of the results of such periods have been made. The financial, operating, and
statistical information relating to the Company and any Subsidiary are
accurately and fairly presented and prepared on a basis consistent with the
audited financial statements and the books and records of the Company.
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(o) The Company and each Subsidiary maintains a system of internal
accounting controls sufficient to provide reasonable assurance that: (i)
transactions are executed in accordance with management's general or specific
authorizations, (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets, (iii) access
to material assets is permitted only in accordance with management's general or
specific authorizations, and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
(p) Neither the Company nor any Subsidiary is presently, nor with the
giving of notice or the lapse of time, or both, would be (i) in conflict with
or in violation of its articles of incorporation, bylaws, or other corporate
governance documents, (ii) in violation or breach of, or in default in the
performance of any obligation, agreement, or condition contained in any
provision of any loan agreement, indenture, note, bond, or other evidence of
indebtedness, or of any agreement, lease, deed of trust, mortgage, contract, or
other material agreement or instrument to which the Company, or any Subsidiary
is a party or by which any of them or any of their assets or properties are
bound or affected, or (iii) in conflict with or in violation of any law,
ordinance, rule, or regulation applicable to the Company, any Subsidiary, or
any of their respective assets or properties, or any order, judgment, writ,
injunction, or decree of any court, or any governmental, regulatory, or
administrative agency, commission, authority, or other body, domestic or
foreign, having jurisdiction over the Company, any Subsidiary, or any of their
respective assets or properties.
(q) The Company and each Subsidiary have and hold and are operating
in compliance with, and have fulfilled and performed all of their material
obligations with respect to all permits, certificates, franchises, grants,
easements, consents, licenses, approvals, charters, registrations,
authorizations, and orders ("Permits") required under all laws, rules, and
regulations and as are necessary to own their respective properties and to
conduct their respective businesses in the manner described in the Registration
Statement and Prospectus, and all of such Permits are valid and in full force
and effect; and there is no pending proceeding, and neither the Company nor any
Subsidiary has received notice of any threatened proceeding, relating to the
revocation or modification of any such Permit. Neither the Company nor any
Subsidiary is or has been (by virtue of any action, omission to act, contract
to which it is a party or by which it is bound, or any occurrence or state of
facts whatsoever) in violation of any law, rule, regulation, or any order,
writ, injunction, or decree to which the Company or any of its Subsidiaries may
be subject (including those relating to any aspect of banking, bank holding
companies, environmental protection, occupational safety and health, and equal
employment practices) heretofore or currently in effect, except any such
violation that has been fully cured or satisfied without recourse or that is
not reasonably likely to have a Material Adverse Effect on the Company or any
Subsidiary.
(r) Except as described in or contemplated by the Registration
Statement and the Prospectus, subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus: (i)
neither the Company nor any of its Subsidiaries has incurred any liability or
obligation, direct or contingent, and neither of them has entered into any
material transaction not in the ordinary course of business; (ii) neither the
Company nor any Subsidiary has purchased any of its outstanding capital stock,
nor declared, paid, or otherwise made any dividend or other distribution of any
kind with respect to its capital stock, and neither the Company nor any
Subsidiary has been delinquent in the payment of principal or interest on any
outstanding debt obligations; and (iii) there has not been any change in the
capital stock, or any material change in the indebtedness of the Company or any
Subsidiary. There has not occurred any material adverse change, or any
development reasonably likely to result in a material adverse change, in the
condition (financial or otherwise), or affecting their respective businesses
(resulting from litigation or otherwise), properties, net worth, prospects, or
results of operations of the Company or any of its Subsidiaries from that set
forth in the Prospectus (exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement).
(s) There are no contracts or other documents, transactions,
relationships, statutes, regulations, or rules required to be described in the
Registration Statement or the Prospectus, or to be filed as an exhibit to the
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Registration Statement, by the Securities Act or by the Rules and Regulations
that has not been so described or filed as required.
(t) Either the Company or a Subsidiary, as the case may be, has good
and marketable title in fee simple to all items of real property and good and
marketable title to all the personal property and assets reflected as owned by
the Company or any Subsidiary in the financial statements described above (or
elsewhere in the Registration Statement and the Prospectus), in each case free
and clear of all Liens, defects, or adverse interest of any nature except
those, if any, reflected in such financial statements (or elsewhere in the
Registration Statement and the Prospectus) or such as are not material to the
Company or any Subsidiary and do not interfere with the use of the property or
the conduct of the business of the Company or any Subsidiary; and all real
property and buildings held or used by the Company or any Subsidiary under
leases, licenses, franchises, or other agreements are held by them under valid,
existing, binding, and enforceable leases, licenses, franchises, or other
agreements with respect to which they are not in material default with such
exceptions as are not material and do not interfere with the use made and
proposed to be made of such property and buildings or the conduct of the
business of the Company or any Subsidiary.
(u) There is no litigation or governmental proceeding, action, or
investigation pending or, to the knowledge of the Company, threatened, to which
the Company or any Subsidiary is a party, or to which property owned or leased
by the Company or any Subsidiary is subject, or related to environmental or
discrimination matters, which is required to be disclosed in the Registration
Statement or the Prospectus by the Securities Act or the Rules and Regulations
and is not so disclosed, or which questions the validity of this Agreement or
any action taken or to be taken pursuant hereto nor, to the knowledge of the
Company, is there any basis for any such litigation, proceeding, action, or
investigation.
(v) Neither the Company nor any Subsidiary has distributed any
offering material in connection with the offering of the Shares other than the
Preliminary Prospectus, the Registration Statement, the Prospectus or other
materials permitted by the Securities Act and which distribution was previously
approved in writing by the Underwriter. The Company has not given any
information or made any representation in connection with the offering of the
Shares, written or oral, other than as contained in the Prospectus or the
Preliminary PROSPECTUS. Neither the Company nor any person that controls, is
controlled by (including any Subsidiary), or is under the common control of the
Company has taken or will take, directly or indirectly, any action designed to
cause or result in, or which constitutes or which might reasonably be expected
to constitute, under the Exchange Act or otherwise, stabilization or
manipulation of the price of the Common Shares to facilitate the sale or resale
of the Shares.
(w) Neither the Company nor any person that controls, is controlled
by (including any Subsidiary), or is under the common control of the Company
has, directly or indirectly, at any time: (i) made any unlawful contribution to
any candidate for political office, or failed to disclose fully any
contribution in violation of law; or (ii) made any payment to any federal,
state, local, or foreign government 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 or applicable foreign jurisdictions.
(x) The Company and each Subsidiary has filed all required federal,
state, local, and foreign income and franchise tax returns; all such tax
returns, as filed, are accurate in all material respects and the Company has
paid all taxes shown as due thereon; and no tax deficiency has been asserted or
threatened against the Company or any Subsidiary that would have a Material
Adverse Effect on either of them, except as described in the Registration
Statement and the Prospectus.
(y) The Company or a Subsidiary owns or possesses full right, title
and interest in and to, or has the right to use all patents, patent
applications, trademarks, service marks, trade names, trademark registrations,
service xxxx registrations, copyrights, licenses, and other rights, know-how,
and technology (including trade secrets and other unpatented and/or proprietary
or confidential information, systems or procedures) (collectively "Intellectual
Property Rights") necessary for the conduct of the business of the
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Company or any of its Subsidiaries or ownership of their respective properties,
and neither the Company nor any Subsidiary has received notice of conflict with
the asserted rights of others in respect thereof which has not been resolved.
(z) In addition to federal deposit insurance available upon receipt
of and compliance with the Deposit Insurance Approval, the Company and each
Subsidiary has in place and effective such policies of insurance, with limits
of liability in such amounts, as are normal and prudent in the ordinary course
of business similar to that of the Company and each Subsidiary in the
respective jurisdictions in which they conduct business, and the Company has no
reason to believe that the Company and its Subsidiaries will not be able to
renew their existing insurance coverage as and when such coverage expires or to
obtain similar coverage from similar insurers as may be necessary to continue
their respective businesses at a cost that would not have a Material Adverse
Effect on the Company or any Subsidiary.
(aa) The provisions of any employee pension benefit plan ("Pension
Plan") as defined in Section 3(2) of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"), in which the Company and any Subsidiary is a
participating employer are in substantial compliance with ERISA, and the
Company and each Subsidiary are not in material violation of ERISA. The
Company, each Subsidiary, or the plan sponsor thereof, as the case may be, has
duly and timely filed the reports required to be filed by ERISA in connection
with the maintenance of any Pension Plans in which the Company or any
Subsidiary is a participating employer, and no facts, including any "reportable
event" as defined by ERISA and the regulations thereunder, exist in connection
with any Pension Plan in which the Company or any Subsidiary is a participating
employer which might constitute grounds for the termination of such plan by the
Pension Benefit Guaranty Corporation or for the appointment by the appropriate
U.S. District Court of a trustee to administer any such plan. The provisions of
any employee benefit welfare plan, as defined in Section 3(1) of ERISA, in
which the Company or any Subsidiary is a participating employer, are in
substantial compliance with ERISA and the Company, any Subsidiary, or the plan
sponsor thereof, as the case may be, has duly and timely filed the reports
required to be filed by ERISA in connection with the maintenance of any such
plans.
(ab) Except as set forth in the Registration Statement and the
Prospectus, to the knowledge of the Company, neither the Company nor any
Subsidiary has violated any environmental, safety, or similar law applicable to
their respective businesses, nor any federal or state law relating to
discrimination in the hiring, promotion or pay of employees nor any applicable
federal or state wages and hours laws, which in each case would be reasonably
expected to have a Material Adverse Effect on the Company or any Subsidiary. No
labor dispute with or disturbance by the employees of the Company or any
Subsidiary exists or is imminent; and neither the Company nor any Subsidiary is
aware of any existing or imminent labor disturbances by its employees that
might reasonably be expected to have a Material Adverse Effect on the Company
or any of its Subsidiaries. No collective bargaining agreement exists with any
of the Company's or any Subsidiary's employees and no such agreement is
imminent. Neither the employment by the Company or any Subsidiary of their key
personnel nor the activities of such individuals at the Company or any
Subsidiary conflicts with, constitutes a breach of, or otherwise violates any
employment, noncompetition, nondisclosure, or similar agreement or covenant by
which such individuals may be bound.
(ac) Neither Company nor any Subsidiary is an "investment company" or
an "affiliated person" of, or a "promoter" or "principal underwriter" for an
investment company within the meaning of the Investment Company Act of 1940, as
amended (the "Investment Company Act"), and none of them is subject to
regulation under the Investment Company Act.
(ad) The Company has complied with all provisions of Section 517.075,
Florida Statutes, relating to disclosures of doing business with the government
of Cuba or with any person or affiliate located in Cuba.
(ae) All Common Shares outstanding prior to the sale of the Shares to
the Underwriter, and all securities convertible into or exercisable or
exchangeable for Common Shares are subject to valid, binding, and enforceable
agreements with the Underwriter (collectively, the "Lock-Up Agreements")
pursuant to which
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the holders thereof agree not to offer, sell, contract to sell, distribute,
grant any option, right, or warrant for the purchase of, or pledge,
hypothecate, make any short sale, or otherwise transfer or dispose of, directly
or indirectly, any of such Common Shares, or any securities convertible into,
or exercisable or exchangeable for, Common Shares, or any other Common Shares
acquired by them during the term of the Lock-Up Agreements (including Shares
purchased pursuant to the public offering thereof), for a period of 180 days
after the date of the Prospectus without the prior written consent of the
Underwriter.
(af) The Company has not offered, or caused the Underwriter to offer,
Shares to any person pursuant to the Directed Share Program with the specific
intent to unlawfully influence: (i) a customer or supplier of the Company to
alter the customer's or supplier's level or type of business with the Company,
or (ii) a trade journalist or publication to write or publish favorable
information about the Company or its applications or services.
(ag) All documents delivered or to be delivered by the Company or any
of its representatives in connection with the issuance and sale of the Shares
were on the dates on which they were delivered, or will be on the dates on
which they are to be delivered, true, complete, and correct in all material
respects. Neither this Agreement nor any certificate, statement, or other
document delivered or to be delivered by the Company or any Subsidiary contains
or will contain any untrue statement of a material fact or omits or will omit
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading.
(ah) The Company has prepared and filed with the Commission a
registration statement for the Common Shares pursuant to Section 12(g) of the
Exchange Act, and such registration statement has been declared effective under
the Exchange Act or will be declared effective by the Commission prior to or
concurrently with the commencement of the public offering of the Shares.
(ai) The Company has satisfied the conditions for the use of Form SB-2
with respect to the offering of the Shares for sale to the public.
Any certificate signed by any director or officer of the Company and
delivered to the Underwriter or to counsel for the Underwriter shall be deemed
a representation and warranty of the Company to the Underwriter as to the
matters covered thereby.
Any certificate delivered by the Company to its counsel for purposes
of enabling such counsel to render the opinion referred to in Section 7(d) will
also be furnished to the Underwriter and counsel for the Underwriter and shall
be deemed to be additional representations and warranties to the Underwriter by
the Company as to the matters covered thereby.
SECTION 3. Terms of Public Offering. The Company has been advised by
the Underwriter that the Underwriter proposes to make a public offering of the
Shares, on the terms and conditions set forth in the Registration Statement, as
soon after the Effective Date as the Underwriter deems it advisable to do so.
SECTION 4. Purchase, Sale and Delivery of Shares.
(a) On the basis of the representations, warranties, and agreements
contained herein, but subject to the terms and conditions set forth herein, the
Company agrees to issue and sell to the Underwriter, and the Underwriter agrees
to purchase from the Company, the Firm Shares at the following purchase prices:
(i) $9.70 per share for each Share purchased and sold pursuant to the Directed
Share Program, and (ii) $9.30 per share for each remaining Share, including any
Shares reserved for issuance pursuant to the Directed Share Program which is
not orally confirmed for purchase pursuant thereto by a Participant prior to
the end of the first business day after the date this Agreement is executed.
The Underwriter agrees to offer the Shares to the public as set forth in the
Prospectus.
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(b) At 10:00 a.m., Eastern Standard Time, on the fourth full business
day following the commencement of the initial public offering contemplated by
this Agreement, or at such other time not later than ten (10) full business
days following the date of this Agreement, as the Underwriter and the Company
may agree (the "First Closing"), the Company will deliver to the Underwriter at
the offices of Carlton, Fields, Xxxx, Xxxxxxxx, Xxxxx & Xxxxxx, P.A. ("Xxxxxxx
Xxxxxx"), 000 Xxxxx Xxxxxxx Xxxxxx Xxxxxxxxx, Xxxxx, Xxxxxxx 00000, or at such
other location as specified by the Underwriter, certificates representing the
Firm Shares to be purchased by the Underwriter, against payment by the
Underwriter of the purchase price therefor by wire transfer of same day funds
payable to the order of the Company for Firm Shares. Such time of delivery and
payment is referred to in this Agreement as the "First Closing Date."
(c) In addition, on the basis of the representations, warranties, and
agreements contained herein, but subject to the terms and conditions set forth
herein, the Company hereby grants to the Underwriter a one-time option (the
"Option") to purchase from the Company up to 105,000 Option Shares at a
purchase price of $9.30 per share, for use solely in covering any
over-allotments made by the Underwriter in the sale and distribution of the
Firm Shares. The Option granted hereunder may be exercised at any time (but not
more than once) within thirty (30) days after the date of this Agreement, upon
notice by the Underwriter to the Company which sets forth the aggregate number
of Option Shares to be purchased by the Underwriter, the names and
denominations in which the certificates for such shares are to be registered,
and the time and place at which such certificates will be delivered (the
"Second Closing"). Such time of delivery may not be earlier than the First
Closing Date and herein is called the "Second Closing Date." The Second Closing
Date shall be determined by the Underwriter and may be the same as the First
Closing Date, but if at any time other than the First Closing Date, such Second
Closing Date shall not be earlier than three nor later than ten full business
days after delivery of such notice to exercise.
(d) Certificates for the Firm Shares and the Option Shares shall be
in definitive form and shall be registered in such names and in such
denominations as the Underwriter shall request by written notice to the Company
not later than two business days prior to the First Closing Date or the Second
Closing Date, as the case may be. The Company agrees to make such certificates
available for inspection at least twenty-four (24) hours prior to the First
Closing Date or the Second Closing Date, as the case may be, at the offices of
its designated custodian, or at any other location designated by the
Underwriter. The certificates evidencing the Firm Shares and the Option Shares
shall be delivered to the Underwriter on the First Closing Date or the Second
Closing Date, as the case may be, for the account of the Underwriter, with any
transfer taxes payable in connection with the transfer of the Shares to the
Underwriter duly paid, against payment of the purchase price therefor.
The First Closing Date and the Second Closing Date are sometimes
referred to together in this Agreement as the "Closing Dates".
SECTION 5. Covenants of the Company. In further consideration of the
agreements of the Underwriter herein contained, the Company covenants and
agrees with the Underwriter that:
(a) If any information shall have been omitted from the Registration
Statement in reliance upon Rule 430A under the Securities Act, the Company will
prepare and timely file with the Commission pursuant to Rule 424(b) under the
Securities Act a Prospectus in a form approved by the Underwriter containing
the Rule 430A Information.
(b) The Company will advise the Underwriter and counsel to the
Underwriter promptly, and, if requested by the Underwriter, will confirm such
advice in writing: (i) if information shall have been omitted from the
Registration Statement in reliance on Rule 430A under the Securities Act, (ii)
when the Prospectus or term sheet (as described in Rule 434(b) under the
Securities Act) has been timely filed pursuant to Rule 424(b) under the
Securities Act, (iii) when any post-effective amendment to the Registration
Statement or any Rule 462 Registration Statement is filed or becomes effective
under the Securities Act, (iv) of any request by the Commission for amendments
or supplements to the Registration Statement, any Preliminary Prospectus, or
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the Prospectus, or for additional information, (v) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or of any notification of the suspension of qualification or
registration of the Shares for offer or sale in any jurisdiction or the
initiation or threatening of any proceedings for such purposes. If at any time
the Commission shall issue any stop order suspending the effectiveness of the
Registration Statement or the Prospectus, the Company will make every
reasonable effort to obtain the withdrawal of such order at the earliest
possible time.
(c) The Company will not file any amendment to the Registration
Statement (including any post-effective amendment), file any Rule 462(b)
Registration Statement, or make any amendment or supplement to the Prospectus,
or file any amendment or supplement to any of the Applications if: (i) the
Underwriter shall not have been previously advised of such filing, been
furnished with a copy thereof prior thereto, and given reasonable opportunity
to review such amendment or supplement, (ii) the Underwriter shall reasonably
object after having been so advised, or (iii) in the case of a Registration
Statement, Rule 462(b) Registration Statement, or Prospectus, such amendment or
supplement is not in compliance with the Securities Act. The Company will
prepare and file with the Commission any amendments or supplements which, in
the opinion of counsel for the Underwriter, is necessary and advisable in
connection with the distribution of the Shares by the Underwriter.
(d) The Company will furnish to the Underwriter, without charge,
eight (8) signed copies of the Registration Statement as originally filed with
the Commission and of each amendment thereto, including financial statements
and all exhibits thereto, and such number of conformed copies of the
Registration Statement as originally filed and of each amendment thereto as the
Underwriter may reasonably request. The Company has delivered to the
Underwriter, without charge, in such quantities as the Underwriter has
requested, copies of each form of the Preliminary Prospectus. The Company
confirms its consent to the use, in accordance with the provisions of the
Securities Act and with the securities or Blue Sky Laws of the jurisdictions in
which the Shares are or have been offered by the Underwriter and by dealers,
prior to the date of the Prospectus, of each Preliminary Prospectus so
furnished by the Company.
(e) The Company will furnish to the Underwriter in Naples, Florida,
without charge, prior to 10:00 a.m., Eastern Standard Time on the business day
next succeeding the date of this Agreement and thereafter from time to time for
such period as in the opinion of counsel for the Underwriter a prospectus is
required by law to be delivered in connection with sales by the Underwriter or
a dealer, as many copies of the Prospectus and the Registration Statement, and
of any amendment or supplement thereto, as the Underwriter may reasonably
request. The Company shall comply with all requirements imposed on it by the
Securities Act, as now and hereafter amended, and by the Rules and Regulations,
as from time to time in force, so far as is necessary to permit the completion
of the distribution of the Shares as contemplated by this Agreement and the
Registration Statement and the Prospectus. If, during the period in which the
Prospectus is required by law to be delivered by the Underwriter or a dealer,
any event shall occur or condition exist as a result of which, in the judgment
of the Company or in the opinion of counsel for the Underwriter, it becomes
necessary to amend or supplement the Registration Statement or the Prospectus
in order to make the statements therein, in light of the circumstances when the
Prospectus is delivered to a purchaser, not misleading, or if, in the opinion
of counsel to the Underwriter, it is necessary to amend or supplement the
Prospectus to comply with the Securities Act or applicable law, the Company
promptly will prepare and file with the Commission an appropriate amendment or
supplement thereto, and, will furnish to the Underwriter and to each dealer to
which Shares may have been sold by the Underwriter and to any other dealers
upon request, without charge, as many copies as the Underwriter may from time
to time request.
(f) The Company will make generally available to its security holders
a consolidated earnings statement, which need not be audited, as soon as it is
practicable to do so, but in any event not later than fifteen (15) months after
the effective date of the Registration Statement, covering a period of twelve
(12) consecutive calendar months beginning after the effective date of the
Registration Statement, which consolidated earnings statement will satisfy the
provisions of the last paragraph of Section 11(a) of the Securities Act and
Rule 158
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of the Rules and Regulations promulgated thereunder and will advise the
Underwriter in writing when such statement has been so made available.
(g) The Company shall take or cause to be taken in cooperation with
the Underwriter and counsel to the Underwriter all actions required to register
or qualify the Shares for offer and sale under the securities or Blue Sky Laws
of such jurisdictions as the Underwriter may reasonably designate and will make
such applications, file such documents, and furnish such information as may be
required for that purpose (provided, that the Company shall not be required to
qualify as a foreign corporation or to file a general consent to the service of
process in any jurisdiction where it is not now so qualified or required to
file a consent, except with respect to the offer and sale of the Shares), and
will continue such registrations or qualifications in effect so long as
reasonably requested by the Underwriter to effect the distribution of the
Shares (including, without limitation, the preparation and filing of such
statements, reports, or documents as may be so required and compliance with all
undertakings given pursuant to such registrations or qualifications). In the
event that the registration or qualification of the Shares in any jurisdiction
is suspended, the Company shall so advise the Underwriter in writing.
(h) During the period ending five years after the date of this
Agreement, the Company will furnish to the Underwriter: (i) as soon as
practicable after the end of each fiscal year, copies of the annual report
containing the consolidated audited financial statements of the Company, (ii)
as soon as available, a copy of each report, document, and definitive proxy or
information statement furnished to or filed with any securities exchange or the
NASD (including the Nasdaq Stock Market, Inc., or any successor thereto)
pursuant to the requirements of such exchange or the NASD, or with the
Commission under the Securities Act or the Exchange Act, and (iii) copies of
all other information or communications (financial or other) furnished to
shareholders of the Company.
(i) The Company shall apply the proceeds from the sale of the Shares
to be sold by it hereunder as set forth in the Prospectus under the heading
"Use of Proceeds" shall file with the Commission, and will furnish or cause to
be furnished to the Underwriter and counsel to the Underwriter, such reports as
may be required in accordance with Rule 463 under the Securities Act.
(j) Except for the sale of Common Shares pursuant to this Agreement
and except as disclosed in the Prospectus, neither the Company nor any
Subsidiary shall, directly or indirectly, offer, sell, pledge, contract to
sell, issue, distribute, grant or sell any option, right, or warrant to
purchase or otherwise dispose of any Common Shares or securities convertible
into, or exercisable, or exchangeable for, Common Shares or a derivative of the
Common Shares (or an agreement for such) in the open market or otherwise, for a
period of one-hundred eighty days (180) days after the later of the Effective
Date or the date of this Agreement, without the express prior written consent
of the Underwriter.
(k) The Company will not, directly or indirectly, take any action
designed, or which might reasonably be expected to cause or result in or
constitute, under the Securities Act or otherwise, stabilization or
manipulation of the price of any security of the Company to facilitate the sale
or resale of the Shares.
(l) The Company has (i) caused each director, officer, and current
shareholder of the Company and each Subsidiary to furnish to the Underwriter,
on or before the date of this Agreement, the Lock-Up Agreements, and (ii)
issued stop-transfer instructions to the transfer agent for the Common Shares
with respect to the Common Shares that are or will be subject to such Lock-Up
Agreements, which stop-transfer instructions shall restrict the transfer of
such shares prior to expiration of the 180-day period specified in the Lock-Up
Agreements.
(m) The Company will file a registration statement under the Exchange
Act to register the Common Shares thereunder as of the Effective Date, and will
comply with all registration, filing, and reporting requirements of the
Exchange Act which may from time to time be applicable to the Company.
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(n) During the period that a prospectus is required by law to be
delivered in connection with sales of the Shares by the Underwriter or a
dealer, the Company will not, directly or indirectly hold any press conference
with respect to the Company, or its financial condition, results of operations,
business, properties, assets, or prospects, or this offering, without the
express written consent of the Underwriter.
(o) The Company shall not invest or otherwise cause the use of
proceeds received by the Company from its sale of the Shares, or otherwise
conduct its business, in such a manner as would require Company or any
Subsidiary to register as an investment company under the Investment Company
Act of 1940, as amended.
(p) The Company will not prior to the Second Closing Date, if any,
(i) except as specifically described in the Prospectus, acquire any of the
Common Shares, or declare or pay any dividend or make any other distribution
upon its Common Shares payable to shareholders of record on a date prior to the
Second Closing Date, or (ii) incur any material liability or obligation, direct
or contingent, or enter into any material transaction other than in the
ordinary course of business, or any transaction with a related party which is
required to be disclosed in the Prospectus pursuant to Item 404 of Regulation
S-B under the Securities Act.
(q) The Company will maintain a transfer agent and, if necessary
under the jurisdiction of incorporation of the Company, a registrar for the
Common Shares.
(r) In connection with the Directed Shares Program, the Company will
ensure that the Directed Shares will be restricted to the extent required by
the NASD or the NASD rules from sale, transfer, assignment, pledge, or
hypothecation for a period of three months following the Effective Date. The
Underwriter will notify the Company as to which Participants are required to be
restricted. The Company will direct the transfer agent to place stop transfer
restrictions upon such securities for such period of time.
(s) The Company shall comply in all respects with the provisions of
all undertakings contained in the Registration Statement and the undertakings
given by the Company in connection with the registration or qualification of
the Shares for offering and sale under the Blue Sky Laws.
(t) The Company will use its best efforts to satisfy or cause to be
satisfied the conditions to the obligations of the Underwriter in Section 7
hereof.
(u) The Company shall deliver the requisite notice of issuance to the
NASD and shall take all necessary and appropriate action to cause or permit the
quotation and listing of the Common Shares on the OTC Bulletin Board for a
period of at least 36 months, except to the extent during such period that the
Common Shares are listed on a national securities exchange or the Nasdaq Stock
Market.
(v) The Company will advise the Underwriter promptly of and, when
applicable, furnish copies of, any communications with the FRB, OCC, or FDIC
relating to the Applications or the Regulatory Approvals.
(w) The Company shall supply the Underwriter and counsel to the
Underwriter, at the Company's cost, with three bound volumes of the
Underwriting materials within a reasonable time after the last of the Closing
Dates.
SECTION 6. Payment of Expenses and Fees.
(a) Whether or not the transactions contemplated hereunder are
consummated or this Agreement is terminated for any reason, the Company agrees
to pay or cause to be paid all costs, fees, and expenses incurred in connection
with, or incident to the performance of the Company's obligations under this
Agreement, including: (i) the fees, disbursements, and expenses of the
Company's accountants and counsel incurred in connection with the registration
and delivery of the Shares under the Securities Act, (ii) the fees,
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expenses, and costs associated with the preparation, filing with the
Commission, printing, and distribution (including costs of mailing, packaging,
and shipping copies thereof to the Underwriter and dealers) of the Registration
Statement, each Preliminary Prospectus, and the Prospectus (including all
exhibits and financial statements thereto, and any amendments and supplements
to any of the foregoing); (iii) the cost of preparing, printing, and
authenticating certificates representing the Shares, and all costs and expenses
related to the transfer and delivery of the Shares to the Underwriter,
including any stamp, transfer, or other taxes payable thereon; (iv) all the
costs and expenses in connection with the registration and qualification of the
Shares for the offer and sale under state securities and Blue Sky Laws,
including filing fees and legal fees and disbursements of counsel for the
Underwriter incurred in connection with such registration and qualifications
and in connection with the preparation of the preliminary and supplemental Blue
Sky memoranda, (v) the costs of printing (or reproducing) and delivery of this
Agreement, the preliminary and supplemental Blue Sky Memoranda, the Selected
Dealer Agreements, and all other agreements and documents printed (or
reproduced) and delivered in connection with the offering of the Shares; (vi)
all filing fees, and legal fees and disbursements of counsel to the Underwriter
incurred in connection with the review and qualification of the offering of the
Shares by the NASD; (vii) the fees and expenses related to the approval of the
quotation of the Shares on the OTC Bulletin Board; (viii) the costs and charges
of any transfer agent, registrar, or depositary; (ix) transportation,
accommodations, and other expenses incurred by or on behalf of the Underwriter
in connection with the presentations to prospective purchasers of the Shares;
(x) all fees and disbursements of counsel for the Underwriter incurred in
connection with the Directed Shares Program; (xi) preparation, printing, and
distribution of three bound volumes of the closing documents for the
Underwriter and its counsel; and (xii) all other costs incident to the
performance of the obligations of the Company hereunder for which provision is
not otherwise made in this Section 6. It is understood, however, that except as
provided in this Section 6(a), in Section 6(b), and in Section 8 entitled
"Indemnification and Contribution", the Underwriter will pay all of its costs
and expenses, including fees and disbursements of its counsel, stock transfer
taxes payable on resale of any of the Shares by it, and any advertising
expenses connected with any offers the Underwriter may make.
(b) If this Agreement shall be terminated by the Underwriter because
of the conditions in Section 7 of this Agreement are not satisfied, or because
this Agreement is terminated by the Underwriter pursuant to Section 10 of this
Agreement, or by reason of the failure or refusal on the part of the Company to
comply with the terms or to fulfill any of the conditions of this Agreement,
then the Company will reimburse the Underwriter for out-of-pocket expenses
(including fees and disbursements of counsel for the Underwriter) reasonably
incurred by the Underwriter in connection with this Agreement or the offering
contemplated hereunder.
SECTION 7. Conditions to the Obligations of the Underwriter. The
obligations of the Underwriter under this Agreement to purchase the Shares on
each of the Closing Dates shall be subject to (i) the accuracy of the
representations and warranties on the part of the Company set forth herein as
of the date hereof, and at all times subsequent thereto up to and as of the
First Closing Date, and if applicable, as of the Second Closing Date, as the
case may be, (ii) to the accuracy of the statements of the Company's directors
and officers made pursuant to the provisions hereof, (iii) to the performance
and compliance by the Company of its agreements and obligations hereunder, and
(iv) to the following additional conditions, except to the extent expressly
waived in writing by the Underwriter:
(a) The Registration Statement and all post-effective amendments
thereto shall have been declared effective by the Commission not later than
5:30 p.m. Eastern Standard Time on the date of this Agreement, or such later
time as shall have been consented to by the Underwriter, and all filings
required by Rule 424(b) and Rule 430A under the Securities Act shall have been
timely filed with the Commission in compliance with the Rules and Regulations,
and any request of the Commission for additional information (to be included in
the Registration Statement or the Prospectus or otherwise) shall have been
disclosed to the Underwriter and complied with to the Underwriter's
satisfaction. No stop order suspending the effectiveness of the Registration
Statement or any amendment or supplement thereto shall have been issued and no
proceeding for that purpose shall have been initiated or shall be pending or,
to the knowledge of the Company,
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threatened or contemplated by the Commission, and no restraining order, or
order of any nature by a federal or state court of competent jurisdiction shall
have been issued which would or purports to prevent the issuance of the Shares.
(b) Subsequent to the execution and delivery of this Agreement and
prior to each of the Closing Dates, there shall not have occurred any change,
or any development involving, or which might reasonably be expected to involve,
a prospective change, in the ability of the Company or any Subsidiary to
conduct their respective businesses (whether by reason of any court,
legislative, other governmental action, order, decree, or otherwise), or in the
general affairs, condition (financial and otherwise), business, prospects,
properties, management, financial position or earnings, results of operations,
or net worth of the Company or any Subsidiary, whether or not arising from
transactions in the ordinary course of business that, in the Underwriter's
judgment, is material and adverse and makes it, in the Underwriter's judgment,
impracticable to market the Shares on the terms and in the manner contemplated
by the Prospectus.
(c) The Underwriter shall have received on each of the Closing Dates,
a certificate of the chief executive officer and the principal financial
officer of the Company, dated as of the First Closing Date or the Second
Closing Date, as the case may be, to the effect that:
(i) The Registration Statement has been declared effective by
the Commission under the Securities Act and no stop order suspending the
effectiveness of the Registration Statement has been issued, and no proceeding
for such purpose is pending or, to the knowledge of the respective signatories,
threatened or contemplated by the Commission.
(ii) The representations and warranties of the Company set
forth in this Agreement are true and correct as of the date of this Agreement
and as of the First Closing Date or the Second Closing Date, as the case may
be, and the Company has complied with all of the covenants and agreements and
satisfied in all respects all of the conditions to be performed or satisfied by
it on or prior to each such Closing Date.
(iii) Except as set forth in the Registration Statement or the
Prospectus, since the respective dates of the Registration Statement and
Prospectus, neither the Company nor any Subsidiary shall have incurred any
liability or obligation, direct or contingent, neither of them shall have
entered into any material transaction, there shall not have been any change in
the capital stock or other securities of the Company nor any material increase
in the short-term or long-term debt of the Company from that set forth or
contemplated in the Registration Statement or the Prospectus (or any amendment
or supplement thereto).
(iv) Each of the respective signatories of the certificate has
carefully examined the Registration Statement, the Prospectus, and any
amendments or supplements thereto, and such documents contain all statements
and information required to be made therein, and neither the Registration
Statement, the Prospectus, nor any amendment or supplement thereto includes any
untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading and, since the date on which the Registration Statement was
initially filed, no event has occurred that was required to be set forth in an
amended or supplemented prospectus or in an amendment to the Registration
Statement that has not been so set forth; provided, however, that no
representation need be made as to information contained in or omitted from the
Registration Statement or any amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
the Underwriter.
(v) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there has not been any
material adverse change in the conditions (financial or otherwise) of the
Company or any Subsidiary, or any development involving a prospective material
adverse change in the condition (financial or other) of the Company or any
Subsidiary or affecting their businesses (resulting from litigation or
otherwise), properties, net worth, prospects, or results of operations of the
Company or any Subsidiary, whether or not arising from transactions in the
ordinary course of business.
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(d) The Underwriter shall have received on each of the Closing Dates
an opinion of Smith, Mackinnon, Greeley, Bowdoin & Xxxxxxx, P.A., Orlando,
Florida, counsel for the Company, in form reasonably satisfactory to the
Underwriter and counsel for the Underwriter, addressed to the Underwriter and
dated as of the First Closing Date or the Second Closing Date, as the case may
be, to the effect that:
(i) The Company has been duly incorporated, is validly
existing as a corporation with active status under the laws of the State of
Florida, and has full power and authority (corporate and other) to own, lease,
and operate its properties and to conduct its business as described in the
Registration Statement and the Prospectus (and any amendment or supplement
thereto); the Company is duly qualified to do business as foreign corporation
under the corporation and banking laws of, and is in good standing as such in,
each jurisdiction in which the conduct of its business or where the nature of
its properties requires such registration or qualification, except where the
failure to so register or qualify would not have a Material Adverse Effect on
the Company or any Subsidiary; and the Company is duly registered and in good
standing under the BHCA and is a member in good standing of the Federal Reserve
System.
(ii) To the knowledge of such counsel after due inquiry, the
Company, prior to the First Closing Date, does not have any Subsidiaries and
does not, directly or indirectly, own any equity interest in, or control, any
corporation, limited liability company, association, partnership, joint
venture, trust, proprietorship, or other commercial or business entity or
organization, except that the Company has the sole right to acquire all of the
outstanding capital stock of the Bank, and upon acquisition of such stock the
Bank will be the Company's only Subsidiary. Upon receipt of all Regulatory
Approvals, satisfaction of the conditions set forth in the Regulatory
Approvals, contribution to the Bank of the net proceeds from the sale of the
Firm Shares, and the issuance by the Bank of its capital stock after receipt
thereof as described in the Prospectus and, in the case of the Second Closing,
and at all times subsequent thereto up to and as of the Second Closing Date, if
any, all of the outstanding capital stock of the Bank (a) will have been issued
to the Company, (b) when issued to the Company, will have been duly authorized,
validly issued, fully paid and nonassessable, and (c) will be owned
beneficially and of record by the Company, free and clear of any claim, lien,
encumbrance, security interest, or restriction on transfer. Subject to the
receipt of such capital contribution by the Company to the Bank, and
satisfaction of the conditions set forth in the Bank Approvals, the Bank will
be or is duly organized and validly existing as a nationally chartered banking
association in good standing under the laws of the United States of America,
with full power and authority (corporate and other) to own, lease, and operate
its properties and conduct its business as described in the Registration
Statement, the Prospectus, the Application, and the Regulatory Approvals. The
Bank is not required to register or qualify to do business as a foreign
corporation under the laws of any jurisdiction, and is not subject to any
current formal arrangements or memorandum of understanding with, or cease and
desist order by, any bank regulatory agency.
(iii) As of the time each Application was filed with the
respective bank regulatory authorities (FRB, OCC, or FDIC) and as of each of
the Closing Dates: (A) each such Application conformed in all material respects
to the applicable respective requirements of the BHCA, the NBA, and the FDIA
and the rules and regulations promulgated thereunder, and (B) to the knowledge
of such counsel after due inquiry, as of such times, none of the Applications
contained an untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances in which they were made, not
misleading.
(iv) The Company has received the FRB Approval and the Bank has
received the Bank Approvals and, to the knowledge of such counsel after due
inquiry, as of the date hereof and at all times subsequent thereto up to and as
of each of the Closing Dates to which such opinion relates: (A) all such
Regulatory Approvals are in full force and effect, and no actions to suspend,
revoke, or terminate any of such Regulatory Approvals have been taken, have
been initiated or are pending, threatened, or contemplated by any of the FRB,
the OCC, or the FDIC; (B) neither the Company nor the Bank is in breach of or
default under any condition or of any commitment contained in any of such
Regulatory Approvals; and (C) each of the Company
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and the Bank has satisfied all conditions precedent to such Regulatory
Approvals which can be satisfied thereunder by them as of such date.
(v) The authorized, issued, and outstanding capital stock of
the Company is as set forth under the caption "Capitalization" in the
Prospectus, and the Common Shares conform as to legal matters to the
descriptions thereof contained in the Registration Statement and Prospectus.
The certificates for the Shares to be delivered hereunder are in due and proper
legal form and, when duly countersigned by the Company's transfer agent and
delivered to the Underwriter or upon the order of the Underwriter in accordance
with this Agreement, will comply in all respects with the requirements of the
Florida Business Corporation Act, and the Company's articles of incorporation
and bylaws.
(vi) The Common Shares issued and outstanding prior to the
issuance of the Firm Shares or the Option Shares, as the case may be, to be
sold by the Company hereunder have been duly authorized and validly issued, are
fully paid and nonassessable. Except as described in the Prospectus, there are
no preemptive, preferential, or, to the knowledge of such counsel after due
inquiry, other rights (including rights of first refusal) to subscribe for or
to purchase any of the Common Shares and no Common Shares have been issued in
violation of such rights, nor are there any restrictions upon the voting or
transfer of any Common Shares pursuant to the Company's articles of
incorporation, bylaws, other governing documents, or, to the knowledge of such
counsel after due inquiry, any agreement or other instrument to which the
Company or any Subsidiary is a party or by which any of them is bound. All of
the securities of the Company and any Subsidiary issued prior to the date
hereof were duly offered, sold, issued, or granted in compliance with, and were
registered or exempt from, the registration requirements of the Securities Act,
and were duly registered or qualified under, or the subject of an available
exemption from, the registration provisions of the Securities Act and all
applicable state securities or Blue Sky Laws.
(vii) The Firm Shares or the Option Shares, as the case may be,
to be sold by the Company hereunder have been duly authorized and, when issued
and paid for against delivery thereof in accordance with the terms of this
Agreement, will be validly issued, fully paid and nonassessable, and the
issuance of the Shares will not be in violation of, or subject to, any
preemptive, preferential, or other rights (including rights of first refusal)
to subscribe for or to purchase such Shares, nor are there any restrictions on
the voting or transfer of such Shares under the Company's articles of
incorporation, bylaws, or other governing documents.
(viii) Except as set forth in the Prospectus, neither the Company
nor any Subsidiary has any outstanding options to purchase, or warrants to
subscribe for, or any securities or obligations convertible or exchangeable
into, or any contracts to commitments to issue or sell, any capital stock or
any such options, warrants, convertible or exchangeable securities, or
obligations, or rights of any description, contractual or otherwise, entitling
any person to receive any class of security of the Company or any Subsidiary.
To the knowledge of such counsel after due inquiry and review of corporate
records, no holder of any securities of the Company or any Subsidiary or any
other person has the right, contractual or otherwise, to cause the Company to
have any such securities included in the Registration Statement or to register
any securities of the Company or any Subsidiary under the Securities Act or
applicable Blue Sky Laws.
(ix) The Registration Statement has been declared effective
under the Securities Act and, to the knowledge of such counsel after due
inquiry, no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted, are pending, threatened, or contemplated. All filings required by
Rule 424 and Rule 430A under the Securities Act have been made in the manner
and within the time period required by such rules and, at the Effective Date
and at each of the Closing Dates to which such opinion relates, the
Registration Statement, the Prospectus, and each amendment or supplement
thereto complies as to form in all material respects with the requirements of
the Securities Act and the Rules and Regulations (except that counsel need
express no opinion as to the financial statements and other statistical or
financial data included therein), and no amendments to the Registration
Statement are required to be filed.
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(x) Such counsel has participated in the preparation of the
Registration Statement and the Prospectus, including review of and discussion
of the contents thereof, and no facts have come to the attention of such
counsel which lead it to believe that either the Registration Statement, the
Prospectus, or any amendment or supplement thereto, as of their respective
effective or issue dates, contained any untrue statement of a material fact or
omits to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or that the Prospectus, as amended
or supplemented, if applicable, as of the First Closing Date or the Second
Closing Date, as the case may be, contains any untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances under which made (except, in each case, for the financial
statements and other statistical or financial data included therein as to which
such counsel need express no opinion).
(xi) The Company has requisite power and authority (corporate
and other) to execute, deliver, and perform this Agreement and to issue, sell,
and deliver the Shares to be sold by it to the Underwriter as provided herein.
The execution and delivery of this Agreement, and the performance by the
Company of its obligations hereunder and consummation of the transactions
described herein, have been duly and validly authorized by the Company, and
this Agreement has been duly executed and delivered by the Company, and
constitutes a legal, valid, and binding obligation of the Company and is
enforceable against the Company in accordance with its terms (except in all
cases (i) to the extent that such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, receivership, moratorium, or similar
laws affecting the enforcement of creditor rights and remedies generally, (ii)
that the availability of the equitable remedy of specific performance and
injunctive relief is subject to the discretion of the court before which the
proceeding may be brought, and (iii) that the enforceability of the
indemnification and contribution provisions hereof may be limited under
applicable federal or state or other securities laws or the public policy
underlying such laws).
(xii) The execution and delivery by the Company of, and the
performance by the Company of its obligations hereunder (including the offer,
sale, or delivery of the Shares) and consummation of the transactions
contemplated by this Agreement will not (A) conflict with, violate, or
contravene any provision of the articles of incorporation, bylaws, or other
governing documents of the Company or any Subsidiary, (B) to the knowledge of
such counsel after due inquiry, violate, conflict with, constitute a breach of,
or a default under any provision of any agreement, contract, mortgage, deed of
trust, lease, loan agreement, indenture, note, bond or other evidence of
indebtedness, or any other material agreement or instrument to which the
Company or any Subsidiary is a party or by which any of them is bound, or to
which any of their properties is subject, or (C) assuming compliance with all
applicable federal and state securities laws, result in a violation of any
statute, law, ordinance, rule, regulation, or any ruling, order, writ,
injunction, judgment, or decree of any court or any governmental, regulatory,
or administrative agency, or commission, authority, or other body, domestic or
foreign, having jurisdiction over the Company, any Subsidiary, or any of their
respective properties, except those, if any, described in the Registration
Statement and the Prospectus.
(xiii) No consent, approval, filing, authorization, registration,
qualification, or order of or with any court or governmental agency or body
(including with or by any bank regulatory agency) is required for the
execution, delivery, and performance by the Company of its obligations under
this Agreement, including the issue and sale of the Shares, or in connection
with the consummation of the transactions contemplated in this Agreement,
except (A) as have been obtained under the Securities Act or the Exchange Act,
or (B) as may be required under state securities or Blue Sky Laws governing the
purchase and distribution of the Shares by the Underwriter (as to which such
counsel need not express an opinion);
(xiv) The statements (A) in the Prospectus under "Risk Factors -
Need to Obtain Regulatory Approvals", "- Government Regulation and Monetary
Policy", "- Anti-Takeover Laws", "Dividend Policy", "Management - Employment
Agreements", "- Stock Option Plans", "Supervision and Regulation", "Description
of Capital Stock", and "Shares Eligible for Future Sale", and (B) in the
Registration Statement in
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Items 24 and 26, in each case insofar as such statements constitute summaries
of legal matters, documents, or proceedings referred to therein, fairly present
the information called for with respect to such legal matters, documents, and
proceedings and fairly summarize the matters referred to therein;
(xv) To such counsel's knowledge after due investigation and
inquiry (A) there is no litigation or any legal, regulatory, or governmental
proceedings, actions, or investigations pending or threatened to which the
Company or any Subsidiary is or may be a party or to which any of their
properties is or may be subject, or any statutes, regulations, or rules, that
are required to be described or disclosed in the Registration Statement or the
Prospectus that are not so described or disclosed as required, and (B) there
are no agreements, contracts, indentures, leases or other documents or
instruments required to be described, summarized, or otherwise disclosed in the
Registration Statement or the Prospectus or to be filed as an exhibit to the
Registration Statement that has not been so described, summarized, disclosed,
or filed.
(xvi) Neither the Company nor any Subsidiary is, nor with the
giving of notice or the lapse of time, or both, would be (A) in conflict with
or in violation of its articles of incorporation, bylaws, or other corporate
governance documents, or (B) to the knowledge of such counsel after due
inquiry, in violation of breach of, or in default in the performance of any
obligation, agreement, or condition contained in any provision of any loan
agreement, indenture, note, bond, other evidence of indebtedness, or of any
agreement, lease, deed of trust, contract, or other material agreement or
instrument to which the Company or any Subsidiary is a party or by which any of
them or any of their assets or properties are bound or affected.
(xvii) The Company and each Subsidiary have and hold, and are in
substantial compliance with, all Permits required under all laws, rules, and
regulations in connection with their respective businesses, and all of such
Permits are valid and in full force and effect, except where the failure to
have and hold or to maintain such Permit in full force and effect would not
have a Material Adverse Effect on the Company or any Subsidiary; and there is
no pending proceeding, and neither the Company nor any Subsidiary has received
notice of any threatened proceeding, relating to the revocation or modification
of any such Permit. Neither the Company nor any Subsidiary is or has been (by
virtue of any action, omission to act, contract to which it is a party or by
which it is bound, or any occurrence or state of facts whatsoever) in violation
of any law, rule, regulation, or any order, writ, injunction, or decree to
which the Company or any of its Subsidiaries may be subject (including those
relating to any aspect of banking, bank holding companies, environmental
protection, occupational safety and health, and equal employment practices)
heretofore or currently in effect, except any such violation that has been
fully cured or satisfied without recourse or that is not reasonably likely to
have a Material Adverse Effect on the Company or any Subsidiary;
(xviii) The Common Shares are registered under Section 12(g) of
the Exchange Act.
(xix) The Company is not an "investment company" or a company
"controlled" by an "investment company," within the meaning of the Investment
Company Act and, upon its receipt of the net proceeds from the sale of the
Shares and the application thereof in accordance with the description set forth
in the Prospectus, will not become or be deemed to be an "investment company"
thereunder; and
(xx) To the knowledge of such counsel, after due inquiry, the
conditions for the use of Form SB-2 have been satisfied with respect to the
Registration Statement.
In rendering such opinion such counsel may rely as to factual matters
on certificates of officers of the Company and of state officials and, as to
legal matters in jurisdictions other than those in which they are domiciled, on
opinions of local counsel, in each case satisfactory to the Underwriter, in
which case their opinion shall state that they are so doing and copies of such
certificates or opinions will be attached to their opinion unless such
certificates or opinions or the information therein has been furnished to
Underwriter in other form.
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(e) The Underwriter shall have received an opinion of Xxxxxxx Xxxxxx,
counsel for the Underwriter, dated the First Closing Date or the Second Closing
Date, as the case may be, with respect to the issuance and sale of the Shares
by the Company, the Registration Statement, and other related matters as the
Underwriter may reasonably require, and the Company shall have furnished to
such counsel such documents and shall have exhibited to them such papers and
records as they reasonably request for the purpose of enabling them to pass
upon such matters.
(f) The Underwriter shall have received, on each of the date of this
Agreement, the First Closing Date, and the Second Closing Date, as the case may
be, a letter addressed to the Underwriter, from Xxxx Xxxxx & Xxxx, Inc., the
Company's independent accountants, the first letter to be dated the date of
this Agreement, the second letter to be dated the First Closing Date, and the
third letter (in the event of a Second Closing) to be dated the Second Closing
Date, which shall be in form and substance reasonably satisfactory to the
Underwriter and shall contain information as of a date within five days of the
date of such letter; provided, however, that the letters delivered on each
Closing Date shall use a "cut-off date" not earlier than the date of this
Agreement. There shall not have been any change or decrease set forth in any
letter referred to in this Section 7(f) that makes it impracticable or
inadvisable in the judgment of the Underwriter to proceed with the public
offering or purchase of the Shares as contemplated hereby.
(g) As of the First Closing Date, the Bank will have received the
Charter Approval and Deposit Insurance Approval (together, the "Bank
Approvals") from the OCC and the FDIC, respectively, and the Company will have
received the FRB Approval from the FRB, and as of each Closing Date (i) the
Regulatory Approvals will be in full force and effect and no action to suspend,
revoke, or terminate any of the Regulatory Approvals will have been taken, or
proceedings for such purposes initiated or threatened, by the FRB, the OCC, or
the FDIC, (ii) neither the Bank nor the Company will be in breach or default
under any condition precedent of or commitment contained in any of the
Regulatory Approvals that can be satisfied as of such date, and (iii) the Bank
and the Company will have satisfied their respective conditions precedent to
the Regulatory Approvals that can be satisfied as of such date.
(h) The Company shall have furnished to the Underwriter such further
certificates and documents as the Underwriter may reasonably request (including
certificates of officers of the Company).
(i) The Shares shall have been qualified or registered for sale, or
subject to an available exemption from such qualification or registration,
under the Blue Sky Laws of such jurisdictions as shall have been reasonably
specified by the Underwriter and the offering shall have been cleared by the
NASD.
(j) The Lock-Up Agreements shall have been delivered to the
Underwriter on or before the date of this Agreement and shall be in full force
and effect on each of the Closing Dates.
All of the agreements, opinions, certificates, letters, and documents
mentioned above or elsewhere in this Agreement shall be deemed to be in
compliance with the provisions of this Agreement only if they are satisfactory
in form and substance to the Underwriter and to Xxxxxxx Xxxxxx, counsel for the
Underwriter. The Company shall furnish the Underwriter with such manually
signed or conformed copies of such opinions, certificates, letters, and other
documents as the Underwriter shall reasonably request. If any condition to the
Underwriter's obligations hereunder which are to be satisfied prior to or at
either the First Closing Date or the Second Closing Date, as the case may be,
and is not so satisfied when and as required by this Agreement, this Agreement
at the election of the Underwriter will terminate upon notification to the
Company without liability on the part of the Underwriter, except to the extent
provided in Section 8 of this Agreement, and the Company shall pay those
expenses required under Section 6 hereof in connection with any such
termination.
SECTION 8. Indemnification and Contribution. (a) The Company agrees
to indemnify and hold harmless the Underwriter and each person, if any, who
controls the Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, from and against any and all
losses, claims, damages, expenses, liabilities, or actions in respect thereof
("Claims") to which such Underwriter or
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each such controlling person may become subject under the Securities Act, the
Exchange Act, the Rules and Regulations, Blue Sky Laws, or other federal or
state statutory laws or regulations, at common law or otherwise (including
payments made in settlement of any litigation, if such settlement is effected
with the written consent of the Company, which consent shall not be
unreasonably withheld), insofar as such Claims arise out of or are based upon
the inaccuracy or breach of any representation, warranty, or covenant of the
Company contained in this Agreement, any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement, any
Preliminary Prospectus, the Prospectus, or any amendment or supplement thereto,
or in any application filed under any Blue Sky Law or other document executed
by the Company for that purpose or based upon written information furnished by
the Company and filed in any state or other jurisdiction to qualify or register
any or all of the Shares under the securities laws thereof (any such document,
application, or information being hereinafter called a "Blue Sky Application"),
or arise out of or are based upon the omission or alleged omission to state in
any of the foregoing a material fact required to be stated therein or necessary
to make the statements therein not misleading. The Company agrees to reimburse
the Underwriter and each such controlling person for any legal fees or other
expenses incurred by the Underwriter or any such controlling person in
connection with investigating or defending any such Claim or appearing as a
third-party witness in connection with any such Claim; provided, however, that
the Company will not be liable in any such case to the extent that:
(i) Any such Claim arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
the Registration Statement, any Preliminary Prospectus, the Prospectus, or any
amendment or supplement thereto or in any Blue Sky Application in reliance upon
and in conformity with the written information furnished by or on behalf of the
Underwriter to the Company expressly for use therein pursuant to Section 13 of
this Agreement; or
(ii) Such statement or omission was contained or made in any
Preliminary Prospectus and corrected in the Prospectus and (1) any such Claim
suffered or incurred by the Underwriter (or any person who controls the
Underwriter) resulted from an action, claim, or suit by any person who
purchased Shares that are the subject thereof from such Underwriter in the
offering, and (2) such Underwriter failed to deliver a copy of the Prospectus
(as then amended if the Company shall have amended the Prospectus) to such
person at or prior to the confirmation of the sale of such Shares in any case
where such delivery is required by the Securities Act, unless such failure was
due to failure by the Company to provide copies of the Prospectus (as so
amended) to the Underwriter as required by this Agreement.
(b) The Underwriter agrees to indemnify and hold harmless the Company,
each of its directors, officers who sign the Registration Statement, and each
person who controls the Company within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, from and against any and all
Claims to which the Company, or any such director, officer, or controlling
person may become subject under the Securities Act, the Exchange Act, the Rules
and Regulations, Blue Sky Laws, or other federal or state statutory laws or
regulations, at common law or otherwise (including in settlement of any
litigation, if such settlement is effected with the written consent of the
Underwriter and such consent shall not be unreasonably withheld), insofar as
such Claim arises out of or is based upon any untrue or alleged untrue
statement of any material fact contained in the Registration Statement, any
Preliminary Prospectus, the Prospectus, or any amendment or supplement thereto,
or in any Blue Sky Application, or arises out of or is based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each
case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in the
Registration Statement, any Preliminary Prospectus, the Prospectus, or any
amendment or supplement thereto, or in any Blue Sky Application, in reliance
upon and in conformity with the written information furnished by the
Underwriter to the Company pursuant to Section 13 of this Agreement. The
Underwriter will reimburse any legal fees or other expenses reasonably incurred
by the Company, or any such director, officer, or controlling person in
connection with investigating or defending any such claim, and from any and all
Claims resulting from failure of the Underwriter to deliver a copy of the
Prospectus, if the person asserting such Claim purchased Shares from the
Underwriter and a copy of the Prospectus (as then amended if the Company shall
have amended the
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Prospectus) was not sent or given by or on behalf of the Underwriter to such
person, if required by law so to have been delivered, at or prior to the
written confirmation of the sale of the Shares to such person, and if the
Prospectus (as so amended) would have cured the defect giving rise to such
Claim (unless such failure was due to a failure by the Company to provide
sufficient copies of the Prospectuses (as so amended) to the Underwriter). The
indemnification obligations of the Underwriter as provided above are in
addition to any liabilities any such Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under Section 8(a)
or 8(b) of this Agreement of notice of the commencement of any action in
respect of a Claim, such indemnified party will, if a claim for indemnification
under this Section 8 in respect thereof is to be made against an indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof. In case any such action is brought against any
indemnified party, and such indemnified party notifies an indemnifying party of
the commencement thereof, the indemnifying party will be entitled to
participate in and, to the extent that it may wish, jointly with all other
indemnifying parties, similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party; provided, however,
if the defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to the indemnified party and/or
other indemnified parties that are different from or additional to those
available to the indemnifying party, the indemnified party or parties shall
have the right to select separate counsel to assume such legal defenses and to
otherwise participate in the defense of such action on behalf of such
indemnified party or parties.
(d) Upon receipt of notice from the indemnifying party to such
indemnified party of the indemnifying party's election to assume the defense of
such action and upon approval by the indemnified party of counsel selected by
the indemnifying party, the indemnifying party will not be liable to such
indemnified party under Section 8(a) or 8(b) of this Agreement for any legal
fees or other expenses subsequently incurred by such indemnified party in
connection with the defense thereof, unless:
(i) the indemnified party shall have employed separate counsel
in connection with the assumption of legal defenses in accordance with the
proviso to the last sentence of Section 8(c) of this Agreement (it being
understood, however, that the indemnifying party shall not be liable for the
legal fees and expenses of more than one separate counsel, approved by the
Underwriter, if the Underwriter or its controlling persons are the indemnified
parties);
(ii) the indemnifying party shall not have employed counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after the indemnified party's notice to the
indemnifying party of commencement of the action; or
(iii) the indemnifying party has authorized the employment of
counsel at the expense of the indemnifying party.
(e) To the extent that the indemnification provided for in this
Section 8 is unavailable to an indemnified party or insufficient to hold
harmless an indemnified party under Section 8(a) or 8(b) of this Agreement in
respect of any Claim referred to therein, then each indemnifying party, in lieu
of indemnifying such indemnified party, shall, subject, to the limitations
hereinafter set forth, contribute to the amount paid or payable by such
indemnified party as a result of such Claim:
(i) in such proportion as is appropriate to reflect the
relative benefits received by the indemnifying party on the one hand and the
indemnified party on the other hand from the offering of the Shares; or
(ii) if the allocation provided by Section 8(e)(i) is not
permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in Section 8 (e)(i), but also the
relative fault of the indemnifying party on the one hand and the indemnified
party on the other hand in
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connection with the statements or omissions that resulted in such Claim, as
well as any other relevant equitable considerations.
The respective relative benefits received by the Company on the one
hand and the Underwriter on the other hand in connection with the offering of
the Shares shall be deemed to be in such proportion so that the Underwriter is
responsible for that portion of a Claim represented by the percentage that the
amount of the underwriting discount per share as set forth in Section 4 hereof
bears to the initial public offering price per share appearing on the cover
page of the Prospectus, and the Company (including the Company's directors,
officers, and controlling persons) shall be responsible for the remaining
portion of such Claim.
The relative fault of the Company on the one hand and the Underwriter
on the other hand shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company on the one hand or the Underwriter on the other hand
and the parties' relative intent, knowledge, access to information, and
opportunity to correct or prevent such untrue statement or omission. The amount
paid or payable by a party as a result of the Claims referred to above shall be
deemed to include, subject to the limitations set forth in Sections 8(c) and
8(d) of this Agreement, any legal or other fees or expenses reasonably incurred
by such party in connection with investigating or defending any action or
claim.
(f) The Company and the Underwriter agree that it would not be just
and equitable if contribution pursuant to this Section 8 were determined by pro
rata or per capita allocation or by any other method or allocation that does
not take into account the equitable considerations referred to in Section 8(e)
of this Agreement. Notwithstanding the other provisions of this Section 8, the
Underwriter shall not be required to contribute any amount in excess of the
amount by which the total price at which the Shares underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which the Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
(g) The obligations of the Company and the Underwriter under this
Section 8 shall be in addition to any liability that the Company or the
Underwriter may otherwise have.
SECTION 9. Effective Date. This Agreement shall become effective
immediately upon the execution and delivery hereof by the parties hereto. Such
execution and delivery shall include delivery of an executed copy of this
Agreement by telecopier, facsimile transmission, or other means of transmitting
written documents.
SECTION 10. Termination. Without limiting the right to terminate this
Agreement pursuant to any other provision hereof, the Underwriter, in its
absolute discretion and without any liability on its part, may terminate this
Agreement prior to the First Closing Date, and the Option from the Company
referred to in Section 4 hereof, if exercised, may be cancelled by the
Underwriter, at any time prior to the Second Closing Date, if:
(a) The Company shall have failed, refused, or been unable, at or
prior to such Closing Date, to perform any agreement on its part to be
performed hereunder;
(b) Any condition to the obligations of the Underwriter hereunder is
not fulfilled or satisfied at or prior to the applicable Closing Date;
(c) Any event shall have occurred or shall exist that makes untrue or
incorrect in any material respect any statement or information contained in the
Registration Statement or that is not reflected in the
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Registration Statement but should be reflected therein to make the statements
or information contained therein not misleading in any material respect; or
(d) There shall have occurred any of the following events: (i) trading
in securities generally on or by, as the case may be, any national stock
exchange, the Nasdaq Stock Market, the OTC Bulletin Board, or the
over-the-counter market, shall have been suspended or materially limited, (ii)
governmental restrictions shall have been imposed on trading in securities
generally or minimum or maximum prices shall have been established, (iii)
trading of any securities of the Company, including the Shares, on any national
stock exchange, the Nasdaq Stock Market, the OTC Bulletin Board, or the
over-the-counter market shall have been suspended or materially limited,
whether by reason of a stop order by the Commission or otherwise, (iv) a
general banking moratorium shall have been established by federal or state
authorities, (v) an outbreak or escalation of hostilities, declaration of war,
national emergency, or other national or international calamity or crisis, or
any change in political, financial, or economic conditions shall have occurred
or shall have accelerated to such extent, in the Underwriter's judgment, as to
make it impracticable or inadvisable to market the Shares or to enforce
contracts for the sale of Shares, or (vi) in the case of any of the events
specified in Section 10(d)(i) through Section 10(d)(v), such event, together
with any other event or events, makes it, in the Underwriter's judgment,
impracticable to market the Shares at the time and in the manner contemplated
by the Prospectus.
SECTION 11. Representations and Indemnities to Survive Delivery. The
expense reimbursement, indemnity, and contribution agreements contained in this
Agreement, and the representations, warranties, covenants, and other statements
of the Company and of its directors and officers set forth in or made pursuant
to this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of the Underwriter, the Company, or any of
its or their partners officers, directors, or any controlling person, as the
case may be, and will survive delivery of and payment for the Shares sold
hereunder or any termination or cancellation of this Agreement.
SECTION 12. Notices. All communications hereunder will be in writing
and, if sent to the Underwriter, will be mailed, delivered, or telecopied (with
receipt confirmed) to Xxxxxx Xxxxx & Co., 000 Xxxxx Xxxxxx Xxxxx, Xxxxxx, XX
00000, Attention: W. Xxxxxxxx Xxxxx, President and Chief Executive Officer,
(Fax No. (000) 000-0000) with a copy to Xxxxxxx X. Xxxxxx, Esq., Carlton,
Fields, Xxxx, Xxxxxxxx, Xxxxx & Xxxxxx, P.A., 000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx, Xxxxxxx 00000 (Fax No. (000) 000-0000); and if sent to the
Company will be mailed, delivered, or telecopied (with receipt confirmed) to
the Company at 0000 Xxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxx 00000,
Attention: Xxxx X. Xxxxxxxx, President and Chief Executive Officer, (Fax No.
(941) _________) with a copy to Xxxx X. Xxxxxxx, Esquire, Smith, Mackinnon,
Greeley, Bowdoin & Xxxxxxx, P.A., Suite 800, Citrus Center, 000 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxx, Xxxxxxx 00000, (Fax No. (000) 000-0000).
SECTION 13. Representations and Warranties of the Underwriter. The
Underwriter represents and warrants to the Company that the information set
forth (a) in the [FIRST PARAGRAPH ON PAGE 2] of the Prospectus relating to
stabilization, and (b) in the [THIRD AND NINTH PARAGRAPHS] of the section in
the Prospectus entitled "Underwriting," constitutes the only written
information furnished to the Company by and on behalf of the Underwriter
expressly for use in connection with the preparation of the Registration
Statement, and is correct and complete in all material respects and does not
include any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading.
SECTION 14. Successors. This Agreement has been made and is made
solely for the benefit of the Underwriter, the Company, and their respective
successors and assigns, directors and officers (and their personal
representatives), and controlling persons referred to in Section 8, and no
other person shall have any right or obligation hereunder. The term "successors
or assigns", as used in this Agreement, shall not include any purchaser of the
Shares from the Underwriter merely by reason of such purchase.
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SECTION 15. Partial Unenforceability. If any section, subsection,
clause, or provision of this Agreement is for any reason determined to be
invalid or unenforceable, such determination shall not affect the validity or
enforceability of any other section, subsection, clause, or provision hereof.
SECTION 16. Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida without reference
to conflict of law principles thereunder.
SECTION 17. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us the enclosed counterparts hereof,
whereupon it will become a binding agreement among the Company, and the
Underwriter in accordance with its terms.
Very truly yours,
SUNCOAST BANCORP, INC.
By:
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Title:
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Accepted as of the date hereof:
XXXXXX XXXXX & CO.
By:
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Title:
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