465,117 Warrants First Financial Bancorp. UNDERWRITING AGREEMENT
EXHIBIT 1.1
465,117
Warrants
First
Financial Bancorp.
June 2,
2010
Deutsche
Bank Securities Inc.
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Ladies
and Gentlemen:
The
United States Department of the Treasury (the “Selling Security
Holder”) proposes to sell to Deutsche Bank Securities Inc., as the sole
underwriter (the “Underwriter”), an
aggregate of up to 465,117 warrants (the “Warrants”) of First
Financial Bancorp., an Ohio corporation (the “Company”),
representing the right to purchase an aggregate of up to that same number of
shares (the “Warrant
Shares”) of the Company’s common shares, without par value (the “Common
Stock”).
As the
Underwriter, you have advised the Company and the Selling Security Holder that
(a) you are authorized to enter into this Agreement, and (b) you are willing to
purchase up to 465,117 Warrants pursuant to terms and conditions
herein.
In
consideration of the mutual agreements contained herein and of the interests of
the parties in the transactions contemplated hereby, the parties hereto agree as
follows:
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1.
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Representations
and Warranties of the Company and the Selling Security
Holder.
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(a) The
Company represents and warrants to the Underwriter as follows:
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(i) A
registration statement (File No. 333-156841) with respect to the Warrants and
the Warrant Shares, including a form of prospectus, has been prepared by the
Company in conformity with the requirements of the Securities Act of 1933, as
amended (the “Act”), and the rules
and regulations of the Securities and Exchange Commission (the “Commission”)
thereunder and has been filed by the Company with the Commission not earlier
than three years prior to the date hereof. The Company and the
transactions contemplated by this Agreement meet the requirements and comply
with the conditions for the use of a registration statement on Form S-3.
Copies of such registration statement, including any amendments thereto, the
Base Prospectus (as defined below) as supplemented by any preliminary prospectus
(including any preliminary prospectus supplement) relating to the Warrants and
Warrant Shares filed or to be filed with the Commission pursuant to Rule 424(b)
under the Act and including the documents incorporated in the Base Prospectus by
reference (a “Preliminary
Prospectus”) and the exhibits, financial statements and schedules to such
registration statement, in each case as finally amended and revised, have
heretofore been made available by the Company to you. Such registration
statement, together with any registration statement filed by the Company
pursuant to Rule 462(b) under the Act, is herein referred to as the “Registration
Statement,” which shall be deemed to include all information omitted
therefrom in reliance upon Rules 430A, 430B or 430C under the Act and contained
in the Prospectus referred to below. Such registration statement was
declared effective by the Commission on February 19, 2009, and no post-effective
amendment to the Registration Statement has been filed as of the date of this
Agreement. The base prospectus filed as part of such registration
statement, in the form in which it has most recently been filed with the
Commission on or prior to the date of this Agreement, is hereinafter called the
“Base
Prospectus.” “Prospectus” means the
form of prospectus relating to the Warrants and the Warrant Shares first filed
with the Commission pursuant to and within the time limits described in Rule
424(b) under the Act and in accordance with Section 4(a)(i)(B) of this
Agreement. Any reference herein to the Registration Statement, the Base
Prospectus, any Preliminary Prospectus or to the Prospectus or to any amendment
or supplement to any of the foregoing documents shall be deemed to refer to and
include any documents incorporated by reference therein, and, in the case of any
reference herein to the Prospectus, also shall be deemed to include any
documents incorporated by reference therein, and any supplements or amendments
thereto, filed with the Commission after the date of filing of the Prospectus
under Rule 424(b) under the Act and prior to the termination of the offering of
the Warrants by the Underwriter.
(ii) As
of the Applicable Time (as defined below) and as of the Closing Date (as defined
below), neither (i) the General Use Free Writing Prospectus(es) (as defined
below) issued at or prior to the Applicable Time, the Statutory Prospectus (as
defined below) and the information included on Schedule I hereto, all considered
together (collectively, the “General Disclosure
Package”), nor (ii) any individual Limited Use Free Writing Prospectus
(as defined below), when considered together with the General Disclosure
Package, included or will include any untrue statement of a material fact or
omitted or will omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the
Company makes no representations or warranties as to information contained in or
omitted from any Issuer Free Writing Prospectus (as defined below), in reliance
upon, and in conformity with, written information furnished to the Company by
the Selling Security Holder or by the Underwriter specifically for use therein,
it being understood and agreed that the only such information supplied by the
Underwriter is that described in Section 13 herein. As used in this
subsection and elsewhere in this Agreement:
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“Applicable Time”
means the time at which bids submitted to the auction agent (the “Auction Agent”) in
connection with the auction relating to the Warrants (the “Auction”) become
irrevocable and may no longer be withdrawn, as set forth in the Preliminary
Prospectus (including any extension of such deadline).
“Statutory Prospectus”
means the Base Prospectus, as amended and supplemented immediately prior to the
Applicable Time, including any document incorporated by reference therein and
any preliminary prospectus supplement or prospectus supplement deemed to be a
part thereof.
“Issuer Free Writing
Prospectus” means any “issuer free writing prospectus,” as defined in
Rule 433 under the Act, relating to the Warrants or the Warrant Shares in
the form filed or required to be filed with the Commission or, if not required
to be filed, in the form retained in the Company’s records pursuant to Rule
433(g) under the Act.
“General Use Free Writing
Prospectus” means any Issuer Free Writing Prospectus that is identified
on Schedule II to this Agreement.
“Limited Use Free Writing
Prospectus” means any Issuer Free Writing Prospectus that is not a
General Use Free Writing Prospectus.
(iii)
The Company (A) has been duly
organized and is validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, (B) is duly registered as a bank
holding company and is qualified as a financial holding company under the Bank
Holding Company Act of 1956, as amended, and (C) has corporate power and
authority to own or lease its properties and conduct its business as described
in the Registration Statement, the General Disclosure Package and the
Prospectus. The Company is duly qualified to transact business and is in
good standing in each jurisdiction in which its ownership or lease of properties
or the conduct of its business requires such qualification, except where the
failure to be so qualified or in good standing would not, individually or in the
aggregate, reasonably be expected to either (i) have a material adverse effect
on the business, management, results of operations, or financial condition of
the Company and of its subsidiaries taken as a whole, or (ii) prevent the
consummation of the transactions contemplated hereby (the occurrence of any such
effect or any such prevention described in the foregoing clauses (i) and (ii)
being referred to as a “Material Adverse
Effect”)
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(iv) Each
of the significant subsidiaries (as defined in Rule 1-02 of Regulation S-X of
the Commission) of the Company as listed in Exhibit A hereto (each a “Subsidiary” and,
collectively, the “Subsidiaries”) has
been duly organized and is validly existing as a corporation, banking
corporation or association, or other type of entity, as applicable, in good
standing under the laws of the jurisdiction of its incorporation, establishment
or formation, as applicable, with corporate, limited liability company or other
organizational power and authority to own or lease its properties and conduct
its business as described in the Registration Statement, the General Disclosure
Package and the Prospectus. Each Subsidiary is duly qualified to transact
business and is in good standing in each jurisdiction in which its ownership or
lease of properties or the conduct of its business requires such qualification,
other than where the failure to be so qualified would not reasonably be expected
to have a Material Adverse Effect. The outstanding shares of capital stock
of each of the Subsidiaries have been duly authorized and validly issued, are
fully paid and non-assessable and, other than as described in the General
Disclosure Package and the Prospectus, are owned by the Company or the
Subsidiaries free and clear of all liens, encumbrances, equities and
claims. Other than as described in the General Disclosure Package and the
Prospectus, no options, warrants or other rights to purchase, agreements or
other obligations to issue or other rights to convert any obligations into
shares of capital stock or ownership interests in the Subsidiaries are
outstanding.
(v) The
Warrants have been duly authorized and validly issued and constitute valid and
binding obligations of the Company enforceable in accordance with their terms,
and no preemptive rights of stockholders exist with respect to any Warrant
Shares issuable upon exercise of the Warrants. The Warrants conform in all
material respects to the description thereof set forth in the Registration
Statement, the General Disclosure Package and the Prospectus. The form of
certificate for the Warrants conforms to the corporate law of the jurisdiction
of the Company’s incorporation and to any requirements of the Company’s
organizational documents. Neither the filing of the Registration Statement
nor the offering or sale of the Warrants as contemplated by this Agreement gives
rise to any rights, other than those which have been waived or satisfied, for or
relating to the registration of any Warrants or Warrant Shares.
(vi) The
Warrant Shares have been duly authorized, and, when issued and delivered upon
exercise of the Warrants against payment of the exercise price with respect to
the Warrants, will be fully paid and non-assessable and will not be subject to
any preemptive or similar rights. The Warrant Shares will conform in all
material respects to the description thereof set forth in the Registration
Statement, the General Disclosure Package and the Prospectus. The form of
certificates for the Warrant Shares conforms to the corporate law of the
jurisdiction of the Company’s incorporation and to any requirements of the
Company’s organizational documents. The Company has duly authorized the
reservation of the Warrant Shares.
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(vii) The
outstanding shares of capital stock of the Company have been duly authorized and
validly issued and are fully paid and non-assessable.
(viii) Except
as described in or contemplated by the Registration Statement, the General
Disclosure Package and the Prospectus, there are no outstanding rights
(including, without limitation, pre-emptive rights), warrants or options to
acquire from the Company, or instruments convertible or exchangeable for, any
shares of capital stock or other equity interest in the Company or any of the
Subsidiaries, or any contract, commitment, agreement, understanding or
arrangement of any kind to which the Company or any of the Subsidiaries is a
party relating to the issuance of any capital stock of the Company or any such
Subsidiary, any such convertible or exchangeable securities or any such rights,
warrants or options, except as may have been granted by the Company pursuant to
employee awards and employee benefit plans in the ordinary course of business
and consistent with past practice.
(ix) The
Commission has not issued an order preventing or suspending the use of any
Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus
relating to the proposed offering of the Warrants, and no proceeding for that
purpose or pursuant to Section 8A of the Act has been instituted or, to the
Company’s knowledge, threatened by the Commission. The Registration
Statement contains, and the Prospectus and any amendments or supplements thereto
will contain, all statements required to be stated therein by, and will conform
in all material respects to, the requirements of the Act and the Rules and
Regulations (as defined below). The documents incorporated, or to be
incorporated, by reference in the Prospectus conformed or, at the time filed
with the Commission, will conform, in all material respects to the requirements
of the Securities Exchange Act of 1934 (“Exchange Act”) or the
Act, as applicable, and the rules and regulations of the Commission thereunder
(the “Rules and
Regulations”), and such documents do not contain, and will not contain,
an untrue statement of a material fact and do not omit, or will not omit, to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading. The Registration Statement and any amendment thereto do
not contain, and will not contain, any untrue statement of a material fact and
do not omit, and will not omit, to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and the
Prospectus and any amendments and supplements thereto do not contain, and will
not contain, any untrue statement of a material fact, and do not omit, and will
not omit, to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that the
Company makes no representations or warranties as to information contained in or
omitted from the Registration Statement or the Prospectus, or any such amendment
or supplement, in reliance upon, and in conformity with, written information
furnished to the Company by the Selling Security Holder or by the Underwriter
specifically for use therein, it being understood and agreed that the only such
information furnished by the Underwriter is that described in Section 13
herein.
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(x) Each
Issuer Free Writing Prospectus, as of its issue date and at all subsequent times
through the completion of the public offer and sale of the Warrants or until any
earlier date that the Company notified or notifies the Underwriter, did not,
does not and will not include any information that conflicted, conflicts or will
conflict with the information contained in the Registration Statement or the
Prospectus in any material respect, including any document incorporated by
reference therein and any Prospectus Supplement deemed to be a part thereof that
has not been superseded or modified.
(xi) The
Company has not, directly or indirectly, distributed and will not prior to the
Closing Date distribute any offering material in connection with the offering
and sale of the Warrants other than any Preliminary Prospectus, the Prospectus
and other materials, if any, permitted under the Act and consistent with Section
4(a)(ii) below. The Company will file with the Commission all Issuer Free
Writing Prospectuses in the time required under Rule 433(d) under the
Act.
(xii) The
consolidated financial statements of the Company and the Subsidiaries, together
with related notes and schedules as set forth or incorporated by reference in
the Registration Statement, the General Disclosure Package and the Prospectus,
comply as to form in all material respects with the requirements of the Act and
the Exchange Act and present fairly the financial position and the results of
operations and cash flows of the Company and the Subsidiaries, at the indicated
dates and for the indicated periods. Such financial statements and related
schedules have been prepared in accordance with generally accepted principles of
accounting (“GAAP”), consistently
applied throughout the periods involved, except as disclosed therein, and all
adjustments necessary for a fair presentation of results for such periods have
been made. The summary and selected consolidated financial and statistical
data included or incorporated by reference in the Registration Statement, the
General Disclosure Package and the Prospectus present fairly the information
shown therein and such data have been compiled on a basis consistent with the
financial statements presented therein and the books and records of the
Company. Any disclosures contained in the Registration Statement, the
General Disclosure Package and the Prospectus regarding “non-GAAP financial
measures” (as such term is defined by the Rules and Regulations) comply in all
material respects with Regulation G under the Exchange Act and Item 10 of
Regulation S-K under the Act, to the extent applicable.
(xiii) Ernst
& Young LLP (the “Accountants”), who
have certified certain of the financial statements filed with the Commission as
part of, or incorporated by reference in, the Registration Statement, the
General Disclosure Package and the Prospectus, is an independent registered
public accounting firm with respect to the Company and the Subsidiaries within
the meaning of the Act, the applicable Rules and Regulations and the rules and
regulations of the Public Company Accounting Oversight Board (United States)
(the “PCAOB”).
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(xiv) Except
as disclosed in the Registration Statement, the General Disclosure Package and
the Prospectus, neither the Company nor any of the Subsidiaries is aware of (i)
any material weakness in its internal control over financial reporting as of or
since the date of the most recent audited financial statements incorporated by
reference therein or (ii) change in internal control over financial reporting
that has materially affected, or is reasonably likely to materially affect, the
Company’s internal control over financial reporting as of or since the date of
the most recent unaudited interim financial statements incorporated by reference
therein.
(xv) There
is no action, suit, claim, proceeding, inquiry or investigation before any court
or governmental agency or otherwise, pending or, to the knowledge of the
Company, threatened against the Company or any of the Subsidiaries that is
reasonably likely to be determined adversely to the Company or any of the
Subsidiaries and to result in a Material Adverse Effect, except as set forth in
the Registration Statement, the General Disclosure Package and the
Prospectus.
(xvi) Since
the respective dates as of which information is given in the Registration
Statement, the General Disclosure Package and the Prospectus, as each may be
amended or supplemented, there has not been any material adverse change in or
affecting the business, management, results of operations or financial condition
of the Company and the Subsidiaries taken as a whole.
(xvii) Neither
the Company nor any Subsidiary is, or with the giving of notice or lapse of time
or both would be, (i) in violation of its certificate or articles of
incorporation, by-laws or regulations, certificate of formation, limited
liability agreement, partnership agreement or other organizational documents or
(ii) in violation of or in default under any agreement, lease, contract,
indenture or other instrument or obligation material to the conduct of the
business of the Company and its Subsidiaries, taken as a whole, to which it is a
party or by which it, or any of its respective properties, is bound and, solely
with respect to this clause (ii), which violation or default would reasonably be
expected to have a Material Adverse Effect. The execution and delivery of
this Agreement and the consummation of the transactions herein contemplated and
the fulfillment of the terms hereof will not conflict with or result in a breach
of (i) any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust or other agreement or instrument to which the
Company or any Subsidiary is a party or by which the Company or any Subsidiary
or any of their respective properties is bound, except where such breach or
default would not reasonably be expected to result in a Material Adverse Effect,
(ii) the certificate or articles of incorporation or by-laws or regulations of
the Company or (iii) any law, order, rule or regulation, judgment, order, writ
or decree applicable to the Company or any Subsidiary of any court or of any
government, regulatory body or administrative agency or other governmental body
having jurisdiction.
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(xviii) The
execution and delivery of, and the performance by the Company of its obligations
under, this Agreement has been duly and validly authorized by all necessary
corporate action on the part of the Company, and this Agreement has been duly
executed and delivered by the Company.
(xix) Any
material approval, consent, order, authorization, designation, declaration or
filing by or with any regulatory, administrative or other governmental body
necessary in connection with the execution and delivery by the Company of this
Agreement and the consummation by the Company of the transactions herein
contemplated (except such additional steps as may be required by the Commission,
the Financial Industry Regulatory Authority, Inc. (“FINRA”) or such steps
as may be necessary to qualify the Warrants and the Warrant Shares for public
offering by the Underwriter under state securities or Blue Sky laws) has been
obtained or made and is in full force and effect.
(xx) The
Company and each of the Subsidiaries hold all licenses, certificates, consents,
orders, approvals, permits and other authorizations from governmental
authorities to lease or own, as the case may be, and to operate, their
respective properties and to carry on their respective businesses, except where
the failure to own, possess or maintain such governmental licenses,
certificates, consents, orders, approvals, permits and other authorizations
would not, individually or in the aggregate, reasonably be expected to result in
a Material Adverse Effect.
(xxi) Neither
the Company, nor to the Company’s knowledge, any of its affiliates, has taken,
directly or indirectly, any action designed to cause or result in, or which has
constituted or which might reasonably be expected to constitute, the
stabilization or manipulation of the price of the Warrants or the Warrant Shares
to facilitate the sale or resale of the Warrants excluding, for the avoidance of
doubt, any bid for or purchase of Warrants made pursuant to the process
described in the General Disclosure Package.
(xxii) Neither
the Company nor any of the Subsidiaries is required to register as an
“investment company” within the meaning of such term under the Investment
Company Act of 1940 as amended (the “1940 Act”), and the
rules and regulations of the Commission thereunder.
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(xxiii) The
Company and each of the Subsidiaries maintains a system of internal accounting
controls sufficient to provide reasonable assurances that (i) transactions are
executed in accordance with management’s general or specific authorization; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with GAAP and to maintain accountability for assets;
(iii) access to assets is permitted only in accordance with management’s general
or specific authorization; and (iv) the recorded accountability for assets is
compared with existing assets at reasonable intervals and appropriate action is
taken with respect to any differences.
(xxiv) To
the best knowledge of the Company, the operations of the Company and the
Subsidiaries are and have been conducted at all times in material compliance
with applicable financial record-keeping and reporting requirements of the
Currency and Foreign Transactions Reporting Act of 1970, as amended, applicable
money laundering statutes and applicable rules and regulations thereunder
(collectively, the “Money Laundering
Laws”), and no action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the Company
or any or the Subsidiaries with respect to the Money Laundering Laws is pending
or, to the Company’s knowledge, threatened, which would reasonably be expected
to have a Material Adverse Effect.
(xxv) Neither
the Company nor, to the Company’s knowledge, any director, officer, agent,
employee or affiliate of the Company is currently subject to any U.S. sanctions
administered by the Office of Foreign Assets Control of the U.S. Treasury
Department (“OFAC”).
(xxvi) Neither
the Company nor any of the Subsidiaries nor, to the knowledge of the Company,
any director, officer, agent, employee or affiliate of the Company or any of the
Subsidiaries is aware of or has taken any action, directly or indirectly, that
would result in a violation by such Persons of the Foreign Corrupt Practices Act
of 1977, as amended, and the rules and regulations thereunder (the “FCPA”), including,
without limitation, making use of the mails or any means or instrumentality of
interstate commerce corruptly in furtherance of an offer, payment, promise to
pay or authorization of the payment of any money, or other property, gift,
promise to give, or authorization of the giving of anything of value to any
“foreign official” (as such term is defined in the FCPA) or any foreign
political party or official thereof or any candidate for foreign political
office, in contravention of the FCPA and the Company, its Subsidiaries and, to
the knowledge of the Company, its affiliates have conducted their businesses in
compliance with the FCPA and have instituted and maintain policies and
procedures designed to ensure, and which are reasonably expected to continue to
ensure, continued compliance therewith.
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(xxvii) The
Common Stock is registered pursuant to Section 12(b) of the Exchange Act
and is listed on the Nasdaq Global Select Market (the “Exchange”), and the
Company has not received any notification that the Commission or the Exchange is
contemplating terminating such registration or listing. The Warrant Shares
have been approved for listing on the Exchange subject to notice of
issuance. The Warrants shall be registered pursuant to Section 12(b) of
the Exchange Act prior to the opening of trading on the day after the day on
which the submission deadline for the Auction occurs and have been approved for
listing on the Exchange subject to notice of issuance, and the Company has not
received any notification that the Commission or the Exchange is contemplating
terminating such registration or listing.
(xxviii) The
Company has paid the required filing fees to the Commission relating to the
Warrants and the Warrant Shares within the time required by Rule 456(a) under
the Act without regard to the proviso therein and otherwise in accordance with
Rule 457 under the Act.
(b) The
Selling Security Holder represents and warrants as follows:
(i) The
Selling Security Holder now has and at the Closing Date will have good and
marketable title to the Warrants to be sold by it, free and clear of any liens,
encumbrances, equities and claims, and full right, power and authority to effect
the sale and delivery of the Warrants; and upon the delivery of, against payment
for, the Warrants pursuant to this Agreement, and assuming the Underwriter does
not have notice of any adverse claim (within the meaning of the Uniform
Commercial Code as in effect in the State of New York), the Underwriter will
acquire good and marketable title thereto, free and clear of any liens,
encumbrances, equities and claims.
(ii) The
Selling Security Holder has full right, power and authority to execute and
deliver this Agreement and to perform its obligations hereunder, and this
Agreement has been duly authorized, executed and delivered by or on behalf of
the Selling Security Holder.
(iii)
No consent, approval or waiver is required under any instrument or agreement to
which the Selling Security Holder is a party or by which the Selling Security
Holder is bound in connection with the offering, sale or purchase by the
Underwriter of any of the Warrants which may be sold by the Selling Security
Holder under this Agreement or the consummation by the Selling Security Holder
of any of the other transactions contemplated hereby.
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2.
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Purchase,
Sale and Delivery of the
Warrants.
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(a) On
the basis of the representations, warranties and covenants herein contained, and
subject to the conditions herein set forth and the Auction procedures described
in the Preliminary Prospectus and the Prospectus, the Selling Security Holder
agrees to sell to the Underwriter and the Underwriter agrees to purchase,
subject to any decrease pursuant to Section 2(b) once the Clearing Price (as
defined below) has been determined, an aggregate of 465,117 Warrants (the “Number of Offered
Warrants”) at a price per Warrant equal to (i) the price per Warrant (the
“Clearing
Price”) to be agreed in writing between the Auction Agent and the Selling
Security Holder (such Clearing Price to be determined following the submission
deadline for the Auction to be commenced promptly following the execution of
this Agreement), minus (ii) a discount per Warrant equal to (1) 1.4% of the
Clearing Price with respect to the first $200,000,000 of gross proceeds of the
offering of the Warrants plus (2) 0.9% of the Clearing Price with respect to
gross proceeds of the offering of the Warrants in excess of $200,000,000; provided that if the
aggregate discount for all Warrants sold would be less than $150,000, the
discount percentage shall be increased such that the aggregate discount is equal
to $150,000.
(b) If
the number of Warrants for which bids are received in the Auction is (i) less
than 50% of the Number of Offered Warrants, then no sales of Warrants shall be
made pursuant to this Agreement, (ii) is 50% or more but less than 100% of the
Number of Offered Warrants, then the Selling Security Holder may, but shall not
be required to, sell at the minimum price in the Auction (which in such case
shall be the Clearing Price for purposes of this Agreement) however many
Warrants it chooses to sell, up to the number of bids received in the Auction
and (iii) 100% or more of the Number of Offered Warrants but the Selling
Security Holder determines in its sole discretion not to sell any Warrants at
the Clearing Price and so advises the Underwriter, then no sales of Warrants
shall be made pursuant to this Agreement. If (x) the Selling Security
Holder chooses to sell any Warrants in the case of subclause (ii) hereof, it
shall sell a number of Warrants equal to at least 50% of the Number of Offered
Warrants and (y) if the Selling Security Holder chooses to sell any Warrants in
the case of subclause (iii) hereof, it shall sell 100% of the Number of Offered
Warrants. In the case of subclause (ii) or subclause (iii) hereof, the
Selling Security Holder shall notify the Underwriter as promptly as practicable
after completion of the Auction of the number of Warrants it will sell pursuant
to this Agreement or its decision not to sell any Warrants, as the case may
be.
(c) Payment
for the Warrants to be sold hereunder is to be made in Federal (same day) funds
to an account designated by the Selling Security Holder (or its agent) against
delivery of certificates therefor to the Underwriter by the Selling Security
Holder (or its agent). Such payment and delivery are to be made through
the facilities of The Depository Trust Company at 10:00 a.m., New York time, on
June 8, 2010 or at such other time and date not later than five business
days thereafter as the Underwriter, the Company and the Selling Security Holder
shall agree upon, such time and date being herein referred to as the “Closing
Date.” (As used herein, “business day” means a
day on which the Exchange is open for trading and on which banks in New York are
open for business and not permitted by law or executive order to be
closed.)
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3.
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Offering
by the Underwriter.
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It is
understood that the Underwriter plans to make a public offering of the Warrants
pursuant to the Auction promptly following the execution of this
Agreement.
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4.
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Covenants
of the Company and the Selling Security
Holder.
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(a) The
Company covenants and agrees with the Underwriter that:
(i) The
Company will (A) file with the Commission under Rule 424(b) (without reliance on
Rule 424(b)(8)) under the Act a Preliminary Prospectus in a form approved by the
Underwriter as promptly as practicable following the execution of this
Agreement; (B) prepare and timely file with the Commission under Rule 424(b)
(without reliance on Rule 424(b)(8)) under the Act a Prospectus in a form
approved by the Underwriter containing information previously omitted at the
time of effectiveness of the Registration Statement in reliance on Rules 430A,
430B or 430C under the Act, and (C) not file any amendment to the Registration
Statement or distribute an amendment or supplement to the General Disclosure
Package or the Prospectus or document incorporated by reference therein of which
the Underwriter and the Selling Security Holder shall not previously have been
advised and furnished with a copy or to which the Underwriter shall have
reasonably objected in writing or which is not in compliance with the Rules and
Regulations.
(ii) The
Company will (i) not issue an Issuer Free Writing Prospectus or a “free writing
prospectus” (as defined in Rule 405 under the Act) required to be filed by the
Company with the Commission under Rule 433 under the Act unless the Underwriter
approves its use in writing prior to first use (each, a “Permitted Free Writing
Prospectus”); provided that the
prior written consent of the Underwriter hereto shall be deemed to have been
given in respect of the Issuer Free Writing Prospectus(es) included in Schedule
II hereto, (ii) treat each Permitted Free Writing Prospectus as an
Issuer Free Writing Prospectus, (iii) comply with the requirements of Rules 164
and 433 under the Act applicable to any Issuer Free Writing Prospectus,
including the requirements relating to timely filing with the Commission,
legending and record keeping and (iv) not take any action that would result in
the Underwriter or the Company being required to file with the Commission
pursuant to Rule 433(d) under the Act a free writing prospectus prepared by or
on behalf of the Underwriter that the Underwriter otherwise would not have been
required to file thereunder.
(iii) The
Company will advise the Underwriter and the Selling Security Holder promptly (A)
when any post-effective amendment to the Registration Statement or new
registration statement relating to the Warrants or the Warrant Shares shall have
become effective, or any supplement to the Prospectus shall have been filed, (B)
of receipt of any comments from the Commission, (C) of any request of the
Commission for amendment of the Registration Statement or for the filing of a
new registration statement or any amendment or supplement to the General
Disclosure Package or the Prospectus or any document incorporated by reference
therein or otherwise deemed to be a part thereof or for any additional
information, (D) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or such new registration
statement or any order preventing or suspending the use of any Preliminary
Prospectus, any Issuer Free Writing Prospectus or the Prospectus, or of the
institution of any proceedings for that purpose or pursuant to Section 8A of the
Act, and (E) of any notice of objection of the Commission to the use of the
Registration Statement or any such new registration statement or any
post-effective amendment thereto pursuant to Rule 401(g)(1) under the Act.
The Company will use reasonable best efforts to prevent the issuance of any such
order and to obtain as soon as possible the lifting thereof, if
issued.
12
(iv) The
Company will cooperate with the Underwriter in endeavoring to qualify the
Warrants and the Warrant Shares for sale under the securities laws of such
jurisdictions as the Underwriter may reasonably have designated in writing and
will make such applications, file such documents, and furnish such information
as may be reasonably required for that purpose, provided the Company shall not
be required to qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction where it is not now so qualified or
required to file such a consent. The Company will, from time to time,
prepare and file such statements, reports, and other documents, as are or may be
required to continue such qualifications in effect for so long a period as the
Underwriter may reasonably request for distribution of the Warrants and the
Warrant Shares.
(v) The
Company will deliver to, or upon the order of, the Underwriter or the Selling
Security Holder, from time to time, as many copies of any Preliminary Prospectus
and any Issuer Free Writing Prospectus as the Underwriter or the Selling
Security Holder, as the case may be, may reasonably request. The Company
will deliver to, or upon the order of, the Underwriter or the Selling Security
Holder during the period when delivery of a Prospectus (or, in lieu thereof, the
notice referred to under Rule 173(a) under the Act) (the “Prospectus Delivery
Period”) is required under the Act, as many copies of the Prospectus in
final form, or as thereafter amended or supplemented, as the Underwriter or the
Selling Security Holder, as the case may be, may reasonably
request.
(vi) The
Company will comply with the Act, the Exchange Act and the Rules and
Regulations, so as to permit the completion of the distribution of the Warrants
and the Warrant Shares as contemplated in this Agreement and the
Prospectus. If during the period in which a prospectus (or, in lieu
thereof, the notice referred to under Rule 173(a) under the Act) is required by
law to be delivered by the Underwriter or any dealer any event shall occur as a
result of which, in the judgment of the Company, it becomes necessary to amend
or supplement the Prospectus in order to make the statements therein, in the
light of the circumstances existing at the time the Prospectus (or the notice
referred to above) is delivered to a purchaser, not misleading, or, if it is
necessary at any time to amend or supplement the Prospectus to comply with any
law, the Company promptly will either (i) prepare and file with the Commission
an appropriate amendment to the Registration Statement or supplement to the
Prospectus or (ii) prepare and file with the Commission an
appropriate filing under the Exchange Act which shall be incorporated by
reference in the Prospectus so that the Prospectus as so amended or supplemented
will not, in the light of the circumstances when it (or such notice) is so
delivered, be misleading, or so that the Prospectus will comply with the
law.
13
(vii) If
the General Disclosure Package is being used in connection with the sale of the
Warrants at a time when the Prospectus is not yet available to prospective
purchasers and any event shall occur as a result of which, in the judgment of
the Company, it becomes necessary to amend or supplement the General Disclosure
Package in order to make the statements therein, in the light of the
circumstances existing at the time, not misleading, or to make the statements
therein not conflict with the information contained in the Registration
Statement then on file, or if it is necessary at any time to amend or supplement
the General Disclosure Package to comply with any law, the Company promptly will
either (i) prepare, file with the Commission (if required) and furnish to the
Underwriter and any dealers an appropriate amendment or supplement to the
General Disclosure Package or (ii) prepare and file with the Commission an
appropriate filing under the Exchange Act which shall be incorporated by
reference in the General Disclosure Package so that the General Disclosure
Package as so amended or supplemented will not, in the light of the
circumstances existing at the time, be misleading or conflict with the
Registration Statement then on file, or so that the General Disclosure Package
will comply with law.
(viii) The
Company will make generally available to its security holders, as soon as it is
practicable to do so, but in any event not later than 15 months after the
effective date of the Registration Statement (as defined in Rule 158(c) under
the Act), an earnings statement (which need not be audited) in reasonable
detail, complying with the requirements of Section 11(a) of the Act and Rule 158
under the Act; provided that the
Company may make such earnings statements generally available by filing
quarterly and annual reports with the Commission as may be required by the
Exchange Act.
(ix) No
offering, sale, short sale or other disposition of any warrants or shares of
Common Stock of the Company or other securities convertible into or exchangeable
or exercisable for shares of Common Stock or derivative of Common Stock (or
agreement for such) will be made for a period of 45 days after the date of the
Prospectus (such period, the “Lockup Period”),
directly or indirectly, by the Company otherwise than hereunder or with the
prior written consent of the Underwriter. Such restrictions shall not
apply to (i) the issuance by the Company of Common Stock or securities
convertible into or exchangeable for Common Stock in connection with the
exercise of any option or warrant or the conversion of a security outstanding on
the date of this Agreement, (ii) the sale or distribution by the Company of
equity securities and/or options or other rights in respect thereof solely
registered on Form S-4 or S-8 (or any successor form), (iii) grants and
issuances by the Company of shares of equity securities and/or options or other
rights in respect thereof pursuant to stock-based compensation or incentive
plans of the Company, (iv) the issuance of shares of Common Stock in connection
with dividend reinvestment plans or employee stock purchase plans, and (v)
issuances of shares of Common Stock in connection with any court order or
decree.
14
(x) The
Company will use reasonable best efforts to effect and maintain, subject to
notice of issuance, the listing of the Warrant Shares issuable upon the exercise
of the Warrants on the Exchange and to maintain the listing of the Warrants on
the Exchange.
(xi)
The Company will reserve and keep available at all
times, free of preemptive or other similar rights, a sufficient number of shares
of Common Stock for the purpose of enabling the Company to satisfy any
obligations to issue such shares upon exercise of the Warrants.
(xii) The
Company has caused each executive officer and director of the Company identified
on Schedule III to furnish to you a letter or letters, dated the date hereof,
substantially in the form attached hereto as Exhibit B (the “Lockup
Agreement”).
(xiii) The
Company will maintain a transfer agent and, if necessary under the jurisdiction
of incorporation of the Company, a registrar for the Warrants and for the Common
Stock.
(xiv) The
Company will not take, directly or indirectly, any action designed to cause or
result in, or that has constituted or might reasonably be expected to
constitute, the stabilization or manipulation of the price of the Warrants or
the Common Stock excluding, for the avoidance of doubt, any bid for or purchase
of Warrants made pursuant to the process described in the General Disclosure
Package.
(b) The
Selling Security Holder covenants and agrees with the Underwriter that it will
not prepare or have prepared on its behalf or use or refer to, any “free writing
prospectus” (as defined in Rule 405 under the Act), and agrees that it will not
distribute any written materials in connection with the offer or sale of the
Warrants without the prior approval of the Underwriter.
15
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5.
|
Costs
and Expenses.
|
The
Company will pay all costs, expenses and fees incident to the performance of its
obligations under this Agreement and certain costs, expenses and fees of the
Selling Security Holder, including, without limiting the generality of the
foregoing, the following: (i) accounting fees of the Company; (ii)
the fees and disbursements of counsel for the Company and the reasonable fees
and disbursements of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for Selling
Security Holder, not to exceed $25,000; (iii) any roadshow expenses; (iv) the
cost of printing and delivering to, or as requested by, the Underwriter copies
of the Registration Statement, Preliminary Prospectuses, the Issuer Free Writing
Prospectuses, the Prospectus, this Agreement and any supplements or amendments
thereto; (v) the filing fees of the Commission; (vi) the filing fees and
expenses (including legal fees and disbursements) incident to securing any
required review by FINRA of the terms of the sale of the Warrants relating
specifically to this offering of Warrants; (vii) any listing fee of the Exchange
with respect to the Warrants or the Warrant Shares; and (viii) the expenses,
including the reasonable fees and disbursements of Underwriter Counsel (as
defined herein), incurred in connection with the qualification of the Warrants
and the Warrant Shares under state securities or Blue Sky laws relating
specifically to this offering of Warrants. The Selling Security Holder
will pay all costs, fees and expenses incident to the performance of its
obligations under this Agreement to the extent not paid by the Company.
Neither the Company nor the Selling Security Holder shall be required to pay for
any Underwriter’s expenses (other than those related to state securities or Blue
Sky laws and qualification under FINRA regulations) except that if this
Agreement shall not be consummated (a) because the conditions in Section 6
hereof (other than Section 6(b)) are not satisfied, (b) because this Agreement
is terminated by the Underwriter pursuant to Section 11(a)(i), (v) or (vi) or
Section 11(b) hereof, or (c) by reason of any failure, refusal or inability on
the part of the Company to perform any undertaking or satisfy any condition of
this Agreement or to comply with any of the terms hereof on their part to be
performed, unless such failure, refusal or inability is (1) due primarily to the
default or omission of the Underwriter or (2) because the Selling Security
Holder is not selling any Warrants pursuant to Section 2(b) of this Agreement,
then in the case of any of (a), (b) or (c) the Company shall reimburse the
Underwriter for reasonable out-of-pocket expenses, including fees and
disbursements of counsel, reasonably incurred in connection with investigating,
marketing and proposing to market the Warrants or in contemplation of performing
their obligations hereunder; provided that the Company and the Selling Security
Holder shall not in any event be liable to the Underwriter for damages on
account of loss of anticipated profits from the sale by them of the
Warrants.
The
provisions of this Section shall not supersede or otherwise affect any agreement
that the Company and the Selling Security Holder may otherwise have for the
allocation of such expenses between them.
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6.
|
Conditions
of Obligations of the
Underwriter.
|
The
obligations of the Underwriter to purchase the Warrants on the Closing Date are
subject to the accuracy, as of the Applicable Time and the Closing Date, of the
representations and warranties of the Company and the Selling Security Holder
contained herein, and to the performance by the Company and the Selling Security
Holder of its covenants and obligations hereunder and to the following
additional conditions:
16
(a) The
Preliminary Prospectus, the Prospectus and each Issuer Free Writing Prospectus
shall have been filed as required by Rules 424 (without reliance on Rule
424(b)(8)), 430A, 430B, 430C or 433 under the Act, as applicable, within the
time period prescribed by, and in compliance with, the Rules and Regulations,
and any request of the Commission for additional information (to be included in
the Registration Statement or otherwise) shall have been disclosed to the
Underwriter and complied with to its reasonable satisfaction. No stop
order suspending the effectiveness of the Registration Statement, as amended
from time to time, shall have been issued, no proceedings for that purpose or
pursuant to Section 8A under the Act shall have been taken or, to the knowledge
of the Company, shall be contemplated or threatened by the Commission; no notice
of objection of the Commission to the use of the Registration Statement or any
post-effective amendment thereto pursuant to Rule 401(g)(1) under the Act shall
have been received; and no injunction, restraining order or order of any nature
by a Federal or state court of competent jurisdiction shall have been issued as
of the Closing Date which would prevent the offer or sale of the
Warrants.
(b) The
Selling Security Holder and the Underwriter shall have agreed to the Clearing
Price in writing.
(c) The
Underwriter shall have received on the Closing Date the opinion of ▇▇▇▇▇▇
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P., outside counsel for the Company (“Company Outside
Counsel”), dated the Closing Date, addressed to the Underwriter (and
stating that it may be relied upon by counsel to the Underwriter) in a form
previously agreed upon.
(d) The
Underwriter shall have received on the Closing Date the opinion of ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, in-house counsel for the Company (“Company In-House
Counsel”), dated the Closing Date, addressed to the Underwriter (and
stating that it may be relied upon by counsel to the Underwriter) in a form
previously agreed upon.
(e) The
Underwriter shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for
the Underwriter (“Underwriter
Counsel”), an opinion dated the Closing Date, in form and substance
reasonably satisfactory to the Underwriter, and such counsel shall have received
such documents and information as they may reasonably request to enable them to
pass upon such matters.
(f) The
Underwriter shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP,
an opinion dated the Closing Date, in form and substance reasonably satisfactory
to the Underwriter, and such counsel shall have received such documents and
information as they may reasonably request to enable them to pass upon such
matters.
(g) The
Underwriter shall have received, on the date of this Agreement and on the
Closing Date, a letter dated such date in form and substance satisfactory to
you, of the Accountants confirming that they are an independent registered
public accounting firm with respect to the Company and the Subsidiaries within
the meaning of the Act, the applicable Rules and Regulations and the rules and
regulations of the PCAOB and stating that in their opinion the financial
statements and schedules examined by them and included or incorporated by
reference in the Registration Statement, the General Disclosure Package and the
Prospectus comply in form in all material respects with the applicable
accounting requirements of the Act and the related Rules and Regulations; and
containing such other statements and information as is ordinarily included in
accountants’ “comfort letters” to underwriters with respect to the financial
statements and certain financial and statistical information contained in the
Registration Statement, the General Disclosure Package and the
Prospectus.
17
(h) The
Underwriter shall have received on the Closing Date a certificate or
certificates of the President and Chief Executive Officer and the Executive Vice
President and Chief Financial Officer of the Company to the effect that, as of
the Closing Date, each of them severally represents, to the best of his or her
knowledge, as follows:
(i) The
Registration Statement has become effective under the Act and no stop order
suspending the effectiveness of the Registration Statement or no order
preventing or suspending the use of any Preliminary Prospectus, any Issuer Free
Writing Prospectus or the Prospectus has been issued, no proceedings for such
purpose or pursuant to Section 8A of the Act have been taken or are, to his or
her knowledge, contemplated or threatened by the Commission, and no notice of
objection of the Commission to the use of the Registration Statement or any
post-effective amendment thereto pursuant to Rule 401(g)(1) under the Act shall
have been received;
(ii) The
representations and warranties of the Company contained in Section 1(a) hereof
are true and correct as of the Closing Date;
(iii) Since
the respective dates as of which information is given in the Registration
Statement, the General Disclosure Package and Prospectus, and except as
otherwise publicly disclosed, there has not been any material adverse change in
or affecting the business, management, results of operations, or financial
condition of the Company and the Subsidiaries taken as a whole.
(i) The
Warrants and Warrant Shares have been approved for listing, subject to notice of
issuance, on the Exchange.
(j) The
Lockup Agreements are in full force and effect.
If any of
the conditions hereinabove provided for in this Section 6 shall not have been
fulfilled when and as required by this Agreement to be fulfilled, the
obligations of the Underwriter hereunder may be terminated by the Underwriter by
notifying the Company and the Selling Security Holder of such termination in
writing at or prior to the Closing Date.
In such
event, the Selling Security Holder, the Company and the Underwriter shall not be
under any obligation to each other (except to the extent provided in Sections 5
and 8 hereof).
18
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7.
|
Conditions
of the Obligations of the Selling Security
Holder.
|
The
obligations of the Selling Security Holder to sell and deliver the Warrants
required to be delivered as and when specified in this Agreement are subject to
the conditions that (a) at the Closing Date no stop order suspending the
effectiveness of the Registration Statement shall have been issued and in effect
or proceedings therefor initiated or threatened and (b) the Selling Security
Holder and the Underwriter shall have agreed to the Clearing Price in
writing.
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8.
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Indemnification.
|
(a) The
Company agrees:
(i) to
indemnify and hold harmless the Underwriter, the directors and officers of the
Underwriter and each person, if any, who controls the Underwriter within the
meaning of either Section 15 of the Act or Section 20 of the Exchange Act,
against any losses, claims, damages or liabilities to which the Underwriter or
any such controlling person may become subject under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) arise out of or are based upon (i)
any untrue statement or alleged untrue statement of any material fact contained
in the Registration Statement, any Preliminary Prospectus, any Issuer Free
Writing Prospectus, the General Disclosure Package, the Prospectus or any
amendment or supplement thereto, (ii) with respect to the Registration Statement
or any amendment or supplement thereto, the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading or (iii) with respect to any Preliminary
Prospectus, any Issuer Free Writing Prospectus, the General Disclosure Package,
the Prospectus or any amendment or supplement thereto, the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of the
circumstances under which they were made; provided, however, that the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement, or omission or alleged omission made in the
Registration Statement, any Preliminary Prospectus, any Issuer Free Writing
Prospectus, the General Disclosure Package, the Prospectus, or such amendment or
supplement, in reliance upon and in conformity with written information
furnished to the Company by the Underwriter specifically for use therein, it
being understood and agreed that the only such information furnished
by the Underwriter consists of the information described as such in Section 13
herein; and
(ii) to
reimburse the Underwriter, the Underwriter’s directors and officers, and each
such controlling person of the Underwriter upon demand for any legal or other
out-of-pocket expenses reasonably incurred by the Underwriter or any of them in
connection with investigating or defending any such loss, claim, damage or
liability, action or proceeding or in responding to a subpoena or governmental
inquiry related to the offering of the Warrants, whether or not the Underwriter
or any of them is a party to any action or proceeding. In the event that
it is finally judicially determined that the Underwriter was not entitled to
receive payments for legal and other expenses pursuant to this subparagraph, the
Underwriter will promptly return all sums that had been advanced pursuant
hereto.
19
This
indemnity agreement will be in addition to any liability the Company may
otherwise have.
(b) The
Underwriter will indemnify and hold harmless the Company, each of its directors,
each of its officers who have signed the Registration Statement, the Selling
Security Holder, and each person, if any, who controls the Company or the
Selling Security Holder within the meaning of the Act, against any losses,
claims, damages or liabilities to which the Company or any such director,
officer, Selling Security Holder or controlling person may become subject under
the Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions or proceedings in respect thereof) arise out of or are based upon (i)
any untrue statement or alleged untrue statement of any material fact contained
in the Registration Statement, any Preliminary Prospectus, any Issuer Free
Writing Prospectus, the General Disclosure Package, the Prospectus or any
amendment or supplement thereto, or (ii) the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading in the light of the circumstances under
which they were made; and will reimburse any legal or other expenses reasonably
incurred by the Company or any such director, officer, Selling Security Holder
or controlling person in connection with investigating or defending any such
loss, claim, damage, liability, action or proceeding; provided, however, that the
Underwriter will be liable in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or omission or alleged
omission has been made in the Registration Statement, any Preliminary
Prospectus, any Issuer Free Writing Prospectus, the General Disclosure
Package, the Prospectus
or such amendment or supplement, in reliance upon and in conformity with written
information furnished to the Company by the Underwriter specifically for use
therein, it being understood and agreed that the only such information furnished
by the Underwriter consists of the information described as such in Section 13
herein. This indemnity agreement will be in addition to any liability the
Underwriter may otherwise have.
20
(c) In
case any proceeding (including any governmental investigation) shall be
instituted involving any person in respect of which indemnity may be sought
pursuant to this Section 8, such person (the “indemnified party”) shall promptly
notify the person against whom such indemnity may be sought (the “indemnifying
party”) in writing. No indemnification provided for in Section 8(a) or (b)
shall be available to any party who shall fail to give notice as provided in
this Section 8(c) if the party to whom notice was not given was unaware of the
proceeding to which such notice would have related and was materially prejudiced
by the failure to give such notice, but the failure to give such notice shall
not relieve the indemnifying party or parties from any liability which it or
they may have to the indemnified party for contribution or otherwise than on
account of the provisions of Section 8(a) or (b). In case any such
proceeding shall be brought against any indemnified party and it shall notify
the indemnifying party of the commencement thereof, the indemnifying party shall
assume the defense thereof, including the employment of counsel reasonably
satisfactory to such indemnified party and payment of all fees and
expenses. The indemnified party or any such controlling person shall have
the right to employ separate counsel in any such action and participate in the
defense thereof, but the fees and expenses of such counsel shall be at the
expense of the indemnified party or such controlling person unless (i) the
employment of such counsel shall have been specifically authorized in writing by
the indemnifying party, (ii) the indemnifying party shall have failed to assume
the defense and employ counsel or (iii) the named parties to any such action
(including any impleaded parties) include both the indemnified party or such
controlling person and the indemnifying party and the indemnified party or such
controlling person shall have been advised by such counsel that there may be one
or more legal defenses available to it which are different from or additional to
those available to the indemnifying party (in which case the indemnifying party
shall not have the right to assume the defense of such action on behalf of the
indemnified party or such controlling person; provided, however, that the
indemnifying party shall not, in connection with any one such action or separate
but substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys (in
addition to any local counsel) for the indemnified party and controlling
persons, which firm shall be designated in writing by the indemnified party with
respect to such action or actions. The indemnifying party shall not be
liable for any settlement of any proceeding effected without its written consent
but if settled with such consent or if there be a final judgment for the
plaintiff, the indemnifying party agrees to indemnify the indemnified party from
and against any loss or liability by reason of such settlement or
judgment. In addition, the indemnifying party will not, without the prior
written consent of the indemnified party, settle or compromise or consent to the
entry of any judgment in any pending or threatened claim, action or proceeding
of which indemnification may be sought hereunder (whether or not any indemnified
party is an actual or potential party to such claim, action or proceeding)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action
or proceeding.
21
(d) To
the extent the indemnification provided for in this Section 8 is unavailable to
or insufficient to hold harmless an indemnified party under Section 8(a) or (b)
above in respect of any losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) referred to therein, then each indemnifying
party shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) in such proportion as is appropriate to reflect
the relative benefits received by the Company and the Selling Security Holder on
the one hand and the Underwriter on the other from the offering of the
Warrants. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law then each indemnifying
party shall contribute to such amount paid or payable by such indemnified party
in such proportion as is appropriate to reflect not only such relative benefits
but also the relative fault of the Company and the Selling Security Holder on
the one hand and the Underwriter on the other in connection with the statements
or omissions which resulted in such losses, claims, damages or liabilities (or
actions or proceedings in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company
and the Selling Security Holder on the one hand and the Underwriter on the other
shall be deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Selling Security Holder
bear to the total underwriting discounts and commissions received by the
Underwriter, in each case as set forth in the table on the cover page of the
Prospectus. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company or the Selling Security Holder on the one
hand or the Underwriter on the other and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The
Company and the Underwriter agree that it would not be just and equitable if
contributions pursuant to this Section 8(d) 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 8(d). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions or proceedings in respect thereof)
referred to above in this Section 8(d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 8(d), (i) the Underwriter shall not be required to
contribute any amount in excess of the underwriting discounts and commissions
applicable to the Warrants purchased by the Underwriter and (ii) no person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation.
(e) Any
expenses for which an indemnified party is entitled to indemnification or
contribution under this Section 8 shall be paid by the indemnifying party to the
indemnified party as such expenses are incurred. The indemnity and
contribution agreements contained in this Section 8 and the representations and
warranties of the Company set forth in this Agreement shall remain operative and
in full force and effect, regardless of (i) any investigation made by or on
behalf of the Underwriter, its directors or officers or any person controlling
the Underwriter, the Company, its directors or officers or any persons
controlling the Company, (ii) acceptance of any Warrants and payment therefor
hereunder, and (iii) any termination of this Agreement.
(f) The
provisions of this Section 8 shall not be deemed to supersede or otherwise
affect the Letter Agreement dated December 23, 2008 between the Company and the
Selling Security Holder (and the Securities Purchase Agreement Standard Terms
incorporated therein), pursuant to which the Selling Security Holder purchased
the Warrants from the Company, with respect to the rights (including the rights
of their respective agents) and obligations of each of them to the other
pursuant thereto.
22
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9.
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[Reserved].
|
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10.
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Notices.
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All
communications hereunder shall be in writing and, except as otherwise provided
herein, will be mailed, delivered, faxed, telecopied or telegraphed and
confirmed as follows: if to the Underwriter, to Deutsche Bank
Securities Inc., ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇; Attention: Equity Capital Markets Syndicate
Desk, with a copy to Deutsche Bank Securities Inc., ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: General Counsel; if to the Selling Security Holder,
to United States Department of the Treasury, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, with a copy to Chief Counsel, Office of Financial
Stability, ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇.▇▇▇▇▇.▇▇▇,
facsimile: ▇▇▇-▇▇▇-▇▇▇▇; and if to the Company, to First Financial Bancorp., ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, Esq. (facsimile: 513-979-5780), with a copy to Squire, ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇ L.L.P., ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq. (facsimile: 614-365-2499).
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11.
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Termination.
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This
Agreement may be terminated by the Underwriter by notice to the Company and the
Selling Security Holder (a) at any time prior to the Closing Date if any of the
following has occurred: (i) since the respective dates as of which information
is given in the Registration Statement, the General Disclosure Package and the
Prospectus, any material adverse change or any development involving a
prospective material adverse change in or affecting the business, management,
operations or financial condition of the Company and the Subsidiaries taken as a
whole, whether or not arising in the ordinary course of business, (ii) any
outbreak or escalation of hostilities or declaration of war or national
emergency or other national or international calamity or crisis (including,
without limitation, an act of terrorism) or change in economic or political
conditions if the effect of such outbreak, escalation, declaration, emergency,
calamity, crisis or change on the financial markets of the United States would,
in your judgment, be so material and adverse as to make it impractical or
inadvisable to market the Warrants or enforce contracts for the sale of the
Warrants, (iii) suspension of trading in securities generally on the Exchange or
limitation on prices (other than limitations on hours or numbers of days of
trading) for securities on the Exchange, (iv) the declaration of a banking
moratorium by United States or New York State authorities, (v) any downgrading
in the rating of any of the Company’s debt securities by any “nationally
recognized statistical rating organization” (as defined for purposes of Rule
436(g) under the Exchange Act), or (vi) the suspension of trading of the Common
Stock by the Exchange, the Commission, or any other governmental authority; or
(b) as provided in Section 6 of this Agreement.
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12.
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Successors.
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This
Agreement has been and is made solely for the benefit of the Underwriter, the
Company and the Selling Security Holder and their respective successors,
executors, administrators, heirs and assigns, and the officers, directors and
controlling persons referred to herein, and no other person will have any right
or obligation hereunder. No purchaser of any of the Warrants from the
Underwriter shall be deemed a successor or assign merely because of such
purchase.
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13.
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Information
Provided by the Underwriter.
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The
parties hereto acknowledge and agree that the only information furnished or to
be furnished by the Underwriter to the Company for inclusion in the Registration
Statement, any Preliminary Prospectus, any Issuer Free Writing Prospectus or the
Prospectus consists of (i) the information contained in the section of the
prospectus supplement entitled “Auction Process” and (ii) the information in the
third paragraph, the third sentence of the eighth paragraph, the first and third
sentences of the ninth paragraph and the second sentence of the tenth paragraph
contained in the section of the prospectus supplement entitled
“Underwriting.”
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14.
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Miscellaneous.
|
The
reimbursement, indemnification and contribution agreements contained in this
Agreement and the representations, warranties and covenants in this Agreement
shall remain in full force and effect regardless of (a) any termination of this
Agreement, (b) any investigation made by or on behalf of the Underwriter or
controlling person thereof, or by or on behalf of the Company or its directors
or officers or the Selling Security Holder or controlling person thereof, as the
case may be, and (c) delivery of and payment for the Warrants under this
Agreement.
The
Company acknowledges and agrees that the Underwriter in providing investment
banking services to the Company or others in connection with the offering,
including in acting pursuant to the terms of this Agreement, has acted and is
acting as an independent contractor and not as a fiduciary, and the Company does
not intend the Underwriter to act in any capacity other than as an independent
contractor, including as a fiduciary or in any other position of higher
trust.
This
Agreement may be executed in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
This
Agreement shall be governed by, and construed in accordance with, the law of the
State of New York, including, without limitation, Section 5-1401 of the New York
General Obligations Law.
The
Underwriter, on the one hand, and the Company (on its own behalf and, to the
extent permitted by law, on behalf of its stockholders), on the other hand,
waive any right to trial by jury in any action, claim, suit or proceeding with
respect to your engagement as underwriter or your role in connection
herewith.
[Remainder
of Page Intentionally Left Blank]
24
If the
foregoing letter is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicates hereof, whereupon it will
become a binding agreement among the Selling Security Holder, the Company and
the Underwriter in accordance with its terms.
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Very
truly yours,
|
||
|
FIRST
FINANCIAL BANCORP.
|
||
|
By
|
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
|
|
|
UNITED
STATES DEPARTMENT OF THE
TREASURY,
as Selling Security Holder
|
||
|
By
|
/s/ ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇, ▇▇.
|
|
|
The
foregoing Underwriting Agreement
|
||
|
is
hereby confirmed and accepted as
|
||
|
of
the date first above written.
|
||
|
DEUTSCHE
BANK SECURITIES INC.
|
||
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As
the Underwriter
|
||
|
By
|
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
|
|
|
Authorized
Officer
|
||
|
By
|
/s/ ▇▇▇▇
▇▇▇▇▇▇▇
|
|
|
Authorized
Officer
|
||
25