EXHIBIT 1.0
___________ Shares(1)
Xxxxxxxxxx West Financial Group, Inc.
Common Stock
($0.01 Par Value)
EQUITY UNDERWRITING AGREEMENT
October __, 2002
RBC Xxxx Xxxxxxxx Inc.
as the Representative of the Several Underwriters
named in Schedule I hereto
c/o RBC Capital Markets
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Ladies and Gentlemen:
Harrington West Financial Group, Inc., a Delaware corporation (the
"Company"), and certain stockholders of the Company listed on Schedule II
hereto (the "Selling Stockholders") severally propose to sell to the several
underwriters (the "Underwriters") named in Schedule I hereto for whom you are
acting as representative (the "Representative"), an aggregate of _________
shares of the Company's Common Stock, $0.01 par value (the "Firm Shares"), of
which _________ shares will be issued and sold by the Company and _______
shares will be sold by the Selling Stockholders. The Firm Shares to be sold by
the Company shall include not less than _________ shares of Common Stock to be
offered to the public (the "Non-Affiliate Shares") and up to _______ shares of
Common Stock reserved for issuance to directors, employees or stockholders of
the Company and the Los Padres Bank ("Affiliate Shares"). The respective
amounts of the Firm Shares to be sold by the Selling Stockholders are set
forth opposite their names on Schedule II hereto. The respective amounts of
the Firm Shares to be purchased by the Underwriters, acting severally and not
jointly, are set forth opposite their names in Schedule I hereto. The
Representative may by notice to the Company amend Schedule I to add, eliminate
or substitute names set forth therein (other than to eliminate the name of the
Representative) and to amend the number of Firm Shares to be purchased by any
firm or corporation listed thereon, provided that the total number of Firm
Shares listed on Schedule I shall equal ___________. The Company also proposes
to sell at the Underwriters' option an aggregate of up to _______ additional
shares of the Company's Common Stock (the "Option Shares") as set forth below.
The Firm Shares and the
------------------
(1) Plus an option to purchase up to __________ additional shares to cover
over-allotments.
Option Shares (to the extent the aforementioned option is exercised) are
herein collectively called the "Shares."
In consideration of the mutual agreements contained herein and of the
interests of the parties in the transactions contemplated hereby, the parties
hereto agree as follows:
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to each of the
Underwriters as follows:
(a) A registration statement on Form S-1 (File No.
333-99031) with respect to the Shares has been prepared by the Company in
conformity with the requirements of the Securities Act of 1933, as amended
(the "Act"), and the rules and regulations (the "Rules and Regulations") of
the Securities and Exchange Commission (the "Commission") thereunder and has
been filed with the Commission. Copies of such registration statement,
including any amendments thereto, the preliminary prospectuses (meeting the
requirements of the Act and the Rules and Regulations) contained therein and
the exhibits, financial statements and schedules, as finally amended and
revised, have heretofore been delivered by the Company to the Representative.
Such registration statement, together with any registration statement filed by
the Company pursuant to Rule 462(b) of the Act, herein referred to as the
"Registration Statement," which shall be deemed to include all information
omitted therefrom in reliance upon Rule 430A and contained in the Prospectus
referred to below, has become effective under the Act and no post-effective
amendment to the Registration Statement has been filed as of the date of this
Agreement. The date on which the Registration Statement becomes effective is
hereafter referred to as the "Effective Date." "Prospectus" means the form of
prospectus first filed with the Commission pursuant to Rule 424(b). Each
preliminary prospectus included in the Registration Statement prior to the
time it becomes effective is herein referred to as a "Preliminary Prospectus."
As filed, the Prospectus shall contain all Rule 430A information, together
with all other such required information, and, except to the extent the
Representative shall agree in writing to a modification, shall be in all
substantive respects in the form furnished to the Representative prior to the
date hereof or, to the extent not completed at the date hereof, shall contain
only such specific additional information and other changes as the Company has
advised the Representative, prior to the date hereof, shall be included or
made therein.
(b) No order preventing or suspending the use of the
Prospectus (or, if the Prospectus is not in existence, any Preliminary
Prospectus) has been issued by the Commission, nor has the Commission, to the
knowledge of the Company, threatened to issue such an order or instituted
proceedings for that purpose. Each Preliminary Prospectus, at the time of
filing thereof, (A) complied in all material respects with the requirements of
the Act and the Rules and Regulations and (B) did not contain an untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided, however,
that this representation and warranty does not apply to statements or
omissions made in reliance upon and in conformity with information furnished
in writing to the Company by or on behalf of any of the
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Underwriters expressly for inclusion in the Prospectus beneath the heading
"Underwriting" as set forth in Section 16 (such information referred to herein
as the "Underwriters' Information"). As of the date that each Preliminary
Prospectus was filed with the Commission or as of the date that the Prospectus
and any amendment or supplement thereto was filed with the Commission (or, if
not filed, on the date provided by the Company to the Underwriters in
connection with the offering and sale of the Shares), as the case may be, no
event has or will have occurred which should have been set forth in an
amendment or supplement to any Preliminary Prospectus or the Prospectus which
has not been set forth in any Preliminary Prospectus, the Prospectus or such
an amendment or supplement. Each Preliminary Prospectus and the Prospectus
will be identical to the electronically transmitted copies thereof filed with
the Commission pursuant to its XXXXX system, except to the extent permitted by
Regulation S-T.
(c) The Registration Statement has been declared
effective under the Act, and no post-effective amendment to the Registration
Statement has been filed with the Commission as of the date of this Agreement.
No stop order suspending the effectiveness of the Registration Statement has
been issued and no proceeding for that purpose has been instituted or, to the
Company's knowledge, threatened by the Commission. At the Effective Date and
at all times subsequent thereto, up to and including the Closing Date (as
defined herein) and, if applicable, the Option Closing Date (as defined
herein), the Registration Statement and any post-effective amendment thereto
(A) complied and will comply in all material respects with the requirements of
the Act and the Rules and Regulations and (B) 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 not
misleading; provided, however, that this representation and warranty does not
apply to the Underwriters' Information. At the Effective Date, the Prospectus,
if not filed pursuant to Rule 424(b), will not, and at the date of any filing
pursuant to Rule 424(b) and at all times when the Prospectus is required to be
delivered in connection with offers and sales of the Shares, including,
without limitation, the Closing Date and, if applicable, the Option Closing
Date, the Prospectus, as amended or supplemented, (A) complied and will comply
in all material respects with the requirements of the Act and the Rules and
Regulations and (B) did not contain and will not contain an untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided, however,
that this representation and warranty does not apply to the Underwriters'
Information. Since the date that the Registration Statement was filed with the
Commission, no event has or will have occurred which should have been set
forth in an amendment or supplement to the Registration Statement which has
not then been set forth in such an amendment or supplement. The Registration
Statement will be identical to the electronically transmitted copy thereof
filed with the Commission pursuant to its XXXXX system, except to the extent
permitted by Regulation S-T.
(d) There are no contracts or documents that are
required to be filed as exhibits to the Registration Statement which are not
so filed, and such contracts and documents as are summarized in the
Registration Statement or the Prospectus (or if the Prospectus is not in
existence, in each Preliminary Prospectus) are fairly summarized in all
material respects.
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(e) This Agreement has been duly authorized, executed
and delivered by the Company, and constitutes a valid, legal, and binding
obligation of the Company, enforceable in accordance with its terms, except as
rights to indemnity hereunder may be limited by federal or state securities
laws and except as such enforceability may be limited by bankruptcy,
insolvency, reorganization or similar laws affecting the rights of creditors
generally, and subject to general principles of equity. The Company has all
such power, authority, authorization, approvals and orders as may be required
to enter into this Agreement, to carry out the provisions and conditions
hereof and to issue and sell the Shares to be sold by it hereunder. All
corporate action required to be taken by the Company for the authorization,
issuance, sale and delivery of the Shares by the Company in accordance with
such provisions and conditions have been validly and duly taken.
(f) The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of the State of
Delaware, with full corporate power and authority to own, lease and operate
its properties and conduct its business as described in the Registration
Statement and the Prospectus (or if the Prospectus is not in existence, in
each Preliminary Prospectus) and as currently being conducted. The Bank is a
federally chartered stock savings bank. Each of the subsidiaries of the
Company, as listed in Exhibit 21 to the Registration Statement (collectively,
the "Subsidiaries"), has been duly organized and is validly existing as a
corporation or limited liability company in good standing under the laws of
the jurisdiction of its formation, with corporate power and authority to own,
lease and operate its properties and conduct its business as described in the
Registration Statement and the Prospectus (if the Prospectus is not in
existence, in each Preliminary Prospectus) and as currently being conducted.
The Subsidiaries are the only subsidiaries, direct or indirect, of the
Company. The Company and each of the Subsidiaries is duly qualified to
transact business and is in good standing in all jurisdictions in which the
conduct of its business requires such qualification; except where the failure
to be so qualified or to be in good standing would not have a material adverse
effect on the condition (financial or otherwise), business, prospects or
results of operations of the Company and its Subsidiaries taken as a whole,
whether or not arising from transactions in the ordinary course of business (a
"Material Adverse Effect"). The Company does not own or control, directly or
indirectly, more than 5% of any class of equity security of any corporation,
partnership, association, trust, limited liability company, joint venture or
other entity other than the Subsidiaries. The outstanding shares of capital
stock of each of the Subsidiaries have been duly authorized and validly
issued, are fully paid and non-assessable and are wholly owned by the Company
(except that in the case of Los Padres Mortgage Company LLC the Company owns
51% of the outstanding equity interest) free and clear of any security
interest, lien, mortgage, pledge, encumbrance, restriction upon voting or
transfer, preemptive rights, claim, equity or other defect, other than those
described in the Registration Statement and the Prospectus (or if the
Prospectus is not in existence, in each Preliminary Prospectus)(and in the
case of Los Padres Mortgage Company LLC, contained in the Operating Agreement
filed as an exhibit to the Registration Statement); and no options, warrants
or other rights to purchase, agreements or other obligations to issue or other
rights to convert any obligations into shares of capital stock or ownership
interests in the Subsidiaries are outstanding other than those described in
the Registration Statement (including the exhibits thereto) and the Prospectus
(or if the Prospectus is not in existence, in each Preliminary Prospectus).
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(g) The Company is duly registered as a savings and loan holding
company under the Home Owners' Loan Act of 1933, as amended ("HOLA"); each
subsidiary of the Company that conducts business as a bank or trust company is
duly authorized to conduct such business in each jurisdiction in which such
business is currently conducted, except to the extent that the failure to be so
authorized would not have a Material Adverse Effect and the deposit accounts of
Los Padres Bank (the "Bank") are insured by the Savings Association Insurance
Fund of the Federal Deposit Insurance Corporation ("FDIC") up to the maximum
allowable limits thereof. No proceeding for the termination of such insurance is
pending or, to the Company's knowledge, is threatened. Except as disclosed in
the Prospectus (or if the Prospectus is not in existence, in each Preliminary
Prospectus), neither the Company nor any Subsidiary is subject to any cease and
desist order, written agreement or memorandum of understanding with, or is a
party to any commitment letter or similar undertaking to, or it subject to any
order or directive (other than orders or directives applicable to the banking or
trust industry as a whole) by, or is a recipient of any extraordinary
supervisory agreement letter from, or has adopted any board resolutions (other
than board resolutions required by law or regulation and applicable to the
banking or trust industry as a whole) at the request of, federal or state
governmental authorities charged with the supervision or regulation of national
banking associations, saving banks, banks, saving and loan companies or
associations, bank holding companies or savings and loan holding companies or
engaged in the insurance of bank deposits or other regulatory authority having
jurisdiction over it (collectively, the "Regulators") which imposes any
restrictions or requirements not generally applicable to entities of the same
type as the Company and the Subsidiaries. Neither the Company nor any Subsidiary
has been advised by any Regulator that it is contemplating issuing or requesting
(or is considering the appropriateness of issuing or requesting) any such order,
directive or extraordinary supervisory letter or other directive to make any
material change in the method of conducting the respective business and neither
the Company nor any Subsidiary is contemplating (A) becoming a party to any such
written agreement, memorandum of understanding, commitment letter or similar
undertaking with any Regulator or (B) adopting any such board resolutions at the
request of any Regulator.
(h) The outstanding shares of Common Stock of the Company,
including all shares to be sold by the Selling Stockholders, have been duly
authorized and validly issued and are fully paid and non-assessable. All
offers and sales of the Company's Common Stock by the Company prior to the
date hereof were at all relevant times registered under the Act or exempt from
the registration requirements of the Act and were duly registered with or the
subject of an available exemption from the registration requirements of the
applicable state securities or blue sky laws. The portion of the Shares to be
issued and sold by the Company have been duly authorized and when issued and
paid for as contemplated herein will be validly issued, fully paid and
non-assessable; no preemptive or similar rights of stockholders exist with
respect to any of the Shares to be sold by the Company hereunder or the issue
and sale thereof; and none of such Shares to be sold by the Company hereunder,
immediately prior to delivery, will be subject to any security interest, lien,
mortgage, pledge, encumbrance, restriction upon voting or transfer, preemptive
rights, claim, equity or other defect.
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(i) The information set forth in the column entitled
"Actual" under the caption "Capitalization" in the Prospectus (except that the
authorized capital stock of the Company as of the Closing Date shall be as set
forth under the heading "As Adjusted" therein and except for subsequent
issuances, if any, described therein and the issuance of Shares by the Company
pursuant to this Agreement) is true and correct. All of the capital stock of
the Company conforms to the description thereof contained in the Prospectus
(or, if the Prospectus is not in existence, any Preliminary Prospectus). The
form of certificates for the Common Stock conforms to the corporate law of the
jurisdiction of the Company's incorporation. Immediately after the issuance
and sale of the Shares to the Underwriters, no shares of preferred stock of
the Company shall be issued and outstanding and no holder of any shares of
capital stock, securities convertible into or exchangeable or exercisable for
capital stock or options, warrants or other rights to purchase capital stock
or any other securities of the Company shall have any existing or future right
to acquire any shares of preferred stock of the Company. No holders of capital
stock of the Company have rights to the registration of such securities under
the Registration Statement that have not been waived or satisfied.
(j) The Company has not distributed and will not
distribute any prospectus or other offering material (including, without
limitation, content on the Company's website that may be deemed to be a
prospectus or other offering material) in connection with the offering and
sale of the Shares other than any Preliminary Prospectus or the Prospectus or
other materials permitted by the Act and Rules and Regulations to be
distributed by the Company and reviewed by the Representative.
(k) No person has the right to request or require the
Company or the Subsidiaries to sell or otherwise issue to them, or to permit
them to underwrite the sale of, any of the Shares or register any securities
for offering and sale under the Act by reason of the filing of the
Registration Statement with the Commission or the issuance and sale of the
Shares.
(l) A registration statement relating to the Common
Stock has been declared effective by the Commission pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and the Common Stock is
duly registered thereunder. The Shares have been approved for quotation on The
Nasdaq National Market subject to official notice of issuance.
(m) The consolidated financial statements, including
the notes thereto, included in the Registration Statement and the Prospectus
(or, if the Prospectus is not in existence, in each Preliminary Prospectus)
with respect to the Company and the Subsidiaries comply with the Act and the
Rules and Regulations and present fairly in all material respects the
consolidated financial position of the Company and the Subsidiaries as of the
dates indicated and the consolidated results of operations, cash flows and
stockholders' equity of the Company and the Subsidiaries for the periods
specified and have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis. The selected consolidated
financial data concerning the Company and the Subsidiaries included in the
Registration Statement and the Prospectus (or, if the Prospectus is not in
existence, in each Preliminary Prospectus) comply in all material respects
with the Act and the Rules and Regulations, present fairly the information
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set forth therein, have been derived from the financial statements or
operating records of the Company and have been compiled on a basis consistent
with that of the consolidated financial statements of the Company and the
Subsidiaries in the Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, in each Preliminary Prospectus). The other
financial, statistical and numerical information included in the Registration
Statement and the Prospectus (or such Preliminary Prospectus) is accurate in
all material respects, complies in all material respects with the Act and the
Rules and Regulations, has been derived from the financial statements or
operating records of the Company, presents fairly the information shown
therein, and to the extent applicable has been compiled on a basis consistent
with the consolidated financial statements of the Company and the Subsidiaries
included in the Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, in each Preliminary Prospectus).
(n) The Company and each of the Subsidiaries maintains
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 generally
accepted accounting principles in the United States and to maintain
accountability for assets, (C) access to assets is permitted only in
accordance with management's general or specific authorization, and (D) the
recorded accounts for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect thereto. The
books, records and accounts and systems of internal accounting controls of the
Company and its Subsidiaries comply in all material respects with the
requirements of Section 13(b)(2) of the Exchange Act.
(o) Deloitte & Touche LLP, who have certified certain
of the consolidated financial statements of the Company and the Subsidiaries,
including the notes thereto, included in the Registration Statement and
Prospectus, is an independent public accountant with respect to the Company
and the Subsidiaries, as required by the Act and the Rules and Regulations.
(p) No charge, investigation, action, suit or
proceeding is pending or, to the knowledge of the Company, threatened, against
or affecting the Company or the Subsidiaries or any of their respective
properties before or by any court or any regulatory, administrative or
governmental official, commission, board, agency or other authority or body,
or any arbitrator, wherein an unfavorable decision, ruling or finding would
have, individually or in the aggregate with other unfavorable decisions,
rulings or findings, a material adverse effect on the consummation of this
Agreement or the transactions contemplated herein or would have a Material
Adverse Effect or which is required to be disclosed in the Registration
Statement or the Prospectus (or, if the Prospectus is not in existence, in
each Preliminary Prospectus) and is not so disclosed.
(q) No labor dispute involving the Company or the
Subsidiaries exists or, to the knowledge of the Company, is imminent which
would, individually or in the aggregate with other disputes, have a Material
Adverse Effect or which is required to be disclosed in the Prospectus (or, if
the Prospectus is not in existence, in each Preliminary Prospectus). Neither
the Company nor any of the Subsidiaries has received notice of any existing or
threatened labor
7
dispute by the employees of any of its principal suppliers, customers or
contractors which would have, individually or in the aggregate with other
disputes, a Material Adverse Effect.
(r) The Company and the Subsidiaries have good and
marketable title in fee simple to all real property and good title to all
personal property owned by them and necessary to their business, in each case
free and clear of all security interests, liens, mortgages, pledges,
encumbrances, restrictions, claims, equities and other defects except such as
are referred to in the Prospectus (or, if the Prospectus is not in existence,
in each Preliminary Prospectus) or such as do not materially affect the value
of such property in the aggregate and do not materially interfere with the use
made or proposed to be made of such property; and all of the material leases
under which the Company or the Subsidiaries hold real or personal property are
valid and existing leases, enforceable against the parties thereto, and in
full force and effect with such exceptions as are not material and do not
materially interfere with the use made or proposed to be made of such real or
personal property, and neither the Company nor any of the Subsidiaries is in
default in any material respect of any of the terms or provisions of any
material leases.
(s) The Company and the Subsidiaries have filed all
Federal, state, local and foreign tax returns which have been required to be
filed and have paid all taxes indicated by said returns and all assessments
received by them or any of them to the extent that such taxes have become due,
except such as are being contested in good faith and for which an adequate
reserve for accrual has been established in accordance with generally accepted
accounting principles in the United States or where the failure to so timely
and properly prepare and file would not have, individually or in the
aggregate, a Material Adverse Effect. The Company has no knowledge of any tax
deficiency which has been or might be assessed against the Company or the
Subsidiaries which, if the subject of an unfavorable decision, ruling or
finding, would have, individually or in the aggregate, a Material Adverse
Effect. All tax liabilities have been adequately provided for in the financial
statements of the Company. There are no transfer taxes or other similar fees
or charges under Federal law or the laws of any state, or any political
subdivision thereof, required to be paid in connection with the execution and
delivery of this Agreement by the Company or the issuance or sale by the
Company of the Shares.
(t) Since the respective dates as of which information
is given in the Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, in each Preliminary Prospectus), except as
otherwise stated therein:
(A) neither of the Company nor any of the
Subsidiaries has sustained any loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by insurance,
or from any labor dispute or court or governmental action, order or decree
which, individually or in the aggregate, has a Material Adverse Effect;
(B) neither of the Company nor any of the
Subsidiaries has incurred any liabilities or obligations, direct or
contingent, or entered into any transactions, other than in the ordinary
course of business, which are material, individually or in the aggregate, to
the condition (financial or otherwise), business, prospects or results of
operations of the Company
8
and the Subsidiaries on a consolidated basis;
(C) the Company has not declared or paid any
dividend (other than its regular quarterly dividend), and neither of the
Company nor any of the Subsidiaries has become delinquent in the payment of
principal or interest on any outstanding borrowings;
(D) there has not been any change in the capital stock,
equity securities, long-term debt, obligations under capital leases or, other
than in the ordinary course of business, short-term borrowings of the Company
or the Subsidiaries; and
(u) Neither of the Company nor any of the Subsidiaries
is in breach or violation of its corporate charter, articles of incorporation,
by-laws or other governing documents in any material respect. Neither of the
Company nor any of the Subsidiaries is, and to the knowledge of the Company no
other party is, in violation, breach or default (with or without notice or
lapse of time or both) in the performance or observance of any term, covenant,
agreement, obligation, representation, warranty or condition contained in (A)
any contract, indenture, mortgage, deed of trust, loan or credit agreement,
note, lease, franchise, license, Permit (as herein defined) or any other
agreement or instrument to which it is a party or by which it or any of its
properties may be bound, which such breach, violation or default would have,
individually or in the aggregate with other breaches, violations or defaults,
a Material Adverse Effect and to the knowledge of the Company, no other party
has asserted that the Company or any of the Subsidiaries is in such violation,
breach or default, or (B) any order, decree, judgment, rule or regulation of
any court, arbitrator, government, or governmental agency or instrumentality,
domestic or foreign, having jurisdiction over the Company or the Subsidiaries
or any of their respective properties the breach, violation or default of
which would have, individually or in the aggregate with other breaches,
violations or defaults, a Material Adverse Effect.
(v) The execution, delivery and performance of this
Agreement by the Company and the consummation by the Company of the
transactions contemplated by this Agreement, the Registration Statement and
the Prospectus (or, if the Prospectus is not in existence, in each Preliminary
Prospectus) (including, without limitation, the issuance and sale of the
Shares by the Company and the use of proceeds to the Company from the sale of
the Shares as described in the Prospectus under the caption "Use of Proceeds")
do not and will not conflict with, result in the creation or imposition of any
material lien, claim, charge, encumbrance or restriction upon any property or
assets of the Company or the Subsidiaries or the Shares issued and sold by the
Company to the Underwriters pursuant to, constitute a breach or violation of,
or constitute a default under, with or without notice or lapse of time or
both, any of the terms, provisions or conditions of (A) the corporate charter,
articles of incorporation, by-laws or other governing documents of the Company
or the Subsidiaries, (B) any contract, indenture, mortgage, deed of trust,
loan or credit agreement, note, lease, franchise, license, Permit (as herein
defined) or any other agreement or instrument to which the Company or the
Subsidiaries is a party or by which any of them or any of their respective
properties may be bound, or (C) any order, decree, judgment, rule or
regulation of any court, arbitrator, government, or governmental agency or
9
instrumentality, domestic or foreign, having jurisdiction over the Company or
the Subsidiaries or any of their respective properties which conflict,
creation, imposition, breach, violation or default would have, either
individually or in the aggregate, a Material Adverse Effect.
(w) Each approval, consent, order, authorization,
designation, declaration or filing by or with any regulatory, administrative
or other governmental body necessary in connection with the execution and
delivery by the Company of this Agreement and the consummation by the Company
of the transactions herein contemplated (except such additional steps as may
be required by the Commission, the National Association of Securities'
Dealers, Inc. (the "NASD") or such additional steps as may be necessary to
qualify the Shares for public offering by the Underwriters under state
securities or Blue Sky laws) has been obtained or made and is in full force
and effect.
(x) The Company and the Subsidiaries have all material
permits, easements, consents, licenses, franchises and other governmental and
regulatory authorizations from all appropriate federal, state, local or other
public authorities ("Permits") as are necessary to own and lease their
properties and conduct their businesses in the manner described in and
contemplated by the Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, in each Preliminary Prospectus) and as
currently being conducted. All such Permits are in full force and effect and
each of the Company and the Subsidiaries is in all material respects complying
therewith, and no event has occurred that allows, or after notice or lapse of
time would allow, revocation or termination thereof or will result in any
other material impairment of the rights of the holder of any such Permit. Such
Permits contain no restrictions that would materially impair the ability of
the Company or the Subsidiaries to conduct their businesses in the manner
consistent with their past practices. Neither the Company nor any of the
Subsidiaries have received notice or otherwise has knowledge of any proceeding
or action relating to the revocation or modification of any such Permit.
(y) The Company and the Subsidiaries own, or possess
adequate rights to use, all patents, copyrights, trademarks, service marks,
trade names and other rights necessary to conduct the businesses now conducted
by them in all material respects or as described in the Prospectus (or, if the
Prospectus is not in existence, in each Preliminary Prospectus) and neither
the Company nor the Subsidiaries have received any notice of infringement or
conflict with asserted rights of others with respect to any patents,
copyrights, trademarks, service marks, trade names or other rights which,
individually or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would have a Material Adverse Effect, and the Company does
not know of any basis for any such infringement or conflict which,
individually or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would have a Material Adverse Effect.
(z) To the Company's knowledge, there are no
affiliations or associations between any member of the NASD and any of the
Company's officers, directors or 5% or greater security holders, except as set
forth in the Registration Statement.
(aa) The Company has not taken, directly or indirectly,
any action designed to result in, or which has constituted or which might
reasonably be expected to cause or result in,
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stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Shares in violation of the Rules and
Regulations, including, but not limited to, Regulation M of the Exchange Act,
and the Company is not aware of any such action taken or to be taken by any
affiliate of the Company. The Company acknowledges that the Underwriters may
engage in passive market making transactions in the Shares on The Nasdaq Stock
Market in accordance with Regulation M under the Exchange Act.
(bb) The Company is not and does not intend to conduct
business in a manner in which would cause it to become, an "investment
company," an entity "controlled" by an "investment company" or an "investment
adviser" within the meaning of the Investment Company Act of 1940, as amended
or the Investment Advisers Act of 1940, as amended.
(cc) Neither the Company nor any Subsidiary has any
liability under any "pension plan", as defined in the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"). In addition, (A) the
employee benefit plans, including employee welfare benefit plans, of the
Company and each of the Subsidiaries (the "Employee Plans") have been operated
in compliance with the applicable provisions of ERISA, the Internal Revenue
Code of 1986, as amended (the "Code"), all regulations, rulings and
announcements promulgated or issued thereunder and all other applicable
governmental laws and regulations, (B) no reportable event under Section
4043(c) of ERISA has occurred with respect to any Employee Plan of the Company
or any of the Subsidiaries for which the reporting requirements have not been
waived by the Pension Benefit Guaranty Corporation, (C) no prohibited
transaction under Section 406 of ERISA, for which an exemption does not apply,
has occurred with respect to any Employee Plan of the Company or any of the
Subsidiaries and (D) all Employee Plans that are group health plans have been
operated in compliance with the group health plan continuation coverage
requirements of Section 4980B of the Code, except to the extent such
noncompliance, reportable event or prohibited transaction would not have,
individually or in the aggregate, a Material Adverse Effect. There are no
pending or, to the knowledge of the Company, threatened, claims by or on
behalf of any Employee Plan, by any employee or beneficiary covered under any
such Employee Plan or by any governmental authority, or otherwise involving
such Employee Plans or any of their respective fiduciaries (other than for
routine claims for benefits).
(dd) Other than as contemplated by this Agreement, the
Company has not incurred any liability for any finder's or broker's fee, or
agent's commission in connection with the execution and delivery of this
Agreement or the consummation of the transactions contemplated hereby.
(ee) Neither the Company nor any of the Subsidiaries has
sent or received any written notice indicating the termination of or intention
to terminate any of the contracts or agreements referred to or described in
the Registration Statement or the Prospectus (or, if the Prospectus is not in
existence, in each Preliminary Prospectus), or filed as an exhibit to the
Registration Statement, and no such termination has been threatened in writing
by the Company, any Subsidiary or any other party to any such contract or
agreement.
11
(ff) The Company and the Subsidiaries maintain insurance
covering their properties, personnel and business, which insurance insures
against such losses and risks as, in the judgment of the executive officers of
the Company, are adequate to protect in all material respects the Company and
the Subsidiaries and their businesses. Neither the Company nor any of the
Subsidiaries has received notice from any insurer or agent of such insurer
that substantial capital improvements or other expenditures shall have to be
made in order to continue such insurance. All such insurance is outstanding
and duly in force on the date hereof and shall be outstanding and duly in
force on the Closing Date (as defined herein) and, if applicable, the Option
Closing Date (as defined herein) with such exceptions as would not have a
Material Adverse Effect. There are no claims by the Company or any Subsidiary
under any such policy or instrument as to which an insurance company is
denying liability or defending under a reservation of rights clause.
(gg) The Company and the Subsidiaries have complied in
all material respects with all foreign, federal, state and local statutes,
regulations, ordinances and rules as now in effect and applicable to the
ownership and operation of their properties or the conduct of their businesses
as described in and contemplated by the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, in each Preliminary
Prospectus) and as currently being conducted. Neither the Company nor any
non-banking Subsidiary engages directly or indirectly in any activity
prohibited by the Office of Thrift Supervision (the "OTS") or the HOLA or the
regulations promulgated thereunder.
(hh) Each of the contracts, agreements and instruments
material to the condition (financial or otherwise), business, prospects or
results of operations of the Company and its Subsidiaries on a consolidated
basis, or listed, described, or attached as an exhibit to the Registration
Statement as filed with the Commission is in full force and effect and is the
legal, valid and binding agreement of the Company or the Subsidiaries and the
other parties thereto, enforceable in accordance with its terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency, reorganization
or similar laws affecting the rights of creditors generally and subject to
general principles of equity.
(ii) No relationship, direct or indirect, exists between
or among the Company or the Subsidiaries, on the one hand, and the directors,
officers, trustees, stockholders, customers or suppliers of the Company or the
Subsidiaries, on the other hand, which is required to be described in the
Registration Statement and the Prospectus (or, if the Prospectus is not in
existence, in each Preliminary Prospectus) which is not adequately described
therein.
(jj) Except as described in the Prospectus (or, if the
Prospectus is not in existence, in each Preliminary Prospectus), there are no
contractual encumbrances or restrictions or requirements or material legal
restrictions or requirements required to be described therein, on the ability
of the Subsidiaries, (A) to pay dividends or make any other distributions on
its capital stock or to pay any indebtedness owed to the Company, (B) to make
any loans or advances to, or investments in, the Company or (C) to transfer
any of its property or assets to the Company. Except as described in the
Prospectus (or, if the Prospectus is not in existence, in each
12
Preliminary Prospectus), there are no restrictions, encumbrances or
requirements affecting the payment of dividends or the making of any other
distributions on any of the capital stock of the Company.
(kk) To the knowledge of the Company, except as
described in the Registration Statement and except as would not have, singly
or in the aggregate, a Material Adverse Effect, (A) neither the Company nor
any of its Subsidiaries is in violation of any federal, state, local or
foreign statute, law, rule, regulation, ordinance, code, policy or rule of
common law or any judicial or administrative interpretation thereof, including
any judicial or administrative order, consent, decree or judgment, relating to
pollution or protection of human health, the environment (including, without
limitation, ambient air, surface water, groundwater, land surface or
subsurface strata) or wildlife, including, without limitation, laws and
regulations relating to the release or threatened release of chemicals,
pollutants, contaminants, wastes, toxic substances, hazardous substances,
petroleum or petroleum products (collectively, "Hazardous Materials") or to
the manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of Hazardous Materials (collectively, "Environmental
Laws"), (B) the Company and its Subsidiaries have all permits, authorizations
and approvals required under any applicable Environmental Laws and are each in
compliance with their requirements, (C) there are no pending or threatened
administrative, regulatory or judicial actions, suits, demands, demand
letters, claims, liens, notices of noncompliance or violation, investigation
or proceedings relating to any Environmental Law against the Company or any of
its Subsidiaries and (D) there are no events or circumstances known to the
Company that could 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 any of its Subsidiaries relating
to Hazardous Materials or any Environmental Laws. Except as described in the
Registration Statement and the Prospectus (or, if the Prospectus is not in
existence, in each Preliminary Prospectus) or as would not have, individually
or in the aggregate, a Material Adverse Effect, none of the property owned or
leased by the Company or any of the Subsidiaries or their predecessors is
contaminated with any Hazardous Materials, and neither the Company nor any of
the Subsidiaries may be deemed an "owner or operator" of a "facility" or
"vessel" which owns, possesses, transports, generates or disposes of a
"hazardous substance" as those terms are defined in Section 9601 of the
Comprehensive Environmental Response, Compensation and Liability Act of 1980,
42 U.S.C. Section 9601 et seq.
(ll) The Company and the Subsidiaries have properly
administered all accounts for which they act as a fiduciary, including but not
limited to accounts for which they serve as a trustee, agent, custodian,
personal representative, guardian, conservator or investment advisor, in
accordance with the terms of the governing documents and applicable state and
federal law and regulation and common law, except where the failure to be in
compliance would not have, individually or in the aggregate, a Material
Adverse Effect. Neither the Company nor any Subsidiary nor any of their
directors, officers or employees has committed any material breach of trust
with respect to any such fiduciary account, and the accountings for each such
fiduciary account are true and correct in all material respects and accurately
reflect the assets of such fiduciary account in all material respects.
13
(mm) No report or application filed by the Company or
any of its Subsidiaries with the OTS or the FDIC, or any other Regulator, as
of the date it was filed or amended, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading when made
or failed to comply in all material respects with the applicable requirements
of the OTS or the FDIC, or such other Regulator, as the case may be.
(nn) Neither the Company nor any Subsidiary has any
agreement or understanding with any person (A) concerning the future
acquisition by the Company or the Bank of a controlling interest in any entity
or (B) concerning the future acquisition by any person of a controlling
interest in the Company or any Subsidiary, in either case that is required by
the Act or the Rules and Regulations to be disclosed by the Company that is
not disclosed in the Prospectus.
(oo) The information contained in the Registration
Statement and the Prospectus regarding the Company's expectations, plans and
intentions, and any other information that constitutes "forward-looking"
information within the meaning of the Act and the Exchange Act were made by
the Company on a reasonable basis and reflect the Company's good faith belief
and/or estimate of the matters described therein.
(pp) No consent, approval, authorization or order of, or
qualification with, any governmental body or agency, other than those
obtained, is required in connection with the offering of the Affiliate Shares
in any jurisdiction where the Affiliate Shares are being offered (except such
additional steps as may be required by the Commission, the NASD or such
additional steps as may be necessary to qualify the Shares for public offering
by the Underwriters under state securities or Blue Sky laws). The Company has
not offered, or caused any Underwriter or any of its affiliates to offer,
Shares of the Company to any person with the specific intent to unlawfully
influence (i) a customer or supplier of the Company in order to alter the
customer's or supplier's level or type of business with the Company, or (ii) a
trade journalist or publication to write or publish favorable information
about the Company or its products.
For purposes of this Agreement, references to the knowledge of the
Company mean the actual knowledge of each person who is a director or
executive officer of the Company or either of its Significant Subsidiaries (as
defined in Section 8(b)(i) of this Agreement).
2. REPRESENTATIONS AND WARRANTIES OF THE SELLING
STOCKHOLDERS.
Each Selling Stockholder severally, and not jointly,
represents and warrants to each of the Underwriters as follows:
(a) Such Selling Stockholder now has and at the Closing
Date (as defined herein) will have good, valid and marketable title to the
Shares to be sold by such Selling Stockholder, free and clear of any pledge,
lien, encumbrance, security interest, mortgage, preemptive or similar right,
stockholder's agreement, voting trust, community property right, claim or
defect in title whatsoever (other than those imposed by the Act and the state
securities or Blue Sky laws of certain
14
jurisdictions), and full legal right, power and authority (corporate or
otherwise) to effect the sale and delivery of such Shares; and upon the
delivery of, against payment for, such Shares pursuant to this Agreement, the
Underwriters will acquire good, valid and marketable title thereto, free and
clear of any pledge, lien, encumbrance, security interest, mortgage,
preemptive or similar right, stockholder's agreement, voting trust, community
property right, claim or defect in title whatsoever (other than those imposed
by the Act and the state securities or Blue Sky laws of certain
jurisdictions). Other than as created hereby, there are no outstanding
options, warrants, rights or other agreements or arrangements requiring such
Selling Stockholder at any time to transfer any Shares to be sold hereunder.
(b) All authorizations, approvals, consent and orders
necessary for the execution and delivery by such Selling Stockholder of the
Selling Stockholder's Power of Attorney ("Power of Attorney") and the Letter
of Transmittal and Custody Agreement ("Custody Agreement"), the execution and
delivery by such Selling Stockholder of this Agreement, and the sale and
delivery of those Firm Shares to be sold by such Selling Stockholder under
this Agreement have been obtained and are in full force and effect (however,
such Selling Stockholder makes no representation as to any of the same
required from the NASD or under state securities and Blue Sky laws) and this
Agreement, the Power of Attorney and the Custody Agreement each have been duly
authorized, executed and delivered by each Selling Stockholder and is a legal,
valid and binding agreement of such Selling Stockholder enforceable against
such Selling Stockholder in accordance with its terms, except as may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally, and by general principles of equity,
and except to the extent that the indemnification and contribution provisions
of Section 10 hereof may be limited by federal or state securities laws and
public policy considerations in respect thereof.
(c) The execution, delivery and performance of this
Agreement, the Power of Attorney and the Custody Agreement, and the
consummation by such Selling Stockholder of the transactions herein and
therein contemplated and the fulfillment by such Selling Stockholder of the
terms hereof and thereof (including any Hold-Back Agreement (as defined in
Section 5(l)) executed by the Selling Stockholder) will not require any
consent, approval, authorization, or other order of any court, regulatory
body, administrative agency or other governmental body (except as may be
required under the Act, state securities laws or Blue Sky laws) and will not
result in a breach of any of the terms and provisions of, or constitute a
default under, or constitute an event which with giving of notice, lapse of
time or both would constitute a breach of or default under (i) organizational
documents of such Selling Stockholder, if not an individual, or (ii) any
provision of any license, indenture, mortgage, deed of trust, note, loan or
credit agreement, sale and leaseback arrangement or other agreement or
instrument to which such Selling Stockholder is a party or by which such
Selling Stockholder's properties may be bound or affected, or (iii) of any
decree, judgment, order, federal, state, local or foreign law, including
federal or state securities laws, rule or regulation applicable to such
Selling Stockholder of any court or of any regulatory body or administrative
agency or other governmental body having jurisdiction.
(d) Such Selling Stockholder has not taken and will not
take, directly or indirectly, any action designed to, or which has
constituted, or which might reasonably be expected to cause or
15
result in the stabilization or manipulation of the price of the Common Stock
of the Company to facilitate the sale or resale of the Shares and such Selling
Stockholder is not aware of any such action taken or to be taken by affiliates
of such Selling Stockholder and, other than as permitted by the Act, the
Selling Stockholder will not distribute any prospectus or other offering
material in connection with the offering of the Shares.
(e) Without having undertaken to determine
independently the accuracy or completeness of either the representations and
warranties of the Company contained herein or the information contained in the
Registration Statement, such Selling Stockholder has no reason to believe that
the representations and warranties of the Company contained in Section 1 are
not true and correct, is familiar with the Registration Statement and has no
knowledge of any material fact, condition or information not disclosed in the
Registration Statement which has adversely affected or may adversely affect
the business of the Company or any of the Subsidiaries; and the sale of the
Shares by such Selling Stockholder pursuant hereto is not prompted by any
information concerning the Company or any of the Subsidiaries which is not set
forth in the Registration Statement.
(f) The information in the Registration Statement and
any amendments thereto, as specifically refers to such Selling Stockholder, do
not and will not, as the case may be, in each case as of the applicable
effective date, contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; and such information in each Preliminary Prospectus and
the Prospectus or any amendment or supplement thereto does not and will not,
as the case may be, in each case as of the applicable filing date and at the
Closing Date, contain an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(g) Each of such Selling Stockholder's
Attorneys-in-Fact, acting alone, is authorized to execute and deliver this
Agreement and the certificates referred to in Section 8 on behalf of such
Selling Stockholder, to authorize the delivery of those Firm Shares to be sold
by such Selling Stockholder under this Agreement and to duly endorse (in blank
or otherwise) the certificate or certificates representing such Firm Shares or
a stock power or powers with respect thereto, to accept payment therefore, and
otherwise to act on behalf of such Selling Stockholder in connection with this
Agreement.
(h) Certificates in negotiable form for all Firm Shares
to be sold by such Selling Stockholder under this Agreement, together with a
stock power or powers duly endorsed in blank by such Selling Stockholder, have
been placed in custody with the Custodian for the purpose of effecting
delivery hereunder and thereunder; such Firm Shares are, to such Selling
Stockholder's knowledge, validly issued, fully paid and non-assessable.
(i) There is not pending or threatened against such
Selling Stockholder any action, suit or proceeding (or circumstances that may
give rise to the same) which (i) questions the validity of this Agreement, the
Custody Agreement, the Power of Attorney or of any action
16
taken or to be taken by such Selling Stockholder pursuant to or in connection
with any of the foregoing or (ii) is required to be disclosed in the
Registration Statement and the Prospectus which is not so disclosed and such
proceedings which are summarized in the Registration Statement and the
Prospectus, if any, are accurately summarized in all material respects.
(j) No stamp duty or similar tax is payable by or on
behalf of any Underwriter in connection with (i) the sale of the Firm Shares
to be sold by such Selling Stockholder, (ii) the purchase by the Underwriters
of the Firm Shares to be sold by such Selling Stockholder, (iii) the
consummation by such Selling Stockholder of any of its obligations under this
Agreement, the Custody Agreement or the Power of Attorney.
(k) Such Selling Stockholder does not have any
registration rights or other similar rights with respect to any securities of
the Company which are not satisfied by the registration contemplated by the
Registration Statement, and such Selling Stockholder does not have any right
of first refusal or other similar right to purchase any securities of the
Company upon the issuance or sale thereof by the Company or upon the sale
thereof by any other stockholder of the Company.
(l) Except as indicated in the Information Statement
prepared by such Selling Stockholder and previously provided to the Company
and the Representative, neither such Selling Stockholder nor to the knowledge
of such Selling Stockholder any associate of such Selling Stockholder is
affiliated with any firm directly or indirectly engaged in the securities
business as a broker or dealer, as an employee acting in any capacity
(including that of an officer or registered representative), as a director or
partner, or as an equity investor or debt investor, excluding for this purpose
(i) any ownership of debt arising as a result of trading activities and (ii)
any investment in publicly traded securities of corporations that themselves
have investments in firms in the securities business provided such Selling
Stockholder's ownership of such publicly traded securities does not exceed 5%
of such class.
(m) Such Selling Stockholder has not since the filing
of the initial Registration Statement (i) sold, bid for, purchased, attempted
to induce any person to purchase, or paid anyone any compensation for
soliciting purchases of, Common Stock, or (ii) paid or agreed to pay to any
person any compensation for soliciting another to purchase any securities of
the Company (except for the sale of the Firm Shares by the Selling
Stockholders to the Underwriters under this Agreement and except as otherwise
permitted by law).
(n) Such Selling Stockholder, if an individual, is 18
years of age or older, is of sound mind, and is not presently adjudged to be
incompetent or otherwise to lack the capacity to contract. No legal guardian
has been appointed for such Selling Stockholder.
(o) Any list or other statement or information set
forth in the Power of Attorney, Custody Agreement, Information Statement
prepared by the Selling Stockholder, this Agreement or in any certificate or
other instrument delivered by the Selling Stockholder pursuant to the Power of
Attorney, Custody Agreement, Information Statement or this Agreement, shall be
17
deemed a representation and warranty by the Selling Stockholder to the
Underwriters and shall be deemed to be a part of this Section 2 and
incorporated herein by reference.
3. PURCHASE, SALE AND DELIVERY OF THE SHARES.
(a) On the basis of the representations, warranties and
covenants herein contained, and subject to the conditions herein set forth,
(i) the Company agrees to issue and sell to the Underwriters _____ Firm Shares
(including Non-Affiliate Shares and Affiliate Shares), (ii) each Selling
Stockholder agrees, severally and not jointly, to sell to the Underwriters the
number of Firm shares set forth opposite such Selling Stockholder's name on
Schedule II, and (iii) each Underwriter agrees, severally and not jointly, to
purchase in the amounts set forth their respective names on Schedule I, at a
price of $_____ per share, the Non-Affiliate Shares from the Company and the
Firm Shares from the Selling Stockholders and, at a price of $_____ per share,
the Affiliate Shares from the Company. Certificates evidencing the Shares
shall be in definitive form and shall be registered in such names and in such
denominations as the Representative shall request at least two (2) business
days prior to the Closing Date or the Option Closing Date, as the case may be,
by written notice to the Company or the Selling Stockholders, as applicable.
For the purpose of expediting the checking and packaging of certificates for
the Shares, the Company and the Selling Stockholders agree to make such
certificates available for inspection at least twenty-four (24) hours prior to
the Closing Date or the Option Closing Date, as the case may be, at the office
of DTC or its designated custodian.
(b) Certificates in negotiable form for the total
number of the Shares to be sold hereunder by the Selling Stockholders have
been placed in custody with Mellon Investor Services LLC as custodian (the
"Custodian") pursuant to the Custody Agreement executed by each Selling
Stockholder for delivery of all Shares to be sold hereunder by the Selling
Stockholders. Each of the Selling Stockholders specifically agrees that the
Shares represented by the certificates held in custody for the Selling
Stockholders under the Custody Agreement are subject to the interests of the
Underwriters hereunder, that the arrangements made by the Selling Stockholders
for such custody are to that extent irrevocable, and that the obligations of
the Selling Stockholders hereunder shall not be terminable by any act or deed
of the Selling Stockholders (or by any other person, firm or corporation
including the Company, the Custodian or the Underwriters) or by operation of
law (including the death of an individual Selling Stockholder or the
dissolution of a corporate Selling Stockholder) or by the occurrence of any
other event or events, except as set forth in the Custody Agreement. If any
such event should occur prior to the delivery to the Underwriters of the
Shares hereunder, certificates for the Shares shall be delivered by the
Custodian in accordance with the terms and conditions of this Agreement as if
such event has not occurred. The Custodian is authorized to receive and
acknowledge receipt of the proceeds of sale of the Shares held by it against
delivery of such Shares.
(c) Payment for the Firm Shares to be sold hereunder is
to be made in Federal (same day) funds to an account designated by the Company
for the shares to be sold by it and to an account designated by the Custodian
for the shares to be sold by the Selling Stockholders, in each case against
delivery of certificates therefor to the Representative for the several
accounts of the
18
Underwriters. Such payment and delivery are to be made through the facilities
of the Depository Trust Company at 10:00 a.m., New York time, on the third
business day after the date of this Agreement or at such other time and date
not later than five business days thereafter as the Representative and the
Company shall agree upon, such time and date being herein referred to as the
"Closing Date." (As used herein, "business day" means a day on which the New
York Stock Exchange is open for trading and on which banks in New York are
open for business and not permitted by law or executive order to be closed.)
(d) 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 Underwriters to purchase
the Option Shares at the price per share as set forth in Section 3(a). The
option granted hereby may be exercised in whole or in part by giving written
notice (i) at any time before the Closing Date and (ii) only once thereafter
within 30 days after the date of this Agreement, by you, as the Representative
of the several Underwriters, giving notice to the Company, setting forth the
number of Option Shares as to which the Underwriters are exercising the
option, the names and denominations in which the Option Shares are to be
registered and the time and date at which such certificates are to be
delivered. The time and date at which certificates for Option Shares are to be
delivered shall be determined by the Representative but shall not be earlier
than three nor later than 10 full business days after the exercise of such
option, nor in any event prior to the Closing Date (such time and date being
herein referred to as the "Option Closing Date"). If the date of exercise of
the option is three or more days before the Closing Date, the notice of
exercise shall set the Closing Date as the Option Closing Date. The number of
Option Shares to be purchased by each Underwriter shall be in the same
proportion to the total number of Option Shares being purchased as the number
of Firm Shares being purchased by such Underwriter bears to the total number
of Firm Shares, adjusted by the Representative in such manner as to avoid
fractional shares. The option with respect to the Option Shares granted
hereunder may be exercised only to cover over-allotments in the sale of the
Firm Shares by the Underwriters. You, as the Representative of the several
Underwriters, may cancel such option at any time prior to its expiration by
giving written notice of such cancellation to the Company. To the extent, if
any, that the option is exercised, payment for the Option Shares shall be made
on the Option Closing Date in Federal (same day) funds drawn to the order of
the Company against delivery of certificates therefor through the facilities
of the Depository Trust Company, New York, New York.
(e) If on the Closing Date any Selling Stockholder
fails to sell the Firm Shares which such Selling Stockholder has agreed to
sell on such date as set forth in Schedule II hereto, the Company agrees that
it will sell or arrange for the sale of that number of shares of Common Stock
to the Underwriters which represents the Firm Shares which such Selling
Stockholder has failed to so sell, as set forth in Schedule II hereto, or such
lesser number as may be requested by the Representative.
19
4. OFFERING BY THE UNDERWRITERS.
The Company and the Selling Stockholders are advised by the
Representative that the several Underwriters will make a public offering of
the Firm Shares as soon the Representative deems it advisable to do so. The
Firm Shares are to be initially offered to the public at the initial public
offering price, and on the other terms and conditions, set forth in the
Prospectus. The Representative may from time to time thereafter change the
public offering price and other selling terms. To the extent, if at all, that
any Option Shares are purchased pursuant to Section 3 hereof, the Underwriters
will offer them to the public on the foregoing terms.
It is further understood that you will act as the
Representative for the Underwriters in the offering and sale of the Shares in
accordance with a Master Agreement Among Underwriters entered into by you and
the several other Underwriters.
The Underwriters may reserve and sell such of the Shares
purchased by the Underwriters as the Underwriters may elect to dealers chosen
by them (the "Selected Dealers") at the public offering price set forth in the
Prospectus less the applicable Selected Dealers' concessions set forth
therein, for re-offering by Selected Dealers to the public at the public
offering price. The Underwriters may allow, and Selected Dealers may re-allow,
a concession set forth in the Prospectus to certain other brokers and dealers.
5. COVENANTS OF THE COMPANY.
The Company covenants and agrees with each of the
Underwriters that:
(a) The Company will (i) use its best efforts to cause
the Registration Statement to become effective or, if the procedure in Rule
430A of the Rules and Regulations is followed, to prepare and timely file with
the Commission under Rule 424(b) of the Rules and Regulations a Prospectus in
a form approved by the Representative containing information previously
omitted at the time of effectiveness of the Registration Statement in reliance
on Rule 430A of the Rules and Regulations; (ii) not file any amendment to the
Registration Statement or supplement to the Prospectus of which the
Representative shall not previously have been advised and furnished with a
copy or to which the Representative shall have reasonably objected in writing
or which is not in compliance with the Rules and Regulations; and (iii) file
on a timely basis all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission subsequent
to the date of the Prospectus and prior to the termination of the offering of
the Shares by the Underwriters.
(b) The Company will not take, directly or indirectly,
any action designed to cause or result in, or that has constituted or might
reasonably be expected to constitute, the stabilization or manipulation of the
price of any securities of the Company in violation of the Rules and
Regulations, including, but not limited to, Regulation M of the Exchange Act,
and the Company's not aware of any such action taken or to be taken by any
affiliate of the Company.
20
(c) The Company will advise the Representative promptly
(i) when the Registration Statement or any post-effective amendment thereto
shall have become effective; (ii) of receipt of any comments from the
Commission; (iii) of any request of the Commission for amendment of the
Registration Statement or for supplement to the Prospectus or for any
additional information; and (iv) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the use of
the Prospectus or of the institution of any proceedings for that purpose. The
Company will use its best efforts to prevent the issuance of any such stop
order preventing or suspending the use of the Prospectus and to obtain as soon
as possible the lifting thereof, if issued.
(d) The Company will advise the Representative promptly
of any proposal to amend or supplement the Registration Statement or the
Prospectus and will file no such amendment or supplement to which the
Representative has reasonably objected in writing.
(e) The Company will cooperate with the Representative
in endeavoring to qualify the Shares for sale under the securities laws of
such jurisdictions as the Representative may reasonably have designated in
writing and will make such applications, file such documents, and furnish such
information as may be reasonably required for that purpose, provided the
Company shall not be required to qualify as a foreign corporation or to file a
general consent to service of process in any jurisdiction where it is not now
so qualified or required to file such a consent. The Company will, from time
to time, prepare and file such statements, reports, and other documents, as
are or may be required to continue such qualifications in effect for so long a
period as the Representative may reasonably request for distribution of the
Shares.
(f) The Company will deliver to, or upon the order of,
the Representative, from time to time, as many copies of any Preliminary
Prospectus as the Representative may reasonably request. The Company will
deliver to, or upon the order of, the Representative during the period when
delivery of a Prospectus is required under the Act, as many copies of the
Prospectus in final form, or as thereafter amended or supplemented, as the
Representative may reasonably request. The Company will deliver to the
Representative at or before the Closing Date, four signed copies of the
Registration Statement and all amendments thereto including all exhibits filed
therewith, and will deliver to the Representative such number of copies of the
Registration Statement (including such number of copies of the exhibits filed
therewith that may reasonably be requested) and of all amendments thereto, as
the Representative may reasonably request.
(g) The Company will comply with the Act and the Rules
and Regulations, and the Exchange Act, and the rules and regulations of the
Commission thereunder, so as to permit the completion of the distribution of
the Shares as contemplated in this Agreement and the Prospectus. If during the
period in which a prospectus is required by law to be delivered by an
Underwriter or dealer, any event shall occur as a result of which, in the
judgment of the Company or in the reasonable opinion of the Underwriters, it
becomes necessary to amend or supplement the Prospectus in order to make the
statements therein, in the light of the circumstances existing at the time the
Prospectus is delivered to a purchaser, not misleading, or, if it is necessary
at any time to
21
amend or supplement the Prospectus to comply with any law, the Company promptly
will prepare and file with the Commission an appropriate amendment to the
Registration Statement or supplement to the Prospectus so that the Prospectus as
so amended or supplemented will not, in the light of the circumstances when it
is so delivered, be misleading, or so that the Prospectus will comply with the
law.
(h) The Company will make generally available to its
security holders, as soon as it is practicable to do so, but in any event not
later than 15 months after the effective date of the Registration Statement, an
earnings statement (which need not be audited) in reasonable detail, covering a
period of at least 12 consecutive months beginning after the effective date of
the Registration Statement, which earnings statement shall satisfy the
requirements of Section 11(a) of the Act and Rule 158 of the Rules and
Regulations and will advise the Representative in writing when such statement
has been so made available.
(i) Prior to the Closing Date, the Company will furnish to
the Underwriters, as soon as they have been prepared by or are available to the
Company, a copy of any unaudited interim financial statements of the Company for
any period subsequent to the period covered by the most recent financial
statements appearing in the Registration Statement and the Prospectus.
(j) No offering, sale, short sale or other disposition of
any shares of Common Stock of the Company or other securities convertible into
or exchangeable or exercisable for shares of Common Stock or derivative of
Common Stock (or agreement for such) will be made for a period of 180 days after
the date of this Agreement, directly or indirectly, by the Company otherwise
than hereunder or with the prior written consent of the Representative;
provided, that this provision will not restrict the Company from awarding
options to purchase its Common Stock pursuant to employee benefit plans as
described in the Prospectus.
(k) The Company will use its best efforts to list, subject
to notice of issuance, the Shares on The Nasdaq National Market and maintain the
Shares for a period of five years on The Nasdaq Stock Market.
(l) The Company has caused each officer and director and
each stockholder owning one percent or more of the Common Stock of the Company
to furnish to the Representative, on or prior to the date of this agreement, a
letter or letters, in form and substance satisfactory to the Underwriters,
pursuant to which each such person shall agree not to offer, sell, sell short or
otherwise dispose of any shares of Common Stock of the Company, or any other
securities exchangeable or exercisable for Common Stock of the Company or
derivative of Common Stock of the Company owned by such person or request the
registration for the offer or sale of any of the foregoing (or as to which such
person has the right to direct the disposition of) for a period of 180 days
after the effective date of the Registration Statement, directly or indirectly,
except with the prior written consent of the Representative ("Hold-Back
Agreements").
(m) The Company shall apply the net proceeds of its sale of
the Shares as described under the heading "Use of Proceeds" in the Prospectus
and shall report with the
22
Commission with respect to the sale of the Shares and the application of the
proceeds therefrom as may be required in accordance with Rule 463 under the Act.
(n) The Company shall not invest, or otherwise use the
proceeds received by the Company from its sale of the Shares in such a manner as
would require the Company or any of the Subsidiaries to register as an
investment company under the 0000 Xxx.
(o) The Company will maintain a transfer agent and, if
necessary under the jurisdiction of incorporation of the Company, a registrar
for the Common Stock.
(p) The Company will furnish to the Underwriters for a
period of five years from the date of this Agreement (i) as soon as available,
copies of all annual, quarterly and current reports or other communications
(financial or otherwise) supplied to holders of shares of Common Stock, (ii) as
soon as practicable after the filing thereof, copies of all reports filed by the
Company with the Commission, the NASD or any securities exchange and (iii) such
other public information as the Underwriters may reasonably request regarding
the Company and its Subsidiaries, in each case, to the extent not available to
the Underwriters electronically and at no cost from the Commission, NASD or
other securities exchange.
(q) Prior to the Closing Date, neither the Company nor any
Selling Stockholder will issue any press releases or other communications
directly or indirectly and will hold no press conferences with respect to the
Company or its Subsidiaries, on the financial condition, results of operations,
business, properties, assets or liabilities of the Company or its Subsidiaries,
or the offering of the Shares, without the prior written consent of the
Representative.
(r) The Company will advise the Representative promptly of
any notice indicating the termination of or intention to terminate any of the
contracts or agreements referred to or described in the Registration Statement
or the Prospectus (or, if the Prospectus is not in existence, in each
Preliminary Prospectus), or filed as an exhibit to the Registration Statement,
or of any threatened termination (written or oral) by the Company, any
Subsidiary or any other party to any such contract or agreement.
6. COVENANTS OF THE SELLING STOCKHOLDERS.
Each of the Selling Stockholders covenants and agrees with each
of the Underwriters that:
(a) In order to document the Underwriters' compliance with
the reporting and withholding provisions of the Tax Equity and Fiscal
Responsibility Act of 1982 and the Interest and Dividend Tax Compliance Act of
1983 with respect to the transactions herein contemplated, each of the Selling
Stockholders agrees to deliver to the Representative prior to or at the Closing
Date a properly completed and executed United States Treasury Department Form
W-8 or W-9 (or other applicable form or statement specified by Treasury
Department regulations in lieu thereof).
23
(b) Such Selling Stockholder will not take, directly or
indirectly, any action designed to cause or result in, or that has constituted
or might reasonably be expected to constitute, the stabilization or manipulation
of the price of any securities of the Company in violation of the Rules and
Regulations, including, but not limited to, Regulation M of the Exchange Act,
and the Selling Stockholder is not aware of any such action taken or to be taken
by any affiliate of the Selling Stockholder.
7. COSTS AND EXPENSES.
The Company will pay all costs, expenses and fees incident to
the performance of the obligations of the Company and the Selling Stockholders
under this Agreement, including, without limiting the generality of the
foregoing, the following: accounting fees of the Company; the fees and
disbursements of counsel for the Company and the Selling Stockholders; the cost
of printing and delivering to, or as requested by, the Underwriters copies of
the Registration Statement, Preliminary Prospectuses, the Prospectus, the
Underwriters' Selling Memorandum and the Underwriters' Invitation Letters, if
any, the Listing Application, the Blue Sky Survey and any supplements or
amendments thereto; the filing fees of the Commission; the filing fees and
expenses (including legal fees and disbursements other than those of
Underwriters' counsel except as set forth below) incident to securing any
required review by the NASD of the terms of the sale of the Shares; the listing
fee of The Nasdaq Stock Market; and the expenses, including the fees and
disbursements of counsel for the Underwriters, not to exceed $5,000 (assuming
the Shares are listed on The Nasdaq National Market System), incurred in
connection with (i) the qualification of the Shares under state securities or
Blue Sky laws or (ii) the Blue Sky Survey and any supplements or amendments
thereto. To the extent, if at all, that any of the Selling Stockholders engage
special legal counsel to represent them in connection with this offering, the
fees and expenses of such counsel shall be borne by such Selling Stockholder.
Any transfer taxes imposed on the sale of the Shares to the several Underwriters
will be paid by the Company and the Selling Stockholders pro rata. The Company
also agrees to pay all costs and expenses of the Underwriters, including the
fees and disbursements of counsel for the Underwriters, incident to the offer
and sale of directed shares of the Common Stock by the Underwriters to employees
and persons having business relationships with the Company and any of the
Subsidiaries.
The Company and the Selling Stockholders shall not, however, be
required to pay for any of the Underwriters expenses (other than those related
to state securities or Blue Sky laws) except that, if this Agreement shall not
be consummated because the conditions in Section 7 hereof are not satisfied, or
because this Agreement is terminated by the Representative pursuant to Section
13 hereof, or by reason of any failure, refusal or inability on the part of the
Company to perform any undertaking or satisfy any condition of this Agreement or
to comply with any of the terms hereof on its part to be performed, unless such
failure to satisfy said condition or to comply with said terms be due to the
default or omission of any Underwriter, then the Company shall reimburse the
several Underwriters for reasonable out-of-pocket expenses, including all fees
and disbursements of
24
counsel, reasonably incurred in connection with investigating, marketing and
proposing to market the Shares or in contemplation of performing their
obligations hereunder in an amount not to exceed $100,000, in each case
following reasonably detailed invoices therefor; but the Company and the Selling
Stockholders shall not in any event be liable to any of the several Underwriters
for damages on account of loss of anticipated profits from the sale by them of
the Shares.
8. CONDITIONS OF OBLIGATIONS OF THE UNDERWRITERS.
The obligations of the Underwriters to purchase the Firm Shares
on the Closing Date and the Option Shares, if any, on the Option Closing Date
are subject to the accuracy, as of the Closing Date and the Option Closing Date,
if any, of the representations and warranties of the Company and the Selling
Stockholders contained herein, and to the performance by the Company and the
Selling Stockholders of their covenants and obligations hereunder and to the
following additional conditions:
(a) The Registration Statement and all post-effective
amendments thereto shall have become effective and any and all filings required
by Rule 424 and Rule 430A of the Rules and Regulations shall have been made, and
any request of the Commission for additional information (to be included in the
Registration Statement or otherwise) shall have been disclosed to the
Representative and complied with to their reasonable satisfaction. No stop order
suspending the effectiveness of the Registration Statement, as amended from time
to time, shall have been issued and no proceedings for that purpose shall have
been taken or, to the knowledge of the Company or the Selling Stockholders,
shall be contemplated by the Commission and no injunction, restraining order, or
order of any nature by a Federal or state court of competent jurisdiction shall
have been issued as of the Closing Date which would prevent the issuance of the
Shares.
(b) The Representative shall have received on the Closing
Date and the Option Closing Date, if any, the opinions of Xxxxxx Xxxx & Xxxxxx
LLP, special counsel for the Company, dated the Closing Date or the Option
Closing Date, if any, addressed to the Underwriters (and stating that it may be
relied upon by Silver, Xxxxxxxx & Taff, LLP, as special counsel for the
Underwriters) to the effect that:
(i) The Company has been duly organized and is
validly existing as a corporation in good standing under the laws of the State
of Delaware and is duly registered with the OTS as a savings and loan holding
company under HOLA. The Bank is a federal savings bank existing under the laws
of the United States of America. The deposit accounts at the Bank are insured by
the FDIC up to the maximum amount provided by law, and no proceedings for the
termination or revocation of such insurance are pending or, to the knowledge of
such counsel, threatened. The Company has full corporate power and authority to
own or lease its properties and conduct its business as described in the
Prospectus; each of the Bank and Xxxxxxxxxx Wealth Management, Inc. (the
"Significant Subsidiaries") is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, with full
corporate power and authority to own or lease its properties and conduct its
business as disclosed in the Prospectus; the Company and each of the Significant
Subsidiaries is duly qualified to transact business in each
25
jurisdiction where it owns or leases any material properties or conducts any
material business; and all of the outstanding shares of capital stock of each of
the Significant Subsidiaries have been duly authorized and validly issued and
are fully paid and non-assessable and are owned by the Company; and, to such
counsel's knowledge, except as described in the Prospectus, the outstanding
shares of capital stock of each of the Significant Subsidiaries are owned free
and clear by the Company of any security interest, mortgage, pledge, lien,
encumbrance, equity and claim; none of the outstanding shares of capital stock
of any Significant Subsidiary was issued in violation of the preemptive or
similar rights pursuant to the laws of its jurisdiction of incorporation or its
chartering documents of any security holder of such Subsidiary.
(ii) The Company has all requisite corporate power
and authority to issue, sell and deliver the Shares to be issued, sold and
delivered by it in accordance with and upon the terms and conditions set forth
in this Agreement. All corporate action required to be taken by the Company for
the authorization, issuance, sale and delivery of the Shares has been validly
taken. The Company has authorized and outstanding capital stock as set forth
under in the column "Actual" the caption "Capitalization" in the Prospectus; the
authorized shares of the Company's Common Stock have been duly authorized; the
outstanding shares of the Company's Common Stock, including the Shares to be
sold by the Selling Stockholders, have been duly authorized and validly issued
and are fully paid and non-assessable; all of the Shares conform to the
description thereof contained in the Prospectus; the certificates for the
Shares, are in due and proper form; the shares of Common Stock, including the
Option Shares, if any, to be sold by the Company pursuant to this Agreement have
been duly authorized and will be validly issued, fully paid and non-assessable
when issued and paid for as contemplated by this Agreement; and no preemptive
rights of stockholders exist under Delaware law or its chartering documents with
respect to any of the Shares to be issued and sold by the Company to the
Underwriters hereunder.
(iii) Except as described in or contemplated by the
Prospectus, to the knowledge of such counsel, there are no outstanding
securities of the Company convertible or exchangeable into or evidencing the
right to purchase or subscribe for any shares of capital stock of the Company
and there are no outstanding or authorized options, warrants or rights of any
character obligating the Company to issue any shares of its capital stock or any
securities convertible or exchangeable into or evidencing the right to purchase
or subscribe for any shares of such stock; and except as described in the
Prospectus, to the knowledge of such counsel, no holder of any securities of the
Company or any other person has the right, contractual or otherwise, which has
not been satisfied or effectively waived, to have any Common Stock or other
securities of the Company included in the Registration Statement or the right,
as a result of the filing of the Registration Statement, to require registration
under the Act of any shares of Common Stock or other securities of the Company.
(iv) The Registration Statement has become effective
under the Act; any required filing of the Prospectus pursuant to Rule 424(b) has
been made within the time period required by Rule 424(b) and, to the best of the
knowledge of such counsel, no stop order proceedings with respect thereto have
been instituted or are pending or threatened under the Act.
26
(v) The Company has all requisite corporate power to
enter into and perform its obligations under this Agreement, and this Agreement
has been duly and validly authorized, executed and delivered by the Company and
constitutes a legal, valid and binding obligation of the Company enforceable in
accordance with its terms, except as the enforcement hereof may be limited by
(i) bankruptcy, insolvency, moratorium, reorganization, receivership,
conservatorship or other similar laws relating to or affecting the enforcement
of creditors' rights generally or the rights of creditors of depository
institution holding companies the accounts of whose subsidiaries are insured by
the FDIC, or (ii) general equity principles, regardless of whether such
enforceability is considered in a proceeding in equity or at law, and except to
the extent that rights to indemnification and contribution under Section 10
hereof may be limited by state or federal securities laws or the policies
underlying such laws.
(vi) To such counsel's knowledge, neither the Company
nor any Subsidiary is in violation of, with or without notice or lapse of time
or both, its corporate charter or by-laws. The execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated herein (A) to such counsel's knowledge, result in the creation or
imposition of any lien, claim, charge, encumbrance or restriction upon any
property or assets of the Company or any Significant Subsidiary, (B) do not and
will not conflict with, or constitute a breach or violation of, or constitute a
default under, with or without notice or lapse of time or both, any of the
terms, provisions or conditions of the charter or by-laws of the Company or any
Significant Subsidiary or, to such counsel's knowledge, with any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note, lease,
franchise, license or any other agreement or instrument to which the Company or
any Significant Subsidiary is a party or by which any of them or any of their
respective properties may be bound, or (C) to such counsel's knowledge, do not
and will not conflict with any order, decree, judgment, franchise, license,
Permit, rule or regulation of any court, arbitrator, government, or governmental
agency or instrumentality, domestic or foreign, having jurisdiction over the
Company or any Significant Subsidiary or any of their respective properties
which, in each case, would have a material adverse effect on the financial
condition, business or results of operations of the Company and the Subsidiaries
as a consolidated basis (other than state securities or Blue Sky laws, as to
which such counsel need not express any opinion).
(vii) To such counsel's knowledge, no action, suit or
proceeding at law or in equity is pending or threatened in writing against or
affecting the Company or any Significant Subsidiary or any of their properties
before or by any court or governmental official, commission, board or other
administrative agency, authority or body, or any arbitrator, wherein an
unfavorable decision, ruling or finding would have a material adverse effect on
the consummation of this Agreement or which is required to be disclosed in the
Registration Statement or the Prospectus and is not so disclosed.
(viii) The Registration Statement and the Prospectus
and any amendments or supplements thereto (other than the financial statements,
notes to financial statements, financial tables and other tabular, financial and
statistical data included therein or omitted therefrom and the Underwriters'
Information, as to which such counsel need express no opinion) comply as to form
in
27
all material respects with the requirements of the Act and Rules and Regulations
as of their respective dates of effectiveness.
(ix) The statements in the Registration Statement and
the Prospectus summarizing the documents referred to therein (including, but not
limited to, the exhibits filed in the Registration Statement), laws, statutes,
rules and regulations fairly and correctly present in all material respects the
information required to be presented by the Act or Rule and Regulations.
(x) There are no material legal restrictions or, to
such counsel's knowledge, no contractual encumbrances or restrictions on the
ability of the Company or any Subsidiary (A) to pay dividends or make any other
distributions on its capital stock or to pay indebtedness owed to the Company,
(B) to make any loans or advances to, or investments in, the Company or (C) to
transfer any of its property or assets to the Company, in each case, which are
required to be described in the Prospectus but are not so described.
(xi) To such counsel's knowledge, the Company and
each Subsidiary possesses all permits, consents, licenses, franchises and
governmental and regulatory authorizations ("Permits") required to conduct their
businesses as described in the Prospectus and which are material to the Company
and the Subsidiaries on a consolidated basis, except in those instance where the
loss thereof or non-compliance therewith would not have a material adverse
effect on the financial condition, business, or results of operations of the
Company and the Subsidiaries on a consolidated basis.
(xii) To such counsel's knowledge, all offers and
sales by the Company of its capital stock since __________, 1999 (three years
prior to execution of this Agreement) were at all relevant times exempt from or
complied with the registration requirements of the Act.
(xiii) No approval, consent, order, authorization,
designation, declaration or filing by or with any regulatory, administrative or
other governmental body is necessary in connection with the execution and
delivery of this Agreement and the consummation of the transactions herein
contemplated (other than as may be required by the NASD or as required by State
securities and Blue Sky laws as to which such counsel need express no opinion)
except such as have been obtained or made, specifying the same.
(xiv) The Company is not, and will not become, as a
result of the consummation of the transactions contemplated by this Agreement,
and application of the net proceeds therefrom as described in the Prospectus,
required to register as an investment company under the Investment Company Act
of 1940.
In rendering such opinion, Xxxxxx Xxxx & Xxxxxx LLP may rely (A)
as to matters involving the application of any laws other than the laws of the
United States, Delaware corporate law or New York law, to the extent such
counsel deems proper and specified in such opinion, upon the opinion of counsel
licensed to practice in such jurisdiction and (B) as to matters of fact, on
certificates of responsible officers of the Company and the Bank and public
28
officials. Whenever any opinion expressed herein with respect to any matter is
qualified by the phrase "to such counsel's knowledge," "to the knowledge of such
counsel" or "known to such counsel" such language indicates that (i) the
relevant knowledge or awareness is limited to the actual knowledge or awareness
of the individual lawyers in the firm who have participated directly in the
specific transactions to which this opinion relates; (ii) such counsel has not
undertaken any independent investigation with respect to such matter except as
may be specifically set forth in such counsel's opinion; and (iii) no inference
that such counsel has actual knowledge concerning such matter should be drawn
from the fact of such counsel's representation of the Company and the Bank as
special counsel or such counsel's expression of such opinion. For purposes of
such opinion, no proceedings shall be deemed to be pending and no action shall
be deemed to be instituted unless, in each case, a director or executive officer
of the Company or the Bank shall have received a copy of such proceedings, order
or action. For purposes of such opinion, no proceeding shall be deemed
threatened unless the potential litigant or government authority has manifested
to the directors or management of the Company or the Bank a present intention to
initiate such litigation or proceedings. In addition, such opinion may be
limited to present statues, regulations and judicial interpretations and to
facts a they presently exist; in rendering such opinion, such counsel need
assume no obligation to revise or supplement it should the present laws be
changed by legislative or regulatory action, judicial decision or otherwise.
Such counsel may assume that any agreement is valid and binding obligation of
any parties to such agreement other than the Company or the Bank.
Such counsel shall also confirm that, in connection with the
preparation of the Registration Statement and Prospectus, such counsel has
participated in conferences with officers and representatives of the Company,
the Company's independent public accountants and the Representative and its
counsel, at which conferences such counsel made inquiries of the Company's
officers, representatives and accountants and discussed in detail the contents
of the Registration Statement and Prospectus. While such counsel has not
confirmed the accuracy or completeness or otherwise verified the information
contained in the Registration Statement or the Prospectus or any amendment or
supplement thereto, and does not assume any responsibility for such information,
except as set forth in such counsel's opinion, based upon such conferences and a
review of corporate records of the Company as such counsel conducted in
connection with preparation of the Registration Statement and Prospectus
(relying as to materiality as to factual matters on certificates of officers and
other factual representations by the Company), nothing has come to their
attention that would lead them to believe (A) that the Registration Statement or
any amendment thereto (except for the financial statements, notes to financial
statements, financial tables and other tabular, financial and statistical data
included therein or omitted therefrom and the Underwriters' Information as to
which such counsel need express no view), at the time the Registration Statement
or any such amendment became effective, contained any untrue statement of a
material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading or (B) that
the Prospectus or any amendment or supplement thereto (except for the financial
statements, notes to financial statements, financial tables and other tabular,
financial and statistical data included therein or omitted therefrom and the
Underwriters' Information, as to which such counsel need express no view), at
the time the Registration Statement became effective (or, if the term
"Prospectus" refers to the prospectus
29
first filed pursuant to Rule 424(b) of the Act, at the time the Prospectus was
issued), at the time any such amended or supplemented Prospectus was issued, at
the Closing Date, and if applicable, the Option Closing Date, contained or
contains any untrue statement of a material fact or omitted or omits to state
any 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 or (C) that there is any amendment to the Registration Statement
required to be filed.
(c) The Representative shall have received from Silver,
Xxxxxxxx & Taff, LLP, counsel for the Underwriters, an opinion dated the Closing
Date and the Option Closing Date, if any, with respect to the formation of the
Company, the validity of the Shares and other related matters as the
Representative reasonably may request, and such counsel shall have received such
papers and information as they request to enable them to pass upon such matters.
(d) The Representative shall have received at or prior to
the Closing Date from Silver, Xxxxxxxx & Xxxx, L.L.P. a memorandum or summary,
in form and substance satisfactory to the Representative, with respect to the
qualification for offering and sale by the Underwriters of the Shares under the
state securities or Blue Sky laws of such jurisdictions as the Representative
may reasonably have designated to the Company.
(e) The Representative shall have received, on each of the
dates hereof, the Closing Date and the Option Closing Date, if any, a letter
dated the date hereof, the Closing Date or the Option Closing Date, if any, in
form and substance satisfactory to you, of Deloitte and Touche LLP confirming
that they are independent public accountants within the meaning of the Act and
the applicable published Rules and Regulations thereunder and stating that in
their opinion the financial statements and schedules examined by them and
included in the Registration Statement comply in form in all material respects
with the applicable accounting requirements of the Act and the related published
Rules and Regulations; and containing such other statements and information as
is ordinarily included in accountants' "comfort letters" to Underwriters with
respect to the financial statements and certain financial and statistical
information contained in the Registration Statement and the Prospectus.
(f) The Representative shall have received on the Closing
Date and the Option Closing Date, if any, a certificate or certificates of the
Company's Chief Executive Officer and Chief Financial Officer to the effect
that, as of the Closing Date or the Option Closing Date, if any, each of them
severally represents as follows:
(i) The Registration Statement has become effective
under the Act and no stop order suspending the effectiveness of the
Registrations Statement has been issued, and no proceedings for such purpose
have been taken or are, to his knowledge, contemplated by the Commission;
(ii) The representations and warranties of the
Company contained in Section 1 hereof are true and correct as of the Closing
Date or the Option Closing Date, if any;
30
(iii) All filings required to have been made pursuant
to Rules 424 or 430A under the Act have been made;
(iv) They have carefully examined the Registration
Statement and the Prospectus and, in their opinion, as of the effective date of
the Registration Statement, the statements contained in the Registration
Statement were true and correct, and such Registration Statement and Prospectus
did not omit to state a material fact required to be stated therein or necessary
in order to make the statements therein not misleading, and since the effective
date of the Registration Statement, no event has occurred which should have been
set forth in a supplement to or an amendment of the Prospectus which has not
been so set forth in such supplement or amendment (provided that no
certification will be made with respect to the Underwriters' Information); and
(v) Since the respective dates as of which
information is given in the Registration Statement and the Prospectus, there has
not been any material adverse change or any development involving a prospective
change, which has had or is reasonably likely to have a Material Adverse Effect,
whether or not arising in the ordinary course of business.
(g) The Company and the Selling Stockholders shall have
furnished to the Representative such further certificates and documents
confirming the representations and warranties, covenants and conditions
contained herein and related matters as the Representative may reasonably have
requested.
(h) The Firm Shares and Option Shares, if any, have been
approved for designation upon notice of issuance on The Nasdaq National Market.
(i) Each officer and director and each stockholder owning
one percent or more of the Common Stock of the Company shall have furnished to
the Representative the Hold-Back Agreement described in Section 5(l), which
agreement shall be in full force and effect.
(j) The Representative shall have received on the Closing
Date the opinions of Xxxxxx Xxxx & Xxxxxx LLP, special counsel for the Selling
Stockholders, dated the Closing Date, addressed to the Underwriters (and stating
that it may be relied upon by Silver, Xxxxxxxx & Taff, LLP, as special counsel
for the Underwriters) to the effect that:
(i) This Agreement has been duly authorized,
executed and delivered on behalf of each Selling Stockholder.
(ii) Each Selling Stockholder has full legal right,
power and authority, and any approval required by law (other than as required by
state securities and Blue Sky laws as to which such counsel need express no
opinion), to sell, assign, transfer and deliver the portion of the Shares to be
sold by such Selling Stockholder.
31
(iii) The Custody Agreement and the Power of Attorney
executed and delivered by each Selling Stockholder is valid and binding.
(iv) To such counsel's knowledge, no consent,
approval, authorization or order of any court, or governmental agency or body is
required for the consummation of the transactions contemplated by this Agreement
in connection with the Shares to be sold by the Selling Stockholder hereunder,
except such as may be required under the Act or the Rules and Regulations or as
may be required by NASD or under state securities and Blue Sky laws.
(v) To such counsel's knowledge, each Selling
Stockholder owns the Shares being sold by such Selling Stockholder hereunder,
free and clear of any pledge, lien, encumbrance, security interest, mortgage,
preemptive or other similar right, or other claim whatsoever.
(vi) Upon delivery of the certificates representing
the Shares being sold by the Selling Stockholders and payment for such Shares by
the Underwriters, the Underwriters (assuming that it is a bona fide purchaser
within the meaning of the Uniform Commercial Code) will acquire marketable title
to the Shares being sold by each Selling Stockholder on the Closing Date free
and clear of any pledge, lien, encumbrance, security interest, mortgage or
preemptive or other similar right.
In rendering such opinion, Xxxxxx Xxxx & Xxxxxx LLP may rely (A)
as to matters involving the application of any laws other than the laws of the
United States, Delaware corporate law or New York law, to the extent such
counsel deems proper and specified in such opinion, upon the opinion of counsel
licensed to practice in such jurisdiction and (B) as to matters of fact, on
certificates of responsible officers of the Company and the Bank and public
officials. Whenever any opinion expressed herein with respect to any matter is
qualified by the phrase "to such counsel's knowledge," "to the knowledge of such
counsel" or "known to such counsel" such language indicates that (i) the
relevant knowledge or awareness is limited to the actual knowledge or awareness
of the individual lawyers in the firm who have participated directly in the
specific transactions to which this opinion relates; (ii) such counsel has not
undertaken any independent investigation with respect to such matter except as
may be specifically set forth in such counsel's opinion; and (iii) no inference
that such counsel has actual knowledge concerning such matter should be drawn
from the fact of such counsel's representation of the Selling Stockholders as
special counsel or such counsel's expression of such opinion. In addition, such
opinion may be limited to present statues, regulations and judicial
interpretations and to facts a they presently exist; in rendering such opinion,
such counsel need assume no obligation to revise or supplement it should the
present laws be changed by legislative or regulatory action, judicial decision
or otherwise. Such counsel may assume that any agreement is valid and binding
obligation of any parties to such agreement other than the Selling Stockholders.
32
The opinions and certificates mentioned in this Agreement shall
be deemed to be in compliance with the provisions hereof only if they are in all
material respects satisfactory to the Representative and to Silver, Xxxxxxxx &
Taff, LLP, counsel for the Underwriters.
If any of the conditions hereinabove provided for in this
Section shall not have been fulfilled when and as required by this Agreement to
be fulfilled, the obligations of the Underwriters hereunder may be terminated by
the Representative by notifying the Company and the Selling Stockholders of such
termination in writing on or prior to the Closing Date or the Option Closing
Date, if any.
In such event, the Company, the Selling Stockholders and the
Underwriters shall not be under any obligation to each other (except to the
extent provided in Sections 7 and 10 hereof).
9. CONDITIONS OF THE OBLIGATIONS OF THE COMPANY AND THE SELLING
STOCKHOLDERS.
The obligations of the Company and the Selling Stockholders to
sell and deliver the portion of the Shares required to be delivered as and when
specified in this Agreement are subject to the conditions that at the Closing
Date or, with respect to the Option Shares, the Option Closing Date, if any, no
stop order suspending the effectiveness of the Registration Statement shall have
been issued and in effect or proceedings therefor initiated or threatened.
10. INDEMNIFICATION.
(a) The Company agrees:
(i) to indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the meaning of the Act,
against any losses, claims, damages or liabilities to which such Underwriter or
any such controlling person may become subject under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) arise out of or are based upon (1) any untrue
statement or alleged untrue statement of any material fact contained in the
Registration Statement, any Preliminary Prospectus, the Prospectus or any
amendment or supplement thereto, (2) the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading (in the case of the Prospectus or any
Preliminary Prospectus, in light of the circumstances under which they were
made), (3) the failure of any individual to pay for and accept delivery of the
Affiliate Shares that such individual has indicated an intention to purchase as
of the date of this Agreement, (4) the enforcement of this indemnification
provision or the contribution provisions of Section 10(e) or (5) any alleged act
or failure to act by any Underwriter in connection with, or relating in any
manner to, the Shares or the offering contemplated hereby and which is included
as part of or referred to in any loss, claim, damage, liability or action
arising out of or based upon matters covered by clause (1), (2) or (3) above
(provided, however, that the Company shall not be liable under this Section
(10)(a)(i) to the extent that it is determined in a final judgment by a court of
competent jurisdiction that such loss, claim, damage, liability or action
33
resulted directly from any such acts or failures to act undertaken or omitted to
be taken by such Underwriter through its gross negligence or willful
misconduct); provided, however, that the Company will not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement, or omission or
alleged omission made in the Registration Statement, any Preliminary Prospectus,
the Prospectus, or such amendment or supplement, in reliance upon and in
conformity with the Underwriters' Information; provided, further, that the
indemnification contained in this paragraph with respect to any Preliminary
Prospectus shall not inure to the benefit of an Underwriter (or of any person
controlling such Underwriter) to the extent any such losses, claims, damages,
liabilities or expenses directly results from the fact that such Underwriter
sold Shares to a person to whom there was not sent or given, at or prior to the
written confirmation of such sale, a copy of the Prospectus (as amended or
supplemented if any amendments or supplements thereto shall have been furnished
to such Underwriter in sufficient time to distribute same with or prior to the
written confirmation of the sale involved), if required by law, and if such
loss, claim, damage, liability or expense would not have arisen but for the
failure to give or send such person such document. The foregoing indemnity
agreement is in addition to any liability the Company may otherwise have to any
such indemnified party.
(ii) to reimburse each Underwriter and each such
controlling person upon demand for any legal or other out-of-pocket expenses
reasonably incurred by such Underwriter or such controlling person in connection
with investigating or defending any such loss, claim, damage or liability,
action or proceeding or in responding to a subpoena or governmental inquiry
related to the offering of the Shares, whether or not such Underwriter or
controlling person is a party to any action or proceeding. In the event that it
is finally judicially determined that the Underwriters were not entitled to
receive payments for legal and other expenses pursuant to this subparagraph, the
Underwriters will promptly return all sums that had been advanced pursuant
hereto.
(b) Each Underwriter, severally and not jointly, will
indemnify and hold harmless the Company, each of its directors, officers,
employees, agents and counsel, the Selling Stockholders and each person, if any,
who controls the Company or the Selling Stockholders within the meaning of the
Act, against any losses, claims, damages or liabilities to which the Company or
any such director, officer, employee, agent, counsel, Selling Stockholder or
controlling person may become subject under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions or proceedings in
respect thereof) arise out of or are based upon (i) any untrue statement or
alleged untrue statement of any material fact contained in the Registration
Statement, any Preliminary Prospectus, the Prospectus or any amendment or
supplement thereto, or (ii) the omission or the alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances under which
they were made; and will reimburse upon demand any legal or other out-of-pocket
expenses reasonably incurred by the Company or any such director, officer,
employee agent, counsel, Selling Stockholder or controlling person in connection
with investigating or defending any such loss, claim, damage, liability, action
or proceeding or in responding to a subpoena or governmental inquiry related to
the offering of the Shares, whether
34
or not the Company or any such director, officer, employee agent, counsel,
Selling Stockholder or controlling person is a party to any action or
proceeding; provided, however, that each Underwriter will be liable in each case
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission has been made in the
Registration Statement, any Preliminary Prospectus, the Prospectus or such
amendment or supplement, in reliance upon and in conformity with the
Underwriters' Information.
(c) Each Selling Stockholder agrees, severally and not
jointly, to indemnify and hold harmless the Underwriters and each person, if
any, who controls any Underwriter within the meaning of the Act and the Company
and each director, officer, employee, agent and counsel of the Company, against
any losses, claims, damages or liabilities to which such person or entity may
become subject under the Act or otherwise insofar as such losses, claims,
damages or liabilities (or actions or proceedings in respect thereof) arise out
of or are based upon (i) any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, any Preliminary
Prospectus, the Prospectus or any amendment or supplement thereto, or (ii) the
omission or the alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading in the
light of the circumstances under which they were made; and will reimburse upon
demand any legal or other out-of-pocket expenses reasonably incurred by any
Underwriter, any such control person, the Company or any such director, officer,
employee agent or counsel, in connection with investigating or defending any
such loss, claim, damage, liability, action or proceeding or in responding to a
subpoena or governmental inquiry related to the offering of the Shares, whether
or not such Underwriter, any such control person, the Company or any such
director, officer, employee agent or counsel is a party to any action or
proceeding; provided, however, that each Selling Stockholder will be liable in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission has been made in the
Registration Statement, any Preliminary Prospectus, the Prospectus or such
amendment or supplement, in reliance upon and in conformity with the information
provided to the Company by such Selling Stockholder for inclusion therein. In no
event, however, shall the liability of any Selling Stockholder for
indemnification under this Section 10(a) exceed the proceeds received by such
Selling Stockholder from the Underwriters in the offering. This indemnity
obligation will be in addition to any liability that the Company or Selling
Stockholder may otherwise have.
(d) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to this Section, such person (the "indemnified
party") shall promptly notify the person against whom such indemnity may be
sought (the "indemnifying party") in writing. No indemnification provided for in
Section 10(a) or (b) or (c) shall be available to any party who shall fail to
give notice as provided in this Subsection if the party to whom notice was not
given was unaware of the proceeding to which such notice would have related and
was materially prejudiced by the failure to give such notice, but the failure to
give such notice shall not relieve the indemnifying party or parties from any
liability which it or they may have to the indemnified party for contribution or
otherwise than on account of the provisions of Section 10(a) or (b) or (c). In
case any such proceeding shall be brought against any indemnified party and it
shall notify the
35
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party and shall pay as
incurred the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel at its own expense. Notwithstanding the foregoing, the indemnifying
party shall pay as incurred (or within 30 days of presentation) the fees and
expenses of the counsel retained by the indemnified party in the event (i) the
indemnifying party and the indemnified party shall have mutually agreed to the
retention of such counsel, (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them or
(iii) the indemnifying party shall have failed to assume the defense and employ
counsel acceptable to the indemnified party within a reasonable period of time
after notice of commencement of the action. Each indemnified party shall use
reasonable efforts to cooperate with the indemnifying party in the defense of
any such action or claim.
It is understood that the indemnifying party shall not,
in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees and expenses of more than one
separate firm for all such indemnified parties. Such firm shall be designated in
writing by the Representative in the case of parties indemnified pursuant to
Section 10(a) or 10(c) and by the Company and the Selling Stockholders in the
case of parties indemnified pursuant to Section 10(b). The indemnifying party
shall not be liable for any settlement of any proceeding effected without its
written consent but if settled with such consent or if there be a final judgment
for the plaintiff, the indemnifying party agrees to indemnify the indemnified
party from and against any loss or liability by reason of such settlement or
judgment. In addition, the indemnifying party will not, without the prior
written consent of the indemnified party, settle or compromise or consent to the
entry of any judgment in any pending or threatened claim, action or proceeding
of which indemnification may be sought hereunder (whether or not any indemnified
party is an actual or potential party to such claim, action or proceeding)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action
or proceeding.
(e) If the indemnification provided for in this Section is
unavailable to or insufficient to hold harmless an indemnified party under
Section 10(a) or (b) or (c) above in respect of any losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) referred to therein,
then each indemnifying party shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) in such proportion as
is appropriate to reflect the relative benefits received by the Company, the
several Selling Stockholders and the several Underwriters from the offering of
the Shares. If, however, the allocation provided by the immediately preceding
sentence is not permitted by applicable law then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of the Company, the Selling Stockholders and the Underwriters
in
36
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities, (or actions or proceedings in respect thereof),
as well as any other relevant equitable considerations. In any case when the
Company and/or the Selling Stockholders are the contributing party and the
Underwriters are the indemnified party, the relative benefits received by the
Company and/or the Selling Stockholders on the one hand and the Underwriters on
the other shall be deemed to be in the same proportion as the total net proceeds
from the offering (before deducting expenses) received by the Company and/or the
Selling Stockholders, as the case may be, bear to the total underwriting
discounts and commissions received by the Underwriters, in each case as set
forth in the table on the cover page of the Prospectus. The relative fault shall
be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or the Selling
Stockholders on the one hand or the Underwriters on the other and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company, the Selling Stockholders and the
Underwriters agree that it would not be just and equitable if contributions
pursuant to this Section 10(e) were determined by pro rata allocation (even if
the Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable considerations
referred to above in this Section 10(e). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities (or
actions or proceedings in respect thereof) referred to above in this Section
10(e) shall be deemed to include any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 10(e), (i) no
Underwriter shall be required to contribute any amount in excess of the
underwriting discounts and commissions applicable to the Shares purchased by
such Underwriter, and (ii) no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation, and (iii) no Selling Stockholder shall be required to
contribute any amount in excess of the proceeds received by such Selling
Stockholder from the Underwriters in the offering. The Underwriters' obligations
in this subsection to contribute are several in proportion to their respective
underwriting obligations and not joint.
For purposes of this Section 10(e), each person who
controls an Underwriter within the meaning of the Act shall have the same rights
to contribution as such Underwriter, and each person who controls the Company or
a Selling Stockholder within the meaning of the Act, each officer of the Company
who shall have signed the Registration Statement and each director of the
Company shall have the same rights to contribution as the Company subject in
each case to the preceding sentence. The obligations of the Company and Selling
Stockholder's under this Section 10(e) shall be in addition to any liability
which the Company and Selling Stockholder's may otherwise have and the
obligations of the Underwriters under this Section 10(e) shall be in addition to
any liability that the Underwriters may otherwise have.
(f) In any proceeding relating to the Registration
Statement, any Preliminary Prospectus, the Prospectus or any supplement or
amendment thereto, each party against whom
37
contribution may be sought under this Section hereby consents to the
jurisdiction of any court having jurisdiction over any other contributing party,
agrees that process issuing from such court may be served upon him or it by any
other contributing party and consents to the service of such process and agrees
that any other contributing party may join him or it as an additional defendant
in any such proceeding in which such other contributing party is a party.
11. DEFAULT BY UNDERWRITERS.
38
If on the Closing Date or the Option Closing Date, if any, any
Underwriter shall fail to purchase and pay for the portion of the Shares which
such Underwriter has agreed to purchase and pay for on such date (otherwise than
by reason of any default on the part of the Company or a Selling Stockholder),
you, as the Representative of the Underwriters, shall use your reasonable
efforts to procure within 36 hours thereafter one or more of the other
Underwriters, or any others, to purchase from the Company and the Selling
Stockholders such amounts as may be agreed upon and upon the terms set forth
herein, the Firm Shares or Option Shares, as the case may be, which the
defaulting Underwriter or Underwriters failed to purchase. If during such 36
hours you, as such Representative, shall not have procured such other
Underwriters, or any others, to purchase the Firm Shares or Option Shares, as
the case may be, agreed to be purchased by the defaulting Underwriter or
Underwriters, then (a) if the aggregate number of shares with respect to which
such default shall occur does not exceed 10% of the Firm Shares or Option
Shares, as the case may be, covered hereby, the other Underwriters shall be
obligated, severally, in proportion to the respective numbers of Firm Shares or
Option Shares, as the case may be, which they are obligated to purchase
hereunder, to purchase the Firm Shares or Option Shares, as the case may be,
which such defaulting Underwriter or Underwriters failed to purchase, or (b) if
the aggregate number of shares of Firm Shares or Option Shares, as the case may
be, with respect to which such default shall occur exceeds 10% of the Firm
Shares or Option Shares, as the case may be, covered hereby, the Company and the
Selling Stockholders or you as the Representative of the Underwriters will have
the right, by written notice given within the next 36-hour period to the parties
to this Agreement, to terminate this Agreement without liability on the part of
the non-defaulting Underwriters or of the Company or of the Selling Stockholders
except to the extent provided in Section 10 hereof. In the event of a default by
any Underwriter or Underwriters, as set forth in this Section 11, the Closing
Date or Option Closing Date, if any, may be postponed for such period, not
exceeding seven days, as you, as Representative, may determine in order that the
required changes in the Registration Statement or in the Prospectus or in any
other documents or arrangements may be effected. The term "Underwriter" includes
any person substituted for a defaulting Underwriter. Any action taken under this
Section 11 shall not relieve any defaulting Underwriter from liability in
respect of any default of such Underwriter under this Agreement.
12. NOTICES.
All communications hereunder shall be in writing and, except as
otherwise provided herein, will be mailed, delivered, or faxed and confirmed as
follows:
if to the Underwriters, to RBC Xxxx Xxxxxxxx Inc.
c/o RBC Capital Markets
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxx
Syndicate Director
Fax: (000) 000-0000
39
40
if to the Company to Xxxxxxxxxx West Financial Group, Inc.
000 Xxxxx Xxxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxx
Chief Executive Officer
Fax: (000) 000-0000
13. TERMINATION.
(a) This Agreement may be terminated by the Representative
by notice to the Company and the Selling Stockholders at any time prior to the
Closing Date if any of the following has occurred: (i) since the respective
dates as of which information is given in the Registration Statement and the
Prospectus, any material adverse change or any development involving a
prospective change, which has had or is reasonably likely to have a Material
Adverse Effect, (ii) any outbreak or escalation of hostilities or declaration of
war or national emergency or other national or international calamity or crisis
or change in economic or political conditions if the effect of such outbreak,
escalation, declaration, emergency, calamity, crisis or change on the financial
markets of the United States, in the Representative's reasonable judgment, makes
it impracticable or inadvisable to market the Shares or to enforce contracts for
the sale of the Shares, or (iii) suspension of trading in securities generally
on the New York Stock Exchange or the American Stock Exchange or limitation on
prices (other than limitations on hours or numbers of days of trading) for
securities on either such exchange, (iv) the enactment, publication, decree or
other promulgation of any statute, regulation, rule or order of any court or
other governmental authority which in the Representative's reasonable opinion
materially and adversely affects or may materially and adversely affect the
business or operations of the Company, (v) declaration of a banking moratorium
by United States or New York State authorities, (vi) the taking of any action by
any governmental body or agency in respect of its monetary or fiscal affairs
which in the Representative's reasonable opinion has a material adverse effect
on the securities markets in the United States; or (vii) either the Company or a
Selling Stockholder shall have failed, refused, or been unable to perform any
agreement on its part to be performed under this Agreement, or any of the
conditions referred to in Section 8 shall not have been fulfilled, when and as
required by this Agreement (except that no termination may be made pursuant to
this clause (vii) if the Selling Stockholder default relates to failure of a
Selling Stockholder to deliver Shares and the Company is willing and able to
deliver shares equal to the number such Selling Stockholder cannot deliver).
(b) Notwithstanding anything to the contrary contained in
this Agreement, any termination of this Agreement, and whether or not this
Agreement is otherwise carried out, the provisions of Section 7 and Section 10
shall not in any way be affected by such termination or failure to carry out the
terms of this Agreement or any part hereof.
41
14. EFFECTIVE DATE OF AGREEMENT.
If the Registration Statement is not effective at the time of
execution of this Agreement, this Agreement shall become effective on the
Effective Date at the time the Commission declares the Registration Statement
effective. The Company shall immediately notify the Representative when the
Registration Statement becomes effective.
If the Registration Statement is effective at the time of
execution of this Agreement, this Agreement shall become effective at the
earlier of 11:00 a.m. Minneapolis time, on the first full business day following
the day on which this Agreement is executed, or at such earlier time as the
Underwriters shall release the Shares for initial public offering. The
Representative shall notify the Company immediately after the Underwriters have
taken any action which causes this Agreement to become effective.
Until such time as this Agreement shall have become effective,
it may be terminated by the Company by notifying the Representative, or by the
Representative, on behalf of the several Underwriters, by notifying the Company,
except that the provisions of Sections 7 and 10 shall at all times be effective.
15. SUCCESSORS.
This Agreement has been and is made solely for the benefit of
the Company, the Selling Stockholders and Underwriters and their respective
successors, executors, administrators, heirs and assigns, and the officers,
directors and controlling persons referred to herein, and no other person will
have any right or obligation hereunder. No purchaser of any of the Shares from
any Underwriter shall be deemed a successor or assign merely because of such
purchase.
16. INFORMATION PROVIDED BY UNDERWRITERS.
The Company, the Selling Stockholders and the Underwriters
acknowledge and agree that the only information furnished or to be furnished by
any Underwriter to the Company for inclusion in any Prospectus or the
Registration Statement consists of the information contained under the eighth,
ninth and thirteenth paragraphs under the caption "Underwriting" in the
Prospectus.
17. MISCELLANEOUS.
The reimbursement, indemnification and contribution agreements
contained in this Agreement and the representations, warranties and covenants in
this Agreement shall remain in full force and effect regardless of (a) any
termination of this Agreement, (b) any investigation made by or on behalf of any
Underwriter or controlling person thereof, or by or on behalf of the Company or
its directors or officers or by and on behalf of any Selling Stockholder and (c)
delivery of and payment for the Shares under this Agreement.
42
This Agreement may be executed in counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
This Agreement shall be governed by, and construed in accordance
with, the laws of the State of New York.
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 only be amended or modified in writing,
signed 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.
[remainder of page intentionally blank]
43
If the foregoing letter is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicates hereof,
whereupon it will become a binding agreement among the Company, the Selling
Stockholders and the several Underwriters in accordance with its terms.
Any person executing and delivering this Agreement as Attorney-in-Fact
for a Selling Stockholder represents by so doing that he has been duly appointed
as Attorney-in-Fact by such Selling Stockholder pursuant to a validly existing
and binding Power of Attorney which authorizes such Attorney-in-Fact to take
such action.
Very truly yours,
Xxxxxxxxxx West Financial Group, Inc.
By
------------------------------------
Xxxxx X. Xxxxx
Chief Executive Officer
Selling Stockholders listed on Schedule II
By
------------------------------------
Attorney-in-Fact
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first above written.
As the Representative of the several Underwriters listed on Schedule I
RBC XXXX XXXXXXXX INC.
By:
----------------------------
Name:
----------------------------
Title:
----------------------------
44
SCHEDULE I
SCHEDULE OF UNDERWRITERS
Number of Firm Shares
Underwriter to be Purchased
----------- ---------------
RBC Xxxx Xxxxxxxx Inc.
[Underwriter #2]
[Underwriter #3]
[Underwriter #4]
45
SCHEDULE II
SCHEDULE OF SELLING STOCKHOLDERS
Number of Firm Shares
Selling Stockholder to be Sold
------------------- ----------
[Selling Stockholder #1]
[Selling Stockholder #2]
[Selling Stockholder #3]
----------
TOTAL
----------
EXHIBIT A
LIST OF SUBSIDIARIES
Los Padres Bank, a Federal Savings Bank
Xxxxxxxxxx Wealth Management Company, an Indiana Corporation
Los Padres Mortgage Company, LLC, a California LLC
Valley Oaks Financial Corporation, a California Corporation
