NBT BANCORP INC. (a Delaware corporation) 1,576,230 Shares of Common Stock (Par Value $0.01 Per Share) UNDERWRITING AGREEMENT March 26, 2009
Exhibit
1.1
EXECUTION
COPY
(a
Delaware corporation)
1,576,230
Shares of Common Stock
(Par
Value $0.01 Per Share)
March 26,
2009
XXXXX,
XXXXXXXX & XXXXX, INC.
as
Representative of the several Underwriters
000
Xxxxxxx Xxxxxx
0xx
Xxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Ladies
and Gentlemen:
NBT
Bancorp Inc., a Delaware corporation (the “Company”), confirms its agreement
with Xxxxx, Xxxxxxxx & Xxxxx, Inc. (“Xxxxx Xxxxxxxx”) and each of the other
Underwriters named in Schedule A hereto (collectively, the “Underwriters”, which
term shall also include any underwriter substituted as hereinafter provided in
Section 10 hereof), for whom Xxxxx Xxxxxxxx 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
number of shares of Common Stock, par value $0.01 per share, of the Company
(“Common Stock”) set forth in Schedule A hereto and (ii) the grant by the
Company to the Underwriters, acting severally and not jointly, of the option
described in Section 2(b) hereof to purchase all or any part of 236,435
additional shares of Common Stock to cover over-allotments, if
any. The aforesaid 1,576,230 shares of Common Stock (the “Initial
Securities”) to be purchased by the Underwriters and all or any part of the
236,435 shares of Common Stock subject to the option described in Section 2(b)
hereof (the “Option Securities”) are hereinafter called, collectively, the
“Securities.”
The
Company understands that the Underwriters propose to make a public offering of
the Securities as soon as the Representative deems advisable after this
Agreement has been executed and delivered.
The
Company has filed with the Securities and Exchange Commission (the “Commission”)
a registration statement on Form S-3 (No. 333-158197), including the related
preliminary prospectus, if any, or prospectus covering the registration of the
Securities under the Securities Act of 1933, as amended (the “1933
Act”). Promptly after execution and delivery of this Agreement, the
Company will prepare and file a prospectus in accordance with the provisions of
Rule 430B (“Rule 430B”) of the rules and regulations of the Commission under the
1933 Act (the “1933 Act Regulations”) and paragraph (b) of Rule 424 (“Rule
424(b)”) of the 1933 Act Regulations. The information included in
such prospectus that was omitted from such registration statement at the time it
became effective but that is deemed to be part of such registration statement at
the time it became effective (a) pursuant to paragraph (b) of Rule 430B is
referred to as “Rule 430B Information.” Each prospectus used before
such registration statement became effective, and any prospectus that omitted
the Rule 430B Information that was used after such effectiveness and prior to
the execution and delivery of this Agreement, is herein called a “preliminary
prospectus.” Such registration statement, including the amendments
thereto, the exhibits and any schedules thereto, if any, and the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933
Act, at the time it became effective and including the Rule 430B Information, as
applicable, is herein called the “Registration Statement.” Any
registration statement filed pursuant to Rule 462(b) of the 1933 Act Regulations
is herein referred to as the “Rule 462(b) Registration Statement,” and after
such filing the term “Registration Statement” shall include the Rule 462(b)
Registration Statement. The final prospectus, including the documents
incorporated by reference therein, in the form first furnished to the
Underwriters for use in connection with the offering of the Securities is herein
called the “Prospectus.” For purposes of this Agreement, all
references to the Registration Statement, any preliminary prospectus, the
Prospectus or any amendment or supplement to any of the foregoing shall be
deemed to include the copy filed with the Commission pursuant to its Electronic
Data Gathering, Analysis and Retrieval system (“XXXXX”).
All
references in this Agreement to financial statements and schedules and other
information which is “contained,” “included” or “stated” in the Registration
Statement, any preliminary prospectus or the Prospectus (or other references of
like import) shall be deemed to mean and include all such financial statements
and schedules and other information which is incorporated by reference in the
Registration Statement, any preliminary prospectus or the Prospectus, as the
case may be; and all references in this Agreement to amendments or supplements
to the Registration Statement, any preliminary prospectus or the Prospectus
shall be deemed to mean and include the filing of any document under the
Securities Exchange Act of 1934 (the “1934 Act”) which is incorporated by
reference in the Registration Statement, such preliminary prospectus or the
Prospectus, as the case may be. All references to the Registration
Statement, any preliminary prospectus or the Prospectus shall be deemed to
include the information incorporated by reference into each
document.
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 as of each Date of Delivery (if any) referred to in Section
2(b) hereof, and agrees with each Underwriter, as follows:
(i) Compliance with Registration
Requirements. (A)(1) 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 Securities Act of
1933 (whether such amendment was by post-effective amendment, incorporated
report filed pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934 or form of prospectus), (3) at the time the Company or any person acting on
its behalf (within the meaning, for this clause only, of Rule 163(c)) made any
offer relating to the Securities in reliance on the exemption of Rule 163, and
(4) at the date hereof, the Company was and is a “well-known seasoned-issuer” as
defined in Rule 405 of the 1933 Act Regulations (“Rule 405”), including not
having been and not being an “ineligible issuer” as defined in Rule
405. The Registration Statement is an “automatic shelf registration
statement,” as defined in Rule 405. The Company agrees to pay the
required Commission filing fees relating to the Securities within the time
required by Rule 456(b)(1) without regard to the proviso therein and otherwise
in accordance with Rules 456(b) and 457(r).
-2-
(B) The
registration statement relating to the Securities is an “automatic shelf
registration statement,” as defined in Rule 405, that initially became effective
within three years of the date hereof. If immediately prior to the
third anniversary (the “Renewal Deadline”) of the initial effective date of the
automatic shelf registration statement relating to the Securities, any of the
Securities remain unsold by the Underwriters, the Company will prior to the
Renewal Deadline file, if it has not already done so and is eligible to do so, a
new automatic shelf registration statement relating to the Securities, in a form
satisfactory to the Representative. If the Company is no longer
eligible to file an automatic shelf registration statement, the Company will
prior to the Renewal Deadline, if it has not already done so, file a new shelf
registration statement relating to the Securities, in a form satisfactory to the
Representative, and will use its best efforts to cause such registration
statement to be declared effective within 180 days after the Renewal
Deadline. The Company will take all other action necessary or
appropriate to permit the public offering and sale of the Securities to continue
as contemplated in the expired registration statement relating to the
Securities. References herein to the registration statement relating
to the Securities shall include such new automatic shelf registration statement
or such new shelf registration statement, as the case may be.
The
Company has not received from the SEC any notice pursuant to Rule 401(g)(2)
objecting to use of the automatic shelf registration statement
form. If at any time when Securities remain unsold by the
Underwriters the Company receives from the SEC a notice pursuant to Rule
401(g)(2) or otherwise ceases to be eligible to use the automatic shelf
registration statement form, the Company will (i) promptly notify the
Representative, (ii) promptly file a new registration statement or
post-effective amendment on the proper form relating to the Securities, in a
form satisfactory to the Representative, (iii) use its best efforts to cause
such registration statement or post-effective amendment to be declared effective
as soon as practicable, and (iv) promptly notify the Representative of such
effectiveness. The Company will take all other action necessary or
appropriate to permit the public offering and sale of the Securities to continue
as contemplated in the registration statement that was the subject of the Rule
401(g)(2) notice or for which the Company has otherwise become
ineligible. References herein to the Registration Statement relating
to the Securities shall include such new registration statement or
post-effective amendment, as the case may be.
(C)(1)
The Company meets the requirements for use of Form S-3 under the 1933
Act. Each of the Registration Statement and any Rule 462(b)
Registration Statement has become effective under the 1933 Act and no stop order
suspending the effectiveness of the Registration Statement and any
post-effective amendment thereto or any Rule 462(b) Registration Statement has
been issued and any post-effective amendment thereto under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or, to the
knowledge of the Company, are contemplated by the Commission, and any request on
the part of the Commission for additional information has been complied
with.
-3-
At the
respective times the Registration Statement, any Rule 462(b) Registration
Statement and any post-effective amendments thereto became effective and at the
Closing Time (and, if any Option Securities are purchased, at the Date of
Delivery), the Registration Statement, the 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 and the 1933 Act
Regulations and did not and will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading. Neither the Prospectus
nor any amendments or supplements thereto, at the time the Prospectus or any
such amendment or supplement was issued and at the Closing Time (and, if any
Option Securities are purchased, at the Date of Delivery), included or will
include an untrue statement of a material fact or omitted 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.
Each
preliminary prospectus, if any, and the prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment thereto,
or filed pursuant to Rule 424 under the 1933 Act, complied when so filed in all
material respects with the 1933 Act and the 1933 Act Regulations and each
preliminary prospectus, if any, and the Prospectus delivered to the Underwriters
for use in connection with this offering was identical to the electronically
transmitted copies thereof filed with the Commission pursuant to XXXXX, except
to the extent permitted by Regulation S-T.
As of the
Applicable Time, neither (x) the Issuer-Represented General Free Writing
Prospectus(es) (as defined below) issued at or prior to the Applicable Time (as
defined below) and the Statutory Prospectus (as defined below), all considered
together (collectively, 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.
As used
in this subsection and elsewhere in this Agreement:
“Applicable Time” means 7:00
p.m. (Eastern time) on March 26, 2009 or such other time as agreed by the
Company and Xxxxx Xxxxxxxx.
“Statutory Prospectus” as of
any time means the prospectus relating to the Securities that is included in the
Registration Statement immediately prior to that time, including any document
incorporated by reference therein and any preliminary or other prospectus deemed
to be a part thereof. For purposes of this definition, information
contained in a form of prospectus that is deemed retroactively to be a part of
the Registration Statement pursuant to Rule 430B shall be considered to be
included in the Statutory Prospectus as of the actual time that form of
prospectus is filed with the Commission pursuant to Rule
424(b).
-4-
“Issuer-Represented Free Writing
Prospectus” means any “issuer free writing prospectus,” as defined in
Rule 433 of the 1933 Act Regulations (“Rule 433”), relating to the Securities
that (i) is required to be filed with the Commission by the Company or (ii) is
exempt from filing pursuant to Rule 433(d)(5)(i) because it contains a
description of the Securities or of the offering that does not reflect the final
terms, in each case in the form filed or required to be filed with the
Commission or, if not required to be filed, in the form retained in the
Company’s records pursuant to Rule 433(g).
“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.
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 Xxxxx
Xxxxxxxx as described in the next sentence, did not, does not and will not
include any information that conflicted, conflicts or will conflict with the
information contained in the Registration Statement or the Prospectus, including
any document incorporated by reference therein and any preliminary or other
prospectus deemed to be a part thereof that has not been superseded or modified,
including any document incorporated by reference therein and any prospectus
supplement deemed to be a part thereof that has not been superseded or
modified.
The
representations and warranties in this subsection shall not apply to statements
in or omissions from the Registration Statement, any preliminary prospectus, the
Prospectus or any Issuer-Represented Free Writing Prospectus made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through Xxxxx Xxxxxxxx expressly for use therein.
(ii)
Incorporated
Documents. The documents incorporated or deemed to be
incorporated by reference in the Registration Statement and the Prospectus, at
the time they were or hereafter are filed with the Commission, complied and will
comply in all material respects with the requirements of the 1934 Act and the
rules and regulations of the Commission thereunder (the “1934 Act Regulations”),
and, when read together with the other information in the Prospectus, at the
time the Registration Statement became effective, at the time the Prospectus was
issued and at the Closing Time (and, if any Option Securities are purchased, at
the Date of Delivery), 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.
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(iii)
Independent
Accountants. KPMG LLP, the accounting firm that certified the
financial statements and supporting schedules of the Company included in the
Registration Statement and the Prospectus, is an independent registered public
accounting firm as required by the 1933 Act and the 1933 Act Regulations. With
respect to the Company, KPMG LLP is not and has not been in violation of the
auditor independence requirements of the Xxxxxxxx-Xxxxx Act of 2002
(“Xxxxxxxx-Xxxxx Act”) and the related rules and regulations of the
Commission.
(iv)
Financial
Statements. The financial statements included in the
Registration Statement, the General Disclosure Package and the Prospectus,
together with the related schedules and notes, present fairly the financial
position of the Company and its consolidated subsidiaries at the dates indicated
and the statement of operations, stockholders’ 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 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 the information shown therein and have
been compiled on a basis consistent with that of the audited financial
statements included in the Registration Statement and the books and records of
the Company. No other financial statements or schedules are required
to be included in the Registration Statement. To the extent
applicable, all disclosures contained in the Registration Statement 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 of the
1934 Act, the rules and regulations of the 1934 Act (the “1934 Act Regulations”)
and Item 10 of Regulation S-K under the 1933 Act, as applicable.
(v)
No Material Adverse
Change in Business. Since the 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 condition, financial or otherwise, or in
the earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business and there has been no effect with respect to the
Company and its subsidiaries considered as one enterprise, which would prevent,
or be reasonably likely to prevent, the Company from consummating the
transaction contemplated by this Agreement (a “Material Adverse Effect”), (B)
there have been no transactions entered into by the Company or any of its
subsidiaries, other than those in the ordinary course of business, which are
material with respect to the Company and its subsidiaries considered as one
enterprise, and (C) except for regular quarterly dividends on the
Common Stock in amounts per share that are consistent with past practice, there
has been no dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock.
(vi)
Good Standing of
the Company. The Company is a registered financial holding
company under the Bank Holding Company Act of 1956, as amended (the “BHCA”),
with respect to NBT Bank, National Association (the “Bank”) and the Company has
been duly organized and is validly existing as a corporation in good standing
under the laws of the State of Delaware and has corporate power and authority to
own, lease and operate its properties and to conduct its business as described
in the General Disclosure Package and the Prospectus and to enter into and
perform its obligations under this 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.
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(vii)
Good Standing of
Subsidiaries. Each “significant subsidiary” of the Company (as
such term is defined in Rule 1-02 of Regulation S-X) (each a “Subsidiary” and,
collectively, the “Subsidiaries”) has been duly organized and is validly
existing as a corporation, statutory business trust or bank in good standing
under the laws of its respective jurisdiction of incorporation or organization,
has corporate power and authority to own, lease and operate its properties and
to conduct its business as described in the General Disclosure Package and the
Prospectus and is duly qualified as a foreign organization to transact business
and is in good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or to be in good
standing would not result in a Material Adverse Effect. Except as
otherwise disclosed in the Registration Statement, all of the issued and
outstanding capital stock of each such Subsidiary has been duly authorized and
validly issued, is fully paid and non-assessable and is owned by the Company,
directly or through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity; none of the outstanding
shares of capital stock of any Subsidiary was issued in violation of the
preemptive or similar rights of any securityholder of such
Subsidiary. The only subsidiaries of the Company are the Subsidiaries
listed on Schedule C hereto.
(viii)
Capitalization. As
set forth in 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.
(ix)
Authorization of
Agreement. This Agreement has been duly authorized, executed
and delivered by the Company and, when duly executed by the Underwriters, will
constitute the valid and binding agreement of the Company enforceable against
the Company in accordance with its terms, except as enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to or affecting creditors’ rights generally or by general
equitable principles and except as any indemnification or contribution
provisions thereof may be limited under applicable securities laws.
(x)
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 Agreement and, when issued and
delivered by the Company pursuant to this Agreement against payment of the
consideration set forth herein, will be validly issued and fully paid and
non-assessable; the Common Stock conforms to all statements relating thereto
contained in the Prospectus and such description conforms 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.
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(xi)
Absence of
Defaults and Conflicts. Neither the Company nor any of its
Subsidiaries is in violation of its certificate of incorporation or by-laws or
in default in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, lease or other agreement or instrument to
which the Company or any of its Subsidiaries is a party or by which it or any of
them may be bound, or to which any of the property or assets of the Company or
any Subsidiary 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 Agreement and the consummation of
the transactions contemplated herein and in the Registration Statement
(including the issuance and sale of the Securities and the use of the proceeds
from the sale of the Securities as described in 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 any
subsidiary 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 certificate of incorporation or by-laws of
the Company or any subsidiary 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 any
subsidiary or any of their assets, properties or operations. As used
herein, a “Repayment Event” means any event or condition which gives the holder
of any note, debenture or other evidence of indebtedness (or any person acting
on such holder’s behalf) the right to require the repurchase, redemption or
repayment of all or a portion of such indebtedness by the Company or any
subsidiary.
(xii)
Absence of
Labor Dispute. No labor dispute with the employees of the
Company or any Subsidiary exists or, to the knowledge of the Company, is
imminent, which, in any case, could reasonably be expected to result in a
Material Adverse Effect.
(xiii)
Absence of
Proceedings. (A) 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 any Subsidiary, which is
required to be disclosed in the Registration Statement (other than as disclosed
therein), or which could reasonably be expected to result in a Material Adverse
Effect; the aggregate of all pending legal or governmental proceedings to which
the Company or any Subsidiary is a party or of which any of their respective
property or assets is the subject which are not described in the Registration
Statement, including ordinary routine litigation incidental to the business,
could not reasonably be expected to result in a Material Adverse
Effect.
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(B) Except
as disclosed in the Prospectus and the General Disclosure Package, neither the
Company nor any of its Subsidiaries is a party to or subject to any order,
decree, agreement, memorandum or understanding or similar agreement with, or a
commitment letter, supervisory letter or similar submission to, any Governmental
Entity charged with the supervision or regulation of depository institutions or
engaged in the insurance of deposits (including the FDIC) or the supervision or
regulation of it or any of its Subsidiaries and neither the Company nor any of
its Subsidiaries 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 or understanding, commitment letter, supervisory letter or similar
submission.
(xiv)
Accuracy
of Exhibits. There are no contracts or documents which are
required to be described in the Registration Statement, or the General
Disclosure Package, the Prospectus or the documents incorporated by reference
therein or to be filed as exhibits thereto which have not been so described and
filed as required.
(xv)
Possession of
Intellectual Property. The Company and its Subsidiaries own or
possess rights to use, or can acquire on reasonable terms ownership of or rights
to use, 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 them, and neither
the Company nor any of its Subsidiaries 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 any of its Subsidiaries therein, and which
infringement or conflict (if the subject of any unfavorable decision, ruling or
finding) or invalidity or inadequacy, singly or in the aggregate, would result
in a Material Adverse Effect.
(xvi)
Absence of
Further Requirements. No filing with, or authorization,
approval, consent, license, order, registration, qualification or decree of, any
court or governmental authority or agency is necessary or required for the
performance by the Company of its obligations hereunder, in connection with the
offering, issuance or sale of the Securities hereunder or the consummation of
the transactions contemplated by this Agreement, except such as have been
already obtained or as may be required under the 1933 Act or the 1933 Act
Regulations.
(xvii)
Possession of
Licenses and Permits. The Company and its Subsidiaries possess
such permits, licenses, approvals, consents and other authorizations
(collectively, “Governmental Licenses”) issued by the appropriate federal, state
or local regulatory agencies or bodies necessary to conduct the business now
operated by them; the Company and its subsidiaries are in compliance with the
terms and conditions of all such Governmental Licenses, except where the failure
so to comply would not, singly or in the aggregate, have a Material Adverse
Effect; all of the Governmental Licenses are valid and in full force and effect,
except where the invalidity of such Governmental Licenses or the failure of such
Governmental Licenses to be in full force and effect would not have a Material
Adverse Effect; and neither the Company nor any of its Subsidiaries has received
any notice of proceedings relating to the revocation or modification of any such
Governmental Licenses which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would result in a Material Adverse
Effect. Neither the Company nor any of its Subsidiaries has failed to
file with applicable regulatory authorities any statement, report, information
or form required by any applicable law, regulation or order, except where the
failure to be so in compliance would not, individually or in the aggregate, have
a Material Adverse Effect, all such filings were in material compliance with
applicable laws when filed and no material deficiencies have been asserted by
any regulatory commission, agency or authority with respect to any such filings
or submissions.
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(xviii)
Title to
Property. The Company and its Subsidiaries have good and
marketable title to all real property owned by the Company and its Subsidiaries
and good title to all other properties owned by them, in each case, free and
clear of all mortgages, pledges, liens, security interests, claims, restrictions
or encumbrances of any kind except such as (a) are described in the General
Disclosure Package and the Prospectus or (b) do not, singly or in the aggregate,
materially affect the value of such property and do not interfere with the use made and
proposed to be made of such property by the Company or any of its Subsidiaries;
and all of the leases and subleases material to the business of the Company and
its Subsidiaries, considered as one enterprise, and under which the Company or
any of its Subsidiaries holds properties described in the General Disclosure
Package and the Prospectus, are in full force and effect, and neither the
Company nor any Subsidiary has any notice of any material claim of any sort that
has been asserted by anyone adverse to the rights of the Company or any
Subsidiary under any of the leases or subleases mentioned above, or affecting or
questioning the rights of the Company or such Subsidiary to the continued
possession of the leased or subleased premises under any such lease or
sublease.
(xix)
Investment Company
Act. The Company is not, and upon the issuance and sale of the
Securities as herein contemplated and the application of the net proceeds
therefrom as described in the General Disclosure Package and the 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”).
(xx)
Environmental
Laws. Except as described in the Registration Statement and
except as would not, singly or in the aggregate, result in a Material Adverse
Effect, (A) neither the Company nor any of its Subsidiaries is in violation of
any federal, state or local statute, law, rule, regulation, ordinance, code,
policy or rule of common law or any judicial or administrative interpretation
thereof, including any judicial or administrative order, consent, decree or
judgment, relating to pollution or protection of human health, the environment
(including, without limitation, ambient air, surface water, groundwater, land
surface or subsurface strata) or wildlife, including, without limitation, laws
and regulations relating to the release or threatened release of chemicals,
pollutants, contaminants, wastes, toxic substances, hazardous substances,
petroleum or petroleum products, asbestos-containing materials or mold
(collectively, “Hazardous Materials”) or to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
Hazardous Materials (collectively, “Environmental Laws”), (B) the Company and
its Subsidiaries have all permits, authorizations and approvals required under
any applicable Environmental Laws and are each in compliance with their
requirements, (C) there are no pending or threatened administrative, regulatory
or judicial actions, suits, demands, demand letters, claims, liens, notices of
noncompliance or violation, investigation or proceedings relating to any
Environmental Law against the Company or any of its Subsidiaries and (D) there
are no events or circumstances that might reasonably be expected to form the
basis of an order for clean-up or remediation, or an action, suit or proceeding
by any private party or governmental body or agency, against or affecting the
Company or any of its Subsidiaries relating to Hazardous Materials or any
Environmental Laws.
-10-
(xxi)
Taxes. The
Company and each of the Subsidiaries has (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, (b) paid in
full all taxes required to be paid by it and any other assessment, fine or
penalty levied against it, except for any such tax assessment, fine or penalty
that is currently being contested in good faith or as would not have,
individually or in the aggregate, a Material Adverse Effect, and (c) established
on the most recent balance sheet reserves that are adequate for the payment of
all taxes not yet due and payable.
(xxii)
Insurance. The
Company and its Subsidiaries carry, or are covered by, insurance in such amounts
and covering such risks as the Company reasonably believes are adequate for the
conduct of the business of the Company and its Subsidiaries and the value of
their properties and as are customary in the business in which the Company and
its Subsidiaries are engaged; neither the Company nor any of its Subsidiaries
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.
(xxiii)
Statistical and
Market Data. The statistical and market related data contained
in the Prospectus and Registration Statement are based on or derived from
sources which the Company believes are reliable and accurate.
(xxiv)
Relationship. No
relationship, direct or indirect, exists between or among the Company or any of
its Subsidiaries, on the one hand, and the directors, officers, shareholders,
customers or suppliers of the Company or any of its Subsidiaries, on the other,
that is required by the Securities Act or by the rules and regulations of the
Commission thereunder to be described in the Registration Statement and/or the
Prospectus and that is not so described.
(xxv)
Internal
Control Over Financial Reporting. The Company and each of its
Subsidiaries maintains a system of internal accounting controls sufficient to
provide reasonable assurance that (A) transactions are executed in accordance
with management’s general or specific authorizations; (B) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles 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. Except as described in the Registration Statement,
General Disclosure Package and Prospectus, 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.
-11-
(xxvi)
Disclosure
Controls and Procedures. The Company and its Subsidiaries
employ disclosure controls and procedures (as such term is defined in Rule
13a-15 under the 1934 Act), which (A) are designed to ensure that information
required to be disclosed by the Company in the reports that it files or submits
under the 1934 Act is recorded, processed, summarized and reported within the
time periods specified in the Commission’s rules and forms and that material
information relating to the Company and its Subsidiaries is made known to the
Company’s principal executive officer and principal financial officer by others
within the Company and its Subsidiaries to allow timely decisions regarding
disclosure, and (B) are effective in all material respects to perform the
functions for which they were established. Based on the evaluation of
the Company’s and each Subsidiary’s disclosure controls and procedures described
above, the Company is not aware of (1) any significant deficiency in the design
or operation of internal controls which could adversely affect the Company’s
ability to record, process, summarize and report financial data or any material
weaknesses in internal controls or (2) any fraud, whether or not material, that
involves management or other employees who have a significant role in the
Company’s internal controls. Since the most recent evaluation of the
Company’s disclosure controls and procedures described above, there have been no
significant changes in internal controls or in other factors that could
significantly affect internal controls.
(xxvii)
Compliance with
the Xxxxxxxx-Xxxxx Act. There is and has been no failure on
the part of the Company or any of the Company’s directors or officers, in their
capacities as such, to comply in all material respects with any applicable
provision of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations
promulgated in connection therewith (the “Xxxxxxxx-Xxxxx Act”), including
Section 402 related to loans and Sections 302 and 906 related to
certifications.
(xxviii)
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.
(xxix)
Unlawful
Payments. Neither the Company nor any of its Subsidiaries nor,
to the knowledge of the Company, any director, officer, agent, employee or other
person associated with or acting on behalf of the Company or any of its
Subsidiaries has (A) used any corporate funds for any unlawful contribution,
gift, entertainment or other unlawful expense relating to political activity;
(B) made any direct or indirect unlawful payment to any foreign or domestic
government official or employee from corporate funds; (C) violated or is in
violation of any provision of the Foreign Corrupt Practices Act of 1977; or (D)
made any bribe, rebate, payoff, influence payment, kickback or other unlawful
payment.
-12-
(xxx)
No
Registration Rights. No person has the right to require the
Company or any of its Subsidiaries 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.
(xxxi)
No
Stabilization or Manipulation. Neither the Company nor any of
its Subsidiaries, nor any affiliates of the Company or its Subsidiaries, has
taken, directly or indirectly, any action designed to or that could reasonably
be expected to cause or result in any stabilization or manipulation of the price
of the Securities.
(xxxii)
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 Xxxxx
Xxxxxxxx.
(xxxiii)
Forward-Looking
Statements. No forward-looking statement (within the meaning
of Section 27A of the 1933 Act and Section 21E of the 0000 Xxx) contained in the
Registration Statement and the Prospectus has been made or reaffirmed without a
reasonable basis or has been disclosed other than in good faith.
(xxxiv)
Lock-up
Agreements. Each of the Company’s executive officers and
directors, in each case as listed on Schedule D hereto, has executed and
delivered lock-up agreements as contemplated by Section 5(i)
hereof.
(xxxv)
Fees. Other
than as contemplated by this Agreement, there is no broker, finder or other
party that is entitled to receive from the Company or any Subsidiary any
brokerage or finder’s fee or any other fee, commission or payment as a result of
the transactions contemplated by this Agreement.
(xxxvi)
ERISA. The
Company and each of the Subsidiaries or their “ERISA Affiliates” (as defined
below) are in compliance in all material respects with all presently applicable
provisions of the Employee Retirement Income Security Act of 1974, as amended,
including the regulations and published interpretations thereunder (“ERISA”); no
“reportable event” (as defined in ERISA) has occurred with respect to any
“employee benefit plan” (as defined in ERISA) for which the Company or any of
the Subsidiaries or ERISA Affiliates would have any liability; the Company and
each of the Subsidiaries or their ERISA Affiliates have not incurred and do not
expect to incur liability under (i) Title IV of ERISA with respect to
termination of, or withdrawal from, any “employee benefit plan” or (ii) 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 each of its Subsidiaries or any of their ERISA Affiliates would have
any liability that is intended to be qualified under Section 401(a) of the Code
is so qualified in all material respects and nothing as occurred, whether by
action or by failure to act, which would cause the loss of such
qualification. “ERISA Affiliate” means, with respect to the Company
or a Subsidiary, any member of any group of organizations described in Sections
414(b), (c), (m) or (o) of the Code or Section 400(b) of ERISA of which the
Company or such Subsidiary is a member.
-13-
(xxxvii)
Compliance with
Statutes and Regulations. Except as disclosed in the
Prospectus and the General Disclosure Package, the Company and its Subsidiaries
conduct their respective businesses in compliance in all material respects with
all federal, state, and local statutes, laws, rules, regulations, decisions,
directives and orders applicable to them, and neither the Company nor any of its
Subsidiaries has received any written or, to the Company’s knowledge, oral
communication from any Governmental Entity asserting that the Company or any of
its Subsidiaries is not in compliance with any statute, law, rule, regulation,
decision, directive or order.
(xxxviii)
Anti-Money
Laundering. Except as disclosed in the Final Prospectus and
the General Disclosure Package, the operations of the Company and its
Subsidiaries are and have been conducted at all times in compliance in all
material respects with applicable financial recordkeeping and reporting
requirements of the Currency and Foreign Transactions Reporting Act of 1970, as
amended, money laundering statutes applicable to the Company and its
Subsidiaries, the rules and regulations thereunder and any related or similar
rules, regulations or guidelines, issued, administered or enforced by any
governmental agency (collectively, the “Money Laundering Laws”).
(xxxix)
Reportable
Transactions. Neither the Company nor any of its Subsidiaries
has participated in any reportable transaction, as defined in Treasury
Regulation Section 1.6011-(4)(b)(1).
(xl)
Investment
Securities. Except as disclosed in the General Disclosure
Schedule or Prospectus, each of the Company and its Subsidiaries has good and
marketable title to all securities held by it (except securities sold under
repurchase agreements or held in any fiduciary or agency capacity) free and
clear of any lien, claim, charge, option, encumbrance, mortgage, pledge or
security interest or other restriction of any kind, except to the extent such
securities are pledged in the ordinary course of business consistent with
prudent business practices to secure obligations of the Company or any of its
Subsidiaries and except for such defects in title or liens, claims, charges,
options, encumbrances, mortgages, pledges or security interests or other
restrictions of any kind that would not be material to the Company and its
Subsidiaries. Such securities are valued on the books of the Company
and its Subsidiaries in accordance with GAAP.
(xli)
Derivative
Instruments. Any and all material swaps, caps, floors,
futures, forward contracts, option agreements (other than employee stock
options) and other derivative financial instruments, contracts or arrangements,
whether entered into for the account of the Company or one of its Subsidiaries
or for the account of a customer of the Company or one of its Subsidiaries, were
entered into in the ordinary course of business and in accordance with prudent
business practice and applicable laws, rules, regulations and policies of all
applicable regulatory agencies and with counterparties believed to be
financially responsible at the time. The Company and each of its
Subsidiaries have duly performed in all material respects all of their
obligations thereunder to the extent that such obligations to perform have
accrued, and there are no breaches, violations or defaults or allegations or
assertions of such by any party thereunder.
-14-
(xlii)
Insurance
Subsidiary. Any direct or indirect subsidiary of the Company
which is engaged in the business of acting as an insurance agency (an “Insurance
Subsidiary”) is duly licensed or registered with any applicable regulatory
authorities in each jurisdiction where it is required to be so licensed or
registered to conduct its business, except where the failure to be so licensed
or registered would not have a Material Adverse Effect; each Insurance
Subsidiary has all other necessary approvals of and from all applicable
regulatory authorities, to conduct its businesses, except where the failure to
have such approvals would not have a Material Adverse Effect; no Insurance
Subsidiary has received any notification from any applicable regulatory
authority to the effect that any additional approvals from such regulatory
authority are needed to be obtained by such subsidiary and have not been
obtained, in any case where it could be reasonably expected that the Insurance
Subsidiary will be unable to obtain such additional approvals and the failure to
obtain any such additional approvals would require such Insurance Subsidiary to
cease or otherwise materially limit the conduct of its business; and each
Insurance Subsidiary is in compliance with the requirements of insurance laws
and regulations of each jurisdiction that are applicable to such Insurance
Subsidiary, and has filed all notices, reports, documents or other information
required to be filed thereunder, with such exceptions as would not have,
individually or in the aggregate, a Material Adverse Effect.
(b) Officer’s
Certificates. Any certificate signed by any officer of the
Company or any of its Subsidiaries 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) Initial Securities. On the basis of
the representations and warranties herein contained and subject to the terms and
conditions herein set forth, the Company agrees to sell to each
Underwriter, severally and not jointly, and each Underwriter, severally and not
jointly, agrees to purchase from the Company, at the price per share set forth
in Schedule E, that proportion of the number of Initial Securities set forth in
Schedule A opposite the name of such Underwriter, plus any additional number of
Initial Securities which such Underwriter may become obligated to purchase
pursuant to the provisions of Section 10 hereof.
(b) Option
Securities. In addition, on the basis of the representations
and warranties herein contained and subject to the terms and conditions herein
set forth, the Company hereby grants an option to the Underwriters, severally
and not jointly, to purchase up to an additional 236,435 shares of Common Stock
at the price per share set forth in Schedule E, less an amount per share equal
to any dividends or distributions declared by the Company and payable on the
Initial Securities but not payable on the Option Securities. The
option hereby granted will expire 30 days after the date hereof and may be
exercised in whole or in part from time to time only for the purpose of covering
over-allotments which may be made in connection with the offering and
distribution of the Initial Securities upon notice by the Representative to the
Company setting forth the number of Option Securities as to which the several
Underwriters are then exercising the option and the time and date of payment and
delivery for such Option Securities. Any such time and date of
delivery (a “Date of Delivery”) shall be determined by the Representative, but
shall not be later than seven full business days after the exercise of said
option, nor in any event prior to the Closing Time, as hereinafter
defined. If the option is exercised as to all or any portion of the
Option Securities, each of the Underwriters, acting severally and not jointly,
will purchase that proportion of the total number of Option Securities then
being purchased which the number of Initial Securities set forth in Schedule A
opposite the name of such Underwriter bears to the total number of Initial
Securities, subject in each case to such adjustments as the Representative in
its discretion shall make to eliminate any sales or purchases of fractional
shares.
-15-
(c) Payment. Payment
of the purchase price for, and delivery of certificates for, the Initial
Securities shall be made at the offices of Xxxxxxx Procter LLP, Exchange Place,
00 Xxxxx Xxxxxx, Xxxxxx, XX 00000, or at such other place as shall be agreed
upon by the Representative and the Company, at 9:00 A.M. (Eastern time) on the
third (fourth, if the pricing occurs after 4:30 P.M. (Eastern time) on any given
day) business day after the date hereof (unless postponed in accordance with the
provisions of Section 10), or such other time not later than ten business days
after such date as shall be agreed upon by the Representative and the Company
(such time and date of payment and delivery being herein called “Closing
Time”).
In
addition, in the event that any or all of the Option Securities are purchased by
the Underwriters, payment of the purchase price for, and delivery of
certificates for, such Option Securities shall be made at the above-mentioned
offices, or at such other place as shall be agreed upon by the Representative
and the Company, on each Date of Delivery as specified in the notice from the
Representative to the Company.
Delivery
of the Initial Securities and the Option Securities, if any, shall be made to
the Underwriters against payment by the Underwriters of the aggregate purchase
price of the Initial Securities and Option Securities, if any, being sold by the
Company by wire transfer of immediately available funds to the accounts
specified by the Company. The Company shall deliver the Initial
Securities and Option Securities, if any, through the facilities of the
Depository Trust Company (the “DTC”) unless the Underwriters shall otherwise
instruct. 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 Initial Securities and the Option
Securities, if any, which it has agreed to purchase. Xxxxx Xxxxxxxx,
individually and not as representative of the Underwriters, may (but shall not
be obligated to) make payment of the purchase price for the Initial Securities
or the Option Securities, if any, to be purchased by any Underwriter whose funds
have not been received by the Closing Time or the relevant Date of Delivery, as
the case may be, but such payment shall not relieve such Underwriter from its
obligations hereunder.
(d) Denominations;
Registration. Certificates for the Initial Securities and the
Option Securities, if any, shall be in such denominations and registered in such
names as the Representative may request in writing at least one full business
day before the Closing Time or the relevant Date of Delivery, as the case may
be. The certificates for the Initial Securities and the Option
Securities, if any, will be made available for examination and packaging by the
Representative in the City of New York not later than 10:00 A.M. (Eastern time)
on the business day prior to the Closing Time or the relevant Date of Delivery,
as the case may be.
-16-
SECTION
3. Covenants of the
Company. The Company covenants with each Underwriter as
follows:
(a) Compliance with Securities
Regulations and Commission Requests. The Company, subject to
Section 3(b), will comply with the requirements of Rule 430B, as applicable, 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. The Company will make every reasonable effort to prevent
the issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(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 either any preliminary prospectus (including the prospectus included
in the Registration Statement at the time it became effective) or 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, signed copies
of the Registration Statement as originally filed and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein and
documents incorporated or deemed to be incorporated by reference therein) and
signed copies of all consents and certificates of experts. 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.
-17-
(d) Delivery of
Prospectuses. The Company has delivered to each Underwriter,
without charge, as many copies of each preliminary prospectus, if any, 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 and the 1934 Act Regulations so as to permit
the completion of the distribution of the Securities as contemplated in this
Agreement and in the 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 Representative or for the
Company, to amend the Registration Statement or amend or supplement the
Prospectus in order that the Prospectus will not include any untrue statements
of a material fact or omit to state a material fact necessary in order to make
the statements therein not misleading in the light of the circumstances existing
at the time it is delivered to a purchaser, or if it shall be necessary, in the
opinion of such counsel, at any such time to amend the Registration Statement or
amend or supplement the 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 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 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
as the Representative may designate and to maintain such qualifications in
effect for a period of not less than one year from the later of the effective
date of the Registration Statement and any Rule 462(b) Registration Statement;
provided, however, that the Company shall not be obligated to file any general
consent to service of process or to qualify as a foreign corporation or as a
dealer in securities in any jurisdiction in which it is not so qualified or to
subject itself to taxation in respect of doing business in any jurisdiction in
which it is not otherwise so subject. In each jurisdiction in which
the Securities have been so qualified, the Company will file such statements and
reports as may be required by the laws of such jurisdiction to continue such
qualification in effect for a period of not less than one year from the
effective date of the Registration Statement and any Rule 462(b) Registration
Statement. The Company will also supply the 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.
-18-
(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 Prospectus under
“Use of Proceeds”.
(i)
Listing. The
Company will use its commercial best efforts to list the Securities on the
Nasdaq Global Select Market and maintain the listing of the Securities on the
Nasdaq Global Select Market.
(j)
Restriction on Sale of
Securities. During a period of 90 days from the date of the
Prospectus, the Company will not, without the prior written consent of the
Representative, (i) directly or indirectly, offer, pledge, sell, contract to
sell, sell any option or contract to purchase, purchase any option or contract
to sell, grant any option, right or warrant to purchase or otherwise transfer or
dispose of any share of Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock or file any registration statement
under the 1933 Act with respect to any of the foregoing or (ii) enter into any
swap or any other agreement or any transaction that transfers, in whole or in
part, directly or indirectly, the economic consequence of ownership of the
Common Stock, whether any such swap or transaction described in clause (i) or
(ii) above is to be settled by delivery of Common Stock or such other
securities, in cash or otherwise. The foregoing sentence shall not
apply to (A) the Securities to be sold hereunder, (B) any shares of Common Stock
issued by the Company upon the exercise of an option or warrant or the
conversion of a security outstanding on the date hereof and referred to in the
Prospectus, (C) any shares of Common Stock issued or options to purchase Common
Stock granted pursuant to existing employee benefit plans of the Company
referred to in the Prospectus provided that such options shall not be vested and
exercisable within the 90-day period referred to above, or (D) any shares of
Common Stock issued pursuant to any non-employee director stock plan or dividend
reinvestment plan.
(k) 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 and the 1934 Act
Regulations.
-19-
(l)
Issuer Free Writing
Prospectus. The Company represents and agrees that, unless it obtains the
prior consent of the Representative, and 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. 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 and when 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.
SECTION
4. Payment of
Expenses.
(a) Expenses. The
Company will pay or cause to be paid all expenses incident to the performance of
their obligations under this Agreement, including (i) the preparation, printing
and filing of the Registration Statement (including financial statements and
exhibits) as originally filed and of each amendment thereto, (ii) the
preparation, printing and delivery to the Underwriters of this 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 and the reasonable fees and disbursements of counsel for
the Underwriters in connection therewith and in connection with the preparation
of the Blue Sky Survey and any supplement thereto, (vi) the printing and
delivery to the Underwriters of copies of each preliminary prospectus, any
Issuer Permitted Free Writing Prospectus and of 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 on any “road show” undertaken in connection with the marketing of
the Securities, including without limitation, expenses associated with the
production of road show slides and graphics, fees and expenses of any
consultants engaged in connection with the road show presentations, travel and
lodging expenses of the representatives and officers of the Company and any such
consultants, and the cost of aircraft and other transportation chartered in
connection with the road show, (x) the filing fees incident to, and the
reasonable fees and disbursements of counsel to the Underwriters in connection
with, the review by the Financial Industry Regulatory Authority (the “FINRA”) of
the terms of the sale of the Securities and (xi) the fees and expenses incurred
in connection with the inclusion of the Securities in the Nasdaq Global Select
Market.
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(b) Termination of
Agreement. If this Agreement is terminated by the
Representative in accordance with the provisions of Section 5, Section 9(a)(i)
or Section 11 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 or any Subsidiary of the Company delivered pursuant to the
provisions hereof, to the performance by the Company of its covenants and other
obligations hereunder, and to the following further conditions:
(a) Effectiveness of Registration
Statement. The Registration Statement, including any Rule
462(b) Registration Statement, has become effective and at the Closing Time no
stop order suspending the effectiveness of the Registration Statement shall have
been issued under the 1933 Act or proceedings therefor initiated or threatened
by the Commission, and any request on the part of the Commission for additional
information shall have been complied with to the reasonable satisfaction of
counsel to the Underwriters. A prospectus containing the Rule 430B
Information shall have been filed with the Commission in the manner and within
the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)) (or
a post-effective amendment providing such information shall have been filed and
declared effective in accordance with the requirements of Rule
430B). Any material required to be filed by the Company pursuant to
Rule 433(d) under the Act, shall have been filed with the Commission within the
applicable time periods prescribed for such filings by Rule 433.
(b) Opinion of Counsel for
Company. At the Closing Time, the Representative shall have
received the favorable opinion and letter, dated as of the Closing Time, of
Xxxxx & 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 to the effect set forth
in Exhibit A hereto.
(c) Opinion of Counsel for
Representative. At the Closing Time, the Representative shall
have received the favorable opinion, dated as of Closing Time, of Xxxxxxx
Procter LLP, counsel for the Representative, together with signed or reproduced
copies of such letter for each of the other Underwriters. The opinion
shall address such matters as the Representative may reasonably
request. In giving such opinion such counsel may rely, as to all
matters governed by the laws of jurisdictions other than the law of the State of
New York and the federal law of the United States and the General Corporation
Law of the State of Delaware, upon the opinions of counsel satisfactory to the
Representative. 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) Officers’
Certificate. At the Closing Time, the Representative shall
have received a certificate of the Company executed by the President or an
Executive Vice President of the Company and by the chief financial or chief
accounting officer of the Company, dated as of Closing Time, to the effect that
(i) there has been no Material Adverse Effect, (ii) the representations and
warranties in Section 1(a) hereof are true and correct with the same force and
effect as though expressly made at and as of Closing Time, (iii) the Company has
complied with all agreements and satisfied all conditions on its part to be
performed or satisfied 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.
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(e)
Accountant’s
Comfort Letter. At the time of the execution of this
Agreement, the Representative and the Board of Directors of the Company shall
have received from KPMG LLP a letter dated such date, 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 the
Prospectus.
(f)
Bring-down Comfort
Letter. At the Closing Time, the Representative and the Board
of Directors of the Company shall have received from KPMG LLP a letter, dated as
of the Closing Time, to the effect that they reaffirm the statements made in the
letter furnished pursuant to subsection (e) of this Section, except that the
specified date referred to shall be a date not more than three business days
prior to the Closing Time.
(g) Approval of
Listing. The Common Stock (including the Securities) is
registered pursuant to Section 12(b) of the Exchange Act and is listed on the
Nasdaq Global Select Market, and the Company has taken no action designed to, or
likely to have the effect of, terminating the registration of the Common Stock
under the Exchange Act or delisting the Common Stock from the Nasdaq Global
Select Market, nor has the Company received any notification that the Commission
or the Nasdaq Global Select Market is contemplating terminating such
registration or listing.
(h) Lock-up
Agreements. At the date of this Agreement, the Representative
shall have received an agreement substantially in the form of Exhibit B hereto
signed by the persons listed on Schedule D hereto.
(i)
Delivery of
Prospectus. The Company shall have complied with the
provisions hereof with respect to the furnishing of prospectuses, in electronic
or printed format, on the New York business day next succeeding the date of this
Agreement.
(j)
No Termination
Event. On or after the date hereof, there shall not have
occurred any of the events, circumstances or occurrences set forth in Section
9(a).
(k) Conditions to Purchase of Option
Securities. In the event that the Underwriters exercise their
option provided in Section 2(b) hereof to purchase all or any portion of the
Option Securities, the representations and warranties of the Company contained
herein and the statements in any certificates furnished by the Company and any
Subsidiary of the Company hereunder shall be true and correct as of each Date of
Delivery and, at the relevant Date of Delivery, the Representative shall have
received:
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(i)
Officers’
Certificate. A certificate, dated such Date of Delivery, of
the Company executed by the President or a Vice President of the Company and by
the chief financial or chief accounting officer of the Company confirming that
the certificate delivered at the Closing Time pursuant to Section 5(e) hereof
remains true and correct as of such Date of Delivery.
(ii)
Opinion of
Counsel for Company. The favorable opinion and letter of Xxxxx
& Xxxxxxx LLP, counsel for the Company, in form and substance satisfactory
to counsel for the Representative, to the effect set forth in Exhibit A hereto,
dated such Date of Delivery, relating to the Option Securities to be purchased
on such Date of Delivery and otherwise to the same effect as the opinion and
letter required by Section 5(b) hereof.
(iii)
Opinion of
Counsel for Representative. The favorable opinion of Xxxxxxx
Procter LLP, counsel for the Representative, dated such Date of Delivery,
relating to the Option Securities to be purchased on such Date of Delivery and
otherwise to the same effect as the opinion required by Section 5(d)
hereof.
(iv)
Bring-down
Comfort Letter. A letter from KPMG LLP, in form and substance
satisfactory to the Representative and dated such Date of Delivery,
substantially in the same form and substance as the letter furnished to the
Representative pursuant to Section 5(f) hereof, except that the “specified date”
in the letter furnished pursuant to this paragraph shall be a date not more than
five days prior to such Date of Delivery.
(v)
No Termination
Event. There shall not have occurred prior to the Date of
Delivery any of the events, circumstances or occurrences set forth in Section
9(a).
(l)
Additional
Documents. At the Closing Time and at each Date of Delivery
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 Representative.
(m) Termination of
Agreement. If any condition specified in this Section shall
not have been fulfilled when and as required to be fulfilled, this Agreement,
or, in the case of any condition to the purchase of Option Securities on a Date
of Delivery which is after the Closing Time, the obligations of the several
Underwriters to purchase the relevant Option Securities, may be terminated by
the Representative by notice to the Company at any time at or prior to Closing
Time or such Date of Delivery, as the case may be, and
such termination shall be without liability of any party to any other
party except as provided in Section 4 and except that Sections 1, 6, 7 and 8
shall survive any such termination and remain in full force and
effect.
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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 selling agents, 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) 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, if applicable, or the omission or
alleged omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out of any
untrue statement or alleged untrue statement of a material fact included in any
preliminary prospectus, any Issuer-Represented Free Writing Prospectus 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 Xxxxx Xxxxxxxx),
reasonably incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or, to the
extent that any such expense is not paid under (i) or (ii) above;
provided, however, that this
indemnity agreement shall not apply to any loss, liability, claim, damage or
expense to the extent arising out of any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with
written information furnished to the Company by any Underwriter expressly for
use in the Registration Statement (or any amendment thereto), including the Rule
430B Information, or any preliminary prospectus, any Issuer-Represented Free
Writing Prospectus, or the Prospectus (or any amendment or supplement thereto);
provided that the parties acknowledge and agree that the only written
information that the Underwriters have furnished to the Company specifically for
inclusion in the Registration Statement, preliminary prospectus and Prospectus
(or any amendment or supplement thereto) are the concession and reallowance
figures appearing in the Prospectus in the section entitled
“Underwriting” and the information contained under the caption “Underwriting –
Price Stabilization, Short Positions and Penalty Bids.”
-24-
(b) Indemnification of Company,
Directors and Officers and Selling Shareholder(s). 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 subsection (a)
of this Section, 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, or
any preliminary prospectus, or any Issuer-Represented Free Writing Prospectus or
the Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
expressly for use in the Registration Statement (or any amendment thereto) or
such preliminary prospectus, or any Issuer-Represented Free Writing Prospectus
or the Prospectus (or any amendment or supplement thereto); provided that the
parties acknowledge and agree that the only written information that the
Underwriters have furnished to the Company specifically for inclusion in the
Registration Statement, preliminary prospectus, or any Issuer-Represented Free
Writing Prospectus and Prospectus (or any amendment or supplement thereto) are
the concession and reallowance figures appearing in the Prospectus in the
section entitled “Underwriting” and the information contained under the caption
“Underwriting – Price Stabilization, Short Positions and Penalty
Bids.”
(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 Xxxxx
Xxxxxxxx, 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, however, that counsel to the
indemnifying party shall not (except with the consent of the indemnified party)
also be counsel to the indemnified party. Notwithstanding the
foregoing, the indemnified party or parties shall have the right to employ its
or their own counsel in any such case, but the fees and expenses of such counsel
shall be at the expense of such indemnified party or parties unless (i) the
employment of such counsel shall have been authorized in writing by one of the
indemnifying parties in connection with the defense of such action, (ii) the
indemnifying party or parties shall not have employed counsel to have charge of
the defense of such action within a reasonable time after notice of commencement
of the action, (iii) the indemnifying party or parties do not diligently defend
the action after assumption of the defense, or (iv) such indemnified party or
parties shall have reasonably concluded that there may be defenses available to
it or them which are different from or additional to those available to one or
all of the indemnifying parties (in which case the indemnifying parties shall
not have the right to direct the defense of such action on behalf of the
indemnified party or parties), in any of which events such fees and expenses
shall be borne by the indemnifying parties. In no event shall the
indemnifying parties be liable for fees and expenses of more than one counsel
(in addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without
the prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which indemnification or
contribution could be sought under this Section 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.
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(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 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 that 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 Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Securities pursuant to this Agreement (before deducting expenses) received by
the Company, on the one hand, and the total underwriting discount and
commissions received by the Underwriters, on the other hand, in each case 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.
-26-
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 price at which the
Securities underwritten by it and distributed to the public were offered to the
public 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 and selling agents 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 number of Initial
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 Agreement or in certificates of
officers of the Company or any of its Subsidiaries 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 or its Affiliates or
selling agents, any person controlling any Underwriter, its officers or
directors, or by or on behalf of the Company, and (ii) delivery of and payment
for the Securities.
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SECTION
9. Termination of
Agreement.
(a) Termination;
General. The Representative may terminate this Agreement, by
notice to the Company, at any time at or prior to Closing Time (i) if there has
been, since the time of execution of this Agreement or since the respective
dates as of which information is given in the preliminary prospectus, the
General Disclosure Package or the Prospectus, a Material Adverse Effect, or (ii)
if there has occurred any material adverse change in the financial markets in
the United States, 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, or (iii) if trading in any
securities of the Company has been suspended or materially limited by the
Commission or the Nasdaq Global Select Market, or if trading generally on the
American Stock Exchange or the New York Stock Exchange or in the Nasdaq National
Market has been suspended or materially limited, or minimum or maximum prices
for trading have been fixed, or maximum ranges for prices have been required, by
any of said exchanges or by such system or by order of the Commission, the FINRA
or any other governmental authority, or (iv) a material disruption has occurred
in commercial banking or securities settlement or clearance services in the
United States or with respect to Clearstream or Euroclear Systems in Europe, or
(v) if a banking moratorium has been declared by either Federal or New York
authorities.
(b) Liabilities. If
this Agreement is terminated pursuant to this Section, such termination shall be
without liability of any party to any other party except as provided in Section
4 hereof, and provided further that Sections 1, 6, 7 and 8 shall survive such
termination and remain in full force and effect.
SECTION
10. Default by One or More of
the Underwriters. If one or more of the Underwriters shall
fail at the Closing Time or a Date of Delivery to purchase the Securities which
it or they are obligated to purchase under this Agreement (the “Defaulted
Securities”), the Representative shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, the Representative shall not have completed
such arrangements within such 24-hour period, then:
(a) if
the number of Defaulted Securities does not exceed 10% of the number of
Securities to be purchased on such date, each of the non-defaulting Underwriters
shall be obligated, severally and not jointly, to purchase the full amount
thereof in the proportions that their respective underwriting obligations
hereunder bear to the underwriting obligations of all non-defaulting
Underwriters, or
(b) if
the number of Defaulted Securities exceeds 10% of the number of Securities to be
purchased on such date, this Agreement or, with respect to any Date of Delivery
which occurs after the Closing Time, the obligation of the Underwriters to
purchase and of the Company to sell the Option Securities to be purchased and
sold on such Date of Delivery shall terminate without liability on the part of
any non-defaulting Underwriter.
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No action
taken pursuant to this Section shall relieve any defaulting Underwriter from
liability in respect of its default.
In the
event of any such default which does not result in a termination of this
Agreement or, in the case of a Date of Delivery which is after the Closing Time,
which does not result in a termination of the obligation of the Underwriters to
purchase and the Company to sell the relevant Option Securities, as the case may
be, either (i) the Representative or (ii) the Company shall have the right to
postpone Closing Time or the relevant Date of Delivery, as the case may be, for
a period not exceeding seven days in order to effect any required changes in the
Registration Statement or Prospectus or in any other documents or
arrangements. As used herein, the term “Underwriter” includes any
person substituted for an Underwriter under this Section 10.
SECTION
11. Default by the
Company. If the Company shall fail at the Closing Time or at a
Date of Delivery to sell and deliver the number of Securities which the Company
is obligated to sell hereunder, then the Underwriters may, at option of the
Representative, by notice from the Representative to the Company, either (a)
terminate this Agreement without any liability on the fault of any
non-defaulting party except that the provisions of Sections 1, 4, 6, 7 and 8
shall remain in full force and effect or (b) elect to purchase the Securities
which the Company has agreed to sell hereunder. No action taken
pursuant to this Section 11 shall relieve the Company from liability, if any, in
respect of such default.
In the
event of a default by the Company as referred to in this Section 11, the
Representative and the Company shall have the right to postpone Closing Time or
Date of Delivery for a period not exceeding seven days in order to effect any
required change in the Registration Statement or Prospectus or in any other
documents or arrangements.
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
the Representative at Xxxxx, Xxxxxxxx & Xxxxx, Inc., 000 Xxxxxxx Xxxxxx,
0xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention of General Counsel, with a copy to
Xxxxxxx Procter LLP, Exchange Place, 00 Xxxxx Xxxxxx, Xxxxxx, XX 00000,
attention of Xxxxxxx X. Xxxxx; notices to the Company shall be directed to it at
NBT Bancorp Inc., 00 Xxxxx Xxxxx Xxxxxx, X.X. Xxx 000, Xxxxxxx, XX 00000,
attention of Xxxxxxx Xxxxxxx, Chief Financial Officer, with a copy to Xxxxx
& Xxxxxxx LLP, 000 Xxxxxxxxxx Xxxxxx, XX, Xxxxxxxxxx, XX 00000, attention of
Xxxxxx X. Xxxxx.
SECTION
13. Parties. This
Agreement shall inure to the benefit of and be binding upon the Underwriters,
the Company and the controlling persons, directors, officers, employees, and
agents referred to in Sections 6 and 7 hereof and their respective successors
and assigns. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the Underwriters and the Company and their respective successors and
assigns and the controlling persons, directors, officers, employees and agents
referred to in Sections 6 and 7 hereof and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This
Agreement and all conditions and provisions hereof are intended to be for the
sole and exclusive benefit of the Underwriters, the Company and their respective
successors and assigns, and said controlling persons, directors, officers,
employees and agents 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.
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SECTION
14. No
Fiduciaries. The Company acknowledges and agrees that (i) the
purchase and sale of the Securities pursuant to this Agreement, including the
determination of the public offering price of the Securities and any related
discounts and commissions, is an arm’s-length commercial transaction between the
Company, on the one hand, and the several Underwriters, on the other hand, (ii)
in connection with the offering contemplated hereby and the process leading to
such transaction each Underwriter is and has been acting solely as a principal
and is not the agent or fiduciary of the Company or the Company’s respective
shareholders, creditors, employees or any other third party, (iii) no
Underwriter has assumed or will assume an advisory or fiduciary responsibility
in favor of the Company with respect to the offering contemplated hereby or the
process leading thereto (irrespective of whether such Underwriter has advised or
is currently advising the Company on other matters) and no Underwriter has any
obligation to the Company with respect to the offering contemplated hereby
except the obligations expressly set forth in this Agreement, (iv) the
Underwriters and their respective affiliates may be engaged in a broad range of
transactions that involve interests that differ from those of the Company, and
(v) the Underwriters have not provided any legal, accounting, regulatory or tax
advice with respect to the offering contemplated hereby and the Company has
consulted its own legal, accounting, regulatory and tax advisors to the extent
it deemed appropriate.
SECTION
15. Governing Law and
Time. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SPECIFIED TIMES OF
DAY REFER TO NEW YORK CITY TIME.
SECTION
16. General
Provisions. This Agreement constitutes the entire agreement of
the parties to this Agreement and supersedes all prior written or oral and all
contemporaneous oral agreements, understandings and negotiations with respect to
the subject matter hereof. This Agreement may be executed in two or
more counterparts, each one of which shall be an original, but all of which
together shall constitute one and the same instrument. The exchange
of copies of this Agreement and of signature pages by facsimile or other
electronic means shall constitute effective execution and delivery of this
Agreement by the parties hereto and may be used in lieu of the original
signature pages to this Agreement for all purposes. This Agreement
may not be amended or modified unless in writing by all of the parties hereto,
and no condition herein (express or implied) may be waived unless waived in
writing by each party whom the condition is meant to benefit. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
-30-
If the
foregoing is in accordance with your understanding of our agreement, please sign
and return to the Company a counterpart hereof, whereupon this instrument, along
with all counterparts, will become a binding agreement among the Underwriters
and the Company in accordance with its terms.
|
Very
truly yours,
|
|||
|
NBT
BANCORP, INC.
|
|||
|
By:
|
/s/ Xxxxxxx X. Xxxxxxx
|
||
|
Name:
|
Xxxxxxx
X. Xxxxxxx
|
||
|
Title:
|
Senior
Executive Vice President,
|
||
|
Chief
Financial Officer and
|
|||
|
Corporate
Secretary
|
|||
CONFIRMED
AND ACCEPTED,
as of the
date first above written:
XXXXX
XXXXXXXX & XXXXX, INC.
|
By:
|
/s/ Xxxxxxx X. Xxxxx
|
|
|
Name:
|
Xxxxxxx
X. Xxxxx
|
|
|
Title:
|
Managing
Director
|
For
itself and as Representative of the other Underwriters named in Schedule A
hereto.
