Exhibit 1.1
5.25% Fixed-to-Floating Subordinated
Notes due 2030
BAYCOM CORP
UNDERWRITING AGREEMENT
August 6, 0000
Xxxxxx Xxxxxxxxxx Xxxxx LLC
0000 Xxxx Xxxxxx, Xxxxx 00
Xxxxxxxxxxxx, XX 00000
As Representative of the
several Underwriters
Ladies and Gentlemen:
BayCom Corp, a California corporation (the
“Company”), confirms its agreement with Xxxxxx Xxxxxxxxxx Xxxxx LLC (“Janney”)
and each of the other Underwriters named in Schedule A hereto (collectively, the “Underwriters”),
for whom Janney 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 the respective principal
amounts set forth in Schedule A of $65,000,000 in aggregate principal amount of the Company’s 5.25% Fixed-to-Floating Rate
Subordinated Notes due 2030 (the “Securities”). The Securities are to be issued pursuant to the
Subordinated Indenture dated as of August 10, 2020 (the “Base Indenture”), by and between the Company
and Wilmington Trust, National Association, as trustee (the “Trustee”), as supplemented by a supplemental
indenture, to be dated as of August 10, 2020 (the “Supplemental Indenture”), by and between the Company
and the Trustee (the Base Indenture, as supplemented by the Supplemental Indenture, the “Indenture”).
The Company has filed with the
Securities and Exchange Commission (the “Commission”) a registration statement on Form S-3
(No. 333-237791), including a base prospectus (the “Base Prospectus”), covering the
registration of various securities, including the Securities, under the Securities Act of 1933, as amended (the
“1933 Act”). Such registration statement is effective under the Securities Act, the Indenture has
been duly qualified under the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission
thereunder (collectively, the “Trust Indenture Act”), and the Company has filed such post-effective
amendments thereto as may be required prior to the execution of this Agreement and each such post-effective amendment is
effective under the 1933 Act. Promptly after execution and delivery of this Agreement, the Company will prepare and file a
prospectus supplement with respect to the Securities in accordance with the provisions of Rule 430B (“Rule
430B”) of the rules and regulations of the Commission under the 1933 Act (the “1933 Act
Regulations”) and paragraph (b) of Rule 424 (“Rule 424(b)”) of the 1933 Act. Any
information included in each such prospectus supplement that was omitted from such registration statement at the time it
became effective but that is deemed to be part of such registration statement at the time it became effective pursuant to
Rule 430B is referred to as “Rule 430B Information.” 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 1933 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. Any prospectus supplement, including the information and
documents incorporated by reference therein, that omitted Rule 430B Information that was used after the effectiveness of the
Registration Statement, together with the Base Prospectus, is hereinafter called a “Preliminary
Prospectus.” The term “Prospectus” means the final prospectus supplement to the Base
Prospectus that describes the Securities and the offering thereof filed with the Commission pursuant to Rule 424(b) under the
1933 Act, together with the Base Prospectus, in the form used by the Underwriters to confirm sales of the Securities. Any
Registration Statement filed pursuant to Rule 462(b) under the 1933 Act is herein referred to as a “Rule 462(b)
Registration Statement,” and after such filing the term “Registration Statement”
shall include the last filed 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 Securities Act, as of the effective date of the Registration
Statement or the date of such Preliminary Prospectus or the Prospectus, as the case may be, and any reference to
“amend,” “amendment” or “supplement” with respect to the Registration Statement, any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any documents filed after such date under
the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder (collectively,
the “1934 Act”) that are deemed to be incorporated by reference therein. Capitalized terms used but
not defined herein shall have the meanings given to such terms in the Registration Statement and the Prospectus.
As used in this Underwriting Agreement:
“Applicable Time”
means 10:00 a.m. (Eastern time) on the date of this Agreement or such other date and time as agreed by the Company and the Representative.
“General Disclosure Package”
means any Issuer-Represented General Free Writing Prospectus(es) (as defined below) issued at or prior to the Applicable Time and
the Preliminary Prospectus relating to the Securities dated August 3, 2020, all considered together.
“Issuer-Represented Free Writing
Prospectus” means any “issuer free writing prospectus,” as defined in Rule 433 of the 1933 Act Regulations
(“Rule 433”), relating to the Securities that is required to be filed with the Commission by the
Company in the form filed or required to be filed with the Commission.
“Issuer-Represented General Free
Writing Prospectus” means any Issuer-Represented Free Writing Prospectus that is intended for general distribution
to prospective investors, as evidenced by its being specified in Schedule B hereto.
“Issuer-Represented Limited Use
Free Writing Prospectus” means any Issuer-Represented Free Writing Prospectus that is not an Issuer-Represented General
Free Writing Prospectus. The term Issuer Represented Limited Use Free Writing Prospectus also includes any “bona fide
electronic road show” as defined in Rule 433, that is made available without restriction pursuant to Rule 433(d)(8)(ii),
even though not required to be filed with the SEC.
SECTION 1. Representations and
Warranties and Agreements.
(a) Representations
and Warranties by the Company. The Company represents and warrants to each Underwriter as of the date hereof, as of the
Closing Time referred to in Section 2(c) hereof and agrees with each Underwriter, as follows:
(i) Compliance
with Registration Requirements. At the time of filing the Registration Statement, (2) at the time of the most
recent amendment thereto for the purposes of complying with Section 10(a)(3) of the 1933 Act (whether such amendment was by
post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the 1934 Act or form of prospectus),
(3) as of the date hereof, and (4) as of the Closing Date, the Company satisfied the registrant eligibility requirements for
the use of Form S-3 under the 1933 Act set forth in Instruction No. I.A. to such form, and (B) at the date hereof, the
Company was not an “ineligible issuer” as defined in Rule 405 of the 1933 Act (“Rule
405”). The Company has filed with the Commission the Registration Statement on Form S-3, including a Base
Prospectus for registration under the 1933 Act of the offering and sale of the Securities, and the Company has filed 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 Securities have been
registered under the Registration Statement in compliance with the requirements for the use of Form S-3. The Company has not
received from the Commission any notice pursuant to Rule 401(g) of the Securities Act objecting to the Company’s use of
Form S-3. Although the Base Prospectus may not include all the information with respect to the Securities and the offering
thereof required by the 1933 Act to be included in the Prospectus, the Base Prospectus includes all such information required
by the 1933 Act 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, to the extent the Commission has
requested such information in conjunction with the filing of the Registration Statement or otherwise; 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. Promptly after the execution of this Agreement,
the Company will file with the Commission pursuant to Rules 415 and 424(b)(2) or (5) of the 1933 Act the Prospectus to the
Base Prospectus included in such Registration Statement relating to the Securities and the offering thereof, with such
information as is required or permitted by the 1933 Act and as has been provided to and approved by the Representative 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) as the Company has advised the Underwriters through the
Representative, prior to the date hereof, will be included or made therein. If the Company has elected to rely on Rule 462(b)
of the Securities Act and a 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 of the 1933 Act, or the Commission has received payment of such filing
fee. (A) At the respective times the Registration Statement, any Rule 462(b) Registration Statement and any post-effective
amendments thereto became effective and as of the Closing Date, the Registration Statement, any Rule 462(b) Registration
Statement and any amendments and supplements thereto complied and will comply in all material respects with the requirements
of the 1933 Act, the Trust Indenture Act and the rules and regulations promulgated under the Trust Indenture Act and did not
and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, and (B) at the time the Prospectus or any amendments or supplements
thereto were filed and as of the Closing Date, neither the Prospectus nor any amendment or supplement thereto included,
includes or will include an untrue statement of a material fact or omitted, omits or will omit to state a material fact
necessary in order to make the statements therein, in the light of the circumstances under which they were made, not
misleading; provided that the Company makes no representation or warranty with respect to any statements made in or omissions
from the Registration Statement and the Prospectus in reliance upon and in conformity with written information furnished to
the Company by any Underwriter through the Representative expressly for use therein, it being understood that the only
written information that the Underwriters have furnished to the Company specifically for inclusion in the Registration
Statement, any preliminary prospectus and the Prospectus (or any amendment or supplement thereto) are: (i) the
concession figures appearing in the Prospectus in the section entitled “Underwriting—Discounts, Commissions and
Expenses,” and (ii) the information contained under the caption “Underwriting—Stabilization”
(such information being referred to herein as the “Underwriter Information”); provided, further,
that the Company makes no representations or warranties as to that part of the Registration Statement which shall constitute
the Statement of Eligibility and Qualifications (Form T-1) of the Trustee under the Trust Indenture Act.
As of the Applicable Time, neither (x) the
General Disclosure Package nor (y) any individual Issuer-Represented Limited Use Free Writing Prospectus, when considered
together with the General Disclosure Package, included any untrue statement of a material fact or omitted 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.
The representations and warranties in this paragraph shall not apply to statements in or omissions from the General Disclosure
Package or any Issuer-Represented Limited Use Free Writing Prospectus made in reliance upon and in conformity with the Underwriter
Information.
(ii) Issuer-Represented Free
Writing Prospectuses. Each Issuer-Represented Free Writing Prospectus, as of its issue date and at all subsequent
times through the completion of the public offer and sale of the Securities, or until any earlier date that the issuer
notified or notifies the Representative of the termination of the public offer and sale of the Securities, did not, does not
and will not include any information that conflicted, conflicts or will conflict with the information contained in the
Registration Statement, the General Disclosure Package or the Prospectus.
(iii) Emerging Growth Company.
From the time of the initial filing of the Registration Statement with the Commission through the date hereof, the Company has
been and is an “emerging growth company,” as defined in Section 2(a) of the 1933 Act (an “Emerging
Growth Company”).
(iv) Independent Accountants.
Xxxx Xxxxx LLP (“Xxxx Xxxxx”) and Vavrinek, Trine, Day & Co., LLP, now merged with the firm Xxxx
Bailly LLP (“VTD”), the accounting firms that certified the financial statements and supporting schedules
of the Company included in the Registration Statement, the General Disclosure Package and the Prospectus, are to the knowledge
of the Company, independent registered public accounting firms as required by the 1933 Act and the 1933 Act Regulations. Each of
Xxxx Xxxxx and VTD is a registered public accounting firm, as defined by the Public Company Accounting Oversight Board, whose registration
to the knowledge of the Company has not been suspended or revoked and who has not requested such registration to be withdrawn.
With respect to the Company, to the knowledge of the Company, neither Xxxx Xxxxx nor VTD are or have been in violation of the auditor
independence requirements of the Xxxxxxxx-Xxxxx Act of 2002 (“Xxxxxxxx-Xxxxx Act”) and the related rules and
regulations of the Commission.
(v) Financial Statements.
The financial statements included in the Registration Statement, the General Disclosure Package and the Prospectus, together with
the related schedules and notes, present fairly in all material respects the financial position of the Company and its consolidated
subsidiaries at the dates indicated and the statement of operations, shareholders’ equity and cash flows of the Company and
its consolidated subsidiaries for the periods specified; said financial statements have been prepared in conformity with generally
accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved.
The supporting schedules, if any, included in the Registration Statement, the General Disclosure Package and the Prospectus present
fairly in all material respects in accordance with GAAP the information required to be stated therein. The selected financial
data and the summary financial information included in the Registration Statement, the General Disclosure Package and the Prospectus
present fairly in all material respects the information shown therein and have been compiled on a basis consistent with that of
the audited financial statements included in the Registration Statement, the General Disclosure Package and the Prospectus and
the books and records of the Company. No other financial statements or schedules are required to be included in the Registration
Statement, the General Disclosure Package or the Prospectus. To the extent applicable, all disclosures contained in the Registration
Statement, the General Disclosure Package, any Issuer-Represented Free Writing Prospectus, or the Prospectus regarding “non-GAAP
financial measures” (as such term is defined by the rules and regulations of the Commission) comply with Regulation
G under the 1934 Act and Item 10 of Regulation S-K under the 1933 Act, as applicable.
(vi) No Material Adverse
Change in Business. Since the respective dates as of which information is given in the Registration Statement, the
General Disclosure Package and the Prospectus, except as otherwise stated therein, (A) there has been no material
adverse change in the financial condition, earnings or business affairs of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business (a “Material Adverse
Effect”), (B) there have been no transactions entered into by the Company or any of its subsidiaries,
other than those in the ordinary course of business, which are material with respect to the Company and its subsidiaries
considered as one enterprise, and (C) there has been no dividend or distribution of any kind declared, paid or made by
the Company on any class of its capital stock.
(vii) Company Validly Existing.
The Company has been duly organized and is validly existing as a corporation under the laws of the State of California and has
corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration
Statement, the General Disclosure Package and the Prospectus and to enter into and perform its obligations under this Underwriting
Agreement; and the Company is duly qualified as a foreign corporation to transact business and is in good standing in each other
jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct
of business, except where the failure so to qualify or to be in good standing would not result in a Material Adverse Effect.
(viii) Subsidiaries. United
Business Bank (the “Bank”) is the only wholly owned subsidiary of the Company. The Bank is a California
state-chartered bank, duly organized and is validly existing and in good standing as a corporation under the laws of the State
of California and is licensed by the California Department of Business Oversight—Division of Financial Institutions (the
“DBO”) to conduct business as a commercial bank and has the requisite corporate power and authority to
own or lease all of its properties and assets and carry on its business as now being conducted. The Bank is duly licensed or qualified
to do business as a foreign corporation to transact business and is in good standing in each other jurisdiction in which such qualification
is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so
to qualify or to be in good standing would not reasonably be expected to result in a Material Adverse Effect.
(ix) Capitalization.
The authorized, issued and outstanding capital stock of the Company is as set forth in the Registration Statement, the
General Disclosure Package and the Prospectus as set forth under the caption “Capitalization” (except for
subsequent issuances, if any, pursuant to reservations, agreements or employee benefit plans referred to in the Registration
Statement, the General Disclosure Package and the Prospectus or pursuant to the exercise of convertible securities or options
disclosed in the Registration Statement, the General Disclosure Package and the Prospectus). The shares of issued and
outstanding capital stock have been duly authorized and validly issued and are fully paid and non-assessable; none of the
outstanding shares of capital stock was issued in violation of the preemptive or other similar rights of any securityholder
of the Company. The Company owns 100% of the issued and outstanding shares of the capital stock of the Bank. All of the
issued and outstanding shares of capital stock of the Bank has been duly authorized and validly issued, is fully paid and
non-assessable and is owned by the Company, free and clear of any security interest, mortgage, pledge, lien, encumbrance,
claim or equity; none of the outstanding shares of capital stock of the Bank was issued in violation of any preemptive or
similar right of any securityholder of the Bank.
(x) Authorization of Agreement.
This Underwriting Agreement has been duly authorized, executed and delivered by the Company.
(xi) Authorization and Description
of Securities. The Securities to be purchased by the Underwriters from the Company have been duly authorized for issuance
and sale to the Underwriters pursuant to this Underwriting Agreement and, when duly executed, authenticated, issued and delivered
as provided in the Indenture and paid for as provided herein, will be duly and validly issued and outstanding and will constitute
valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms, subject to
applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating
to, or affecting, the rights of creditors of corporations or commercial banks, including laws relating to conservatorship and receivership
of insured depository institutions, and to general equity principles or other similar rights, and except as rights to indemnity
or contribution may be limited by applicable laws or public policy underlying such laws (collectively, the “Enforceability
Exceptions”), and will be entitled to the benefits of the Indenture; the Securities conform in all material respects
to all statements relating thereto contained in the Registration Statement, the General Disclosure Package and the Prospectus and
such description conforms in all material respects to the rights set forth in the instruments defining the same; no holder of the
Securities will be subject to personal liability for the debts of the Company by reason of being such a holder; and the issuance
of the Securities is not subject to the preemptive or other similar rights of any securityholder of the Company.
(xii) The Indenture. The Indenture
has been duly authorized by the Company and, when duly executed and delivered by the Company will constitute a valid and binding
agreement of the Company, enforceable against the Company in accordance with its terms, except as limited by the Enforceability
Exceptions. The Indenture will conform in all material respects to the descriptions thereof in the Registration Statement, the
General Disclosure Package, and the Prospectus and will be in substantially the form filed or incorporated by reference, as the
case may be, as exhibits to the Registration Statement. The Indenture has been duly qualified under the Trust Indenture Act and
complies in all material respects with the applicable requirements of the Trust Indenture Act.
(xiii) Absence
of Defaults and Conflicts. Neither the Company nor the Bank is (A) in violation of its charter or by-laws or
(B) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which
the Company or the Bank is a party or by which it or any of them may be bound, or to which any of the property or assets of
the Company or the Bank is subject (collectively, “Agreements and Instruments”) except for such
defaults that would not result in a Material Adverse Effect; and the execution, delivery and performance of this Underwriting
Agreement by the Company and the consummation of the transactions contemplated herein and in the Registration Statement, the
General Disclosure Package and the Prospectus (including the issuance and sale of the Securities and the use of the proceeds
from the sale of the Securities as described in the Registration Statement, the General Disclosure Package and the Prospectus
under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder 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 constitute a breach of, or default or Repayment Event (as defined below) under, or result
in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or the Bank
pursuant to, the Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or
encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the
provisions of the charter or by-laws of the Company or the Bank or any applicable law, statute, rule, regulation, judgment,
order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over
the Company or the Bank or any of their assets, properties or operations (except for such violations that would not result in
a Material Adverse Effect). As used herein, a “Repayment Event” means any event or condition which
gives the holder of any note, debenture or other evidence of indebtedness the right to require the repurchase, redemption or
repayment of all or a portion of such indebtedness by the Company or the Bank prior to its scheduled maturity.
(xiv) Absence of Labor Dispute.
No labor dispute with the employees of the Company or the Bank exists or, to the knowledge of the Company, is imminent, and the
Company is not aware of any existing or imminent labor disturbance by the employees of any of its or the Bank’s principal
suppliers, manufacturers, customers or contractors, which, in either case, would reasonably be expected to result in a Material
Adverse Effect.
(xv) Absence of Proceedings.
There is no action, suit, proceeding, inquiry or investigation before or brought by any court or governmental agency or body, domestic
or foreign, now pending, or, to the knowledge of the Company, threatened, against or affecting the Company or the Bank, which is
required to be disclosed in the Registration Statement, the General Disclosure Package and the Prospectus (other than as disclosed
therein), or which might reasonably be expected to result in a Material Adverse Effect, or which might reasonably be expected to
materially and adversely affect the properties or assets thereof or the consummation of the transactions contemplated in this Underwriting
Agreement or the performance by the Company of its obligations hereunder. The aggregate of all pending legal or governmental proceedings
to which the Company or the Bank is a party or of which any of their respective properties or assets is the subject which are not
described in the Registration Statement, the General Disclosure Package and the Prospectus, including routine litigation incidental
to the ordinary course of business, if determined adversely to the Company or the Bank would not result in a Material Adverse Effect.
(xvi) Accuracy of Exhibits.
There are no contracts or other documents which are required to be described in the Registration Statement, the General Disclosure
Package, the Prospectus or to be filed as exhibits thereto which have not been so described or filed as required.
(xvii) Possession
of Intellectual Property. The Company and the Bank own or possess, or can acquire on reasonable terms, adequate
patents, patent rights, licenses, inventions, copyrights, know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or procedures and excluding generally commercially available
“off the shelf” software programs licensed pursuant to shrink wrap or “click and accept” licenses),
trademarks, service marks, trade names or other intellectual property (collectively, “Intellectual
Property”) necessary to carry on the business now operated by each of them, and neither the Company nor the
Bank has received any notice or is otherwise aware of any infringement of or conflict with asserted rights of others with
respect to any Intellectual Property or of any facts or circumstances which would render any Intellectual Property invalid or
inadequate to protect the interest of the Company or the Bank therein.
(xviii) Absence of Further Requirements.
No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental
authority or agency is necessary or required for the performance by the Company of its obligations under this Underwriting Agreement,
in connection with the offering, issuance or sale of the Securities or the consummation of the transactions contemplated by this
Underwriting Agreement, except such as have been already obtained or as may be required under the 1933 Act or the 1933 Act Regulations,
the rules of The NASDAQ Stock Market, state securities laws, or the rules and regulations of the Financial Industry Regulatory
Authority, Inc. (“FINRA”).
(xix) Possession of Licenses and
Permits. The Company and the Bank possess such permits, licenses, approvals, consents and other authorizations (collectively,
“Governmental Licenses”) issued by the appropriate federal, state, local or foreign regulatory agencies
or bodies necessary to conduct the business now operated by them, except where the failure to have such Governmental License would
not, singly or in the aggregate, reasonably be expected to have a Material Adverse Effect; the Company and the Bank are in compliance
with the terms and conditions of all Governmental Licenses, except where the absence of such Governmental License or the failure
so to comply would not, singly or in the aggregate, reasonably be expected to have a Material Adverse Effect; all of the Governmental
Licenses are valid and in full force and effect, except where the invalidity of such Governmental Licenses or the failure of such
Governmental Licenses to be in full force and effect would not reasonably be expected to have a Material Adverse Effect; and neither
the Company nor the Bank 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 reasonably be expected
to result in a Material Adverse Effect. Neither the Company nor the Bank has failed to file with applicable regulatory authorities
any statement, report, information or form required by any applicable law, regulation or order, except where such failure would
not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, all such filings were in material
compliance with applicable laws when filed and no material deficiencies have been asserted by any regulatory commission, agency
or authority with respect to any such filings or submissions.
(xx) Title
to Property. The Company and the Bank have good and marketable title to all real property owned by the Company and
the Bank and good title to all other properties owned by them, in each case, free and clear of all mortgages, pledges, liens,
security interests, claims, restrictions or encumbrances of any kind except such as do not, singly or in the aggregate,
materially affect the value of such property and do not interfere with the use made and proposed to be made of such property
by the Company or the Bank; and all of the leases and subleases material to the business of the Company and the Bank,
considered as one enterprise, and under which the Company or any of its subsidiaries holds properties described in the
Registration Statement, the General Disclosure Package and the Prospectus, are in full force and effect, and neither the
Company nor the Bank has any notice of any material claim of any sort that has been asserted by anyone adverse to the rights
of the Company or the Bank under any of the leases or subleases mentioned above, or affecting or questioning the rights of
the Company or the Bank to the continued possession of the leased or subleased premises under any such lease or sublease.
(xxi) Investment Company Act.
The Company is not, and upon the issuance and sale of the Securities as herein contemplated and the application of the net proceeds
therefrom as described in the Registration Statement, the General Disclosure Package and 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 “1940 Act”).
(xxii) Environmental Laws.
Except as would not, singly or in the aggregate, reasonably be expected to result in a Material Adverse Effect, (A) neither
the Company nor the Bank is in violation of any federal, state, local or foreign statute, law, rule, regulation, ordinance, code,
policy or rule of common law or any applicable 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 the Bank have all
permits, authorizations and approvals required under any applicable Environmental Laws and are each in compliance with their requirements,
(C) to the Company’s knowledge there are no pending or threatened administrative, regulatory or judicial actions, suits,
demands, demand letters, claims, liens, notices of noncompliance or violation, investigation or proceedings relating to any Environmental
Law against the Company or the Bank and (D) to the Company’s knowledge there are no events or circumstances that would
result in forming the basis of an order for clean-up or remediation, or an action, suit or proceeding by any private party or governmental
body or agency, against or affecting the Company or the Bank relating to Hazardous Materials or any Environmental Laws.
(xxiii) Taxes.
The Company and the Bank have (a) timely filed all material foreign, United States federal, state and local tax returns,
information returns, and similar reports that are required to be filed (taking into account valid extensions), and all tax
returns are true, correct and complete in all material respects, (b) paid in full all taxes required to be paid by it
and any other assessment, fine or penalty levied against it, except for any such tax assessment, fine or penalty that is not
currently due and payable or is currently being contested in good faith or as would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect, and (c) established on the most recent balance sheet
reserves that are adequate for the payment of all taxes not yet due and payable.
(xxiv) Insurance. The
Company and the Bank carry, or are covered by, insurance in such amounts and covering such risks as the Company reasonably believes
are adequate for the conduct of the business of the Company and the Bank and the value of their properties and as are customary
in the business in which the Company and the Bank are engaged; neither the Company nor the Bank has been refused any insurance
coverage sought or applied for; and the Company has no reason to believe that they will not be able to renew their existing insurance
coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue
its business at a cost that would not have a Material Adverse Effect.
(xxv) Statistical and Market Data.
Nothing has come to the attention of the Company that has caused the Company to believe that the statistical and market-related
data included in the Registration Statement, the General Disclosure Package and the Prospectus are not based on or derived from
sources that are reliable and accurate in all material respects.
(xxvi) Relationship. No relationship,
direct or indirect, exists between or among the Company or the Bank, on the one hand, and the directors, officers, shareholders,
customers or suppliers of the Company or the Bank, on the other, that is required by the 1933 Act, the 1933 Act Regulations to
be described in the Registration Statement, the General Disclosure Package and the Prospectus and that is not so described.
(xxvii) Internal Control Over Financial
Reporting. The Company maintains a system of internal accounting controls sufficient to provide reasonable assurance
that (A) transactions are executed in accordance with management’s general or specific authorizations; (B) transactions
are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability;
(C) access to assets is permitted only in accordance with management’s general or specific authorization; and (D) the
recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken
with respect to any differences. Since the end of the Company’s most recent audited fiscal year, there has been (I) no
material weakness in the Company’s internal control over financial reporting (whether or not remediated) and (II) 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.
(xxviii) Disclosure
Controls and Procedures. The Company employs disclosure controls and procedures (as such term is defined in
Rule 13a-15 under the 1934 Act), which (A) are designed to ensure that information that is required to be disclosed
by the Company in the reports that it will have to file or submit 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 is made known to the Company’s principal executive officer and principal financial officer by
others within the Company to allow timely decisions regarding disclosure, and (B) were effective in all material
respects as of March 31, 2020, to perform the functions for which they were established. Since the date of its most
recent audited financial statements, the Company has not been advised of (1) any significant deficiency or material
weakness in the design or operation of internal control over financial reporting which are reasonably likely to adversely
affect the Company’s ability to record, process, summarize and report financial information or (2) any fraud,
whether or not material, that involves management or other employees who have a significant role in the Company’s
internal control over financial reporting.
(xxix) Pending Procedures and Examinations.
The Registration Statement is not the subject of a pending proceeding or examination under Section 8(d) or 8(e) of
the 1933 Act, and the Company is not the subject of a pending proceeding under Section 8A of the 1933 Act in connection with
the offering of the Securities.
(xxx) Unlawful Payments.
Neither the Company nor the Bank nor, to the knowledge of the Company, any director, officer, agent, employee or other person associated
with or acting on behalf of the Company or the Bank 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.
(xxxi) No Registration Rights.
No person has the right to require the Company or the Bank to register any securities for sale under the 1933 Act by reason of
the filing of the Registration Statement with the Commission or the issuance and sale of the Securities to be sold by the Company
hereunder.
(xxxii) No Preemptive Rights.
There are no authorized or outstanding preemptive rights, rights of first refusal or other similar rights to purchase, or equity
or debt securities convertible into or exchangeable or exercisable for, any capital stock of the Company or the Bank except for
such rights as have been duly waived and are described in the Registration Statement, General Disclosure Package and Prospectus.
All such waivers are in full force and effect on the date hereof.
(xxxiii) No Stabilization or Manipulation.
Neither the Company nor the Bank, nor any affiliates of the Company or the Bank, has taken, directly or indirectly, any action
designed to or that could reasonably be expected to cause or result in any stabilization or manipulation of the price of the Securities.
(xxxiv) No
Unauthorized Use of Prospectus. The Company has not distributed and, prior to the later to occur of (i) the
Closing Time and (ii) completion of the distribution of the Securities, will not distribute any prospectus (as such term
is defined in the 1933 Act and the 1933 Act Regulations) in connection with the offering and sale of the Securities other
than the Registration Statement, any preliminary prospectus, the Prospectus or other materials, if any, permitted by the 1933
Act or by the 1933 Act Regulations and approved by the Representative.
(xxxv) Forward-Looking Statements.
No forward-looking statement (within the meaning of Section 27A of the 1933 Act and Section 21E of the 0000 Xxx) contained
in the Registration Statement, the General Disclosure Package and the Prospectus has been made or reaffirmed without a reasonable
basis or has been disclosed other than in good faith.
(xxxvi) Fees. Other than
as contemplated by this Underwriting Agreement, there is no broker, finder or other party that is entitled to receive from the
Company or the Bank any brokerage or finder’s fee or any other fee, commission or payment as a result of the transactions
contemplated by this Underwriting Agreement.
(xxxvii) ERISA.
The Company and the Bank or their “ERISA Affiliates” (as defined below) are in compliance in all material respects
with all presently applicable provisions of the Employee Retirement Income Security Act of 1974, as amended, including the regulations
and published interpretations thereunder (“ERISA”); no “reportable event” (as defined in
ERISA) has occurred with respect to any “employee benefit plan” (as defined in ERISA) for which the Company or the
Bank or ERISA Affiliates would have any liability; the Company and the Bank or their ERISA Affiliates have not incurred and do
not expect to incur liability under (i) Title IV of ERISA with respect to termination of, or withdrawal from, any “employee
benefit plan” or (ii) Sections 412, 4971, 4975 or 4980B of the United States Internal Revenue Code of 1986, as amended,
and the regulations and published interpretations thereunder (collectively the “Code”); and each “employee
benefit plan” for which the Company and the Bank or any of their ERISA Affiliates would have any liability that is intended
to be qualified under Section 401(a) of the Code is so qualified in all material respects and nothing has occurred, whether
by action or by failure to act, which would cause the loss of such qualification. “ERISA Affiliate” means,
with respect to the Company or the Bank, any member of any group of organizations described in Sections 414(b), (c), (m) or
(o) of the Code or Section 400(b) of ERISA of which the Company or the Bank is a member.
(xxxviii) Bank
Holding Company Act; Banking Regulation. The Company is duly registered as a bank holding company under the Bank Holding
Company Act of 1956, as amended.
(xxxix) No
Regulatory Proceedings. Neither the Company nor the Bank is a party to or subject to any order, decree, agreement,
memorandum of understanding or similar agreement with, or a commitment letter, supervisory letter or similar submission to,
any federal, state or local court or governmental entity (each a “Governmental Entity”) charged
with the supervision or regulation of depository institutions or engaged in the insurance of deposits (including the Board of
Governors of the Federal Reserve System (the “FRB”), the Federal Deposit Insurance Corporation (the
“FDIC”) and the DBO) or the supervision or regulation of the Company or the Bank that restricts
materially the conduct of its business, or in any manner relates to its capital adequacy, its credit policies, or its
management and neither the Company nor the Bank has been advised by any such Governmental Entity that such Governmental
Entity is contemplating issuing or requesting (or is considering the appropriateness of issuing or requesting) any such
order, decree, agreement, memorandum of understanding, commitment letter, supervisory letter or similar submission.
(xl) Compliance with Applicable
Laws. Except where the failure to be in compliance would not result in a Material Adverse Effect, the Company and the
Bank conduct their respective businesses in compliance with all federal, state, local and foreign statutes, laws, rules, regulations,
decisions, directives and orders applicable to them (including, without limitation, all applicable regulations and orders of, or
agreements with, the FRB, the FDIC, the DBO, 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, the Bank
Secrecy Act, Title III of the USA Patriot Act, the Currency and Foreign Transaction Reporting Act of 1970, as amended, and any
applicable money laundering statutes of all jurisdictions, the rules and regulations thereunder and any related or similar rules,
regulations or guidelines, issued, administered or enforced by any Governmental Entity). Neither the Company nor the Bank
has received any communication from any Governmental Entity asserting that the Company or the Bank is not in compliance with any
statute, law, rule, regulation, decision, directive or order, except where the asserted failure to comply would not result in a
Material Adverse Effect.
(xli) Deposit Insurance.
The deposit accounts of the Bank are insured by the FDIC up to the legal maximum, the Bank has paid all premiums and assessments
required by the FDIC and the regulations thereunder and no proceeding for the termination or revocation of such insurance is pending
or, to the knowledge of the Company, threatened.
(xlii) OFAC.
None of the Company, the Bank, or to their knowledge, any officer or director of either the Company or the Bank, or to their
knowledge, any agent, employee, affiliate or person acting on behalf of the Company or the Bank, is or has been
(A) engaged in any services (including financial services), transfers of goods, software, or technology, or any other
business activity related to (i) Cuba, Iran, North Korea, Sudan, Syria or the Crimea region of Ukraine claimed by
Russia (“Sanctioned Countries”), (ii) the government of any Sanctioned Country, (iii) any
person, entity or organization located in, resident in, formed under the laws of, or owned or controlled by the government
of, any Sanctioned Country, or (iv) any person, entity or organization made the subject of any sanctions administered or
enforced by the United States Government, including, without limitation, the list of Specially Designated Nationals
(“SDN List”) of the Office of Foreign Assets Control of the U.S. Treasury Department
(“OFAC”), or by the United Nations Security Council, the European Union, Her Majesty’s
Treasury, or other relevant sanctions authority (collectively, “Sanctions”) and the Company will
not directly or indirectly use the proceeds of this offering, or lend, contribute or otherwise make available such proceeds
to any subsidiary, or any joint venture partner or other person or entity, for the purpose of financing the activities of or
business with any person, or in any country or territory, that currently is the subject to any U.S. sanctions administered by
OFAC or in any other manner that will result in a violation by any person (including any person participating in the
transaction whether as underwriter, advisor, investor or otherwise) of U.S. sanctions administered by OFAC; (B) engaged
in any transfers of goods, technologies or services (including financial services) that may assist the governments of
Sanctioned Countries or facilitate money laundering or other activities proscribed by United States laws, rules or
regulations; (C) is a person, entity or organization currently the subject of any Sanctions; or (D) located,
organized or resident in any Sanctioned Country.
(xliii) Investment Securities.
Each of the Company and the Bank 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 the Bank 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 be material to the Company and the Bank.
(xliv) Derivative Securities.
Except as has or would not reasonably be expected to result in a Material Adverse Effect, 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 the Bank or for the account of a customer of the Company
or the Bank, were entered into in the ordinary course of business and in accordance and in all material respects with applicable
laws, rules, regulations and policies of all applicable regulatory agencies and with counterparties believed to be financially
responsible at the time. The Company and the Bank have duly performed in all material respects all of their obligations thereunder
to the extent that such obligations to perform have accrued. Neither the Company nor the Bank, nor, to the knowledge of the Company,
any other party thereto, is in breach of its material obligations under any such agreement or arrangement.
(xlv) Bank Dividend Restrictions.
Except as disclosed in each of the Registration Statement, the General Disclosure Package and the Prospectus, the Bank is not currently
prohibited, directly or indirectly, under any order of the FRB (other than orders applicable to bank holding companies and their
subsidiaries generally), the FDIC, the DBO or any other Governmental Entity, under any applicable law, or under any agreement or
other instrument to which it is a party or is subject, from paying any dividends to the Company, from making any other distribution
on the Bank’s capital stock, from repaying to the Company any loans or advances to the Bank from the Company or from transferring
any of the Bank’s properties or assets to the Company.
(xlvi) Cybersecurity;
Data Protection. The Company’s and the Bank’s information technology assets and equipment, computers,
systems, networks, hardware, software, websites, applications, and databases (collectively, “IT
Systems”) are adequate for, and operate and perform in all material respects as required in connection with the
operation of the business of the Company and Bank as currently conducted, free and clear of all material bugs, errors,
defects, Trojan horses, time bombs, malware and other corruptants. The Company and the Bank have implemented and maintained
commercially reasonable controls, policies, procedures, and safeguards designed to maintain and protect their material
confidential information and the integrity, continuous operation, redundancy and security of all IT Systems and data
(including all personal, personally identifiable, sensitive, confidential or regulated data (“Personal
Data”)) used in connection with their businesses, and, to the Company’s knowledge, there have been no
breaches, violations, outages or unauthorized uses of or accesses to same, except for those that have been remedied without
material cost or liability or the duty to notify any other person, nor any incidents under internal review or investigations
relating to the same. The Company and the Bank are presently in compliance with all applicable laws or statutes and all
judgments, orders, rules and regulations of any court or arbitrator or governmental or regulatory authority, internal
policies and contractual obligations relating to the privacy and security of IT Systems and Personal Data and to the
protection of such IT Systems and Personal Data from unauthorized use, access, misappropriation or modification, except where
such non-compliance would not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect.
(b) Officer’s
Certificates. Any certificate signed by any officer of the Company delivered to the Representative or to counsel for
the Underwriters shall be deemed a representation and warranty by the Company to each Underwriter as to the matters covered thereby.
SECTION 2. Sale and Delivery
to Underwriters; Closing.
(a) Purchase
of Securities. On the basis of the representations and warranties herein contained and subject to the terms and conditions
herein set forth, the Company agrees to sell to each Underwriter, severally and not jointly, and each Underwriter, severally and
not jointly, agrees to purchase from the Company, the respective principal amount of Securities set forth in Schedule A
opposite the name of such Underwriter at a purchase price set forth in Schedule A, plus any accrued and unpaid interest
thereon.
(b) Payment
and Delivery of Securities. The Securities to be purchased by each Underwriter hereunder, in book-entry form, and in
such authorized denominations and registered in such names as the Representative may request upon at least forty-eight hours’
prior notice to the Company shall be delivered by or on behalf of the Company to the Representative, through the facilities of
The Depository Trust Company (the “DTC”), for the account of such Underwriter, against payment by or
on behalf of such Underwriter of the purchase price therefor by wire transfer of Federal (same-day) funds to the account specified
by the Company to the Representative at least forty-eight hours in advance. The time and date of such delivery and payment shall
be, with respect to the Initial Shares, 10:00 a.m. New York time, on August 10, 2020, or such other time and date as the Representative
and the Company may agree upon in writing (such time and date of payment and delivery being herein called “Closing
Time”). It is understood that each Underwriter has authorized the Representative, for its account, to accept delivery
of, receipt for, and make payment of the purchase price for, the Securities, which it has agreed to purchase. Xxxxxx, individually
and not as representative of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Securities
to be purchased by any Underwriter whose funds have not been received by the Closing Time, but such payment shall not relieve such
Underwriter from its obligations hereunder.
SECTION 3. Covenants of the Company.
The Company covenants with each Underwriter as follows:
(a) Compliance
with Securities Regulations and Commission Requests. Until the Closing Time, the Company, subject to Section 3(b), will
comply with the requirements of Rule 430A, 430B or 430C under the 1933 Act and will notify the Representative immediately,
and confirm the notice in writing, (i) when any post-effective amendment to the Registration Statement shall become effective,
or any supplement to the Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt of any comments from
the Commission, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or
supplement to the Prospectus or for additional information, (iv) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or of any order preventing or suspending the use of any preliminary prospectus,
or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the initiation or threatening
of any proceedings for any of such purposes or of any examination pursuant to Section 8(e) of the 1933 Act concerning
the Registration Statement and (v) if the Company becomes the subject of a proceeding under Section 8A of the 1933 Act
in connection with the offering of the Securities. The Company will promptly effect the filings necessary pursuant to Rule 424(b) in
the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)) and will take
such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b)
was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus. Until the Closing
Time, the Company will make every reasonable effort to prevent the issuance of any stop order described in clause (iv) above
and, if any such stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) Filing
of Amendments. The Company will give the Representative notice of its intention to file or prepare any amendment to the
Registration Statement (including any filing under Rule 462(b)), or any amendment, supplement or revision to the Prospectus,
whether pursuant to the 1933 Act, the 1934 Act or otherwise, will furnish the Representative with copies of any such documents
a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file or use any such document
to which the Representative or counsel for the Underwriters shall reasonably object.
(c) Delivery
of Registration Statements. The Company has furnished or will deliver to the Representative and counsel for the Underwriters,
without charge, as many signed copies as the Underwriters may reasonably request of the Registration Statement as originally filed
and of each amendment thereto (including exhibits filed therewith) and as many signed copies as the Underwriters may reasonably
request of all consents and certificates of experts, and will also deliver to the Representative, without charge, as many conformed
copies as the Underwriters may reasonably request of the Registration Statement as originally filed and of each amendment thereto
(without exhibits) for each of the Underwriters. The copies of the Registration Statement and each amendment thereto furnished
to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX,
except to the extent permitted by Regulation S-T.
(d) Delivery
of Prospectuses. The Company has delivered to each Underwriter, without charge, as many copies of each preliminary
prospectus as such Underwriter reasonably requested, and the Company hereby consents to the use of such copies for purposes
permitted by the 1933 Act. The Company will furnish to each Underwriter, without charge, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, such number of copies of the Prospectus (as
amended or supplemented) as such Underwriter may reasonably request. The Prospectus and any amendments or supplements
thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the
Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(e) Continued
Compliance with Securities Laws. The Company will comply with the 1933 Act and the 1933 Act Regulations and the 1934
Act so as to permit the completion of the distribution of the Securities as contemplated in this Underwriting Agreement and in
the Registration Statement, the General Disclosure Package and the Prospectus. If at any time when a prospectus is required
by the 1933 Act to be delivered in connection with sales of the Securities, any event shall occur or condition shall exist as a
result of which it is necessary, in the opinion of counsel for the Underwriters or for the Company, to amend the Registration Statement
or amend or supplement any preliminary prospectus or the Prospectus in order that such preliminary prospectus or Prospectus will
not include any untrue statements of a material fact or omit to state a material fact necessary in order to make the statements
therein not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be
necessary, in the opinion of such counsel, at any such time to amend the Registration Statement or amend or supplement any preliminary
prospectus or the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company
will promptly prepare and file with the Commission, subject to Section 3(b), such amendment or supplement as may be necessary
to correct such statement or omission or to make the Registration Statement or any preliminary prospectus or the Prospectus comply
with such requirements, and the Company will furnish to the Underwriters such number of copies of such amendment or supplement
as the Underwriters may reasonably request. If at any time following issuance of an Issuer-Represented Free Writing Prospectus
there occurred or occurs an event or development as a result of which such Issuer-Represented Free Writing Prospectus conflicted
or would conflict with the information contained in the Registration Statement or contained or would contain an untrue statement
of a material fact required to be stated therein or necessary to make the statements therein not misleading, the Company has promptly
notified or will promptly notify the Representative and has promptly amended or will promptly amend or supplement, at its own expense,
such Issuer-Represented Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission. If at any
time following issuance of an Issuer-Represented Free Writing Prospectus there occurred or occurs an event or development as a
result of which such Issuer-Represented Free Writing Prospectus conflicted or would conflict with the information contained in
the Prospectus or included or would include an untrue statement of a material fact or omitted or would omit to state a material
fact necessary in order to make the statements therein, in the light of the circumstances prevailing at that subsequent time, not
misleading, the Company has promptly notified or will promptly notify the Representative and has promptly amended or will promptly
amend or supplement, at its own expense, such Issuer-Represented Free Writing Prospectus to eliminate or correct such conflict,
untrue statement or omission.
(f) Blue
Sky Qualifications. The Company will use its best efforts, in cooperation with the Underwriters, to qualify the
Securities for offering and sale under the applicable securities laws of such states and other jurisdictions (domestic or
foreign) as the Representative may designate and to maintain such qualifications in effect as long as may be required to
complete the distribution of the Securities; provided, that the Company shall not be obligated to file any general consent to
service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not
so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise
so subject. In each jurisdiction in which the Securities have been so qualified, the Company will file such statements and
reports as may be required by the laws of such jurisdiction to continue such qualification until completion of the
distribution of the Securities. The Company will also supply the Underwriters with such information as is necessary for the
determination of the legality of the Securities for investment under the laws of such jurisdiction as the Underwriters may
request.
(g) Rule 158.
The Company will timely file such reports pursuant to the 1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the purposes of, and to provide the benefits contemplated by,
the last paragraph of Section 11(a) of the 1933 Act.
(h) Use
of Proceeds. The Company will use the net proceeds received by it from the sale of the Securities in the manner specified
in the Registration Statement, the General Disclosure Package and the Prospectus under “Use of Proceeds.”
(i) DTC
Eligibility. The Company will cooperate with the Representative and use its best efforts to permit the Securities to
be eligible for clearance, settlement and trading through the facilities of the DTC.
(j) Reporting
Requirements. The Company, during the period when the Prospectus is required to be delivered under the 1933 Act or the
1934 Act, will file all documents required to be filed with the Commission pursuant to the 1934 Act within the time periods required
by the 1934 Act.
(k) Issuer
Free Writing Prospectus. The Company represents and agrees that, unless it obtains the prior consent of the Representative,
it has not made and will not make any offer relating to the Securities that would constitute an “issuer free writing prospectus,”
as defined in Rule 433, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405,
required to be filed with the Commission. Any such free writing prospectus consented to by the Representative and the Company
is hereinafter referred to as an “Issuer Permitted Free Writing Prospectus.” The Company represents
that it has treated or agrees that it will treat each Issuer Permitted Free Writing Prospectus as an “issuer free writing
prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable
to any Issuer Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record
keeping. The Company represents that it has satisfied and agrees that it will satisfy the conditions in Rule 433 to
avoid a requirement to file with the Commission any electronic road show.
(l) Emerging
Growth Company. The Company will promptly notify the Representative if the Company ceases to be an Emerging Growth Company
at any time prior to the completion of the distribution of Securities within the meaning of the 1933 Act.
SECTION 4. Payment of Expenses.
(a) Expenses.
The Company will pay or cause to be paid all expenses incident to the performance of its obligations under this Underwriting Agreement,
including (i) the preparation, printing and filing of the Registration Statement (including financial statements and exhibits)
as originally filed and of each amendment thereto, (ii) the preparation, printing and delivery to the Underwriters of this
Underwriting Agreement, any Agreement among Underwriters and such other documents as may be required in connection with the offering,
purchase, sale, issuance or delivery of the Securities, (iii) the preparation, issuance and delivery of the certificates for
the Securities to the Underwriters, including any stock or other transfer taxes and any stamp or other duties payable upon the
sale, issuance or delivery of the Securities to the Underwriters, (iv) the fees and disbursements of the Company’s counsel,
accountants and other advisors, (v) the qualification of the Securities under securities laws in accordance with the provisions
of Section 3(f) hereof, including filing fees, (vi) the printing and delivery to the Underwriters of copies of each
preliminary prospectus, any Issuer-Represented Free Writing Prospectus, and the Prospectus and any amendments or supplements thereto
(including any costs associated with electronic delivery of these materials), (vii) the preparation, printing and delivery
to the Underwriters of copies of the Blue Sky Survey and any supplement thereto, (viii) the fees and expenses of any transfer
agent or registrar for the Securities, (ix) the costs and expenses of the Company relating to investor presentations in connection
with testing-the-waters meetings or on any “road show” undertaken in connection with the marketing of the Securities,
including without limitation, expenses associated with the production of testing-the-waters or road show slides and graphics, fees
and expenses of any consultants engaged in connection with the testing-the-waters presentations or road show, travel and lodging
expenses of the officers of the Company and any such consultants, (x) the filing fees incurred by the Underwriters in connection
with determining their compliance with the rules and regulations of FINRA related to the Underwriters’ participation in the
offering and distribution of the Securities, (xi) the fees and expenses incurred in connection with any listing of the Securities
on the Nasdaq Global Select Market, and (xii) all costs and expenses of the Underwriters, including, but not limited to, the reasonable
fees and expenses of the counsel to Underwriters, and marketing, syndication and travel expenses, provided, however, that the costs
and expenses of the Underwriters shall not exceed $120,000.
(b) Termination
of Agreement. If this Underwriting Agreement is terminated by the Representative in accordance with the provisions of
Section 5, Section 9(a) or Section 10 hereof, the Company shall reimburse the Underwriters for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of counsel for the Underwriters.
SECTION 5. Conditions of Underwriters’
Obligations. The obligations of the several Underwriters hereunder are subject to the accuracy of the representations
and warranties of the Company contained in Section 1 hereof or in certificates of any officer of the Company delivered pursuant
to the provisions hereof, to the performance by the Company of its covenants and other obligations hereunder, and to the following
further conditions:
(a) Registration
Compliance; No Stop Order. No order suspending the effectiveness of the Registration Statement shall be in effect, and no proceeding
for such purpose, pursuant to Rule 401(g)(2) or pursuant to Section 8A under the Securities Act shall be pending before or
threatened by the Commission; the Prospectus and each Issuer-Represented Free Writing Prospectus shall have been timely filed with
the Commission under the Securities Act (in the case of an Issuer-Represented Free Writing Prospectus, to the extent required by
Rule 433 under the Securities Act) and in accordance with Section 3(a) hereof; and all requests by the Commission for additional
information shall have been complied with to the reasonable satisfaction of the Representative.
(b) No
Downgrade. Subsequent to the earlier of (A) the Applicable Time and (B) the execution and delivery of this Agreement,
if there are any debt securities, including the Securities, or preferred stock of, or other securities guaranteed by, the Company
or any of its subsidiaries that are rated by a “nationally recognized statistical rating organization,” as such term
is defined by the Commission for purposes of Section 3(a)(62) of the Exchange Act, (i) no downgrading shall have occurred
in the rating accorded any such debt securities or preferred stock and (ii) no such organization shall have publicly announced
that it has under surveillance or review, or has changed its outlook with respect to, its rating of any such debt securities or
preferred stock (other than an announcement with positive implications of a possible upgrading).
(c) Opinion
of Counsel for Company. At Closing Time, the Representative shall have received the opinion, dated as of Closing Time,
of Silver, Xxxxxxxx, Xxxx & Xxxxxxx LLP, counsel for the Company, in form and substance satisfactory to counsel for the Underwriters,
together with signed or reproduced copies of such letter for each of the other Underwriters named on the cover page of the Prospectus
to the effect set forth in Exhibit A hereto. Such counsel may also state that, insofar as such opinion involves factual
matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and its subsidiaries and
certificates of public officials..
(d) Opinion
of Counsel for Underwriters. At Closing Time, the Representative shall have received the opinion, dated as of Closing
Time, of Stuart | Xxxxx | Xxxxx, Attorneys at Law, counsel for the Underwriters, together with signed or reproduced copies of such
letter for each of the other Underwriters named on the cover page of the Prospectus, in form and substance satisfactory to the
Underwriters.
(e) Officers’
Certificate. At Closing Time, the Representative shall have received a certificate of the President and Chief Executive
Officer of the Company and of the Chief Financial Officer of the Company, dated as of Closing Time, to the effect that (i) there
has been no Material Adverse Effect, (ii) the representations and warranties in Section 1(a) hereof are true and correct
with the same force and effect as though expressly made at and as of Closing Time, (iii) the Company has complied with all
agreements and satisfied all conditions on its part to be performed or satisfied at or prior to Closing Time, and (iv) no
stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have
been instituted or are pending or are, to their knowledge, contemplated by the Commission.
(f) Accountant’s
Comfort Letter. At the time of the execution of this Underwriting Agreement, the Representative shall have received from
Xxxx Xxxxx a letter dated the date hereof, in form and substance satisfactory to the Representative, together with signed or reproduced
copies of such letter for each of the other Underwriters containing statements and information of the type ordinarily included
in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial
information contained in the Registration Statement and General Disclosure Package.
(g) Bring-down
Comfort Letter. At Closing Time, the Representative shall have received from Xxxx Xxxxx a letter, dated as of Closing
Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (e) of this
Section, except that the specified date referred to shall be a date not more than three business days prior to Closing Time.
(h) No
Objection. FINRA shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness
of the underwriting terms and arrangements.
(i) No
Termination Event. On or after the date hereof, there shall not have occurred any of the events, circumstances or occurrences
set forth in Section 9(a).
(j) Rule 462(b) Registration
Statement. In the event that a Rule 462(b) Registration Statement is filed in connection with the offering
contemplated by this Underwriting Agreement, such Rule 462(b) Registration Statement shall have been filed with the Commission,
in compliance with Rule 462(b), on the date of this Underwriting Agreement and shall have become effective automatically upon
such filing.
(k) Good
Standing. The Representative shall have received on and as of the Closing Date satisfactory evidence of the good standing of
the Company and the Bank in their respective jurisdictions of organization and their good standing as a foreign corporation in
such other jurisdictions as the Representative may reasonably request, in each case in writing or any standard form of telecommunication,
from the appropriate governmental authorities of such jurisdictions.
(l) DTC.
The Securities shall be eligible for clearance and settlement through DTC.
(m) Indenture
and Securities. The Indenture shall have been duly executed and delivered by a duly authorized officer of the Company and the
Trustee, and the Securities shall have been duly executed and delivered by a duly authorized officer of the Company and duly authenticated
by the Trustee.
(n) Additional
Documents. At Closing Time counsel for the Underwriters shall have been furnished with such documents and opinions as
they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated,
or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions,
herein contained, and all proceedings taken by the Company in connection with the issuance and sale of the Securities as herein
contemplated shall be satisfactory in form and substance to the Representative and counsel for the Underwriters.
(o) Chief
Financial Officer’s Certificate. The Company shall have furnished to the Underwriters, on the date of this Agreement
and on the Closing Date, a certificate of the Company, signed by the Company’s Chief Financial Officer, in each case in the
form attached as Exhibit B hereto.
(p) Termination
of Agreement. If any condition specified in this Section shall not have been fulfilled when and as required to be
fulfilled, this Underwriting Agreement may be terminated by the Representative by written notice to the Company at any time at
or prior to Closing Time, and such termination shall be without liability of any party to any other party except as provided in
Section 4 and except that Sections 1, 6, 7 and 8 shall survive any such termination and remain in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification
of Underwriters. The Company agrees to indemnify and hold harmless each Underwriter, its affiliates (as such term is
defined in Rule 501(b) under the 0000 Xxx) (“Affiliates”), its and its Affiliates’ respective
selling agents, partners, directors, officers and employees and each person, if any, who controls any Underwriter within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act to the extent and in the manner set forth in clauses (i),
(ii) and (iii) below as follows:
(i) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), including the Rule 430B
Information, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make
the statements therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included
in any preliminary prospectus, any Issuer-Represented Free Writing Prospectus, the General Disclosure Package or the Prospectus
(or any amendment or supplement thereto), or the omission or alleged omission therefrom of a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they were made, not misleading;
(ii) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement
of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided that (subject
to Section 6(d) below) any such settlement is effected with the written consent of the Company; and
(iii) against
any and all expense whatsoever, as incurred (including the fees and disbursements of counsel chosen by the Representative), reasonably
incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by or before any
governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission,
or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above;
provided, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising
out of any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with the
Underwriter Information.
The obligations of the Company under this
Section and Section 7 below shall be in addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each Underwriter, its Affiliates, its and its Affiliates’ respective selling agents,
partners, directors, officers and employees and each person, if any, who controls any Underwriter within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act; and the several obligations of the Underwriters under this Section and
Section 7 below shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend,
upon the same terms and conditions, to each director of the Company (including any person who, with his or her consent, is named
in the Registration Statement as about to become a director of the Company), each officer of the Company who signs the Registration
Statement and to each person, if any, who controls the Company within the meaning of Section 15 of the 1933 Act or Xxxxxxx 00 xx
xxx 0000 Xxx.
(x) Indemnification
of Company, Directors and Officers. Each Underwriter severally agrees to indemnify and hold harmless the Company, its
directors, each of its officers who signed the Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act against any and all loss, liability, claim, damage,
and expense described in the indemnity contained in Section 6(a) hereof, as incurred, but only with respect to untrue statements
or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), including
the Rule 430B Information, any preliminary prospectus, any Issuer-Represented Free Writing Prospectus, or the Prospectus (or
any amendment or supplement thereto) in reliance upon and in conformity with the Underwriter Information.
(c) Actions
against Parties; Notification. Each indemnified party shall give notice as promptly as reasonably practicable to each
indemnifying party of any action commenced against it in respect of which indemnity may be sought hereunder, but failure to so
notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially
prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account
of this indemnity agreement. In the case of parties indemnified pursuant to Section 6(a) above, counsel to the
indemnified parties shall be selected by the Representative, and, in the case of parties indemnified pursuant to Section 6(b) above,
counsel to the indemnified parties shall be selected by the Company. An indemnifying party may participate at its own expense
in the defense of any such action; provided, that counsel to the indemnifying party shall not (except with the consent of the
indemnified party) also be counsel to the indemnified party. In no event shall the indemnifying parties be liable for fees
and expenses of more than one counsel (in addition to any local counsel) separate from their own counsel for all indemnified parties
in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances. No indemnifying party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or
proceeding by or before any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section 7 hereof (whether or not the indemnified
parties are actual or potential parties thereto), unless such settlement, compromise or consent (i) includes an unconditional
release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim and (ii) does
not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) Settlement
Without Consent if Failure to Reimburse. If at any time an indemnified party shall have requested an indemnifying party
to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for
any settlement of the nature contemplated by Section 6(a)(ii) effected without its written consent if (i) such settlement
is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying
party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and
(iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the
date of such settlement.
SECTION 7. Contribution.
If the indemnification provided for in Section 6 hereof is for any reason unavailable to or insufficient to hold harmless
an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying
party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified
party, as incurred, (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other hand from the offering of the Securities pursuant to this Underwriting Agreement or
(ii) if the allocation provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the
one hand and of the Underwriters on the other hand in connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company
on the one hand and the Underwriters on the other hand in connection with the offering of the Securities pursuant to this Underwriting
Agreement shall be deemed to be in the same respective proportions as the total net proceeds from the offering of the Securities
pursuant to this Underwriting Agreement (before deducting expenses) received by the Company, on the one hand, and the total underwriting
discount and commissions received by the Underwriters, on the other hand, in each case as set forth on the cover of the Prospectus
bear to the aggregate initial public offering price of the Securities as set forth on the cover of the Prospectus.
The relative fault of the Company, on the
one hand, and the Underwriters, on the other hand, shall be determined by reference to, among other things, whether any such untrue
or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties’ relative intent, 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 contribution pursuant to this Section 7 were determined by pro rata allocation (even
if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to above in this Section 7. The aggregate amount of losses, liabilities, claims,
damages and expenses incurred by an indemnified party and referred to above in this Section 7 shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon
any such untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7,
no Underwriter shall be required to contribute any amount in excess of the amount by which the total discounts, fees and commissions
received by it exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of any such
untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation.
For purposes of this Section 7, each
person, if any, who controls an Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934
Act and each Underwriter’s Affiliates, its and its Affiliates’ respective selling agents, partners, directors, officers
and employees shall have the same rights to contribution as such Underwriter, and each director of the Company, each officer of
the Company who signed the Registration Statement, and each person, if any, who controls the Company within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to contribution as the Company. The Underwriters’
respective obligations to contribute pursuant to this Section 7 are several in proportion to the aggregate principal amount
of Securities set forth opposite their respective names in Schedule A hereto and not joint.
SECTION 8. Representations, Warranties
and Agreements to Survive Delivery. All representations, warranties and agreements contained in this Underwriting Agreement
or in certificates of officers of the Company submitted pursuant hereto, shall remain operative and in full force and effect, regardless
of any (i) investigation made by or on behalf of any Underwriter, its Affiliates, its and its Affiliates’ respective
selling agents, partners, directors, officers and employees and each person, if any, who controls any Underwriter within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act, or by or on behalf of the Company, and (ii) delivery
of and payment for the Securities.
SECTION 9. Termination of Underwriting
Agreement.
(a) Termination;
General. The Representative may terminate this Underwriting Agreement, by notice to the Company, at any time at or
prior to Closing Time (i) if there has been, since the time of execution of this Underwriting Agreement or since the
respective dates as of which information is given in the Registration Statement, the General Disclosure Package or the
Prospectus, any Material Adverse Effect or if the Underwriters decline to purchase the Securities for any reason permitted
under this Agreement, (ii) if there has occurred any material adverse change in the financial markets in the United
States or the international financial markets, any outbreak of hostilities or escalation thereof or other calamity or crisis
or any change or development involving a prospective change in national or international political, financial or economic
conditions, including without limitation as a result of terrorist activities, in each case the effect of which is such as to
make it, in the judgment of the Representative, impracticable or inadvisable to market the Securities or to enforce contracts
for the sale of the Securities, (iii) if trading in any securities of the Company has been suspended or materially
limited by the Commission or the Nasdaq, or if trading generally on the New York Stock Exchange or on Nasdaq has been
suspended or materially limited, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices have
been required, by any of said exchanges or by such system or by order of the Commission, FINRA or any other governmental
authority, (iv) a material disruption has occurred in commercial banking or securities settlement or clearance services
in the United States or with respect to Clearstream or Euroclear Systems in Europe, or (v) if a banking moratorium has
been declared by either federal, California or New York authorities.
(b) Liabilities.
If this Underwriting Agreement is terminated pursuant to this Section, such termination shall be without liability of any party
to any other party except as provided in Section 4 hereof, and provided further that Sections 1, 6, 7 and 8 shall survive
such termination and remain in full force and effect.
SECTION 10. Default by the Underwriters.
If any one or more of the Underwriters shall fail or refuse to purchase the principal amount of Securities that it or they have
agreed to purchase hereunder, each non-defaulting Underwriter shall be obligated, severally, in the proportion in which the principal
amount of the Securities set forth opposite its name in Schedule I hereto bears to the aggregate principal amount Securities set
forth opposite the names of all non-defaulting Underwriters or in such other proportion as they may agree with such non-defaulting
Underwriters, to purchase the Securities that such defaulting Underwriter or Underwriters failed or refused to purchase. If any
Underwriter or Underwriters shall fail or refuse to purchase a principal amount of Securities that is more than one-tenth of the
aggregate Securities and arrangements satisfactory to the Representative and the Company for the purchase of such Securities are
not made within 48 hours after such default, this Agreement will terminate without liability on the part of any non-defaulting
Underwriter or the Company. In any such case that does not result in termination of this Agreement, either the Representative
or the Company shall have the right to postpone the Closing Date, but in no event for longer than seven (7) days, in order that
the required changes, if any, in the Registration Statement and the Prospectus or any other documents or arrangements may be effected.
Any action taken under this Section 10 shall not relieve any defaulting Underwriter from liability in respect of any such default
of any such Underwriter under this Agreement.
SECTION 11. Covenant
of the Underwriters. Each Underwriter represents and agrees that, unless it obtains the prior consent of the Company and
the Representative, it has not made and will not make any offer relating to the Securities that would constitute an
“issuer free writing prospectus,” as defined in Rule 433, or that would otherwise constitute a “free
writing prospectus,” as defined in Rule 405, required to be filed with the Commission.
SECTION 12. Notices.
All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed or transmitted
by any standard form of telecommunication. Notices to the Underwriters shall be directed to Xxxxxx Xxxxxxxxxx Xxxxx LLC,
0000 Xxxx Xxxxxx, Xxxxx 00, Xxxxxxxxxxxx, XX 00000, Attn: Xxxx Xxxxxxx, notices to the Company shall be directed to BayCom Corp,
000 Xxxxxxx Xxxxxx Xxxx, Xxxxx 000, Xxxxxx Xxxxx, Xxxxxxxxxx 00000, Attn: Xxxxxx X. Xxxxxxx.
SECTION 13. Parties.
This Underwriting Agreement shall inure to the benefit of and be binding upon the Underwriters, the Company, and their respective
successors. Nothing expressed or mentioned in this Underwriting Agreement is intended or shall be construed to give any person,
firm or corporation, other than the Underwriters, the Company, and their respective successors and the controlling persons, officers
and directors and other persons or entities referred to in Sections 6 and 7 and their heirs and legal representatives, any
legal or equitable right, remedy or claim under or in respect of this Underwriting Agreement or any provision herein contained.
This Underwriting Agreement and all conditions and provisions hereof are intended to be for the sole and exclusive benefit of the
Underwriters, the Company, and their respective successors, and said controlling persons, officers and directors and other persons
or entities and their heirs and legal representatives, and for the benefit of no other person, firm or corporation. No purchaser
of Securities from any Underwriter shall be deemed to be a successor by reason merely of such purchase.
SECTION 14. No Fiduciaries.
The Company acknowledges and agrees that (i) the purchase and sale of the Securities pursuant to this Underwriting Agreement,
including the determination of the public offering price of the Securities and any related discounts and commissions, is an arm’s-length
commercial transaction between the Company, on the one hand, and the 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 its 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 Underwriting 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.
SECTION 15. GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 16. General Provisions.
This Underwriting Agreement constitutes the entire agreement of the parties to this Underwriting Agreement and supersedes all
prior written or oral and all contemporaneous oral agreements, understandings and negotiations with respect to the subject matter
hereof. This Underwriting Agreement may be executed in counterparts, each one of which shall be an original, but all of
which together shall constitute one and the same instrument. The exchange of copies of this Underwriting Agreement and of
signature pages by facsimile or other electronic means shall constitute effective execution and delivery of this Underwriting
Agreement by the parties hereto and may be used in lieu of the original signature pages to this Underwriting Agreement for
all purposes. This Underwriting Agreement may not be amended or modified unless in writing by all of the parties hereto,
and no condition herein (express or implied) may be waived unless waived in writing by each party whom the condition is meant
to benefit. The headings herein are for convenience only and shall not affect the construction hereof.
If the foregoing is in accordance with your
understanding, please sign and return to us four counterparts hereof, and upon the acceptance hereof by the Representative, on
behalf of each of the Underwriters, this letter and such acceptance hereof shall constitute a binding agreement among each of the
Underwriters and the Company. It is understood that the Representative’s acceptance of this letter on behalf of each
of the Underwriters is pursuant to the authority set forth in a form of Agreement among Underwriters, the form of which shall be
submitted to the Company for examination upon request, but without warranty on the Representative’s part as to the authority
of the signers thereof.
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Very truly yours, |
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BAYCOM CORP |
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By: |
/s/ Xxxxxx X. Xxxxxxx |
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Name: |
Xxxxxx X. Xxxxxxx |
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Title: |
President and Chief Executive Officer |
CONFIRMED AND ACCEPTED,
as of the
date first above written:
XXXXXX XXXXXXXXXX XXXXX LLC
as Representative of the
Underwriters
By: |
Xxxxxx Xxxxxxxxxx Xxxxx LLC |
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By: |
/s/ Xxxx Xxxxxxx |
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Name: Xxxx Xxxxxxx |
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Title: Managing Director |
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SCHEDULE A
Name of Underwriter | |
Aggregate Principal
Amount of
Securities | |
Xxxxxx Xxxxxxxxxx Xxxxx LLC | |
$ | 32,500,000 | |
X.X. Xxxxxxxx & Co. | |
| 22,750,000 | |
Xxxxx Group | |
| 9,750,000 | |
Total | |
$ | 65,000,000 | |
The purchase price will be equal to 98.21% of
the Aggregate Principal Amount of Securities before expenses.
SCHEDULE B
Issuer-Represented General Free Writing
Prospectus
Investor Presentation as filed with the
Commission on August 3, 2020
Pricing Term Sheet as filed with the Commission
on August 3, 2020