THE SAVANNAH BANCORP, INC. (a Georgia corporation) 1,098,398 Shares of Common Stock (Par Value $1.00 Per Share) UNDERWRITING AGREEMENT June 9, 2010
Execution Version
Exhibit
1.1
THE
SAVANNAH BANCORP, INC.
(a
Georgia corporation)
1,098,398
Shares of Common Stock
(Par
Value $1.00 Per Share)
June 9,
2010
FIG
Partners, LLC
0000
Xxxxxxxxx Xx., XX
000
Xxxxxx Xxxxxx
Xxxxx
0000
Xxxxxxx,
Xxxxxxx 00000
Ladies
and Gentlemen:
The
Savannah Bancorp, Inc., a Georgia corporation (the “Company”), confirms its
agreement with FIG Partners, LLC (the “Underwriter”), with respect to (i) the
sale by the Company and the purchase by the Underwriter of 1,098,398 shares of
common stock, par value $1.00 per share, of the Company (“Common Stock”) and
(ii) the grant by the Company to the Underwriter of the option described in
Section 2(b) hereof to purchase all or any part of 164,759 additional shares of
Common Stock to cover over-allotments, if any. The aforesaid
1,098,398 shares of Common Stock (the “Initial Securities”) to be purchased by
the Underwriter and all or any part of the 164,759 shares of Common Stock
subject to the option described in Section 2(b) hereof (the “Option Securities”)
are hereinafter called, collectively, the “Securities.”
The
Company understands that the Underwriter proposes to make a public offering of
the Securities as soon as the Underwriter deems advisable after this Agreement
has been executed and delivered.
The
Company has filed with the Securities and Exchange Commission (the
“Commission”) a registration statement on Form S-3 (No. 333-163210),
including the related prospectus covering the registration of the Securities
under the Securities Act of 1933, as amended (the “1933 Act”). Promptly after
execution and delivery of this Agreement, the Company will prepare and file a
prospectus in accordance with the provisions of Rule 430B (“Rule 430B”) of the
rules and regulations of the Commission under the 1933 Act (the “1933 Act
Regulations”)
and
paragraph (b) of Rule 424 (“Rule 424(b)”) of the 1933 Act
Regulations. The information included in such prospectus that was
omitted from such registration statement at the time it became effective but
that is deemed to be part of such registration statement at the time it became
effective (a) pursuant to paragraph (b) of Rule 430B is referred to as “Rule
430B Information.” The registration statement referred to above,
including exhibits and financial statements and any prospectus relating to the
Securities that is filed with the Commission pursuant to Rule 424(b) and deemed
part of such registration statement pursuant to Rule 430B, as amended on each
date and time that the Registration Statement, any post-effective amendment or
amendments thereto and any Rule 462(b) Registration Statement became or becomes
effective (the “Effective Time”) shall be referred to herein as the
“Registration Statement.” Any registration statement filed pursuant
to Rule 462(b) of the 1933 Act Regulations is herein referred to as the “Rule
462(b) Registration Statement,” and after such filing, the term “Registration
Statement” shall include the Rule 462(b) Registration Statement. The
prospectus, including any preliminary prospectus supplement or prospectus
supplement, referred to above and included in the Registration Statement at the
Effective Time for use in connection with the offering of the Securities is
herein called the “Prospectus.” The prospectus, which includes the
Rule 430B Information relating to the Securities that was first filed pursuant
to Rule 424(b) after the Applicable Time (as defined below), together with the
Prospectus, shall be referred to herein as the “Final
Prospectus.” For purposes of this Agreement, all references to the
Registration Statement, the Final Prospectus or any amendment or supplement to
any of the foregoing shall be deemed to include the copy filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval
system (“XXXXX”).
All
references in this Agreement to financial statements and schedules and other
information which is “contained,” “included” or “stated” in the Registration
Statement, the Prospectus or the Final Prospectus (or other references of like
import) shall be deemed to mean and include all such financial statements and
schedules and other information which is incorporated by reference in the
Registration Statement, the Prospectus or the Final Prospectus, as the case may
be; and all references in this Agreement to amendments or supplements to the
Registration Statement, the Prospectus or the Final Prospectus shall be deemed
to mean and include the filing of any document under the Securities Exchange Act
of 1934 (the “1934 Act”) which is incorporated by reference in the Registration
Statement, the Prospectus or the Final Prospectus, as the case may
be. All references to the Registration Statement, the Prospectus or
the Final Prospectus shall be deemed to include the information incorporated by
reference in each such document.
SECTION
1. Representations and
Warranties and Agreements.
(a) Representations and Warranties by
the Company. The Company represents and warrants to the
Underwriter as of the date hereof, as of the Closing Time referred to in Section
2(c) hereof, and as of each Date of Delivery (if any) referred to in Section
2(b) hereof, and agrees with the Underwriter, as follows:
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(i) Compliance with Registration
Requirements. (A) At the time of filing the Registration
Statement, any Rule 462(b) Registration Statement and any post-effective
amendments 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, and (C) at the date hereof, the Company was not an “ineligible
issuer” as defined in Rule 405 of the 1933 Act Regulations (“Rule
405”).
The Company meets the requirements for use of Form S-3 for registration under the 1933 Act of the offering and sale of the Securities. Each of the Registration Statement and any Rule 462(b) Registration Statement, if any, has become effective under the 1933 Act and no stop order suspending the effectiveness of the Registration Statement and any post-effective amendment thereto or any Rule 462(b) Registration Statement and any post-effective amendment thereto has been issued under the 1933 Act, no order preventing or suspending the use of any Prospectus has been issued, and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Company, are contemplated by the Commission nor any state or other jurisdiction or regulatory body, and any request on the part of the Commission, any state or other jurisdiction or other regulatory body for additional information has been complied with.
The
Company may have filed with the Commission, as part of an amendment to the
Registration Statement or pursuant to Rule 424(b), one or more prospectuses
relating to the Securities, each of which has previously been furnished to you.
The Company will file with the Commission a final prospectus relating to the
Securities in accordance with Rule 424(b). As filed, such final prospectus when
taken together with the documents incorporated by reference therein shall
contain all information required by the 1933 Act and the rules thereunder, and,
except to the extent the Underwriter shall agree in writing to a modification,
shall be in all substantive respects in the form furnished to you prior to the
Applicable Time or, to the extent not completed at the Applicable Time, shall
contain only such specific additional information and other changes (beyond that
contained in the Prospectus) as the Company has advised you, prior to the
Applicable Time, will be included or made therein. The Registration Statement,
at the Applicable Time, meets the requirements set forth in Rule
415(a)(1)(x).
At each
Effective Time, the Registration Statement did, and when the Final Prospectus is
first filed in accordance with Rule 424(b) and as of the Closing Time (as
defined herein) and on any date on which Option Securities are purchased, if
such date is not as of the date of the Closing Time at the Date of Delivery, the
Final Prospectus (and any supplement thereto) will, comply in all material
respects with the applicable requirements of the 1933 Act and the 1934 Act and
the respective rules thereunder; at each Effective Time and at the Applicable
Time, the Registration Statement did not and will not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein not
misleading; and on the date of any filing pursuant to Rule 424(b) and as of the
Closing Time and any Date of Delivery, the Final Prospectus (together with any
supplement thereto) 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,
in the light of the circumstances under which they were made, not misleading.
Each Prospectus and the Final Prospectus delivered to the Underwriter for use in
connection with this offering was identical to the electronically transmitted
copies thereof filed with the Commission pursuant to XXXXX, except to the extent
permitted by Regulation S-T.
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As of the
Applicable Time, the General Disclosure Package did not contain any untrue
statement of a material fact and did not omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
As used
in this subsection and elsewhere in this Agreement:
“Applicable Time” means 7:45
p.m. (Eastern time) on June 9, 2010.
“General Disclosure Package”
means (i) the Prospectus, if any, used most recently prior to the Applicable
Time, and the Final Prospectus, (ii) any Issuer-Represented Free Writing
Prospectuses filed by the Company with the Commission in connection with this
offering contemplated by this Agreement, and (iii) any other Free Writing
Prospectus that the parties hereto shall hereafter expressly agree in writing to
treat as part of the General Disclosure Package.
“Issuer-Represented Free Writing
Prospectus” means any “issuer free writing prospectus,” as defined in
Rule 433 of the 1933 Act Regulations (“Rule 433”), relating to the Securities
that (i) is required to be filed with the Commission by the Company or (ii) is
exempt from filing pursuant to Rule 433(d)(5)(i) because it contains a
description of the Securities or of the offering that does not reflect the final
terms, in each case in the form filed or required to be filed with the
Commission or, if not required to be filed, in the form retained in the
Company’s records pursuant to Rule 433(g).
Each
Issuer-Represented Free Writing Prospectus, when considered together with the
General Disclosure Package as of the Applicable Time, did not contain any untrue
statement of material fact or omit to state a material fact necessary to make
the statements therein, in light of the circumstances in which they were made,
not misleading and did not, does not and will not include any information that
conflicted, conflicts or will conflict with the information contained in the
Registration Statement or the Final Prospectus, including any document
incorporated by reference therein and any other prospectus deemed to be a part
thereof that, in each case, has not been superseded or modified.
The
representations and warranties in this subsection shall not apply to statements
in or omissions from the Registration Statement, any Prospectus, the Final
Prospectus or any Issuer-Represented Free Writing Prospectus made in reliance
upon and in conformity with written information furnished to the Company by the
Underwriter expressly for use therein.
(ii) Incorporated
Documents. The documents incorporated or deemed to be
incorporated by reference in the Registration Statement 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 rules and regulations of the Commission
thereunder (the “1934 Act Regulations”), and did not and will not contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
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(iii) Independent
Accountants. Xxxxxxx & Xxxxxxx Certified Public
Accountants, LLC (“Xxxxxxx & Xxxxxxx”), the accounting firm that certified
certain financial statements and supporting schedules, if any, of the Company
included in the Registration Statement and the Prospectus or incorporated by
reference therein, is and was during the period indicated an independent
registered public accounting firm with respect to the Company, as required by
the 1933 Act and the 1933 Act Regulations and is registered with the Public
Company Accounting Oversight Board. Xxxxxxx and Xxxxxxx has represented to the
Company that with respect to the Company, Xxxxxxx & Xxxxxxx is not and has
not been in violation of the auditor independence requirements of the
Xxxxxxxx-Xxxxx Act of 2002 (“Xxxxxxxx-Xxxxx Act”) and the related rules and
regulations of the Commission.
(iv) Financial
Statements. The financial statements, audited and unaudited
(including all notes and schedules thereto) included in or incorporated by
reference into the Registration Statement, the General Disclosure Package and
the Final Prospectus present fairly the financial position of the Company and
its consolidated subsidiaries at the dates indicated and the statement of
operations, shareholders’ equity and cash flows of the Company and its
consolidated subsidiaries for the periods specified. Such financial
statements (including all notes and schedules thereto) have been prepared in
conformity with generally accepted accounting principles (“GAAP”) applied on a
consistent basis throughout the periods involved. The supporting
schedules, if any, included or incorporated by reference into the Registration
Statement, the General Disclosure Package and the Prospectus present fairly in
accordance with GAAP the information required to be stated
therein. The selected financial data and the summary financial
information included under the heading “Summary Selected Audited Consolidated
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 in or incorporated by reference into the
Registration Statement and the books and records of the Company. No
other financial statements or schedules are required to be included in the
Registration Statement. To the extent applicable, all disclosures
contained in the Registration Statement, General Disclosure Package or the Final
Prospectus regarding “non GAAP financial measures” (as such term is defined by
the rules and regulations of the Commission) comply with Regulation G of the
1934 Act, the 1934 Act Regulations and Item 10 of Regulation S-K under the 1933
Act, as applicable.
(v) No Material Adverse Change
in Business. Since the effective date of the Registration
Statement, the General Disclosure Package and the Final Prospectus, except as
otherwise stated therein, (A) there has been no material adverse change in the
condition, financial or otherwise, or in the earnings or business affairs of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business (a “Material Adverse Effect”), (B)
there have been no transactions entered into by the Company or any of its
subsidiaries, other than those in the ordinary course of business, which are
material with respect to the Company and its subsidiaries considered as one
enterprise, and (C) except for regular quarterly dividends on the Common Stock
in amounts per share that are consistent with past practice and distribution
payments on the trust preferred securities, there has been no dividend or
distribution of any kind declared, paid or made by the Company on any class of
its capital stock.
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(vi) 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
Georgia and has the power and authority (corporate and otherwise) to own, lease
and operate its properties, to conduct its business as described in the
Registration Statement, the General Disclosure Package and the Final Prospectus
and to enter into and perform its obligations under this
Agreement. The Company is duly qualified as a foreign corporation to
transact business and is in good standing in each other jurisdiction in which
such qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to qualify or
to be in good standing would not result in a Material Adverse
Effect.
(vii) Good Standing of
Subsidiaries. Each “significant subsidiary” of the Company (as
such term is defined in Rule 1-02 of Regulation S-X) (each, a “Subsidiary” and
collectively, “Subsidiaries”) has been duly incorporated or formed, as the case
may be, and is validly existing as a corporation, limited liability company,
statutory business trust or bank in good standing under the laws of the
jurisdiction of its incorporation or formation, with the power and authority
(corporate and otherwise) to own, lease and operate its properties and to
conduct its business as described in the General Disclosure Package and the
Final Prospectus and 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 result in a Material Adverse
Effect. Except as otherwise disclosed in the Final Prospectus and
Registration Statement, all of the issued and outstanding capital
stock or other equity interest of the Subsidiaries has been duly
authorized and validly issued, is fully paid and non-assessable. The
issued and outstanding shares of capital stock or other equity interests of the
Subsidiaries that are owned directly or indirectly by the Company are owned by
the Company, directly or through Subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity; none of the
outstanding shares of capital stock or other equity interest of the Subsidiary
was issued in violation of the preemptive or similar rights of any shareholder
of such Subsidiary. The Company does not own or control, directly or
indirectly, any corporation, association or other entity other than the
subsidiaries listed in Exhibit 21 to Company’s Annual Report on Form 10-K for
the fiscal year ended December 31, 2009, each of which are listed on Schedule
A.
(viii) Deposit Insurance, FHLB
Membership and Bank Regulations. The deposit accounts of each
of The Savannah Bank, National Association, a nationally chartered bank, and
Xxxxx Bank and Trust, a Georgia state chartered bank (each a “Bank” and
collectively, the “Banks”) are insured by the FDIC to the legal maximum, and
each of the Banks have paid all premiums and assessments required by the FDIC
and the regulations promulgated by the FDIC, and no proceeding for the
termination or revocation of such insurance is pending or
threatened. Each of the Banks is a member in good standing of the
Federal Home Loan Bank of Atlanta. Each of the Banks has complied
with all rules and regulations of the FDIC, the OCC and the Georgia Department
of Banking and Finance, except where such noncompliance would not reasonably be
expected to result in a Material Adverse Effect.
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(ix) Capitalization. As
of the date of this Agreement, the Company has 20,000,000 authorized shares of
Common Stock, 5,937,689 shares of which are issued and outstanding. All of the
shares of the Company’s issued and outstanding capital stock have been duly
authorized and validly issued and are fully paid and non-assessable, and none of
the outstanding shares of capital stock were issued in violation of the
preemptive or other similar rights of any shareholder of the
Company. Except as described in the General Disclosure Package and
the Final Prospectus (A) there are no outstanding rights (contractual
or otherwise), warrants or options to acquire, or instruments convertible into
or exchangeable for, or agreements or understandings with respect to the sale or
issuance of, any shares of capital stock of or other equity interest in the
Company except pursuant to the Company’s stock option plans and awards currently
in effect on the date hereof; and (B) there are no contracts, agreements or
understandings between the Company and any person granting such person the right
to require the Company to file a registration statement under the 1933 Act or
otherwise register any securities of the Company owned or to be owned by such
person.
(x) Authorization of
Agreement. This Agreement and compliance by the Company with
its obligations hereunder have been duly authorized by all necessary corporate
action, executed and delivered by the Company and, when duly executed by the
Underwriter, will constitute the valid and binding agreement of the Company
enforceable against the Company in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance or other similar statutes, rules, regulations
or other laws relating to or affecting the enforcement of creditors’ rights and
remedies generally or by general equitable principles and except as any
indemnification or contribution provisions thereof may be limited under
applicable securities laws. The issue and sale of the Securities by the Company
and the performance by the Company of all of its obligations under this
Agreement and the consummation of the transactions contemplated herein and in
the Final Prospectus (including the use of the proceeds from the sale of the
Securities as described in the Final Prospectus under the caption “Use of
Proceeds”) do not and will not, whether with or without the giving of notice or
passage of time or both, (i) conflict with or constitute a breach of, or default
or Repayment Event (as defined below) under any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the Company or
any of its Subsidiaries is a party or by which the Company or any of its
Subsidiaries is bound or to which any of the property or assets of the Company
or any of its Subsidiaries is subject, (ii) result in any violation of the
provisions of the certificate of incorporation or bylaws of the Company or (iii)
result in the violation of any statute or any order, rule or regulation of any
federal, state or local court or governmental agency (each a “Governmental
Entity”) or body having jurisdiction over the Company or any of its Subsidiaries
or any of their properties except, with respect to clauses (i) and (iii), for
those conflicts, breaches, violations, defaults or Repayment Events that would
not result in a Material Adverse Effect. No consent, approval, authorization,
order, registration or qualification of or with any such court or governmental
agency or body is required for the issue
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and sale
of the Securities, the performance by the Company of its obligations hereunder
or the consummation by the Company of the transactions contemplated by this
Agreement, except (i) the registration under the 1933 Act of the Securities,
(ii) filings as may be required under the rules and regulations of The Nasdaq
Global Market and the Financial Industry Regulatory Authority (“FINRA”), (iii)
such consents, approvals, authorizations, registrations or qualifications as may
be required under state or foreign securities or Blue Sky laws in connection
with the purchase and distribution of the Securities by the Underwriter or (iv)
where the failure to obtain such consent, authorization, order or qualification
would not have a Material Adverse Effect. As used herein, a “Repayment Event”
means any event or condition which gives the holder of any note, debenture or
other evidence of indebtedness (or any person acting on such holder’s behalf)
the right to require the repurchase, redemption or repayment of all or a portion
of such indebtedness by the Company or any Subsidiary.
(xi) Authorization and
Description of Securities. The Securities to be purchased by
the Underwriter from the Company have been duly authorized for issuance and sale
by the Company to the Underwriter pursuant to this Agreement and, when issued
and delivered by the Company pursuant to this Agreement against payment of the
consideration set forth herein, will be validly issued and fully paid and
non-assessable; the Common Stock conforms in all material respects to all
statements relating thereto contained in the Final Prospectus and such
description conforms in all material respects to the rights set forth in the
instruments defining the same; no holder of the Securities will be subject to
personal liability for the debts of the Company by reason of being such a
holder; and the issuance of the Securities is not subject to the preemptive or
other similar rights of any shareholder of the Company. The
statements set forth in the General Disclosure Package and the Final Prospectus
under the caption “Description of Common Stock” or similar title, as applicable,
insofar as such statements contain descriptions of laws, rules or regulations,
and insofar as they describe the terms of agreements or the Company’s articles
of incorporation or bylaws, are correct in all material respects.
(xii) Absence of Defaults and
Conflicts. Neither the Company nor any of its Subsidiaries is
(i) in violation of its charter, by-laws or other organizational documents or
(ii) 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 property or assets of the Company or
its Subsidiaries is subject (collectively, “Agreements and Instruments”) except
for such violations or defaults that would not result in a Material Adverse
Effect.
(xiii) Absence of Labor Disputes or
Discrimination Claims. No labor dispute with the employees of
the Company or any Subsidiary 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, in either case, may
reasonably be expected to result in a Material Adverse Effect. To the
knowledge of the Company, neither the Company nor any Subsidiary is in violation
of or has received notice of any violation with respect to any federal or state
law relating to discrimination in the hiring, promotion or pay of employees, nor
any applicable federal or state wages and hours law, nor any state law
precluding the denial of credit due to the neighborhood in which a property is
situated, the violation of any of which could have a Material Adverse
Effect.
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(xiv) Absence of
Proceedings. There is no action, suit, proceeding or
investigation before or brought by any court or governmental agency or body,
domestic or foreign, now pending, or, to the knowledge of the Company,
threatened, against or affecting the Company or any Subsidiary, which is
required to be disclosed in the Registration Statement, the General Disclosure
Package and the Final Prospectus (other than as disclosed therein), or which
might reasonably be expected to result in a Material Adverse Effect, or which
might reasonably be expected to materially and adversely affect the properties
or assets thereof or the consummation of the transactions contemplated in this
Agreement or the performance by the Company of its obligations hereunder; the
aggregate of all pending legal or governmental proceedings to which the Company
or any Subsidiary is a party or of which any of their respective property or
assets is the subject which are not described in the Registration Statement, the
General Disclosure Package or the Final Prospectus, including ordinary routine
litigation incidental to the business, could not reasonably be expected to
result in a Material Adverse Effect.
(xv) Compliance with Statutes and
Regulations. Except as disclosed in the Final Prospectus and
the General Disclosure Package, the Company and its Subsidiaries conduct their
respective businesses in compliance in all material respects with all federal,
state, and local statutes, laws, rules, regulations, decisions, directives and
orders applicable to them, and neither the Company nor any of its Subsidiaries
has received any written or, to the Company’s knowledge, oral communication from
any Governmental Entity asserting that the Company or its Subsidiaries is not in
compliance with any statute, law, rule, regulation, decision, directive or
order.
(xvi) Money Laundering and
Terrorism Finance. Neither the Company nor any of the
Subsidiaries, nor, to the Company’s knowledge, any of its affiliates or any
director, officer, agent or employee of, or other person associated with or
acting on behalf of, the Company, has violated the Bank Secrecy Act, as amended,
the Uniting and Strengthening of America by Providing Appropriate Tools Required
to Intercept and Obstruct Terrorism Act of 2001 or the rules and regulations
promulgated under any such law or any successor law. The operations
of the Company and the Subsidiaries and, to the Company’s knowledge, its
affiliates are and have been conducted at all times in compliance in all
material respects with applicable financial recordkeeping and reporting
requirements of the Currency and Foreign Transactions Reporting Act of 1970, as
amended, the Money Laundering Control Act of 1986, as amended, any other money
laundering statutes applicable to the Company and its subsidiaries, the rules
and regulations thereunder and any related or similar rules, regulations or
guidelines, issued, administered or enforced by any governmental agency
(collectively, the “Money Laundering Laws”), except for any such non-compliance
as would not, singly or in the aggregate, result in a Material Adverse Effect,
and no action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company or any of the
Subsidiaries, or, to the Company’s knowledge, any of its affiliates, with
respect to the Money Laundering Laws is pending or, to the Company’s knowledge,
threatened.
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(xvii) Accuracy of
Exhibits. There are no contracts or documents which are
required to be described in the Registration Statement, the General Disclosure
Package, the Final Prospectus or the documents incorporated by reference therein
or to be filed as exhibits thereto which have not been so described and filed as
required. All such contracts to which the Company or any of the
Subsidiaries is a party have been duly authorized, executed and delivered by the
Company or such Subsidiary, constitute valid and binding agreements of the
Company or such Subsidiary and are enforceable against the Company or such
Subsidiary in accordance with the terms thereof, except as the enforceability
thereof may be limited or otherwise affected by applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or other similar
statutes, rules, regulations or other laws affecting the enforcement of
creditors’ rights and remedies generally, and the unavailability of, or
limitation on the availability of, a particular right or remedy (whether in a
proceeding in equity or at law) because of equitable principles.
(xviii) Possession of Intellectual
Property. The Company and its Subsidiaries own or possess
adequate rights to use, or can acquire on reasonable terms ownership or rights
to use, material patents, patent rights, licenses, inventions, copyrights,
know-how (including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures and excluding
generally commercially available “off the shelf” software programs licensed
pursuant to shrink wrap or “click and accept” licenses), 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 claim of 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 any unfavorable decision, ruling or
finding) or invalidity or inadequacy, singly or in the aggregate, would result
in a Material Adverse Effect.
(xix) Absence of Further
Requirements. No filing with, or authorization, approval,
consent, license, order, registration, qualification or decree of, any court or
governmental authority or agency is necessary or required for the performance by
the Company of its obligations hereunder, in connection with the offering,
issuance or sale of the Securities hereunder or the consummation of the
transactions contemplated by this Agreement, except such as have been already
obtained or as may be required under the 1933 Act or the 1933 Act Regulations or
state and foreign securities laws.
(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 federal, state, local or
foreign regulatory agencies or bodies necessary to conduct the business now
operated by them, except where the failure to possess would not, singly or in
the aggregate, have a Material Adverse Effect; the Company and its Subsidiaries
are in compliance with the terms and conditions of all such
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Governmental
Licenses, except where the failure so to comply would not, singly or in the
aggregate, have a Material Adverse Effect; all of the Governmental Licenses are
valid and in full force and effect, except where the invalidity of such
Governmental Licenses or the failure of such Governmental Licenses to be in full
force and effect would not have a Material Adverse Effect; and neither the
Company nor its Subsidiaries has received any notice of proceedings relating to
the revocation or modification of any such Governmental Licenses which, singly
or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would result in a Material Adverse Effect. Neither the
Company nor its Subsidiaries has failed to file with applicable regulatory
authorities any statement, report, information or form required by any
applicable law, regulation or order, except where the failure to be so in
compliance would not, individually or in the aggregate, have a Material Adverse
Effect, all such filings were in material compliance with applicable laws when
filed and no material deficiencies have been asserted by any regulatory
commission, agency or authority with respect to any such filings or
submissions.
(xxi) Title to
Property. Except for all of the assets of SAVB Holdings, LLC,
a subsidiary of the Company, which have been pledged to Xxxxx Broadcasting
Corporation pursuant to the terms of a Security Agreement, dated as of September
29, 2009, as amended, the Company and its Subsidiaries have good and marketable
title to all real property owned by the Company and its Subsidiaries 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 General
Disclosure Package and the Final Prospectus, (b) do not, singly or in the
aggregate, materially affect the value of such property and do not interfere
with the use made and proposed to be made of such property by the Company or any
of its Subsidiaries or (c) could not reasonably be expected to have a Material
Adverse Effect; and 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 General
Disclosure Package and the Final Prospectus, are in full force and effect, and
neither the Company nor any Subsidiary has any notice of any material claim of
any sort that has been asserted by anyone adverse to the rights of the Company
or any Subsidiary under any of the leases or subleases mentioned above, or
affecting or questioning the rights of the Company or such Subsidiary to the
continued possession of the leased or subleased premises under any such lease or
sublease.
except as could not reasonably be expected to have a Material Adverse
Effect.
(xxii) Compliance with Cuba
Act. To the extent applicable, the Company has materially
complied with, and is and will be in material compliance with, the provisions of
that certain Florida act relating to disclosure of doing business with Cuba,
codified as Section 517.075 of the Florida statutes, and the rules and
regulations thereunder (collectively, the “Cuba Act”) or is exempt
therefrom.
(xxiii Investment Company
Act. The Company is not, and upon the issuance and sale of the
Securities as herein contemplated and the application of the net proceeds
therefrom as described in the General Disclosure Package and the Final
Prospectus will not be, required to register as an “investment company” or an
entity “controlled” by an “investment company” as such terms are defined in the
Investment Company Act of 1940, as amended (the “1940 Act”).
11
(xxiv) Environmental
Laws. Except as described in the General Disclosure Package
and the Final Prospectus and except as would not, singly or in the aggregate,
result in a Material Adverse Effect, (A) neither the Company nor its
Subsidiaries is in violation in any material respect 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 material permits, authorizations and approvals
required under any applicable Environmental Laws and are each in material
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 its
Subsidiaries and (D) there are no events or circumstances that might 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 body or agency,
against or affecting the Company or its Subsidiaries relating to Hazardous
Materials or any Environmental Laws that could reasonably be expected to have a
Material Adverse Effect.
(xxv) Taxes. The
Company and its Subsidiaries have (a) timely filed all material foreign, United
States federal, state and local tax returns, information returns, and similar
reports that are required to be filed (taking into account valid extensions),
and all tax returns are true, correct and complete in all material respects, (b)
paid in full all taxes required to be paid by it and any other assessment, fine
or penalty levied against it, except for any such tax assessment, fine or
penalty that is currently being contested in good faith or as would not have,
individually or in the aggregate, a Material Adverse Effect, and (c) established
on the most recent balance sheet reserves that are adequate for the payment of
all taxes not yet due and payable.
(xxvi) Insurance. The
Company and its Subsidiaries carry, or are covered by, insurance in such amounts
and covering such risks as the Company reasonably believes are adequate for the
conduct of the business of the Company and its Subsidiaries and the value of
their properties and as are customary in the business in which the Company and
its Subsidiaries are engaged; neither the Company nor its Subsidiaries has been
refused any insurance coverage sought or applied for; and, under
current conditions, the Company reasonably believes that they will be able to
renew their existing insurance coverage as and when such coverage expires or to
obtain similar coverage from similar insurers as may be necessary to continue
its business at a cost that would not have a Material Adverse
Effect.
12
(xxvii) Statistical and Market
Data. The statistical and market related data contained in the
Registration Statement, the General Disclosure Package and the Final Prospectus
are based on or derived from sources which the Company reasonably believes are
reliable and accurate in all material respects.
(xxviii)
Relationship. No
relationship, direct or indirect, exists between or among the Company or its
Subsidiaries, on the one hand, and the directors, officers, shareholders,
customers or suppliers of the Company or its Subsidiaries, on the other, that is
required by the Securities Act or by the rules and regulations of the Commission
thereunder to be described in the Registration Statement and/or the Final
Prospectus and that is not so described.
(xxix) Internal Control Over
Financial Reporting. The Company and its Subsidiaries maintain
a system of internal accounting controls sufficient to provide reasonable
assurance that (A) transactions are executed in accordance with management’s
general or specific authorizations; (B) transactions are recorded as necessary
to permit preparation of financial statements in conformity with GAAP and to
maintain asset accountability; (C) access to assets is permitted only in
accordance with management’s general or specific authorization; and (D) the
recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences. Since the end of the Company’s most recent audited
fiscal year, there has been (x) no material weakness in the Company’s internal
control over financial reporting (whether or not remediated) and (y) 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.
(xxx) Disclosure Controls and
Procedures. The Company and its Subsidiaries employ disclosure
controls and procedures (as such term is defined in Rule 13a-15 under the 0000
Xxx) that are effective in all material respects to perform the functions
described in Rule 13a-15(e) under the 1934 Act. Based on the
evaluation of the Company’s and its Subsidiaries’ disclosure controls and
procedures pursuant to Rule 13a-15(e) under the 1934 Act, the Company is not
aware of (1) any significant deficiency in the design or operation of internal
controls which could adversely affect the Company’s ability to record, process,
summarize and report financial data or any material weaknesses in internal
controls or (2) any fraud, whether or not material, that involves management or
other employees who have a significant role in the Company’s internal
controls. Since the most recent evaluation of the Company’s
disclosure controls and procedures described above, there have been no
significant changes in internal controls or in other factors that could
significantly affect internal controls.
(xxxi)
Compliance
with the Xxxxxxxx-Xxxxx Act. 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 (the “Xxxxxxxx-Xxxxx Act”), including Section 402 related
to loans and Sections 302 and 906 related to certifications.
13
(xxxii)
Pending Procedures and
Examinations. The Registration Statement is not the subject of
a pending proceeding or examination under Section 8(d) or 8(e) of the 1933 Act,
and the Company is not the subject of a pending proceeding under Section 8A of
the 1933 Act in connection with the offering of the Securities.
(xxxiii)
Unlawful
Payments. Neither the Company nor its Subsidiaries nor, to the
knowledge of the Company, any director, officer, agent, employee or other person
associated with or acting on behalf of the Company or its Subsidiaries has (A)
used any corporate funds for any unlawful contribution, gift, entertainment or
other unlawful expense relating to political activity; (B) made any direct or
indirect unlawful payment to any foreign or domestic government official or
employee from corporate funds; (C) violated or is in violation of any provision
of the Foreign Corrupt Practices Act of 1977; or (D) made any bribe, rebate,
payoff, influence payment, kickback or other unlawful payment.
(xxxiv) No Stabilization or
Manipulation. Neither the Company nor its Subsidiaries, nor
any affiliates of the Company or its Subsidiaries, has taken, directly or
indirectly, any action designed to or that could reasonably be expected to cause
or result in any stabilization or manipulation of the price of the
Securities.
(xxxv) No Unauthorized Use of
Prospectus. The Company has not distributed and, prior to the
later to occur of (i) the Closing Time and (ii) completion of the distribution
of the Securities, will not distribute any prospectus (as such term is defined
in the 1933 Act and the 1933 Act Regulations) in connection with the offering
and sale of the Securities other than the Registration Statement, the
Prospectus, the Final Prospectus or other materials, if any, permitted by the
1933 Act or by the 1933 Act Regulations and approved by FIG Partners,
LLC.
(xxxvi) Forward-Looking
Statements. No forward-looking statement (within the meaning
of Section 27A of the 1933 Act and Section 21E of the 0000 Xxx) contained in the
Registration Statement and the Final Prospectus has been made or reaffirmed
without a reasonable basis or has been disclosed other than in good
faith.
(xxxvii) Lock-up
Agreements. Each of the Company’s executive officers and
directors, in each case as listed on Schedule B hereto, has executed and
delivered lock-up agreements or will execute and deliver lock-up agreements
prior to Closing Time as contemplated by Section 6(h) hereof (the “Lock-up
Agreements”).
(xxxviii) Fees. Other
than as contemplated by this Agreement, there is no broker, finder or other
party that is entitled to receive from the Company or its Subsidiaries any
brokerage or finder’s fee or any other fee, commission or payment as a result of
the transactions contemplated by this Agreement.
(xxxix) ERISA. The
Company and its Subsidiaries or their “ERISA Affiliates” (as defined below) are
in compliance in all material respects with all presently applicable provisions
of the Employee Retirement Income Security Act of 1974, as amended, including
the regulations and published interpretations thereunder (“ERISA”); no
“reportable event” (as defined in ERISA) has occurred with respect to any
14
“employee
benefit plan” (as defined in ERISA) for which the Company or any of its
Subsidiaries or ERISA Affiliates would have any material liability; the Company
and each of the Subsidiaries or their ERISA Affiliates have not incurred and do
not expect to incur liability under (i) Title IV of ERISA with respect to
termination of, or withdrawal from, any “employee benefit plan” or (ii) any
material liability under Sections 412, 4971, 4975 or 4980B of the United States
Internal Revenue Code of 1986, as amended, and the regulations and published
interpretations thereunder (collectively the “Code”); and each “employee benefit
plan” for which the Company and its Subsidiaries or any of their ERISA
Affiliates would have any liability that is intended to be qualified under
Section 401(a) of the Code is so qualified in all material respects and nothing
has occurred, whether by action or by failure to act, which would cause the loss
of such qualification. “ERISA Affiliate” means, with respect to the
Company or a Subsidiary, any member of any group of organizations described in
Sections 414(b), (c), (m) or (o) of the Code or Section 400(b) of ERISA of which
the Company or such Subsidiary is a member.
(xl)
Reportable
Transactions. Neither the Company nor its Subsidiaries has participated
in any reportable transaction, as defined in Treasury Regulation Section
1.6011-(4)(b)(1).
(xli)
Investment
Securities. Each of the Company and its Subsidiaries has good and
marketable title to all securities held by it (except securities sold under
repurchase agreements or held in any fiduciary or agency capacity) free and
clear of any lien, claim, charge, option, encumbrance, mortgage, pledge or
security interest or other restriction of any kind, except to the extent such
securities are pledged in the ordinary course of business consistent with
prudent business practices to secure obligations of the Company or its
Subsidiaries and except for such defects in title or liens, claims, charges,
options, encumbrances, mortgages, pledges or security interests or other
restrictions of any kind that would not have a Material Adverse Effect on the
Company and its Subsidiaries. Such securities are valued on the books of the
Company and its Subsidiaries in accordance with GAAP.
(xlii) Derivative Instruments. Any and all material swaps, caps, floors, futures, forward contracts, option agreements (other than employee stock options) and other derivative financial instruments, contracts or arrangements, whether entered into for the account of the Company or its Subsidiaries or for the account of a customer of the Company or its Subsidiaries, were entered into in the ordinary course of business and in accordance with prudent business practice and in material compliance with applicable laws, rules, regulations and policies of all applicable regulatory agencies and with counterparties believed to be financially responsible at the time. The Company and its Subsidiaries have duly performed in all material respects all of their obligations thereunder to the extent that such obligations to perform have accrued, and there are no breaches, violations or defaults or allegations or assertions of such by any party thereunder.
(xliii)
Bank
Holding Company Act; National Bank Act. The Company is duly
registered as a bank holding company under the Bank Holding Company Act of 1956,
as amended (the “BHC Act”). The Company’s Banks hold the requisite authority
from: (i) the Office of
15
the
Comptroller of the Currency (the “OCC”) to do business as a nationally-chartered
banking corporation under the laws of the United States of America, and (ii) the
Georgia Department of Banking and Finance to do business as a Georgia-chartered
state bank, as applicable. The Company and the Banks are in compliance in all
material respects with all laws administered by the Board of Governors of the
Federal Reserve System, the Federal Deposit Insurance Corporation, the OCC, the
Georgia Department of Banking and Finance, and any other federal bank regulatory
authorities with jurisdiction over the Company and its
Subsidiaries.
(xliv) The Nasdaq Global
Market. The Securities to be sold by the Company are duly
authorized for listing, subject to official notice of issuance, on The Nasdaq
Global Market.
(xlv) Insider
Loans. The Company has provided a true, correct and complete
list of any still outstanding extensions of credit made, directly or indirectly,
by the Company or any of the Subsidiaries to any Insider (as “Insider” is
defined by 12 C.F.R. §215.2(h)) of the Company or any of its Subsidiaries, or to
any family member or affiliate of any Insider of the Company or any of the
Subsidiaries. Since January 1, 2000, the Company has not,
except as permitted in each Banks’ capacity as a lending institution, directly
or indirectly, including through any of the Subsidiaries: (A)
extended credit, arranged to extend credit, or renewed any extension of credit
to or for any Insider of the Company or any of its Subsidiaries, or to or for
any family member or affiliate of any Insider of the Company or any
of the Subsidiaries; or (B) made any material modification, including
any renewal thereof, to any term of any loan to any Insider of the Company or
any of its Subsidiaries, or any family member or affiliate of any
Insider.
(xlvi) Off Balance Sheet
Transactions. Except as otherwise described in any preliminary
prospectus or the Final Prospectus, there are no transactions, arrangements and
other relationships between and/or among the Company and/or, to the knowledge of
the Company, any of the Subsidiaries, affiliates and any unconsolidated entity,
including, but not limited to, any structural finance, special purpose or
limited purpose entity (each, an “Off Balance Sheet
Transaction”) that could reasonably be expected to affect materially the
Company’s liquidity or the availability of or requirements for its capital
resources.
(xlvii) No Broker or
Dealer. Neither the Company nor any of its affiliates (A) is
required to register as a “broker” or “dealer” in accordance with the provisions
of the 1934 Act or the 1934 Act Regulations, or (B) directly, or indirectly
through one or more intermediaries, controls or has any other association
(within the meaning of Article I of the By-laws of FINRA with any member firm of
FINRA.
(xlviii) Privacy
Statements. The Company (A) complies with the Privacy
Statements (as defined below) as applicable to any given set of personal
information collected by the Company from Individuals (as defined below), (B)
complies in all material respects with all applicable federal, state, local and
foreign laws and regulations regarding the collection, retention, use, transfer
or disclosure of personal information, and (C) takes reasonable measures to
protect and maintain the confidential nature of the personal information
provided to the Company by Individuals in accordance with the terms
of the applicable Privacy Statements. To the Company’s knowledge, no
claims or controversies have arisen regarding the Privacy Statements or the
implementation thereof. As used herein, “Privacy Statements” means,
16
collectively,
any and all of the Company’s privacy statements and policies published on
Company websites or products or otherwise made available by the Company
regarding the collection, retention, use and distribution of the personal
information of individual, including, without limitation, from visitors or users
of any Company websites or products (“Individuals”).
(xlix) OFAC. Neither
the Company nor any of the Subsidiaries, nor, to the Company’s knowledge, any of
its affiliates or any director, officer, agent or employee of, or other person
associated with or acting on behalf of, the Company, is currently subject to any
United States sanctions administered by the Office of Foreign Assets Control of
the United States Department of the Treasury (“OFAC”). The Company
will not directly or indirectly use the proceeds of the offering, or lend,
contribute or otherwise make available such proceeds to any Subsidiary, partner
or joint venturer or other person or entity, for the purpose of financing the
activities of any person currently subject to any United States sanctions
administered by OFAC.
(b) Officer’s Certificates. Any certificate
signed by any officer of the Company or its Subsidiaries delivered to the
Underwriter or to counsel for the Underwriter shall be deemed a representation
and warranty by the Company to the Underwriter as to the matters covered
thereby.
SECTION
2. Sale and Delivery to Underwriter; Closing.
(a) Initial Securities. On the basis of
the representations and warranties herein contained and subject to the terms and
conditions herein set forth, the Company agrees to sell to the Underwriter and
the Underwriter agrees to purchase from the Company: (i) 228,490 shares of
Common Stock at the price per share of $9.405, and (ii) 869,908 shares of Common
Stock at the price per share of $9.025.
(b) Option Securities. In addition, on
the basis of the representations and warranties herein contained and subject to
the terms and conditions herein set forth, the Company hereby grants an option
to the Underwriter to purchase up to an additional 164,759 shares of Common
Stock at the price per share listed in Section 2(a)(ii). The option
hereby granted will expire 30 days after the date hereof and may be exercised in
whole or in part from time to time (but not more than two times) only for the
purpose of covering over-allotments which may be made in connection with the
offering and distribution of the Initial Securities upon notice by the
Underwriter to the Company setting forth the number of Option Securities as to
which the Underwriter is then exercising the option and the time and date of
payment and delivery for such Option Securities. Any such time and
date of delivery (a “Date of Delivery”) shall be determined by the Underwriter,
but shall not be later than seven full business days after the exercise of said
option, nor in any event prior to the Closing Time, as hereinafter
defined.
(c) Closing and
Payment. The closing of the issuance, payment of the purchase
price for, and delivery of the Initial Securities shall be made at
the offices of Xxxxxx Xxxxxxx Xxxxx & Xxxxxxxxxxx LLP, 000 X. Xxxx Xxxxxx,
Xxxxx 000, Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000, or at such other place as shall be
agreed upon by the Underwriter and the Company, at 10:00 A.M. (Eastern time) on
the third (fourth, if the pricing occurs after 4:30 P.M. (Eastern time) on any
given day) business day after the date hereof, or such other time not later than
ten business days after such date as shall be agreed upon by the Underwriter and
the Company (such time and date of payment and delivery being herein called
“Closing Time”).
17
In
addition, in the event that any or all of the Option Securities are purchased by
the Underwriter, payment of the purchase price for, and delivery of such Option
Securities shall be made at the above-mentioned offices, or at such other place
as shall be agreed upon by the Underwriter and the Company, on each Date of
Delivery as specified in the notice from the Underwriter to the
Company.
Payment
shall be made to the Company by wire transfer of
immediately available funds to a bank account designated by the
Company.
(d) Denominations;
Registration. Delivery of the
Initial Securities and the Option Securities, if any, shall be made to the
Underwriter against payment by the Underwriter of the aggregate purchase price
of the Initial Securities and Option Securities, if any, being sold by the
Company by wire transfer in immediately available funds to the accounts
specified by the Company. The Company shall deliver the Initial Securities and
Option Securities, if any, through the facilities of the Depository Trust
Company (the “DTC”) unless the Underwriter shall otherwise
instruct.
SECTION
3. Covenants of the
Company. The Company covenants with the Underwriter as
follows:
(a) Compliance with Securities
Regulations and Commission Requests. The Company,
subject to Section 3(b), will comply with the requirements of Rule 430B and will
notify the Underwriter immediately, and confirm the notice in writing, (i) when
any post-effective amendment to the Registration Statement shall become
effective, or any supplement to the Prospectus (including the Final Prospectus)
shall have been filed, (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 Final Prospectus or for
additional information, (iv) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of any order
preventing or suspending the use of any preliminary prospectus, 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(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 promptly effect the filings
necessary pursuant to 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 order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment. The Company will
comply with all of the provisions of any undertaking in the Registration
Statement.
18
(b) Filing of
Amendments. The Company will give the Underwriter notice of
its intention to file or prepare any amendment to the Registration Statement
(including any filing under Rule 462(b)), or any amendment, supplement or
revision to the Prospectus or to the Final Prospectus, whether pursuant to the
1933 Act, the 1934 Act or otherwise, will furnish the Underwriter with copies of
any such documents 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 document to which the
Underwriter or counsel for the Underwriter shall reasonably object.
(c) Delivery of Registration
Statements. The Company has
furnished or will deliver to the Underwriter and counsel for the Underwriter,
without charge, signed copies of the
Registration Statement as originally filed and of 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, upon reasonable
request of the Underwriter, will also deliver to the Underwriter, without
charge, an electronic copy of the Registration Statement as originally filed and
of each amendment thereto (without exhibits). The copies of the
Registration Statement and each amendment thereto furnished to the Underwriter
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.
(d) Delivery of Prospectuses. The Company
hereby consents to the use by the Underwriter of the Prospectus and Final
Prospectus for purposes permitted by the 1933 Act. The Company will
furnish to the Underwriter, without charge, such number of copies of the Final
Prospectus (as amended or supplemented) as such Underwriter may reasonably
request for the purposes contemplated by the 1933 Act
Regulations. The Final Prospectus and any amendments or supplements
thereto furnished to the Underwriter 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) Continued Compliance with Securities
Laws. The Company will
comply with the 1933 Act and the 1933 Act Regulations and 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 Final
Prospectus. If at any time when a prospectus is 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 Underwriter or for the Company, to amend the
Registration Statement or amend or supplement the Final Prospectus in order that
the Final Prospectus will not include any untrue statements 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 if it shall be necessary, in the opinion of such
counsel, at any such time to amend the Registration Statement or amend or
supplement the Final Prospectus in order to comply with the requirements of the
1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file
with the Commission, subject to Section
19
3(b),
such amendment or supplement as may be necessary to correct such statement or
omission or to make the Registration Statement or the Final Prospectus comply
with such requirements, and the Company will furnish to the Underwriter such
number of copies of such amendment or supplement as the Underwriter may
reasonably request. If at any time prior to the filing of the Final
Prospectus there occurred or occurs an event or development as a result of which
the General Disclosure Package conflicted or would conflict with the information
contained in the Registration Statement 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 prevailing at that subsequent time, not misleading, the Company
has promptly notified or will promptly notify the Underwriter and has promptly
amended or will promptly amend or supplement, at its own expense, the General
Disclosure Package to eliminate or correct such conflict, untrue statement or
omission.
(f) Blue Sky Qualifications. The Company will
use its commercial best efforts, in cooperation with the Underwriter, to qualify
the Securities for offering and sale under the applicable securities laws of
such states and other jurisdictions as the Underwriter may reasonably designate
and to maintain such qualifications in effect for a period of not less than one
year from the later of the effective date of the Registration Statement and any
Rule 462(b) Registration Statement; 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. In each jurisdiction in which the Securities have been so
qualified, the Company will file such statements and reports as may be required
by the laws of such jurisdiction to continue such qualification in effect for a
period of not less than one year from the effective date of the Registration
Statement and any Rule 462(b) Registration Statement. The Company
will also supply the Underwriter with such information as is necessary for the
determination of the legality of the Securities for investment under the laws of
such jurisdiction as the Underwriter may request.
(g) Rule 158. The Company will
timely file such reports pursuant to the 1934 Act as are necessary in order to
make generally available to its shareholders as soon as practicable an earnings
statement for the purposes of, and to provide the benefits contemplated by, the
last paragraph of Section 11(a) of the 1933 Act.
(h) Use of Proceeds. The Company will
use the net proceeds received by it from the sale of the Securities in the
manner specified in the Final Prospectus under “Use of Proceeds.”
(i) Listing. The Company will
use its commercial best efforts to obtain, effect and maintain the quotation of
the Securities on The Nasdaq Global Market and will file with The Nasdaq Global
Market all documents and notices required by The Nasdaq Global Market of
companies that have securities that are traded in the over-the-counter market
and quotations for which are reported by The Nasdaq Global Market.
(j) Transfer
Agent. The Company will maintain, at its expense, a registrar
and transfer agent for the Securities.
20
(k) Restriction on Sale of
Securities. During a period
of 90 days from the date of the Final Prospectus (the “Restricted Period”), the
Company will not, without the prior written consent of the Underwriter, directly
or indirectly, (i) offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase, or otherwise transfer or dispose of any shares of
Common Stock or any securities convertible into or exercisable or exchangeable
for Common 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 the Common Stock, whether
any such swap or transaction described in clause (i) or (ii) above is to be
settled by delivery of Common Stock or such other securities, in cash or
otherwise. The foregoing sentence shall not apply to (A) the
Securities to be sold hereunder, (B) any shares of Common Stock issued by the
Company upon the exercise of an option or warrant or the conversion of a
security outstanding on the date hereof and referred to in the Final Prospectus,
(C) any shares of Common Stock issued or options to purchase Common Stock
granted pursuant to existing employee benefit plans of the Company referred to
in the Prospectus provided that such options shall not be vested and exercisable
within the 90 day period referred to above, or (D) any shares of Common Stock
issued pursuant to any non-employee director stock plan or dividend reinvestment
plan. Notwithstanding the foregoing, in the event that either (i)
during the period that begins on the date that is 15 calendar days plus 3
business days before the last day of the Restricted Period and ends on the last
day of the Restricted Period, the Company issues an earnings release or material
news or a material event relating to the Company occurs, or (ii) prior to the
expiration of the Restricted Period, the Company announces that it will release
earnings results during the 16-day period beginning on the last day of the
Restricted Period, the restrictions set forth herein will continue to apply
until the expiration of the date that is 15 calendar days plus 3 business days
after the date on which the earnings release is issued or the material news or
event related to the Company occurs.
(l) Reporting Requirements. The Company,
until completion of the distribution 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 the 1934 Act and the 1934 Act Regulations.
(m) Lock-up Agreements. The Company
agrees to enforce its rights under its existing registration rights agreements
and shareholders’ agreement, to the extent applicable, to restrict the transfer
of securities within the 90-day period following the date of this
Agreement.
(n) Issuer Free Writing
Prospectus. The Company represents and agrees that, unless it obtains the
prior consent of the Underwriter, and the Underwriter represents and agrees
that, unless it obtains the prior consent of the Company, it has not made and
will not make any offer relating to the Securities that would constitute an
“issuer free writing prospectus,” as defined in Rule 433, or that would
21
otherwise
constitute a “free writing prospectus,” as defined in Rule 405, required to be
filed with the Commission. Any such free writing prospectus consented
to by the Underwriter and the Company is hereinafter referred to as an “Issuer Permitted Free Writing
Prospectus.” The Company represents that it has treated or
agrees that it will treat each Issuer Permitted Free Writing Prospectus as an
“issuer free writing prospectus,” as defined in Rule 433, and has complied and
will comply with the requirements of Rule 433 applicable to any Issuer Permitted
Free Writing Prospectus, including where and when required, timely filing with
the Commission where required, legending and record keeping. The
Company represents that it has satisfied and agrees that it will satisfy the
conditions in Rule 433 to avoid a requirement to file with the Commission any
electronic road show.
(o) Compliance with the Xxxxxxxx-Xxxxx
Act and Related Corporate Governance Rules. During the time
when a prospectus is required to be delivered under the 1933 Act (whether
physically or through compliance with Rule 172 under the 1933 Act or any similar
rule), the Company shall at all times comply, in all material respects, with all
applicable provisions of the Xxxxxxxx-Xxxxx Act, including the related rules and
regulations promulgated thereunder by the Commission and The Nasdaq Stock
Market, Inc., in effect from time to time.
(p) Notice of
Issuance. The Company will timely file a “Notification
Form: Change in the Number of Shares Outstanding” with The Nasdaq
Stock Market, Inc.
(q) Compliance with Rule
433(g). The Company will comply with Rule 433(g) under the
1933 Act.
(r) Directors and Officers
Insurance. The Company shall obtain or maintain directors and
officers liability insurance at levels and scope of coverage which the Company
believes are adequate and appropriate.
SECTION
4. Certain Agreements of the Underwriter. The Underwriter
hereby represents and agrees that:
(a)
It has
not used, authorized use of, referred to or participated in the planning for use
of, and will not use, authorize use of, refer to or participate in the planning
for use of, any “free writing prospectus,” as defined in Rule 405 under the 1933
Act (which term includes use of any written information furnished to the
Commission by Company and not incorporated by reference into the Registration
Statement and any press release issued by the Company) other than (i) a free
writing prospectus that contains no “issuer information” (as defined in Rule
433(h)(2) under the 0000 Xxx) that was not included (including through
incorporation by reference) in the Prospectus or a previously filed
Issuer-Represented Free Writing Prospectus, (ii) any Issuer-Represented Free
Writing Prospectus listed on Annex A or prepared pursuant to Section 1(a) above
(including any electronic road show), or (iii) any free writing prospectus
prepared by the Underwriter and approved by Company in advance in writing (each
such free writing prospectus referred to in clauses (i) or (iii), an
“Underwriter Free Writing Prospectus”).
(b)
It has
not and will not, without the prior written consent of Company, use any free
writing prospectus that contains the final terms of the Securities unless such
terms have previously been included in a free writing prospectus filed with the
Commission.
(c) It is not
subject to any pending proceeding under Section 8A of the 1933 Act with respect
to the offering of the Securities (and will promptly notify Company if any such
proceeding against it is initiated during such period of time after the first
date of the public offering of the Securities as in the opinion of counsel for
the Underwriter a prospectus relating to the Securities is required by law to be
delivered (or required to be delivered but for Rule 172 under the 0000 Xxx) in
connection with sales of the Securities by the Underwriter).
22
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 of each amendment thereto, (ii) the preparation, printing
and delivery to the Underwriter of this Agreement and such other documents as
may be required in connection with the offering, purchase, sale, issuance or
delivery of the Securities, (iii) any stock or other transfer taxes and any
stamp or other duties payable upon the sale, issuance or delivery of the
Securities to the Underwriter, (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,
(vi) the electronic delivery to the Underwriter of copies of each Prospectus,
any Issuer Permitted Free Writing Prospectus and of the Final Prospectus and any
amendments or supplements thereto, (vii) the fees and expenses of any transfer
agent or registrar for the Securities, (viii) 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 by the Company in connection with the
road show presentations, travel and lodging expenses of the representatives and
officers of the Company and any such consultants, (ix) the filing fees incident
to any review by FINRA of the terms of the sale of the Securities, and (xii) the
fees and expenses incurred in connection with the inclusion of the Securities in
The Nasdaq Global Market. Whether or not the offering
contemplated hereby is consummated, the Company also shall reimburse the
Underwriter for $50,000 of the costs and expenses of the Underwriter in
connection with the offering contemplated by this Agreement (including, without
limitation, those reasonable fees related to outside legal counsel, due
diligence, travel and out-of-pocket expenses), and will reimburse the
Underwriter for up to an additional $25,000 of reasonable, documented costs and
expenses of the Underwriter in connection with the offering contemplated by this
Agreement.
(b) Termination of
Agreement. If this Agreement is terminated by the Underwriter
in accordance with the provisions of Section 6 or Section 10(a)(i) hereof, the
Company shall reimburse the Underwriter for $50,000 of the costs and expenses of
the Underwriter in connection with the offering contemplated by this Agreement
(including, without limitation, those reasonable fees related to outside legal
counsel, due diligence, travel and out-of-pocket expenses) and will reimburse
the Underwriter for up to an additional $25,000 of reasonable, documents costs
and expenses of the Underwriter in connection with the offering contemplated by
this Agreement.
SECTION
6. Conditions of Underwriter’s
Obligations. The obligations of the Underwriter hereunder are subject
to the accuracy of the representations and warranties of the Company contained
in Section 1(a) hereof or in certificates of any officer of the Company or any
Subsidiary of the Company 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:
23
(a) Effectiveness of Registration
Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective and at Closing Time no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the 1933 Act or proceedings
therefor initiated or threatened by the Commission, and any request on the part
of the Commission for additional information shall have been complied with to
the reasonable satisfaction of counsel to the Underwriter. A
prospectus containing the Rule 430B Information shall have been filed with the
Commission in the manner and within the time period required by Rule 424(b)
(without reliance on Rule 424(b)(8)) (or a post-effective amendment providing
such information shall have been filed and declared effective in accordance with
the requirements of Rule 430B).
(b) Opinion of Counsel for
Company. At Closing Time,
the Underwriter shall have received the favorable opinion, dated as of Closing
Time, of Xxxxxx & Bird LLP, special securities counsel for the Company and
Ellis, Painter, Xxxxxxxxx & Xxxxx LLP, counsel for the Company, in form and
substance satisfactory to counsel for the Underwriter, to the effect set forth
in Exhibit A hereto. 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 of the Company and its subsidiaries and
certificates of public officials.
(c) Opinion of Counsel for Underwriter. At Closing Time,
the Underwriter shall have received the favorable opinion, dated as of Closing
Time, of Xxxxxx Xxxxxxx Xxxxx & Xxxxxxxxxxx LLP, counsel for the
Underwriter. The opinion shall address the matters as the Underwriter
may reasonably request. 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 South Carolina and the federal law of the United States, upon the
opinions of counsel satisfactory to the Underwriter.
(d) Officers’ Certificate. At Closing Time,
there shall not have been, since the date hereof or since the respective dates
as of which information is given in the Prospectus, the General Disclosure
Package or the Final Prospectus as of the execution of this Agreement or the
Applicable Time, any Material Adverse Effect 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. At Closing Time, the
Underwriter shall have received a certificate of the President or a Vice
President of the Company and of the chief financial or chief accounting officer
of the Company, dated as of Closing Time, to the effect that (i) there has been
no Material Adverse Effect, (ii) the representations and warranties in Section
1(a) hereof are true and correct with the same force and effect as though
expressly made at and as of Closing Time, (iii) the Company has complied with
all agreements and satisfied all conditions on its part to be performed or
satisfied pursuant to the Underwriting Agreement at or prior to Closing Time,
and (iv) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are pending or are to their knowledge contemplated by the
Commission.
24
(e) Accountant’s Comfort
Letter. At the time of
the execution of this Agreement, the Underwriter shall have received from
Xxxxxxx & Xxxxxxx a letter dated such date, in form and substance
satisfactory to the Underwriter containing statements and information of the
type ordinarily included in accountants’ “comfort letters” to underwriters with
respect to the financial statements and certain financial information contained
in the Registration Statement and the Final Prospectus.
(f) Bring-down Comfort
Letter. At Closing Time,
the Underwriter shall have received from Xxxxxxx & Xxxxxxx a letter, dated
as of Closing Time, to the effect that they reaffirm the statements made in the
letter furnished pursuant to subsection (e) of this Section, except that the
specified date referred to shall be a date not more than three business days
prior to Closing Time.
(g) Approval of Listing. The Common Stock
is registered pursuant to Section 12(b) of the Exchange Act and is listed on The
Nasdaq Global Market, and the Company has taken no action designed to, or likely
to have the effect of, terminating the registration of the Common Stock under
the Exchange Act or delisting the Common Stock from The Nasdaq Global Market,
nor has the Company received any notification that the Commission or FINRA is
contemplating terminating such registration or listing.
(h) Lock-up Agreements. At Closing Time,
the Underwriter shall have received an agreement substantially in the form of
Exhibit B
hereto signed by the persons listed on Schedule B
hereto.
(i) Delivery of Prospectus. The Company
shall have complied with the provisions hereof with respect to the furnishing of
prospectuses, in electronic or printed format, on the New York business day next
succeeding the date of this Agreement.
(j) No Termination Event. On or after the
date hereof, there shall not have occurred any of the events, circumstances or
occurrences set forth in Section 10(a).
(k) Conditions to Purchase of Option
Securities. In the event
that the Underwriter exercises its option provided in Section 2(b) hereof to
purchase all or any portion of the Option Securities, the representations and
warranties of the Company contained herein and the statements in any
certificates furnished by the Company and the Subsidiaries of the Company
hereunder shall be true and correct as of each Date of Delivery and, at the
relevant Date of Delivery, the Underwriter shall have received:
(i) Officers’
Certificate. A certificate, dated such Date of Delivery, of
the President or a Vice President of the Company and of the chief financial or
chief accounting officer of the Company confirming that the certificate
delivered at the Closing Time pursuant to Section 6(d) hereof remains true and
correct as of such Date of Delivery.
25
(ii) Opinion of Counsel for
Company. The favorable opinion of Xxxxxx & Bird LLP,
special securities counsel for the Company and Ellis, Painter, Xxxxxxxxx &
Xxxxx LLP, counsel for the Company, in form and substance satisfactory to
counsel for the Underwriter, dated such Date of Delivery, relating to the Option
Securities to be purchased on such Date of Delivery and otherwise to the same
effect as the opinion required by Section 6(b) hereof.
(iii) Opinion
of Counsel for Underwriter. The favorable opinion of Xxxxxx Xxxxxxx
Xxxxx & Scarborough LLP, counsel for the Underwriter, dated such Date of
Delivery, relating to the Option Securities to be purchased on such Date of
Delivery and otherwise to the same effect as the opinion required by Section
6(c) hereof.
(iv) Bring-down
Comfort Letter. A letter from Xxxxxxx & Xxxxxxx, in form and
substance satisfactory to the Underwriter and dated such Date of Delivery,
substantially in the same form and substance as the letter furnished to the
Underwriter pursuant to Section 6(e) hereof, except that the “specified date” in
the letter furnished pursuant to this paragraph shall be a date not more than
five days prior to such Date of Delivery.
(v) No
Termination Event. There shall not have occurred prior to the Date of
Delivery any of the events, circumstances or occurrences set forth in Section
10(a).
(l) Additional Documents. At Closing Time
and at each Date of Delivery counsel for the Underwriter shall have been
furnished with such documents and opinions as they may reasonably 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. At Closing Time and at each Date of
Delivery, all proceedings taken by the Company in connection with the issuance
and sale of the Securities as herein contemplated shall be satisfactory in form
and substance to the Underwriter and counsel for the Underwriter.
(m) Termination of Agreement. If any condition
specified in this Section shall not have been fulfilled when and as required to
be fulfilled, this Agreement, or, in the case of any condition to the purchase
of Option Securities on a Date of Delivery which is after the Closing Time, the
obligations of the Underwriter to purchase the relevant Option Securities may be
terminated by the Underwriter by notice to the Company at any time at or prior
to Closing Time or such Date of Delivery, as the case may be, and
such termination shall be without liability of any party to any other
party except as provided in Section 5 and except that Sections 1, 7, 8 and 9
shall survive any such termination and remain in full force and
effect.
SECTION
7. Indemnification.
(a)
Indemnification of
Underwriter. The Company agrees to indemnify and
hold harmless the Underwriter, their affiliates (as such term is defined in Rule
501(b) under the 1933 Act) (“Affiliates”) and each person, if any, who controls
the Underwriter within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act as
follows:
26
(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 the Rule 430B Information, if applicable, 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 in the
Prospectus, any Issuer-Represented Free Writing Prospectus, the General
Disclosure Package or the Final Prospectus (or any amendment or supplement
thereto), or the omission or alleged omission therefrom 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 agency or
body, 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 6(c) below) any such settlement is effected
with the written consent of the Company; and
(iii)
against any and all expense whatsoever, as incurred (including the fees and
disbursements of counsel chosen by the Underwriter), reasonably incurred in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, 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 reliance upon and in conformity with
written information furnished to the Company by the Underwriter expressly for
use in the Registration Statement (or any amendment thereto), including the Rule
430B Information, if applicable, the Prospectus, or any Issuer-Represented Free
Writing Prospectus or the Final Prospectus (or any amendment or supplement
thereto); provided that the parties acknowledge and agree that the only written
information that the Underwriter have furnished to the Company expressly for
inclusion in the Registration Statement, the Prospectus or any
Issuer-Represented Free Writing Prospectus or the Final Prospectus (or any
amendment or supplement thereto) are the concession and reallowance figures
appearing in the Final Prospectus in the section entitled “Underwriting,”
including all subheadings thereunder.
(b)
Indemnification of Company,
Directors and Officers. The Underwriter
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 subsection (a) of this Section,
as incurred, but only with respect to untrue statements or omissions, or alleged
untrue
27
statements
or omissions made in reliance upon and in conformity with written information
furnished to the Company by the Underwriter expressly for use in the
Registration Statement (or any amendment thereto), including the Rule 430B
Information, if applicable, the Prospectus, or any Issuer-Represented Free
Writing Prospectus or the Final Prospectus (or any amendment or supplement
thereto); provided that the parties acknowledge and agree that the only written
information that the Underwriter have furnished to the Company expressly for
inclusion in the Registration Statement, the Prospectus or any
Issuer-Represented Free Writing Prospectus or the Final Prospectus (or any
amendment or supplement thereto) are the concession and reallowance figures
appearing in the Final Prospectus in the section entitled “Underwriting,”
including all subheadings thereunder.
(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 the case of parties
indemnified pursuant to Section 7(a) above, counsel to the indemnified parties
shall be selected by the Underwriter and in the case of parties indemnified
pursuant to Section 7(b) above, counsel to the indemnified parties shall be
selected by the Company. An indemnifying party may participate at its
own expense in the defense of any such action; provided, however, that counsel
to the indemnifying party shall not (except with the consent of the indemnified
party) also be counsel to the indemnified party. Notwithstanding the
foregoing, the indemnified party or parties shall have the right to employ its
or their own counsel in any such case, but the fees and expenses of such counsel
shall be at the expense of such indemnified party or parties unless (i) the
employment of such counsel shall have been authorized in writing by one of the
indemnifying parties in connection with the defense of such action, (ii) the
indemnifying party or parties shall not have employed counsel to have charge of
the defense of such action within a reasonable time after notice of commencement
of the action, (iii) the indemnifying party or parties do not diligently defend
the action after assumption of the defense, or (iv) such indemnified party or
parties shall have reasonably concluded that there may be defenses available to
it or them which are different from or additional to those available to one or
all of the indemnifying parties (in which case the indemnifying parties shall
not have the right to direct the defense of such action on behalf of the
indemnified party or parties), in any of which events such fees and expenses
shall be borne by the indemnifying parties. In no event shall the
indemnifying parties be liable for fees and expenses of more than one counsel
(in addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances. 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 agency or
body, 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.
28
SECTION
8. Contribution. If the indemnification provided
for in Section 67 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 on the one hand and the
Underwriter 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 on the one hand and of the Underwriter 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 on the one hand and the Underwriter 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 on the one hand,
and the total underwriting discount and commissions received by the Underwriter,
on the other hand, in each case as set forth on the cover of the Final
Prospectus.
The
relative fault of the Company on the one hand and the Underwriter on the other
hand shall be determined by reference to, among other things, whether 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
or by the Underwriter and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission.
The
Company and the Underwriter agree that it would not be just and equitable if
contribution pursuant to this Section 8 were determined by pro rata allocation
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 agency or body, 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, the Underwriter shall not be required to
contribute any amount in excess of the amount by which the total price at which
the Securities underwritten by them and distributed to the public were offered
to the public exceeds the amount of any damages which such Underwriter have
otherwise been required to pay by reason of any such untrue or alleged untrue
statement or omission or alleged omission.
29
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 the Underwriter
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
and the Underwriter’s Affiliates shall have the same rights to contribution as
the 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.
SECTION
9. Survival. The
respective indemnities, rights of contribution, representations,
warranties and agreements of Company and the Underwriter contained in this
Agreement or in certificates of officers of the Company or its Subsidiaries or
the Underwriter submitted pursuant hereto, shall remain operative and in full
force and effect, regardless of any (i) investigation made by or on behalf of
the Underwriter, its Affiliates or selling agents, any person controlling the
Underwriter, its officers or directors, or by or on behalf of the Company, and
(ii) delivery of and payment for the Securities.
SECTION
10. Termination of
Agreement.
(a)
Termination;
General. The Underwriter
may terminate this Agreement, by notice to the Company, at any time at or prior
to Closing Time (i) if there has been, since the time of execution of this
Agreement or since the respective dates as of which information is given in the
Prospectus, the General Disclosure Package or the Final Prospectus, any Material
Adverse Effect, or (ii) if there has occurred any material adverse change in the
financial markets in the United States or the States of South Carolina and
Georgia, any outbreak of hostilities or escalation thereof or other calamity or
crisis, whether national or international, including without limitation as a
result of terrorist activities, in each case that, in the judgment of the
Underwriter, is material and adverse and makes it impracticable or inadvisable
to market 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 Global Market, or 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 such system or by order of the Commission, FINRA or any other
governmental authority, or (iv) a material disruption has occurred in commercial
banking or securities settlement or clearance services in the United States, or
(v) if a banking moratorium has been declared by either Federal or New York
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
4 hereof, and provided further that Sections 1, 7, 8 and 9 shall survive such
termination and remain in full force and effect.
30
SECTION
11. Default by the
Company. If
the Company shall fail at Closing Time or at the Date of Delivery to sell to the
Underwriter the number of Securities that it is obligated to sell hereunder,
then this Agreement shall terminate without any liability on the part of any
nondefaulting party; provided, however, that the provisions of Sections 1, 4, 6,
7 and 8 shall remain in full force and effect. No action taken
pursuant to this Section shall relieve the Company from liability, if any, in
respect of such default.
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 Underwriter shall be directed to
the Underwriter at FIG Partners, LLC, 0000 Xxxxxxxxx Xx., XX, 000 Xxxxxx Xxxxxx,
Xxxxx 0000, Xxxxxxx, Xxxxxxx 00000, attention of Xxxxxxx Xxxxxx, with a copy
(which shall not constitute notice) to Xxxxxx Xxxxxxx Xxxxx & Scarborough,
LLP, Poinsett Plaza, Suite 900, 000 Xxxxx Xxxx Xxxxxx, Xxxxxxxxxx, Xxxxx
Xxxxxxxx 00000, attention of Xxxx X. Xxxxxxxx; notices to the Company shall be
directed to it at The Savannah Bancorp, Inc., 00 Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxx
00000, attention of Xxxxxxx X. Xxxxxx, Xx., with a copy (which shall not
constitute notice) to each of: Ellis, Painter, Xxxxxxxxx & Xxxxx LLP, First
Union Building, 0 Xxxx Xxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxx, Xxxxxxx 00000 ,
attention J. Xxxxx Xxxxx, and to Xxxxxx & Bird LLP, 0000 Xxxx Xxxxxxxxx
Xxxxxx, Xxxxxxx, Xxxxxxx 00000, attention of Xxxx X. Xxxxxx.
SECTION
13. Patriot Act. In
accordance with the requirements of the USA Patriot Act (Title III of Pub. L.
107-56 (signed into law October 26, 2001)), the Underwriter is required to
obtain, verify and record information that identifies its clients, including the
Company, which information may include the name and address of its clients, as
well as other information that will allow the Underwriter to properly identify
its clients.
SECTION
14. Parties. This
Agreement shall each inure to the benefit of and be binding upon the Underwriter
and the Company and the controlling persons, directors, officers, employees and
agents referred to in Sections 7 and 8 herein and their respective successors
and assigns. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the Underwriter and the Company and their respective successors and the
controlling persons and 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 Underwriter and the
Company and their respective successors and assigns, and said controlling
persons and 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 the Underwriter shall be deemed to be a successor
by reason merely of such purchase.
31
SECTION
15. No
Fiduciaries. The Company acknowledges and agrees that (i) the
purchase and sale of the Securities pursuant to this Agreement, including the
determination of the public offering price of the Securities and any related
discounts and commissions, is an arm’s-length commercial transaction between the
Company on the one hand, and the Underwriter, on the other hand, (ii) in
connection with the offering contemplated hereby and the process leading to such
transaction the Underwriter is and has been acting solely as a principal and is
not the agent or fiduciary of the Company or its shareholders, creditors,
employees or any other third party, (iii) the Underwriter has not assumed and
will not assume an advisory or fiduciary responsibility in favor of the Company
with respect to the offering contemplated hereby or the process leading thereto
(irrespective of whether the Underwriter has advised or is currently advising
the Company on other matters) and the Underwriter has no obligation to the
Company with respect to the offering contemplated hereby except the obligations
expressly set forth in this Agreement, (iv) the Underwriter and its respective
affiliates may be engaged in a broad range of transactions that involve
interests that differ from those of the Company, and (v) the Underwriter has not
provided any legal, accounting, regulatory or tax advice with respect to the
offering contemplated hereby and the Company has consulted its own legal,
accounting, regulatory and tax advisors to the extent it deemed
appropriate.
SECTION
16. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
GEORGIA.
SECTION
17. General
Provisions. This Agreement constitutes the entire agreement of
the parties to this Agreement and supersedes all prior written or oral and all
contemporaneous oral agreements, understandings and negotiations with respect to
the subject matter hereof. This Agreement may be executed in two or
more counterparts, each one of which shall be an original, but all of which
together shall constitute one and the same instrument. The exchange
of copies of this Agreement and of signature pages by facsimile or other
electronic means shall constitute effective execution and delivery of this
Agreement by the parties hereto and may be used in lieu of the original
signature pages to this Agreement for all purposes. This Agreement
may not be amended or modified unless in writing by all of the parties hereto,
and no condition herein (express or implied) may be waived unless waived in
writing by each party whom the condition is meant to benefit. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
(Remainder of page intentionally left
blank.)
32
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 Underwriter and
the Company in accordance with its terms.
Very
truly yours,
THE
SAVANNAH BANCORP, INC.
By: /s/ Xxxx X. Xxxxxxx
XX
Name:
Xxxx X. Xxxxxxx XX
Title: President and Chief Executive
Officer
CONFIRMED
AND ACCEPTED,
as of the
date first above written:
FIG
PARTNERS, LLC
By: /s/ Xxxxxxx
Xxxxxx
Name:
Xxxxxxx Xxxxxx
Title: An
Officer of the Company
SCHEDULE
A
Company
Subsidiaries
Name
|
State of Incorporation
|
The
Savannah Bank, National Association
|
United
States (National Charter)
|
Xxxxx
Bank & Trust
|
Georgia
|
Minis
& Co, Inc.
|
Georgia
|
SAVB
Holdings, LLC
|
Georgia
|
Nonconsolidated
subsidiaries:
|
|
SAVB
Properties, LLC
|
Georgia
|
SAVB
Capital Trust 1
|
Delaware
|
SAVB
Capital Trust 2
|
Delaware
|
SCHEDULE
B
Xxxxxxx
X. Xxxxx
E. Xxxxx
Xxxxxxx
Xxxxxxx
X. Xxxxxxxxx
Xxxxxxxx
X. Xxxxx
Xxxxxx X.
Xxxxxx, Xx.
Xxxxxxxx
X. Xxxxxxx, Xx.
X. Xxxxx
Xxxxx
X.
Xxxxxxx Xxxx
Xxxxxxx
X. Xxxxxx, Xx.
Xxxx X.
Xxxxxxx XX
Xxxxx
O'Dell Xxxxx
Xxxxx X.
Xxxx
J. Xxxxxx
Xxxxx III
X. Xxxx
Xxxxxxxx
Xxxxx
Xxxx Xxxxxxx, Sr.
Xxxxx X.
Royal, Sr.
R.
Xxxxxxx Xxxxxx
Xxxxxx X.
Xxxxxxxx, Xx.