UNDERWRITING AGREEMENT
Exhibit 99.2
5,660,378 Common Shares
December 16, 2024
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
St. Petersburg, Florida 33716
Ladies and Gentlemen:
VersaBank, a Canadian Schedule I chartered bank (the “Bank”), proposes to issue and sell to the several underwriters named in Annex A hereto (the “Underwriters”), pursuant to the terms set forth herein (this “Agreement”), an aggregate of 5,660,378 common shares (the “Firm Shares”) of the Bank (the “Common Stock”). The Bank also granted to Underwriters an option to purchase from the Bank up to an additional 849,056 common shares (the “Option Shares”). The Firm Shares and the Option Shares are hereinafter referred to collectively as the “Shares.” ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc. has agreed to act as representative of the several Underwriters (in such capacity, the “Representative”) in connection with the offering and sale of the Shares.
The Bank has prepared and filed with the United States Securities and Exchange Commission (the “Commission”), pursuant to the Canada/United States Multi-Jurisdictional Disclosure System adopted by the applicable securities commission or securities regulatory authority in each of the Qualifying Jurisdictions (as defined below) (“Canadian Securities Regulators”) and the Commission, a registration statement on Form F-10, as amended by Amendment No. 1 thereto (File No. 333-283077), for the registration of the offering of the Shares under the United States Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder (collectively, the “Securities Act”), including the Canadian Base Prospectus (as defined below) and the Canadian Preliminary Prospectus Supplement (as defined below), with such deletions therefrom and additions or changes thereto as are permitted or required by Form F-10 and the applicable rules and regulations of the Commission. Such registration statement, as amended, at any given time, including the financial statements, exhibits and schedules thereto, and the documents incorporated or deemed to be incorporated by reference therein and any information deemed to be a part thereof at the time of effectiveness pursuant to Item 4 of Form F-10 and the Securities Act, is called the “Registration Statement.” The prospectus included in the Registration Statement at the time it became effective under the Securities Act, including all documents incorporated or deemed to be incorporated by reference therein, is called the “U.S. Base Prospectus.” The U.S. preliminary prospectus supplement (which consists of the Canadian Preliminary Prospectus Supplement with such deletions therefrom and additions or changes thereto as are permitted or required by Form F-10 and the applicable rules and regulations of the Commission), that describes the Shares and the offering thereof in the United States of America, its territories and possessions, any state of the United States and the District of Columbia (the “United States”), including all documents incorporated or deemed to be incorporated by reference therein, together with the U.S. Base Prospectus, is called the “U.S. Preliminary Prospectus,” and the U.S. Preliminary Prospectus and any other prospectus in preliminary form that describes the Shares and the offering thereof and is used prior to the filing of the U.S. Final Prospectus (as defined below) in the United States is called a “U.S. preliminary prospectus.” The Bank has also prepared and filed with the Commission an Appointment of Agent for Service of Process and Undertaking on Form F-X (the “Form F-X”).
In addition, the Bank has prepared and filed (i) with the Canadian Securities Regulators in each of the provinces and territories of Canada, except Québec (the “Qualifying Jurisdictions”), a preliminary short form base shelf prospectus dated November 7, 2024 (together with all of the documents and information incorporated therein by reference, the “Canadian Preliminary Base Prospectus”) and a short form base shelf prospectus dated November 22, 2024, relating to the distribution up to US$200,000,000 aggregate initial offering amount of debt securities (unsubordinated indebtedness), debt securities (subordinated indebtedness), common shares, preferred shares, subscription receipts, and warrants of the Bank (such short form base shelf prospectus, together with all of the documents and information incorporated therein by reference, the “Canadian Base Prospectus”) pursuant to NI 44-101 (defined below) and NI 44-102 (defined below) (the “Shelf Procedures”) and (ii) with the Canadian Securities Regulators in the Qualifying Jurisdictions, a preliminary prospectus supplement dated December 16, 2024 to the Canadian Base Prospectus, relating to the distribution of the Shares (together with all of the documents and information incorporated therein by reference, the “Canadian Preliminary Prospectus Supplement”). The Canadian Preliminary Prospectus Supplement, together with the Canadian Base Prospectus, together with all of the documents and information incorporated therein by reference, is hereinafter referred to as the “Canadian Preliminary Prospectus.” “Preliminary Offering Documents” means the Canadian Preliminary Prospectus and U.S. Preliminary Prospectus (including, for greater certainty, the documents incorporated therein by reference). “NI 41-101” means National Instrument 41-101 – General Prospectus Requirements adopted by the Canadian Securities Regulators and “NI 44-101” means National Instrument 44-101 – Short Form Prospectus Distributions adopted by the Canadian Securities Regulators. “NI 44-102” means National Instrument 44-102 – Shelf Distributions adopted by the Canadian Securities Regulators. “MI 11-102” means Multilateral Instrument 11-102 – Passport System adopted by the Canadian Securities Regulators.
The Bank will file in a timely manner with the Commission pursuant to General Instruction II.L of Form F-10 the Canadian Prospectus Supplement (as defined below), which includes pricing and other information omitted from the U.S. Preliminary Prospectus, with such deletions therefrom and additions or changes thereto as are permitted or required by Form F-10 and the applicable rules and regulations of the Commission, such prospectus supplement together with the U.S. Base Prospectus included in the Registration Statement relating to the offer and sale of the Shares used in the United States, including the documents incorporated by reference therein, is herein called the “U.S. Final Prospectus.” In addition, the Bank will file a final prospectus supplement (the “Canadian Prospectus Supplement”) to the Canadian Base Prospectus, which includes pricing and other information omitted from the Canadian Preliminary Prospectus, and all necessary related documents in order to qualify the Shares for distribution in each of the Qualifying Jurisdictions on or before 5:30 p.m. (New York City time) on December 17, 2024 or such later date and time as the Bank and the Representative may mutually agree upon in writing (the “Qualification Deadline”). The Canadian Prospectus Supplement, together with the Canadian Base Prospectus, including all documents incorporated therein by reference (but not including any prospectus supplement other than the Canadian Prospectus Supplement), is hereinafter referred to as the “Canadian Final Prospectus.” “Final Offering Documents” means the Canadian Final Prospectus and the U.S. Final Prospectus (including, for greater certainty, the documents incorporated therein by reference).
For the purposes of this Agreement, the “Applicable Time” is 8:00 p.m., New York City time, on December 16, 2024. Any “issuer free writing prospectus” (as defined in Rule 433 under the Securities Act) relating to the offering of the Shares contemplated hereunder is hereinafter called an “Issuer Free Writing Prospectus.” “Time of Sale Prospectus” means the U.S. Preliminary Prospectus together with the Issuer Free Writing Prospectuses issued at or prior to the Applicable Time, if any, identified in Annex B hereto, and the information set forth on Annex B hereto.
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As used herein, “Road Show” means a “road show” (as defined in Rule 433 under the Securities Act) relating to the offering of the Shares contemplated hereby that is a “written communication” (as defined in Rule 405 under the Securities Act). All references to any Offering Document 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 or any successor system thereto (“▇▇▇▇▇”). “Testing-the-Waters Communication” means any oral or written communication with potential investors undertaken in reliance on Section 5(d) of the Securities Act. “Written Testing-the-Waters Communication” means any Testing-the-Waters Communication that is a “written communication” within the meaning of Rule 405 under the Securities Act. “Permitted Written Testing-the-Waters Communications” means the Written Testing-the-Waters Communications, if any, listed on Annex C hereto.
As used herein, the terms “Registration Statement,” “Preliminary Offering Documents,” “Time of Sale Prospectus” and “Final Offering Documents” shall include the documents incorporated or deemed to be incorporated by reference therein (including without limitation any marketing material) (the “Incorporated Documents”), including, unless the context requires otherwise, the documents, if any, filed as exhibits to such Incorporated Documents.
All references in this Agreement to (i) the Registration Statement, any U.S. preliminary prospectus (including the U.S. Preliminary Prospectus), or the U.S. Final Prospectus, or any amendments or supplements to any of the foregoing, or any free writing prospectus, shall include any copy thereof filed with the Commission pursuant to ▇▇▇▇▇ and (ii) the U.S. Final Prospectus shall be deemed to include any “electronic Prospectus” provided for use in connection with the offering of the Shares as contemplated by Section 4(p) of this Agreement. All references in this Agreement to the Canadian Preliminary Base Prospectus, the Canadian Base Prospectus, the Canadian Preliminary Prospectus or the Canadian Final Prospectus, or any amendments or supplements to any of the foregoing, shall include any copy thereof filed with the Canadian Securities Regulators in the Qualifying Jurisdictions pursuant to the System for Electronic Document Analysis and Retrieval + (“SEDAR+”). “Offering Documents” means the Registration Statement, the Preliminary Offering Documents, the Time of Sale Prospectus, the Final Offering Documents and any amendment thereto (including, for greater certainty, the documents incorporated therein by reference).
The Underwriters shall offer the Shares for sale to the public directly and through other duly registered investment dealers and brokers in the Qualifying Jurisdictions and the United States only as permitted by Canadian Securities Laws (as defined hereinafter) and United States Securities Laws (as defined hereinafter) and upon the terms and conditions set forth in the Offering Documents and this Agreement. The Underwriters agree that they will not, directly or indirectly, distribute any of the Offering Documents or publish any prospectus, circular, advertisement or other offering material in any jurisdiction other than the Qualifying Jurisdictions, such states of the United States in which the Shares (and their offer and sale) are duly qualified (to the extent required) under United States federal and applicable United States state securities laws, or such other jurisdictions as may be mutually agreed upon by the Representative on behalf of the Underwriters, and the Bank. The Underwriters agree that each of the Underwriters that is not registered as a broker-dealer under Section 15 of the United States Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (collectively, the “Exchange Act”), will not offer or sell any Shares in, or to persons who are nationals or residents of, the United States other than through one of its United States registered broker-dealer affiliates or otherwise in compliance with Rule 15a-6 under the Exchange Act. Sales of Shares in the Qualifying Jurisdictions may be made only by or through a dealer appropriately registered under applicable Canadian Securities Laws (as defined hereinafter) or in circumstances where an exemption from the Canadian registered dealer requirements is available.
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The Bank agrees that the Underwriters will be permitted to appoint, at their sole expense, other registered dealers or brokers as their agents to assist in the offer and sale of the Shares. The Underwriters shall, and shall require any such dealer or broker, other than the Underwriters, with which the Underwriters have a contractual relationship in respect of the offer and sale of the Shares (a “Selling Firm”) to, comply with the Canadian Securities Laws (as defined hereinafter) and United States Securities Laws (as defined hereinafter) in connection with the offer and sale of the Shares and shall offer the Shares for sale to the public directly and through the Selling Firms upon the terms and conditions (including the offer price) set out in the Offering Documents and this Agreement. The Underwriters shall, and shall require any Selling Firm to, offer for sale to the public and sell the Shares only in the United States, the Qualifying Jurisdictions and those jurisdictions outside of Canada and the United States where the Securities may be lawfully offered for sale or sold.
The Underwriters shall, and shall require any Selling Firm to agree to, observe and distribute the Shares in a manner that complies with all applicable laws and regulations (including all Canadian Securities Laws (as defined hereinafter) and United States Securities Laws (as defined hereinafter) in connection with the offer and sale of Shares) in each jurisdiction into and from which they may offer to sell the Shares or distribute the Offering Documents in connection with the offer and sale of the Shares and will not, and will require any Selling Firm not to, directly or indirectly, offer, sell or deliver any Shares or Offering Documents or any other document to any person in any jurisdiction except in a manner which will not require the Bank to comply with the registration, prospectus, continuous disclosure, filing or other similar requirements under the applicable securities laws of any jurisdictions (other than the Qualifying Jurisdictions and the United States).
The Representative shall promptly notify the Bank when, in their opinion, the distribution of the Shares has ceased and will provide to the Bank, as soon as practicable thereafter, a breakdown of the number of Shares distributed in each of the Qualifying Jurisdictions where such breakdown is required for the purpose of calculating fees payable to the Canadian Securities Regulators and, if applicable, in the United States.
In addition, the terms below shall have the meanings specified:
“Canadian Securities Laws” means all securities laws in each of the Qualifying Jurisdictions and the respective rules, regulations, instruments, blanket orders and blanket rulings under such laws, together with applicable published policies, policy statements and notices of the applicable securities commission or securities regulatory authority in each of the Qualifying Jurisdictions;
“distribution”, as used in this Agreement for purposes of Canadian Securities Laws matters has the meaning given to it in the Securities Act (Ontario);
“marketing materials” has the meaning ascribed to such term in NI 41-101;
“material change” has the meaning given to it in the Securities Act (Ontario);
“material fact” as used in this Agreement for purposes of Canadian Securities Laws matters means a fact that significantly affects, or would or may reasonably be expected to have a significant effect, on the market price or value of the Shares;
“misrepresentation” means a misrepresentation for the purposes of applicable Canadian Securities Laws or any of them or, where undefined under the applicable Canadian Securities Laws of a Qualifying Jurisdiction or for purposes of U.S. federal securities laws, means: (x) in relation to the Offering Documents (other than the Registration Statement) (i) an untrue statement of a material fact, or
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(ii) an omission to state a material fact, in each case that is required to be stated or that is necessary to make a statement not misleading in the light of the circumstances in which it was made; (y) in relation to the Registration Statement (i) an untrue statement of a material fact or (ii) an omission to state a material fact, in each case that is required to be stated or that is necessary to make a statement not misleading; and (z) in relation to a free writing prospectus, marketing materials, if any, or Testing-the-Waters Communication, in each case when considered together with the Time of Sale Prospectus as of the Applicable Time, (i) an untrue statement of a material fact, or (ii) an omission to state a material fact, in each case that is required to be stated or that is necessary to make a statement not misleading in the light of the circumstances in which it was made;
“provide”, as used in the context of sending or making available marketing materials to a potential investor of Shares, has the meaning ascribed to such term under Canadian Securities Laws;
“Shelf Information” means, collectively, the information included in the Canadian Prospectus Supplement that is permitted under the Shelf Procedures to be omitted from the Canadian Base Prospectus for which receipts or other evidences of acceptance have been obtained but that is deemed under the Shelf Procedures to be incorporated by reference into the Canadian Base Prospectus as of the date of and by virtue of the Canadian Prospectus Supplement; and
“United States Securities Laws” means United States federal and state securities laws.
The Bank confirms as follows its agreement with the Representative and the several other Underwriters.
SECTION 1: Representations and Warranties of the Bank.
(a) The Bank represents and warrants to each Underwriter at the date hereof, the Applicable Time, the Closing Date (as defined below), and each Option Closing Date (if any) referred to in Section 3(c) hereof, and agrees with each Underwriter, as follows:
Each of the Registration Statement and any post-effective amendment thereto, at the time of its effectiveness and as of each deemed effective date with respect to the Underwriters pursuant to Rule 430B(f)(2) of the Securities Act, complied in all material respects with the requirements of the Securities Act and the and the rules and regulations promulgated thereunder (the “Securities Act Regulations”). Each preliminary prospectus, the Time of Sale Prospectus, the U.S. Final Prospectus and any amendment or supplement thereto, at the time each was filed with the Commission, complied in all material respects with the requirements of the Securities Act and the Securities Act Regulations and are identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
The documents incorporated or deemed to be incorporated by reference in the Offering Documents, when they became effective or at the time they were or hereafter are filed with the Commission, as applicable, complied and will comply in all material respects with the requirements of the Exchange Act and the rules and regulations promulgated thereunder (the “Exchange Act Regulations”).
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The Bank is a “foreign private issuer” (as defined in Rule 405 under the Securities Act) and meets the requirements to use Form F-10 under the Securities Act to register the offering of the Shares under the Securities Act. The Bank has prepared and filed with the Commission an Appointment of Agent for Service of Process and Undertaking on Form F-X in conjunction with the filing of the Registration Statement. The Registration Statement and the Form F-X conform, and any further amendments to the Registration Statement or the Form F-X will conform, in all material respects to applicable requirements of the Securities Act.
Each document filed or to be filed with the Canadian Securities Regulators and incorporated by reference in the Canadian Final Prospectus, as amended or supplemented, if applicable, when such documents were or are filed with the Canadian Securities Regulators, conformed or will conform when so filed in all material respects with applicable Canadian Securities Laws.
The representations and warranties in this subsection shall not apply to statements in or omissions from the Offering Documents or any amendment or supplement thereto made in reliance upon and in conformity with information furnished in writing or confirmed in writing to the Bank by any Underwriter
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through the Representative expressly for use therein. For purposes of this Agreement, the only information so furnished or confirmed shall be the list of the Underwriters and their respective allocation of shares, the twelfth, thirteenth and fourteenth paragraphs under the heading “Underwriting—General” and the first and second paragraphs under the heading “Underwriting—Relationship Between the Bank and Certain Underwriters,” in each case, contained in the Registration Statement and the preliminary prospectus contained in the Offering Documents (collectively, the “Underwriter Information”).
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The descriptions of the Bank’s stock option, stock bonus and other stock plans or arrangements, and the options or other rights granted thereunder, set forth in the Offering Documents accurately and fairly present in all material respects the information required to be shown with respect to such plans, arrangements, options and rights.
(A) No material labor dispute with the employees of the Bank or any of the Subsidiaries exists or, to the knowledge of the Bank, is imminent. None of the Bank or any of the Subsidiaries is a party to any collective bargaining agreement
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and no action has been taken or is contemplated to organize any employees of the Bank or any of the Subsidiaries.
(B) There has not been in the last two years and there is not currently any material labor disruption, grievance, arbitration proceeding or other conflict and the Bank is in compliance in all material respects with all provisions of all federal, provincial, local, state and foreign laws and regulations respecting employment and employment practices, terms and conditions of employment and wages and hours.
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to the revocation or modification of any such Governmental Licenses which, singly or in the aggregate, in the reasonable judgment of the Bank, is likely to result in a Material Adverse Effect.
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and to the knowledge of the Bank, there are no circumstances that would prevent, interfere with or materially increase the cost of such compliance in the future. Except as disclosed in the Offering Documents, there is no claim under any Environmental Law, including common law, pending or, to the knowledge of the Bank, threatened against the Bank and the Subsidiaries (an “Environmental Claim”), which would be reasonably likely to have a Material Adverse Effect, and, to the knowledge of the Bank, 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 Environmental Claim against the Bank and the Subsidiaries which would be reasonably likely to have a Material Adverse Effect.
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properties and as is believed to be customary for companies engaged in similar businesses in similar industries; all policies of insurance of the Bank and the Subsidiaries or their respective businesses, assets, employees, officers and directors are in full force and effect in all material respects; and none of the Bank or any of the Subsidiaries has received any notice of cancellation or non-renewal of any such policy.
(A) None of the Bank, any of its subsidiaries, nor, to the knowledge of the Bank, any officer, director, agent, employee, affiliate or person acting on behalf of the Bank or any subsidiary is currently the subject or the target of any sanctions administered or enforced by the U.S. Government, (including, without limitation, the Office of Foreign Assets Control of the U.S. Department of the
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Treasury (“OFAC”) or the U.S. Department of State and including, without limitation, the designation as a “specially designated national” or “blocked person”), the United Nations Security Council, the European Union, Canada, or other applicable sanctions authority (collectively, “Sanctions”), nor is the Bank, or any of the Subsidiaries located, organized or resident in a country or territory that is the subject or the target of Sanctions (each, a “Sanctioned Country”); and the Bank will not directly or indirectly use the proceeds of the offering of the Shares hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity (i) to fund or facilitate any activities of, or business with, any person that, at the time of such funding or facilitation, is the subject or the target of Sanctions, (ii) to fund or facilitate any activities of, or business in, any Sanctioned Country or (iii) in any other manner that will result in a violation by any person (including any person participating in the transaction, whether as underwriter, advisor, investor or otherwise) of Sanctions.
(B) Notwithstanding anything in this Agreement, nothing in this Agreement shall require the Bank or any of its subsidiaries or any director, officer, employee, agent or affiliate of the Bank or any of its subsidiaries that are registered or incorporated under the laws of Canada or a province or territory thereof to commit an act or omission that contravenes the Foreign Extraterritorial Measures (United States) Order, 1992.
(C) For the past five years, the Bank and its subsidiaries have not knowingly engaged in and are not now knowingly engaged in any dealings or transactions with any person that at the time of the dealing or transaction is or was the subject or the target of Sanctions or with any Sanctioned Country.
(D) The Bank and its subsidiaries have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, that they do not knowingly engage in any dealings or transactions with any person that at the time of the dealing or transaction is or was the subject or the target of Sanctions or with any Sanctioned Country.
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execution of judgment, or from execution of a judgment, or other legal process or proceeding for the giving of any relief or for the enforcement of a judgment, in any such court, with respect to its obligations, liabilities or any other matter under or arising out of or in connection with this Agreement. To the extent that the Bank or any of its properties, assets or revenues may have or may hereafter become entitled to any such right of immunity in any such court in which proceedings may at any time be commenced, the Bank waives or will waive such right to the extent permitted by law and has consented to such relief and enforcement as provided in Section 15 of this Agreement.
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Information Protection Act (Alberta), An Act Respecting the Protection of Personal Information In the Private Sector (Quebec), and the European Union General Data Protection Regulation (“GDPR”) (EU 2016/679) (collectively, the “Privacy Laws”); and (B) the Bank and its subsidiaries have in place, comply with, and take appropriate steps reasonably designed to ensure compliance, in all respects with their policies and procedures relating to data privacy and security with respect to the collection, storage, use, disclosure, handling, transfer and analysis of Personal Data. “Personal Data” means all data collected from or about a natural person, whether an employee, customer, or other third party, or a natural person’s device and includes, without limitation: (i) a natural person’s (including, without limitation, any employees or other third parties) name, street address, telephone number, e-mail address, photograph, social security number, tax identification number, government issued identification number, driver’s license number, passport number, credit card number, bank information, or customer or account number; (ii) any information that would qualify as “personally identifying information”, “personal information,” or “personal data” under any applicable state, federal, or international law; (iii) Protected Health Information as defined by HIPAA; (iv) “personal data” as defined by GDPR; (v) “personal information” as defined by ▇▇▇▇▇▇; and (vi) any other piece of information that identifies such natural person or a natural person’s device. Except as would not, individually or in the aggregate, have a Material Adverse Effect, neither the Bank nor any of its subsidiaries (X) have at any time in the past five (5) years received written notice of any actual or reasonably likely liability of the Bank or its subsidiaries relating to any violation of any Privacy Laws, including, but not limited to any such liability relating to any security or data privacy breaches suffered by the Bank or its subsidiaries or other unauthorized or improper collection of, access to, use of, or destruction of its Personal Data owned or controlled by the Bank or its subsidiaries; (Y) other than pursuant to its compliance efforts in the ordinary course of business, is currently conducting, subject to, or paying for, in whole or in part, any investigation, remediation, or other corrective action resulting from the Bank’s or its subsidiaries’ non-compliance with any Privacy Law; or (Z) has in the past five (5) years been a party to any order, decree, settlement agreement, or judgment from a governmental entity that imposes any obligation or liability under any Privacy Law.
(l) [Reserved].
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by the Bank to be financially responsible. The Bank 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 except as would not, singly or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(lxi) Permitted Testing-the-Waters Communications. The Bank (a) has not engaged in any Testing-the-Waters Communication other than Permitted Written Testing-the-Waters Communications with the consent of the Representative with entities that are qualified institutional buyers within the meaning of Rule 144A under the Securities Act or institutions that are accredited investors within the meaning of Rule 501 under the Securities Act, and (b) has not authorized anyone other than Representative to engage in Testing-the-Waters Communications (other than the participation by the Bank’s management with respect to Permitted Written Testing-the-Waters Communications). The Bank reconfirms that the Representative has been authorized to act on its behalf in undertaking Testing-the-Waters Communications. The Bank has not distributed or approved for distribution any Written Testing-the-Waters Communications other than the Permitted Written Testing-the-Waters Communications.
(lxii) Accuracy of Permitted Written Testing-the-Waters Communications. As of the Applicable Time, each Permitted Written Testing-the-Waters Communication, as supplemented by and taken together with the Offering Documents, did not, as of the Applicable Time, include an untrue statement of a material fact or 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; and each Permitted Written Testing-the-Waters Communication, if any, does not, as of the date hereof, conflict with the information contained in the Offering Documents; and the Bank has filed publicly on ▇▇▇▇▇ at least 15 calendar days prior to any Road Show, any confidentially submitted the Registration Statement and the Registration Statement amendments relating to the offer and sale of the Shares.
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(b) The Bank has a reasonable basis for making each of the representations set forth in this Section 1(a) and Section 1(b) as applicable. The Bank acknowledges that the Underwriters and, for purposes of the opinions to be delivered pursuant to Section 6 hereof, counsel to the Bank and counsel to the Underwriters, may rely upon the accuracy and truthfulness of the foregoing representations and hereby consents to such reliance. Any certificate signed by, or on behalf of, the Bank delivered to the Underwriters or to counsel for the Underwriters shall be deemed a representation and warranty by the Bank to the Underwriters as to the matters covered thereby.
SECTION 2: Sale; Option Shares.
(a) On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, (i) the Bank agrees to sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Bank, at a purchase price per share of $12.4815 (the “Purchase Price”), the number of Firm Shares set forth opposite the name of such Underwriter in Annex A hereto, and (ii) in the event and to the extent that Underwriters shall exercise the election to purchase Option Shares as provided below, the Bank agrees to sell to each of the Underwriters, and each of Underwriters agrees, severally and not jointly, to purchase from the Bank, at the Purchase Price, the number of Option Shares (to be adjusted by the Representative so as to eliminate fractional shares) determined by multiplying (x) the number of Option Shares as to which such election shall have been exercised by (y) a fraction, the numerator of which is the aggregate number of Firm Shares to be purchased by such Underwriter as set forth opposite the name of such Underwriter in Annex A hereto and the denominator of which is the aggregate number of Firm Shares to be purchased by all of the Underwriters from the Bank.
(b) In addition, on the basis of the representations and warranties herein contained and subject to the terms and conditions set forth herein, the Bank hereby grants to the Underwriters the right to purchase at their election up to 849,056 Option Shares, at the Purchase Price. The Underwriters may exercise their option to acquire Option Shares in whole or in part from time to time only by written notice from the Representative to the Bank given within a period of 30 calendar days after the date of this Agreement and setting forth (i) the aggregate number of Option Shares to be purchased and (ii) the time, date and place at which such Option Shares are to be delivered, as determined by the Representative but in no event earlier than the Closing Date or, unless the Representative and the Bank otherwise agree in writing, earlier than two or later than ten business days after the date of such notice.
SECTION 3: Delivery to Underwriters; Closing.
(a) It is understood that the several Underwriters propose to offer the Firm Shares for sale to the public upon the terms and conditions set forth in the Offering Documents.
(b) The Bank, Odyssey Trust Company (the “Canadian Transfer Agent”) and Odyssey Transfer and Trust Company (the “U.S. Transfer Agent” and, together with the Canadian Transfer Agent, the “Transfer Agent”) will deliver the Firm Shares to the Representative through the facilities of DTC for the accounts of the Underwriters, against payment of the purchase price therefor in Federal (same day) funds by official bank check or checks or wire transfer drawn to the order of the Bank, in the case of Firm Shares sold by the Bank, pro rata based on the number of Firm Shares sold by each of them, under instructions from the Transfer Agent, at 11:00 a.m., New York City time, on December 18, 2024, unless postponed in accordance with Section 12 hereof, or such other time and date not later than 2:00 p.m., New York City time, on December 23, 2024, as the Representative and the Bank determine, such time being referred to herein as the “Closing Date.” For purposes of Rule 15c6-1 under the Exchange Act, the Closing Date (if later than the otherwise applicable settlement date) shall be the settlement date for
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payment of funds and delivery of securities for all the Firm Shares. The certificates or book entry security entitlements for the Firm Shares so to be delivered will be in such denominations and registered in such names as the Representative requests and, if the Firm Shares are to be certificated, will be delivered and made available for checking and packaging at the offices of Holland & Knight LLP at least 24 hours prior to the Closing Date.
(c) Each time for the delivery of and payment for the Option Shares, being herein referred to as an “Option Closing Date,” which may be the Closing Date, shall be determined by the Representative as provided above. The Bank will deliver the Option Shares being purchased on each Option Closing Date to the Representative through the facilities of DTC for the accounts of the Underwriters, against payment of the purchase price therefor in Federal (same day) funds by official bank check or checks or wire transfer drawn to the order of the Bank at the offices of Holland & Knight LLP, at 11:00 a.m., New York City time, on the applicable Option Closing Date. The certificates or book entry security entitlements for the Option Shares so to be delivered will be in such denominations and registered in such names as the Representative requests and, if the Option Shares are to be certificated, will be delivered and made available for checking and packaging at the offices of Holland & Knight LLP at least 24 hours prior to such Option Closing Date.
The Bank further covenants and agrees with each of the Underwriters as follows:
(a) The Bank, subject to Section 4(b) hereof, will comply with the requirements of Rule 430A under the Securities Act, and will notify Representative promptly, and confirm the notice in writing, (A) when any post-effective amendment to the Registration Statement shall become effective, or any amendment or supplement to any of the Offering Documents shall have been filed, to furnish Representative with copies thereof, and to file promptly all materials required to be filed by the Bank with the Commission pursuant to Rule 433(d) under the Securities Act, (B) of the receipt of any comments from any securities commission, including the Commission, stock exchange or comparable authority on the Offering Documents, (C) of any request by any securities commission, including the Commission, stock exchange or comparable authority for amending or supplementing any of the Offering Documents, or for additional or supplemental information, and (D) of the issuance by any securities commission, including the Commission, stock exchange or comparable authority of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Offering Document, or of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes.
(b) The Bank will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement, or any amendment, supplement or revision to any Offering Document. The Bank (A) will furnish to the Representative for review, a reasonable period of time prior to the proposed time of filing of any proposed amendment or supplement to the Registration Statement, a copy of each such amendment or supplement, and (B) will not amend or supplement the Registration Statement without the Representative’s prior written consent. Prior to amending or supplementing any Offering Document, the Bank shall furnish to the Representative for review, a reasonable amount of time prior to the time of filing or use of the proposed amendment or supplement, a copy of each such proposed amendment or supplement. The Bank shall not file or use any such proposed amendment or supplement without the Representative’s prior written consent. The Bank shall file with the Commission within the applicable period specified in Rule 424(b) under the Securities Act any prospectus required to be filed pursuant to such rule and with Canadian Securities Regulators, as applicable, any prospectus required to be filed pursuant to Canadian Securities Laws and in compliance with Canadian Securities Laws.
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(c) The Bank shall furnish to the Representative for review, a reasonable amount of time prior to the proposed time of filing or use thereof, a copy of each proposed free writing prospectus or any amendment or supplement thereto prepared by or on behalf of, used by, or referred to by the Bank, and the Bank shall not file, use or refer to any proposed free writing prospectus or any amendment or supplement thereto without the Representative’s prior written consent. The Bank shall furnish to each Underwriter, without charge, as many copies of any free writing prospectus prepared by or on behalf of, used by or referred to by the Bank as such Underwriter may reasonably request. If at any time when a prospectus is required by the Securities Act to be delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) in connection with sales of the Shares (but in any event if at any time through and including the Closing Date) there occurred or occurs an event or development as a result of which any free writing prospectus prepared by or on behalf of, used by, or referred to by the Bank conflicted or would conflict with the information contained in the Offering Documents or included or would include an untrue statement of a material fact or omitted or could omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances prevailing at such time, not misleading, the Bank shall promptly amend or supplement such free writing prospectus to eliminate or correct such conflict so that the statements in such free writing prospectus as so amended or supplemented will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances prevailing at such time, not misleading, as the case may be; provided, that prior to amending or supplementing any such free writing prospectus, the Bank shall furnish to the Representative for review, a reasonable amount of time prior to the proposed time of filing or use thereof, a copy of such proposed amended or supplemented free writing prospectus, and the Bank shall not file, use or refer to any such amended or supplemented free writing prospectus without the Representative’s prior written consent.
(d) The Bank will use its best efforts to qualify the Shares for offering and sale under the securities laws of such jurisdictions as the Representative may reasonably 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 nothing in this Section 4(d) shall require the Bank to qualify as a foreign corporation in any jurisdiction in which it is not already so qualified or to file a general consent to service of process in any jurisdiction or to subject itself to taxation in respect of doing business in any jurisdiction in which it is otherwise not so subject.
(e) The Bank has furnished or will deliver to the Representative, without charge, signed copies of the Registration Statement as originally filed and of each amendment to each (including exhibits filed therewith or incorporated by reference therein) and signed copies of all consents and certificates of experts, and will also deliver to the Representative, without charge, a conformed copy of the Registration Statement as originally filed and of each amendment thereto (without exhibits) for each of the Underwriters, in each case in such quantities as the Representative reasonably requests. 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 ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(f) The Bank covenants with the Underwriters that the Bank will, as soon as possible following the execution of this Agreement but, in any event, no later than the Qualification Deadline, (i) file the Canadian Prospectus Supplement including the Shelf Information in a form approved by the Underwriters, acting reasonably, in accordance with MI 11-102 with the Ontario Securities Commission (in its capacity as the principal regulator under MI 11-102) and with the Canadian Securities Regulators in each of the Qualifying Jurisdictions and (ii) voluntarily provide to the Commission on ▇▇▇▇▇ the U.S. Final Prospectus in a form approved by the Underwriters, acting reasonably, and advise the Underwriters promptly when each such filing has been made. The Bank will comply with the United
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States Securities Laws and Canadian Securities Laws so as to permit the completion of the offer and sale of the Shares in the Qualifying Jurisdictions and the United States through the Underwriters or their respective affiliates or any other investment dealers or brokers duly registered in such jurisdictions as contemplated by this Agreement and the Offering Documents. Without limiting the generality of the foregoing, the Bank will, during the period when a prospectus relating to the Shares is required by the Securities Act to be delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule), file on a timely basis with the Commission and the Nasdaq all reports and documents required to be filed under the Exchange Act.
(g) The Bank has delivered to each Underwriter, without charge, as many written and electronic copies of each preliminary prospectus and the Time of Sale Prospectus as such Underwriter reasonably requested, and the Bank hereby consents to the use of such copies for purposes permitted by the Securities Act. The Bank will furnish to each Underwriter, without charge, prior to 5:00 p.m., New York City time, on the business day next succeeding the date of this Agreement and from time to time thereafter during the period when the U.S. Final Prospectus is required to be delivered in connection with sales of the Shares under the Securities Act or the Exchange Act or in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act, such number of written and electronic copies of the U.S. Final Prospectus (as amended or supplemented) as such Underwriter may reasonably request. The U.S. Final 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 ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(h) If at any time following the distribution of any Permitted Written Testing-the-Waters Communication there occurred or occurs an event or development as a result of which such Permitted Written Testing-the-Waters Communication 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 existing at that subsequent time, not misleading, the Bank will promptly notify the Representative and, should the Underwriters request, will promptly amend or supplement, at its own expense, such Permitted Written Testing-the-Waters Communication to eliminate or correct such untrue statement or omission. The Bank will timely file such reports pursuant to the Exchange Act as are necessary in order to make generally available to its security holders 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 Securities Act.
(i) The Bank will use the net proceeds received by it from the sale of the Shares in the manner specified in the Time of Sale Prospectus under the heading “Use of Proceeds.”
(j) The Bank has engaged and will maintain, at its expense, a registrar and transfer agent for the Shares.
(k) The outstanding Common Stock are listed and posted for trading on the TSX and Nasdaq. The Bank will use its reasonable best efforts to effect and maintain the listing of the Common Stock (including the Shares) on Nasdaq and the TSX, as applicable.
(l) The Bank will comply with the Securities Act, the Exchange Act and Canadian Securities Laws so as to permit the completion of the distribution of the Shares as contemplated by this Agreement and the Offering Documents. Without limiting the generality of the foregoing, the Bank will, during the period when a prospectus relating to the Shares is required by the Securities Act to be delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule), file on a timely basis with the Commission and Nasdaq all reports and documents required to be filed under the
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Exchange Act. Additionally, the Bank shall report the use of proceeds from the issuance of the Shares as may be required under Rule 463 under the Securities Act. If at any time when a prospectus is required by the Securities Act to be delivered (whether physically or through compliance with Rule 172 under the Securities Act or any similar rule) in connection with sales of the Shares (but in any event if at any time through and including the Closing Date or any Option Closing Date) there occurred or occurs an event or development as a result of which it is necessary, in the opinion of counsel for the Underwriters or for the Bank, to amend the Registration Statement or amend or supplement any Offering Document in order that such Offering Document will not include any untrue statements of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the opinion of such counsel, at any such time to amend the Registration Statement or amend or supplement any Offering Document in order to comply with the requirements of the Securities Act or the Securities Act Regulations, the Bank will promptly prepare and file with the Commission, subject to Section 4(b), such amendment or supplement as may be necessary to correct such statement or omission or to make the Registration Statement or any Offering Document comply with such requirements, and the Bank will furnish to the Underwriters such number of copies of such amendment or supplement as the Underwriters may reasonably request.
(m) The Bank will file with the Commission such information as may be required pursuant to Rule 463 under the Securities Act.
(n) During a period of five years from the effective date of the Registration Statement, the Bank will furnish to the Representative copies of all reports or other communications (financial or other) furnished to shareholders generally, and to deliver to the Representative (A) 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 Bank is listed, and (B) such additional information concerning the business and financial condition of the Bank as the Representative may from time to time reasonably request (such financial statements to be on a consolidated basis to the extent the accounts of the Bank and the Subsidiaries are consolidated in reports furnished to its shareholders generally or to the Commission); provided, the Bank will be deemed to have furnished such reports, financial statements and other information to the extent such reports, financial statements and other information is filed with the Commission and publicly available.
(o) The Bank shall not invest or otherwise use the proceeds received by the Bank from its sale of the Shares in such a manner as would require the Bank or any of the Subsidiaries to register as an investment company under the Investment Company Act.
(p) The Bank shall cause to be prepared and delivered, at its expense, within one business day from the effective date of this Agreement, to the Representative an electronic Prospectus to be used by the Underwriters in connection with the offering and sale of the Shares. As used herein, the term “electronic Prospectus” means a form of Offering Document and any amendment or supplement thereto, that meets each of the following conditions: (A) it shall be encoded in an electronic format, satisfactory to the Representative, that may be transmitted electronically by the Representative and the other the Underwriters to offerees and purchasers of the Shares, (B) it shall disclose the same information as such paper Offering Document, and (C) it shall be in or convertible into a paper format or an electronic format, satisfactory to the Representative, that will allow investors to store and have continuously ready access to such Offering Document at any future time, without charge to investors (other than any fee charged for subscription to the Internet generally). The Bank hereby confirms that, if so requested by the Representative, it has included or will include in the U.S. Final Prospectus filed with the Commission an undertaking that, upon receipt of a request by an investor or his or her representative, the Bank shall
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transmit or cause to be transmitted promptly, without charge, a paper copy of such paper Offering Document to such investor or representative.
(q) The Bank will not take, and will use its reasonable best efforts to ensure that no affiliate of the Bank will take, directly or indirectly, any action designed to cause or result in or which constitutes or would reasonably be expected to constitute stabilization or manipulation of the price of the Shares or any reference security with respect to the Shares, whether to facilitate the sale or resale of the Shares or otherwise, and the Bank will, and will use its best efforts to cause each of its affiliates to, comply with all applicable provisions of Regulation M under the Exchange Act.
(r) The Bank represents and agrees that, without the prior consent of the Representative, it has not made and will not make any offer relating to the Shares that would constitute a “free writing prospectus” as defined in Rule 405 under the Securities Act; any such free writing prospectus the use of which has been consented to by the Bank and the Representative is listed on Annex B hereto.
(s) The Bank has complied and will comply with the requirements of Rule 433 under the Securities Act applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission or retention where required and legending; the Bank represents that it has satisfied and agrees that it will satisfy the conditions under Rule 433 under the Securities Act to avoid a requirement to file with the Commission any electronic Road Show.
(t) The Bank and its Subsidiaries will comply with all effective applicable provisions of the Sarbanes Oxley Act to the extent applicable thereto.
(u) The Bank will promptly notify the Representative if the Bank ceases to be an Emerging Growth Company at any time prior to the later of (A) completion of the distribution of Shares within the meaning of the Securities Act and (B) completion of the Lock-up Period.
(v) During a period of 60 days from the date of the Final Offering Documents (the “Lock-Up Period”), the Bank will not, directly or indirectly, without the prior written consent of the Representative, (A) 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 for the sale of, hypothecate, establish an open “put equivalent position” within the meaning of Rule 16a-1(h) under the Exchange Act, or otherwise dispose of or transfer any shares of Common Stock or any securities convertible into or exchangeable or exercisable for Common Stock, or exercise any right with respect to the registration of any of the foregoing, file or cause to be filed any registration statement in connection therewith under the Securities Act, (B) enter into any swap, hedge or any other agreement or any transaction that transfers, in whole or in part, the economic consequence of ownership of the Common Stock, whether any such swap, hedge or transaction is to be settled by delivery of Common Stock or other securities, in cash or otherwise, or (C) publicly disclose the intention to make any such offer, pledge, sale or disposition, or to enter into any such swap, hedge, transaction or other arrangement other than (w) the issuance of Common Stock or other securities (including securities convertible into or exchangeable or exercisable for Common Stock or other securities) issued as consideration for the acquisition by the Bank of substantially all of the securities, business, properties or other assets of another person or entity which acquisition has been publicly announced prior to the date of this Agreement; (x) the Shares to be sold hereunder, (y) the issuance of restricted stock awards, options to acquire shares of Common Stock, or other equity-based awards (including shares of Common Stock issuable upon exercise of any such awards) granted pursuant to the Bank’s benefit plans existing on the date hereof that are described in the Registration Statement and the Preliminary Offering Documents, as such plans may be amended, or the filing of one or more registration statements on Form S-8 with respect to the issuance of securities under such benefit plans in
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each case where such restricted stock awards, options, or other equity-based award vest after the expiration of the Lock-Up Period, or (z) the issuance of shares of Common Stock upon the exercise of any such options or equity-based awards.
(w) During the Lock-Up Period, the Bank will enforce all agreements between the Bank and any of its security holders that restrict or prohibit, expressly or in operation, the offer, sale or transfer of shares of Common Stock or securities convertible into or exchangeable or exercisable for any shares of Common Stock, or any of the other actions restricted or prohibited under the terms of the form of “lock-up” agreement. In addition, the Bank will direct the transfer agent to place stop transfer restrictions upon any such securities of the Bank that are bound by such “lock-up” agreements for the duration of the periods contemplated in such agreements, including, without limitation, “lock-up” agreements entered into by the Bank’s executive officers, directors and shareholders pursuant to Section 6(q) hereof.
(x) If the Representative, in its sole discretion, agrees to release or waive the restrictions set forth in a “lock-up” agreement described in Section 6(q) hereof for an executive officer or director of the Bank and provides the Bank with notice of the impending release or waiver at least three business days before the effective date of the release or waiver, the Bank agrees to announce the impending release or waiver by a press release substantially in the form of Exhibit B hereto through a major news service at least two business days before the effective date of the release or waiver.
SECTION 5: Payment of Expenses.
The Bank will pay all reasonable out-of-pocket expenses incident to the performance of its obligations under this Agreement, including, without limitation, (A) the fees, disbursements and expenses of the Bank’s counsel, accountants and other advisors, (B) filing fees and all other expenses in connection with the preparation, printing, filing and delivering of the Registration Statement (including Financial Statements and exhibits), each Offering Document and amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters and dealers, (C) the cost of printing, producing or delivering this Agreement, closing documents (including any compilations thereof) and such other documents as may be required in connection with the offering, purchase, sale and delivery of the Shares, (D) all expenses in connection with the qualification (or obtaining exemptions from the qualification or registration) of the Shares for offering and sale under securities laws of state or foreign jurisdictions as provided in Section 4(d), including filing fees and the reasonable fees and disbursements of counsel for the Underwriters in connection with such qualification and in connection with the Blue Sky survey, (E) all fees and expenses in connection with listing the Common Stock (including the Shares) on Nasdaq and the TSX, (F) all fees and expenses in connection with the preparation, issuance and delivery of the certificates representing the Shares 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 Shares to the Underwriters, (G) the cost and charges of any transfer agent or registrar, (H) the transportation and other expenses incurred by the Bank in connection with presentations to prospective purchasers of Shares, (I) the costs and expenses of the Bank relating to investor presentations on any Road Show, any Permitted Written Testing-the-Waters Communication or any Testing-the-Waters Communication undertaken in connection with the offering of the Shares, including, without limitation, expenses associated with the preparation or dissemination of any electronic Road Show, 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 with the prior approval of the Bank, travel and lodging expenses of the Representative, employees and officers of the Bank and any such consultants in connection with the Road Show, and (J) all other reasonable fees and expenses of the Underwriters (including fees and disbursements of their counsel in an amount not to exceed $150,000 in the aggregate, and marketing, syndication and travel expenses and any expenses related to an investor presentation and/or roadshow that
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are incurred by the Underwriters); and all other costs and expenses incident to the performance of its obligations hereunder which are not otherwise specifically provided for in this Section. In the event the Underwriters incur any such fees and expenses on behalf of the Bank, the Bank will reimburse the Underwriters for such fees and expenses whether or not the offering of the Shares is consummated.
SECTION 6: Conditions of Underwriters’ Obligations.
The several obligations of the Underwriters hereunder to purchase the Shares on the Closing Date or each Option Closing Date, as the case may be, are subject to the performance by the Bank of its obligations hereunder and to the following additional conditions:
(i) At or prior to the filing thereof with the Canadian Securities Regulators: (x) a copy of the Canadian Prospectus Supplement and any amendment thereto, in each case signed and certified as required by the Canadian Securities Laws applicable in the Qualifying Jurisdictions; and (y) a copy of any other document required to be filed by the Bank along with the Canadian Prospectus Supplement or in connection with the offering and sale of the Offered Shares under Canadian Securities Laws.
(ii) As soon as practicable, after the filing of the Canadian Prospectus Supplement with the Canadian Securities Regulators, a copy of the acknowledgment of filing of the U.S. Final Prospectus on ▇▇▇▇▇.
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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 Offering Documents, and (ii) since the respective dates as of which information is given in the Offering Documents, (A) there shall not have been any change in the capital stock or long term debt of the Bank or any Subsidiary, and (B) there shall not have been any Material Adverse Effect, 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 Closing Date or Option Closing Date, as the case may be, on the terms and in the manner contemplated in the Offering Documents.
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If any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated by the Representative by notice to the Bank at any time at or prior to the Closing Time, and such termination shall be without liability of any party to any other party except as provided in Section 4 hereof and except that Section 7 and Section 8 shall survive any such termination and remain in full force and effect.
SECTION 7: Effective Time of Agreement.
This Agreement shall become effective upon the execution and delivery hereof by the parties hereto.
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(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 included in the Offering Documents (or any amendment thereto), including any information deemed to be a part thereof pursuant to Rule 430B of the Securities Act (“Rule 430B”), 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, except insofar as such loss, liability, claim, damage or expense arises out of, or is based upon, any untrue statement or omission to have resulted solely from the Underwriter Information;
(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, except insofar as such loss, liability, claim, damage or expense arises out of, or is based upon, any untrue statement or omission to have resulted solely from the Underwriter Information; provided that (subject to Section 8(d) below) any such settlement is effected with the prior written consent of the Bank; and
(iii) against any and all expense whatsoever, as incurred (including the fees and disbursements of counsel chosen by the Representative), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, or breach or alleged breach of any such representation, warranty or agreement, 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 the Underwriter Information in the Registration Statement (or any amendment thereto).
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the defense, such defense shall be conducted by counsel chosen by it and approved by the indemnified parties, which approval shall not be unreasonably withheld or denied. In the event that an indemnifying party elects to assume the defense of any such suit and retain such counsel, the indemnified party or parties shall bear the fees and expenses of any additional counsel thereafter retained by such indemnified party or parties; provided, however, that the indemnified party or parties shall have the right to employ counsel (in addition to local counsel) to represent the indemnified party or parties who may be subject to liability arising out of any action in respect of which indemnity may be sought against the indemnifying party if, in the reasonable judgment of counsel for the indemnified party or parties, there may be legal defenses available to such indemnified person which are different from or in addition to those available to such indemnifying person, in which event the reasonable fees and expenses of appropriate separate counsel shall be borne by the indemnifying party. In no event shall the indemnifying parties be liable for fees and expenses of more than one counsel (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances. No indemnifying party shall, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by 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 7 or Section 8 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.
In order to provide for just and equitable contribution in circumstances under which the indemnification provided for in Section 8 hereof is for any reason held to be unenforceable by 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 Bank, on the one hand, and the Underwriters, on the other hand, from the offering of the Shares 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 Bank, on the one hand, and of the Underwriters, on the other hand, in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Bank, as the case may be, on the one hand, and the Underwriters, on the other hand, in connection with the offering of the Shares pursuant to this Agreement shall be deemed to be in the same respective proportions as the total net proceeds from the offering of the
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Shares pursuant to this Agreement (before deducting expenses) received by the Bank, as the case may be, on the one hand, and the total underwriting discount received by the Underwriters, on the other hand, in each case as set forth on the cover of the Final Offering Documents, bear to the aggregate initial public offering price of the Shares as set forth on the cover of the Final Offering Documents.
The relative fault of the Bank, 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 statements of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Bank or by the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
The Bank and each Underwriter, severally and not jointly, agree that it would not be just and equitable if contribution pursuant to this Section 9 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 9. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 9 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 9, the Underwriters shall not be required to contribute any amount in excess of the underwriting discount received by such Underwriter in connection with the Shares underwritten by it and distributed to the public.
No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 9, each person, if any, who controls an Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act and the respective partners, directors, officers, employees and agents of the Underwriter shall have the same rights to contribution as the Underwriters, and each officer and director of the Bank, and each person, if any, who controls the Bank within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the Bank.
SECTION 10: Termination of Agreement.
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SECTION 11: Effect of Termination.
The respective indemnities, agreements, representations, warranties and other statements of the Bank, and of the several Underwriters set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation, or statement as to the results thereof, made by or on behalf of any Underwriter, the Bank, or any of their respective representatives, officers or directors or any controlling person, and will survive delivery of and payment for the Shares.
SECTION 12: Defaulting Underwriter.
(a) If any one or more of the Underwriters shall fail or refuse to purchase the Shares hereunder on the Closing Date or any Option Closing Date and the aggregate number of Shares that such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed 10% of the total number of Shares that the Underwriters are obligated to purchase on such Closing Date or Option Closing Date, as the case may be, Representative may make arrangements satisfactory to the Bank for the purchase of such Shares by other persons, including any of Underwriters, but if no such arrangements are made by such Closing Date or Option Closing Date, as the case may be, the non-defaulting Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the Shares that such defaulting Underwriters agreed but failed to purchase on such Closing Date or Option Closing Date, as the case may be. If any Underwriter or Underwriters so default and the aggregate number of Shares with respect to which such default or defaults occur exceeds 10% of the total number of Shares that Underwriters are obligated to purchase on such Closing Date or Option Closing Date, as the case may be, and arrangements satisfactory to the Representative and the Bank for the purchase of such Shares by other persons are not made within 36 hours after such default, this Agreement will terminate, without liability on the part of any non-defaulting Underwriter or the Bank, except as provided in Section 11. Nothing herein will relieve a defaulting Underwriter from liability for its default.
(b) In the event of any such default which does not result in a termination of this Agreement, either the Representative or the Bank shall have the right to postpone the Closing Date or the relevant Option Closing Date, as the case may be, for a period not exceeding seven days, in order to effect any required changes to the Registration Statement or Prospectus or any other documents or arrangements. As used in this Agreement, the term “Underwriter” includes any person substituted for an Underwriter under this Section 12.
All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given (i) where delivered by hand, at the time of delivery as evidenced by written acknowledgment of receipt by the addressee, and (ii) where dispatched by registered or certified U.S. mail, return receipt requested, postage prepaid, on acknowledgment of receipt by or on behalf of the recipient, but if such delivery or receipt is on a day on which commercial businesses are not generally open for business in the place of receipt or is later than 5:00 p.m. (local time) on any day, the notice shall be deemed to have been given and served on the next day on which commercial businesses are generally open for business in the place of receipt.
35
Notices to the Representative or the Underwriters shall be directed to ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc., ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇ ▇▇▇▇▇▇▇, with a copy to Holland & Knight LLP, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, Esq.; notices to the Bank shall be directed to VersaBank, Suite 2002, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇, with copies to ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, Esq., and to ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, Esq.
This Agreement shall inure to the benefit of and be binding upon each of the Underwriters and the Bank, and their respective successors. Nothing expressed or mentioned in this Agreement is intended or shall be construed to give any person, firm or corporation, other than the Underwriters, the Bank and their respective successors and the controlling persons and partners, officers and directors referred to in Sections 8 and 9 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 Bank and their respective successors, and said controlling persons and partners, officers and directors and their heirs and legal representatives, and for the benefit of no other person, firm or corporation. No purchaser of Shares from any Underwriter shall be deemed to be a successor by reason merely of such purchase.
SECTION 15: Governing Law; Jurisdiction.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES OF SAID STATE OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.
THE BANK ON BEHALF OF ITSELF AND THE SUBSIDIARIES, HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE FEDERAL AND NEW YORK STATE COURTS LOCATED IN THE CITY OF NEW YORK IN CONNECTION WITH ANY SUIT, ACTION OR PROCEEDING RELATED TO THIS AGREEMENT OR ANY OF THE MATTERS CONTEMPLATED HEREBY, IRREVOCABLY WAIVES ANY DEFENSE OF LACK OF PERSONAL JURISDICTION AND IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT. THE BANK ON BEHALF OF ITSELF AND THE SUBSIDIARIES, IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(a) The Article and Section headings herein are for convenience only and shall not affect the construction hereof.
(b) The Bank acknowledges and agrees that (i) the purchase and sale of the Shares pursuant to this Agreement, including the determination of the public offering price of the Shares and any related discounts and commissions, is an arm’s length commercial transaction between the Bank on the one hand,
36
and the several Underwriters, on the other, (ii) in connection therewith and with the process leading to such transaction each Underwriter is acting solely as a principal and not the agent or fiduciary of the Bank or their respective shareholders, creditors, employees or any other party, (iii) no Underwriter has assumed an advisory or fiduciary responsibility in favor of the Bank with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Bank on other matters) or any other obligation to the Bank except the obligations expressly set forth in this Agreement, and (iv) the Bank has consulted its own legal and financial advisors to the extent it deemed appropriate. The Bank agrees that it will not claim that the Underwriters, or any of them, has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to the Bank in connection with such transaction or the process leading thereto.
(c) The Bank acknowledges that the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies, and that such Underwriters’ research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Bank and/or the offering that differ from the views of their respective investment banking divisions. The Bank hereby waives and releases, to the fullest extent permitted by law, any claims that the Bank may have against the Underwriters with respect to any conflict of interest that may arise from the fact that the views expressed by their independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Bank by such Underwriters’ investment banking divisions. The Bank acknowledges that each of the Underwriters is a full service securities firm and as such from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies that may be the subject of the transactions contemplated by this Agreement.
(d) Notwithstanding anything herein to the contrary, the Bank is authorized to disclose to any persons the U.S. federal and state income tax treatment and tax structure of the potential transaction and all materials of any kind (including tax opinions and other tax analyses) provided to the Bank relating to that treatment and structure, without the Underwriters imposing any limitation of any kind. However, any information relating to the tax treatment and tax structure shall remain confidential (and the foregoing sentence shall not apply) to the extent necessary to enable any person to comply with securities laws. For this purpose, “tax structure “ is limited to any facts that may be relevant to that treatment.
(e) This Agreement constitutes the entire agreement of the parties to this Agreement and supersedes all prior agreements and understandings (whether written or oral) among the Bank and the Underwriters with respect to the subject matter hereof.
(f) THE BANK AND EACH UNDERWRITER, SEVERALLY AND NOT JOINTLY, HEREBY IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 17: Entire Agreement; Amendments; Counterparts.
This Agreement represents the entire understanding of the parties hereto with reference to the transactions contemplated hereby and supersedes any and all other oral or written agreements heretofore made. No amendment or waiver of any provision of this Agreement, nor any consent or approval to any departure therefrom, shall in any event be effective unless the same shall be in writing and signed by the parties hereto. This Agreement may be signed in counterparts (which may include counterparts delivered
37
by any standard form of telecommunication), each of which shall be an original and all of which together shall constitute one and the same instrument.
[Signature Page Follows]
38
If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Bank a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the Underwriters and the Bank in accordance with its terms.
| Very truly yours, | |||
| VERSABank | |||
| By: | /s/ ▇▇▇▇ ▇▇▇▇ | ||
| Name: ▇▇▇▇ ▇▇▇▇ | |||
| Title: Chief Financial Officer | |||
[Signature Page to Underwriting Agreement]
CONFIRMED AND ACCEPTED,
as of the date first above written:
Underwriters
| Very truly yours, | |
| BY: ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ASSOCIATES, INC. on behalf of the Underwriters | |
| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ |
| Name: | ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ |
| Title: | Vice President |
[Signature Page to Underwriting Agreement]
ANNEX A
| Underwriters | Number of Firm Shares to be Purchased |
| ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc. | 3,679,246 |
| ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. | 1,698,113 |
| ▇▇▇▇ Canada, Inc.1 | 283,019 |
| Total | 5,660,378 |
1 Includes shares that may be sold through ▇▇▇▇ Capital Partners, LLC.
A-1
ANNEX B
Issuer Free Writing Prospectuses
None.
Pricing Information Conveyed Orally to Investors
Firm Shares: 5,660,378
Option Shares: 849,056
Purchase
Price per Share: $13.25
A-2
ANNEX C
Permitted Written Testing-the-Waters Communications
Bank Presentation, dated December 2024.
A-3
ANNEX D
Subsidiaries of Bank
| · | VersaJet Inc. |
| · | DRT Cyber Inc. |
| · | VersaHoldings US Corp. |
| · | VersaFinance US Corp. |
| · | VersaBank USA N.A. |
| · | Digital Boundary Group, Inc. |
| · | Digital Boundary Group Canada Inc. |
A-4
EXHIBIT A
FORM OF LOCK-UP AGREEMENT
December [•], 2024
▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
and
▇▇▇▇▇▇▇ ▇▇▇▇▇ & ASSOCIATES, INC.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
St. Petersburg, Florida 33716
As Representative of the several Underwriters
Re Proposed Public Offering of Common Shares by VersaBank
Ladies and Gentlemen:
The undersigned, a shareholder, an executive officer and/or a director of VersaBank, a Canadian Schedule I chartered bank (the “Bank”), understands that ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc. (the “Representative”), as representative of the several Underwriters (each an “Underwriter” and collectively, the “Underwriters”), proposes to enter into an Underwriting Agreement (the “Underwriting Agreement”) with the Bank, providing for the public offering (the “Offering”) of 5,660,378 of the Bank’s common shares (including any securities convertible into or exchangeable or exercisable for such common shares, the “Shares”). Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Underwriting Agreement.
In recognition of the benefit that the Offering will confer upon the undersigned as a shareholder, executive officer and/or director of the Bank, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned agrees with each Underwriter to be named in the Underwriting Agreement that, commencing on the date hereof and ending on, and including, the date that is 60 days from the date of the Underwriting Agreement (such 60-day period being referred to herein as the “Lock-Up Period”), the undersigned will not (and will cause any spouse or immediate family member (as defined in Rule 16a-1(e) under the Securities Exchange Act of 1934, as amended (“Exchange Act”)) of the spouse or the undersigned living in the undersigned’s household, any partnership, corporation or other entity within the undersigned’s control, and any trustee of any trust that holds Shares or other securities of the Bank for the benefit of the undersigned or such spouse or immediate family member not to), without the prior written consent of the Representative, directly or indirectly, (i) 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 for the sale of, hypothecate, establish an open “put equivalent position” within the meaning of Rule 16a-1(h) under the Exchange Act, or otherwise dispose of or transfer any shares of Shares, whether now owned or hereafter acquired by the undersigned or with respect to which the undersigned has or hereafter acquires the power of disposition, or exercise any right with
respect to the registration of any of the foregoing, or file or cause to be filed any registration statement in connection therewith under the Securities Act of 1933, as amended (the “Securities Act”), (ii) enter into any swap, hedge or any other agreement or any transaction that transfers, in whole or in part, the economic consequence of ownership of the Shares, whether any such swap, hedge or transaction is to be settled by delivery of Shares or other securities, in cash or otherwise, or (iii) publicly disclose the intention to make any such offer, pledge, sale or disposition, or to enter into any such swap, hedge, transaction or other arrangement.
Notwithstanding the foregoing, no disposition of the undersigned’s Shares or other Bank securities will be deemed to occur during the Lock-Up Period with respect to:
| a. | transfers of the undersigned’s Shares |
| i. | as a bona fide gift or gifts, provided that any filing under Section 16(a) of the Exchange Act in connection with such transfer shall indicate, to the extent permitted by such section, that such transfer is a bona fide gift; |
| ii. | by will or other testamentary document, or intestacy; |
| iii. | to any trust, partnership, limited liability company or other entity for the direct or indirect benefit of the undersigned or the immediate family of the undersigned; |
| iv. | to any immediate family member, other dependent or any investment fund or other entity controlled or managed by the undersigned; |
| v. | if the undersigned is a corporation, partnership, limited liability company, trust or other business entity, (a) transfers to another corporation, partnership, limited liability company, trust or other business entity that is an affiliate (as defined in Rule 405 promulgated under the Securities Act of 1933, as amended) of the undersigned or (b) distributions of the undersigned’s Shares or any security convertible into or exercisable for Shares to limited partners, limited liability company members, stockholders or subsidiaries (or their equivalents under the jurisdiction of organization of the undersigned) of the undersigned; |
| vi. | if the undersigned is a trust, to the beneficiary of such trust; |
| vii. | to a nominee or custodian of a person or entity to whom a disposition or transfer would be permissible under clauses (i) through (vi); |
| viii. | to the Bank or its subsidiaries (a) in the exercise or settlement of outstanding Equity-Based Grants, (b) for the sole purpose of paying the exercise price of stock options or warrants or for paying taxes (including estimated taxes) due as a result of the exercise of such options or warrants or the vesting and settlement of restricted stock, restricted stock units or other Equity-Based Grants pursuant to Bank Equity Plans disclosed in the Final Offering Documents, in each case on a “cashless” or “net exercise” basis, provided (x) that any such Shares received upon such exercise, vesting or settlement shall |
be subject to the terms of this Lock-Up Agreement and (y) if the undersigned is required to file a report under Section 16(a) of the Exchange Act (as defined below) during the Lock-Up Period, the undersigned shall include a statement in such report clearly indicating that (A) the filing relates to the circumstances described in this clause (viii) and (B) no Shares or other securities were sold by the reporting person or (c) pursuant to a pledge in a bona fide transaction which is outstanding prior to or as of the date hereof to a lender to the undersigned and disclosed in writing to Representative prior to the execution of this letter agreement;
| ix. | pursuant to tenders, sales or other transfers pursuant to a bona fide third-party tender offer, merger, consolidation or other similar transaction made to all holders of Shares involving a “change of control” (as defined below) of the Bank (provided that if such transaction is not consummated, the undersigned’s Shares shall remain subject to the restrictions set forth herein). For purposes of this clause (x), “change of control” means the consummation of any bona fide third party tender offer, merger, consolidation or other similar transaction the result of which is that any “person” (as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), or group of persons, other than the Bank, becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 of the Exchange Act) of at least 51% of total voting power of the voting stock of the Bank; or |
| x. | pursuant to the call or put provisions of existing employment agreements and equity grant documents evidencing Equity-Based Grants, provided that any filing under Section 16(a) of the Exchange Act in connection with such transfer shall indicate that the reason for such disposition and that such transfer of Shares or any securities convertible into or exercisable or exchangeable for such capital stock was solely to the Bank; |
| b. | the establishment of an automatic disposition plan that does not provide for the sale or transfer of Shares during the Lock-Up Period, provided that (a) no filing by any party under the Exchange Act or other public announcement shall be made voluntarily in connection with the establishment of such plan and (b) any filing required to be made under the Exchange Act in connection with the establishment of such plan shall clearly indicate in the footnotes thereto that the establishment of such plan was pursuant to the circumstances described in this clause; or |
| c. | transfers of Shares or other Bank securities pursuant to an order of a court or regulatory agency (for purposes of this Lock-Up Agreement, a “court or regulatory agency” means any domestic or foreign, federal, state or local government, including any political subdivision thereof, any governmental or quasi-governmental authority, department, agency or official, any court or administrative body, and any national securities exchange or similar self-regulatory body or organization, in each case of competent jurisdiction) or to comply with any regulations related to ownership by the undersigned of the undersigned’s Shares; |
provided that in the case of any transfer or distribution pursuant to clauses (a)(i) through (vii), (i) such transfer shall not involve a disposition for value and (ii) each transferee, beneficiary, donee,
heir or distributee shall execute and deliver to the Representative, on behalf of the Underwriters, a lock-up letter in the form of this Lock-Up Agreement; and provided, further, that in the case of any transfer or distribution (other than as a result of the vesting of Shares under restricted stock awards) pursuant to clauses (a)(i) through (viii) and (b), except for any transfer or disposition pursuant to clause (a)(i), no filing by any party (donor, donee, transferor or transferee) under the Exchange Act or Canadian Securities Laws, or other public announcement shall be required or shall be made voluntarily in connection with such transfer or distribution (other than a filing on a Form 5 made after the expiration of the Lock-Up Period).
The undersigned represents and warrants that the undersigned beneficially owns the Shares covered by this letter agreement and that the undersigned now has and, except as contemplated by clauses (i) through (v) above, for the duration of this letter agreement will have good and marketable title to the undersigned’s Shares, free and clear of all liens, encumbrances, and claims whatsoever. The undersigned also agrees and consents to the entry of stop transfer instructions with the Bank’s transfer agent and registrar against the transfer of the undersigned’s Shares, except in compliance with this letter agreement. In furtherance of the foregoing, the Bank and its transfer agent are hereby authorized to decline to make any transfer of securities if such transfer would constitute a violation or breach of this letter agreement.
In addition, the undersigned agrees that, during the Lock-Up Period, without the prior written consent of the Representative (which consent may be withheld in their sole discretion): (i) the undersigned will not request, make any demand for or exercise any right with respect to, the registration of any Shares, and (ii) the undersigned waives any and all notice requirements and rights with respect to the registration of any Shares pursuant to any agreement, understanding or otherwise to which the undersigned is a party.
The undersigned represents and warrants that the undersigned has full power and authority to enter into this letter agreement. The undersigned agrees that the provisions of this letter agreement are irrevocable and shall be binding also upon the successors, assigns, heirs and legal representatives of the undersigned.
The undersigned understands that, if the registration statement on Form F-10 with respect to the Offering is withdrawn or if the Underwriting Agreement (other than the provisions thereof which survive termination) shall terminate or be terminated prior to payment for and delivery of the Shares to be sold thereunder, the undersigned shall be released from all obligations under this letter agreement.
This letter agreement shall be governed by and construed in accordance with the laws of the State of New York.
[Signature page follows]
| Very truly yours, | |
| IF AN INDIVIDUAL: | |
| (duly authorized signature) | |
| Name: | |
| (please print full name) | |
| Address: | |
| E-mail: | |
| Very truly yours, | |
| IF AN ENTITY: | |
| (please print complete name of entity) | |
| By: | |
| (duly authorized signature) | |
| Name: | |
| (please print full name) | |
| TItle: | |
| (please print full title) | |
| Address: | |
| E-mail: | |
EXHIBIT A-1
List of Persons and Entities Executing Lock-Up Agreements
Directors and Officers:
| 1. | ▇▇▇▇▇▇ ▇▇▇▇▇▇ |
| 2. | ▇▇▇▇▇ ▇▇▇▇▇ |
| 3. | ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ |
| 4. | ▇▇▇▇▇ ▇▇▇▇▇▇▇ |
| 5. | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ |
| 6. | ▇▇▇▇▇ ▇▇▇▇▇ |
| 7. | ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ |
| 8. | ▇▇▇▇▇ ▇▇▇▇▇▇▇ |
| 9. | ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ |
| 10. | ▇▇▇▇ ▇▇▇▇ |
| 11. | ▇▇▇▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇ |
| 12. | ▇▇▇▇▇▇▇ ▇▇▇▇▇ |
| 13. | ▇▇▇▇ ▇▇▇▇▇▇ |
| 14. | ▇▇▇▇ ▇▇▇▇▇▇ |
| 15. | ▇▇▇▇▇ ▇▇▇▇▇ |
| 16. | ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ |
| 17. | ▇▇▇▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇ |
| 18. | ▇▇▇▇ ▇▇▇▇ |
| 19. | ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ |
| 20. | ▇▇▇▇▇▇ ▇▇▇▇▇▇ |
| 21. | The Honourable ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ |
| 22. | Wooi Koay |
EXHIBIT B
Form of Press Release
[●], 202[●]
VersaBank (the “Bank”) announced today that ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc. as lead bookrunner in the Bank’s recent public offering of [●] of its common shares, are [waiving][releasing] a lock-up restriction with respect to [●] of the Bank’s common shares held by [certain officers or directors][an officer or director] of the Bank. The [waiver][release] will take effect on [●], and the shares may be sold on or after such date.
This press release is not an offer or sale of the securities in the United States or in any other jurisdiction where such offer or sale is prohibited, and such securities may not be offered or sold in the United States absent registration or an exemption from registration under the United States Securities Act of 1933, as amended.