EXHIBIT 1.1
______SHARES
VALLEY BANCORP
COMMON STOCK
PAR VALUE $0.73 PER SHARE
UNDERWRITING AGREEMENT
____ __, 0000
Xxxxxxx X'Xxxxx & Partners, L.P.,
As representative of the several Underwriters
named in Schedule I hereto,
000 Xxxxx Xxxxxx, 0xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
Ladies and Gentlemen:
Valley Bancorp, a bank holding company (the "Company"), proposes, subject
to the terms and conditions stated herein, to issue and sell to the Underwriters
named in Schedule I hereto (the "Underwriters") an aggregate of ________ shares
(the "Firm Shares") and, at the election of the Underwriters, up to _______
additional shares (the "Optional Shares") of the common stock, par value $0.73
per share ("Stock") of the Company (the Firm Shares and the Optional Shares that
the Underwriters elect to purchase pursuant to Section 2 hereof being
collectively called the "Shares").
1. (a) The Company represents and warrants to, and agrees with, each of
the Underwriters that:
(i) A registration statement on Form S-1 (File No. 333-....)
(the "Initial Registration Statement") in respect of the Shares has been filed
with the Securities and Exchange Commission (the "Commission"); the Initial
Registration Statement and any post-effective amendment thereto, each in the
form heretofore delivered to you, and, excluding exhibits thereto, for each of
the other Underwriters, have been declared effective by the Commission in such
form; other than a registration statement, if any, increasing the size of the
offering (a "Rule 462(b) Registration Statement"), filed pursuant to Rule 462(b)
under the Securities Act of 1933, as amended (the "Act"), which became effective
upon filing, no other document with respect to the Initial Registration
Statement has heretofore been filed with the Commission; and no stop order
suspending the effectiveness of the Initial Registration Statement, any
post-effective amendment thereto or the Rule 462(b) Registration Statement, if
any, has been issued and no proceeding for that purpose has been initiated or
threatened by the Commission (any preliminary prospectus included in the Initial
Registration Statement or filed with the Commission pursuant to Rule 424(a) of
the rules and regulations of the Commission under the Act, is hereinafter called
a "Preliminary Prospectus"; the various parts of the Initial Registration
Statement and the Rule 462(b) Registration Statement, if any, including all
exhibits thereto and including the information contained in the form of final
prospectus filed with the Commission pursuant to Rule 424(b) under the Act in
accordance with Section 5(a) hereof and deemed by virtue of Rule 430A under the
Act to be part of the Initial Registration Statement at the time it was declared
effective, each as amended at the time such part of the Initial Registration
Statement became effective or such part of the Rule 462(b) Registration
Statement, if any, became or hereafter becomes effective, are hereinafter
collectively called the "Registration Statement"; and such final prospectus, in
the form first filed pursuant to Rule 424(b) under the Act, is hereinafter
called the "Prospectus");
(ii) No order preventing or suspending the use of any
Preliminary Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, conformed in all material respects to
the requirements of the Act and the rules and regulations of the Commission
thereunder, and did not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter through Sandler X'Xxxxx & Partners, L.P. expressly for use therein
(that information being limited to that described in the last sentence of
paragraph 8(b) herein);
(iii) The Registration Statement conforms, and the Prospectus
and any further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of the Act
and the rules and regulations of the Commission thereunder and do not and will
not, as of the applicable effective date as to the Registration Statement and
any amendment thereto, and as of the applicable filing date as to the Prospectus
and any amendment or supplement thereto, contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided, however, that
this representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in writing to
the Company by an Underwriter through Sandler X'Xxxxx & Partners, L.P. expressly
for use therein (that information being limited to that described in the last
sentence of paragraph 8(b) herein);
(iv) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements included in
the Prospectus any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus; and, since the respective
dates as of which information is given in the Registration Statement and the
Prospectus, except as set forth or contemplated in the Prospectus, (A) there has
not been any change in the capital stock or long-term debt of the Company or any
of its subsidiaries or any material adverse change, or any development involving
a prospective material adverse change, in or affecting the general affairs,
management, financial position, stockholders' equity, results of operations or
prospects of the Company and its
2
subsidiaries (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, taken as a whole, and (C) there has been no dividend or
distribution of any kind declared, paid or made by the Company on any class of
its capital stock;
(v) The Company and its subsidiaries have good and marketable
title in fee simple to all real property and good and marketable title to all
personal property owned by them, in each case free and clear of all liens,
encumbrances and defects except such as are described in the Prospectus or such
as do not materially affect the value of such property and do not interfere with
the use made and proposed to be made of such property by the Company and its
subsidiaries; and any real property and buildings held under lease by the
Company and its subsidiaries are held by them under valid, subsisting and
enforceable leases with such exceptions as are not material and do not interfere
with the use made and proposed to be made of such property and buildings by the
Company and its subsidiaries;
(vi) The Company is a registered bank holding company under
the Bank Holding Company Act of 1956, as amended, and has been duly incorporated
and is validly existing as a corporation in good standing under the laws of the
State of Nevada, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus, and has been
duly qualified as a foreign corporation for the transaction of business and is
in good standing under the laws of each other jurisdiction in which it owns or
leases properties or conducts any business so as to require such qualification,
except where the failure to so qualify or be in good standing does not have, and
could not reasonably be expected, individually or in the aggregate, to have, a
Material Adverse Effect;
(vii) The only subsidiary (as used herein and throughout this
Agreement, "subsidiary" shall have the meaning given such term in Rule 1-02 of
Regulation S-X) of the Company is Valley Bank (the "Bank"), which has been duly
incorporated and is validly existing as a state-chartered bank under the laws of
the State of Nevada, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus, and has been
duly qualified as a foreign corporation for the transaction of business and is
in good standing under the laws of each other jurisdiction in which it owns or
leases properties or conducts any business so as to require such qualification,
except where the failure to so qualify or be in good standing does not have, and
could not reasonably be expected, individually or in the aggregate, to have, a
Material Adverse Effect. Valley Bank is duly authorized by the Commissioner of
Financial Institutions for the State of Nevada to conduct a general banking
business. The Company has no interest in any other entity, including, but not
limited to, any corporation, association, partnership, limited liability
company, trust, joint venture or other entity. The activities of Valley Bank are
permitted to subsidiaries of a bank holding company under applicable law and the
rules and regulations of the Federal Reserve Board (the "FRB") set forth in
Title 12 of the Code of Federal Regulations and the deposit accounts of the Bank
are insured up to the applicable limits by the Federal Deposit Insurance
Corporation (the "FDIC"); all of the issued shares of capital stock of Valley
Bank has been duly authorized and validly issued and is fully paid and
nonassessable and is owned directly by the Company, free and clear of any
pledge, lien, encumbrance, claim or equity;
(viii) The Company has an authorized capitalization as set
forth in the Prospectus, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued, are fully paid and
nonassessable and conform to the description of the capital stock contained in
the Prospectus;
3
(ix) The unissued Shares to be issued and sold by the Company
to the Underwriters hereunder have been duly and validly authorized and, when
issued and delivered against payment therefor as provided herein, will be duly
and validly issued and fully paid and nonassessable and will conform to the
description of the Stock contained in the Prospectus;
(x) Except as described in the Prospectus, (A) there are no
outstanding rights (contractual or otherwise), warrants or options to acquire,
or instruments convertible into or exchangeable for, or agreements or
understandings with respect to the sale or issuance of, any shares of capital
stock of or other equity interest in the Company and (B) there are no contracts,
agreements or understandings between the Company and any person granting such
person the right to require the Company to file a registration statement under
the Act or otherwise register any securities of the Company owned or to be owned
by such person;
(xi) The issue and sale of the Shares by the Company and the
compliance by the Company with all of the provisions of this Agreement and the
consummation of the transactions herein contemplated will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any contract, indenture, mortgage, deed of trust,
loan agreement, note, lease or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the Company or any of
its subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject (collectively, the "Agreements and
Instruments"), nor will such action (A) result in any violation of the
provisions of the Articles of Incorporation or By-laws of the Company or any
statute or any order, rule or regulation of any federal, state, local or foreign
court, arbitrator, regulatory authority or governmental agency or body (each, a
"Governmental Entity") having jurisdiction over the Company or any of its
subsidiaries or any of their properties or (B) constitute a Repayment Event (as
defined below) under, or result in the creation or imposition of any lien,
charge or other encumbrance upon any assets or operations of the Company or any
subsidiary pursuant to, any of the Agreements and Instruments; and no consent,
approval, authorization, order, registration or qualification of or with any
such Governmental Entity is required for the issue and sale of the Shares or the
consummation by the Company of the transactions contemplated by this Agreement,
except the registration under the Act of the Shares and such consents,
approvals, authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the purchase and
distribution of the Shares by the Underwriters. As used herein, a "Repayment
Event" means any event or condition 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) Neither the Company nor any of its subsidiaries is (A)
in violation of its charter or by-laws or (B) in default in the performance or
observance of any material obligation, agreement, covenant or condition
contained in any of the Agreements and Instruments;
(xiii) The statements set forth in the Prospectus under the
caption Description of Capital Stock, insofar as they purport to constitute a
summary of the terms of the capital stock of the Company, and under the captions
"Supervision and Regulation" and "Underwriting", insofar as they purport to
describe the provisions of the laws and documents referred to therein, are
accurate, complete and fair;
(xiv) The financial statements included in the Registration
Statement and the Prospectus, together with the supporting schedules, if any,
and notes, present fairly the consolidated financial condition of the Company
and its subsidiaries at the dates indicated and the
4
consolidated results of operations and cash flows of the Company and its
subsidiaries for the periods specified. Such financial statements and supporting
schedules, if any, have been prepared in conformity with generally accepted
accounting principles ("GAAP") applied on a consistent basis throughout the
periods involved. The selected financial data and the summary financial
information included in the Registration Statement 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 Prospectus. Pro forma financial statements are
not required to be included in the Registration Statement or the Prospectus
under the Act, the rules and regulations thereunder or GAAP;
(xv) Each of the Company and its subsidiaries maintains a
system of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with the management's
general or specific authorizations, (ii) transactions are recorded as necessary
to permit preparation of financial statements in conformity with GAAP and to
maintain asset accountability, (iii) access to assets is permitted only in
accordance with the management's general or specific authorization and (iv) the
recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences;
(xvi) Neither the Company nor any of its subsidiaries is
subject or is party to, or has received any notice or advice that any of them
may become subject or party to any investigation with respect to, any
corrective, suspension or cease-and-desist order, agreement, consent agreement,
memorandum of understanding or other regulatory enforcement action, proceeding
or order with or by, or is a party to any commitment letter or similar
undertaking to, or is subject to any directive by, or has been a recipient of
any supervisory letter from, or has adopted any board resolutions at the request
of, any Regulatory Agency (as defined below) that currently relates to or
restricts in any material respect the conduct of their business or that in any
manner relates to their capital adequacy, credit policies or management (each, a
"Regulatory Agreement"), nor has the Company or any of its subsidiaries been
advised by any Regulatory Agency that it is considering issuing or requesting
any such Regulatory Agreement. There is no unresolved violation, criticism or
exception by any Regulatory Agency with respect to any report or statement
relating to any examinations of the Company or any of its subsidiaries which, in
the reasonable judgment of the Company, is expected to result in a Material
Adverse Effect. As used herein, the term "Regulatory Agency" means any
Governmental Entity having supervisory or regulatory authority with respect to
the Company or any of its subsidiaries, including, but not limited to, any
federal or state agency charged with the supervision or regulation of depositary
institutions or holding companies of depositary institutions, or engaged in the
insurance of depositary institution deposits;
(xvii) Except as disclosed in the Prospectus, the Company and
its subsidiaries are conducting their respective businesses in compliance in all
material respects with all statutes, laws, rules, regulations, judgments,
decisions, directives, orders and decrees of any Governmental Entity (including,
without limitation, all regulations and orders of, or agreements with, the FRB
and the FDIC) applicable to them;
(xviii) Other than as set forth in the Prospectus, there are
no legal or governmental actions, suits, investigations or proceedings before or
by any Governmental Entity, now pending or, to the best of the Company's
knowledge, threatened or contemplated by Governmental Entities or threatened by
others, to which the Company or any of its subsidiaries is a party or of which
any property of the Company or any of its subsidiaries is the subject (A) that
are required to be disclosed in the Registration Statement by the Act or by the
rules and regulations of
5
the Commission thereunder and not disclosed therein, or (B) which, if determined
adversely to the Company or any of its subsidiaries, could individually or in
the aggregate have a Material Adverse Effect; and there are no contracts or
documents of the Company or any of its subsidiaries that are required to be
described in the Registration Statement or to be filed as exhibits thereto by
the Act or by the rules and regulations of the Commission thereunder which have
not been so described and filed;
(xix) The Company and its subsidiaries possess such permits,
licenses, approvals, consents and other authorizations (collectively,
"Governmental Licenses") issued by the appropriate federal, state, local or
foreign regulatory agencies or bodies necessary to conduct the business now
operated by the Company or its subsidiaries; the Company and its subsidiaries
are in compliance with the terms and conditions of all such Governmental
Licenses, except where the failures 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;
(xx) Each of the Company and its subsidiaries is in compliance
in all material respects with all applicable federal, state and local
environmental laws and regulations, including, without limitation, those
applicable to emissions to the environment, waste management, and waste disposal
(each an "Environmental Law"), except where such noncompliance could not have a
Material Adverse Effect, or except as disclosed in the Prospectus, and to the
knowledge of the Company, there are no circumstances that would prevent,
interfere with or materially increase the cost of such compliance in the future;
(xxi) To the knowledge of the Company, under applicable law,
there are no past or present actions, activities, circumstances, events or
incidents, including, without limitation, releases of any material into the
environment, that are reasonably likely to form the basis of any claim under any
Environmental Law, including common law, against the Company or its subsidiaries
which would be reasonably likely to have a Material Adverse Effect;
(xxii) The statistical and market related data contained in
the Prospectus and Registration Statement are based on or derived from sources
which the Company reasonably believes are reliable and accurate;
(xxiii) This Agreement has been duly authorized, executed and
delivered by the Company;
(xxiv) Neither the Company nor any affiliate of the Company
nor any person acting on their behalf has taken, nor will the Company or any
affiliate or any person acting on their behalf take, directly or indirectly, any
action which is designed to or which has constituted or which would be expected
to cause or result in stabilization or manipulation of the price of any security
of the Company to facilitate the sale or resale of the Shares;
(xxv) The Company is not and, after giving effect to the
offering and sale of the Shares, will not be an investment company or an entity
controlled by an investment company, as
6
such terms are defined in the Investment Company Act of 1940, as amended (the
Investment Company Act);
(xxvi) Neither the Company nor any of its affiliates does
business with the government of Cuba or with any person or affiliate located in
Cuba within the meaning of Section 517.075, Florida Statutes;
(xxvii) McGladery & Xxxxxx, LLP, who have certified the
financial statements and supporting schedules of the Company and its
subsidiaries, included in the Registration Statement and the Prospectus are
independent public accountants as required by the Act and the rules and
regulations of the Commission thereunder, and registered with the Public Company
Accounting Oversight Board;
(xxviii) No labor problem or dispute with the employees of the
Company or any of its subsidiaries exists or, to the Company's knowledge, is
threatened or imminent, and the Company is not aware of any existing or imminent
labor disturbance by the employees of any of its or its subsidiaries' principal
suppliers, contractors or customers, that could have a Material Adverse Effect,
whether or not arising from transactions in the ordinary course of business,
except as set forth in the Prospectus;
(xxix) The Company and each of its subsidiaries are insured by
insurers of recognized financial responsibility against such losses and risks
and in such amounts as are prudent and customary in the business in which they
are engaged; all policies of insurance insuring the Company or any of its
subsidiaries are in full force and effect; the Company and its subsidiaries are
in compliance with the terms of such policies and instruments in all material
respects; and there are no claims by the Company or any of its subsidiaries
under any such policy or instrument as to which any insurance company is denying
liability or defending under a reservation of rights clause; neither the Company
nor any such subsidiary has been refused any insurance coverage sought or
applied for; and neither the Company nor any such subsidiary has any reason to
believe that it will not be able to renew its existing insurance coverage as and
when such coverage expires or to obtain similar coverage from similar insurers
as may be necessary to continue its business at a cost that would not have a
Material Adverse Effect, except as set forth or contemplated in the Prospectus;
(xxx) The Company has filed all foreign, federal, state and
local tax returns that are required to be filed or is eligible for, and has
requested, extensions thereof, except as set forth or contemplated in the
Prospectus and has paid all taxes required to be paid by it and any other
assessment, fine or penalty levied against it, to the extent that any of the
foregoing is due and payable, except for any such assessment, fine or penalty
that is currently being contested in good faith or as would not have a Material
Adverse Effect, except as set forth or contemplated in the Prospectus;
(xxxi) No subsidiary of the Company is currently prohibited,
directly or indirectly, from paying any dividends to the Company, from making
any other distribution on such subsidiary's capital stock, from repaying to the
Company any loans or advances to such subsidiary from the Company or from
transferring any of such subsidiary's property or assets to the Company or any
other subsidiary of the Company, except as set forth or contemplated in the
Prospectus;
(xxxii) Except as would not have a Material Adverse Effect,
neither the Company nor any of its subsidiaries: (A) has incurred or expects to
incur liability under Title IV of
7
ERISA with respect to any defined benefit pension plan, or under section 412 of
ERISA or Section 4971 of the Internal Revenue Code with respect to any pension
plan; (B) has obtained a waiver from the minimum funding requirements of the
Internal Revenue Code; or (C) has sponsored a plan intended to be qualified
under Section 401(a) of the Internal Revenue Code which is not so qualified or
with respect to which there is a substantial risk of disqualification;
(xxxiii) The Company and its subsidiaries own, or have valid,
binding enforceable and sufficient licenses or other rights to use the patents
and patent applications, copyrights, trademarks, service marks, trade names,
technology, know-how (including trade secrets and other unpatented and/or
unpatentable proprietary rights) and other intellectual property necessary or
used in any material respect to conduct their business in the manner in which it
is being conducted and in the manner in which it is contemplated as set forth in
the Prospectus or otherwise necessary or used in connection with the
commercialization of the existing products of the Company and its subsidiaries
and the products described in the Prospectus as being under development
(collectively, the "Company Intellectual Property"); except as would not have a
Material Adverse Effect, the Company Intellectual Property is valid, subsisting
and enforceable, and none of the patents owned or licensed by the Company or any
of its subsidiaries is unenforceable or invalid, and none of the patent
applications owned or licensed by the Company or any of its subsidiaries would
be unenforceable or invalid if issued as patents; the Company and its
subsidiaries, and to the Company's knowledge, their licensors, have complied
with the duty of candor and disclosure of the U.S. Patent and Trademark Office
and any similar foreign intellectual property office (collectively, the "Patent
Offices"); neither the Company nor its subsidiaries have infringed or otherwise
violated any intellectual property rights of any third person or have breached
any contract in connection with which any Company Intellectual Property is
provided to the Company and its subsidiaries; neither the Company nor any of its
subsidiaries is obligated to pay a royalty, grant a license, or provide other
consideration to any third party in connection with the Company Intellectual
Property other than as disclosed in the Prospectus; no person has asserted or
threatened to assert any claim against, or notified, the Company (or any of its
subsidiaries) that (A) the Company or any of its subsidiaries has infringed or
otherwise violated any intellectual property rights of any third person, (B) the
Company or any of its subsidiaries is in breach or default of any contract under
which any Company Intellectual Property is provided, (C) such person will
terminate a contract described in clause (B) or adversely alter the scope of the
rights provided thereunder or (D) otherwise concerns the ownership,
enforceability, validity, scope, registerability, interference, use or the right
to use, any Company Intellectual Property (other than a patent office review of
pending applications in the ordinary course); to the knowledge of the Company no
third party is infringing or otherwise violating any of the Company Intellectual
Property owned by the Company or any of its subsidiaries, except as would not
reasonably be expected to have a Material Adverse Effect;
(xxxiv) 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 expenses relating to political activity;
(B) made any direct or indirect unlawful payment to any foreign or domestic
government official or employee; (C) violated or is in violation of any
provision of the Foreign Corrupt Practices Act of 1977; (D) made any bribe,
rebate, payoff, influence payment, kickback or other unlawful payment; or (E)
made any payment of funds to the Company or any of its subsidiaries or received
or retained funds in violation of any law, rule or regulation, which payment,
receipt or retention of funds is of a character required to be disclosed in the
Prospectus, that is not described in the Prospectus as required;
8
(xxxv) The operations of the Company and its subsidiaries are
and have been conducted at all times in compliance with applicable financial
recordkeeping and reporting requirements of the Currency and Foreign
Transactions Reporting Act of 1970, as amended, the money laundering statutes of
all jurisdictions, the rules and regulations thereunder and any related or
similar rules, regulations or guidelines, issued, administered or enforced by
any governmental agency (collectively, the "Money Laundering Laws") and no
action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company or any of its
subsidiaries with respect to the Money Laundering Laws is pending or, to the
best knowledge of the Company, threatened;
(xxxvi) No relationship, direct or indirect, exists between or
among the Company or any of its subsidiaries, on the one hand, and the
directors, officers, stockholders, customers or suppliers of the Company or any
of its subsidiaries, on the other, that is required by the Act to be described
in the Prospectus and that is not so described;
(xxxvii) Except as described in the Prospectus, there are no
material off-balance sheet transactions, arrangements, obligations (including
contingent obligations), or any other relationships with unconsolidated entities
or other persons, that may have a material current or future effect on the
Company's financial condition, changes in financial condition, results of
operations, liquidity, capital expenditures, capital resources, or significant
components of revenues or expenses; and
(xxxviii) no consent, approval, authorization or order of, or
qualification with, any governmental body or agency, other than those obtained,
is required in connection with the offering of the Directed Shares in any
jurisdiction where the Directed Shares are being offered. The Company has not
offered, or caused the representative to offer, Shares to any person pursuant to
the Directed Share Program with the specific intent to unlawfully influence (i)
a customer or supplier of the Company to alter the customer's or supplier's
level or type of business with the Company or (ii) a trade journalist or
publication to write or publish favorable information about the Company or its
products
(b) The Bank represents and warrants to, and agrees with, each of
the Underwriters that:
(i) The Bank has been duly chartered and is validly existing
as a state-chartered bank under the laws of Nevada, and is in good standing
under the laws of the Nevada, with power and authority (corporate and other) to
own its properties and conduct its business as described in the Prospectus, and
has been duly qualified as a foreign corporation for the transaction of business
and is in good standing under the laws of each other jurisdiction in which it
owns or leases properties or conducts any business so as to require such
qualification, or is subject to no material liability or disability by reason of
the failure to be so qualified in any such jurisdiction;
(ii) The Bank has no subsidiaries;
(iii) The Bank is not in violation of its articles of
incorporation, by-laws or other charter documents or in default in the
performance or observance of any material obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, deed of trust, loan
agreement, note, lease or other agreement or instrument to which the Bank is a
party or by which it or any of them may be bound, or to which any of the
property of the Bank is subject; and
9
(iv) This agreement has been duly authorized, executed and
delivered by the Bank. The execution, delivery and performance of this Agreement
by the Bank and the compliance by the Bank with all of the provisions of this
Agreement and the consummation of the transactions herein contemplated will not
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the Bank is a
party or by which the Bank is bound or to which any of the property or assets of
the Bank is subject, nor will such action result in any violation of the
provisions of the charter of the Bank or any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction over
the Bank or any of its properties.
2. Subject to the terms and conditions herein set forth, (a) the Company
agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company, at
a purchase price per share of $__________, the number of Firm Shares set forth
opposite the name of such Underwriter in Schedule I hereto and (b) in the event
and to the extent that the Underwriters shall exercise the election to purchase
Optional Shares as provided below, the Company agrees to issue and sell to each
of the Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase from the Company, at the purchase price per share set forth
in clause (a) of this Section 2, that portion of the number of Optional Shares
as to which such election shall have been exercised (to be adjusted by you so as
to eliminate fractional shares) determined by multiplying such number of
Optional Shares by a fraction, the numerator of which is the maximum number of
Optional Shares which such Underwriter is entitled to purchase as set forth
opposite the name of such Underwriter in Schedule I hereto and the denominator
of which is the maximum number of Optional Shares that all of the Underwriters
are entitled to purchase hereunder.
The Company hereby grants to the Underwriters the right to purchase at
their election up to _________Optional Shares, at the purchase price per share
set forth in the paragraph above, for the sole purpose of covering
overallotments in the sale of the Firm Shares. Any such election to purchase
Optional Shares may be exercised only by written notice from you to the Company,
given within a period of 30 calendar days after the date of this Agreement,
setting forth the aggregate number of Optional Shares to be purchased and the
date on which such Optional Shares are to be delivered, as determined by you but
in no event earlier than the First Time of Delivery (as defined in Section 4
hereof) or, unless you and the Company otherwise agree in writing, earlier than
two or later than ten business days after the date of such notice.
It is understood that each Underwriter has authorized Sandler X'Xxxxx &
Partners, L.P., for such Underwriter's account, to accept delivery of, receipt
for, and make payment of the purchase price for, the Firm Shares and the
Optional Shares, if any, which such Underwriter has agreed to purchase. Sandler
X'Xxxxx & Partners, L.P., individually and not as representative of the
Underwriters, may (but shall not be obligated to) make payment of the purchase
price for the Firm Shares or the Optional Shares, if any, to be purchased by any
Underwriter whose funds have not been received by Sandler X'Xxxxx & Partners,
L.P. by the relevant Time of Delivery but such payment shall not relieve such
Underwriter from its obligations hereunder.
It is understood that approximately __________ shares of the Firm Shares
("Directed Shares") initially will be reserved by the Underwriters for offer and
sale to directors, officers and existing stockholders of the Company ("Directed
Share Participants") upon the terms and conditions set forth in the Prospectus
and in accordance with the rules and regulations of the National Association of
Securities Dealers, Inc. (the "Directed Share Program"). Under no
10
circumstances will Sandler X'Xxxxx & Partners, L.P. or any Underwriter be liable
to the Company or to any Directed Share Participant for any action taken or
omitted to be taken in good faith in connection with such Directed Share
Program. To the extent that any Directed Shares are not affirmatively
reconfirmed for purchase by any Directed Share Participant on or immediately
after the date of this Agreement, such Directed Shares may be offered to the
public as part of the public offering contemplated herein.
3. Upon the authorization by you of the release of the Firm Shares, the
several Underwriters propose to offer the Firm Shares for sale upon the terms
and conditions set forth in the Prospectus.
4. (a)The Shares to be purchased by each Underwriter hereunder, in
definitive form, and in such authorized denominations and registered in such
names as Sandler X'Xxxxx & Partners, L.P. may request upon at least forty-eight
hours prior notice to the Company shall be delivered by or on behalf of the
Company to Sandler X'Xxxxx & Partners, L.P., through the facilities of the
Depository Trust Company (DTC), for the account of such Underwriter, against
payment by or on behalf of such Underwriter of the purchase price therefor by
wire transfer of Federal (same day) funds to the account specified by the
Company, to Sandler X'Xxxxx & Partners, L.P. at least forty-eight hours in
advance. The Company will cause the certificates representing the Shares to be
made available for checking and packaging at least twenty-four hours prior to
the Time of Delivery (as defined below) with respect thereto at the office of
DTC or its designated custodian (the "Designated Office"). The time and date of
such delivery and payment shall be, with respect to the Firm Shares, 9:30 a.m.,
Eastern Time, on _______, 200_ or such other time and date as Sandler X'Xxxxx &
Partners, L.P. and the Company may agree upon in writing, and, with respect to
the Optional Shares, 9:30 a.m., New York time, on the date specified by Sandler
X'Xxxxx & Partners, L.P. in the written notice given by Sandler X'Xxxxx &
Partners, L.P. of the Underwriters election to purchase such Optional Shares, or
such other time and date as Sandler X'Xxxxx & Partners, L.P. and the Company may
agree upon in writing. Such time and date for delivery of the Firm Shares is
herein called the First Time of Delivery, such time and date for delivery of the
Optional Shares, if not the First Time of Delivery, is herein called the Second
Time of Delivery, and each such time and date for delivery is herein called a
Time of Delivery.
(b) The documents to be delivered at each Time of Delivery by or
on behalf of the parties hereto pursuant to Section 7 hereof, including the
cross receipt for the Shares and any additional documents requested by the
Underwriters pursuant to Section 7(k) hereof, will be delivered at the offices
of Sandler X'Xxxxx & Partners, L.P., 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000 (the
Closing Location), and the Shares will be delivered at the Designated Office,
all at such Time of Delivery. A meeting will be held at the Closing Location at
........p.m., Eastern Time, on the New York Business Day next preceding such Time
of Delivery, at which meeting the final drafts of the documents to be delivered
pursuant to the preceding sentence will be available for review by the parties
hereto. For the purposes of this Section 4, New York Business Day shall mean
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in New York are generally authorized or obligated by law or
executive order to close.
5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by you and to
file such Prospectus pursuant to Rule 424(b) under the Act not later than the
Commission's close of business on the second business day following the
execution and delivery of this Agreement, or, if applicable, such earlier time
as may be required by Rule 430A(a)(3) under the Act; to make no further
11
amendment or any supplement to the Registration Statement or Prospectus which
shall be disapproved by you promptly after reasonable notice thereof; to advise
you, promptly after it receives notice thereof, of the time when any amendment
to the Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been filed and to
furnish you with copies thereof; to advise you, promptly after it receives
notice thereof, of the issuance by the Commission of any stop order or of any
order preventing or suspending the use of any Preliminary Prospectus or
prospectus, of the suspension of the qualification of the Shares for offering or
sale in any jurisdiction, of the initiation or threatening of any proceeding for
any such purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or Prospectus or for additional
information; and, in the event of the issuance of any stop order or of any order
preventing or suspending the use of any Preliminary Prospectus or prospectus or
suspending any such qualification, promptly to use its best efforts to obtain
the withdrawal of such order;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Shares for offering and sale under the
securities laws of such jurisdictions as you may request and to comply with such
laws so as to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the distribution of
the Shares, provided that in connection therewith the Company shall not be
required to qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction;
(c) Prior to 10:00 a.m., Eastern Time, on the New York Business
Day next succeeding the date of this Agreement and from time to time, to furnish
the Underwriters with copies of the Prospectus in New York City in such
quantities as you may from time to time reasonably request, and, if the delivery
of a prospectus is required at any time prior to the expiration of nine months
after the time of issue of the Prospectus in connection with the offering or
sale of the Shares and if at such time any event shall have occurred as a result
of which the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made when such Prospectus is delivered, not misleading, or, if
for any other reason it shall be necessary during such period to amend or
supplement the Prospectus in order to comply with the Act, to notify you and
upon your request to prepare and furnish without charge to each Underwriter and
to any dealer in securities as many copies as you may from time to time
reasonably request of an amended Prospectus or a supplement to the Prospectus
which will correct such statement or omission or effect such compliance, and in
case any Underwriter is required to deliver a prospectus in connection with
sales of any of the Shares at any time nine months or more after the time of
issue of the Prospectus, upon your request but at the expense of such
Underwriter, to prepare and deliver to such Underwriter as many copies as you
may request of an amended or supplemented Prospectus complying with Section
10(a)(3) of the Act;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the effective
date of the Registration Statement (as defined in Rule 158(c) under the Act), an
earning statement of the Company and its subsidiaries (which need not be
audited) complying with Section 11(a) of the Act and the rules and regulations
thereunder (including, at the option of the Company, Rule 158);
(e) During the period beginning from the date hereof and
continuing to and including the date 180 days after the date of the Prospectus,
not to, and not to allow any of its directors, executive officers and certain
stockholders identified on Schedule II (and to cause such persons to enter into
an agreement to the following effect) to, offer, sell, contract to sell or
otherwise
12
dispose of, except as provided hereunder any securities of the Company that are
substantially similar to the Shares, including but not limited to any securities
that are convertible into or exchangeable for, or that represent the right to
receive, Stock or any such substantially similar securities (other than pursuant
to employee stock option plans existing on, or upon the conversion or exchange
of convertible or exchangeable securities outstanding as of, the date of this
Agreement), without your prior written consent;
(f) To furnish to its stockholders, as soon as practicable after
the end of each fiscal year, an annual report (including a balance sheet and
statements of income, stockholders' equity and cash flows of the Company and its
consolidated subsidiaries certified by independent public accountants) and, as
soon as practicable after the end of each of the first three quarters of each
fiscal year (beginning with the fiscal quarter ending after the effective date
of the Registration Statement), consolidated summary financial information of
the Company and its subsidiaries for such quarter in reasonable detail;
(g) During a period of five years from the effective date of the
Registration Statement, to furnish to you copies of all reports or other
communications (financial or other) furnished to stockholders, and to deliver to
you (i) as soon as they are available, copies of any reports and financial
statements furnished to or filed with the Commission or any national securities
exchange on which any class of securities of the Company is listed; and (ii)
such additional information concerning the business and financial condition of
the Company as you may from time to time reasonably request (such financial
statements to be on a consolidated basis to the extent the accounts of the
Company and its subsidiaries are consolidated in reports furnished to its
stockholders generally or to the Commission);
(h) To (i) comply with all applicable securities and other
applicable laws, rules and regulations, including without limitation, the rules
and regulations of the NASD in each jurisdiction in which the Directed Shares
are offered in connection with the Directed Share Program and (ii) to pay all
reasonable fees and disbursements of counsel incurred by the Underwriters in
connection with the Directed Share Program and any stamp duties, similar taxes
or duties or other taxes, if any, incurred by the Underwriters in connection
with the Directed Share Program.
(i) To use the net proceeds received by it from the sale of the
Shares pursuant to this Agreement in the manner specified in the Prospectus
under the caption Use of Proceeds;
(j) If the Company elects to rely on Rule 462(b), the Company
shall file a Rule 462(b) Registration Statement with the Commission in
compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of
this Agreement, and the Company shall at the time of filing either pay to the
Commission the filing fee for the Rule 462(b) Registration Statement or give
irrevocable instructions for the payment of such fee pursuant to Rule 111(b)
under the Act;
(k) To use its best efforts to list for quotation and maintain for
quotation the Shares on the National Market of the National Association of
Securities Dealers Automated Quotations System (NASDAQ);
(l) During the period beginning on the date hereof and ending on
the later of the fifth anniversary of the First Time of Delivery or the date on
which the Underwriters receive full payment in satisfaction of any claim for
indemnification or contribution to which they may be entitled pursuant to
Section 8 of this Agreement, neither the Company nor the Bank shall, without the
prior written consent of the representative to the Underwriters (the
"Representative"), take or permit to be
13
taken any action that could result in the Bank's common stock becoming subject
to any security interest, mortgage, pledge, lien or encumbrance; provided,
however, that this covenant shall be null and void if the FRB, or any other
federal agency having jurisdiction over the Bank, by regulation, policy
statement or interpretive release or by written order or written advice
addressed to the Bank and specifically addressing the provisions of Section 8
hereof, permits indemnification of the Underwriters by the Bank as contemplated
by such provisions;
(m) To file with the Commission such information on Form 10-K or
Form 10-Q as may be required by Rule 463 under the Act;
(n) To comply, and to use its best efforts to cause the Company's
directors and officers, in their capacities as such, to comply, in all material
respects, with all effective applicable provisions of the Xxxxxxxx-Xxxxx Act of
2002 and the rules and regulations thereunder, including, but not limited to,
the establishment and maintenance of disclosure controls and procedures (as such
term is defined in Rule 13a-15(e) and 15d-15(e) under the Securities Exchange
Act of 1934, as amended (the "1934 Act"). Such disclosure controls and
procedures will be (A) designed to ensure that material information relating to
the Company, including its consolidated subsidiaries, is made known to the
Company's Chief Executive Officer and its Chief Financial Officer by others
within those entities to allow timely decisions regarding disclosures, (B)
evaluated for effectiveness as of the end of the most recent fiscal quarter and
(C) effective to perform the functions for which they were established;
(o) To engage and maintain at its expense a registrar and transfer
agent for the Shares; and
(p) To comply with any of the provisions of any undertaking in the
Registration Statement.
6. The Company covenants and agrees with the several Underwriters that
the Company will pay or cause to be paid the following: (i) the reasonable
out-of-pocket expenses incurred by the Underwriters in connection with the
transactions contemplated hereby (regardless of whether the sale of the Shares
is consummated), including, without limitation, disbursements, fees and expenses
of the Underwriters' counsel and marketing, syndication and travel expenses;
(ii) the fees, disbursements and expenses of the Company's counsel and
accountants in connection with the registration of the Shares under the Act and
all other expenses in connection with the preparation, printing and filing of
the Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (iii) the cost of printing or producing
any Agreement among Underwriters, this Agreement, the Blue Sky Memorandum,
closing documents (including any compilations thereof) and any other documents
in connection with the offering, purchase, sale and delivery of the Shares; (iv)
all expenses in connection with the qualification of the Shares for offering and
sale under state securities laws as provided in Section 5(b) hereof, including
the fees and disbursements of counsel for the Underwriters in connection with
such qualification and in connection with the Blue Sky survey (v) all fees and
expenses in connection with listing the Shares on NASDAQ; (vi) the filing fees
incident to, and the fees and disbursements of counsel for the Underwriters in
connection with, securing any required review by the National Association of
Securities Dealers, Inc. of the terms of the sale of the Shares; (vii) the cost
of preparing stock certificates; (viii) the cost and charges of any transfer
agent or registrar; and (ix) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise specifically
provided for in this Section.
14
7. The obligations of the Underwriters hereunder, as to the Shares to
be delivered at each Time of Delivery, shall be subject, in their discretion, to
the condition that all representations and warranties and other statements of
the Company herein are, at and as of such Time of Delivery, true and correct,
the condition that the Company shall have performed all of its obligations
hereunder theretofore to be performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for such
filing by the rules and regulations under the Act and in accordance with Section
5(a) hereof; if the Company has elected to rely upon Rule 462(b), the Rule
462(b) Registration Statement shall have become effective by 10:00 p.m., Eastern
Time, on the date of this Agreement; no stop order suspending the effectiveness
of the Registration Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the
Commission; and all requests for additional information on the part of the
Commission shall have been complied with to your reasonable satisfaction;
(b) Manatt, Xxxxxx & Xxxxxxxx, LLP, counsel for the Underwriters,
shall have furnished to you such written opinion or opinions, dated such Time of
Delivery, with respect to the incorporation of the Company, the validity of the
Shares, the Registration Statement, the Prospectus as amended or supplemented
and other related matters as you may reasonably request, and such counsel shall
have received such papers and information as they may reasonably request to
enable them to pass upon such matters;
(c) Xxxxxx & Xxxx , P.C., counsel for the Company, shall have
furnished to you their written opinion (a draft of such opinion is attached as
Annex II hereto), dated such Time of Delivery, in form and substance
satisfactory to you, to the effect set forth in Annex II hereto and to such
further effect as counsel to the Underwriters may reasonably request;
(d) On the date of the Prospectus at a time prior to the execution
of this Agreement, at 9:30 a.m., Eastern Time, on the effective date of any
post-effective amendment to the Registration Statement filed subsequent to the
date of this Agreement and also at each Time of Delivery, McGladery & Xxxxxx,
LLP shall have furnished to you a letter or letters, dated the respective dates
of delivery thereof, in form and substance satisfactory to you, to the effect
set forth in Annex I hereto (the executed copy of the letter delivered prior to
the execution of this Agreement is attached as Annex I(a) hereto and a draft of
the form of letter to be delivered on the effective date of any post-effective
amendment to the Registration Statement and as of each Time of Delivery is
attached as Annex I(b) hereto);
(e) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included in
the Prospectus any loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise than as set
forth or contemplated in the Prospectus, and (ii) since the respective dates as
of which information is given in the Prospectus there shall not have been any
change in the capital stock or long-term debt of the Company or any of its
subsidiaries or any change, or any development involving a prospective change,
in or affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the Prospectus, the
effect of which, in any such case described in Clause (i) or (ii), is in the
judgment of the Representative so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Shares being delivered at such Time of Delivery on the terms and in the
manner contemplated in the Prospectus;
15
(f) On or after the date hereof there shall not have occurred any
of the following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange or on NASDAQ;; (ii) a
general moratorium on commercial banking activities declared by either Federal
or New York or Nevada State authorities; or (iii) the outbreak or escalation of
hostilities involving the United States or the declaration by the United States
of a national emergency or war or a material adverse change in general economic,
political or financial conditions, including without limitation as a result of
terrorist activities after the date hereof (or the effect of international
conditions on the financial markets in the United States shall be such), or any
other calamity or crisis, if the effect of any such event specified in this
Clause (iv) in the judgment of the Representative makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the Shares
being delivered at such Time of Delivery on the terms and in the manner
contemplated in the Prospectus;
(g) The Shares to be sold at such Time of Delivery shall have been
duly listed for quotation on NASDAQ;
(h) The NASD shall not have raised any objection with respect to
the fairness and reasonableness of the underwriting terms and arrangements;
(i) The Company has obtained and delivered to the Underwriters
executed copies of an agreement from the stockholders listed on Schedule II
hereto, substantially to the effect set forth in Subsection 5(e) hereof in form
and substance satisfactory to you;
(j) The Company shall have complied with the provisions of Section
5(c) hereof with respect to the furnishing of prospectuses on the New York
Business Day next succeeding the date of this Agreement; and
(k) The Company shall have furnished or caused to be furnished to
you at such Time of Delivery certificates of officers of the Company
satisfactory to you as to the accuracy of the representations and warranties of
the Company herein at and as of such Time of Delivery, as to the performance by
the Company of all of its obligations hereunder to be performed at or prior to
such Time of Delivery, as to the matters set forth in subsections (a) and (e) of
this Section and as to such other matters as you may reasonably request.
8. (a) The Company and the Bank, jointly and severally, will indemnify
and hold harmless each Underwriter against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement or the Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse each Underwriter for any legal or other expenses reasonably incurred
by such Underwriter in connection with investigating or defending any such
action or claim as such expenses are incurred; provided, however, that neither
the Company nor the Bank shall be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
any Preliminary Prospectus, the Registration Statement or the Prospectus or any
such amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through Sandler X'Xxxxx
& Partners, L.P. expressly for use therein (that information being limited to
that
16
described in the last sentence of paragraph 8(b) herein). Notwithstanding the
foregoing, the indemnification provided for in this paragraph (a) shall not
apply to the Bank to the extent that such indemnification by the Bank is found
in a final judgment by a court of competent jurisdiction to constitute a covered
transaction under Section 23A of the Federal Reserve Act.
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement or the
Prospectus, or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
in each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in any
Preliminary Prospectus, the Registration Statement or the Prospectus or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through Sandler X'Xxxxx
& Partners, L.P. expressly for use therein; and will reimburse the Company for
any legal or other expenses reasonably incurred by the Company in connection
with investigating or defending any such action or claim as such expenses are
incurred. The statements set forth in the paragraphs "_______" under the caption
"Underwriting" in the Preliminary Prospectus, the Registration Statement and the
Prospectus (to the extent such statements relate to the Underwriters) constitute
the only information furnished by or on behalf of any Underwriter through
Sandler X'Xxxxx & Partners, L.P. for purposes of Section 1(a)(ii) and 1(a)(iii)
and this Section 8(a) and this Section 8(b).
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation. No indemnifying party shall, without the
written consent of the indemnified party, effect the settlement or compromise
of, or consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act, by or
on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any
17
losses, claims, damages or liabilities (or actions in respect thereof) referred
to therein, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is appropriate
to reflect the relative benefits received by the Company on the one hand and the
Underwriters on the other from the offering of the Shares. If, however, the
allocation provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriters on the other shall be deemed to be
in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriters, in each case as set
forth in the table on the cover page of the Prospectus. The relative fault shall
be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company on the one hand
or the Underwriters on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this subsection (d) were determined by
pro rata allocation (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 subsection (d). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to above
in this subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
subsection (d), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Shares underwritten
by it and distributed to the public were offered to the public exceeds the
amount of any damages which such Underwriter has otherwise been required to pay
by reason of 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 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations in this subsection (d) to contribute are several in proportion to
their respective underwriting obligations and not joint.
(e) The obligations of the Company and the Bank under this Section
8 shall be in addition to any liability which the Company and the Bank may
otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls any Underwriter within the meaning of the Act or
who is an affiliate or partner of any Underwriter; and the obligations of the
Underwriters under this Section 8 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company or the Bank,
as the case may be, and to each other person, if any, who controls the Company
or the Bank, as the case may be, within the meaning of the Act or who is an
affiliate of the Company or the Bank, as the case may be.
9. (a) If any Underwriter shall default in its obligation to purchase
the Shares which it has agreed to purchase hereunder at a Time of Delivery, you
may in your discretion arrange for you or another party or other parties to
purchase such Shares on the terms contained herein. If within
18
thirty-six hours after such default by any Underwriter you do not arrange for
the purchase of such Shares, then the Company shall be entitled to a further
period of thirty-six hours within which to procure another party or other
parties satisfactory to you to purchase such Shares on such terms. In the event
that, within the respective prescribed periods, you notify the Company that you
have so arranged for the purchase of such Shares, or the Company notifies you
that it has so arranged for the purchase of such Shares, you or the Company
shall have the right to postpone such Time of Delivery for a period of not more
than seven days, in order to effect whatever changes may thereby be made
necessary in the Registration Statement or the Prospectus, or in any other
documents or arrangements, and the Company agrees to file promptly any
amendments to the Registration Statement or the Prospectus which in your opinion
may thereby be made necessary. The term "Underwriter" as used in this Agreement
shall include any person substituted under this Section with like effect as if
such person had originally been a party to this Agreement with respect to such
Shares.
(b) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you and the Company as
provided in subsection (a) above, the aggregate number of such Shares which
remains unpurchased does not exceed one-tenth of the aggregate number of all the
Shares to be purchased at such Time of Delivery, then the Company shall have the
right to require each non-defaulting Underwriter to purchase the number of
shares which such Underwriter agreed to purchase hereunder at such Time of
Delivery and, in addition, to require each non-defaulting Underwriter to
purchase its pro rata share (based on the number of Shares which such
Underwriter agreed to purchase hereunder) of the Shares of such defaulting
Underwriter or Underwriters for which such arrangements have not been made; but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
(c) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you and the Company as
provided in subsection (a) above, the aggregate number of such Shares which
remains unpurchased exceeds one-tenth of the aggregate number of all the Shares
to be purchased at such Time of Delivery, or if the Company shall not exercise
the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Shares of a defaulting Underwriter or Underwriters,
then this Agreement (or, with respect to the Second Time of Delivery, the
obligations of the Underwriters to purchase and of the Company to sell the
Optional Shares) shall thereupon terminate, without liability on the part of any
non-defaulting Underwriter or the Company, except for the expenses to be borne
by the Company as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company and the several Underwriters, as set forth
in this Agreement or made by or on behalf of them, respectively, pursuant to
this Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Shares.
11. If this Agreement shall be terminated pursuant to Section 9 hereof,
neither the Company nor the Bank shall then be under any liability to any
Underwriter except as provided in Sections 5 (in the case of the Company) and 8
(in the case of the Company and the Bank) hereof; but, if for any other reason,
any Shares are not delivered by or on behalf of the Company as provided herein,
the Company will reimburse the Underwriters through you for all out-of-pocket
19
expenses, including fees and disbursements of counsel, incurred by the
Underwriters in connection with the transactions contemplated hereby, including,
without limitation, marketing, syndication and travel expenses incurred by the
Underwriters in making preparations for the purchase, sale and delivery of the
Shares not so delivered, but the Company shall then be under no further
liability to any Underwriter except as provided in Sections 5 and 8 hereof.
12. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to you as the representative at 000 Xxxxx Xxxxxx, 0xx
Xxxxx, Xxx Xxxx, XX 00000, Attention: General Counsel; and if to the Company or
to the Bank shall be delivered or sent by mail to the address of the Company set
forth in the Registration Statement, Attention: Xxxxx X. Xxxxx; provided,
however, that any notice to an Underwriter pursuant to Section 8(c) hereof shall
be delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its Underwriters' Questionnaire, or
telex constituting such Questionnaire, which address will be supplied to the
Company by you upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Company, the Bank and, to the extent provided
in Sections 8 and 10 hereof, the officers and directors of the Company and of
the Bank and each person who controls the Company, the Bank or any Underwriter,
and their respective heirs, executors, administrators, successors and assigns,
and no other person shall acquire or have any right under or by virtue of this
Agreement. No purchaser of any of the Shares from any Underwriter shall be
deemed a successor or assign by reason merely of such purchase.
14. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
16. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
instrument.
If the foregoing is in accordance with your understanding, please sign and
return to us four counterparts hereof, and upon the acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof shall
constitute a binding agreement between each of the Underwriters, the Company and
the Bank. It is understood that your acceptance of this letter on behalf of each
of the Underwriters is pursuant to the authority set forth in a form of
Agreement among Underwriters, the form of which shall be submitted to the
Company for examination upon request, but without warranty on your part as to
the authority of the signers thereof.
20
Very truly yours,
VALLEY BANCORP
By:________________________________
Name:
Title:
By:________________________________
Name:
Title:
VALLEY BANK
By:________________________________
Name:
Title:
By:________________________________
Name:
Title:
Accepted as of the date hereof:
Sandler X'Xxxxx & Partners, L.P.
As representative of the several Underwriters
By: Sandler X'Xxxxx & Partners Corp.
the sole general partner
By:______________________________
Name:
Title: Vice President
21
SCHEDULE I
NUMBER OF OPTIONAL
SHARES TO BE
TOTAL NUMBER OF PURCHASED IF
FIRM SHARES MAXIMUM OPTION
UNDERWRITER TO BE PURCHASED EXERCISED
Sandler X'Xxxxx & Partners, L.P.
[NAMES OF OTHER UNDERWRITERS]_________________________
22
Total____________________________
23
SCHEDULE II
CERTAIN STOCKHOLDERS
24
