4,600,000 Shares First Community Bancshares, Inc. Common Stock par value $1.00 per share Underwriting Agreement
Exhibit 1.1
Execution
Copy
4,600,000 Shares
First Community Bancshares, Inc.
Common Stock
par value $1.00 per share
par value $1.00 per share
June 4, 2009
Sandler X’Xxxxx & Partners, L.P.,
as Representative of the several Underwriters
000 Xxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
as Representative of the several Underwriters
000 Xxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
First Community Bancshares, Inc., a Nevada corporation (the “Company”), proposes, subject to
the terms and conditions stated herein, to issue and sell to Sandler X’Xxxxx & Partners, L.P.
(“Sandler X’Xxxxx” or an “Underwriter”) and each of the other underwriters named in Schedule
A hereto (collectively, the “Underwriters,” which term shall also include any underwriter
substituted as hereinafter provided in Section 11 hereof), for whom Sandler X’Xxxxx is acting as
representative (in such capacity, the “Representative”) with respect to (i) the sale by the
Company, and the purchase by the Underwriters, acting severally and not jointly, of an aggregate of
4,600,000 shares of Common Stock, $1.00 par value per share, of the Company (the “Stock”), as set
forth in Schedule I hereto (the “Firm Shares”) and (ii) the grant by the Company to the
Underwriters, acting severally and not jointly, of the option described in Section 2 hereof to
purchase all or any part of 690,000 additional shares of Common Stock (the “Optional Shares”) to
cover over-allotments, if any (the Firm Shares and the Optional Shares that the Underwriters elect
to purchase pursuant to Section 2 hereof being collectively called the “Shares”).
The Company has filed with the Securities and Exchange Commission (the “Commission”) a
registration statement on Form S-3 (No. 333-153692) covering the registration of the Shares under
the Securities Act of 1933, as amended (the “Act”), including a related prospectus, which has
become effective. The registration statement (including the exhibits thereto and schedules thereto,
if any) as amended at the time it became effective, or, if a post-effective amendment has been
filed with respect thereto, as amended by such post-effective amendment at the time of its
effectiveness (including in each case the information (if any) deemed to be part of such
registration statement at the time of effectiveness pursuant to Rule 430A under the Act), is
hereinafter referred to as the “Registration Statement.” The term “Effective Date” shall mean each
date that the Registration Statement and any post-effective amendment or amendments thereto became
or become effective. The term “Base Prospectus” shall mean the prospectus referred to in Section
1(a)(i) hereof contained in the Registration Statement at the Effective Date. “Preliminary
Prospectus” means any preliminary prospectus supplement to the Base Prospectus used prior to the
filing of the Prospectus, together with the Base Prospectus; the term “Prospectus” means the final
prospectus supplement to the Base Prospectus first filed with the Commission pursuant to Rule
424(b) under the Act, together with the Base Prospectus. Any registration statement filed pursuant
to Rule 462(b) under the Act is herein referred to as the “Rule 462(b) Registration Statement,” and
after such filing the term “Registration Statement” shall include the Rule 462(b) Registration
Statement.
Any reference in this Agreement to the Registration Statement, any Preliminary Prospectus or
the Prospectus shall be deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the Act, as of the Effective Date or the date of such
Preliminary Prospectus or the Prospectus, as the case may be. For purposes of this Agreement, all
references to the Registration Statement, any Preliminary Prospectus, or the Prospectus or any
amendment or supplement to any of the foregoing shall be deemed to include the copy filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval system (“XXXXX”).
All references in this Agreement to financial statements and schedules and other information
which is “contained,” “included” or “stated” in the Registration Statement, any Preliminary
Prospectus or the Prospectus (or other references of like import) shall be deemed to mean and
include all such financial statements and schedules and other information which is incorporated by
reference in the Registration Statement, any Preliminary Prospectus or the Prospectus, as the case
may be.
1. (a) The Company represents and warrants to, and agrees with, the Underwriters that:
(i) The Company satisfies the registrant eligibility requirements for the use of Form S-3
under the Act set forth in General Instruction I.A to such form and the transactions contemplated
by this Agreement satisfy the transaction eligibility requirements for the use of such form set
forth in General Instruction I.B.1 to such form; the Company has filed with the Commission the
Registration Statement on such Form, including a Base Prospectus, for registration under the Act of
the offering and sale of the Shares, and the Company may have filed
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with the Commission one or more amendments to such Registration Statement, each in the form
previously delivered to the Underwriters. Such Registration Statement, as so amended, has been
declared effective by the Commission, and the Shares have been registered under the Registration
Statement in compliance with the requirements for the use of Form S-3. Although the Base
Prospectus may not include all the information with respect to the Shares and the offering thereof
required by the Act and the rules and regulations of the Commission thereunder to be included in
the Prospectus, the Base Prospectus includes all such information required by the Act and the rules
and regulations of the Commission thereunder to be included therein as of the Effective Date. The
Company has complied to the Commission’s satisfaction with all requests of the Commission for
additional or supplemental information; and no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that purpose has been initiated or, to
the knowledge of the Company, threatened by the Commission. After the execution of this Agreement,
the Company will file with the Commission pursuant to Rules 415 and 424(b)(2) or (5) a final
supplement to the Base Prospectus included in such Registration Statement relating to the Shares
and the offering thereof, with such information as is required or permitted by the Act and as has
been provided to and approved by the Underwriters prior to the date hereof or, to the extent not
completed at the date hereof, containing only such specific additional information and other
changes (beyond that contained in the Base Prospectus and any Preliminary Prospectus) as the
Company has advised the Underwriters, prior to the date hereof, will be included or made therein.
If the Company has elected to rely on Rule 462(b) and the Rule 462(b) Registration Statement is not
effective, (x) the Company will file a Rule 462(b) Registration Statement in compliance with, and
that is effective upon filing pursuant to, Rule 462(b) and (y) the Company has given irrevocable
instructions for transmission of the applicable filing fee in connection with the filing of the
Rule 462(b) Registration Statement, in compliance with Rule 111 under the Act, or the Commission
has received payment of such filing fee.
(ii) No order preventing or suspending the use of any Preliminary Prospectus has been issued
by the Commission, and each Preliminary Prospectus, at the time of filing thereof, conformed in all
material respects to the requirements of the Act and the rules and regulations of the Commission
thereunder and did not contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Company by the Underwriters
expressly for use therein; there are no contracts or other documents required to be described in
the Prospectus or to be filed as exhibits to the Registration Statement which have not been
described or filed as required;
As used in this subsection and elsewhere in this Agreement:
“Applicable Time” means 7:00 p.m. (Eastern Time) on June 4, 2009.
“General Disclosure Package” means (i) the Preliminary Prospectus, if any, used most recently
prior to the Time of Delivery, (ii) the Issuer-Represented Free Writing Prospectuses, if any,
identified in Schedule II hereto and (iii) any other Free Writing Prospectus that the
parties
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hereto shall hereafter expressly agree in writing to treat as part of the General Disclosure
Package.
“Issuer-Represented Free Writing Prospectus” means any “issuer free writing prospectus,” as
defined in Rule 433 of the 1933 Act Regulations (“Rule 433”), relating to the Shares that (i) is
required to be filed with the Commission by the Company or (ii) is exempt from filing pursuant to
Rule 433(d)(5)(i) because it contains a description of the Shares or of the offering that does not
reflect the final terms, in each case in the form filed or required to be filed with the Commission
or, if not required to be filed, in the form retained in the Company’s records pursuant to Rule
433(g).
Each Issuer-Represented Free Writing Prospectus, when considered together with the General
Disclosure Package as of the Applicable Time, did not contain any untrue statement of material fact
or omit to state a material fact necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading and, did not, does not and will not include
any information that conflicted, conflicts or will conflict with the information contained in the
Registration Statement or the Prospectus, including any document incorporated by reference therein
and any preliminary or other prospectus deemed to be a part thereof that, in each case, has not
been superseded or modified.
(iii) The Preliminary Prospectus, the Prospectus and each Issuer-Represented Free Writing
Prospectus when filed, if filed by electronic transmission, pursuant to XXXXX (except as may be
permitted by Regulation S-T under the Act), was identical to the copy thereof delivered to the
Underwriters for use in connection with the offer and sale of the Shares; the Registration
Statement conforms, and the Prospectus and any further amendments or supplements to the
Registration Statement or the Prospectus will conform, in all material respects to the requirements
of the Act and the rules and regulations of the Commission thereunder and do not and will not, as
of the Effective Date, and as of the applicable filing date as to the Prospectus and any amendment
or supplement thereto, 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 shall not apply to any statements or
omissions made in reliance upon and in conformity with information furnished in writing to the
Company by the Underwriters expressly for use therein;
(iv) The documents which are incorporated or deemed to be incorporated by reference in the
Registration Statement or any Preliminary Prospectus or the Prospectus or from which information is
so incorporated by reference (the “Exchange Acts Reports”), when they became effective or were
filed with the Commission, as the case may be (or, if an amendment with respect to any such
documents was filed or became effective, when such amendment was filed or became effective),
complied in all material respects to the requirements of the Securities Exchange Act of 1934, as
amended (the “Exchange Act”), and the rules and regulations of the Commission thereunder, and, when
read together with the other information in the Prospectus, at the time the Registration Statement
became effective, at the time the Prospectus was issued, at the Applicable Time and at any Time of
Delivery (as defined below) did not and will not contain an untrue statement of a material fact or
omit to state a
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material fact required to be stated therein or necessary to make to the statements therein not
misleading;
(v) The financial statements, including the related schedules and notes, filed with the
Commission as a part of the Registration Statement and included in the Preliminary Prospectus and
the Prospectus (the “Financial Statements”) present fairly the consolidated financial position of
the Company and its subsidiaries as of and at the dates indicated and the results of their
operations and cash flows for the periods specified; such Financial Statements, unless otherwise
noted therein have been prepared in conformity with generally accepted accounting principles as
applied in the United States (“GAAP”) applied on a consistent basis throughout the periods
involved; no other financial statements or supporting schedules are required to be included in the
Registration Statement the Preliminary Prospectus and the Prospectus; the statement of income data,
balance sheet data and earnings per share data for the five fiscal years ended December 31, 2008 as
set forth in the Prospectus under the captions “Summary Selected Consolidated Financial
Information” fairly present the information therein on a basis consistent with that of the audited
financial statements contained in the Registration Statement, the Preliminary Prospectus and the
Prospectus; the income statement data and earnings per share data for the fiscal quarters ended
March 31, 2009 and balance sheet data as of March 31, 2009 as set forth in the Prospectus under the
captions “Summary Selected Consolidated Financial Information” fairly present the information
therein as a basis consistent with that of the unaudited financial statements contained in the
Registration Statement; to the extent applicable, all disclosures contained in the Prospectus
regarding “non-GAAP financial measures” as such term is defined by the rules and regulations of the
Commission comply with Regulation G of the Exchange Act, the rules and regulations promulgated by
the Commission thereunder and Item 10 of Regulation S-K under the Act;
(vi) Xxxxx Xxxxxx PLLC, the independent registered public accounting firm that certified the
financial statements of the Company and its subsidiaries, that are included in or incorporated by
reference into the Registration Statement and the Prospectus is an independent registered public
accounting firm as required by the Act and the rules and regulations of the Commission thereunder,
and such accountants are not in violation of the auditor independence requirements of the
Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”) and the related rules and regulations of the
Commission;
(vii) The statistical and market related data contained in the Prospectus and Registration
Statement are based on or derived from sources which the Company believes are reliable and
accurate;
(viii) This Agreement has been duly authorized, executed and delivered by the Company and,
when duly executed by the Representative, will constitute the valid and binding agreement of the
Company enforceable against the Company in accordance with its terms, except as enforcement thereof
may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating
to or affecting creditors’ rights generally or by general equitable principles and except as any
indemnification or contribution provisions thereof may be limited under applicable securities laws;
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(ix) Since the date of the latest audited financial statements included in the Registration
Statement and the Prospectus, (A) neither the Company nor any of its subsidiaries has sustained any
material loss or interference with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the Prospectus, and there has not
been any material change in the capital stock or long-term debt of the Company or any of its
subsidiaries or any material adverse change, or any development known to the Company that may
reasonably be expected to cause a material adverse change, in or affecting the general affairs,
management, earnings, business, properties, assets, consolidated financial position, business
prospects, stockholders’ equity or results of operations of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course of business and there
has been no effect with respect to the Company and its subsidiaries considered as one enterprise,
which would prevent, or be reasonably likely to prevent, the Company from consummating the
transaction contemplated by this Agreement (a “Material Adverse Effect”), (B) there have been no
transactions entered into by the Company or any of its subsidiaries, other than those in the
ordinary course of business, which are material with respect to the Company and its subsidiaries
considered as one enterprise, otherwise than as set forth or contemplated in the Registration
Statement and the Prospectus, and (C) except for quarterly dividends on the Common Stock and the
Series A preferred stock issued to the U. S. Department of the Treasury in amounts per share that
are consistent with past practice, there has been no dividend or distribution of any kind declared,
paid or made by the Company on any class of its capital stock, otherwise than as set forth or
contemplated in the Registration Statement and the Prospectus;
(x) The Company and its subsidiaries have good and marketable title in fee simple to all real
property and good and marketable title to all personal property owned by them, in each case free
and clear of all mortgages, pledges, security interests, claims, restrictions, liens, encumbrances
and defects except such as are described in the Registration Statement and the Prospectus or such
as do not materially affect the value of such property and do not interfere with the use made and
proposed to be made of such property by the Company and its subsidiaries; and any real property and
buildings held under lease by the Company and its subsidiaries are held by them under valid,
subsisting and enforceable leases with such exceptions as are not material and do not interfere
with the use made and proposed to be made of such property and buildings by the Company and its
subsidiaries, and neither the Company nor any Subsidiary has any written, or to the Company’s
knowledge, oral notice of any material claim of any sort that has been asserted by anyone adverse
to the rights of the Company or any subsidiary under any of the leases or subleases mentioned
above, or affecting or questioning the rights of the Company or such Subsidiary to the continued
possession of the leased or subleased premises under any such lease or sublease.
(xi) The Company is a registered bank holding company under the Bank Holding Company Act of
1956, as amended (“BHCA”) with respect to First Community Bank, N.A. (the “Bank”) and has been duly
incorporated and is validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, with the corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the Registration Statement and the
Prospectus and to enter into and perform its obligations under
6
this Agreement; the Company is duly qualified as a foreign corporation to transact business
and is in good standing in each other jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the conduct of business, except where the
failure to so qualify or to be in good standing would not reasonably be expected to result in a
Material Adverse Effect;
(xii) Each subsidiary of the Company has been duly incorporated and is validly existing as a
corporation, limited liability company, trust company, statutory business trust or bank in good
standing under the laws of the jurisdiction of its incorporation and has the corporate power and
authority to own, lease and operate its properties and to conduct its business as described in the
Registration Statement and the Prospectus and, in the case of the Bank, to enter into and perform
its obligations under this Agreement; each subsidiary of the Company is duly qualified as a foreign
corporation to transact business and is in good standing in each other jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of property or the conduct
of business, except for such jurisdictions where the failure to so qualify, or be in good standing,
would not, individually or in the aggregate, result in a Material Adverse Effect; all of the issued
and outstanding capital stock of each subsidiary has been duly authorized and validly issued, is
fully paid and nonassessable and is owned by the Company, directly or through subsidiaries; the
Company owns, directly or through subsidiaries, the issued and outstanding capital stock of each
subsidiary free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim;
the Company does not own or control, directly or indirectly, any corporation, association or other
entity other than the Bank, GreenPoint Insurance Group, Inc., a North Carolina corporation,
Investment Planning Consultants, a West Virginia corporation, Stone Capital Management, a Virginia
corporation, and FCBI Capital Trust, a Delaware statutory business trust; none of the outstanding
shares of capital stock or other equity interest of any subsidiary was issued in violation of the
preemptive or similar rights of any security holder or equity holder of such subsidiary; the
activities of the subsidiaries of the Bank are permitted to subsidiaries of a national banking
association and the deposit accounts of the Bank are insured up to the applicable limits by the
Federal Deposit Insurance Corporation (the “FDIC”);
(xiii) The Company has an authorized capitalization as set forth in the Prospectus under the
heading “Capitalization”, and all of the issued shares of capital stock of the Company have been
duly and validly authorized and issued, are fully paid and non-assessable and have been issued in
compliance with federal and state securities laws; none of the outstanding shares of Stock were
issued in violation of any preemptive rights, rights of first refusal or other similar rights to
subscribe for or purchase securities of the Company; the description of the Company’s stock option,
stock bonus and other stock plans or arrangements and the options or other rights granted
thereunder, set forth or incorporated by reference in the Prospectus, accurately and fairly
presents, in all material respects, the information required to be shown with respect to such
plans, arrangements, options and rights;
(xiv) The unissued Shares to be issued and sold by the Company to the Underwriters hereunder
have been duly and validly authorized and, when issued and delivered against payment therefor as
provided herein, will be duly and validly issued and fully paid and non-assessable and will conform
to the description of the Stock contained in the Registration
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Statement and the Prospectus and the issuance of the shares is not subject to the preemptive
or other similar rights of any security holder of the Company;
(xv) Except as described in the Registration Statement and the Prospectus, (A) there are no
outstanding rights (contractual or otherwise), warrants or options to acquire, or instruments
convertible into or exchangeable for, or agreements or understandings with respect to the sale or
issuance of, any shares of capital stock of or other equity interest in the Company; and (B) there
are no contracts, agreements or understandings between the Company and any person granting such
person the right to require the Company to file a Registration Statement under the Act or otherwise
register any securities the Company owned or to be owned by such person;
(xvi) The issue and sale of the Shares by the Company and the compliance by the Company with
all of the provisions of this Agreement and the consummation of the transactions herein
contemplated have been duly authorized by all necessary corporate action and do not and will not,
whether with or without the giving of notice or passage of time or both, conflict with or result in
a breach or violation of any of the terms or provisions of, or constitute a default or result in a
Repayment Event (as defined below) under, any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries is bound or to which any of the property or assets of
the Company or any of its subsidiaries is subject, nor will such action result in any violation of
the provisions of the certificate of incorporation, articles of association or charter (as
applicable) or bylaws of the Company or any of its subsidiaries or any statute or any order, rule
or regulation of any federal, state, local or foreign court, arbitrator, regulatory authority or
governmental agency (each a “Governmental Entity”) or body having jurisdiction over the Company or
any of its subsidiaries or any of their properties, except for these conflicts, breaches,
violations, defaults or Repayment Events that would not result in a Material Adverse Effect; and no
consent, approval, authorization, order, registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale of the Shares, the performance by
the Company of its obligations hereunder or the consummation by the Company of the transactions
contemplated by this Agreement, except the registration under the Act of the Shares and except as
may be required under the rules and regulations of the Nasdaq Global Select Market or the Financial
Industry Regulatory Authority (“FINRA”) and such consents, approvals, authorizations, registrations
or qualifications as may be required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Shares by the Underwriters. As used herein, a “Repayment Event”
means any event or condition that gives the holder of any note, debenture or other evidence of
indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase,
redemption or repayment of all or a portion of such indebtedness by the Company or any subsidiary;
(xvii) Neither the Company nor any of its subsidiaries is in violation of its articles of
incorporation, articles of association or charter (as applicable) or bylaws or in default in the
performance or observance of any obligation, agreement, covenant or condition contained in any
indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or
instrument to which it is a party or by which it or any of its properties may be
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bound or to which any of the property or assets of the Company or any subsidiary is subject
except for such defaults that would not result in a Material Adverse Effect;
(xviii) The statements set forth in the Prospectus under the caption “Description of Common
Stock,” insofar as they purport to constitute a summary of the terms of the capital stock of the
Company, and under the caption “Underwriting,” insofar as they purport to describe the provisions
of the laws and documents referred to therein, are accurate and complete;
(xix) Except as disclosed in the Registration Statement and the Prospectus, the Company and
its subsidiaries are conducting their respective businesses in compliance in all material respects
with all federal, state, local and foreign statutes, laws, rules, regulations, decisions,
directives and orders applicable to them (including, without limitation, all regulations and orders
of, or agreements with, the Federal Reserve Board (the “FRB”), the Office of the Comptroller of the
Currency (the “OCC”) and the FDIC), the Equal Credit Opportunity Act, the Fair Housing Act, the
Community Reinvestment Act, the Home Mortgage Disclosure Act, all other applicable fair lending
laws or other laws relating to discrimination and the Bank Secrecy Act and Title III of the USA
Patriot Act), and neither the Company nor any of its subsidiaries has received any written, or to
the Company’s knowledge, oral communication from any Governmental Entity asserting that the Company
or any of its subsidiaries is not in material compliance with any statute, law, rule, regulation,
decision, directive or order;
(xx) Except as disclosed in the Registration Statement and the Prospectus, there are no legal
or governmental actions or suits, investigations, inquiries or proceedings before or by any court
or Government Entity, now pending or, to the knowledge of the Company, threatened or contemplated,
to which the Company or any of its subsidiaries is a party or of which any property of the Company
or any of its subsidiaries is the subject (A) that is required to be disclosed in the Registration
Statement by the Act or by the rules and regulations of the Commission thereunder and not disclosed
therein or (B) which, if determined adversely to the Company or any of its subsidiaries, would,
individually or in the aggregate, have a Material Adverse Effect; all pending legal or governmental
proceedings to which the Company or any of its subsidiaries is a party or of which any of their
property is the subject, either individually or in the aggregate, which are not described in the
Registration Statement, including ordinary routine litigation incidental to their respective
businesses, would not have a Material Adverse Effect; and there are no contracts or documents of
the Company or any of its subsidiaries which would be required to be described in the Registration
Statement or to be filed as exhibits thereto by the Act or by the rules and regulations of the
Commission thereunder which have not been so described and filed;
(xxi) Each of the Company and its subsidiaries possess all permits, licenses, approvals,
consents and other authorizations of (collectively, “Governmental Licenses”), and has made all
filings, applications and registrations with, all Governmental Entities to permit the Company or
such subsidiary to conduct the business now operated by the Company or its subsidiaries; the
Company and its subsidiaries are in compliance with the terms and conditions of all such
Governmental Licenses, except where the failure so to comply would not, individually or in the
aggregate, have a Material Adverse Effect; all of the Governmental
9
Licenses are valid and in full force and effect, except where the invalidity of such
Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect
would not, individually or in the aggregate, have a Material Adverse Effect; and neither the
Company nor any of its subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses which, singly or in the aggregate, if
the subject of an unfavorable decision, ruling or finding, would result in a Material Adverse
Effect;
(xxii) Except as described in the Prospectus and except as would not, singly or in the
aggregate, result in a Material Adverse Effect, (A) neither the Company nor any of its subsidiaries
is in violation in any material respect of any federal, state or local statute, law, rule,
regulation, ordinance, code, policy or rule of common law or any judicial or administrative
interpretation thereof, including any judicial or administrative order, consent, decree or
judgment, relating to pollution or protection of human health, the environment (including, without
limitation, ambient air, surface water, groundwater, land surface or subsurface strata) or
wildlife, including, without limitation, laws and regulations relating to the release or threatened
release of chemicals, pollutants, contaminants, wastes, toxic substances, hazardous substances,
petroleum or petroleum products, asbestos-containing materials or mold (collectively, “Hazardous
Materials”) or to the manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of Hazardous Materials (collectively, “Environmental Laws”), (B) the Company
and its subsidiaries have all permits, authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with their requirements, and (C) there are no pending
or, to the Company’s knowledge, threatened administrative, regulatory or judicial actions, suits,
demands, demand letters, claims, liens, notices of noncompliance or violation, investigation or
proceedings relating to any Environmental Law against the Company or any of its subsidiaries.
(xxiii) The Company and each of its subsidiaries own or possess adequate rights to use or can
acquire on reasonable terms ownership or rights to use all material patents, patent applications,
patent rights, licenses, trademarks, service marks, trade names, trademark registrations, service
xxxx registrations, copyrights, know-how (including trade secrets and other unpatented and/or
unpatenable property or confidential information, systems or procedures and excluding generally
commercially available “off the shelf” software programs licensed pursuant to shrink wrap or “click
and accept” licenses) and licenses (collectively, “Intellectual Property”) necessary for the
conduct of their respective businesses, except where the failure to own or possess such rights
would not, individually or in the aggregate, result in a Material Adverse Effect, and have no
reason to believe that the conduct of their respective businesses will conflict with, and have not
received any notice of any claim of infringement or conflict with, any such rights of others or any
facts or circumstances that would render any Intellectual Property invalid or inadequate to protect
the interest of the Company or any of its subsidiaries therein, except where such infringement or
conflict (if the subject of any unfavorable decision, ruling or finding) or invalidity or
inadequacy, singly or in the aggregate, would result in a Material Adverse Effect;
(xxiv) No relationship, direct or indirect, exists between or among the Company or any of its
subsidiaries on the one hand, and the directors, officers, shareholders, customers or suppliers of
the Company or any of its subsidiaries on the other hand, which is
10
required to be described in the Registration Statement and the Prospectus by the Act or by the
rules and regulations of the Commission thereunder which has not been so described;
(xxv) The Company is not and, after giving effect to the offering and sale of the Shares and
after receipt of payment for the Shares and the application of such proceeds as described in the
Prospectus, will not be an “investment company” or an entity “controlled” by an “investment
company”, as such terms are defined in the Investment Company Act of 1940, as amended (the
“Investment Company Act”);
(xxvi) There is and has been no failure on the part of the Company or any of the Company’s
directors or officers, in their capacities as such, to comply in all material respects with any
provision of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations promulgated in connection
therewith (the “Xxxxxxxx-Xxxxx Act”), including Section 402 related to loans and Sections 302 and
906 related to certifications;
(xxvii) Neither the Company nor any of its subsidiaries, nor, to the knowledge of the Company,
any affiliates of the Company or its subsidiaries, has taken and will not take, directly or
indirectly, any action designed to or that might be reasonably expected to cause or result in
stabilization or manipulation of the price of the Stock to facilitate the sale or resale of the
Shares;
(xviii) Neither the Company nor any of its subsidiaries nor, to the Company’s knowledge, any
director, officer, employee or agent or other person associated with or acting on behalf of the
Company or any of its subsidiaries has (A) used any corporate funds for any unlawful contribution,
gift, entertainment or other unlawful expense relating to political activity; (B) made any direct
or indirect unlawful payment to any foreign or domestic government official or employee from
corporate funds; (C) violated or is in violation of any provision of the Foreign Corrupt Practices
Act of 1977; or (D) made any bribe, rebate, payoff, influence payment, kickback or other unlawful
payment;
(xxix) The Company and each of its subsidiaries maintains a system of internal accounting
controls sufficient to provide reasonable assurances that (A) transactions are executed in
accordance with management’s general or specific authorization; (B) transactions are recorded as
necessary to permit preparation of financial statements in conformity with GAAP and to maintain
accountability for assets; (C) access to assets is permitted only in accordance with management’s
general or specific authorization; and (D) the recorded accountability for assets is compared with
existing assets at reasonable intervals and appropriate action is taken with respect to any
differences. Since the end of the Company’s most recent audited fiscal year, there has been (x) no
material weakness in the Company’s internal control over financial reporting (whether or not
remediated) and (y) no change in the Company’s internal control over financial reporting that has
materially affected, or is reasonably likely to materially affect, the Company’s internal control
over financial reporting;
(xxx) The Company has established and maintains disclosure controls and procedures (as such
term is defined in Rule 13a-15(e) and 15d-15(e) under the Exchange
11
Act), which (A) are designed to ensure that information required to be disclosed by the
Company in the reports that it files or submits under the 1934 Act is recorded, processed,
summarized and reported within the time periods specified in the Commission’s rules and forms and
that material information relating to the Company and its subsidiaries is made known to the
Company’s principal executive officer and principal financial officer by others within the Company
and its subsidiaries to allow timely decisions regarding disclosure, and (B) are effective in all
material respects to perform the functions for which they were established. Based on the
evaluation of the Company’s and each subsidiary’s disclosure controls and procedures described
above, the Company is not aware of (x) any significant deficiency in the design or operation of
internal controls which could adversely affect the Company’s ability to record, process, summarize
and report financial data or any material weaknesses in internal controls or (y) any fraud, whether
or not material, that involves management or other employees who have a significant role in the
Company’s internal controls. Since the most recent evaluation of the Company’s disclosure controls
and procedures described above, there have been no significant changes in internal controls or in
other factors that could significantly affect internal controls.
(xxxi) Neither the Company nor any of its subsidiaries is subject or is party to, or has
received any notice or advice that any of them may become subject or party to any investigation
with respect to, any corrective, suspension or cease-and-desist order, agreement, memorandum of
understanding, consent agreement or other regulatory enforcement action, proceeding or order with
or by, or is a party to any commitment letter or similar undertaking to, or is subject to any
directive by, or has been a recipient of any supervisory letter from, or has adopted any board
resolutions at the request of, any Governmental Entity charged with the supervision or regulation
of depository institutions or engaged in the insurance of deposits (including the FDIC) or the
supervision or regulation of the Company or any of its subsidiaries that currently relates to or
restricts in any material respect their business or their management (each, a “Regulatory
Agreement”), nor has the Company or any of its subsidiaries been advised by any such Governmental
Entity that it is considering issuing or requesting any such Regulatory Agreement; there is no
unresolved violation, criticism or exception by any such Governmental Entity with respect to any
report or statement relating to any examinations of the Company or any of its subsidiaries which,
in the reasonable judgment of the Company, currently results in or is expected to result in a
Material Adverse Effect;
(xxxii) Any “employee benefit plan” (as defined under the Employee Retirement Income Security
Act of 1974, as amended, and the regulations and published interpretations thereunder
(collectively, “ERISA”)) established or maintained by the Company, its subsidiaries or their “ERISA
Affiliates” (as defined below) are in compliance with ERISA, except where the failure to be in
compliance with ERISA would not result in a Material Adverse Effect; “ERISA Affiliate” means, with
respect to the Company or a subsidiary, any member of any group of organizations described in
Section 414(b), (c), (m) or (o) of the Internal Revenue Code of 1986, as amended, and the
regulations and published interpretations thereunder (the “Code”) of which the Company or such
subsidiary is a member; no “reportable event” (as defined under ERISA) has occurred or is
reasonably expected to occur with respect to any “employee benefit plan” established or maintained
by the Company, its subsidiaries or any of their ERISA Affiliates; no “employee benefit plan”
established or maintained by the Company, its subsidiaries or any of their ERISA Affiliates, if
such “employee benefit plan” were
12
terminated, would have any “amount of unfunded benefit liabilities” (as defined under ERISA);
none of the Company, its subsidiaries nor any of their ERISA Affiliates has incurred or reasonably
expects to incur any liability under (A) Title IV of ERISA with respect to termination of, or
withdrawal from, any “employee benefit plan” or (B) Sections 412, 4971, 4975 or 4980B of the Code;
each “employee benefit plan” established or maintained by the Company, its subsidiaries or any of
their ERISA Affiliates that is intended to be qualified under Section 401(a) of the Code has
received a favorable determination or approval letter from the Internal Revenue Service regarding
its qualification under such section and nothing has occurred whether by action or failure to act,
which would reasonably be expected to cause the loss of such qualification;
(xxxiii) The Company and its subsidiaries, taken as a whole, are insured by insurers of
recognized financial responsibility against such losses and risks and in such amounts as are
prudent and customary in the business in which they are engaged; and neither the Company nor any of
its subsidiaries has any reason to believe that it will not be able to renew its existing insurance
coverage from similar insurers as may be necessary to continue its business at a cost that would
not have a Material Adverse Effect; neither the Company nor any subsidiary has been denied any
insurance coverage which it has sought or for which it has applied;
(xxxiv) Except as disclosed in the Registration Statement and the Prospectus, there are no
contracts, agreements or understandings between the Company and any person that would give rise to
a valid claim against the Company, or the Underwriter, for a brokerage commission, finder’s fee or
other like payment;
(xxxv) The Company and its consolidated subsidiaries and its other subsidiaries have filed all
necessary federal, state and foreign income and franchise tax returns or have properly requested
extensions thereof, all such tax returns are true, complete and correct and have paid all taxes
required to be paid by any of them; the Company has made adequate charges, accruals and reserves in
the applicable financial statements referred to in Section 1(a)(v) above in respect of all federal,
state and foreign income and franchise taxes for all periods as to which the tax liability of the
Company or any of its consolidated subsidiaries or any of its other subsidiaries has not been
finally determined;
(xxxvi) No labor dispute with the employees of the Company or any subsidiary exists or, to the
knowledge of the Company, is imminent, which, in any case, may reasonably be expected to result in
a Material Adverse Effect;
(xxxvii) Except as disclosed in the Registration Statement and the Prospectus, the operations
of the Company and its subsidiaries are and have been conducted at all times in compliance in all
material respects with applicable financial recordkeeping and reporting requirements of the
Currency and Foreign Transactions Reporting Act of 1970, as amended, money laundering statutes
applicable to the Company and its subsidiaries, the rules and regulations thereunder and any
related or similar rules, regulations or guidelines, issued, administered or enforced by any
governmental agency (collectively, the “Money Laundering Laws”);
13
(xxxviii) Each subsidiary of the Company which is engaged in the business of acting as an
insurance agency (an “Insurance Subsidiary” ) is duly licensed or registered with any applicable
regulatory authorities in each jurisdiction where it is required to be so licensed or registered to
conduct its business, except where the failure to be so licensed or registered would not have a
Material Adverse Effect; each Insurance Subsidiary has all other necessary approvals of and from
all applicable regulatory authorities, to conduct its businesses, except where the failure to have
such approvals would not have a Material Adverse Effect; no Insurance Subsidiary has received any
notification from any applicable regulatory authority to the effect that any additional approvals
from such regulatory authority are needed to be obtained by such subsidiary and have not been
obtained, in any case where it could be reasonably expected that the Insurance Subsidiary will be
unable to obtain such additional approvals and the failure to obtain any such additional approvals
would require such subsidiary to cease or otherwise materially limit the conduct of its business;
and each Insurance Subsidiary is in compliance with the requirements of insurance laws and
regulations of each jurisdiction that are applicable to such subsidiary, except where the failure
to be in compliance with such requirements would not, individually or in the aggregate, have a
Material Adverse Effect, and has filed all notices, reports, documents or other information
required to be filed thereunder, except where such failure to file would not have, individually or
in the aggregate, a Material Adverse Effect.
(xxxix) (a) The Company has entered into an Agreement and Plan of Merger (the “Merger
Agreement”), dated April 2, 2009, by and among the Company, the Bank and Tristone Community Bank
(“Target”) pursuant to which, among other things, the Target will merge with and into the Bank
(the “Merger”). In connection with the Merger, the Company conducted a “due diligence” review of
the business, financial condition, results of operations and business prospects of the Target and
its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of
business. Based upon the Company’s review, with respect to the Target or the Merger, nothing has
come to the Company’s attention that caused it to believe that the Registration Statement, any
Preliminary Prospectus, the Final Prospectus or the General Disclosure package 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, in light of the circumstances under which they were made,
not misleading.
(b) To the knowledge of the Company without independent investigation, as of the date hereof,
(i) the representations and warranties made in the Merger Agreement and related disclosure
schedules were true and correct as of the date of the Merger Agreement and are true and correct on
the date hereof (except that representations and warranties that by their terms speak as of some
other date were true and correct as of such date), and (ii) the covenants and other agreements set
forth in the Merger Agreement have not been breached, in a manner such that, with respect to either
clause (i) or (ii) hereof, any party to the Merger Agreement has the right to terminate such
agreement.
(xl) The Registration Statement is not the subject of a pending proceeding or examination
under Section 8(d) or 8(e) of the Act, and the Company is not the
14
subject of a pending proceeding under Section 8A of the Act in connection with the offering of
the Shares;
(xli) No person has the right to require the Company or any of its subsidiaries to register
any securities for sale under the Act by reason of the filing of the Registration Statement with
the Commission or the issuance and sale of the Shares to be sold by the Company hereunder.
(xlii) The Company has not distributed and, prior to the later to occur of (i) the Time of
Delivery, as hereinafter defined, and (ii) completion of the distribution of the Shares, will not
distribute any prospectus (as such term is defined in the Act and the rules and regulations
promulgated by the Commission thereunder) in connection with the offering and sale of the Shares
other than the Registration Statement, any Preliminary Prospectus, the Prospectus or other
materials, if any, permitted by the Act or by the rules and regulations promulgated by the
Commission thereunder and approved by the Underwriters;
(xliii) No forward-looking statement (within the meaning of Section 27A of the Act and Section
21E of the Exchange Act) contained in the Registration Statement, the Prospectus and any
Issuer-Represented Free Writing Prospectus has been made or reaffirmed without a reasonable basis
or has been disclosed other than in good faith;
(xliv) Each of the Company’s executive officers and directors and certain stockholders, in
each case as listed on Schedule III hereto, has executed and delivered a lock-up agreement
substantially in the form of Exhibit A;
(xlv) Neither the Company nor any of its subsidiaries has participated in any reportable
transaction, as defined in Treasury Regulation Section 1.6011-(4)(b)(1);
(xlvi) Each of the Company and its subsidiaries has good and marketable title to all
securities held by it (except securities sold under repurchase agreements or held in any fiduciary
or agency capacity) free and clear of any lien, claim, charge, option, encumbrance, mortgage,
pledge or security interest or other restriction of any kind, except to the extent such securities
are pledged in the ordinary course of business consistent with prudent business practices to secure
obligations of the Company or any of its subsidiaries and except for such defects in title or
liens, claims, charges, options, encumbrances, mortgages, pledges or security interests or other
restrictions of any kind that would not, individually or in the aggregate, result in a Material
Adverse Effect. Such securities are valued on the books of the Company and its subsidiaries in
accordance with GAAP; and
(xlvii) Any and all material swaps, caps, floors, futures, forward contracts, option
agreements (other than employee stock options) and other derivative financial instruments,
contracts or arrangements, whether entered into for the account of the Company or one of its
subsidiaries or for the account of a customer of the Company or one of its subsidiaries, were
entered into in the ordinary course of business and in accordance with prudent business practice
and applicable laws, rules, regulations and policies of all applicable regulatory agencies and with
counterparties believed to be financially responsible at the time. The Company and
15
each of its subsidiaries have duly performed all of their obligations thereunder to the extent
that such obligations to perform have accrued, and there are no breaches, violations or defaults or
allegations or assertions of such by any party thereunder, except for such breaches, violations,
defaults, allegations or assertions that, individually or in the aggregate, would not result in a
Material Adverse Effect.
(b) The Bank represents and warrants to, and agrees with, the Underwriters that:
(i) The Bank has been duly chartered and is validly existing as a national banking association
in good standing under the laws of the jurisdiction of its organization, with the corporate power
and authority to own, lease and operate its properties and to conduct its business as described in
the Prospectus and to enter into and perform its obligations under this Agreement; the Bank is duly
qualified as a foreign corporation to transact business and is in good standing in each other
jurisdiction in which such qualification is required, whether by reason of the ownership or leasing
of property or the conduct of business, except where the failure to so qualify or to be in good
standing would not reasonably be expected to result in a Material Adverse Effect;
(ii) Neither the Bank nor any of its subsidiaries is in violation of its articles of
association or certificate of incorporation (as applicable) or bylaws or in default in the
performance or observance of any obligation, agreement, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement, note, lease or other agreement or instrument to
which it is a party or by which it or any of its properties may be bound or to which any of the
property or assets of the Bank or any subsidiary is subject except for such defaults that would not
result in a Material Adverse Effect;
(iii) This Agreement has been duly authorized, executed and delivered by the Bank and, when
duly executed by the Underwriters, will constitute the valid and binding agreement of the Bank
enforceable against the Bank in accordance with its terms, except as enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or
affecting creditors’ rights generally or by general equitable principles and except as any
indemnification or contribution provisions thereof may be limited under applicable securities laws;
and
(iv) The execution, delivery and performance of this Agreement by the Bank and the compliance
by the Bank with all of the provisions of this Agreement and the consummation of the transactions
herein contemplated have been duly authorized by all necessary corporate action and do not and will
not whether with or without the giving of notice or passage or time or both conflict with or result
in a breach or violation of any of the terms or provisions of, or constitute a default or result in
a Repayment Event under, any indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which the Bank or any of its subsidiaries is a party or by which the Bank or any
of its subsidiaries is bound or to which any of the property or assets of the Bank or any of its
subsidiaries is subject, nor will such action result in any violation of the provisions of the
certificate of incorporation or charter (as applicable) or bylaws of the Bank or any statute or any
order, rule or regulation of any
16
Governmental Entity having jurisdiction over the Bank or any of its subsidiaries or any of
their properties, except for those conflicts, breaches, violations, defaults or Repayment Events
that would not result in a Material Adverse Effect.
(c) Any certificate signed by an officer of the Company or the Bank and delivered to the
Underwriters or to counsel for the Underwriters shall be deemed to be a representation and warranty
by the Company or the Bank, as the case may be, to the Underwriters as to the matters set forth
therein.
2. Subject to the terms and conditions herein set forth, (a) the Company agrees to issue and
sell to the Underwriters, and the Underwriters agree, to purchase from the Company, at a purchase
price per share of $11.75, the Firm Shares as set forth in Schedule I hereto and (b) in the event
and to the extent that any of the Underwriters shall exercise its election to purchase Optional
Shares as provided below, the Company agrees to issue and sell to such Underwriter, and such
Underwriter agrees to purchase from such Company, at the purchase price per share set forth in
clause (a) of this Section 2, the Optional Shares.
Subject to the terms and conditions herein set forth, the Company hereby grants to the
Underwriters the right to purchase at their election up to 690,000 Optional Shares, at the purchase
price per share set forth in clause (a) of the paragraph above, for the sole purpose of covering
sales of shares in excess of the number of Firm Shares. Any such election to purchase Optional
Shares may be exercised only by written notice from the Representative to the Company, given within
a period of 30 calendar days after the date of this Agreement, setting forth the aggregate number
of Optional Shares to be purchased, the number of Optional Shares to be purchased by each
Underwriter and the date on which such Optional Shares are to be delivered, as determined by the
Underwriters but in no event earlier than the First Time of Delivery (as defined in Section 4
hereof) or, unless the Underwriters and the Company otherwise agree in writing, no earlier than two
or later than ten business days after the date of such notice.
3. Upon the authorization by the Company of the release of the Firm Shares, the Underwriters
propose to offer the Firm Shares for sale upon the terms and conditions set forth in the
Prospectus.
4. (a) The Shares to be purchased by the Underwriters hereunder, in definitive form, and in
such authorized denominations and registered in such names as the Underwriters may request upon at
least 48 hours’ prior notice to the Company, shall be delivered by or on behalf of the Company to
the Underwriters through the facilities of the Depository Trust Company (“DTC”), for the account of
the Underwriters, against payment by or on behalf of the Underwriters of the purchase price
therefor by wire transfer of Federal (same day) funds to the account specified by the Company to
the Underwriters at least 48 hours in advance. The Company will cause the certificates
representing the Shares to be made available for checking and packaging at least 24 hours prior to
the Time of Delivery (as defined below) with respect thereto at the office of DTC or its designated
custodian (the “Designated Office”). The time and date of such delivery and payment shall be, with
respect to the Firm Shares, 10:00 a.m., Eastern time, on June 10, 2009 or such other time and date
as the Underwriters and the
17
Company may agree upon in writing, and, with respect to the Optional Shares, 10:00 a.m., New
York time, on the date specified by the Underwriters in the written notice given by the
Representative of the election to purchase such Optional Shares, or such other time and date as the
Underwriters and the Company may agree upon in writing. Such time and date for delivery of the
Firm Shares is herein called the “First Time of Delivery,” such time and date for delivery of the
Optional Shares, if not the First Time of Delivery, is herein called the “Second Time of Delivery,”
and each such time and date for delivery is herein called a “Time of Delivery.”
(b) The documents to be delivered at each Time of Delivery by or on behalf of the parties
hereto pursuant to Section 7 hereof, including the cross receipt for the Shares and any additional
documents requested by the Underwriters pursuant to Section 7(l) hereof, will be delivered at the
offices of Elias, Matz, Xxxxxxx & Xxxxxxx L.L.P., 000 00xx Xxxxxx, X.X., Xxxxx 0000,
Xxxxxxxxxx, X.X. 00000 (the “Closing Location”), and the Shares will be delivered at the
Designated Office, all at such Time of Delivery. A meeting will be held at the Closing Location at
10:00 a.m., Eastern Time, on the New York Business Day next preceding such Time of Delivery, at
which meeting the final drafts of the documents to be delivered pursuant to the preceding sentence
will be available for review by the parties hereto. For the purposes of this Section 4, “New York
Business Day” shall mean each Monday, Tuesday, Wednesday, Thursday and Friday, which is not a day
on which banking institutions in New York are generally authorized or obligated by law or executive
order to close.
5. The Company agrees with the Underwriters:
(a) To prepare the Prospectus in a form approved by the Underwriters and to file such
Prospectus pursuant to Rule 424(b) under the Act not later than the Commission’s close of business
on the second business day following the execution and delivery of this Agreement, or, if
applicable, such earlier time as may be required by Rule 430A(a)(3) under the Act; to make no
further amendment or any supplement to the Registration Statement or the Prospectus which shall be
disapproved by the Underwriters promptly after reasonable notice thereof; to advise the
Underwriters, promptly after it receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any supplement to the Prospectus or
any amended Prospectus has been filed and to furnish the Underwriters with copies thereof; to
advise the Underwriters, promptly after it receives notice thereof, of the issuance by the
Commission of any stop order or of any order preventing or suspending the use of any Preliminary
Prospectus or Prospectus, of the suspension of the qualification of the Shares for offering or sale
in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of
any request by the Commission for the amending or supplementing of the Registration Statement or
the Prospectus or for additional information; and, in the event of the issuance of any stop order
or of any order preventing or suspending the use of any Preliminary Prospectus or prospectus or
suspending any such qualification, promptly to use its best efforts to obtain the withdrawal of
such order;
(b) Promptly from time to time to take such action as the Underwriters may reasonably request
to qualify the Shares for offering and sale under the securities laws of such jurisdictions as the
Underwriters may request and to comply with such laws so as to permit the continuance of sales and
dealings therein in such jurisdictions for as long as may be necessary to complete the distribution
of the Shares, provided that in connection therewith the Company shall
18
not be required to qualify as a foreign corporation or to file a general consent to service of
process in any jurisdiction;
(c) Prior to 10:00 a.m., Eastern Time, on the New York Business Day next succeeding the date
of this Agreement and from time to time, to furnish the Underwriters with copies of the Prospectus
in New York City in such quantities as the Underwriters may from time to time reasonably request,
and, if the delivery of a prospectus is required at any time prior to the expiration of nine months
after the time of issue of the Prospectus in connection with the offering or sale of the Shares and
if at such time any event shall have occurred as a result of which the Prospectus as then amended
or supplemented would include an untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the circumstances under
which they were made when such Prospectus is delivered, not misleading, or, if for any other reason
it shall be necessary during such period to amend or supplement the Prospectus in order to comply
with the Act, to notify the Underwriters and upon the Underwriters’ request to prepare and furnish
without charge to each Underwriter and to any dealer in securities as many copies as the
Underwriters may from time to time reasonably request of an amended Prospectus or a supplement to
the Prospectus which will correct such statement or omission or effect such compliance, and in case
the Underwriters are required to deliver a prospectus in connection with sales of any of the Shares
at any time nine months or more after the time of issue of the Prospectus, upon the Underwriters’
request but at the expense of the Underwriters, to prepare and deliver to the Underwriters as many
copies as they may request of an amended or supplemented Prospectus complying with Section 10(a)(3)
of the Act;
(d) To make generally available to its securityholders as soon as practicable, an earnings
statement of the Company and its subsidiaries (which need not be audited) complying with Section
11(a) of the Act and the rules and regulations thereunder (including, at the option of the Company,
Rule 158);
(e) During the period beginning from the date hereof and continuing to and including the date
90 days after the date of the Prospectus, not to directly or indirectly, offer, sell, contract or
grant any option to sell, pledge, transfer or establish an open “put equivalent position” within
the meaning of Rule 16a-l(h) under the Exchange Act, or otherwise dispose of or transfer, or
announce the offering of, or file a registration statement under the Act in respect of, except as
provided hereunder, any securities of the Company that are substantially similar to the Shares,
including but not limited to any securities that are convertible into or exchangeable for, or that
represent the right to receive, Stock or any such substantially similar securities, without your
prior written consent; provided, however, that if: (1) during the last 17 days of such 90-day
period the Company issues an earnings release or material news or a material event relating to the
Company occurs; or (2) prior to the expiration of such 90-day period, the Company announces that it
will release earnings results during the 16-day-period beginning on the last day of such 90-day
period, the restrictions imposed by this Section 5(e) shall continue to apply until the expiration
of the 18-day period beginning on the issuance of the earnings release or the occurrence of the
material news or material event. The foregoing sentence shall not apply to (A) the Shares to be
sold hereunder, (B) any shares of Stock issued by the Company upon the exercise of an option or
warrant or the conversion of a security outstanding on the date hereof
19
and referred to in the Prospectus, (C) any shares of Stock issued or options to purchase Stock
granted pursuant to existing employee benefit plans of the Company or (D) any shares of Stock
issued by the Company in connection with an acquisition by or merger of the Company;
(f) During a period of five years from the effective date of the Registration Statement, to
make available on XXXXX or furnish to the Underwriters copies of all reports or other
communications (financial or other) furnished to stockholders, and to deliver to the Underwriters
(i) as soon as they are available, copies of any reports and financial statements furnished to or
filed with the Commission or any national securities exchange on which any class of securities of
the Company is listed; and (ii) such additional information concerning the business and financial
condition of the Company as the Underwriters may from time to time reasonably request (such
financial statements to be on a consolidated basis to the extent the accounts of the Company and
its subsidiaries are consolidated in reports furnished to its stockholders generally or to the
Commission);
(g) To use the net proceeds received by it from the sale of the Shares pursuant to this
Agreement in the manner specified in the Prospectus under the caption “Use of Proceeds”;
(h) If the Company elects to rely on Rule 462(b), the Company shall file a Rule 462(b)
Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 p.m., Eastern
time on the date of this Agreement, and the Company shall at the time of filing either pay to the
Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable
instructions for the payment of such fee pursuant to Rule 111(b) under the Act;
(i) To use its best efforts to list for quotation the Shares on the Nasdaq Global Select
Market;
(j) Until completion of the distribution of the Shares, the Company will file all documents
required to be filed with the Commission pursuant to the Exchange Act within the time periods
required by the Exchange Act and the rules and regulations of the Commission thereunder; and
(k) That unless it obtains the prior consent of the Underwriters, and the Underwriters
represent and agree that, unless it obtains the prior consent of the Company, they have not made
and will not make any offer relating to the Shares that would constitute an Issuer-Represented Free
Writing Prospectus and have complied and will comply with the requirements of Rule 433 applicable
to any Issuer-Represented Free Writing Prospectus, including where and when required timely filing
with the Commission, legending and record keeping. The Company represents that it has satisfied
and agrees that it will satisfy the conditions in Rule 433 to avoid a requirement to file with the
Commission any electronic road show.
6. The Company covenants and agrees with the Underwriters that the Company will pay or cause
to be paid the following, whether or not the transactions contemplated herein are completed: (i)
the reasonable out-of-pocket expenses incurred by the Underwriters in connection with the
transactions contemplated hereby, including, without limitation, disbursements, fees and expenses
of Underwriter’s counsel and marketing, syndication and travel expenses up to a
20
maximum of $100,000 without prior approval of the Company, and, in excess of $100,000 only
with the prior consent of the Company, which consent shall not be unreasonably withheld; (ii) the
fees, disbursements and expenses of the Company’s counsel and accountants in connection with the
registration of the Shares under the Act and all other expenses in connection with the preparation,
printing and filing of amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (iii) the cost of printing or producing any agreement
among Underwriters this Agreement, the Blue Sky survey, closing documents (including any
compilations thereof) and any other documents in connection with the offering, purchase, sale and
delivery of the Shares; (iv) all expenses in connection with the qualification of the Shares for
offering and sale under state securities as provided in Section 5(b) hereof, including the fees and
disbursements of counsel for the Underwriters in connection with such qualification and in
connection with the Blue Sky survey (which fees of counsel in connection herewith are included in
the maximum payment of the Underwriters’ expenses set forth in clause (i), above); (v) all fees and
expenses in connection with listing the Shares on the Nasdaq Global Select Market; (vi) the filing
fees incident to, and the fees and disbursements of counsel for the Underwriter in connection with,
securing any required review by the FINRA of the terms of the sale of the Shares (which fees of
counsel in connection herewith are included in the maximum payment of the Underwriters’ expenses
set forth in clause (i) above); (vii) the cost of preparing stock certificates; (viii) the cost and
charges of any transfer agent or registrar; (ix) the costs and expenses of the Company relating to
investor presentations on any “road show” undertaken in connection with the marketing of the
Shares, including without limitation, expenses associated with the production of road show slides
and graphics, fees and expenses of any consultants engaged in connection with the road show
presentations, travel and lodging expenses of the representatives and officers of the Company and
any such consultants, and the cost of aircraft and other transportation chartered in connection
with the road show with the consent of the Company; and (x) all other costs and expenses incident
to the performance of its obligations hereunder which are not otherwise specifically provided for
in this Section.
7. The obligations of the Underwriters hereunder, as to the Shares to be delivered at each
Time of Delivery, shall be subject, in their discretion, to the condition that all representations
and warranties and other statements of the Company herein are, at and as of such Time of Delivery,
true and correct, the condition that the Company shall have performed all of its obligations
hereunder theretofore to be performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) within
the applicable time period prescribed for such filing by the rules and regulations under the Act
and in accordance with Section 5(a) hereof (or a post-effective amendment shall have been filed and
declared effective in accordance with the requirements of Rule 430A); if the Company has elected to
rely upon Rule 462(b), the Rule 462(b) Registration Statement shall have become effective by 10:00
p.m., Eastern Time, on the date of this Agreement; no stop order suspending the effectiveness of
the Registration Statement or any part thereof shall have been issued and no proceeding for that
purpose shall have been initiated or threatened by the Commission; and all requests for additional
information on the part of the Commission shall have been complied with to your reasonable
satisfaction; and the FINRA shall have raised no objection to the fairness and reasonableness of
the underwriting terms and arrangements;
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(b) Elias, Matz, Xxxxxxx & Xxxxxxx L.L.P. shall have furnished to the Underwriters such
written opinion or opinions, dated such Time of Delivery, with respect to such matters as the
Underwriters may reasonably request, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon such matters;
(c) Xxxxxx X. Xxxxxxxxxx, General Counsel to the Company, shall have furnished to the
Underwriters his written opinion, dated such Time of Delivery, in form and substance satisfactory
to the Underwriters, to the effect set forth in Appendix A hereto;
(d) Xxxxxx Xxxxx LLP shall have furnished to the Underwriters their written opinion, dated
such Time of Delivery, in form and substance reasonably satisfactory to the Underwriters, to the
effect set forth in Appendix B;
(e) On the date of the Prospectus at a time prior to the execution of this Agreement, on the
effective date of any post-effective amendment to the Registration Statement filed subsequent to
the date of this Agreement and also at each Time of Delivery, Xxxxx Xxxxxx PLLC shall have
furnished to the Underwriters a letter or letters, dated the respective dates of delivery thereof,
in form and substance satisfactory to you, containing statements and information of the type
ordinarily included in accountants “comfort letters” to underwriters with respect to the financial
statements of the Company and certain financial information contained in the Prospectus;
(f) At Closing Time, Xxxxx Xxxxxx PLLC shall have delivered a letter, dated as of the Closing
Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to
subsection (e) of this Section, except that the specified date referred to shall be a date not more
than three business days prior to the Effective Date;
(g) (i) Neither the Company nor any of its subsidiaries shall have sustained since the date of
the latest audited financial statements included in the Prospectus any loss or interference with
its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or
from any labor dispute or court or governmental action, order or decree, otherwise than as set
forth or contemplated in the Prospectus, and (ii) since the respective dates as of which
information is given in the Prospectus there shall not have been any change in the capital stock or
long-term debt of the Company or any of its subsidiaries or any change, or any development
involving a prospective change, in or affecting the general affairs, management, financial
position, stockholders’ equity or results of operations of the Company and its subsidiaries,
otherwise than as set forth or contemplated in the Prospectus, the effect of which, in any such
case described in clause (i) or (ii), is in the judgment of the Underwriters so material and
adverse as to make it impracticable or inadvisable to proceed with the public offering or the
delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner
contemplated in the Prospectus;
(h) On or after the date hereof (i) no downgrading shall have occurred in the rating accorded
the Company’s debt securities by any “nationally recognized statistical rating organization,” as
that term is defined by the Commission for purposes of Rule 436(g)(2) under
22
the Act, and (ii) no such organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating of any of the Company’s
debt securities;
(i) On or after the date hereof there shall not have occurred any of the following: (i) a
suspension or material limitation in trading in securities generally on the New York Stock Exchange
or on the Nasdaq Stock Market; (ii) a suspension or material limitation in trading in the Company’s
securities on the Nasdaq Stock Market; (iii) a general moratorium on commercial banking activities
declared by either Federal or New York authorities or a material disruption in commercial banking
or securities settlement or clearance services in the United States; (iv) the outbreak or
escalation of hostilities involving the United States or the declaration by the United States of a
national emergency or war; or (v) the occurrence of any other calamity or crisis or any change in
financial, political or economic conditions in the United States or elsewhere, including without
limitation, as a result of terrorist activities occurring after the date hereof, if the effect of
any such event specified in clause (iv) or (v), in the judgment of the Underwriters makes it
impracticable or inadvisable to proceed with the public offering or the delivery of the Shares
being delivered at such Time of Delivery on the terms and in the manner contemplated in the
Prospectus;
(j) The Shares to be sold at such Time of Delivery shall have been duly listed for quotation
on the Nasdaq Global Select Market;
(k) The Company has obtained and delivered to the Underwriters executed copies of an agreement
from each officer and director and certain stockholders, in each case as listed on Schedule III
hereto of the Company, substantially in the form of Exhibit A;
(l) The Company shall have complied with the provisions of Section 5(c) hereof with respect to
the furnishing of prospectuses on the New York Business Day next succeeding the date of this
Agreement; and
(m) The Company shall have furnished or caused to be furnished to the Underwriters at such
Time of Delivery certificates of officers of the Company satisfactory to the Underwriters as to the
accuracy of the representations and warranties of the Company herein at and as of such Time of
Delivery, as to the performance by the Company of all of its obligations hereunder to be performed
at or prior to such Time of Delivery, as to the matters set forth in subsections (a) and (g) of
this Section and as to such other matters as the Underwriters may reasonably request.
If any condition specified in this Section shall not have been fulfilled when and as required
to be fulfilled, this Agreement may be terminated by the Underwriters by notice to the Company at
any time on or prior to the Time of Delivery. If the sale of the Shares provided for herein is not
consummated because any condition set forth in this Section 7 is not satisfied, because of any
termination pursuant to Section 10(a) hereof, or because of any refusal, inability or failure on
the part of the Company to perform any agreement herein or comply with any provision hereof, the
Company will reimburse the Underwriters upon demand for all documented
23
out-of-pocket expenses (including reasonable fees and disbursements of counsel) that shall
have been incurred by the Underwriters in connection with the proposed offering of the Shares. In
addition, such termination shall be subject to Section 6 hereof, and Sections 1, 8 and 9 hereof
shall survive any such termination and remain in full force and effect.
8. (a) The Company and the Bank, jointly and severally, will indemnify and hold harmless each
Underwriter, each person, if any who controls any Underwriter, within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act, and its respective partners, directors, officers,
employees and agents against any losses, claims, damages or liabilities, joint or several, to which
the Underwriter may become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus,
the Registration Statement or the Prospectus, or any amendment or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading, and will reimburse
the Underwriter for any legal or other expenses reasonably incurred by the Underwriter in
connection with investigating or defending any such action or claim as such expenses are incurred;
provided, however, that the Company and the Bank shall 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 any Preliminary Prospectus, the
Registration Statement or the Prospectus or any such amendment or supplement in reliance upon and
in conformity with written information furnished to the Company by the Underwriters expressly for
use therein (provided that the Company, the Bank and the Underwriters hereby acknowledge and agree
that the only information that the Underwriters have furnished to the Company specifically for
inclusion in the Registration Statement, any Preliminary Prospectus (or any amendment or supplement
thereto) are the share allocation, concession and reallowance figures appearing in the Prospectus
in the section entitled “Underwriting”). Notwithstanding the foregoing, the indemnification
provided for in this paragraph (a) shall not apply to the Bank to the extent that such
indemnification by the Bank is found in a final judgment by a court of competent jurisdiction to
constitute a covered transaction under Section 23A of the Federal Reserve Act.
(b) The Underwriters will indemnify and hold harmless the Company, its officers, directors and
each person, if any, who controls the Company, within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, against any losses, claims, damages or liabilities to which the
Company may become subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or any amendment or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in any Preliminary Prospectus, the Registration Statement or the
Prospectus or any such amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by the Underwriters expressly for use therein (provided that
the Company and the Underwriters hereby
24
acknowledge and agree that the only information that the Underwriters have furnished to the
Company specifically for inclusion in the Registration Statement, any Preliminary Prospectus (or
any amendment or supplement thereto) are the share allocation, concession and reallowance figures
appearing in the Prospectus in the section entitled “Underwriting”); and will reimburse the Company
for any legal or other expenses reasonably incurred by the Company in connection with investigating
or defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice
of the commencement of any action, such indemnified party shall, if a claim in respect thereof is
to be made against the indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the indemnifying party shall not
relieve it from any liability which it may have to any indemnified party otherwise than under such
subsection, unless the indemnifying party has been prejudiced thereby. In case any such action
shall be brought against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate therein and, to the
extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party which consent shall not be unreasonably withheld, be
counsel to the indemnifying party) provided, however, if the defendants in any such action include
both the indemnified party and the indemnifying party and the indemnified party shall have
reasonably concluded that a conflict may arise between the positions of the indemnifying party and
the indemnified party in conducting the defense of any such action or that there may be legal
defenses available to its and/or other indemnified parties which are different from or additional
to those available to the indemnifying party, the indemnified party or parties shall have the right
to select separate counsel to assume such legal defenses and to otherwise participate in the
defense of such action on behalf of such indemnified party or parties, and, after notice from the
indemnifying party to such indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such subsection for any
legal expenses of other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable costs of
investigation unless (i) the indemnified party shall have employed separate counsel in accordance
with the proviso to the preceding sentence (it being understood, however, that the indemnifying
party shall not be liable for the expenses of more than one separate counsel (together with local
counsel), approved by the indemnifying party or (ii) the indemnifying party shall not have employed
counsel satisfactory to the indemnified party within a reasonable time after notice of commencement
of the action, in each of which cases the fees and expenses of counsel shall be at the expense of
the indemnifying party. The indemnifying party under this Section 8 shall not be liable for any
settlement of any proceedings 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 against any loss, claim, damage, liability or expense by reason of
such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified
party shall have requested an indemnifying party to reimburse the indemnified party for fees and
expenses of counsel as contemplated by this Section 8(c), the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without its written consent if (i)
such settlement is entered into more than 30 days after receipt by such
25
indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have
reimbursed the indemnified party in accordance with such request (other than those fees and
expenses that are being contested in good faith) prior to the date of such settlement. No
indemnifying party shall, without the written consent of the indemnified party, effect the
settlement or compromise of, or consent to the entry of any judgment with respect to, any pending
or threatened action or claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or potential party to such action or
claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the
indemnified party from all liability arising out of such action or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any
indemnified party.
(d) If the indemnification provided for in this Section 8 is unavailable to or insufficient to
hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses,
claims, damages or liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriters on the other from the offering of the Shares. If, however, the
allocation provided by the immediately preceding sentence is not permitted by applicable law or if
the indemnified party failed to give the notice required under subsection (c) above, then each
indemnifying party shall contribute to such amount paid or payable by such indemnified party in
such proportion as is appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or liabilities (or actions
in respect thereof), as well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters on the other shall be deemed to be in
the same proportion as the total net proceeds from the offering (before deducting expenses)
received by the Company bear to the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover page of the Prospectus. The
relative fault shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission to state a material
fact relates to information supplied by the Company on the one hand or the Underwriters on the
other and the parties’ relative intent, knowledge, access to information and opportunity to correct
or prevent such statement or omission. The Company, the Bank and the Underwriters agree that it
would not be just and equitable if contributions pursuant to this subsection (d) were determined by
pro rata allocation or by any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (d). The amount paid or payable by
an indemnified party as a result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to above in this subsection (d) 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 subsection (d), the
Underwriters shall not be required to contribute any amount in excess of the amount by which the
total price at which the Shares underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages which the Underwriters have otherwise been required to
pay by reason of any such untrue or alleged untrue statement or omission or alleged
26
omission. 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. For purposes of this Section 8, each officer and employee of any
Underwriters and each person, if any, who controls any Underwriter within the meaning of the Act
and the Exchange Act shall have the same rights to contribution as the Underwriter, and each
director of the Company, each officer of the Company who signed the Registration Statement, and
each person, if any, who controls the Company with the meaning of the Act and the Exchange Act
shall have the same rights to contribution as the Company.
(e) The obligations of the Company and the Bank under this Section 8 shall be in addition to
any liability which the Company or the Bank may otherwise have and shall extend, upon the same
terms and conditions, to each person, if any, who controls any Underwriter within the meaning of
the Act or who is an affiliate or partner of any Underwriter; and the obligations of the
Underwriters under this Section 8 shall be in addition to any liability which the Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to each officer and director
of the Company, and to each other person, if any, who controls the Company within the meaning of
the Act or who is an affiliate of the Company.
9. The respective indemnities, agreements, representations, warranties and other statements of
the Company and the Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf of the Underwriters
or any controlling person of any of the Underwriters, or the Company, or any officer or director or
controlling person of the Company, and shall survive delivery of and payment for the Shares.
10. (a) The Representative may terminate this Agreement, by notice to the Company, at any time
on or prior to the Time of Delivery if, since the time of execution of this Agreement or, in the
case of (i) below, since the date of the most recent balance sheets included in the Financial
Statements, there has occurred, (i) any Material Adverse Effect, or (ii) a suspension or material
limitation in trading in the Company’s securities on the Nasdaq Global Select Market; (iii) a
general moratorium on commercial banking activities declared by either Federal or New York
authorities or a material disruption in commercial banking or securities settlement or clearance
services in the United States; or (iv) the outbreak or escalation of hostilities involving the
United States or the declaration by the United States of a national emergency or war; or (v) the
occurrence of any other calamity or crisis or any change in financial, political or economic
conditions in the United States or elsewhere, including without limitation, as a result of
terrorist activities occurring after the date hereof, if the effect of any such event specified in
clause (iv) or (v), in the judgment of the Underwriters make it impracticable or inadvisable to
proceed with the public offering or the delivery of the Shares being delivered at such Time of
Delivery on the terms and in the manner contemplated in the Prospectus.
(b) If this Agreement is terminated pursuant to this Section 10, such termination shall be
without liability of any party to any other party except as provided in
27
Section 6 hereof and provided further that Sections 1, 8 and 9 hereof shall survive such
termination and remain in full force and effect.
11. If one or more of the Underwriters shall fail at Closing Time or a Date of Delivery to
purchase the Shares which it is obligated to purchase under this Agreement (the “Defaulted
Securities”), the Representative shall have the right, within 24 hours thereafter, to make
arrangements for one or more of the non-defaulting Underwriters or one or more other underwriters
to purchase all, but not less than all, of the Defaulted Securities in such amounts as may be
agreed upon and upon the terms herein set forth; if, however, the Representative shall not have
completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the number of Shares to be
purchased on such date, each of the non-defaulting underwriters shall be obligated, severally and
not jointly, to purchase the full amount thereof in the proportions that their respective
underwriting obligations hereunder bear to the underwriting obligations of all non-defaulting
underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the number of Shares to be purchased
on such date, this Agreement or, with respect to any Date of Delivery which occurs after the
Closing Time, the obligation of the Underwriters to purchase and of the Company to sell the Shares
to be purchased and sold on such Date of Delivery shall terminate without liability on the part of
any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting Underwriter from
liability in respect of its default.
In the event of any such default which does not result in a termination of this Agreement or,
in the case of a Time of Delivery which is after the Closing Time, which does not result in a
termination of the obligation of the Underwriter to purchase and the Company to sell the relevant
Optional Shares, as the case may be, either (i) the Representative or (ii) the Company shall have
the right to postpone Closing Time or the relevant Time of Delivery, as the case may be, for a
period not exceeding seven days in order to effect any required changes in the Registration
Statement or Prospectus or in any other documents or arrangements. As used herein, the term
“Underwriter” includes any person substituted for an Underwriter under this Section 11.
12. All statements, requests, notices and agreements hereunder shall be in writing, and if to
the Underwriters shall be delivered or sent by mail, telex or facsimile transmission to the
Representative at Sandler X’Xxxxx & Partners, L.P., 000 Xxxxx Xxxxxx, 0xx Xxxxx, Xxx
Xxxx, XX 00000, Attention: General Counsel, with a copy to Elias, Matz, Xxxxxxx & Xxxxxxx L.L.P.,
000 00xx Xxxxxx, X.X., Xxxxx 0000, Xxxxxxxxxx, X.X. 00000, Attention: Xxxxxxx X. Xxxx;
and if to the Company shall be delivered or sent by mail or facsimile to First Community Bancorp,
Inc., X.X. Xxx 000, Xxxxxxxxx, Xxxxxxxx 00000, Attention: Xxxx X. Xxxxxx, President and Chief
Executive Officer, with a copy to Xxxxxx Xxxxx LLP, 0000 X Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000,
Attention: Xxxxxx X. Xxxxx, Esq. and Xxxxxxx X. Xxxx, Esq. Any such statements, requests, notices
or agreements shall take effect upon receipt thereof.
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13. This Agreement shall be binding upon, and inure solely to the benefit of, the
Underwriters, the Company and, to the extent provided in Sections 8 and 9 hereof, the officers and
directors of the Company and each person who controls the Company or the Underwriter, and their
respective heirs, executors, administrators, successors and assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement. No purchaser of any of the Shares
from the Underwriter shall be deemed a successor or assign by reason merely of such purchase.
14. Time shall be of the essence of this Agreement. As used herein, the term “business day”
shall mean any day when the Commission’s office in Washington, D.C. is open for business.
15. The Company acknowledges and agrees that (i) the purchase and sale of the Shares pursuant
to this Agreement, including the determination of the public offering price of the Shares and any
related discounts and commissions, is an arm’s-length commercial transaction between the Company,
on the one hand, and the several Underwriters, on the other hand, (ii) in connection with the
offering contemplated hereby and the process leading to such transaction each Underwriter is and
has been acting solely as a principal and is not the agent or fiduciary of the Company, or the
Company’s shareholders, creditors, employees or any other third party, (iii) no Underwriter has
assumed or will assume an advisory or fiduciary responsibility in favor of the Company with respect
to the offering contemplated hereby or the process leading thereto (irrespective of whether such
Underwriter has advised or is currently advising the Company on other matters) and no Underwriter
has any obligation to the Company with respect to the offering contemplated hereby except the
obligations expressly set forth in this Agreement, (iv) the Underwriters and their respective
affiliates may be engaged in a broad range of transactions that involve interests that differ from
those of the Company, and (v) the Underwriters have not provided any legal, accounting, regulatory
or tax advice with respect to the offering contemplated hereby and the Company has consulted its
own legal, accounting, regulatory and tax advisors to the extent it deemed appropriate.
16. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES OF SAID STATE OTHER THAN SECTION
5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.
THE COMPANY, ON BEHALF OF ITSELF AND ITS SUBSIDIARIES, HEREBY IRREVOCABLY SUBMITS TO THE
EXCLUSIVE JURISDICTION OF THE FEDERAL AND NEW YORK STATE COURTS LOCATED IN THE CITY OF NEW YORK IN
CONNECTION WITH ANY SUIT, ACTION OR PROCEEDING RELATED TO THIS AGREEMENT OR ANY OF THE MATTERS
CONTEMPLATED HEREBY, IRREVOCABLY WAIVES ANY DEFENSE OF LACK OF PERSONAL JURISDICTION AND
IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN ANY SUCH COURT. THE COMPANY, ON BEHALF OF ITSELF AND ITS SUBSIDIARIES, IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY OBJECTION WHICH IT
MAY NOW OR HEREAFTER
29
HAVE TO THE LAYING OF VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT
AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT
IN AN INCONVENIENT FORUM.
17. This Agreement may be executed by any one or more of the parties hereto in any number of
counterparts, each of which shall be deemed to be an original, but all such counterparts shall
together constitute one and the same instrument.
18. No amendment or waiver of any provision of this Agreement, nor any consent or approval to
any departure therefrom, shall in any event be effective unless the same shall be in writing and
signed by the parties hereto.
[Signatures on Next Page]
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If the foregoing is in accordance with your understanding, please sign and return to us four
counterparts hereof, and upon the acceptance hereof by you, this letter and such acceptance hereof
shall constitute a binding agreement between the Underwriters, the Company and the Bank.
Very truly yours, | ||||||
First community bancshares, Inc. | ||||||
By: | /s/ XXXX X. XXXXXX
|
|||||
President and Chief Executive Officer | ||||||
first community Bank | ||||||
By: | /s/ XXXX X. XXXXXX
|
|||||
Chief Executive Officer |
Accepted as of the date hereof:
SANDLER X’XXXXX & PARTNERS, L.P.
By:
|
Sandler X’Xxxxx & Partners Corp., | |||
the sole general partner | ||||
By:
|
/s/ XXXXXX X. XXXXXXXX
|
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Title: Principal |
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