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EXHIBIT 1.0
1,000,000 SHARES*
VRB BANCORP
COMMON STOCK
(WITHOUT PAR VALUE)
FORM OF
UNDERWRITING AGREEMENT
___________, 1997
Black & Company, Inc.
As Representative of the several Underwriters
One S.W. Columbia, Suite 1200
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
VRB Bancorp, an Oregon corporation (the "Company"), proposes
to sell an aggregate of 1,000,000 shares (the "Firm Shares") of the Company's
common stock, no par value per share (the "Common Stock"), to you and to the
several other underwriters named in Schedule I hereto (collectively, the
"Underwriters"), for whom you are acting as representative (the
"Representative"). The Company also proposes to sell at the Underwriters'
option (the "Option") an aggregate of up to 150,000 additional shares of Common
Stock (the "Option Shares") on the terms and for the purposes set forth in
Section 0(0). The Firm Shares and the Option Shares are referred to
collectively herein as the "Shares."
It is understood that the Company's sole subsidiary, Valley of
the Rogue Bank (the "Bank"), has entered into a Stock Option Agreement dated as
of July 24, 1997 by and among the Bank and the shareholders of Investors
Banking Corporation (the "Stock Option Agreement") and a Plan of Merger dated
as of September 30, 1997 (the "Plan of Merger") by and between the Bank and
Colonial Banking Company ("Colonial"), pursuant to which Colonial will merge
with and into the Bank (the "Merger"), and that the proceeds of the sale of the
Shares will be used to finance a significant portion of the consideration to be
paid by the Bank in the Merger.
The Company confirms as follows its agreement with the
Representative and the several other Underwriters.
______________________
* Plus an option to purchase up to an additional 150,000 shares to cover
overallotments.
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1. Agreement to Sell and Purchase.
(a) On the basis of the representations, warranties and
agreements of the parties herein contained and subject to all of the terms and
conditions of this Agreement, (i) the Company agrees to sell an aggregate of
1,000,000 shares of Common Stock to the several Underwriters and (ii) each of
the Underwriters, severally and not jointly, agrees to purchase from the
Company the respective number of Firm Shares set forth opposite that
Underwriter's name in Schedule I hereto, at the purchase price of $______ for
each Firm Share, subject to adjustments in accordance with Section 0 hereof.
(b) The Underwriters propose to make a public offering of
their respective portions of the Shares as soon after the registration
statement on Form S-1 (File No. 333- 37167), as amended, has become effective
as in the Representative's judgment is advisable.
(c) Subject to all the terms and conditions of this
Agreement, the Company grants the Option to the several Underwriters to
purchase, severally and not jointly, up to the maximum number of Option Shares
at the same price per share as the Underwriters shall pay for the Firm Shares.
The Option may be exercised only to cover overallotments in the sale of the
Firm Shares by the Underwriters and may be exercised in whole or in part at any
time (but not more than once) on or before the 30th day after the date of this
Agreement upon written or facsimile notice (the "Option Shares Notice") by the
Representative to the Company no later than 12:00 noon, New York City time, at
least two and no more than five business days before the date specified for the
closing in the Option Shares Notice (the "Option Closing Date") setting forth
the aggregate number of Option Shares to be purchased and the time and date for
such purchase. The number of Option Shares to be purchased by each Underwriter
shall be in the same proportion to the total number of Option Shares being
purchased as the number of Firm Shares being purchased by such Underwriter
bears to the total number of Firm Shares, adjusted by you in such manner as to
avoid fractional shares.
2. Delivery and Payment.
(a) Payment for the Firm Shares to be sold hereunder is
to be made in New York Clearing House funds by wire transfer to an account
designated in writing by the Company for the Shares to be sold by it against
delivery of certificates therefor to the Representatives for the several
accounts of the Underwriters at such location in New York, New York as may be
specified by the Representatives. Such payment and delivery are to be
authorized at a closing to take place at the offices of Tonkon, ▇▇▇▇, ▇▇▇▇▇,
Marmaduke & Booth, ▇▇▇ ▇.▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, at 7:00 a.m.,
Portland time, on the fourth business day after the date of this Agreement or
at such other time and date not later than four business days thereafter as you
and the Company shall agree upon, such time and date being herein referred to
as the "Closing Date." (As used herein, "business day" means a day on which
the New York Stock Exchange is open for trading and on which banks in New York
are open for business and not permitted by law or executive order to be
closed.)
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(b) To the extent the Option is exercised, delivery of
the Option Shares against payment by the Underwriters (in the manner specified
above) will take place at the offices specified above at the time and date
(which may be the Closing Date) specified in the Option Shares Notice.
(c) Certificates evidencing the Shares shall be in
definitive form and shall be registered in such names and such denominations as
the Representative shall request at least two business days prior to the
Closing Date or the Option Closing Date, as the case may be, by written notice
to the Company. For the purpose of expediting the checking and packaging of
certificates for the Shares, the Company agrees to make such certificates
available for inspection at 10:00 a.m. on the business day preceding the
Closing Date or the Option Closing Date, as the case may be.
(d) The cost of any original issue tax stamps and any
transfer or other taxes in connection with the issuance and delivery of the
Firm Shares and Option Shares by the Company to the respective Underwriters
shall be borne by the Company. The Company will hold each Underwriter and any
subsequent holder of the Shares harmless from any and all liabilities with
respect to, or resulting from any failure or delay by the Company in paying,
federal and state stamp and other transfer taxes, if any, that may be payable
or determined to be payable in connection with the original issuance, transfer
or sale to such Underwriter of the Firm Shares and Option Shares.
3. Representations and Warranties of the Company.
The Company represents, warrants and covenants to each
Underwriter that:
(a) A registration statement on Form S-1 (File No.
333-37167) with respect to the Shares has been carefully prepared by the
Company in conformity with the requirements of the Securities Act of 1933, as
amended (the "Act"), and the Rules and Regulations (the "Rules and
Regulations") of the United States Securities and Exchange Commission (the
"Commission") thereunder and has been filed with the Commission. Copies of
such registration statement, including any amendments thereto, the preliminary
prospectuses (meeting the requirements of the Rules and Regulations) contained
therein and the exhibits, financial statements and schedules, as finally
amended and revised, have heretofore been delivered by the Company to you.
Such registration statement, as amended, together with any registration
statement filed by the Company pursuant to Rule 462(b) of the Act, herein
referred to collectively as the "Registration Statement," which shall be deemed
to include all information omitted therefrom in reliance upon Rule 430A and
contained in the Prospectus referred to below, has been declared effective by
the Commission under the Act and no post-effective amendment to the
Registration Statement has been filed as of the date of this Agreement.
"Prospectus" means (i) the form of prospectus first filed with the Commission
pursuant to Rule 424(b), or (ii) the last preliminary prospectus included in
the Registration Statement filed prior to the time it becomes effective or
filed pursuant to Rule 424(a) under the Act that is delivered by the Company to
the Underwriters for delivery to purchasers of the Shares, together with the
term sheet or abbreviated term sheet filed with the Commission pursuant to Rule
424(b)(7) under the
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Act. Each preliminary prospectus included in the Registration Statement prior
to the time it becomes effective is herein referred to as a "Preliminary
Prospectus."
(b) The Company has been duly organized and is an active
corporation under the laws of the State of Oregon, with corporate power and
authority to own or lease its properties and conduct its business as described
in the Registration Statement, and has only one subsidiary, the Bank, an Oregon
state chartered bank. The Bank has been duly organized and is validly existing
as a state bank under the laws of the State of Oregon. The Bank continues to
hold a valid certificate or license to do business as a state bank in Oregon
and has full power and authority to conduct its business as such and as
described in the Registration Statement.
(c) The outstanding shares of Common Stock of the Company
have been duly authorized and validly issued, are fully paid and nonassessable,
and were not issued in violation of or subject to any preemptive rights or
other rights to subscribe for or purchase securities. The Shares have been
duly authorized by all necessary corporate action of the Company and when
issued and paid for as contemplated by this Agreement will be validly issued,
fully paid and nonassessable, and no preemptive rights of shareholders exist
under any statute or otherwise with respect to any of the Shares or the issue
and sale thereof. All of the issued shares of capital stock of the Bank have
been duly and validly authorized and issued, are fully paid and non-assessable,
and are owned directly by the Company, free and clear of all liens,
encumbrances, equities or claims. No holder of any securities of the Company
or any other person has the right, contractual or otherwise, which has not been
satisfied or effectively waived, to cause the Company to sell or otherwise
issue to them, or to permit them to underwrite the sale of, any of the Shares
or the right to have any shares of Common Stock or other securities of the
Company included in the Registration Statement or the right, as a result of the
filing of the Registration Statement, to require registration under the Act of
any shares of Common Stock or other securities of the Company. Except as
described in the Prospectus, there are no (i) outstanding securities or
obligations of the Company or the Bank convertible into or exchangeable for or
evidencing the right to purchase or subscribe for any capital stock of the
Company or the Bank, (ii) warrants, rights or options to subscribe for or
purchase from the Company or the Bank any such capital stock or any such
convertible or exchangeable securities or obligations, or (iii) obligations of
the Company or the Bank to issue any shares of capital stock, any such
convertible or exchangeable securities or obligations, or any such warrants,
rights or options.
(d) The information set forth under "Capitalization" in
the Prospectus is true and correct. All of the Shares conform to the
description set forth under "Description of Capital Stock" in the Registration
Statement.
(e) The Commission has not issued an order preventing or
suspending the use of any Preliminary Prospectus relating to the proposed
offering of the Shares or instituted proceedings for that purpose. The
Registration Statement contains, and the Prospectus and any amendments or
supplements thereto will contain, all statements that are required to be stated
therein by, and will conform to, the requirements of the Act and the Rules and
Regulations. There are no contracts or documents that would be required by the
Act or by the Rules and Regulations to be filed as exhibits to the Registration
Statement or described in the Registration
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Statement that have not been so filed or described. The Registration Statement
and any amendment thereto do not contain, and through the Closing Date will not
contain, any untrue statement of a material fact and do not omit, and through
the Closing Date will not omit, to state any material fact required to be
stated therein or necessary to make the statements therein not misleading. The
Prospectus and any amendments or supplements thereto do not contain and will
not contain, any untrue statement of material fact and do not omit, and will
not omit, to state any 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 the Company makes no
representations or warranties as to information contained in or omitted from
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 or on behalf of any Underwriter through the
Representative specifically for use in the preparation thereof.
(f) The consolidated financial statements of the Company,
together with related notes and schedules as set forth in the Registration
Statement, present fairly the financial position and the results of operations
and cash flows of the Company and of Colonial, at the indicated dates and for
the indicated periods. Such consolidated financial statements and related
schedules have been prepared in accordance with generally accepted accounting
principles, consistently applied throughout the periods involved, except as
disclosed therein, and all adjustments necessary for a fair presentation of
results for such periods have been made. The summary consolidated financial
and statistical data included in the Registration Statement present fairly the
information shown therein, and such data have been compiled on a basis
consistent with the financial statements of the Company presented therein. The
unaudited pro forma combined financial statements included in the Registration
Statement and the Prospectus comply as to form in all material respects with
the applicable accounting requirements of the Act and the Rules and
Regulations, and management of the Company believes, (i) the assumptions
underlying the pro forma adjustments are reasonable, (ii) that such adjustments
have been properly applied to the historical amounts in the compilation of such
statements and (iii) that such statements fairly present the combined pro forma
financial position and results of operations and the other information
purported to be shown therein at the respective dates or for the respective
periods therein specified.
(g) The Company, the Bank and, to the knowledge of the
Company, Colonial, are in compliance in all material respects with all
applicable laws administered by and regulations of the Board of Governors of
the Federal Reserve System, the Federal Deposit Insurance Corporation and the
Oregon Department of Consumer & Business Services, Division of Finance and
Corporate Securities, as the case may be (the "Bank Regulatory Authorities"),
the failure to comply with which would have a material adverse effect upon the
assets or properties, business prospects, results of operations or financial
condition of the Company and the Bank, taken as a whole, or, to the knowledge
of the Company, Colonial. Other than the Bank Regulatory Authorities, neither
the Company, the Bank nor Colonial are subject to regulation as a bank holding
company, a bank and a bank, respectively, by any other governmental authority.
Neither the Company, the Bank, or, to the knowledge of the Company, Colonial,
is a party to any written agreement or memorandum of understanding with, or a
party to any commitment letter or similar undertaking to, or is subject to an
order or directive by, or is a recipient of any
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extraordinary supervisory letter from any Bank Regulatory Authority,
specifically directed at the Company, the Bank or Colonial, which restricts
materially the conduct of its business, or in any manner relates to its capital
adequacy, its credit policies or its management, nor have the Company and the
Bank or, to the knowledge of the Company, Colonial, been advised in writing by
any Bank Regulatory Authority that it is contemplating issuing or requesting
(or is considering the appropriateness of issuing or requesting) any such
order, decree, agreement, memorandum of understanding, extraordinary
supervisory letter, commitment letter or similar submission, specifically
directed at the Company or the Bank or at Colonial. The Company, the Bank and
their respective operations and, to the knowledge of the Company, Colonial and
its operations, comply in all material respects with all applicable laws and
regulations, including, without limitation, those relating to the practice of
banking.
(h) ▇▇▇▇ ▇▇▇▇▇ LLP (the "Accountants"), who have
certified certain of the consolidated financial statements filed with the
Commission as part of the Registration Statement, are independent public
accountants as required by the Act and the Rules and Regulations.
(i) There is no action, suit, claim or proceeding pending
or, to the knowledge of the Company, threatened against the Company, the Bank
or, to the knowledge of the Company, Colonial, before any court or
administrative agency or otherwise that if determined adversely to the Company,
the Bank or Colonial would (i) result in a material adverse change in the
condition (financial or other), business prospects, net worth or results of
operations of the Company or, to the knowledge of the Company, Colonial, or
(ii) prevent the consummation of the transactions contemplated hereby.
(j) The Company, the Bank and to the knowledge of the
Company, Colonial, have good and marketable title in fee simple to all items of
real property and marketable title to all personal property owned by them, in
each case free and clear of any security interests, liens, encumbrances,
equities, claims and other defects, except such as do not materially and
adversely affect the value of such property and do not interfere with the use
made or proposed to be made of such property by the Company, the Bank or
Colonial, and any real property and buildings held under lease by the Company,
the Bank or Colonial are held under valid, subsisting and enforceable leases,
with such exceptions as are not material and do not interfere with the use made
or proposed to be made of such property and buildings by the Company, the Bank
and Colonial.
(k) The Company and, to the knowledge of the Company,
Colonial, have filed all federal, state and local income tax returns that have
been required to be filed and has paid all taxes indicated by said returns and
all assessments received by it to the extent that such taxes have become due
and are not being contested in good faith. All tax liabilities have been
adequately provided for in the financial statements of the Company and, to the
knowledge of the Company, of Colonial.
(l) Since the respective dates as of which information is
given in the Registration Statement, as it may be amended or supplemented, (i)
there has not been a material
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adverse change in or, to the knowledge of the Company, any development
involving a prospective change in or affecting, the condition (financial or
other), business prospects, net worth or results of operations of the Company
or Colonial, whether or not occurring in the ordinary course of business; (ii)
the Company, the Bank and, to the knowledge of the Company, Colonial, have not
incurred any material liability or obligation, direct or contingent, nor
entered into any material transaction not in the ordinary course of business;
(iii) the Company has not purchased any of its outstanding capital stock, nor
declared, paid or otherwise made any dividend or distribution of any kind on
its capital stock; (iv) there has not been any material change in the capital
stock, short-term debt or long-term debt of the Company and (v) there is no
transaction that is probable of being entered into by the Company that is
material to the Company, except in each case as set forth in the Registration
Statement. The Company has no material contingent obligations that are not
disclosed in the Company's consolidated financial statements, that are included
in the Registration Statement, as it may be amended or supplemented.
(m) The Stock Option Agreement and the Plan of Merger
have been duly authorized, executed and delivered by each of the parties
thereto, and constitute the valid and binding obligations of each such party
and are enforceable against such party in accordance with their terms; the
Stock Option Agreement and the Plan of Merger are in full force and effect on
the date hereof, and neither the Company nor the Bank, nor, to the knowledge of
the Company, Colonial, is in breach of its obligations thereunder and, when all
of the conditions to the Merger have been fulfilled or waived and the
certificate of merger relating to the Merger has been issued by the Director of
the Oregon Department of Consumer and Business Services, the Merger will be
effective in accordance with the laws of the State of Oregon.
(n) The Company and the Bank are not, and with the giving
of notice or lapse of time or both will not be, in violation of or in default
under their respective Articles of Incorporation or bylaws. Neither the
Company nor the Bank is, or with the giving of notice or lapse of time or both
will be, in violation of or in default under any agreement, lease, contract,
indenture or other instrument or obligation to which the Company or the Bank is
a party or by which they, or any of their properties, are bound and which
default is of material significance in respect of the condition (financial or
other), business prospects, net worth or results of operations of the Company.
The execution and delivery of this Agreement and the consummation of the
transactions herein contemplated (including the Merger) and the fulfillment of
the terms hereof will not conflict with or result in a breach of any of the
terms or provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, lease or other agreement or instrument to which the Company or
the Bank is a party or by which the Company, the Bank or any of their
respective properties are bound, or of the Articles of Incorporation or bylaws
of the Company or the Bank or any order, rule or regulation applicable to the
Company or the Bank of any court or of any regulatory body or administrative
agency or other governmental body having jurisdiction.
(o) The Company has full legal right, power and authority
to enter into this Agreement and to perform the transactions contemplated
hereby and thereby and to file the Registration Statement, and each has been
duly authorized, executed and delivered by the Company, and this Agreement, the
Stock Option Agreement and the Plan of Merger each constitutes a valid and
binding obligation of the Company enforceable in accordance with its
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terms, except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting the
rights of creditors' generally, and except to the extent that rights of
indemnity or contribution under this Agreement may be limited by federal or
state securities laws or the public policies underlying such laws or by general
equitable principles. Each approval, consent, order, authorization,
designation, declaration or filing by or with any regulatory, administrative or
other governmental body necessary in connection with the execution and delivery
by the Company of this Agreement and the consummation of the transactions
herein contemplated (except such additional steps as may be required by the
Commission, the National Association of Securities Dealers, Inc. (the "NASD"),
such additional steps as may be necessary to qualify the Shares for public
offering by the Underwriters under state securities or Blue Sky laws or such
additional steps as may be necessary for the consummation of the Merger) has
been obtained or made and is in full force and effect.
(p) The Company and the Bank each owns or possesses all
material trademarks, service marks, trade names, licenses, copyrights and
proprietary or other confidential information currently employed by it in
connection with its businesses, and neither the Company nor the Bank has
received any notice of infringement of or conflict with asserted rights of any
third party with respect to any of the foregoing.
(q) There are no labor disputes with the employees of the
Company, the Bank or, to the knowledge of the Company, Colonial.
(r) Neither the Company, the Bank nor, to the knowledge
of the Company, Colonial, is in violation of any federal or state law or
regulation relating to occupational safety and health or to the storage,
handling or transportation of hazardous or toxic material; and the Company, the
Bank and, to the knowledge of the Company, Colonial, have received all permits,
licenses or other approvals required of them under applicable federal and state
occupational safety and health and environmental laws and regulations to
conduct their respective businesses, and each of the Company, the Bank and, to
the knowledge of the Company, Colonial, are in compliance with all terms and
conditions of any such permit, license or approval.
(s) The Company, the Bank and, to the knowledge of the
Company, Colonial, are insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are prudent
and customary in the businesses in which they are engaged; neither the Company,
the Bank nor, to the knowledge of the Company, Colonial has been refused any
insurance coverage sought or applied for; and neither the Company, the Bank
nor, to the knowledge of the Company, Colonial has any reason to believe that
it will not be able to renew its existing insurance coverage as and when such
coverage expires or to obtain similar coverage from similar insurers as may be
necessary to continue its business at a cost that would not materially and
adversely affect the condition (financial or otherwise), business prospects,
net worth, or results of operations of the Company and the Bank taken as a
whole or, to the knowledge of the Company, of Colonial.
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(t) Other than the Company's interest in the Bank,
neither the Company nor the Bank owns any shares of stock or any other equity
securities of any corporation or has any equity interest in any firm,
partnership, association or other entity.
(u) All offers and sales of the Company's capital stock
prior to the date hereof were at all relevant times exempt from the
registration requirements of the Act, and were the subject of an available
exemption from the registration requirements of all applicable state securities
or Blue Sky laws; and all offering materials prepared in connection therewith,
if any, did not include any 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, not misleading.
(v) The Company and the Bank have not taken, directly or
indirectly, any action designed to cause or result in, or which has constituted
or which might reasonably be expected to constitute, the stabilization or
manipulation of the price of the shares of its capital stock to facilitate the
sale or resale of the Shares.
(w) The Company is not an investment company within the
meaning of such term under the Investment Company Act of 1940, as amended (the
"1940 Act") and the rules and regulations of the Commission thereunder, and
this transaction will not cause the Company to become an investment company
subject to registration under the 1940 Act.
(x) The Company and the Bank maintain a system of
internal accounting controls sufficient to provide reasonable assurances that
(i) transactions are executed in accordance with management's general or
specific authorization, (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets, (iii) access
to assets is permitted only in accordance with management's general or specific
authorization, and (iv) the recorded accountability for assets is compared with
existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(y) The Company, the Bank and, to the knowledge of the
Company, Colonial, are in compliance in all material respects with all
presently applicable provisions of the Employee Retirement Income Security Act
of 1974, as amended, including the regulations and published interpretations
thereunder ("ERISA"); no "reportable event" (as defined in ERISA) has occurred
with respect to any "pension plan" (as defined in ERISA) for which the Company
or the Bank would have any liability; the Company or the Bank has not incurred
and does not expect to incur liability under (i) Title IV of ERISA with respect
to termination of, or withdrawal from, any "pension plan" or (ii) Sections 412
or 4971 of the Internal Revenue Code of 1986, as amended, including the
regulations and published interpretations thereunder (the "Code"); and each
"pension plan" for which the Company or the Bank would have any liability that
is intended to be qualified under Section 401(a) of the Code is so qualified in
all material respects and nothing has occurred, whether by action or by failure
to act, that would cause the loss of such qualification.
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(z) Neither the Company, the Bank nor, to the knowledge
of the Company, Colonial, has at any time during the last five years (i) made
any unlawful contribution to any candidate for public office, or failed to
disclose fully any contribution in violation of law, or (ii) made any payment
to any federal or state governmental officer or official, or other person
charged with similar public or quasi-public duties, other than payments
required or permitted by the laws of the United States or any jurisdiction
thereof.
(aa) Neither the Company, the Bank nor any of their
respective officers, directors or affiliates have caused any person, other than
the Underwriters, to be entitled to reimbursement or compensation of any kind,
including, without limitation, any compensation that would be includable as
underwriter compensation under the NASD's Corporate Financing Rule with respect
to the offering of the Shares, as a result of the consummation of such offering
based on any activity of such person as a finder, agent, broker, investment
adviser or other financial service provider.
4. Agreements of the Company.
The Company agrees with the several Underwriters as follows:
(a) The Company will not, either prior to the date on
which the Registration Statement is declared effective (the "Effective Date")
or thereafter during such period as the Prospectus is required by law to be
delivered in connection with sale of the Shares by an Underwriter or dealer,
file any amendment or supplement to the Registration Statement or the
Prospectus, unless a copy thereof shall first have been submitted to the
Representative within a reasonable period of time prior to the filing and the
Representative shall not have objected thereto in good faith.
(b) The Company will use its best efforts to cause the
Registration Statement to become effective and will notify the Representative
and its counsel promptly, and will confirm such advice in writing, (i) when the
Registration Statement has become effective and when any post-effective
amendment thereto becomes effective, (ii) of any request by the Commission for
amendments or supplements to the Registration Statement or the Prospectus or
for additional information, (iii) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose or the threat thereof, (iv) of
the happening of any event during the period mentioned in the second sentence
of Section 0(0) that in the judgment of the Company makes any statement made in
the Registration Statement or the Prospectus untrue or that requires the making
of any changes in the Registration Statement or the Prospectus in order to make
the statements therein, in light of the circumstances in which they are made,
not misleading, and (v) of receipt by the Company or any representative or
attorney of the Company of any other communication from the Commission relating
to the Company, the Registration Statement, any Preliminary Prospectus, or the
Prospectus. If at any time the Commission issues any stop order suspending the
effectiveness of the Registration Statement, the Company will make every
reasonable effort to obtain the withdrawal of such order at the earliest
possible moment. If the Company has omitted any information from the
Registration Statement pursuant to Rule 430A of the Rules and
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Regulations, the Company will use its best efforts to comply with the
provisions of and make all requisite filings with the Commission pursuant to
said Rule 430A and to notify the Representative promptly of all such filings.
(c) The Company will furnish to the Representative or its
counsel, without charge, two signed copies of the Registration Statement and
any post-effective amendment thereto, including financial statements and
schedules, and all exhibits thereto and will furnish to the Representative,
without charge, for transmittal to each of the other Underwriters, a copy of
the Registration Statement and any post- effective amendment thereto, including
financial statements and schedules but without exhibits.
(d) The Company will comply with all the provisions of
any undertakings contained in the Registration Statement.
(e) As soon as practicable after the Effective Date, and
thereafter from time to time, the Company will deliver to each of the
Underwriters, without charge, as many copies of the Prospectus or any amendment
or supplement thereto as the Representative may reasonably request. The
Company consents to the use of the Prospectus or any amendment or supplement
thereto by the several Underwriters and by all dealers to whom the Shares may
be sold, both in connection with the offering or sale of the Shares and for any
period of time thereafter during which the Prospectus is required by law to be
delivered in connection therewith. If during such period of time any event
shall occur that, in the judgment of the Company or counsel to the
Underwriters, should be set forth in the Prospectus in order to make any
statement therein, in the light of the circumstances under which it was made,
not misleading, or if it is necessary to supplement or amend the Prospectus to
comply with law, the Company will forthwith prepare and duly file with the
Commission an appropriate supplement or amendment thereto and will deliver to
each of the Underwriters, without charge, such number of copies of such
supplement or amendment to the Prospectus as the Representative may reasonably
request.
(f) Prior to any public offering of the Shares, the
Company will cooperate with the Representative and counsel to the Underwriters
in connection with the registration or qualification of the Shares for offer
and sale under the securities or Blue Sky laws of such jurisdictions as the
Representative may reasonably request; provided, however, that in no event
shall the Company be obligated to qualify to do business in any jurisdiction
where it is not now so qualified or to take any action that would subject it to
general service of process in any jurisdiction where it is not now so subject.
(g) During the period of five years commencing on the
Effective Date, the Company will furnish to the Representative and each other
Underwriter who may so request copies of such financial statements and other
periodic and special reports as the Company may from time to time distribute
generally to the holders of any class of its capital stock and will furnish to
the Representative and each other Underwriter who may so request a copy of each
annual or other report it shall be required to file with the Commission.
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(h) The Company will make generally available to holders
of its securities as soon as may be practicable but in no event later than the
last day of the 15th full calendar month following the calendar quarter in
which the Effective Date falls, an earnings statement (which need not be
audited but shall be in reasonable detail) for a period of 12 months commencing
after the Effective Date and satisfying the provisions of Section 11(a) of the
Act (including Rule 158 of the Rules and Regulations).
(i) Whether or not the transactions contemplated by this
Agreement are consummated or this Agreement is terminated, the Company will
pay, or reimburse if paid by the Representative, all costs and expenses
incident to the performance of the obligations of the Company under this
Agreement, including but not limited to costs and expenses of or relating to
(i) the preparation, printing and filing of the Registration Statement and the
exhibits thereto, each Preliminary Prospectus, Prospectus and any amendment or
supplement to the Registration Statement or Prospectus, (ii) the preparation
and delivery of certificates representing the Shares, (iii) the photocopying of
this Agreement, the Agreement among Underwriters, any Dealer Agreements and any
Underwriters' Questionnaires, (iv) printing and furnishing to the Underwriters
(including costs of shipping and mailing) such copies of the Registration
Statement, the Prospectus and any Preliminary Prospectus, and all amendments
and supplements thereto, as may be requested for use in connection with the
offering and sale of the Shares by the Underwriters or by dealers to whom
Shares may be sold, (v) the quotation of the Shares on the Nasdaq National
Market, (vi) the fees payable to the NASD relating to any filings required to
be made by the Underwriters with the NASD, (vii) the registration or
qualification of the Shares for offer and sale under the securities or Blue Sky
laws of such jurisdictions designated pursuant to Section 0(0), including the
fees, disbursements and other charges of counsel to the Underwriters in
connection therewith, and the preparation and photocopying of preliminary,
supplemental and final Blue Sky memoranda, (viii) fees, disbursements and other
charges of counsel to the Company (but not those of counsel for the
Underwriters, except as otherwise provided herein), (ix) the transfer agent for
the Shares, and (x) the Company's meal and travel expenses related to "road
show" meetings.
(j) If this Agreement is terminated by the Company
pursuant to any of the provisions hereof (other than pursuant to Section 0
hereof) or if for any reason the Company is unable to perform its obligations
hereunder, the Company will reimburse the several Underwriters for all
out-of-pocket expenses (including the fees, disbursements and other charges of
counsel to the Underwriters) reasonably incurred by them in connection
herewith.
(k) The Company will not at any time, directly or
indirectly, take any action designed, or that might reasonably be expected, to
cause or result in, or that will constitute, stabilization of the price of the
shares of Common Stock to facilitate the sale or resale of any of the Shares.
(l) The Company will apply the net proceeds from the
offering and sale of the Shares to be sold by the Company in the manner set
forth in the Prospectus under "Use of Proceeds," and will not materially amend
the terms of, or waive any material conditions contained in, the Plan of
Merger.
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(m) The Company will not, and will cause each of its
officers, directors and certain shareholders designated by the Representative
to enter into agreements with the Representative to the effect that they will
not, without the prior written consent of the Representative, sell, contract to
sell, sell short or otherwise dispose of any shares of Common Stock or other
capital stock of the Company or any other securities exchangeable for or
convertible into Common Stock for a period of one hundred eighty (180) days
after the Effective Date, except (i) directors, officers and shareholders may
make bona fide gifts to donees who agree to be bound by such restrictions and
(ii) the Company may issue Common Stock or options to purchase Common Stock
under the Company's stock option plans described in the Prospectus.
5. Conditions of the Obligations of the Underwriters.
The obligations of each Underwriter hereunder are subject to
the following conditions:
(a) Notification that the Registration Statement has
become effective shall be received by the Representative not later than 5:00
p.m., New York City time, on the date of this Agreement or at such later date
and time as shall be consented to in writing by the Representative and all
filings required by Rule 424 and Rule 430A of the Rules and Regulations shall
have been made, and the Shares shall be qualified or registered for sale in
such jurisdictions as the Representative shall request, except where the
failure to qualify or register Shares would not, in the reasonable judgment of
the Representative, have a material adverse effect on its ability to market the
Shares.
(b) (i) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall be pending or threatened by the Commission, (ii) no order
suspending the effectiveness of the Registration Statement or the qualification
or registration of the Shares under the securities or Blue Sky laws of any
jurisdiction shall be in effect, and no proceeding for such purpose shall be
pending before or threatened or contemplated by the authorities of any such
jurisdiction, except where the failure to qualify or register Shares in such
jurisdiction would not, in the reasonable judgment of the Representative, have
a material adverse effect on its ability to market the Shares, (iii) any
request for additional information on the part of the staff of the Commission
or any such authorities shall have been complied with to the satisfaction of
the staff of the Commission or such authorities and (iv) after the date hereof
no amendment or supplement to the Registration Statement or the Prospectus
shall have been filed unless a copy thereof was first submitted to the
Representative and the Representative does not object thereto in good faith,
and the Representative shall have received certificates, dated the Closing Date
and the Option Closing Date and signed by the Chief Executive Officer of the
Company and the Chief Financial Officer of the Company (who may, as to
proceedings threatened, rely upon the best of their information and belief) to
the effect of clauses (i), (ii) and (iii).
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(c) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, (i) there shall not
have been a material adverse change in the general affairs, business, business
prospects, properties, management, condition (financial or other) or results of
operations of the Company, whether or not arising from transactions in the
ordinary course of business, in each case other than as set forth in the
Registration Statement and the Prospectus and (ii) the Company shall not have
sustained any material loss or interference with its business or properties
from fire, explosion, flood or other casualty, whether or not covered by
insurance, or from any labor dispute or any court or legislative or other
governmental order or decree, that is not set forth in the Registration
Statement and the Prospectus, if in the reasonable judgment of the
Representative any such development makes it impracticable or inadvisable to
consummate the sale and delivery of the Shares by the Underwriters at the
public offering price.
(d) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there shall have been
no litigation or other proceeding instituted against the Company or any of its
officers or directors in their capacities as such, before or by any federal,
state or local court, commission, regulatory body, administrative agency or
other governmental body, domestic or foreign, in which litigation or proceeding
an unfavorable ruling, decision or finding would materially and adversely
affect the business, business prospects, properties, management, condition
(financial or other) or results of operations of the Company.
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(e) Each of the representations and warranties of the
Company contained herein shall be true and correct in all material respects at
the Closing Date and, with respect to the Option Shares, at the Option Closing
Date, and all covenants and agreements contained herein to be performed on the
part of the Company and all conditions contained herein to be fulfilled or
complied with by the Company at or prior to the Closing Date and, with respect
to the Option Shares, at or prior to the Option Closing Date, shall have been
duly performed, fulfilled or complied with.
(f) The Representative shall have received on the Closing
Date or the Option Closing Date, as the case may be, the opinion of ▇▇▇▇▇▇
Pepper & Shefelman PLLC, counsel for the Company, dated the Closing Date, or
the Option Closing Date, as the case may be, addressed to the Underwriters (and
stating that it may be relied upon by counsel to the Underwriters) to the
effect that:
(i) The Company has been duly organized and is an
active corporation under the laws of the State of Oregon; and
the Bank, an Oregon state chartered bank, has been duly
organized and is validly existing as a state bank under the
laws of the State of Oregon and continues to hold a valid
certificate or license to do business as a state bank in
Oregon and has full power and authority to conduct its
business as such and as described in the Registration
Statement.
(ii) Each of the Company and the Bank has
corporate power and authority to own or lease its properties
and the Company and the Bank have the corporate power to
conduct their respective businesses as described in the
Registration Statement and the Prospectus, and the Company has
corporate power to enter into this Agreement and to carry out
all the terms and provisions hereof to be carried out by it.
(iii) The Company has authorized, issued and
outstanding capital stock as set forth under the caption
"Description of Capital Stock" in the Prospectus; the issued
and outstanding shares of the Company's Common Stock have been
duly authorized and validly issued, are fully paid and
non-assessable, and were not issued in violation of or subject
to any preemptive rights or other rights to subscribe for or
purchase securities; all offers and sales of the issued and
outstanding shares of the Company's Common Stock were at all
relevant times exempt from the registration requirements of
the Act, and were the subject of an available exemption from
the registration requirements of all applicable state
securities or Blue Sky laws.
(iv) All of the issued shares of capital stock of
the Bank have been duly and validly authorized and issued, are
fully paid and non-assessable and are owned directly by the
Company, free and clear of all liens, encumbrances, equities
or claims.
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(v) The Shares have been duly authorized by all
necessary corporate action of the Company and when issued and
paid for as contemplated by this Agreement will be validly
issued, fully paid and non-assessable; no preemptive rights of
shareholders exist under any statute or otherwise with respect
to any of the Shares or the issue or sale thereof; the Shares
conform to the description thereof contained in the
Registration Statement; and the certificates for the Shares
comply as to form with the requirements of Oregon law.
(vi) Except as described in the Prospectus, to the
knowledge of such counsel there are no (A) outstanding
securities or obligations of the Company or the Bank
convertible or exchangeable into or evidencing the right to
purchase or subscribe for, any shares of capital stock of the
Company or the Bank or (B) outstanding or authorized options,
warrants or rights of any character obligating the Company or
the Bank to issue any shares of its capital stock or any
securities convertible into or exchangeable for or evidencing
the right to purchase or subscribe for any capital stock of
the Company or the Bank, and, except as described in the
Prospectus, no holder of any securities of the Company or any
other person has the right, contractual or otherwise, which
has not been satisfied or effectively waived, to cause the
Company to sell or otherwise issue to them, or to permit them
to underwrite the sale of, any of the Shares or the right to
have any shares of Common Stock or other securities of the
Company included in the Registration Statement or the right,
as a result of the filing of the Registration Statement, to
require registration under the Act of any shares of Common
Stock or other securities of the Company.
(vii) The Registration Statement is effective under
the Act and no stop order proceedings with respect thereto
have been instituted or are pending or, to the knowledge of
such counsel, threatened under the Act.
(viii) The Registration Statement, the Prospectus
and each amendment or supplement thereto comply as to form in
all material respects with the requirements of the Act and the
Rules and Regulations (except that such counsel need not
express an opinion as to the financial statements and related
schedules thereto).
(ix) There are no contracts or documents known to
such counsel which are required to be filed as exhibits to the
Registration Statement or described in the Registration
Statement or the Prospectus that are not so filed or described
as required, and such contracts and documents as are
summarized in the Registration Statement or the Prospectus are
fairly summarized in all material respects.
(x) The statements under the captions "Risk
Factors--Regulation," "Supervision and Regulation" and
"Description of Capital Stock" in the Prospectus and in Item
14 of the Registration Statement, insofar as such statements
constitute a summary of documents referred to therein or
matters of
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law, fairly summarize in all material respects the information
called for with respect to such documents and matters.
(xi) To the knowledge of such counsel, no legal or
governmental proceedings are pending to which the Company or
the Bank is a party or to which the property of the Company or
the Bank is subject that are required to be described in the
Registration Statement or the Prospectus and are not described
therein, and, to the knowledge of such counsel, no such
proceedings have been threatened against the Company or the
Bank or with respect to any of their respective properties.
(xii) The Company and the Bank possess all
certificates, authorizations, licenses and permits issued by
the appropriate federal or state regulatory authorities
necessary to conduct their respective businesses and, to the
knowledge of such counsel, neither the Company nor any Bank
has received any notice of proceedings relating to the
revocation or modification of any such certificate,
authorization, license or permit.
(xiii) This Agreement, the Stock Option Agreement
and the Plan of Merger have been duly and validly authorized
by all necessary corporate action of the Company or the Bank,
as the case may be, and this Agreement, the Stock Option
Agreement and the Plan of Merger have been duly and validly
executed and delivered by and on behalf of the Company or the
Bank, as the case may be, and are valid, binding and
enforceable agreements of the Company or the Bank, as the case
may be, enforceable in accordance with their respective terms,
except as enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws
relating to or affecting the rights of creditors' generally,
and except to the extent that rights of indemnity or
contribution under this Agreement may be limited by federal
or state securities laws or the public policies underlying
such laws or by general equitable principles.
(xiv) The issuance, offering and sale of the Shares
to the Underwriters by the Company pursuant to this Agreement,
the compliance by the Company with the other provisions of
this Agreement and the consummation of the other transactions
herein contemplated do not (A) require the consent, approval,
authorization, registration or qualification of or with any
governmental authority, except such as have been obtained and
such as may be required under state securities or Blue Sky
laws, or (B) conflict with or result in a breach or violation
of any of the terms and provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, lease or other
agreement or instrument known to such counsel to which the
Company or the Bank is a party or by which the Company, the
Bank or any of their respective properties are bound, or the
Articles of Incorporation or bylaws of the Company or the
Bank, or any statute or any judgment, decree, order, rule or
regulation of any court or other governmental authority or any
arbitrator known to such counsel and applicable to the Company
or the Bank.
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(xv) The Company is not, nor will become, as a
result of the consummation of the transactions contemplated by
this Agreement and application of the net proceeds therefrom
as described in the Prospectus, required to register as an
investment company under the 1940 Act.
In rendering such opinion, counsel for the Company may rely as
to matters governed by the laws of states other than Oregon or federal laws on
local counsel in such jurisdictions, provided, however, that in each case
counsel for the Company shall state that they believe that they and the
Underwriters are justified in relying on such other counsel. In addition to
the matters set forth above, such opinion shall also include a statement to the
effect that nothing has come to the attention of such counsel which leads it to
believe that (i) the Registration Statement, at the time it became effective
under the Act (but after giving effect to any modifications incorporated
therein pursuant to Rule 430A of the Rules and Regulations) and as of the
Closing Date or the Option Closing Date, as the case may be, contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading (except that such counsel need express no view as to financial
statements, financial data and statistical information therein), and (ii) the
Prospectus, or any supplement thereto, on the date it was filed pursuant to the
Rules and Regulations and as of Closing Date or the Option Closing Date, as the
case may be, contained an untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements, in the light
of the circumstances under which they are made, not misleading (except that
such counsel need express no view as to financial statements, financial data
and statistical information therein).
(g) The Representative shall have received from Tonkon,
▇▇▇▇, ▇▇▇▇▇, Marmaduke & Booth, counsel for the Underwriters, an opinion dated
the Closing Date or the Option Closing Date, as the case may be, substantially
to the effect specified in subparagraphs (vii) and (viii) of Paragraph (f) of
this Section 5 and that the Company is a duly organized and validly existing
corporation under the laws of the State of Oregon. In rendering such opinion,
counsel for the Underwriters may rely as to all matters governed by the laws of
states other than the State of Oregon or federal laws on the opinion of counsel
referred to in Paragraph (f) of this Section 5. In addition to the matters set
forth above, such opinion shall also include a statement to the effect that
nothing has come to the attention of such counsel that leads them to believe
that (i) the Registration Statement, or any amendment thereto, as of the time
it became effective under the Act (but after giving effect to any modifications
incorporated therein pursuant to Rule 430A of the Rules and Regulations) as of
the Closing Date or the Option Closing Date, as the case may be, contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading and (ii) the Prospectus, or any supplement thereto, on the date it
was filed pursuant to the Rules and Regulations and as of the Closing Date or
the Option Closing Date, as the case may be, contained an untrue statement of a
material fact or omitted to state a material fact necessary in order to make
the statements, in the light of the circumstances under which they are made,
not misleading (except that such counsel need express no view as to financial
statements, schedules and statistical information therein).
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(h) The Representative shall have received at or prior to
the Closing Date from counsel for the Underwriters a memorandum or summary, in
form and substance satisfactory to the Representative, with respect to the
qualification for offering and sale by the Underwriters of the Shares under the
state securities or Blue Sky laws of such jurisdictions as the Representative
may reasonably have designated to the Company.
(i) Concurrently with the execution and delivery of this
Agreement, the Accountants shall have furnished to the Representative a letter
or letters, dated the date of its or their delivery, addressed to the
Representative and in form and substance satisfactory to the Representative,
confirming that they are independent accountants with respect to the Company as
required by the Act and the Rules and Regulations and with respect to certain
financial and other statistical and numerical information contained in the
Registration Statement. At the Closing Date and, as to the Option Shares, the
Option Closing Date, the Accountants shall have furnished to the Representative
a letter or letters, dated the date of its or their delivery, that shall
confirm, on the basis of a review in accordance with the procedures set forth
in the letter or letters from the Accountants, that nothing has come to their
attention during the period from the date of the letter referred to in the
prior sentence to a date (specified in the letter) not more than five days
prior to the Closing Date and the Option Closing Date, as the case may be, that
would require any change in their letter dated the date hereof if it were
required to be dated and delivered at the Closing Date and the Option Closing
Date.
(j) On the Closing Date and, as to the Option Shares, the
Option Closing Date, there shall be furnished to the Representative an accurate
certificate of the Company, dated the date of its delivery, signed by each of
the Chief Executive Officer, the Chief Financial Officer and the Chief
Operating Officer of the Company on behalf of the Company, in form and
substance satisfactory to the Representative, to the effect that:
(i) Each signer of such certificate has carefully
examined the Registration Statement and the Prospectus on
behalf of the Company. As of the date of such certificate,
such documents are true and correct in all material respects
and do not omit to state a material fact required to be stated
therein or necessary in order to make the statements therein
not untrue or misleading. In the case of the certificate
delivered at the Closing Date and the Option Closing Date,
since the Effective Date no event has occurred as a result of
which it is necessary to amend or supplement the Prospectus in
order to make the statements therein not untrue or misleading
in any material respect.
(ii) Each of the representations and warranties of
the Company contained in this Agreement was, when originally
made, and is, at the time such certificate is delivered, true
and correct in all material respects.
(iii) Each of the covenants required to be
performed by the Company herein on or prior to the date of
such certificate has been duly, timely and fully performed,
and each condition herein required to be satisfied or
fulfilled on or
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prior to the date of such certificate has been duly, timely
and fully satisfied or fulfilled.
(k) On or prior to the Closing Date, the Representative
shall have received the executed agreements referred to in Section 0(0).
(l) Prior to the Closing Date, the Shares shall have been
duly authorized for quotation on the Nasdaq National Market upon notice of
issuance.
(m) The Company shall have furnished to the
Representative such certificates, in addition to those specifically mentioned
herein, as the Representative may have reasonably requested as to the accuracy
and completeness at the Closing Date and the Option Closing Date of any
statement in the Registration Statement or the Prospectus, as to the accuracy
at the Closing Date and the Option Closing Date of the representations and
warranties of the Company herein, as to the performance by the Company of its
obligations hereunder, or as to the fulfillment of the conditions concurrent
and precedent to the obligations hereunder of the Representative.
6. Indemnification.
(a) The Company will indemnify and hold harmless each
Underwriter, the directors, officers, employees and agents of each Underwriter
and each person, if any, who controls each Underwriter within the meaning of
Section 15 of the Act or Section 20 of the Securities Exchange Act of 1934, as
amended (the "Exchange Act") from and against any and all losses, claims,
liabilities, expenses and damages (including any and all investigative, legal
and other expenses reasonably incurred in connection with, and any amount paid
in settlement of, any action, suit or proceeding or any claim asserted) to
which they, or any of them, may become subject under the Act, the Exchange Act
or other federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, liabilities, expenses or damages
arise out of or are based on any 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 to the Registration
Statement or the Prospectus, or the omission or alleged omission to state in
such document a material fact required to be stated in it or necessary to make
the statements in it not misleading in light of the circumstances in which they
were made, provided, however, that the Company will not be liable to the extent
that such loss, claim, liability, expense or damage arises from the sale of the
Shares in the public offering to any person by an Underwriter and is based on
an untrue statement or omission or alleged untrue statement or omission made in
reliance on and in conformity with information relating to any Underwriter
furnished in writing to the Company by the Representative on behalf of any
Underwriter expressly for inclusion in the Registration Statement, the
Preliminary Prospectus or the Prospectus, and provided further, however, that
the Company will not be liable to any Underwriter, the directors, officers,
employees or agents of such Underwriter or any person controlling such
Underwriter with respect to any loss, claim, liability, expense, charge or
damage arising out of or based on any untrue statement or omission or alleged
untrue statement or omission or alleged omission to state a material fact in
the Preliminary Prospectus that is
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corrected in the Prospectus if the person asserting any such loss, claim,
liability, charge or damage purchased Shares from such Underwriter but was not
sent or given a copy of the Prospectus at or prior to the written confirmation
of the sale of such Shares to such person. This indemnity agreement will be in
addition to any liability that the Company might otherwise have.
(b) Each Underwriter will indemnify and hold harmless the
Company, each person, if any, who controls the Company within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, each director of the
Company and each officer of the Company who signs the Registration Statement to
the same extent as the foregoing indemnity from the Company to each
Underwriter, but only insofar as losses, claims, liabilities, expenses or
damages arise out of or are based on any untrue statement or omission or
alleged untrue statement or omission made in reliance on and in conformity with
information relating to any Underwriter furnished in writing to the Company by
the Representative on behalf of such Underwriter expressly for use in the
Registration Statement, the Preliminary Prospectus or the Prospectus. The
Company acknowledges that the statements set forth in the last paragraph of the
outside front cover page of the Prospectus and under the heading "Underwriting"
in the Preliminary Prospectus and the Prospectus constitute the only
information relating to any Underwriter furnished in writing to the Company by
the Representative on behalf of the Underwriters expressly for inclusion in the
Registration Statement, the Preliminary Prospectus or the Prospectus. This
indemnity will be in addition to any liability that each Underwriter might
otherwise have.
(c) Any party that proposes to assert the right to be
indemnified under this Section 6 will, promptly after receipt of notice of
commencement of any action against such party in respect of which a claim is to
be made against an indemnifying party or under this Section 6, notify each such
indemnifying party of the commencement of such action, enclosing a copy of all
papers served, but the omission so to notify any such indemnifying party will
not relieve it from any liability that it may have to any indemnified party
under the foregoing provisions of this Section unless, and only to the extent
that, such omission results in the loss of substantive rights or defenses by
the indemnifying party. If such action is brought against any indemnified
party and it notifies the indemnifying party of its commencement, the
indemnifying party will be entitled to participate in and, to the extent that
it elects by delivering written notice to the indemnified party promptly after
notice of the commencement of the action from the indemnified party, jointly
with any other indemnifying party similarly notified, to assume the defense of
the action, with counsel reasonably satisfactory to the indemnified party, and
after notice from the indemnifying party to the indemnified party of its
election to assume the defense, the indemnifying party will not be liable to
the indemnified party for any legal or other expenses except as provided below
and except for the reasonable costs of investigation subsequently incurred by
the indemnified party in connection with the defense. The indemnified party
will have the right to employ its own counsel in any such action, but the
expenses and other charges of such counsel will be at the expense of such
indemnified party unless (i) the employment of counsel by the indemnified party
has been authorized in writing by the indemnifying party, (ii) the indemnified
party has reasonably concluded (based on advice of counsel) that there may be
legal defenses available to it or other indemnified parties that are different
from or in addition to those available to the indemnifying party, (iii) a
conflict or potential conflict exists (based on
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advice of counsel to the indemnified party) between the indemnified party and
the indemnifying party (in which case the indemnifying party will not have the
right to direct the defense of such action on behalf of the indemnified party)
or (iv) the indemnifying party has not in fact employed counsel to assume the
defense of such action within a reasonable time after receiving notice of the
commencement of the action, in each of which cases the reasonable fees,
disbursements and other charges of counsel will be at the expense of the
indemnifying party or parties. It is understood that the indemnifying party or
parties shall not, in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for the reasonable fees, disbursements and
other charges of more than one separate firm admitted to practice in such
jurisdiction at any one time. All such fees, disbursements and other charges
will be reimbursed by the indemnifying party promptly as they are incurred.
Any indemnifying party will not be liable for any settlement of any action or
claim effected without its written consent (which consent will not be
unreasonably withheld).
(d) In order to provide for just and equitable
contribution in circumstances in which the indemnification provided for in the
foregoing paragraphs of this Section 0 is applicable in accordance with its
terms but for any reason is held to be unavailable from the Company, or the
Underwriters, the Company, and the Underwriters, will contribute to the total
losses, claims, liabilities, expenses and damages (including any investigative,
legal and other expenses reasonably incurred in connection with, and any amount
paid in settlement of, any action, suit or proceeding or any claim asserted,
but after deducting any contribution received by the Company from persons other
than the Underwriters, such as persons who control the Company within the
meaning of the Act, officers of the Company who signed the Registration
Statement and directors of the Company, who also may be liable for
contribution) to which the Company or one or more of the Underwriters may be
subject in such proportion as shall be appropriate to reflect the relative
benefits received by the Company and the Underwriters. The relative benefits
received by the Company and the Underwriters 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 outside front cover page of the Prospectus. If, but only if, the
allocation provided by the foregoing sentence is not permitted by applicable
law, the allocation of contribution shall be made in such proportion as is
appropriate to reflect not only the relative benefits referred to in the
foregoing sentence but also the relative fault of the Company and the
Underwriters, with respect to the statements or omissions that resulted in such
loss, claim, liability, expenses or damage, or action in respect thereof, as
well as any other relevant equitable considerations with respect to such
Offering. Such relative fault shall be determined by reference to whether the
untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by the
Company or the Representative on behalf of the Underwriters, the intent of the
parties and their relative knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and the
Underwriters agree that it would not be just and equitable if contributions
pursuant to this Section 0(d) were to be determined by pro rata allocation
(even if the Underwriters were treated as one entity for such purpose) or by
any other method of allocation that does not take into account the equitable
considerations referred to herein. The amount paid or payable by an
indemnified party as a result of the loss, claim, liability, expense or
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damage, or action in respect thereof, referred to above in this Section 6(d)
shall be deemed to include, for purposes of this Section 6(d), any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 6(d), (i) no Underwriter shall be required to
contribute any amount in excess of the underwriting discounts received by it
and (ii) no person found guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) will be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute as provided in this Section 6(d) are
several in proportion to their respective underwriting obligations and not
joint. For purposes of this Section 6(d), any person who controls a party to
this Agreement within the meaning of the Act will have the same rights to
contribution as that party, and each director and officer of the Company who
signed the Registration Statement will have the same rights to contribution as
the Company, subject in each case to the provisions hereof. Any party entitled
to contribution, promptly after receipt of notice of commencement of any action
against any such party in respect of which a claim for contribution may be made
under this Section 6(d), will notify any such party or parties from whom
contribution may be sought, but the omission to so notify will not relieve the
party or parties from whom contribution may be sought from any other obligation
it or they may have under this Section 6(d). No party will be liable for
contribution with respect to any action or claim settled without its consent
(which consent will not be unreasonably withheld).
(e) The indemnity and contribution agreements contained
in this Section 6 and the representations and warranties of the Company
contained in this Agreement shall remain operative and in full force and effect
regardless of (i) any investigation made by or on behalf of the Underwriters or
the Company, (ii) acceptance of any of the Shares and payment therefor or (iii)
any termination of this Agreement.
7. Termination.
The obligations of the several Underwriters under this
Agreement may be terminated at any time on or prior to the Closing Date (or,
with respect to the Option Shares, on or prior to the Option Closing Date) by
notice to the Company from the Representative, without liability on the part of
any Underwriter to the Company if, prior to delivery and payment for the
Shares, as the case may be, (a) trading in any of the equity securities of the
Company shall have been suspended by the Commission or by the Nasdaq National
Market (b) trading in securities generally on the New York Stock Exchange shall
have been suspended or limited or minimum or maximum prices shall have been
generally established on such exchange, or additional material governmental
restrictions, not in force on the date of this Agreement, shall have been
imposed upon trading in securities generally by such exchange or by order of
the Commission or any court or other governmental authority, (c) a general
banking moratorium shall have been declared by either federal or New York State
authorities or (d) in the reasonable opinion of the Representative, there is
any material adverse change in the financial or securities markets in the
United States or in political, financial or economic conditions in the United
States or any outbreak or material escalation of hostilities or other calamity
or crisis shall have occurred, the effect of which is such as to make it, in
the reasonable judgment of the Representative, impracticable to market the
Shares.
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8. Substitution of Underwriters.
If any one or more of the Underwriters shall fail or refuse to
purchase any of the Firm Shares that it or they have agreed to purchase
hereunder, and the aggregate number of Firm Shares that such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase is not more
than one-tenth of the aggregate number of Firm Shares, the other Underwriters
shall be obligated, severally, to purchase the Firm Shares that such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase in the
proportions that the number of Firm Shares that they have respectively agreed to
purchase pursuant to Section 1 bears to the aggregate number of Firm Shares that
all such nondefaulting Underwriters have so agreed to purchase, or in such other
proportions as the Representative may specify; provided, however, that in no
event shall the maximum number of Firm Shares that any Underwriter has become
obligated to purchase pursuant to Section 1 be increased pursuant to this
Section 8 by more than one-ninth of such number of Firm Shares without the prior
written consent of such Underwriter. If any Underwriter or Underwriters shall
fail or refuse to purchase any Firm Shares and the aggregate number of Firm
Shares that such defaulting Underwriter or Underwriters agreed but failed or
refused to purchase exceeds one-tenth of the aggregate number of the Firm Shares
and arrangements satisfactory to the Representative and the Company for the
purchase of such Firm Shares are not made within 48 hours after such default,
this Agreement will terminate without liability on the part of any nondefaulting
Underwriter or the Company for the purchase or sale of any Shares under this
Agreement. In any such case either the Representative or the Company shall have
the right to postpone the Closing but in no event for longer than seven days, in
order that the required changes, if any, in the Registration Statement and the
Prospectus or in any other documents or arrangements may be effected. Any action
taken pursuant to this Section 8 shall not relieve any defaulting Underwriter
from liability in respect of any default of such Underwriter under this
Agreement.
9. Miscellaneous.
(a) Notice given pursuant to any of the provisions of
this Agreement shall be in writing and, unless otherwise specified, shall be
mailed or delivered (e) if to the Company, at the office of the Company, ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇, Attention: Chief Executive Officer,
with a copy to ▇▇▇▇▇▇▇ ▇. Roberts, Foster, Pepper & Shefelman PLLC, ▇▇▇ ▇.▇.
▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ or (f) if to the Underwriters,
to the Representative at the offices of Black & Company, Inc., ▇▇▇ ▇.▇.
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Finance
Department, with a copy to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Tonkon, ▇▇▇▇, ▇▇▇▇▇, Marmaduke &
Booth, ▇▇▇ ▇.▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇. Any such notice shall be
effective only upon receipt. Any notice may be made by telex, telephone or
facsimile, but if so made shall be subsequently confirmed in writing.
(b) This Agreement has been and is made solely for the
benefit of the several Underwriters, the Company and of the controlling
persons, directors and officers referred to in Section 0, and their respective
successors and assigns, and no other person shall acquire or have any right
under or by virtue of this Agreement. The term "successors and assigns" as
used in this
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Agreement shall not include a purchaser, as such purchaser, of Shares from any
of the several Underwriters.
(c) This Agreement shall be governed by and construed in
accordance with the laws of the State of Oregon applicable to contracts made
and to be performed entirely within such state.
(d) This Agreement may be signed in two or more
counterparts with the same effect as if the signatures thereto and hereto were
upon the same instrument.
(e) In case any provision in this Agreement shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
(f) The Company and the Underwriters each hereby waive
any right they may have to a trial by jury in respect of any claim based upon
or arising out of this Agreement or the transactions contemplated hereby.
Please confirm that the foregoing correctly sets forth the agreement among
the Company and the several Underwriters.
Very truly yours,
VRB BANCORP
By:___________________________________
Name:_________________________________
Title:________________________________
Confirmed as of the date first above mentioned:
BLACK & COMPANY, INC.
Acting on behalf of itself and as the
Representative of the other several
Underwriters named in Schedule I hereto.
By: BLACK & COMPANY, INC.
By:___________________________________
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SCHEDULE I
UNDERWRITERS
Number of
Firm Shares To
Black & Company, Inc.......................................
Total 1,000,000
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