Shares Provident Financial Holdings, Inc. Common Stock $.01 Par Value Per Share Underwriting Agreement
|
Exhibit
1.1
|
____________
Shares
Provident
Financial Holdings, Inc.
Common
Stock
$.01 Par Value Per
Share
______,
2009
Sandler
X’Xxxxx & Partners, L.P.,
as Representative of the Several Underwriters
000 Xxxxx
Xxxxxx, 0xx
Xxxxx
Xxx Xxxx,
XX 00000
Ladies
and Gentlemen:
Provident
Financial Holdings, Inc., a Delaware corporation (the “Company”), proposes,
subject to the terms and conditions stated herein, to issue and sell to Sandler
X’Xxxxx & Partners, L.P. (“Sandler X’Xxxxx” or an “Underwriter”) and each of
the other underwriters named in Schedule I hereto
(collectively, the “Underwriters,” which term shall also include any underwriter
substituted as hereinafter provided in Section 11 hereof), for whom Sandler
X’Xxxxx is acting as representative (in such capacity, the “Representative”)
with respect to (i) the sale by the Company, and the purchase by the
Underwriters, acting severally and not jointly, of an aggregate of _________
shares of common stock, $.01 par value per share, of the Company (the “Common
Stock”), as set forth in Schedule I
hereto (the “Firm Shares”) and (ii) the grant by the Company to the
Underwriters, acting severally and not jointly, of the option described in
Section 2 hereof to purchase all or any part of ________ additional shares
of Common Stock (the “Optional Shares”) to cover over-allotments, if any (the
Firm Shares and the Optional Shares that the Underwriters elect to purchase
pursuant to Section 2 hereof being collectively called the
“Shares”).
The
Company has filed with the Securities and Exchange Commission (the “Commission”)
a registration statement on Form S-1 (No. 333-162415) covering the
registration of the Shares under the Securities Act of 1933, as amended (the
“Act”), including a related prospectus, which has become effective. The
registration statement (including the exhibits thereto and schedules thereto, if
any) as amended at the time it became effective, or, if a post-effective
amendment has been filed with respect thereto, as amended by such post-effective
amendment at the time of its effectiveness (including in each case the
information (if any) deemed to be part of such registration statement at the
time of effectiveness pursuant to Rule 430A under the Act), is hereinafter
referred to as the “Registration Statement.” The term “Effective Date” shall
mean each date that the Registration Statement and any post-effective amendment
or amendments thereto became or become effective. Promptly after execution and
delivery of this Agreement, the Company will prepare and file a prospectus in
accordance with the provisions of Rule 430A (“Rule 430A”) under the Act and
paragraph (b) of Rule 424 (“Rule 424(b)”) under the Act. The
information included in such prospectus that was omitted from such registration
statement at the
time it
became effective but that is deemed to be part of such registration statement at
the time it became effective pursuant to paragraph (b) of Rule 430A is referred
to as “Rule 430A Information.” Each prospectus used before such
registration statement became effective, and any prospectus that omitted the
Rule 430A Information, that was used after such effectiveness and prior to the
execution and delivery of this Agreement, is herein called, together with the
documents incorporated therein, a “Preliminary Prospectus.” Any
registration statement filed pursuant to Rule 462(b) under the Act is herein
referred to as the “Rule 462(b) Registration Statement,” and after such
filing the term “Registration Statement” shall include the Rule 462(b)
Registration Statement. The final prospectus, including the documents
incorporated therein by reference, in the form first furnished to the
Underwriters for use in connection with the offering of the Shares is herein
called the “Prospectus.”
Any
reference in this Agreement to the Registration Statement, any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to General Instruction VII
of Form S-1 under the Act, as of the Effective Date or the date of such
Preliminary Prospectus or the Prospectus, as the case may be. For purposes of
this Agreement, all references to the Registration Statement, any Preliminary
Prospectus, or the Prospectus or any amendment or supplement to any of the
foregoing shall be deemed to include the copy filed with the Commission pursuant
to its Electronic Data Gathering, Analysis and Retrieval system
(“XXXXX”).
All
references in this Agreement to financial statements and schedules and other
information which is “contained,” “included” or “stated” in the Registration
Statement, any Preliminary Prospectus or the Prospectus (or other references of
like import) shall be deemed to mean and include all such financial statements
and schedules and other information that is incorporated by reference in the
Registration Statement, any Preliminary Prospectus or the Prospectus, as the
case may be.
1. (a) The
Company represents and warrants to, and agrees with, the Underwriters
that:
(i) The
Company satisfies the registrant eligibility requirements to incorporate
information in the Form S-1 under the Act set forth in General Instruction VII
to such form; the Company has filed with the Commission the Registration
Statement on such Form for registration under the Act of the offering and sale
of the Shares, and the Company may have filed with the Commission one or more
amendments to such Registration Statement, each in the form previously delivered
to the Underwriters. Such Registration Statement, as so amended, has been
declared effective by the Commission, and the Shares have been registered under
the Registration Statement in compliance with the requirements for the use of
Form S-1. The Company has complied, to the Commission’s satisfaction,
with all requests of the Commission for additional or supplemental information;
and no stop order suspending the effectiveness of the Registration Statement has
been issued and no proceeding for that purpose has been initiated or, to the
knowledge of the Company, threatened by the Commission. If the
Company has elected to rely on Rule 462(b) and the Rule 462(b) Registration
Statement is not effective, (x) the Company will file a Rule 462(b)
Registration Statement in compliance with, and that is effective upon filing
pursuant to, Rule 462(b) and (y) the Company has given irrevocable
instructions for transmission of the applicable filing fee in connection with
the filing of the Rule 462(b)
2
(ii) No
order preventing or suspending the use of any Preliminary Prospectus or
Prospectus has been issued by the Commission, and each Preliminary Prospectus or
Prospectus, at the time of filing thereof, conformed in all material respects to
the requirements of the Act and the rules and regulations of the Commission
thereunder and did not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions made
in reliance upon and in conformity with information furnished in writing to the
Company by the Underwriters expressly for use therein:
As used in the subsection and elsewhere
in this Agreement.
“Applicable Time” means 7:00 p.m.
(Eastern Time) on _______, 2009.
“General Disclosure Package” means
(i) the Preliminary Prospectus, if any, used most recently prior to the
Time of Delivery, (ii) the Issuer-Represented Free Writing Prospectuses, if
any, identified in Schedule II
hereto and (iii) any other Free Writing Prospectus that the parties hereto
shall hereafter expressly agree in writing to treat as part of the “General
Disclosure Package.”
“Issuer-Represented Free Writing
Prospectus” means any “issuer free writing prospectus,” as defined in
Rule 433 of the 1933 Act Regulations (“Rule 433”), relating to the
Shares that (i) is required to be filed with the Commission by the Company
or (ii) is exempt from filing pursuant to Rule 433(d)(5)(i) because it
contains a description of the Shares or of the offering that does not reflect
the final terms, in each case in the form filed or required to be filed with the
Commission or, if not required to be filed, in the form retained in the
Company’s records pursuant to Rule 433(g).
Each
Issuer-Represented Free Writing Prospectus, when considered together with the
General Disclosure Package as of the Applicable Time, did not contain any untrue
statement of material fact or omit to state a material fact necessary to make
the statements therein, in light of the circumstances in which they were made,
not misleading and, did not, does not and will not include any information that
conflicted, conflicts or will conflict with the information contained in the
Registration Statement or the Prospectus, including any document incorporated by
reference therein and any preliminary or other prospectus deemed to be a part
thereof that, in each case, has not been superseded or modified;
(iii) The
Preliminary Prospectus, the Prospectus and each Issuer-Represented Free Writing
Prospectus when filed, if filed by electronic transmission, pursuant to XXXXX
(except as may be permitted by Regulation S-T under the Act), was identical
to the copy thereof delivered to the Underwriters for use in connection with the
offer and sale of the Shares; the Registration Statement conforms, and the
Prospectus and any further amendments or supplements to the Registration
Statement or the Prospectus will conform, in all material respects
3
(iv) The
documents which are incorporated or deemed to be incorporated by reference in
the Registration Statement or any Preliminary Prospectus or the Prospectus or
from which information is so incorporated by reference (the “Exchange Act
Reports”), when they became effective or were filed with the Commission, as the
case may be (or, if an amendment with respect to any such documents was filed or
became effective, when such amendment was filed or became effective), complied
in all material respects with the requirements of the Securities Exchange Act of
1934, as amended (the “Exchange Act”), and the rules and regulations of the
Commission thereunder, and, when read together with the other information in the
Prospectus, at the time the Registration Statement became effective, at the time
the Prospectus was issued, at the Applicable Time and at any Time of Delivery
(as defined below) did not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading;
(v) The
financial statements, including the related schedules and notes, filed with the
Commission as a part of the Registration Statement and included or incorporated
by reference in the Preliminary Prospectus and the Prospectus (the “Financial
Statements”) present fairly the consolidated financial position of the Company
and its subsidiaries as of and at the dates indicated and the results of their
operations and cash flows for the periods specified; such Financial Statements,
unless otherwise noted therein have been prepared in conformity with generally
accepted accounting principles as applied in the United States (“GAAP”) applied
on a consistent basis throughout the periods involved; no other financial
statements or supporting schedules are required to be included in the
Registration Statement, the Preliminary Prospectus and the Prospectus; the
financial data set forth in the Prospectus under the caption “Summary Selected
Consolidated Financial Information” (or the equivalent thereof) fairly present
the information therein on a basis consistent with that of the audited or
unaudited financial statements, as the case may be, incorporated by reference in
the Registration Statement, the Preliminary Prospectus and the Prospectus; to
the extent applicable, all disclosures contained in the Prospectus regarding
“non-GAAP financial measures” as such term is defined by the rules and
regulations of the Commission comply with Regulation G of the Exchange Act,
the rules and regulations promulgated by the Commission thereunder and
Item 10 of Regulation S-K under the Act;
(vi) Deloitte
& Touche LLP, the independent registered public accounting firm that
certified the financial statements of the Company and its subsidiaries, that are
included in or incorporated by reference into the Registration Statement and the
Prospectus is an independent registered public accounting firm as required by
the Act and the rules and regulations of the
4
(vii) The
statistical and market related data contained or incorporated by reference in
the Prospectus and Registration Statement are based on or derived from sources
which the Company is entitled to use and which the Company believes are reliable
and accurate;
(viii) This
Agreement has been duly authorized, executed and delivered by the
Company;
(ix) Since
the date of the latest audited financial statements included or incorporated by
reference in the Registration Statement and the Prospectus, (A) neither the
Company nor any of its subsidiaries has sustained any material loss or
interference with its business from fire, explosion, flood, wind or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus, and, there has not been any material change in
the capital stock or long-term debt of the Company or any of its subsidiaries or
any material adverse change, or any development known to the Company that may
reasonably be expected to cause a prospective material adverse change, in or
affecting the general affairs, management, earnings, business, properties,
assets, consolidated financial position, business prospects, stockholders’
equity or results of operations of the Company and its subsidiaries considered
as one enterprise, whether or not arising in the ordinary course of business and
there has been no effect with respect to the Company and its subsidiaries
considered as one enterprise, which would prevent, or be reasonably likely to
prevent, the Company from consummating the transactions contemplated by this
Agreement (a “Material Adverse Effect”), (B) there have been no
transactions entered into by the Company or any of its subsidiaries, other than
those in the ordinary course of business, which are material with respect to the
Company and its subsidiaries considered as one enterprise otherwise than as set
forth by the Registration Statement and Prospectus, and (C) there has been no
dividend or distribution of any kind declared, paid or made by the Company on
any class of its capital stock, otherwise than as set forth or contemplated in
the Registration Statement and the Prospectus;
(x) The
Company and its subsidiaries have good and marketable title in fee simple to all
real property and good and marketable title to all personal property owned by
them, in each case free and clear of all mortgages, pledges, security interests,
claims, restrictions, liens, encumbrances and defects except such as are
described in the Registration Statement and the Prospectus or would not
reasonably be expected to result in a Material Adverse Effect; and any real
property and buildings held under lease by the Company and its subsidiaries are
held by them under valid, subsisting and enforceable leases with such exceptions
as would not reasonably be expected to result in a Material Adverse Effect, and
neither the Company nor any subsidiary has any written, or to the Company’s
knowledge, oral notice of any material claim of any sort that has been asserted
by any party adverse to the rights of the Company or any subsidiary under any of
the leases or subleases mentioned above, or affecting or questioning the rights
of the Company or such subsidiary to the continued possession of the leased or
subleased
5
(xi) The
Company is a registered unitary savings and loan holding company under the Home
Owners Loan Act of 1933, as amended (“HOLA”), with respect to Provident Savings
Bank, F.S.B. (the “Bank”) and has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware, with
the corporate power and authority to own, lease and operate its properties and
to conduct its business as described in the Registration Statement and the
Prospectus and to enter into and perform its obligations under this Agreement;
the Company is duly qualified as a foreign corporation to transact business and
is in good standing in each other jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify or to be in good
standing would not reasonably be expected to result in a Material Adverse
Effect;
(xii) Each
subsidiary of the Company has been duly incorporated, chartered or organized, as
the case may be, and is validly existing as a corporation, limited liability
company, trust company, statutory business trust or bank in good standing under
the laws of the jurisdiction of its incorporation, chartering or organization
and has the corporate, company or trust power and authority to own, lease and
operate its properties and to conduct its business as described in the
Registration Statement and the Prospectus and, in the case of the Bank, to enter
into and perform its obligations under this Agreement; each subsidiary of the
Company is duly qualified as a foreign entity to transact business and is in
good standing in each other jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except for such jurisdictions where the failure to so
qualify, or be in good standing, would not, individually or in the aggregate,
result in a Material Adverse Effect; all of the issued and outstanding shares of
capital stock or ownership interests, as the case may be, of each subsidiary of
the Company are owned by the Company, directly or through subsidiaries, and the
issued and outstanding capital stock of each subsidiary that is a corporation
has been duly authorized and validly issued, is fully paid and is nonassessable;
the Company owns, directly or through subsidiaries listed in Exhibit 21.1 to the
Company’s Annual Report on Form 10-K for the fiscal year ended June 30, 2009,
the issued and outstanding capital stock of each subsidiary free and clear of
any security interest, mortgage, pledge, lien, encumbrance or claim; the Company
does not own or control, directly or indirectly, any corporation, association or
other entity other than the subsidiaries disclosed in the Registration
Statement, the General Disclosure Package and the Prospectus; none of the
outstanding shares of capital stock or other equity interest of any subsidiary
was issued in violation of the preemptive or similar rights of any security
holder or equity holder of such subsidiary; the activities of the subsidiaries
of the Bank are permitted to subsidiaries of a federal savings bank; and the
deposit accounts of the Bank are insured up to the applicable limits by the
Federal Deposit Insurance Corporation (the “FDIC”);
(xiii) The
Company has an authorized capitalization as set forth in the Prospectus under
the heading “Capitalization,” and all of the issued shares of capital stock of
the Company have been duly authorized and validly issued, are fully paid and
non-assessable and have been issued in compliance with applicable federal and
state securities laws; none of the outstanding shares of Stock were issued in
violation of any preemptive rights, rights of first refusal or other
6
(xiv) The
unissued Shares to be issued and sold by the Company to the Underwriters
hereunder have been duly authorized and, when issued and delivered against
payment therefor as provided herein, will be validly issued and fully paid and
non-assessable and will conform to the description of the Common Stock contained
in the Registration Statement and the Prospectus and the issuance of the Shares
is not subject to the preemptive or other similar rights of any security holder
of the Company;
(xv) Except
as described in the Registration Statement and the Prospectus, (A) there
are no outstanding rights (contractual or otherwise), warrants or options to
acquire, or instruments convertible into or exchangeable for, or agreements or
understandings with respect to the sale or issuance of, any shares of capital
stock of or other equity interest in the Company; and (B) there are no
contracts, agreements or understandings between the Company and any person
granting such person the right to require the Company to file a Registration
Statement under the Act or otherwise register any securities of the Company
owned or to be owned by such person;
(xvi) The
issue and sale of the Shares by the Company and the performance by the Company
of all of its obligations under this Agreement and the consummation of the
transactions herein contemplated have been duly authorized by all necessary
corporate action and do not and will not, whether with or without the giving of
notice or passage of time or both, conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default or
result in a Repayment Event (as defined below) under, any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the Company or any of
its subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, nor will such action result in
any violation of the provisions of the certificate of incorporation, charter (as
applicable) or bylaws of the Company or any of its subsidiaries or any statute
or any order, rule or regulation of any federal, state, local or foreign court,
arbitrator, regulatory authority or governmental agency (each a “Governmental
Entity”) or body having jurisdiction over the Company or any of its subsidiaries
or any of their properties, except for these conflicts, breaches, violations,
defaults or Repayment Events that would not reasonably be expected to result in
a Material Adverse Effect; and no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental agency
or body is required for the issue and sale of the Shares, the performance by the
Company of its obligations hereunder or the consummation by the Company of the
transactions contemplated by this Agreement, except the registration under the
Act of the Shares and except as may be required under the rules and regulations
of the Nasdaq Global Select Market or the Financial Industry Regulatory
Authority (“FINRA”) and such consents, approvals, authorizations, registrations
or qualifications as may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the Shares by the Underwriters.
As used herein, a “Repayment Event” means any event or condition that gives the
7
(xvii) Neither
the Company nor any of its subsidiaries is in violation of its certificate of
incorporation or charter (as applicable) or bylaws or in default in the
performance or observance of any obligation, agreement, covenant or condition
contained in any indenture, mortgage, deed of trust, loan or credit agreement,
note, lease or other agreement or instrument to which it is a party or by which
it or any of its properties may be bound or to which any of the property or
assets of the Company or any subsidiary is subject except for such defaults that
would not reasonably be expected to result in a Material Adverse
Effect;
(xviii) The
statements set forth in the Prospectus under the caption “Description of Capital
Stock,” insofar as they purport to constitute a summary of the terms of the
capital stock of the Company, and under the caption “Underwriting,” insofar as
they purport to describe the provisions of the laws and documents referred to
therein, are accurate and complete;
(xix) Except
as disclosed in the Registration Statement and the Prospectus, the Company and
its subsidiaries are conducting their respective businesses in compliance in all
material respects with all federal, state, local and foreign statutes, laws,
rules, regulations, decisions, directives and orders applicable to them
(including, without limitation, all regulations and orders of, or agreements
with, the Office of Thrift Supervision (the “OTS”) and the FDIC, the Equal
Credit Opportunity Act, the Fair Housing Act, the Community Reinvestment Act,
the Home Mortgage Disclosure Act, all other applicable fair lending laws or
other laws relating to discrimination and the Bank Secrecy Act and Title III of
the USA PATRIOT Act), and neither the Company nor any of its subsidiaries has
received any written, or to the Company’s knowledge, oral communication from any
Governmental Entity asserting that the Company or any of its subsidiaries is not
in compliance with any statute, law, rule, regulation, decision, directive or
order in each case where the failure to so comply would reasonably be expected
to have a Material Adverse Effect;
(xx) Except
as disclosed in the Registration Statement and the Prospectus, there are no
legal or governmental actions or suits, investigations, inquiries or proceedings
before or by any court or Government Entity, now pending or, to the knowledge of
the Company, threatened or contemplated, to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any of its
subsidiaries is the subject (A) that is required to be disclosed in the
Registration Statement by the Act or by the rules and regulations of the
Commission thereunder and not disclosed therein or (B) which, if determined
adversely to the Company or any of its subsidiaries, would, individually or in
the aggregate, have a Material Adverse Effect; and there are no contracts or
documents of the Company or any of its subsidiaries that are required to be
described in the Registration Statement or to be filed as exhibits thereto by
the Act or by the rules and regulations of the Commission thereunder which have
not been so described and filed;
(xxi) Each
of the Company and its subsidiaries possess all permits, licenses, approvals,
consents and other authorizations (collectively, “Governmental Licenses”), and
has
8
(xxii) Except
as described in the Prospectus and except as would not, singly or in the
aggregate, reasonably be expected to result in a Material Adverse Effect,
(A) neither the Company nor any of its subsidiaries is in violation in any
material respect of any federal, state or local statute, law, rule, regulation,
ordinance, code, policy or rule of common law or any judicial or administrative
interpretation thereof, including any judicial or administrative order, consent,
decree or judgment, relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife, including, without
limitation, laws and regulations relating to the release or threatened release
of chemicals, pollutants, contaminants, wastes, toxic substances, hazardous
substances, petroleum or petroleum products, asbestos-containing materials or
mold (collectively, “Hazardous Materials”) or to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
Hazardous Materials (collectively, “Environmental Laws”), (B) the Company
and its subsidiaries have all permits, authorizations and approvals required
under any applicable Environmental Laws and are each in compliance with their
requirements, and (C) there are no pending or, to the Company’s knowledge,
threatened administrative, regulatory or judicial actions, suits, demands,
demand letters, claims, liens, notices of noncompliance or violation,
investigation or proceedings relating to any Environmental Law against the
Company or any of its subsidiaries;
(xxiii) The
Company and each of its subsidiaries own or possess adequate rights to use or
can acquire on reasonable terms ownership or rights to use all material patents,
patent applications, patent rights, licenses, trademarks, service marks, trade
names, trademark registrations, service xxxx registrations, copyrights, know-how
(including trade secrets and other unpatented and/or unpatenable property or
confidential information, systems or procedures and excluding generally
commercially available “off the shelf” software programs licensed pursuant to
shrink wrap or “click and accept” licenses) and licenses (collectively,
“Intellectual Property”) necessary for the conduct of their respective
businesses, except where the failure to own or possess such rights would not,
individually or in the aggregate, reasonably be expected to result in a Material
Adverse Effect, and have no reason to believe that the conduct of their
respective businesses will conflict with, and have not received any notice of
any claim of infringement or conflict with, any such rights of others or any
facts or circumstances that would render any
9
(xxiv) No
relationship, direct or indirect, exists between or among the Company or any of
its subsidiaries on the one hand, and the directors, officers, shareholders,
customers or suppliers of the Company or any of its subsidiaries on the other
hand, which is required to be described in the Registration Statement and the
Prospectus by the Act or by the rules and regulations of the Commission
thereunder which has not been so described;
(xxv) The
Company is not and, after giving effect to the offering and sale of the Shares
and after receipt of payment for the Shares and the application of such proceeds
as described in the Prospectus, will not be an “investment company” or an entity
“controlled” by an “investment company,” as such terms are defined in the
Investment Company Act of 1940, as amended (the “Investment Company
Act”);
(xxvi) There
is and has been no failure on the part of the Company or any of the Company’s
directors or officers, in their capacities as such, to comply in all material
respects with any provision of the Xxxxxxxx-Xxxxx Act and the rules and
regulations promulgated in connection therewith, including Section 402
related to loans and Sections 302 and 906 related to
certifications;
(xxvii) Neither
the Company nor any of its subsidiaries, nor, to the knowledge of the Company,
any affiliates of the Company or its subsidiaries, has taken or will take,
directly or indirectly, any action designed to or that would reasonably be
expected to cause or result in stabilization or manipulation of the price of the
Common Stock to facilitate the sale or resale of the Shares;
(xviii)
Neither the Company nor any of its subsidiaries nor, to
the Company’s knowledge, any director, officer, employee or agent or other
person associated with or acting on behalf of the Company or any of its
subsidiaries has (A) used any corporate funds for any unlawful
contribution, gift, entertainment or other unlawful expense relating to
political activity; (B) made any direct or indirect unlawful payment to any
foreign or domestic government official or employee from corporate funds;
(C) violated or is in violation of any provision of the Foreign Corrupt
Practices Act of 1977; or (D) made any bribe, rebate, payoff, influence
payment, kickback or other unlawful payment;
(xxix) The
Company and each of its subsidiaries maintains a system of internal accounting
controls sufficient to provide reasonable assurances that (A) transactions
are executed in accordance with management’s general or specific authorization;
(B) transactions are recorded as necessary to permit preparation of
financial statements in conformity with GAAP and to maintain accountability for
assets; (C) access to assets is permitted only in accordance with
management’s general or specific authorization; and (D) the recorded
accountability for assets is compared with existing assets at reasonable
intervals and appropriate action is taken with respect to any differences. Since
the end of the Company’s most recent audited fiscal year, there has
10
(xxx) The
Company has established and maintains disclosure controls and procedures (as
such term is defined in Rule 13a-15(e) and 15d-15(e) under the Exchange
Act), that (A) are designed to ensure that information required to be
disclosed by the Company in the reports that it files or submits under the
Exchange Act is recorded, processed, summarized and reported within the time
periods specified in the Commission’s rules and forms and that material
information relating to the Company and its consolidated subsidiaries is made
known to the Company’s principal executive officer and principal financial
officer by others within the Company and its subsidiaries to allow timely
decisions regarding disclosure, and (B) are effective in all material
respects to perform the functions for which they were established. Based on the
evaluation of the Company’s disclosure controls and procedures described above,
the Company is not aware of (x) any significant deficiency in the design or
operation of internal controls which would adversely affect the Company’s
ability to record, process, summarize and report financial data or any material
weaknesses in internal controls or (y) any fraud, whether or not material,
that involves management or other employees who have a significant role in the
Company’s internal controls. Since the most recent evaluation of the Company’s
disclosure controls and procedures described above, there have been no
significant changes in internal controls or in other factors that could
significantly affect internal controls;
(xxxi) Except
as described in the Registration Statement, General Disclosure Package and
Prospectus, neither the Company nor any of its subsidiaries is subject or is
party to, or has received any notice or advice that any of them may become
subject or party to any investigation with respect to, any corrective,
suspension or cease-and-desist order, agreement, memorandum of understanding,
consent agreement or other regulatory enforcement action, proceeding or order
with or by, or is a party to any commitment letter or similar undertaking to, or
is subject to any directive by, or has been a recipient of any supervisory
letter from, or has adopted any board resolutions at the request of, any
Governmental Entity charged with the supervision or regulation of depository
institutions or engaged in the insurance of deposits or the supervision or
regulation of the Company or any of its subsidiaries that currently relates to
or restricts in any material respect their business or their management (each, a
“Regulatory Agreement”), nor has the Company or any of its subsidiaries been
advised by any such Governmental Entity that it is considering issuing or
requesting any such Regulatory Agreement; there is no unresolved violation,
criticism or exception by any such Governmental Entity with respect to any
report or statement relating to any examinations of the Company or any of its
subsidiaries which, in the reasonable judgment of the Company, currently results
in or is reasonably expected to result in a Material Adverse
Effect;
(xxxii) Any
“employee benefit plan” (as defined under the Employee Retirement Income
Security Act of 1974, as amended, and the regulations and published
interpretations thereunder (collectively, “ERISA”)) established or maintained by
the Company, its subsidiaries or their “ERISA Affiliates” (as defined below) are
in compliance with ERISA, except where the failure to be in compliance with
ERISA would not result in a Material Adverse Effect; “ERISA
11
(xxxiii) The
Company and its subsidiaries, taken as a whole, are insured by insurers of
recognized financial responsibility against such losses and risks and in such
amounts as are prudent and customary in the business in which they are engaged;
and neither the Company nor any of its subsidiaries has any reason to believe
that it will not be able to renew its existing insurance coverage from similar
insurers as may be necessary to continue its business at a cost that would not
have a Material Adverse Effect; neither the Company nor any subsidiary has been
denied any insurance coverage that it has sought or for which it has
applied;
(xxxiv) Except
as disclosed in the Registration Statement and the Prospectus, there are no
contracts, agreements or understandings between the Company and any person that
would give rise to a valid claim against the Company, or the Underwriter, for a
brokerage commission, finder’s fee or other like payment;
(xxxv) The
Company and its consolidated subsidiaries and its other subsidiaries have filed
all necessary federal, state, local and foreign income and franchise tax returns
or have properly requested extensions thereof, all such tax returns are true,
complete and correct and have paid all taxes required to be paid by any of them
except for any such tax assessment, fee or penalty being contested in good faith
as would not reasonably be expected to result in a Material Adverse Effect; the
Company has made adequate charges, accruals and reserves in the applicable
financial statements referred to in Section 1(a)(v) above in respect of all
federal, state and foreign income and franchise taxes for all periods as to
which the tax liability of the Company or any of its consolidated subsidiaries
or any of its other subsidiaries has not been finally determined;
(xxxvi) No
labor dispute with the employees of the Company or any subsidiary exists or, to
the knowledge of the Company, is imminent, which, in any case, may reasonably be
expected to result in a Material Adverse Effect;
12
(xxxvii) Except
as disclosed in the Registration Statement and the Prospectus, the operations of
the Company and its subsidiaries are and have been conducted at all times in
compliance in all material respects with applicable financial record keeping and
reporting requirements of the Currency and Foreign Transactions Reporting Act of
1970, as amended, money laundering statutes applicable to the Company and its
subsidiaries, the rules and regulations thereunder and any related or similar
rules, regulations or guidelines, issued, administered or enforced by any
governmental agency (collectively, the “Money Laundering Laws”);
(xxxviii)
The Registration Statement is not the subject of a pending proceeding or
examination under Section 8(d) or 8(e) of the Act, and the Company is not the
subject of a pending proceeding under Section 8A of the Act in connection
with the offering of the Shares;
(xl) The
Company has not distributed and, prior to the later to occur of (i) the
Time of Delivery, as hereinafter defined, and (ii) completion of the
distribution of the Shares, will not distribute any prospectus (as such term is
defined in the Act and the rules and regulations promulgated by the Commission
thereunder) in connection with the offering and sale of the Shares other than
the Registration Statement, any Preliminary Prospectus, the Prospectus or other
materials, if any, permitted by the Act or by the rules and regulations
promulgated by the Commission thereunder and approved by the
Underwriters;
(xli) No
forward-looking statement (within the meaning of Section 27A of the Act and
Section 21E of the Exchange Act) contained in the Registration Statement, the
Prospectus and any Issuer-Represented Free Writing Prospectus has been made or
reaffirmed without a reasonable basis or has been disclosed other than in good
faith;
(xlii) Each
of the Company’s executive officers and directors, in each case as listed on
Schedule III
hereto, has executed and delivered a lock-up agreement substantially in the form
of Exhibit B;
(xliii) Neither
the Company nor any of its subsidiaries has participated in any reportable
transaction, as defined in Treasury
Regulation Section 1.6011-(4)(b)(1);
(xliv) Each
of the securities held by the Company and the Bank are marketable (except
securities sold under repurchase agreements or held in any fiduciary or agency
capacity) free and clear of any lien, claim, charge, option, encumbrance,
mortgage, pledge or security interest or other restriction of any kind, except
to the extent such securities are pledged in the ordinary course of business to
secure obligations of the Company or any of its subsidiaries and except for such
defects in title or liens, claims, charges, options, encumbrances, mortgages,
pledges or security interests or other restrictions of any kind that would not
reasonably be expected to result in a Material Adverse Effect. Such securities
are valued on the books of the Company and its subsidiaries in accordance with
GAAP;
(xlv) Any
and all material swaps, caps, floors, futures, forward contracts, option
agreements (other than employee stock options) and other derivative financial
instruments, contracts or arrangements, whether entered into for the account of
the Company or one of its subsidiaries or for the account of a customer of the
Company or one of its
13
(xlvi) Except
as disclosed in the Registration Statement and the Prospectus, there are no
material off-balance sheet transactions, arrangements, obligations (including
contingent obligations) or any other relationships with unconsolidated entities
or other persons, that would reasonably be expected to result in a Material
Adverse Effect;
(xlvii) At
the time of filing the Registration Statement relating to the Shares and at the
date hereof, the Company was not and is not an “ineligible issuer,” as defined
in Rule 405 of the Act;
(b) The
Bank represents and warrants to, and agrees with, the Underwriters
that:
(i) The Bank has been duly chartered and is validly existing as a federal savings bank in good standing under the laws of the jurisdiction of its organization, with the corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus and to enter into and perform its obligations under this Agreement; the Bank is duly qualified as a foreign corporation to transact business and is in good standing in each other jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify or to be in good standing would not reasonably be expected to result in a Material Adverse Effect;
(ii) Neither
the Bank nor any of its subsidiaries, is in violation of its charter or bylaws
or in default in the performance or observance of any obligation, agreement,
covenant or condition contained in any indenture, mortgage, deed of trust, loan
agreement, note, lease or other agreement or instrument to which it is a party
or by which it or any of its properties may be bound or to which its property or
assets or that of any of its subsidiaries is subject except for such defaults
that would not result in a Material Adverse Effect;
(iii) This Agreement has
been duly authorized, executed and delivered by the Bank; and
(iv) The execution, delivery and
performance of this Agreement by the Bank and the compliance by the Bank with
all of the provisions of this Agreement and the consummation of the transactions
herein contemplated have been duly authorized by all necessary corporate action
and do not and will not, whether with or without the giving of notice or passage
of time or both, conflict with or result in a breach or violation of any of the
terms or
14
provisions
of, or constitute a default or result in a Repayment Event under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Bank or any of its subsidiaries is a party or by which the Bank or any
of its subsidiaries is bound or to which any of the property or assets of the
Bank or any of its subsidiaries is subject, nor will such action result in any
violation of the provisions of the charter or bylaws of the Bank or any statute
or any order, rule or regulation of any Governmental Entity having jurisdiction
over the Bank or any of its subsidiaries or any of their respective properties,
except for those conflicts, breaches, violations, defaults or Repayment Events
that would not result in a Material Adverse Effect.
(c) Any
certificate signed by an officer of the Company or the Bank and delivered to the
Underwriters or to counsel for the Underwriters shall be deemed to be a
representation and warranty by the Company or the Bank, as the case may be, to
the Underwriters as to the matters set forth therein.
2. Subject
to the terms and conditions herein set forth, (a) the Company agrees to
issue and sell to the Underwriters, and the Underwriters agree, to purchase from
the Company the Firm Shares at the purchase prices per Share as set forth in
Schedule I
hereto and (b) in the event and to the extent that any of the Underwriters
shall exercise the option to purchase Optional Shares as provided below, the
Company agrees to issue and sell to such Underwriter, and such Underwriter
agrees to purchase from such Company, at a purchase price per share of $_____,
the Optional Shares.
Subject
to the terms and conditions herein set forth, the Company hereby grants to the
Underwriters the right to purchase at their election up to ______ Optional
Shares, at the purchase price per share set forth in clause (b) of the
paragraph above, for the sole purpose of covering sales of shares in excess of
the number of Firm Shares. Any such election to purchase Optional Shares may be
exercised only once by written notice from the Representative to the Company,
given within a period of 30 calendar days after the date of this Agreement,
setting forth the aggregate number of Optional Shares to be purchased, the
number of Optional Shares to be purchased by each Underwriter and the date on
which such Optional Shares are to be delivered, as determined by the
Underwriters but in no event earlier than the First Time of Delivery (as defined
in Section 4 hereof) or, unless the Underwriters and the Company otherwise
agree in writing, no earlier than two or later than ten business days after the
date of such notice.
3. Upon
the authorization by the Company of the release of the Firm Shares, the
Underwriters propose to offer the Firm Shares for sale upon the terms and
conditions set forth in the Prospectus.
4. (a) The
Shares to be purchased by the Representative hereunder, in definitive form, and
in such authorized denominations and registered in such names as the
Representative may request upon at least 48 hours” prior notice to the Company,
shall be delivered by or on behalf of the Company to the Representative through
the facilities of the Depository Trust Company (“DTC”), for the account of the
Representative, against payment by or on behalf of the Representative of the
purchase price therefor by wire transfer of Federal (same day) funds to the
account specified by the Company to the Representative at least 48 hours in
advance. The Company will cause the certificates representing the Shares to be
made available for checking
15
(b) The
documents to be delivered at each Time of Delivery by or on behalf of the
parties hereto pursuant to Section 7 hereof, including the cross receipt
for the Shares and any additional documents requested by the Representative
pursuant to Section 7(l) hereof, will be delivered at the offices of Xxxxxxxxxx
Xxxxxxxx LLP, 000 00xx Xxxxxx,
X.X., Xxxxx 000, Xxxxxxxxxx, X.X. 00000, or such other place upon which the
Representative and the Company may agree (the “Closing Location”), and the
Shares will be delivered at the Designated Office, all at such Time of
Delivery.
5. The
Company agrees with the Underwriters:
(a) To
prepare the Prospectus in a form approved by the Representative containing
information previously omitted at the time of effectiveness of the Registration
Statement in reliance on Rule 430A under the Act and to file such Prospectus
pursuant to Rule 424(b) under the Act not later than the Commission’s close of
business on the second business day following the execution and delivery of this
Agreement, or, if applicable, such earlier time as may be required by
Rule 430A(a)(3) under the Act; to make no further amendment or any
supplement to the Registration Statement or the Prospectus which shall be
disapproved by the Representative promptly after reasonable notice thereof; to
advise the Representative, promptly after it receives notice thereof, of the
time when any amendment to the Registration Statement has been filed or becomes
effective or any supplement to the Prospectus or any amended Prospectus has been
filed and to furnish the Representative with copies thereof; to advise the
Representative, promptly after it receives notice thereof, of the issuance by
the Commission of any stop order or of any order preventing or suspending the
use of any Preliminary Prospectus or Prospectus, of the suspension of the
qualification of the Shares for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such purpose, or of any
request by the Commission for the amending or supplementing of the Registration
Statement or the Prospectus or for additional information; and, in the event of
the issuance of any stop order or of any order preventing or suspending the use
of any Preliminary Prospectus or Prospectus or suspending any such
qualification, promptly to use its commercial best efforts to obtain the
withdrawal of such order;
(b) Promptly
from time to time to take such action as the Representative may reasonably
request to qualify the Shares for offering and sale under the securities laws of
such jurisdictions as the Representative may request and to comply with such
laws so as to permit the
16
(c) Prior
to 3:00 p.m., Eastern Time, on the New York Business Day next succeeding the
date of this Agreement and from time to time, to furnish the Underwriters with
copies of the Prospectus in New York City in such quantities as the Underwriters
may from time to time reasonably request, and, if the delivery of a prospectus
is required at any time prior to the expiration of nine months after the time of
issue of the Prospectus in connection with the offering or sale of the Shares
and if at such time any event shall have occurred as a result of which the
Prospectus as then amended or supplemented would include an untrue statement of
a material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made when such Prospectus is delivered, not misleading, or, if for any other
reason it shall be necessary during such period to amend or supplement the
Prospectus in order to comply with the Act, to notify the Representative and
upon the Underwriters” request to prepare and furnish without charge to each
Underwriter and to any dealer in securities as many copies as the Underwriters
may from time to time reasonably request of an amended Prospectus or a
supplement to the Prospectus which will correct such statement or omission or
effect such compliance, and in case the Underwriters are required to deliver a
prospectus in connection with sales of any of the Shares at any time nine months
or more after the time of issue of the Prospectus, upon the Underwriters”
request but at the expense of the Underwriters, to prepare and deliver to the
Underwriters as many copies as they may request of an amended or supplemented
Prospectus complying with Section 10(a)(3) of the Act. For
purposes of this Section 5, “New York Business Day” shall mean each Monday,
Tuesday, Wednesday, Thursday and Friday, which is not a day on which banking
institutions in New York are generally authorized or obligated by law or
executive order to close;
(d) To
make generally available to its securityholders as soon as practicable, an
earnings statement of the Company and its subsidiaries (which need not be
audited) complying with Section 11(a) of the Act and the rules and regulations
thereunder (including, at the option of the Company,
Rule 158);
(e) During
the period beginning from the date hereof and continuing to and including the
date 90 days after the date of the Prospectus, not to directly or
indirectly, except as provided in the last sentence of this Section 5(e), offer,
sell, contract or grant any option to sell, pledge, transfer or establish an
open “put equivalent position” within the meaning of Rule 16a-l(h) under
the Exchange Act, or otherwise dispose of or transfer, or announce the offering
of, or file a registration statement under the Act in respect of, except as
provided hereunder, any securities of the Company that are substantially similar
to the Shares, including but not limited to any securities that are convertible
into or exchangeable for, or that represent the right to receive, the Stock or
any such substantially similar securities, without the Representative’s prior
written consent; provided, however, that if: (1) during the last
17 days of such 90-day period the Company issues an earnings release or
material news or a material event relating to the Company occurs; or
(2) prior to the expiration of such 90-day period, the Company announces
that it will release earnings results during the 16-day-period beginning on the
last day of such 90-day
17
(f) To
furnish to its stockholders as soon as practicable after the end of each fiscal
year an annual report (including balance sheets and statements of income,
stockholders” equity and cash flows of the Company and its consolidated
subsidiaries certified by independent public accountants) and, as soon as
practicable after the end of each of the first three quarters of each fiscal
year (beginning with the fiscal quarter ending after the date of this
Agreement), to make available to its stockholders consolidated summary financial
information of the Company and its subsidiaries for such quarter in reasonable
detail;
(g) To
use the net proceeds received by it from the sale of the Shares pursuant to this
Agreement substantially in the manner specified in the Prospectus under the
caption “Use of Proceeds;”
(h) If
the Company elects to rely on Rule 462(b), the Company shall file a Rule
462(b) Registration Statement with the Commission in compliance with Rule 462(b)
by 10:00 p.m., Eastern Time on the date of this Agreement, and the Company
shall at the time of filing pay to the Commission the filing fee for the Rule
462(b) Registration Statement;
(i) To
use its commercial best efforts to list for quotation the Shares on the Nasdaq
Global Select Market and file any post-closing forms required by Nasdaq Stock
Market;
(j) Until
completion of the distribution of the Shares, the Company will file all
documents required to be filed with the Commission pursuant to the Exchange Act
within the time periods required by the Exchange Act and the rules and
regulations of the Commission thereunder;
(k) The
Company represents and agrees that unless it obtains the prior consent of the
Representative, and the Representative represents and agrees that, unless the
prior consent of the Company is obtained, they have not made and will not make
any offer relating to the Shares that would constitute an Issuer-Represented
Free Writing Prospectus and have complied and will comply with the requirements
of Rule 433 applicable to any Issuer-Represented Free Writing Prospectus,
including where and when required timely filing with the Commission, legending
and record keeping. The Company represents that it has satisfied and agrees that
it will satisfy the conditions in Rule 433 to avoid a requirement to file
with the Commission any electronic road show;
18
(l) Not
to take, directly or indirectly, any action designed to cause or result in, or
that has constituted or might reasonably be expected to constitute, the
stabilization or manipulation of the Stock in violation of the Act or the
Exchange Act; and
6. The
Company covenants and agrees with the Underwriters that the Company will pay or
cause to be paid the following, whether or not the transactions contemplated
herein are completed: (i) the reasonable out-of-pocket expenses incurred by the
Underwriters in connection with the transactions contemplated hereby, including,
without limitation, disbursements, fees and expenses of Underwriter’s counsel
and marketing, syndication and travel expenses up to $125,000; (ii) the
fees, disbursements and expenses of the Company’s counsel and accountants in
connection with the registration of the Shares under the Act and all other
expenses in connection with the preparation, printing and filing of amendments
and supplements thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (iii) the cost of printing or producing any
agreement among Underwriters, this Agreement, the Blue Sky survey, closing
documents (including any compilations thereof) and any other documents in
connection with the offering, purchase, sale and delivery of the Shares;
(iv) all expenses in connection with the qualification of the Shares for
offering and sale under state securities laws as provided in Section 5(b)
hereof, including the fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the Blue Sky survey
(which fees of counsel in connection herewith are included in the maximum
payment of the Underwriters expenses set forth in clause (i), above);
(v) all fees and expenses in connection with listing the Shares on the
Nasdaq Global Select Market; (vi) the filing fees incident to, and the
disbursements of counsel for the Underwriter in connection with, securing any
required review by the FINRA of the terms of the sale of the Shares;
(vii) the cost of preparing stock certificates; (viii) the cost and
charges of any transfer agent or registrar; (ix) the costs and expenses of
the Company relating to investor presentations on any “road show” undertaken in
connection with the marketing of the Shares, including without limitation,
expenses associated with the production of road show slides and graphics, fees
and expenses of any consultants engaged in connection with the road show
presentations, travel and lodging expenses of the representatives and officers
of the Company and any such consultants, and the cost of aircraft and other
transportation chartered in connection with the road show with the consent of
the Company; and (x) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise specifically
provided for in this Section.
7. The
obligations of the Underwriters hereunder, as to the Shares to be delivered at
each Time of Delivery, shall be subject, in their discretion, to the condition
that all representations and warranties and other statements of the Company
herein are, at and as of such Time of Delivery, true and correct, the condition
that the Company shall have performed all of its obligations hereunder
theretofore to be performed, and the following additional
conditions:
(a) The
Prospectus shall have been filed with the Commission pursuant to Rule 424(b)
within the applicable time period prescribed for such filing by the rules and
regulations under the Act and in accordance with Section 5(a) hereof (or a
post-effective amendment shall have been filed and declared effective in
accordance with the requirements of Rule 430A); if the Company has elected
to rely upon Rule 462(b), the Rule 462(b) Registration Statement shall have
become effective by 10:00 p.m., Eastern Time, on the date of this
19
(b) Xxxxxxxxxx
Xxxxxxxx LLP shall have furnished to the Underwriters such written opinion or
opinions, dated such Time of Delivery, with respect to such matters as the
Underwriters may reasonably request, and such counsel shall have received such
papers and information as they may reasonably request to enable them to pass
upon such matters;
(c) Breyer
& Associates PC shall have furnished to the Underwriters its written
opinion, dated such Time of Delivery, in form and substance reasonably
satisfactory to the Underwriters, to the effect set forth in Exhibit A
hereto;
(d) On
the date of the Prospectus at a time prior to the execution of this Agreement,
on the effective date of any post-effective amendment to the Registration
Statement filed subsequent to the date of this Agreement and also at each Time
of Delivery, Deloitte & Touche LLP shall have furnished to the Underwriters
a letter or letters, dated the respective dates of delivery thereof, in form and
substance satisfactory to you, containing statements and information of the type
ordinarily included in accountants “comfort letters” to underwriters with
respect to the financial statements of the Company and certain financial
information contained in the Prospectus;
(e) At
Closing Time, Deloitte & Touche LLP shall have delivered a letter, dated as
of the Closing Time, to the effect that they reaffirm the statements made in the
letter furnished pursuant to subsection (d) of this Section, except that
the specified date referred to shall be a date not more than three business days
prior to the Effective Date;
(f) (i) Neither
the Company nor any of its subsidiaries shall have sustained since the date of
the latest audited financial statements included in the Prospectus any loss or
interference with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus, and (ii) since the respective dates as of
which information is given in the Prospectus there shall not have been any
change in the capital stock or long-term debt of the Company or any of its
subsidiaries or any change in or affecting the business, management, financial
condition, stockholders” equity or results of operations of the Company and its
subsidiaries, taken as a whole, otherwise than as set forth or contemplated in
the Prospectus, the effect of which, in any such case described in clause
(i) or (ii), is in the judgment of the Underwriters so material and adverse
as to make it impracticable or inadvisable to proceed with the public offering
or the delivery of the Shares being delivered at such Time of Delivery on the
terms and in the manner contemplated in the Prospectus;
(g) On
or after the date hereof there shall not have occurred any of the following:
(i) a suspension or material limitation in trading in securities generally
on the New
20
York
Stock Exchange or on the Nasdaq Stock Market; (ii) a suspension or material
limitation in trading in the Company’s securities on the Nasdaq Stock Market;
(iii) a general moratorium on commercial banking activities declared by
either Federal or New York or Delaware authorities or a material disruption in
commercial banking or securities settlement or clearance services in the United
States; (iv) the outbreak or escalation of hostilities involving the United
States or the declaration by the United States of a national emergency or war;
or (v) the occurrence of any other calamity or crisis or any change in
financial, political or economic conditions in the United States or elsewhere,
including without limitation, as a result of terrorist activities occurring
after the date hereof, if the effect of any such event specified in clause
(iv) or (v), in the judgment of the Underwriters makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the Shares
being delivered at such Time of Delivery on the terms and in the manner
contemplated in the Prospectus;
(h) The
Shares to be sold at such Time of Delivery shall have been duly listed for
quotation on the Nasdaq Global Select Market;
(i) The
Company has obtained and delivered to the Underwriters executed copies of an
agreement from each executive officer and director, in each case as listed on
Schedule III
hereto of the Company, substantially in the form of Exhibit B;
(j) The
Company shall have complied with the provisions of Section 5(c) hereof with
respect to the furnishing of prospectuses on the New York Business Day next
succeeding the date of this Agreement; and
(k) The
Company shall have furnished or caused to be furnished to the Underwriters at
such Time of Delivery certificates of officers of the Company satisfactory to
the Underwriters as to the accuracy of the representations and warranties of the
Company herein at and as of such Time of Delivery, as to the performance by the
Company of all of its obligations hereunder to be performed at or prior to such
Time of Delivery, as to the matters set forth in subsections (a) and
(f) of this Section and as to such other matters as the Underwriters may
reasonably request.
If any
condition specified in this Section shall not have been fulfilled when and as
required to be fulfilled, this Agreement may be terminated by the Underwriters
by notice to the Company at any time on or prior to the Time of Delivery. If the
sale of the Shares provided for herein is not consummated because any condition
set forth in this Section 7 is not satisfied, because of any termination
pursuant to Section 10(a) hereof, or because of any refusal, inability or
failure on the part of the Company to perform any agreement herein or comply
with any provision hereof, the Company will reimburse the Underwriters upon
demand for all documented out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by the Underwriters in
connection with the proposed offering of the Shares. In addition, such
termination shall be subject to Section 6 hereof, and Sections 1, 8
and 9 hereof shall survive any such termination and remain in full force and
effect.
8. (a) The
Company and the Bank, jointly and severally, will indemnify and hold harmless
each Underwriter, each person, if any who controls any Underwriter, within the
21
(b) The
Underwriters will indemnify and hold harmless the Company and the Bank, their
respective officers, directors and each person, if any, who controls the Company
or the Bank, within the meaning of Section 15 of the Act or Section 20
of the Exchange Act, against any losses, claims, damages or liabilities to which
the Company may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, the General Disclosure
Package or the Prospectus, or any amendment or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in the Registration Statement, the General Disclosure Package
or the Prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by the Underwriters
expressly for use therein
22
(provided
that the Company and the Underwriters hereby acknowledge and agree that the only
information that the Underwriters have furnished to the Company specifically for
inclusion in the Registration Statement, the General Disclosure Package or the
Prospectus are (i) the concession and reallowance figures appearing in the
Prospectus in the section entitled “Underwriting,” (ii) the _____ sentence of
the ______ paragraph under the section entitled “Underwriting” in the Prospectus
relating to the Underwriters” reservation of the right to withdraw, cancel or
modify the offer contemplated by this Agreement and to reject orders in whole or
in part, (iii) the paragraphs under the section entitled
“Underwriting—Stabilization” in the Prospectus relating to stabilization
transactions, over-allotment transactions, syndicate covering transactions and,
if applicable, penalty bids in which the Underwriters may engage and (iv) the
_______ of the _______ paragraph under the subsection entitled
“Underwriting—Passive Market Making” in the Prospectus (collectively, the
“Underwriters” Information”); and will reimburse the Company for any legal or
other expenses reasonably incurred by the Company in connection with
investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly
after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability that it may have to
any indemnified party otherwise than under such subsection, unless the
indemnifying party has been prejudiced thereby. In case any such action shall be
brought against any indemnified party and it shall notify the indemnifying party
of the commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party which consent shall not be unreasonably
withheld, be counsel to the indemnifying 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 a conflict may arise between the positions of the indemnifying party and
the indemnified party in conducting the defense of any such action or that there
may be legal defenses available to its 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, and, after notice from
the indemnified party to such indemnifying party of its election so to assume
the defense thereof, the indemnifying party shall not be liable to such
indemnified party under such subsection for any legal expenses of other counsel
or any other expenses, in each case subsequently incurred by such indemnified
party, in connection with the defense thereof other than reasonable costs of
investigation unless (i) the indemnified party shall have employed separate
counsel in accordance with the proviso to the preceding sentence approved by the
indemnifying party or (ii) the indemnifying party shall not have employed
counsel satisfactory to the indemnified party within a reasonable time after
notice of commencement of the action, in each of which cases the fees and
expenses of counsel shall be at the expense of the indemnifying party. In no
event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in
23
(d) If
the indemnification provided for in this Section 8 is unavailable to or
insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or
actions in respect thereof) referred to therein, then each indemnifying party
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and the Underwriters on the other from
the offering of the Shares. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law, then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company on the one hand and
the Underwriters on the other in connection with the statements or omissions
that resulted in such losses, claims, damages or liabilities (or actions in
respect thereof), as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Underwriters
on the other shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by the Company
bear to the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover page of the
Prospectus. The relative fault 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 Underwriters on the other and the
parties” relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company, the Bank and the
Underwriters agree that it would not be just and equitable if contributions
pursuant to this subsection (d) were determined by pro rata allocation or by any
other method of allocation that does not take account of the equitable
considerations referred to above in this
24
(e) The
obligations of the Company and the Bank under this Section 8 shall be in
addition to any liability that the Company or the Bank may otherwise have and
shall extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act or who is an affiliate or
partner of any Underwriter; and the obligations of the Underwriters under this
Section 8 shall be in addition to any liability which the Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Company, and to each other person, if any, who
controls the Company within the meaning of the Act or who is an affiliate of the
Company.
9. The
respective indemnities, agreements, representations, warranties and other
statements of the Company and the Underwriters, as set forth in this Agreement
or made by or on behalf of them, respectively, pursuant to this Agreement, shall
remain in full force and effect, regardless of any investigation (or any
statement as to the results thereof) made by or on behalf of the Underwriters or
any controlling person of any of the Underwriters, or the Company, or any
officer or director or controlling person of the Company, and shall survive
delivery of and payment for the Shares.
10. (a) The
Representative may terminate this Agreement, by notice to the Company, at any
time on or prior to the Time of Delivery if, since the time of execution of this
Agreement or, in the case of (i) below, since the date of the most recent
balance sheets included in the Financial Statements, there has occurred,
(i) any Material Adverse Effect, (ii) a suspension or material
limitation in trading in the Company’s securities on the Nasdaq Global Select
Market; (iii) a general moratorium on commercial banking activities
declared by Federal or New York authorities or a material disruption in
commercial banking or securities settlement or clearance services in the United
States; (iv) the outbreak or escalation of hostilities involving the United
States or the declaration by the United States of a national emergency or war;
or (v) the occurrence of any other calamity or crisis or any change in
financial, political or economic conditions in the United States or elsewhere,
including without limitation, as a result of terrorist
25
(b) If
this Agreement is terminated pursuant to this Section 10, such termination
shall be without liability of any party to any other party except as provided in
Section 6 hereof and provided further that Sections 8 and 9 hereof
shall survive such termination and remain in full force and effect.
11. If
one or more of the Underwriters shall fail at Closing Time or a Date of Delivery
to purchase the Shares that it is obligated to purchase under this Agreement
(the “Defaulted Securities”), the Representative shall have the right, within 24
hours thereafter, to make arrangements for one or more of the non-defaulting
Underwriters or one or more other underwriters to purchase all, but not less
than all, of the Defaulted Securities in such amounts as may be agreed upon and
upon the terms herein set forth; if, however, the Representative shall not have
completed such arrangements within such 24-hour period, then:
(a) if
the number of Defaulted Securities does not exceed 10% of the number of Shares
to be purchased on such date, each of the non-defaulting Underwriters shall be
obligated, severally and not jointly, to purchase the full amount thereof in the
proportions that their respective underwriting obligations hereunder bear to the
underwriting obligations of all non-defaulting Underwriters, or
(b) if
the number of Defaulted Securities exceeds 10% of the number of Shares to be
purchased on such date, this Agreement or, with respect to any Date of Delivery
that occurs after the Closing Time, the obligation of the Underwriters to
purchase and of the Company to sell the Shares to be purchased and sold on such
Date of Delivery shall terminate without liability on the part of any
non-defaulting Underwriter.
No action
taken pursuant to this Section shall relieve any defaulting Underwriter from
liability in respect of its default.
In the
event of any such default that does not result in a termination of this
Agreement or, in the case of a Time of Delivery that is after the Closing Time,
which does not result in a termination of the obligation of the Underwriter to
purchase and the Company to sell the relevant Optional Shares, as the case may
be, either (i) the Representative or (ii) the Company shall have the
right to postpone Closing Time or the relevant Time of Delivery, as the case may
be, for a period not exceeding seven days in order to effect any required
changes in the Registration Statement or Prospectus or in any other documents or
arrangements. As used herein, the term “Underwriter” includes any person
substituted for an Underwriter under this Section 11.
12. All
statements, requests, notices and agreements hereunder shall be in writing, and
if to the Underwriters shall be delivered or sent by mail or facsimile
transmission to the Representative at Sandler X’Xxxxx & Partners, L.P., 000
Xxxxx Xxxxxx, 0xx Xxxxx,
Xxx Xxxx, XX 00000, Attention: General Counsel, with a copy to Xxxxxxxxxx
Xxxxxxxx LLP, 000 00xx Xxxxxx,
00
13. This
Agreement shall be binding upon, and inure solely to the benefit of, the
Underwriters, the Company and, to the extent provided in Sections 8 and 9
hereof, the officers and directors of the Company and each person who controls
the Company or the Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. No purchaser of any of the
Shares from the Underwriter shall be deemed a successor or assign by reason
merely of such purchase.
14. Time
shall be of the essence of this Agreement. As used herein, the term “business
day” shall mean any day when the Commission’s office in Washington, D.C. is open
for business.
15. The
Company acknowledges and agrees that (i) the purchase and sale of the
Shares pursuant to this Agreement, including the determination of the public
offering price of the Shares and any related discounts and commissions, is an
arm’s-length commercial transaction between the Company, on the one hand, and
the several Underwriters, on the other hand, (ii) in connection with the
offering contemplated hereby and the process leading to such transaction each
Underwriter is and has been acting solely as a principal and is not the agent or
fiduciary of the Company, or the Company’s shareholders, creditors, employees or
any other third party, (iii) no Underwriter has assumed or will assume an
advisory or fiduciary responsibility in favor of the Company with respect to the
offering contemplated hereby or the process leading thereto (irrespective of
whether such Underwriter has advised or is currently advising the Company on
other matters) and no Underwriter has any obligation to the Company with respect
to the offering contemplated hereby except the obligations expressly set forth
in this Agreement, (iv) the Underwriters and their respective affiliates
may be engaged in a broad range of transactions that involve interests that
differ from those of the Company, and (v) the Underwriters have not
provided any legal, accounting, regulatory or tax advice with respect to the
offering contemplated hereby and the Company has consulted its own legal,
accounting, regulatory and tax advisors to the extent it deemed
appropriate.
16. THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES OF SAID
STATE OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS
LAW.
17. This
Agreement may be executed by any one or more of the parties hereto in any number
of counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same instrument.
27
18. No
amendment or waiver of any provision of this Agreement, nor any consent or
approval to any departure therefrom, shall in any event be effective unless the
same shall be in writing and signed by the parties hereto.
If the
foregoing is in accordance with your understanding, please sign and return to us
four counterparts hereof, and upon the acceptance hereof by you, this letter and
such acceptance hereof shall constitute a binding agreement between the
Underwriters, the Company and the Bank.
[Signature
Page Follows]
28
| Very truly yours, | |
| PROVIDENT FINANCIAL HOLDINGS, INC. | |
| BY: ________________________________ | |
| Name: __________________________ | |
| Title: ___________________________ | |
| PROVIDENT SAVINGS BANK, F.S.B. | |
| BY: ________________________________ | |
| Name: __________________________ | |
| Title: ___________________________ |
Accepted
as of the date hereof:
SANDLER
O”NEILL & PARTNERS, L.P.
As
Representative of the Several Underwriters named in Schedule I
hereto
BY: ________________________________
Name:
___________________________
Title:
____________________________
29
Schedule I -
Underwriters
|
Underwriters
|
Shares of Common
Stock
|
Price Per
Share
|
||
|
Sandler
X’Xxxxx & Partners, L.P.
|
||||
|
FBR
Capital Markets & Co.
|
||||
|
FIG
Partners
|
||||
|
TOTAL
|
||||
Schedule II –
Issuer-Represented Free Writing Prospectuses
Schedule III – Executive
Officers, Directors, [and Certain Stockholders]
| Xxxxxx X. Xxxx | |
| Xxxxx X. Xxxxxxx | |
| Xxxxx X. Xxxxxxx | |
|
Xxxxxxx
X. Xxxx
|
|
|
Xxxxxxx
X. Xxxxxxxx
|
|
|
Xxxxx
X. Xxxxxxx
|
|
|
Xxxxxx
X. Xxxxxxxx
|
|
|
Xxx
X. Xxxxxx
|
|
|
Xxxxxxx
X. Xxxxxx
|
|
|
Xxxxxxx
X. Xxxxxx
|
Exhibit B – Form of Lock-Up
Agreement
Lock-Up
Agreement
Sandler
X’Xxxxx & Partners, L.P.
000 Xxxxx
Xxxxxx, 0xx
Xxxxx
Xxx Xxxx,
XX 00000
Re: Provident
Financial Holdings, Inc.
Ladies
and Gentlemen:
The
undersigned is an owner of record or beneficially of certain shares of common
stock (“Common Stock”) of Provident Financial Holdings, Inc. (the “Company”) or
securities convertible into or exchangeable or exercisable for Common
Stock. The Company proposes to carry out a public offering of Common
Stock of the Company (the “Offering”) for which you will act as
underwriter. The undersigned recognizes that the Offering will be of
benefit to the undersigned and will benefit the Company by, among other things,
raising additional capital for its operations. The undersigned
acknowledges that you are relying on the representations and agreements of the
undersigned contained in this letter in carrying out the Offering and in
entering into an underwriting agreement with the Company with respect to the
Offering.
In
consideration of the foregoing, the undersigned hereby agrees that the
undersigned will not offer to sell, contract to sell, or otherwise sell, dispose
of, loan, pledge or grant (each a “Disposition”) any rights with respect to any
shares of Common Stock, any options or warrants to purchase any shares of Common
Stock or any securities convertible into or exchangeable for shares of Common
Stock (collectively, “Securities”) now owned or hereafter acquired directly by
such person or with respect to which such person has or hereafter acquires the
power of disposition for a period commencing on the date hereof and continuing
to a date 90 days after the offering has been closed (the “Lock-up Period”)
otherwise than (i) as a bona
fide gift or gifts, provided that the donee or donees agree to be bound
in writing by the restrictions set forth herein, (ii) to any trust or family
limited partnership for the direct or indirect benefit of the undersigned or the
immediate family of the undersigned, provided that the trustee of the trust or
general partner of the family limited partnership, as the case may be, agrees to
be bound by the restrictions set forth herein, and provided further that any
such transfer shall not involve a disposition for value, (iii) pledged in a
bona fide transaction
outstanding as of the date hereof to a lender to the undersigned, as disclosed
in writing to the Underwriter, (iv) upon the death of the undersigned to his or
her executors, administrators testamentary trustees, legatees or beneficiaries
provided that all such transferees agree to be bound by the restrictions set
forth herein (v) pursuant to the exercise by the undersigned of stock options
that have been granted by the Company prior to, and are outstanding as of, the
date of the Underwriting Agreement, where the Stock received upon any such
exercise is held by the undersigned, individually or as fiduciary, in accordance
with the terms of this Lock-Up Agreement, (vi) pursuant to Rule 10b5-1 plans of
the undersigned in effect as of the date of the Underwriting Agreement, or (vii)
with the prior written consent of the Underwriter. For purposes of
this Lock-Up Agreement, “immediate family” shall mean any relationship by blood,
marriage or adoption, not more remote than first
B-1
This
agreement is irrevocable and will be binding on the undersigned and the
respective successors, heirs, personal representatives, and assigns of the
undersigned. This letter agreement shall terminate and be of no
further force and effect upon a decision by Sandler X’Xxxxx & Partners, L.P.
or the Company not to proceed with the Offering.
This
agreement shall be governed by and construed in accordance with the laws of the
Sate of New York.
| Dated: ___________________________ | ___________________________ |
| [Signature] | |
| ___________________________ | |
| Printed Name of Person Signing |
|
B-2
|
