EXECUTION VERSION
BNC BANCORP
(a North Carolina corporation)
31,260 Shares of Fixed Rate Cumulative Perpetual Preferred Stock, Series A
UNDERWRITING AGREEMENT
August 23, 2012
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Sandler X’Xxxxx & Partners, L.P.
as Representatives of the several Underwriters
c/o Merrill Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxx Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
and
Sandler X’Xxxxx & Partners, L.P.
1251 Avenue of the Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
BNC Bancorp, a North
Carolina corporation (the “Company”), Bank of North Carolina (the “Bank”) and the United States Department
of the Treasury (the “Selling Shareholder”) each confirms its agreement with Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated (“Xxxxxxx Xxxxx”) and Sandler X’Xxxxx & Partners, L.P. (“Sandler X’Xxxxx,”
and collectively with Xxxxxxx Xxxxx, the “Underwriters,” which term shall also include any underwriter substituted
as hereinafter provided in Section 11 hereof), for whom Xxxxxxx Xxxxx and Xxxxxxx X’Xxxxx are acting as Representatives
(in such capacity, the “Representatives”), with respect to the sale by the Selling Shareholder and the purchase by
the Underwriters, acting severally and not jointly, of the respective numbers of shares of Fixed Rate Cumulative Perpetual Preferred
Stock, Series A of the Company (the “Preferred Stock”) set forth in Schedule A hereto. The aforesaid 31,260 shares
of Preferred Stock to be purchased by the Underwriters are referred to herein, collectively, as the “Securities.”
The Company understands
that the Underwriters propose to make a public offering of the Securities as soon as the Representatives deem advisable after this
Agreement has been executed and delivered.
The Company has prepared
and filed with the Securities and Exchange Commission (the “Commission”) a registration statement on Form S-3
(File No. 333-182994) covering the resale of certain securities of the Company from time to time, including the Securities
to be sold by the Selling Shareholder under this Agreement, under the Securities Act of 1933, as amended (the “1933 Act”),
and the rules and regulations promulgated thereunder (the “1933 Act Regulations”). Such registration statement has
been declared effective by the Commission under the 1933 Act. Such registration statement, as of any time, means such registration
statement as amended by any post-effective amendments thereto at such time, including the exhibits and any schedules thereto at
such time, the documents incorporated or deemed to be incorporated by reference therein at such time pursuant to Item 12 of
Form S-3 under the 1933 Act and the documents otherwise deemed to be a part thereof as of such time pursuant to Rule 430B
of the 1933 Act Regulations (“Rule 430B”), is referred to herein as the “Registration Statement;”
provided, however, that the “Registration Statement” without reference to a time means such registration statement
as amended by any post-effective amendments thereto as of the time of the first contract of sale for the Securities, which time
shall be considered the “new effective date” of the Registration Statement with respect to the Securities within the
meaning of Rule 430B(f)(2), including the exhibits and schedules thereto as of such time, the documents incorporated or deemed
to be incorporated by reference therein at such time pursuant to Item 12 of Form S-3 under the 1933 Act and the documents
otherwise deemed to be a part thereof as of such time pursuant to the Rule 430B. Each preliminary prospectus supplement and
the base prospectus used in connection with the offering of the Securities, including the documents incorporated or deemed to be
incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933 Act immediately prior to the Applicable
Time (as defined below), are collectively referred to herein as a “preliminary prospectus.” Promptly after execution
and delivery of this Agreement, the Company will prepare and file a final prospectus supplement relating to the Securities in accordance
with the provisions of Rule 424(b) of the 1933 Act Regulations (“Rule 424(b)”). The final prospectus supplement
and the base prospectus, in the form first furnished to the Underwriters for use in connection with the offering and sale of the
Securities, including the documents incorporated or deemed to be incorporated by reference therein pursuant to Item 12 of
Form S-3 under the 1933 Act immediately prior to the Applicable Time, are collectively referred to herein as the “Prospectus.”
For purposes of this Agreement, all references to the Registration Statement, any preliminary prospectus or the Prospectus or any
amendment or supplement thereto shall be deemed to include the copy filed with the Commission pursuant to its Electronic Data Gathering,
Analysis and Retrieval system (or any successor system)(“XXXXX”).
As used in this Agreement:
“Applicable
Time” means 9:00 P.M., New York City time, on August 23, 2012 or such other time as agreed by the Company and the Representatives.
“General
Disclosure Package” means each Issuer General Use Free Writing Prospectus, the most recent preliminary prospectus furnished
to the Underwriters for general distribution to investors prior to the Applicable Time and the information specified in Schedule B
hereto, all considered together.
“Issuer
Free Writing Prospectus” means any “issuer free writing prospectus,” as defined in Rule 433 of the 1933
Act Regulations (“Rule 433”), including, without limitation, any “free writing prospectus” (as defined
in Rule 405) relating to the Securities that is (i) required to be filed with the Commission by the Company, (ii) a
“road show that is a written communication” within the meaning of Rule 433(d)(8)(i), whether or not required to
be filed with the Commission, or (iii) exempt from filing with the Commission pursuant to Rule 433(d)(5)(i) because it
contains a description of the Securities or of the offering thereof 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).
“Issuer
General Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is intended for general distribution to
investors, as evidenced by its being specified in Schedule C hereto.
“Issuer
Limited Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is not an Issuer General Use Free Writing
Prospectus.
All references in this
Agreement to financial statements and schedules and other information which is “contained,” “included,”
“described,” “disclosed” or “stated” (or other references of like import) in the Registration
Statement, any preliminary prospectus or the Prospectus shall be deemed to include all such financial statements and schedules
and other information incorporated or deemed to be incorporated by reference in the Registration Statement, any preliminary prospectus
or the Prospectus, as the case may be, prior to the Applicable Time; and all references in this Agreement to amendments or supplements
to the Registration Statement, any preliminary prospectus or the Prospectus shall be deemed to include the filing of any document
under the Securities Exchange Act of 1934, as amended (the “1934 Act”), and the rules and regulations promulgated thereunder
(the “1934 Act Regulations”) incorporated or deemed to be incorporated by reference in the Registration Statement,
such preliminary prospectus or the Prospectus, as the case may be, at or after the Applicable Time.
This Agreement, the
Company’s Articles of Incorporation, as amended by the Articles of Amendment to Designate the Preferences, Limitations and
Relative Rights of Fixed Rate Cumulative Perpetual Preferred Stock, Series A (the “Articles of Amendment”) with respect
to the Securities (collectively, the “Charter”), and the Company’s By-Laws (the “By-Laws”) are referred
to herein, collectively, as the “Operative Documents.”
SECTION
1. Representations and Warranties.
(a) Representations
and Warranties by the Company. The Company represents and warrants to each Underwriter and the Selling Shareholder at the date
hereof, the Applicable Time and the Closing Time (as defined below) (each, a “Representation Date”), and agrees with
each Underwriter and the Selling Shareholder, as follows:
(i) Compliance
of the Registration Statement, the Prospectus and Incorporated Documents. The Company meets the requirements for use of Form S-3
under the 1933 Act. Each of the Registration Statement and any post-effective amendment thereto has been declared effective by
the Commission under the 1933 Act. No stop order suspending the effectiveness of the Registration Statement or any post-effective
amendment thereto has been issued under the 1933 Act, no order preventing or suspending the use of any preliminary prospectus or
the Prospectus or any amendment or supplement thereto has been issued and no proceedings for any of those purposes have been instituted
or are pending or, to the Company’s knowledge, threatened. The Company has complied with each request (if any) from the Commission
for additional information concerning the Registration Statement, the General Disclosure Package or the Prospectus (including the
documents incorporated by reference therein) or the offer and sale of the Securities by the Selling Shareholder, as applicable.
Each of the
Registration Statement and any post-effective amendment thereto, at the time of its effectiveness and as of each deemed effective
date with respect to the Underwriters pursuant to Rule 430B(f)(2), complied in all material respects with the requirements
of the 1933 Act and the 1933 Act Regulations. Each preliminary prospectus and the Prospectus and any amendment or supplement thereto,
at the time each was filed with the Commission, complied in all material respects with the requirements of the 1933 Act and the
1933 Act Regulations and are identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX,
except to the extent permitted by Regulation S-T.
The documents
incorporated or deemed to be incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus,
when they became effective or at the time they were or hereafter are filed with the Commission, complied and will comply in all
material respects with the requirements of the 1934 Act and the 1934 Act Regulations.
(ii) Accurate
Disclosure. Neither the Registration Statement nor any amendment thereto, at its effective time or at the Closing Time, contained,
contains or will contain an untrue statement of a material fact or omitted, omits or will omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading. At the Applicable Time, neither (A) the General
Disclosure Package nor (B) any individual Issuer Limited Use Free Writing Prospectus, when considered together with the General
Disclosure Package, included, includes or will include an untrue statement of a material fact or omitted, omits or will omit to
state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were
made, not misleading. Neither the Prospectus nor any amendment or supplement thereto, as of its issue date, at the time of any
filing with the Commission pursuant to Rule 424(b) or at the Closing Time, included, includes or will include an untrue statement
of a material fact or omitted, omits or will omit to state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading. The documents incorporated or deemed to be incorporated
by reference in the Registration Statement, the General Disclosure Package and the Prospectus, at the time the Registration Statement
became effective or when such incorporated documents were filed with the Commission, as the case may be, when read together with
the other information in the Registration Statement, the General Disclosure Package or the Prospectus, as the case may be, did
not, does not and will not include 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 not misleading.
The representations
and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement or any amendment
thereto or the General Disclosure Package or the Prospectus or any amendment or supplement thereto made in reliance upon and in
conformity with written information furnished to the Company by any Underwriter through the Representatives or by the Selling Shareholder,
in each case expressly for use therein. For purposes of this Agreement, the only information so furnished by (A) any Underwriter
through the Representatives shall be (i) the information under the caption “Auction Process” (except for any statement
that refers to the Company, its intentions or its potential activity as a bidder in the auction) and (ii) the information in the
first, second and third paragraphs under the caption “Underwriting–Stabilization”, in each case, contained in
the Registration Statement, the preliminary prospectus supplement contained in the General Disclosure Package and the Prospectus
(collectively, the “Underwriter Information”) and (B) the Selling Shareholder shall be the information in the
third and fourth paragraphs under the heading “Selling Shareholder”, in each case, contained in the Registration Statement,
the preliminary prospectus contained in the General Disclosure Package and the Prospectus (collectively, the “Selling Shareholder
Information”).
(iii) Issuer
Free Writing Prospectuses. No Issuer Free Writing Prospectus conflicts or will conflict with the information contained in the
Registration Statement, any preliminary prospectus or the Prospectus, including any document incorporated by reference therein,
that has not been superseded or modified.
(iv) Company
Not Ineligible Issuer. (A) At the time of filing the Registration Statement and any post-effective amendment thereto,
(B) at the earliest time thereafter that the Company or another offering participant made a bona fide offer (within
the meaning of Rule 164(h)(2) of the 1933 Act Regulations) of the Securities, (C) at the date of this Agreement and (D) at
the Applicable Time, the Company was not and is not an “ineligible issuer,” as defined in Rule 405, without taking
account of any determination by the Commission pursuant to Rule 405 that it is not necessary that the Company be considered
an ineligible issuer.
(v) Independent
Accountants. The accountants who certified the financial statements and supporting schedules included in the Registration Statement,
the General Disclosure Package and the Prospectus are independent public accountants as required by the 1933 Act, the 1933 Act
Regulations, the 1934 Act, the 1934 Act Regulations and the Public Accounting Oversight Board.
(vi) Financial
Statements; Non-GAAP Financial Measures. The financial statements of the Company included in the Registration Statement, the
General Disclosure Package and the Prospectus, together with the related schedules and notes, present fairly the financial position
of the Company and its consolidated subsidiaries at the dates indicated and the statement of operations, stockholders’ equity
and cash flows of the Company and its consolidated subsidiaries for the periods specified; said financial statements have been
prepared in conformity with U.S. generally accepted accounting principles (“GAAP”) applied on a consistent basis
throughout the periods involved. Except as permitted pursuant to a waiver from the SEC, any financial statements of businesses
or properties acquired or proposed to be acquired, if any, included in the Registration Statement, the General Disclosure Package
and the Prospectus present fairly the information set forth therein, have been prepared in conformity with GAAP applied on a consistent
basis and otherwise have been prepared in accordance with the financial statement requirements of Rule 3-05 or Rule 3-14 of Regulation
S-X, as applicable. The supporting schedules, if any, present fairly in accordance with GAAP the information required to be stated
therein. The selected financial data and the summary financial information included in the Registration Statement, the General
Disclosure Package and the Prospectus present fairly the information shown therein and have been compiled on a basis consistent
with that of the audited financial statements included therein. Except as included therein, no historical or pro forma financial
statements or supporting schedules are required to be included in the Registration Statement, any preliminary prospectus or the
Prospectus under the 1933 Act, the 1933 Act Regulations, the 1934 Act or the 1934 Act Regulations. All disclosures contained in
the Registration Statement, the General Disclosure Package or the Prospectus, if any, regarding “non-GAAP financial measures”
(as such term is defined by the rules and regulations of the Commission) comply with Regulation G under the 1934 Act and Item 10
of Regulation S-K under the 1933 Act, to the extent applicable. The interactive data in eXtensible Business Reporting Language
incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus fairly presents the
required information and has been prepared in accordance with the Commission’s rules and guidelines applicable thereto.
(vii) No
Material Adverse Change. Except as described in the Registration Statement, the General Disclosure Package and the Prospectus,
since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package or the
Prospectus, (A) there has been no material adverse change in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary
course of business (a “Material Adverse Change”), (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, and (C) except for regular dividends on the Company’s capital stock
in amounts per share that are consistent with past practice, there has been no dividend or distribution of any kind declared, paid
or made by the Company on any class or series of its capital stock.
(viii) Good
Standing of the Company. The Company has been duly organized and is validly existing as a corporation in good standing under
the laws of the State of North Carolina and has the requisite corporate power and authority to own, lease and operate its properties,
to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus and to enter
into and perform its obligations under, and to consummate the transactions contemplated in this Agreement and the Articles Amendment
with respect to the Securities. The Company is duly qualified as a foreign corporation to transact business and is in good standing
in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or to be in good standing would not, singly or in the aggregate, result
in a material adverse effect (A) in the condition, financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business,
or (B) on the ability of the Company to enter into and perform its obligations under, or consummate the transactions contemplated
in, this Agreement and the Articles of Amendment with respect to the Securities (a “Material Adverse Effect”). The
Company is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended. The Company has furnished
to the Representatives complete and correct copies of the Charter and By-Laws and all amendments thereto, and no change thereto
is contemplated or has been authorized or approved by the Company or its stockholders except as incorporated by reference in the
Registration Statement, the General Disclosure Package and the Prospectus.
(ix) Good
Standing of Subsidiaries. The Bank is the only “significant subsidiary” of the Company (as such term is defined
in Rule 1-02 of Regulation S-X) and has been duly organized and is validly existing and in good standing under the laws of
the jurisdiction of its incorporation or other organization, has the requisite corporate power and authority to own, lease and
operate its properties, to conduct its business as described in the Registration Statement, the General Disclosure Package and
the Prospectus and, in the case of the Bank, to enter into, and perform its obligations under, this Agreement. The Bank is duly
qualified to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify or to be in good
standing would not, singly or in the aggregate, result in a Material Adverse Effect. Except as described in the Registration Statement,
the General Disclosure Package and the Prospectus, all of the issued and outstanding shares of capital stock of the Bank have been
duly authorized and validly issued, are fully paid and non-assessable and are owned by the Company, directly or through subsidiaries,
free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or other equity. None of the outstanding shares
of capital stock of the Bank were issued in violation of the preemptive or similar rights of any securityholder of the Bank. The
only subsidiaries of the Company are (A) the subsidiaries listed on Exhibit 21 to the Registration Statement and (B) certain
other subsidiaries which, considered in the aggregate as a single subsidiary, do not constitute a “significant subsidiary”
within the meaning of Rule 1-02 of Regulation S-X. The deposit accounts of the Bank are insured up to the applicable limits
by the Deposit Insurance Fund of the Federal Deposit Insurance Corporation (the “FDIC”) to the fullest extent permitted
by law and the rules and regulations of the FDIC, and no proceeding for the revocation or termination of such insurance is pending
or, to the knowledge of the Company, threatened.
(x) Regulatory
Matters. Except as described in the Registration Statement, the General Disclosure Package and the 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, consent
agreement, memorandum of understanding 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 Regulatory Agency (as defined below) that currently relates
to or restricts in any material respect the conduct of their business or that in any manner relates to their capital adequacy,
credit policies, management or business (each, a “Regulatory Agreement”), nor has the Company or any of its subsidiaries
been advised by any Regulatory Agency that it is considering issuing or requesting any Regulatory Agreement. There is no unresolved
violation, criticism or exception by any Regulatory Agency with respect to any report or statement relating to any examinations
of the Company or any of its subsidiaries, except for matters of such nature that singly or in the aggregate are not reasonably
likely to result in a Material Adverse Effect. The Company and its subsidiaries are in compliance in all material respects with
all laws administered by the Regulatory Agencies. As used herein, the term “Regulatory Agency” means any federal or
state agency having supervisory or regulatory authority with respect to the Company or any of its subsidiaries charged with the
supervision or regulation of depositary institutions or holding companies of depositary institutions, or engaged in the insurance
of depositary institution deposits, or any court, administrative agency or commission or other authority, body or agency having
supervisory or regulatory authority with respect to the Company or any of its subsidiaries.
(xi) Capitalization.
The authorized, issued and outstanding shares of capital stock of the Company are as set forth in the last balance sheet included
in the Registration Statement, the preliminary prospectus supplement contained in the General Disclosure Package and the Prospectus
(except for subsequent issuances, if any, pursuant to this Agreement, pursuant to reservations, agreements or employee benefit
plans referred to in the Registration Statement, the General Disclosure Package and the Prospectus or pursuant to the conversion
or exercise of convertible securities or options referred to in the Registration Statement, the General Disclosure Package and
the Prospectus). The outstanding shares of capital stock of the Company, including the Securities, have been duly authorized and
validly issued and are fully paid and non-assessable. None of the outstanding shares of capital stock of the Company, including
the Securities, were issued in violation of the preemptive or other similar rights of any securityholder of the Company or any
other entity. The outstanding capital stock of the Company, including the Preferred Stock, conforms to all statements relating
thereto contained in the Registration Statement, the General Disclosure Package and the Prospectus and such statements conform
to the rights set forth in the instruments defining the same. The Company has no present intention to redeem the Securities within
the 12 months following the date of this Agreement.
(xii) Authorization
of Agreement. This Agreement has been duly authorized, executed and delivered by each of the Company and the Bank.
(xiii) Filing
of Articles of Amendment; Form of Certificate. The Articles of Amendment to Designate the Preferences, Limitations and Relative
Rights of Fixed Rate Cumulative Perpetual Preferred Stock, Series A has been duly filed with the Secretary of State of the State
of North Carolina. The form of certificate representing the Securities complies with the requirements of North Carolina state law,
the Charter and the By-Laws.
(xiv) Registration
Rights. There are no persons with registration rights or other similar rights to have any securities registered for sale pursuant
to the Registration Statement or otherwise registered for sale or sold by the Company under the 1933 Act pursuant to this Agreement
other than any rights that have been disclosed in the Registration Statement, the General Disclosure Package and the Prospectus
and have been complied with or waived.
(xv) Absence
of Violations, Defaults and Conflicts. Neither the Company nor any of its subsidiaries is (A) in violation of its charter,
by-laws or similar organizational document, (B) in default in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other
agreement or instrument to which the Company or any of its subsidiaries is a party or by which it or any of them may be bound or
to which any of the properties, assets or operations of the Company or any of its subsidiaries is subject (collectively, “Agreements
and Instruments”), except for such defaults that would not, singly or in the aggregate, result in a Material Adverse Effect,
or (C) in violation of any law, statute, rule, regulation, judgment, order, writ or decree of any arbitrator, court, governmental
body, regulatory body, administrative agency (including, without limitation, each applicable Regulatory Agency) or other authority,
body or agency having jurisdiction over the Company or any of its subsidiaries or any of their respective properties, assets or
operations (each, a “Governmental Entity”), except for such violations that would not, singly or in the aggregate,
result in a Material Adverse Effect. The execution, delivery and performance of this Agreement and the Articles of Amendment and
the consummation of the transactions contemplated in this Agreement and in the Registration Statement, the General Disclosure Package
and the Prospectus and compliance by the Company and the Bank with their respective obligations under this Agreement and the Articles
of Amendment with respect to the Securities have been duly authorized by the Company and the Bank, as the case may be, by all requisite
action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute
a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge
or encumbrance upon any properties, assets or operations of the Company or any of its subsidiaries pursuant to, the Agreements
and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would
not, singly or in the aggregate, result in a Material Adverse Effect), nor will such action result in any violation of the provisions
of the charter, by-laws or similar organizational document of the Company or any of its subsidiaries or any law, statute, rule,
regulation, judgment, order, writ or decree of any Governmental Entity. As used herein, a “Repayment Event” means any
event or condition which gives the holder of any note, debenture or other financing instrument (or any person acting on such holder’s
behalf) the right to require the repurchase, redemption or repayment of all or a portion of the related financing by the Company
or any of its subsidiaries.
(xvi) Absence
of Labor Dispute. No labor dispute with the employees of the Company or any of its subsidiaries exists or, to the knowledge
of the Company, is imminent, and the Company is not aware of any existing or imminent labor disturbance by the employees of any
of its or any subsidiary’s principal suppliers, manufacturers, customers or contractors, which could, singly or in the aggregate,
result in a Material Adverse Effect.
(xvii) Absence
of Proceedings. Except as described in the Registration Statement, the General Disclosure Package and the Prospectus, there
is no action, suit, proceeding, inquiry or investigation before or brought by any Governmental Entity now pending, or, to the knowledge
of the Company, threatened, against or affecting the Company or any of its subsidiaries, which could, singly or in the aggregate,
result in a Material Adverse Effect, or which might materially and adversely affect their respective properties, assets or operations,
or the consummation of the transactions contemplated in this Agreement, or the performance by the Company of its obligations under
this Agreement or the Articles of Amendment with respect to the Securities. The aggregate of all pending legal or governmental
proceedings to which the Company or any of its subsidiaries are a party or of which any of their respective properties, assets
or operations are the subject which are not described in the Registration Statement, the General Disclosure Package and the Prospectus,
including ordinary routine litigation incidental to the business, would not, singly or in the aggregate, result in a Material Adverse
Effect.
(xviii) Accuracy
of Contracts; Exhibits. All descriptions in the Registration Statement, the General Disclosure Package and the Prospectus of
contracts and other documents to which the Company or any of its subsidiaries are a party are accurate in all material respects.
There are no contracts, instruments or other documents which are required to be described in the Registration Statement, any preliminary
prospectus or the Prospectus or to be filed as exhibits to the Registration Statement which have not been so described and filed
as required.
(xix) Absence
of Further Requirements. No filing with, or authorization, approval, consent, license, order, registration, qualification or
decree of, any Governmental Entity is necessary or required for the Company or the Bank to enter into, or perform their respective
obligations under, this Agreement or the Articles of Amendment with respect to the Securities or the consummation of the transactions
contemplated in this Agreement, except such as have been already obtained or as may be required under the 1933 Act, the 1933 Act
Regulations, the securities laws of any state or non-U.S. jurisdiction, or the rules of Financial Industry Regulatory Authority,
Inc. (“FINRA”).
(xx) Possession
of Licenses and Permits. The Company and its subsidiaries possess such permits, licenses, approvals, consents and other authorizations
(collectively, “Governmental Licenses”) issued by the appropriate Governmental Entities necessary to conduct the business
now operated by them, except where the failure so to possess would not, singly or in the aggregate, result in a Material Adverse
Effect. The Company and its subsidiaries are in compliance with the terms and conditions of all Governmental Licenses, except where
the failure so to comply would not, singly or in the aggregate, result in a Material Adverse Effect. All of the Governmental Licenses
are valid and in full force and effect, except when the invalidity of such Governmental Licenses or the failure of such Governmental
Licenses to be in full force and effect would not, singly or in the aggregate, result in a Material Adverse Effect. Neither the
Company nor any of its subsidiaries has received any notice of proceedings relating to the revocation or modification of any Governmental
Licenses which, if the subject of an unfavorable decision, ruling or finding, could, singly or in the aggregate, result in a Material
Adverse Effect.
(xxi) Title
to Property. The Company and its subsidiaries have good and marketable title to all real property owned by them and good title
to all other properties owned by them, in each case, free and clear of all mortgages, pledges, liens, security interests, claims,
restrictions or encumbrances of any kind except such as (A) are described in the Registration Statement, the General Disclosure
Package and the Prospectus or (B) do not, singly or in the aggregate, materially affect the value of such property and do
not materially interfere with the use made and proposed to be made of such property by the Company or any of its subsidiaries.
All of the leases and subleases material to the business of the Company and its subsidiaries, considered as one enterprise, and
under which the Company or any of its subsidiaries holds properties described in the Registration Statement, the General Disclosure
Package or the Prospectus, are in full force and effect, and neither the Company nor any such subsidiary has any notice of any
material claim of any sort that has been asserted by anyone adverse to its rights under any of the leases or subleases mentioned
above or affecting or questioning its rights to the continued possession of the leased or subleased premises under any such lease
or sublease.
(xxii) Possession
of Intellectual Property. The Company and its subsidiaries own or possess, or can acquire on reasonable terms, adequate patents,
patent rights, licenses, inventions, copyrights, know-how (including trade secrets and other unpatented and/or unpatentable proprietary
or confidential information, systems or procedures), trademarks, service marks, trade names or other intellectual property (collectively,
“Intellectual Property”) necessary to carry on the business now operated by them, and neither the Company nor any of
its subsidiaries has received any notice or is otherwise aware of any infringement of or conflict with asserted rights of others
with respect to any Intellectual Property or of any facts or circumstances which would render any Intellectual Property invalid
or inadequate to protect the interest of the Company or any of its subsidiaries therein, and which infringement or conflict, if
the subject of an unfavorable decision, ruling or finding, or invalidity or inadequacy, could, singly or in the aggregate, result
in a Material Adverse Effect.
(xxiii) Environmental
Laws. Except as described in the Registration Statement, the General Disclosure Package and the Prospectus or as would not,
singly or in the aggregate, result in a Material Adverse Effect, (A) neither the Company nor any of its subsidiaries is in
violation of any federal, state, local or foreign statute, law, rule, regulation, ordinance, code, policy or rule of common law
or any judicial or administrative interpretation thereof, including any judicial or administrative order, consent, decree or judgment,
relating to pollution or protection of human health, the environment (including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife, including, without limitation, laws and regulations relating to the
release or threatened release of chemicals, pollutants, contaminants, wastes, toxic substances, hazardous substances, petroleum
or petroleum products, 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, (C) there are no pending or, threatened administrative,
regulatory or judicial actions, suits, demands, demand letters, claims, liens, notices of noncompliance or violation, investigation
or proceedings relating to any Environmental Law against the Company or any of its subsidiaries and (D) there are no events
or circumstances that would reasonably be expected to form the basis of an order for clean-up or remediation, or an action, suit
or proceeding by any private party or Governmental Entity, against or affecting the Company or any of its subsidiaries relating
to Hazardous Materials or any Environmental Laws.
(xxiv) Accounting
Controls and Disclosure Controls. The Company and each of its subsidiaries maintain effective internal control over financial
reporting (as defined under Rule 13-a15 and 15d-15 of the 1934 Act Regulations) and 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; (D) the recorded accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences; and (E) any interactive data in eXtensible Business
Reporting Language included in the Registration Statement, the General Disclosure Package and the Prospectus fairly presents the
required information and is prepared in accordance with the Commission’s rules and guidelines applicable thereto. Except
as described in the Registration Statement, the General Disclosure Package and the Prospectus, since the end of the Company’s
most recent audited fiscal year, there has been (1) no material weakness in the Company’s internal control over financial
reporting (whether or not remediated) and (2) no change in the Company’s internal control over financial reporting that
has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting.
The Company and each of its subsidiaries maintain an effective system of disclosure controls and procedures (as defined in Rule 13a-15
and Rule 15d-15 of the 1934 Act Regulations) that are designed to ensure that the information required to be disclosed by
the Company in the reports that it files or submits under the 1934 Act is recorded, processed, summarized and reported, within
the time periods specified in the Commission’s rules and forms, and is accumulated and communicated to the Company’s
management, including its principal executive officer or officers and principal financial officer or officers, as appropriate,
to allow timely decisions regarding disclosure.
(xxv) Compliance
with the Xxxxxxxx-Xxxxx Act; Registration and Listing of Common Stock. 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 of 2002 and the rules and regulations promulgated in connection therewith, including Section 402
related to loans and Sections 302 and 906 related to certifications. The Company’s common stock has been duly registered
under the 1934 Act and duly listed on the Nasdaq Capital Market and the Company is in compliance in all material respects with
the applicable rules and regulations with respect to such registration and listing. The Company has taken no action designed to,
or reasonably likely to have the effect of, terminating the registration of the Company’s common stock under the 1934 Act
or the listing of the Company’s common stock on the Nasdaq Capital Market and has not received any communication that the
Commission or the Nasdaq Capital Market has terminated, intends to terminate, or is contemplating terminating, such registration
or listing, respectively.
(xxvi) Payment
of Taxes. All United States federal income tax returns of the Company and its subsidiaries required by law to be filed have
been filed and all taxes shown by such returns or otherwise assessed, which are due and payable, have been paid, except assessments
against which appeals have been or will be promptly taken and as to which adequate reserves have been provided. The United States
federal income tax returns of the Company and its subsidiaries through the fiscal year ended December 31, 2009 have been settled
and no assessment in connection therewith has been made against the Company or any of its subsidiaries. The Company and its subsidiaries
have filed all other tax returns that are required to have been filed by them pursuant to applicable foreign, state, local or other
law except insofar as the failure to file such returns would not, singly or in the aggregate, result in a Material Adverse Effect,
and has paid all taxes due pursuant to such returns or pursuant to any assessment received by the Company or any of its subsidiaries,
except for such taxes, if any, as are being contested in good faith and as to which adequate reserves have been established by
the Company. The charges, accruals and reserves on the books of the Company in respect of any income and corporation tax liability
for any years not finally determined are adequate to meet any assessments or re-assessments for additional income tax for any years
not finally determined, except to the extent of any inadequacy that would not, singly or in the aggregate, result in a Material
Adverse Effect.
(xxvii) Insurance.
The Company and its subsidiaries carry or are entitled to the benefits of insurance, with financially sound and reputable insurers,
in such amounts and covering such risks as is generally maintained by companies of established repute engaged in the same or similar
business, and all such insurance is in full force and effect. The Company has no reason to believe that it or any of its subsidiaries
will not be able (A) to renew its existing insurance coverage as and when such policies expire or (B) to obtain comparable
coverage from similar institutions as may be necessary or appropriate to conduct its business as now conducted and at a cost that
would not, singly or in the aggregate, result in a Material Adverse Effect. Neither the Company nor any of its subsidiaries has
been denied any insurance coverage which it has sought or for which it has applied.
(xxviii) Investment
Company Act. Neither the Company nor the Bank is required, or upon the consummation of the transactions contemplated in this
Agreement will be required, to register as an “investment company” under the Investment Company Act of 1940, as amended
(the “1940 Act”).
(xxix) Absence
of Manipulation. Neither the Company nor any subsidiary or other affiliate of the Company has taken, nor will the Company or
any such subsidiary or other affiliate take, directly or indirectly, any action which is designed, or would be expected, to cause
or result in, or which constitutes, the stabilization or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Securities or to result in a violation of Regulation M under the 1934 Act.
(xxx) Foreign
Corrupt Practices Act. None of the Company, any of its subsidiaries or, to the knowledge of the Company, any director, officer,
agent, employee, affiliate or other person acting on behalf of the Company or any of its subsidiaries is aware of or has taken
any action, directly or indirectly, that would result in a violation by such persons of the Foreign Corrupt Practices Act of 1977,
as amended, and the rules and regulations thereunder (the “FCPA”), including, without limitation, making use of the
mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization
of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any
“foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any
candidate for foreign political office, in contravention of the FCPA and the Company, its subsidiaries and, to the knowledge of
the Company, its other affiliates have conducted their businesses in compliance with the FCPA and have instituted and maintain
policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(xxxi) Money
Laundering Laws. The operations of the Company and its subsidiaries are and have been conducted at all times in compliance
with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970,
as amended, the money laundering statutes of all jurisdictions, the rules and regulations thereunder and any related or similar
rules, regulations or guidelines, issued, administered or enforced by any Governmental Entity (collectively, the “Money Laundering
Laws”). No action, suit or proceeding by or before any Governmental Entity involving the Company or any of its subsidiaries
with respect to the Money Laundering Laws is pending or, to the best knowledge of the Company, threatened.
(xxxii) OFAC.
None of the Company, any of its subsidiaries or, to the knowledge of the Company, any director, officer, agent, employee, affiliate
or other person acting on behalf of the Company or any of its subsidiaries is (A) an individual or entity (“Person”)
currently the subject or target of any sanctions administered or enforced by the United States Government, including, without limitation,
the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”), the United Nations Security
Council (“UNSC”), the European Union, Her Majesty’s Treasury (“HMT”), or other relevant sanctions
authority (collectively, “Sanctions”) or (B) located, organized or resident in a country or territory that is
the subject of Sanctions.
(xxxiii) Relationship
with Underwriters. Except as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus,
the Company does not have any material lending or other relationship with the Underwriters or any affiliate of any Underwriter.
(xxxiv) Statistical
and Market-Related Data. Any statistical and market-related data included in the Registration Statement, the General Disclosure
Package or the Prospectus are based on or derived from sources that the Company believes, after reasonable inquiry, to be reliable
and accurate and, to the extent required, the Company has obtained the written consent to the use of such data from such sources.
(xxxv) Prohibition
on Dividends. Except as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, no subsidiary
of the Company is currently prohibited, directly or indirectly, under any order of any Regulatory Agency (other than orders applicable
to bank or savings and loan holding companies and their subsidiaries generally), under any applicable law, or under any agreement
or other instrument to which it is a party or is subject, from paying any dividends to the Company, from making any other distribution
on such subsidiary’s capital stock, from repaying to the Company or any other subsidiary of the Company any loans or advances
to such subsidiary or from transferring any of such subsidiary’s properties, assets or operations to the Company or any other
subsidiary of the Company.
(xxxvi) Not
a U.S. Real Property Holding Corporation. The Company is not, and has not been, a U.S. real property holding corporation
within the meaning of Section 897 of the Internal Revenue Code of 1986, as amended.
(xxxvii) Fair
Saleable Value of Assets. Each of the Company and its subsidiaries owns and, after giving effect to the transactions contemplated
in this Agreement, will own assets the fair saleable value of which are greater than (A) the total amount of its liabilities
(including known contingent liabilities) and (B) the amount that will be required to pay the probable liabilities of its existing
debts as they become absolute and matured considering the financing alternatives reasonably available to it. The Company has no
knowledge of any facts or circumstances which lead it to believe that it or any of its subsidiaries will be required to file for
reorganization or liquidation under the bankruptcy or reorganization laws of any jurisdiction, and has no present intent to so
file.
(xxxviii) Affiliated
Transactions or Relationships. No transaction has occurred or relationship exists between or among the Company or any of its
subsidiaries, on the one hand, and its affiliates, officers or directors, on the other hand, that is required to be described in
the Registration Statement, the preliminary prospectus contained in the General Disclosure Package or the Prospectus, including
any document incorporated by reference therein that is not so described therein.
(b) Representations
and Warranties by the Bank. The Bank represents and warrants to each Underwriter and the Selling Shareholder at each Representation
Date, and agrees with each Underwriter, as follows:
(i) Good
Standing. The Bank has been duly organized and is validly existing under the laws of the jurisdiction of its organization,
has the requisite corporate power and authority to own, lease and operate its properties, to conduct its business as described
in the Registration Statement, the General Disclosure Package and the Prospectus and to enter into and perform its obligations
under, and to consummate the transactions contemplated in, this Agreement and is duly qualified to transact business and is in
good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property
or the conduct of business, except where the failure to so qualify or to be in good standing would not, singly or in the aggregate,
result in a Material Adverse Effect. The deposit accounts of the Bank are insured up to the applicable limits by the Deposit Insurance
Fund of the FDIC to the fullest extent permitted by law and the rules and regulations of the FDIC, and no proceeding for the revocation
or termination of such insurance is pending or, to the knowledge of the Company, threatened.
(ii) Regulatory
Matters. Except as described in the Registration Statement, the General Disclosure Package and the Prospectus, the Bank is
not subject or party to, and has not received any notice or advice that it may become subject or party to any investigation with
respect to, any Regulatory Agreement, and the Bank has not been advised by any Regulatory Agency that it is considering issuing
or requesting any Regulatory Agreement. There is no unresolved violation, criticism or exception by any Regulatory Agency with
respect to any report or statement relating to any examinations of the Bank, except for matters of such nature that, singly or
in the aggregate, are not reasonably likely to result in a Material Adverse Effect. The Bank is in compliance in all material respects
with all laws administered by the Regulatory Agencies.
(iii) Authorization
of Agreement. This Agreement has been duly authorized, executed and delivered by the Bank.
(iv) Absence
of Violations, Defaults and Conflicts. The Bank is not (A) in violation of its charter, by-laws or similar organizational
document, (B) in default in the performance or observance of any obligation, agreement, covenant or condition contained in
any Agreement and Instrument to which the Bank is a party or by which it may be bound or to which any of the properties, assets
or operations of the Bank is subject, except for such defaults that would not, singly or in the aggregate, result in a Material
Adverse Effect, or (C) in violation of any law, statute, rule, regulation, judgment, order, writ or decree of any Governmental
Entity (including, without limitation, each applicable Regulatory Agency) having jurisdiction over the Bank or any of its properties,
assets or operations, except for such violations that would not, singly or in the aggregate, result in a Material Adverse Effect.
(v) Noncontravention.
The execution, delivery and performance of this Agreement and compliance by the Bank with its obligations under this Agreement
have been duly authorized by the Bank by all requisite action and do not and will not, whether with or without the giving of notice
or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event under, or result in the creation
or imposition of any lien, charge or encumbrance upon any properties, assets or operations of the Bank pursuant to, the Agreements
and Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would
not, singly or in the aggregate, result in a Material Adverse Effect), nor will such action result in any violation of the provisions
of the charter, by-laws or similar organizational document of the Bank or any law, statute, rule, regulation, judgment, order,
writ or decree of any Governmental Entity.
(vi) Absence
of Further Requirements. No filing with, or authorization, approval, consent, license, order, registration, qualification or
decree of, any Governmental Entity is necessary or required for the performance by the Bank of its obligations under this Agreement.
(vii) Investment
Company Act. The Bank is not required to register as an “investment company” under the 1940 Act.
(c) Representations
and Warranties by the Selling Shareholder. The Selling Shareholder represents and warrants to, and agrees with, the Company
and each Underwriter at each Representation Date as follows:
(i) Good
and Marketable Title. The Selling Shareholder now has and at the Closing Time will have good and marketable title to the Securities
to be sold by it, free and clear of any liens, encumbrances, equities and claims, and full right, power and authority to effect
the sale and delivery of the Securities. Upon the delivery of, against payment for, the Securities pursuant to this Agreement and
assuming an Underwriter does not have notice of any adverse claim (within the meaning of the Uniform Commercial Code as in effect
in the State of New York), such Underwriter will acquire good and marketable title thereto, free and clear of any liens, encumbrances,
equities and claims.
(ii) Authorization
of Agreement. The Selling Shareholder has full right, power and authority to execute and deliver this Agreement and to perform
its obligations hereunder, and this Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Shareholder.
(iii) Absence
of Further Requirements. No consent, approval or waiver is required under any instrument or agreement to which the Selling
Shareholder is a party or by which the Selling Shareholder is bound in connection with the offering, sale or purchase by the Underwriters
of any of the Securities by the Selling Shareholder under this Agreement or the consummation by the Selling Shareholder of any
of the other transactions contemplated hereunder.
(d) Officer’s
Certificates. Any certificate signed by any officer of the Company or any of its subsidiaries (including the Bank) and delivered
to the Representatives or to counsel for the Underwriters shall be deemed a representation and warranty by the Company and, if
applicable, the Bank to each Underwriter as to the matters covered thereby.
SECTION
2. Sale and Delivery to Underwriters; Closing.
(a) Securities.
On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the
Selling Shareholder agrees to sell to each Underwriter, severally and not jointly, and each Underwriter, severally and not jointly,
agrees to purchase from the Selling Shareholder, at the price per share set forth in Schedule A, the number of Securities
set forth in Schedule A opposite the name of such Underwriter, plus any additional number of Securities which such Underwriter
may become obligated to purchase pursuant to the provisions of Section 11 hereof, subject, in each case, to such adjustments
among the Underwriters as the Representatives in their sole discretion shall make to eliminate any sales or purchases of fractional
shares.
(b) Payment.
Payment of the purchase price for, and delivery of certificates for, the Securities shall be made at the offices of Skadden, Arps,
Slate, Xxxxxxx & Xxxx LLP, Xxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as shall be agreed upon by the
Representatives and the Selling Shareholder, at 9:00 A.M. (New York City time) on the third (fourth, if the pricing occurs
after 4:30 P.M. (New York City time) on any given day) business day after the date hereof (unless postponed in accordance
with the provisions of Section 11), or such other time not later than ten business days after such date as shall be agreed
upon by the Representatives and the Selling Shareholder (such time and date of payment and delivery being herein called “Closing
Time”).
Payment shall be made
to the Selling Shareholder by wire transfer of immediately available funds to a bank account designated by the Selling Shareholder
against delivery to the Representatives for the respective accounts of the Underwriters of certificates for the Securities to be
purchased by them. It is understood that each Underwriter has authorized the Representatives, for their account, to accept delivery
of, receipt for, and make payment of the purchase price for, the Securities, which it has agreed to purchase. Xxxxxxx Xxxxx and
Xxxxxxx X’Xxxxx, individually and not as Representatives of the Underwriters, may (but shall not be obligated to) make payment
of the purchase price for the Securities to be purchased by any Underwriter whose funds have not been received by the Closing Time
but such payment shall not relieve such Underwriter from its obligations hereunder.
SECTION
3. Covenants of the Company. The Company covenants with
each Underwriter and the Selling Shareholder as follows:
(a) Compliance
with Commission Requests. The Company, subject to Section 3(b), hereof will comply with the requirements of Rule 430B,
and will notify the Representatives and the Selling Shareholder immediately, and confirm the notice in writing, (i) when any
post-effective amendment to the Registration Statement or any new registration statement relating to the Securities shall become
effective or any amendment or supplement to the General Disclosure Package or the Prospectus shall have been used or filed, as
the case may be, including any document incorporated by reference therein, in each case only as permitted by Section 3 hereof,
(ii) of the receipt of any comments from the Commission, (iii) of any request by the Commission for any amendment to
the Registration Statement or any amendment or supplement to the General Disclosure Package or the Prospectus, including any document
incorporated by reference therein, or for additional information, (iv) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or any post-effective amendment thereto or of the issuance of any order
preventing or suspending the use of any preliminary prospectus or the Prospectus or any amendment or supplement thereto, or of
the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the initiation or threatening
of any proceedings for any of such purposes or of any examination pursuant to Section 8(d) or 8(e) of the 1933 Act concerning
the Registration Statement and (v) if the Company becomes the subject of a proceeding under Section 8A of the 1933 Act
in connection with the offering of the Securities. The Company will effect all filings required under Rule 424(b), in the
manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will take such steps
as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received
for filing by the Commission and, in the event that it was not, it will promptly file such prospectus. The Company will make every
reasonable effort to prevent the issuance of any stop, prevention or suspension order and, if any such order is issued, to obtain
the lifting thereof at the earliest possible moment.
(b) Continued
Compliance with Securities Laws. The Company will comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act and the
1934 Act Regulations so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and
in the Registration Statement, the General Disclosure Package and the Prospectus. If at any time when a prospectus relating to
the Securities is (or, but for the exception afforded by Rule 172 of the 1933 Act Regulations (“Rule 172”),
would be) required by the 1933 Act to be delivered in connection with sales of the Securities any event shall occur or condition
shall exist as a result of which it is necessary, in the opinion of counsel for the Underwriters, the Company or the Selling Shareholder,
to (i) amend the Registration Statement in order that the Registration Statement will not include 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 not misleading,
(ii) amend or supplement the General Disclosure Package or the Prospectus in order that the General Disclosure Package or
the Prospectus, as the case may be, will not include any untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein not misleading in the light of the circumstances existing at the time it is delivered to
a purchaser or (iii) amend the Registration Statement or amend or supplement the General Disclosure Package or the Prospectus,
as the case may be, including, without limitation, any document incorporated therein by reference, in order to comply with the
requirements of the 1933 Act, the 1933 Act Regulations, the 1934 Act or the 1934 Act Regulations, the Company will promptly (A) give
the Representatives and the Selling Shareholder written notice of such event or condition, (B) prepare any amendment or supplement
as may be necessary to correct such statement or omission or to make the Registration Statement, the General Disclosure Package
or the Prospectus comply with such requirements and, a reasonable amount of time prior to any proposed filing or use, furnish the
Representatives and the Selling Shareholder with copies of any such amendment or supplement and (C) file with the Commission
any such amendment or supplement and use its best efforts to have any amendment to the Registration Statement declared effective
by the Commission as soon as possible if the Company is not eligible to file an automatic shelf registration statement at such
time, provided that the Company shall not file or use any such amendment or supplement to which the Representatives, the Selling
Shareholder or counsel for the Underwriters or the Selling Shareholder shall object.
(c) Filing
or Use of Amendments or Supplements. The Company has given the Representatives and the Selling Shareholder written notice of
any filings made pursuant to the 1934 Act or 1934 Act Regulations within 48 hours prior to the Applicable Time and will give the
Representatives and the Selling Shareholder written notice of its intention to file or use any amendment to the Registration Statement
or any amendment or supplement to the General Disclosure Package or the Prospectus, whether pursuant to the 1933 Act, the 1933
Act Regulations, the 1934 Act or the 1934 Act Regulations or otherwise, from the Applicable Time to the later of (i) the time
when a prospectus relating to the Securities is no longer required by the 1933 Act (without giving effect to Rule 172) to
be delivered in connection with sales of the Securities and (ii) the Closing Time, and will furnish the Representatives and
the Selling Shareholder with copies of any such amendment or supplement a reasonable amount of time prior to such proposed filing
or use, as the case may be, and will not file or use any such amendment or supplement to which the Representatives, the Selling
Shareholder or counsel for the Underwriters or the Selling Shareholder shall reasonably object.
(d) Delivery
of Registration Statement. The Company has furnished or will deliver to the Representatives and the Selling Shareholder and
counsel for the Underwriters and the Selling Shareholder, without charge, signed copies of the Registration Statement as originally
filed and each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated
or deemed to be incorporated by reference therein) and signed copies of all consents and certificates of experts, and will also
deliver to the Representatives, without charge, a conformed copy of the Registration Statement as originally filed and each amendment
thereto (without exhibits) for each of the Underwriters. The signed copies of the Registration Statement and each amendment thereto
furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant
to XXXXX, except to the extent permitted by Regulation S-T.
(e) Delivery
of Prospectuses. The Company has delivered to each Underwriter and the Selling Shareholder, without charge, as many copies
of each preliminary prospectus as such Underwriter reasonably requested, and the Company hereby consents to the use of such copies
for purposes permitted by the 1933 Act. The Company will furnish to each Underwriter and the Selling Shareholder, without charge,
during the period when a prospectus relating to the Securities is (or, but for the exception afforded by Rule 172, would be)
required by the 1933 Act to be delivered in connection with sales of the Securities, such number of copies of the Prospectus (as
amended or supplemented) as such Underwriter or the Selling Shareholder, as applicable, may reasonably request. The Prospectus
and any amendments or supplements thereto furnished to the Underwriters will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(f) Blue
Sky Qualifications. The Company will use its reasonable best efforts, in cooperation with the Underwriters and the Selling
Shareholder, to qualify the Securities for offering and sale under the applicable securities laws of such states and non-U.S. jurisdictions
as the Representatives and the Selling Shareholder may designate and to maintain such qualifications in effect so long as required
to complete the distribution of the Securities; provided, however, that the Company shall not be obligated to file any general
consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which
it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise
so subject.
(g) Earnings
Statements. The Company will timely file such reports pursuant to the 1934 Act as are necessary in order to make generally
available to its securityholders as soon as practicable an earnings statement for the purposes of, and to provide to the Underwriters
the benefits contemplated by, the last paragraph of Section 11(a) of the 1933 Act.
(h) Restriction
on Sale of Securities. During a period of 30 days from the date of this Agreement, the Company will not,
without the prior written consent of the Representatives, (i) directly or indirectly, offer, pledge, sell, contract to sell,
sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase
or otherwise transfer or dispose of any shares of preferred stock or any securities convertible into or exercisable or exchangeable
for preferred stock or file any registration statement under the 1933 Act with respect to any of the foregoing or (ii) enter
into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic
consequence of ownership of preferred stock, whether any such swap or transaction described in clause (i) or (ii) above
is to be settled by delivery of preferred stock or such other securities, in cash or otherwise.
(i) Reporting
Requirements. The Company, during the period when a prospectus relating to the Securities is (or, but for the exception afforded
by Rule 172, would be) required by the 1933 Act to be delivered in connection with sales of the Securities, will file all
documents required to be filed with the Commission pursuant to the 1934 Act within the time periods required by, and each such
document will meet the requirements of, the 1934 Act and 1934 Act Regulations.
(j) Issuer
Free Writing Prospectuses. The Company agrees that, unless it obtains the prior written consent of the Representatives and
the Selling Shareholder, it will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus
or that would otherwise constitute a “free writing prospectus,” or a portion thereof, required to be filed by the Company
with the Commission or retained by the Company under Rule 433; provided that the Representatives and the Selling Shareholder
will be deemed to have consented to the Issuer Free Writing Prospectuses listed on Schedule C hereto and any “road show
that is a written communication” within the meaning of Rule 433(d)(8)(i) that has been reviewed by the Representatives
and the Selling Shareholder. The Company represents that it has treated or agrees that it will treat each such free writing prospectus
consented to, or deemed consented to, by the Representatives and the Selling Shareholder as an Issuer Free Writing Prospectus and
that it has complied and will comply with the applicable requirements of Rule 433 with respect thereto, including timely filing
with the Commission where required, legending and record keeping. If at any time following issuance of an Issuer Free Writing Prospectus
there occurred or occurs an event or condition as a result of which such Issuer Free Writing Prospectus conflicted or would conflict
with the information contained in the Registration Statement, any preliminary prospectus or the Prospectus or included or would
include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company will promptly
notify the Representatives and the Selling Shareholder in writing and will promptly amend or supplement, at its own expense, such
Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.
(k) DTC.
The Company will cooperate with the Underwriters and use its reasonable best efforts to permit the Securities to be eligible for
clearance, settlement and trading through the facilities of The Depository Trust Company (“DTC”).
SECTION
4. Covenants of the Selling Shareholder. The Selling Shareholder
covenants and agrees with the Underwriters and the Company as follows:
(a) No
Free Writing Prospectuses. It has not made and will not make any offer relating to the Securities that would constitute an
Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus,” or portion thereof,
required to be filed with the Commission without the prior written consent of the Representatives and the Company.
(b) Restriction
on Sale of Remaining Shares. During a period of 30 days from the date of this Agreement, the Selling Shareholder will not,
without the prior written consent of the Representatives, (i) directly or indirectly, offer, pledge, sell, contract to sell,
sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase
or otherwise transfer or dispose of any shares of Preferred Stock that do not constitute Securities to be sold under this Agreement
(the “Remaining Shares”) or exercise any right with respect to the registration of any of the Remaining Shares, or
cause to be filed any registration statement in connection therewith, under the 1933 Act or (ii) enter into any swap or any
other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership
of the Remaining Shares, whether any such swap or transaction described in clause (i) or (ii) above is to be settled
by delivery of Preferred Stock or such other securities, in cash or otherwise; provided, however, that the foregoing restrictions
shall not apply to any sales of the Remaining Shares by the Selling Shareholder to the Company.
SECTION
5. Payment of Expenses.
(a) Expenses.
The Company will pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including
(i) the preparation, printing and filing of the Registration Statement (including financial statements and exhibits) as originally
filed and each amendment thereto, (ii) the preparation, printing and delivery to the Underwriters of copies of each preliminary
prospectus, each Issuer Free Writing Prospectus and the Prospectus and any amendments or supplements thereto and any costs associated
with electronic delivery of any of the foregoing by the Underwriters to investors, (iii) the preparation, issuance and delivery
of the certificates for the Securities to the Underwriters, including any stock or other transfer taxes and any stamp or other
duties payable upon the sale, issuance or delivery of the Securities to the Underwriters, (iv) the fees and disbursements
of the Company’s counsel, accountants and other advisors, (v) the qualification of the Securities under securities laws
in accordance with the provisions of Section 3(f) hereof, including filing fees and the reasonable fees and disbursements
of counsel for the Underwriters in connection therewith and in connection with the preparation of the Blue Sky Survey and any supplement
thereto, (vi) the fees and expenses of any transfer agent or registrar for the Securities, (vii) the costs and expenses
of the Company relating to investor presentations on any “road show” undertaken in connection with the marketing of
the Securities, 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, (viii) the filing fees incident to, and the reasonable fees and disbursements of counsel to the Underwriters
in connection with, the review by FINRA, if required, of the terms of the sale of the Securities, (ix) the reasonable fees
and expenses of counsel for the Selling Shareholder in an amount not to exceed $25,000, (x) the fees and expenses of making
the Securities eligible for clearance, settlement and trading through the facilities of DTC, and (xi) the costs and expenses
(including, without limitation, any damages or other amounts payable in connection with legal or contractual liability) associated
with the reforming of any contracts for sale of the Securities made by the Underwriters caused by a breach of the representation
contained in the second sentence of Section 1(a)(ii).
(b) Termination
of Agreement. If this Agreement is terminated by the Representatives in accordance with the provisions of Section 6 or
Section 10(a)(i) or (iii) hereof, the Company shall reimburse the Underwriters for all of their out-of-pocket expenses,
including the reasonable fees and disbursements of counsel for the Underwriters.
(c) Other
Agreement. The provisions of this Section 5 shall not supersede or otherwise affect any agreement that the Company
and the Selling Shareholder may otherwise have entered into for the allocation of such expenses between them.
SECTION
6. Conditions of Underwriters’ Obligations. The
obligations of the several Underwriters hereunder are subject to the accuracy of the representations and warranties contained herein
or in certificates of any officer of the Company or any of its subsidiaries (including the Bank) or any representative of the Selling
Shareholder delivered pursuant to the provisions hereof, to the performance by the Company of its covenants and other obligations
hereunder, and to the following further conditions:
(a) Effectiveness
of Registration Statement, etc. Each of the Registration Statement and any post-effective amendment thereto has been declared
effective by the Commission under the 1933 Act. Each preliminary prospectus, each Issuer Free Writing Prospectus and the Prospectus
have been filed as required by Rule 424(b) (without reliance on Rule 424(b)(8)) and Rule 433, as applicable, within
the time period prescribed by, and in compliance with, the 1933 Act Regulations. No stop order suspending the effectiveness of
the Registration Statement or any post-effective amendment thereto has been issued under the 1933 Act, no order preventing or suspending
the use of any preliminary prospectus or the Prospectus or any amendment or supplement thereto has been issued and no proceedings
for any of those purposes have been instituted or are pending or, to the Company’s knowledge, threatened. The Company has
complied with each request (if any) from the Commission for additional information concerning the Registration Statement, the General
Disclosure Package or the Prospectus (including the documents incorporated by reference therein) or the offer and sale of the Securities
by the Selling Shareholder.
(b) Opinion
of Counsel for Company. At the Closing Time, the Representatives and the Selling Shareholder shall have received the favorable
opinion, dated the Closing Time, of Xxxxxx Xxxxxxx Xxxxxxxxx & Xxxx, LLP, counsel for the Company, in form and substance satisfactory
to the Representatives and the Selling Shareholder, together with signed or reproduced copies of such letter for each of the other
Underwriters, to the effect set forth in Exhibit A hereto and to such further effect as counsel to the Representatives and
the Selling Shareholder may reasonably request.
(c) Opinion
of Counsel for Underwriters. At the Closing Time, the Representatives shall have received the favorable opinion, dated the
Closing Time, of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, together with signed or reproduced
copies of such letter for each of the other Underwriters, with respect to such matters as the Representatives may require. In giving
such opinion, such counsel may rely, as to all matters governed by the laws of jurisdictions other than the law of the State of
New York and the federal securities laws of the United States, upon the opinions of counsel satisfactory to the Representatives.
Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper,
upon certificates of officers and other representatives of the Company and its subsidiaries and certificates of public officials.
(d) Officers’
Certificate. At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which
information is given in the Registration Statement, the General Disclosure Package or the Prospectus, any Material Adverse Change,
and the Representatives and the Selling Shareholder shall have received a certificate of the Chief Executive Officer or the President
and of the chief financial or chief accounting officer of each of the Company and the Bank, dated the Closing Time, to the effect
that (i) there has been no Material Adverse Change, (ii) the representations and warranties of the Company or the Bank,
as the case may be, in this Agreement are true and correct with the same force and effect as though expressly made at and as of
the Closing Time, (iii) the Company has complied with all agreements and satisfied all conditions on its part to be performed
or satisfied at or prior to the Closing Time, and (iv) the conditions specified in Section 6(a) hereof have been satisfied.
(e) Accountant’s
Comfort Letters. At the time of the execution of this Agreement, the Representatives and the Selling Shareholder shall have
received from Cherry, Bekaert & Holland, L.L.P. a letter or letters, dated such date, in form and substance satisfactory to
the Representatives and the Selling Shareholder, together with signed or reproduced copies of such letter or letters for each of
the other Underwriters, containing statements and information of the type ordinarily included in accountants’ “comfort
letters” to underwriters or selling shareholders, as applicable, with respect to the financial statements and financial information
contained in the Registration Statement, the General Disclosure Package and the Prospectus.
(f) Bring-down
Comfort Letters. At the Closing Time, the Representatives and the Selling Shareholder shall have received from Cherry, Bekaert
& Holland, L.L.P. a letter or letters, dated as of the Closing Time, to the effect that they reaffirm the statements made in
the letter or letters furnished pursuant to Section 6(e) hereof, except that the specified date referred to shall be a date
not more than three business days prior to the Closing Time.
(g) No
Objection. If a filing with FINRA is required, FINRA has confirmed that it has not raised any objection with respect to the
fairness and reasonableness of the underwriting terms and arrangements relating to the offering of the Securities.
(h) Maintenance
of Rating. Since the execution of this Agreement, there shall not have been any decrease in or withdrawal of the rating of
any securities of the Company or any of its subsidiaries (including the Bank) by any “nationally recognized statistical rating
organization” (as defined for purposes of Section 3(a)(62) of the 0000 Xxx) or any notice given of any intended or potential
decrease in or withdrawal of any such rating or of a possible change in any such rating that does not indicate the direction of
the possible change.
(i) Clearance,
Settlement and Trading. Prior to the Closing Time, the Company, Registrar & Transfer Company (or another transfer agent
acceptable to the Underwriters) and DTC shall have executed and delivered the Letter of Representations, dated the Closing Time,
and the Securities shall be eligible for clearance, settlement and trading through the facilities of DTC.
(j) Additional
Documents. At the Closing Time, counsel for the Underwriters shall have been furnished with such documents and opinions as
they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated,
or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by the Company and the Bank in connection with this Agreement shall be satisfactory
in form and substance to the Representatives and counsel for the Underwriters.
(k) Termination
of Agreement. 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 Representatives by notice to the Company at any time at or prior to Closing Time, and such
termination shall be without liability of any party to any other party except as provided in Section 4 and except that Sections 1,
7, 8, 9, 15, 16 and 17 shall survive any such termination and remain in full force and effect.
SECTION
7. Indemnification.
(a) Indemnification
of Underwriters. The Company and the Bank, jointly and severally, agree to indemnify and hold harmless each Underwriter, its
affiliates (as such term is defined in Rule 501(b) of the 1933 Act Regulations (each, an “Affiliate”)), selling
agents, partners, officers and directors, each person, if any, who controls any Underwriter within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act and the Selling Shareholder as follows:
(i) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), including any information
deemed to be a part thereof pursuant to Rule 430B, or the omission or alleged omission therefrom of a material fact required
to be stated therein or necessary to make the statements therein not misleading or arising out of any untrue statement or alleged
untrue statement of a material fact included (A) in any preliminary prospectus, any Issuer Free Writing Prospectus, the General
Disclosure Package or the Prospectus (or any amendment or supplement thereto) or (B) in any materials or information provided
to investors by, or with the approval of, the Company in connection with the marketing of the offering of the Securities (“Marketing
Materials”), including any roadshow or investor presentations made to investors by the Company (whether in person or electronically),
or the omission or alleged omission in any preliminary prospectus, any Issuer Free Writing Prospectus, the General Disclosure Package
or the Prospectus (or any amendment or supplement thereto) or in any Marketing Materials of a material fact necessary in order
to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(ii) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement
of any litigation, or any investigation or proceeding by any Governmental Entity, commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided that (subject to Section 7(d)
hereof) any such settlement is effected with the written consent of the Company;
(iii) against
any and all expense whatsoever, as incurred (including the fees and disbursements of counsel chosen by the Representatives), reasonably
incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any Governmental
Entity, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged
untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity
agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or
omission or alleged untrue statement or omission made in the Registration Statement (or any amendment thereto), including any information
deemed to be a part thereof pursuant to Rule 430B, or in the General Disclosure Package or the Prospectus (or any amendment
or supplement thereto) in reliance upon and in conformity with the Underwriter Information or the Selling Shareholder Information.
(b) Indemnification
of Company, Directors and Officers. Each Underwriter severally agrees to indemnify and hold harmless the Company, its directors,
each of its officers who signed the Registration Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act against any and all loss, liability, claim, damage and expense
described in the indemnity contained in Section 7(a) hereof, as incurred, but only with respect to untrue statements or omissions,
or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), including any information
deemed to be a part thereof pursuant to Rule 430B, or in the General Disclosure Package or the Prospectus (or any amendment
or supplement thereto) in reliance upon and in conformity with the Underwriter Information.
(c) Actions
against Parties; Notification. Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying
party of any action commenced against it in respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a
result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity
agreement. In case any such action is brought against any indemnified party and such indemnified party seeks or intends to seek
indemnity from an indemnifying party, the indemnifying party will be entitled to participate in and, to the extent that it shall
elect, jointly with all other indemnifying parties similarly notified, by written notice delivered to the indemnified party promptly
after receiving the aforesaid notice from such indemnified party, 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 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 it
and/or other indemnified parties which 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. Upon receipt of notice from the indemnifying party to
such indemnified party of such indemnifying party’s election so to assume the defense of such action and approval by the
indemnified party of counsel, the indemnifying party will not be liable to such indemnified party under this Section 7 for any
legal 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 accordance with the proviso to the immediately preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the expenses of more than one separate counsel (together with local
counsel), approved by the indemnifying party (or by the Representatives in the case of Sections 7(b) and 8 hereof), representing
the indemnified parties who are parties to such action) or (ii) the indemnifying party shall not have employed counsel satisfactory
to the indemnified party to represent 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. No indemnifying party
shall, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment
with respect to any litigation, or any investigation or proceeding by any Governmental Entity, commenced or threatened, or any
claim whatsoever in respect of which indemnification or contribution could be sought under this Section 7 or Section 8
hereof (whether or not the indemnified parties are actual or potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to or an admission of fault, culpability or a
failure to act by or on behalf of any indemnified party.
(d) Settlement
without Consent if Failure to Reimburse. If at any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 7(a)(ii) effected without its written consent if (i) such settlement
is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying
party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into
and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request (other
than those fees and expenses that are being contested in good faith) prior to the date of such settlement.
(e) Exclusion.
Notwithstanding the foregoing, the indemnification provided for in this Section 7 and the contribution provided for in Section 8
shall not apply to the Bank to the extent that such indemnification or contribution, as the case may be, by the Bank is found by
any Regulatory Agency, or in a final judgment by a court of competent jurisdiction, to constitute a covered transaction under Section 23A
of the Federal Reserve Act.
SECTION
8. Contribution. If the indemnification provided for in
Section 7 hereof is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any
losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate
amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, (i) in such
proportion as is appropriate to reflect the relative benefits received by the Company, the Bank and the Selling Shareholder, on
the one hand, and the Underwriters, on the other hand, from the offering of the Securities pursuant to this Agreement or (ii) if
the allocation provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the relative fault of the Company, the Bank and the
Selling Shareholder, on the one hand, and the Underwriters, on the other hand, in connection with the statements or omissions which
resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
The relative benefits
received by the Company, the Bank and the Selling Shareholder, on the one hand, and the Underwriters, on the other hand, in connection
with the offering of the Securities pursuant to this Agreement shall be deemed to be in the same respective proportions as the
total net proceeds from the offering of the Securities pursuant to this Agreement (before deducting expenses) received by the Company,
the Bank and the Selling Shareholder, on the one hand, and the total underwriting discount received by the Underwriters, on the
other hand, in each case as set forth on the cover of the Prospectus, bear to the aggregate initial public offering price of the
Securities as set forth on the cover of the Prospectus.
The relative fault
of the Company, the Bank and the Selling Shareholder, on the one hand, and the Underwriters, on the other hand, shall be determined
by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by the Company, the Bank or the Selling Shareholder or by the
Underwriters, as the case may be, and the parties’ relative intent, knowledge, access to information and opportunity to correct
or prevent such statement or omission.
The parties hereto
agree that it would not be just and equitable if contribution pursuant to this Section 8 were determined by pro rata allocation
(even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to above in this Section 8. The aggregate amount of losses, liabilities,
claims, damages and expenses incurred by an indemnified party and referred to above in this Section 8 shall be deemed to include
any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any Governmental Entity, commenced or threatened, or any claim whatsoever based
upon any such untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the
provisions of this Section 8, no Underwriter shall be required to contribute any amount in excess of the underwriting discount
received by such Underwriter in connection with the Securities underwritten by it and distributed to the public.
No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the 0000 Xxx) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
For purposes of this
Section 8, each person, if any, who controls an Underwriter within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act and each Underwriter’s Affiliates, selling agents, partners, officers and directors shall have the same rights
to contribution as such Underwriter, and each director of the Company, each officer of the Company who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act shall have the same rights to contribution as the Company. The Underwriters’ respective obligations to contribute
pursuant to this Section 8 are several in proportion to the number of Securities set forth opposite their respective names
in Schedule A hereto and not joint.
SECTION
9. Representations, Warranties and Agreements to Survive.
All representations, warranties and agreements contained in this Agreement, or in certificates of officers of the Company or any
of its subsidiaries (including the Bank) submitted pursuant hereto, shall remain operative and in full force and effect regardless
of (i) any investigation made by or on behalf of any Underwriter or its Affiliates, partners, officers, directors and or selling
agents, any person controlling any Underwriter or the Company’s officers or directors or any person controlling the Company
or the Selling Shareholder or any representative of the Selling Shareholder and (ii) delivery of and payment for the Securities.
SECTION
10. Termination of Agreement.
(a) Termination.
The Representatives may terminate this Agreement, by notice to the Company and the Selling Shareholder, at any time at or prior
to the Closing Time, (i) if there has been, in the judgment of the Representatives, since the time of execution of this Agreement
or since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package or
the Prospectus, any Material Adverse Change, or (ii) if there has occurred any material adverse change in the financial markets
in the United States or the international financial markets, any outbreak of hostilities or escalation thereof or other calamity
or crisis or any change or development involving a prospective change in national or international political, financial or economic
conditions, in each case the effect of which is such as to make it, in the judgment of the Representatives, impracticable or inadvisable
to proceed with the completion of the offering of the Securities or to enforce contracts for the sale of the Securities, or (iii) if
trading in any securities of the Company has been suspended or materially limited by the Commission or the Nasdaq Capital Market,
or (iv) if trading generally on the New York Stock Exchange or in the Nasdaq Global Market has been suspended or materially
limited, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices have been required, by any of said
exchanges or by order of the Commission, FINRA or any other Governmental Entity, or (v) if a material disruption has occurred
in commercial banking or securities settlement or clearance services in the United States or with respect to Clearstream or Euroclear
systems in Europe, or (vi) if a banking moratorium has been declared by either Federal, New York or North Carolina authorities.
(b) Liabilities.
If this Agreement is terminated pursuant to this Section, such termination shall be without liability of any party to any other
party except as provided in Section 5 hereof, and provided further that Sections 1, 7, 8, 9, 15, 16 and 17 shall survive
such termination and remain in full force and effect.
SECTION
11. Default by One or More of the Underwriters. If one or more
of the Underwriters shall fail at the Closing Time to purchase the Securities which it or they are obligated to purchase under
this Agreement (the “Defaulted Securities”), the Representatives shall have the right, within 36 hours thereafter,
to make arrangements for one or more of the non-defaulting Underwriters, or any 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
Representatives shall not have completed such arrangements within such 36-hour period, then:
(i) if
the number of Defaulted Securities does not exceed 10% of the number of Securities 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
(ii) if
the number of Defaulted Securities exceeds 10% of the number of Securities to be purchased on such date, this Agreement shall terminate
without liability on the part of any non-defaulting Underwriter.
No action taken pursuant
to this Section 11 shall relieve any defaulting Underwriter from liability in respect of its default.
In the event of any
such default which does not result in a termination of this Agreement, either the Representatives or the Selling Shareholder shall
have the right to postpone Closing Time for a period not exceeding seven days in order to effect any required changes in the Registration
Statement, the General Disclosure Package or the 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.
SECTION
12. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or transmitted by any standard form of telecommunication.
Notices to the Underwriters shall be directed to the Representatives care of Xxxxxxx Xxxxx at Xxx Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx
00000, attention of Syndicate Department, with a copy to ECM Legal, and Sandler X’Xxxxx at 1251 Avenue of the Americas, 0xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, attention of General Counsel; notices to the Company and the Bank shall be directed to 0000 Xxxxxxxxxxx
Xxxxx, Xxxx Xxxxx, Xxxxx Xxxxxxxx 00000, attention of X. Xxxxx Xxxxxxxxxx, Jr., with a copy to Xxxxxx X. Xxxxxxxx at Xxxxxx Xxxxxxx
Xxxxxxxxx & Xxxx, LLP, 000 00xx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxx 00000-0000; and notices to the Selling Shareholder
shall be directed to it at 0000 Xxxxxxxxxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000, Attention: Chief Counsel, Office of Financial
Stability, facsimile number (000) 000-0000.
SECTION
13. No Advisory or Fiduciary Relationship. Each of the Company
and the Bank acknowledges and agrees that (a) the purchase and sale of the Securities pursuant to this Agreement, including
the determination of the initial public offering price of the Securities and any related discounts and commissions, is an arm’s-length
commercial transaction between the Company and the Bank, on the one hand, and the several Underwriters, on the other hand, (b) in
connection with the offering of the Securities and the process leading thereto, each Underwriter is and has been acting solely
as a principal and is not the agent or fiduciary of the Company or any of its subsidiaries or any of their respective stockholders,
creditors or employees or any other party, (c) no Underwriter has assumed or will assume an advisory or fiduciary responsibility
in favor of the Company or any of its subsidiaries, including the Bank, with respect to the offering of the Securities or the process
leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company or any of its subsidiaries,
including the Bank, on other matters) or any other obligation to the Company or any of its subsidiaries, including the Bank, with
respect to the offering of the Securities except the obligations expressly set forth in this Agreement, (d) 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 the Bank, and (e) the Underwriters have not provided any legal, accounting, financial, regulatory or tax advice
with respect to the offering of the Securities and each of the Company and the Bank has consulted its own respective legal, accounting,
financial, regulatory and tax advisors to the extent it deemed appropriate.
SECTION
14. Parties. This Agreement shall inure to the benefit of and
be binding upon the Underwriters, the Company, the Bank and the Selling Shareholder and their respective successors. Nothing expressed
or mentioned in this Agreement is intended or shall be construed to give any person, firm or corporation, other than the Underwriters,
the Company, the Bank and the Selling Shareholder and their respective successors and the controlling persons, Affiliates, selling
agents, officers and directors referred to in Sections 7 and 8 and their heirs and legal representatives, any legal or equitable
right, remedy or claim under or in respect of this Agreement or any provision herein contained. This Agreement and all conditions
and provisions hereof are intended to be for the sole and exclusive benefit of the Underwriters, the Company, the Bank and the
Selling Shareholder and their respective successors, and said controlling persons, Affiliates, selling agents, officers and directors
and their heirs and legal representatives, and for the benefit of no other person, firm or corporation. No purchaser of Securities
from any Underwriter shall be deemed to be a successor by reason merely of such purchase.
SECTION
15. Trial by Jury. Each of the parties hereto other than the
Selling Shareholder (on its behalf and, to the extent permitted by applicable law, on behalf of its stockholders and affiliates)
hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding
arising out of or relating to this Agreement or the transactions contemplated hereby.
SECTION
16. GOVERNING LAW. THIS AGREEMENT AND ANY CLAIM, CONTROVERSY
OR DISPUTE ARISING UNDER OR RELATED TO THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF, THE STATE
OF NEW YORK WITHOUT REGARD TO ITS CHOICE OF LAW PROVISIONS (OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF NEW YORK),
PROVIDED THAT ALL RIGHTS AND OBLIGATIONS OF THE SELLING SHAREHOLDER UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE FEDERAL LAWS OF THE UNITED STATES OF AMERICA.
SECTION
17. Consent to Jurisdiction. Each of the parties hereto other
than the Selling Shareholder agrees that any legal suit, action or proceeding arising out of or based upon this Agreement or the
transactions contemplated hereby (“Related Proceedings”) shall be instituted in (i) the federal courts of
the United States of America located in the City and County of New York, Borough of Manhattan or (ii) the courts of the
State of New York located in the City and County of New York, Borough of Manhattan (collectively, the “Specified Courts”),
and irrevocably submits to the exclusive jurisdiction (except for proceedings instituted in regard to the enforcement of a judgment
of any Specified Court (a “Related Judgment”), as to which such jurisdiction is non-exclusive) of the Specified Courts
in any such suit, action or proceeding. Service of any process, summons, notice or document by mail to such party’s address
set forth above shall be effective service of process for any suit, action or proceeding brought in any Specified Court. Each of
the parties hereto irrevocably and unconditionally waives any objection to the laying of venue of any suit, action or proceeding
in the Specified Courts and irrevocably and unconditionally waive and agree not to plead or claim in any Specified Court that any
such suit, action or proceeding brought in any Specified Court has been brought in an inconvenient forum.
SECTION
18. TIME. TIME SHALL BE OF THE ESSENCE OF THIS AGREEMENT. EXCEPT
AS OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION
19. Counterparts. This Agreement may be executed 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 Agreement.
SECTION
20. Effect of Headings. The Section headings herein are for
convenience only and shall not affect the construction hereof.
If the foregoing is
in accordance with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement among the Underwriters, the Company, the Bank and the
Selling Shareholder in accordance with its terms.
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Very truly yours, |
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BNC BANCORP |
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By: |
/s/ X. Xxxxx Xxxxxxxxxx, Jr. |
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Name: X. Xxxxx Xxxxxxxxxx, Jr. |
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Title: President and Chief Executive Officer |
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BANK OF NORTH CAROLINA |
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By: |
/s/ Xxxxxxx X. Xxxxxxxxx XX |
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Name: Xxxxxxx X. Xxxxxxxxx XX |
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Title: President and Chief Operating Officer |
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UNITED STATES DEPARTMENT OF THE TREASURY, as Selling Shareholder |
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By: |
/s/ Xxxxxxx X. Xxxxxx |
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Name: Xxxxxxx X. Xxxxxx |
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Title: Assistant Secretary for Financial Stability |
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
SANDLER X’XXXXX & PARTNERS, L.P.
By: XXXXXXX LYNCH, PIERCE, XXXXXX &
XXXXX
INCORPORATED
By: |
/s/ Xxxxxxx X. Xxxxx |
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Authorized Signatory |
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[Signature Page to BNC Bancorp Underwriting Agreement]
By: SANDLER X’XXXXX & PARTNERS,
L.P.
By: Sandler X’Xxxxx & Partners Corp.,
the sole general partner
By: |
/s/ Xxxxxx X. Xxxxxxxx |
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Name: Xxxxxx X. Xxxxxxxx |
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Title: An officer of the Corporation |
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For themselves and as Representatives of
the other Underwriters named in Schedule A hereto.
[Signature Page to BNC Bancorp Underwriting Agreement]
SCHEDULE A
The purchase price per share for the Securities
to be paid by the several Underwriters shall be $909.35155, being an amount equal to the initial public offering price set forth
in Schedule B less $13.81845 per share, plus accrued dividends from and including August 15, 2012 of $1.94 per share.
Name of Underwriter | |
Number of Securities | |
| |
| | |
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated | |
| 15,630 | |
Sandler X’Xxxxx & Partners, L.P. | |
| 15,630 | |
| |
| | |
Total | |
| 31,260 | |
SCHEDULE B
1. The
initial public offering price per share for the Securities shall be $921.23 per share.
2. The
settlement date / Closing Time shall be August 29, 2012.
SCHEDULE C
Issuer Free Writing Prospectuses
1. None