US-LEGAL-13226288/2 181281-0001 2 Distribution Agents, for use by the Distribution Agents, copies of the prospectus included as part of such registration statement, as supplemented by the Prospectus Supplement, relating to the Placement Shares. Except...
AXOS FINANCIAL, INC. Common Stock EQUITY DISTRIBUTION AGREEMENT Dated: January 28, 2025 US-LEGAL-13226288/2 181281-0001 i Table of Contents SECTION 1. Description of Placement Shares ............................................................................ 1 SECTION 2. Placements .............................................................................................................. 2 SECTION 3. Sale of Placement Shares by Designated Distribution Agent ................................. 3 SECTION 4. Suspension of Sales ................................................................................................ 4 SECTION 5. Representations and Warranties ............................................................................. 4 SECTION 6. Sale and Delivery to Designated Distribution Agent; Settlement ........................ 16 SECTION 7. Covenants of the Company .................................................................................. 19 SECTION 8. Payment of Expenses ............................................................................................ 25 SECTION 9. Conditions of Distribution Agents’ Obligations ................................................... 26 SECTION 10. Indemnification .................................................................................................... 28 SECTION 11. Contribution ......................................................................................................... 29 SECTION 12. Representations, Warranties and Agreements to Survive Delivery ..................... 30 SECTION 13. Termination of Agreement .................................................................................. 30 SECTION 14. Notices ................................................................................................................. 31 SECTION 15. Parties .................................................................................................................. 32 SECTION 16. Adjustments for Share Splits ............................................................................... 32 SECTION 17. Governing Law; Consent to Jurisdiction ............................................................. 32 SECTION 18. Waiver of Jury Trial............................................................................................. 33 SECTION 19. Time ..................................................................................................................... 33 SECTION 20. Effect of Headings ............................................................................................... 33 SECTION 21. Definitions ........................................................................................................... 33 SECTION 22. Permitted Free Writing Prospectuses ................................................................... 34 SECTION 23. Absence of Fiduciary Relationship ...................................................................... 34 US-LEGAL-13226288/2 181281-0001 ii EXHIBITS Exhibit A Form of Placement Notice Exhibit B Authorized Individuals for Placement Notices and Acceptances Exhibit C Compensation Exhibit D Form of Opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP to be Delivered Pursuant to Section 7(p) Exhibit E Axos Financial, Inc. Officers’ Certificate Exhibit F Issuer Free Writing Prospectuses US-LEGAL-13226288/2 181281-0001 1 Axos Financial, Inc. Common Stock EQUITY DISTRIBUTION AGREEMENT January 28, 2025 Keefe, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc. ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Ladies and Gentlemen: Axos Financial, Inc., a Delaware corporation (the “Company”), confirms its agreement (this “Agreement”) with Keefe, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (“KBW”) and ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc. (each individually, a “Distribution Agent” and collectively, the “Distribution Agents”) as follows: SECTION 1. Description of Placement Shares. The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, the Company may issue and sell through a Distribution Agent, acting as agent and/or principal, shares (the “Placement Shares”) of the Company’s common stock (the “Common Stock”), having an aggregate offering price of up to $150,000,000 (the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 regarding the aggregate offering price of the Placement Shares issued and sold under this Agreement shall be the sole responsibility of the Company, and the Distribution Agents shall have no obligation in connection with such compliance. The issuance and sale of the Placement Shares through a Distribution Agent will be effected pursuant to the Registration Statement (as defined below) that was filed by the Company and became effective upon filing under Rule 462(e) of the Securities Act of 1933, as amended (collectively with the rules and regulations thereunder, the “Securities Act”) (“Rule 462(e)”), although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue the Placement Shares. The Company has filed, in accordance with the provisions of the Securities Act, with the Securities and Exchange Commission (the “Commission”) an automatic shelf registration statement on Form S-3 (File No. 333-277514), including a base prospectus, relating to certain securities, including the Placement Shares to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (collectively, the “Exchange Act”). The Company has prepared a prospectus supplement specifically relating to the Placement Shares (the “Prospectus Supplement”) to the base prospectus included as part of such registration statement. The Company will furnish to the
US-LEGAL-13226288/2 181281-0001 2 Distribution Agents, for use by the Distribution Agents, copies of the prospectus included as part of such registration statement, as supplemented by the Prospectus Supplement, relating to the Placement Shares. Except where the context otherwise requires, such registration statement, as amended when it became effective, including all documents filed as part thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) or deemed to be a part of such registration statement pursuant to Rule 430B (the “Rule 430B Information”), is herein called the “Registration Statement.” The Registration Statement at the time it originally became effective is herein called the “Original Registration Statement.” The base prospectus, including all documents incorporated therein by reference, included in the Registration Statement, as it may be supplemented by the Prospectus Supplement, in the form in which such prospectus and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) is herein called the “Prospectus.” Any reference herein to the Registration Statement, the Prospectus or any amendment or supplement thereto shall be deemed to refer to and include the documents incorporated by reference therein, and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement or the Prospectus shall be deemed to refer to and include the filing after the execution hereof of any document with the Commission deemed to be incorporated by reference therein. For purposes of this Agreement, all references to the Registration Statement, the Prospectus or to any amendment or supplement thereto shall be deemed to include any copy filed with the Commission by ▇▇▇▇▇. SECTION 2. Placements. Each time that the Company wishes to issue and sell Placement Shares hereunder (each, a “Placement”), it will notify KBW on or prior to the Trading Day on which sales are desired to commence by email notice (or other method mutually agreed to in writing by the parties) containing the parameters in accordance with which it desires the Placement Shares to be sold, which shall at a minimum include the number of Placement Shares to be issued, the time period during which sales are requested to be made, any limitation on the number of Placement Shares that may be sold in any one day and any minimum price below which sales may not be made (a “Placement Notice”), a form of which containing such minimum sales parameters necessary is attached hereto as Exhibit A. The Placement Notice shall originate from any of the individuals from the Company set forth on Exhibit B (the “Authorized Company Contacts”) (with a copy to each of the other Authorized Company Contacts), and shall be addressed to each of the individuals from KBW set forth on Exhibit B (the “Authorized KBW Contacts”). The Company may, upon notice to KBW in writing (including by email correspondence to the Authorized KBW Contacts, if receipt of such correspondence is actually acknowledged by any of the Authorized KBW Contacts, other than via auto-reply) or by telephone (confirmed promptly by email correspondence to the Authorized KBW Contacts), withdraw any Placement Notice (a “Placement Notice Withdrawal”), which shall have the effects of suspending any sales of Placement Shares and as otherwise provided herein; provided, however, that such suspension shall not affect or impair either party’s obligations with respect to any Placement Shares sold hereunder prior to the receipt of such notice. If the Company issues a Placement Notice for sales to be made in any Calendar Quarter or other three (3)-month period, the minimum dollar amount of Placement Shares to be issued under such Placement Notice shall be $5,000,000. For the purposes hereof, “Trading Day” means any day on which the Common Stock is purchased and sold on the principal market on which the Common Stock is listed or quoted. If KBW wishes to accept such proposed terms included in the Placement Notice (which it may decline to do for any reason in its sole discretion) or, following discussion with the Company, wishes to accept amended terms, KBW will, within two (2) hours after the time such Placement Notice is delivered to KBW, issue to the Company a notice by email (or other method mutually agreed to in writing by the parties) addressed to all of the Authorized KBW Contacts and setting US-LEGAL-13226288/2 181281-0001 3 forth the terms that KBW is willing to accept. Where the terms provided in the Placement Notice are amended as provided for in the immediately preceding sentence, such terms will not be binding on the Company or the Distribution Agents until the Company delivers to KBW an acceptance by email (or other method mutually agreed to in writing by the parties) of all of the terms of such Placement Notice, as amended (the “Acceptance”), which email shall be addressed to all of the Authorized KBW Contacts. References to any “Placement Notice” herein shall include any amendment thereto as documented by an Acceptance in accordance with the preceding sentence. The Placement Notice shall be effective upon receipt by the Company of KBW’s acceptance of the terms of the Placement Notice or upon receipt by KBW of the Company’s Acceptance, as the case may be, unless and until (i) the entire amount of the Placement Shares has been sold or, if earlier the termination date on the Placement Notice, (ii) in accordance with the notice requirements set forth in the second sentence of this paragraph, the Company terminates the Placement Notice, (iii) the Company issues a subsequent Placement Notice with parameters superseding those on the earlier dated Placement Notice, (iv) this Agreement has been terminated under the provisions of Section 13 or (v) either party shall have suspended the sale of the Placement Shares in accordance with Section 4 below. Once a Placement Notice has been accepted and is in effect, KBW shall designate one of the Distribution Agents to serve as agent in connection with such Placement Notice and the sale of the Placement Shares set forth therein (such designated Distribution Agent, the “Designated Distribution Agent”). The amount of any commission, discount or other compensation to be paid by the Company to the Designated Distribution Agent in connection with the sale of the Placement Shares shall be determined in accordance with the terms set forth in Exhibit C. The amount of any commission, discount or other compensation to be paid by the Company to the Designated Distribution Agent, when the Designated Distribution Agent is acting as principal, in connection with the sale of the Placement Shares shall be as separately agreed among the parties hereto at the time of any such sales. It is expressly acknowledged and agreed that neither the Company nor the Distribution Agents will have any obligation whatsoever with respect to a Placement or any Placement Shares unless and until the Company delivers a Placement Notice to KBW and either (i) KBW accepts the terms of such Placement Notice or (ii) where the terms of such Placement Notice are amended, the Company accepts such amended terms by means of an Acceptance pursuant to the terms set forth above, and then only upon the terms specified in the Placement Notice and herein. In the event of a conflict between the terms of this Agreement and the terms of a Placement Notice, the terms of the Placement Notice will control. SECTION 3. Sale of Placement Shares by Designated Distribution Agent. Subject to the provisions of Section 6(a), the Designated Distribution Agent will use commercially reasonable efforts consistent with normal trading and sales practices to sell the Placement Shares at prevailing market prices up to the amount specified, and otherwise in accordance with the terms of such Placement Notice. The Designated Distribution Agent will provide written confirmation to the Company no later than the opening of the Trading Day (as defined below) immediately following the Trading Day on which it has made sales of Placement Shares hereunder setting forth the number of Placement Shares sold on such day, the compensation payable by the Company to the Designated Distribution Agent pursuant to Section 2 with respect to such sales, and the Net Proceeds (as defined below) payable to the Company, with an itemization of the deductions made by the Designated Distribution Agent (as set forth in Section 6(b)) from the gross proceeds that it receives from such sales. Subject to the terms of the Placement Notice, the Designated Distribution Agent may sell Placement Shares by any method permitted by law deemed to be an “at the market” offering as defined in Rule 415 of the Securities Act, including without limitation sales made directly on NYSE, on any other existing trading market for the Common Stock or to or through a market maker. Subject to the terms of the Placement Notice, the Designated US-LEGAL-13226288/2 181281-0001 4 Distribution Agent may also sell Placement Shares by any other method permitted by law, including but not limited to privately negotiated transactions. SECTION 4. Suspension of Sales. The Company or a Distribution Agent may, upon notice to the other party in writing (including by email correspondence to the Authorized Company Contacts or the Authorized KBW Contacts, as applicable, if receipt of such correspondence is actually acknowledged by any of the individuals to whom the notice is sent, other than via auto- reply) or by telephone (confirmed promptly by email correspondence to the Authorized Company Contacts or the Authorized KBW Contacts, as applicable), suspend any sale of Placement Shares; provided, however, that such suspension shall not affect or impair either party’s obligations with respect to any Placement Shares sold hereunder prior to the receipt of such notice. Each of the parties agrees that no such notice under this Section 4 shall be effective against the Company or KBW unless it is made to one of the Authorized Company Contacts or Authorized KBW contacts, respectively. SECTION 5. Representations and Warranties. (a) Representations and Warranties by the Company. The Company represents and warrants to each of the Distribution Agents as of the date hereof and as of each Representation Date (as defined below) on which a certificate is required to be delivered pursuant to Section 7(o) of this Agreement, as of each Applicable Time and as of each Settlement Date, and agrees with the Distribution Agents, as follows: (1) Registration Statement Effective; Conform to Securities Act; No Misleading Statements; Conformity with ▇▇▇▇▇ ▇▇▇▇▇▇▇. At the respective times each of the Registration Statement and any post-effective amendments thereto became or becomes effective and as of the date hereof, the Registration Statement and any amendments and supplements thereto complied and will comply in all material respects with the requirements of the Securities Act. The Company meets all conditions and requirements for the use of Form S-3 to register the offer and sale of the Placement Shares; the Registration Statement conforms, and the Prospectus and any further amendments or supplements to the Registration Statement or the Prospectus will conform, in all material respects to the requirements of the Securities Act and the rules and regulations of the Commission thereunder; on the effective date, the Registration Statement did not or will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading; and when filed and at each Applicable Time and each date that Placement Shares are delivered to a Distribution Agent hereunder, the Prospectus (together with any supplement thereto) will not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with the Agent Information (as defined below). The Prospectus Supplement when filed, if filed by electronic transmission, pursuant to the ▇▇▇▇▇ system (except as may be permitted by Regulation S-T under the Securities Act), was identical to the copy thereof delivered to the Distribution Agents for use in connection with the offer and sale of the Placement Shares. As of each Applicable Time, no Issuer Free Writing Prospectuses issued at or prior to such Applicable Time and the Prospectus, all considered together included any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not US-LEGAL-13226288/2 181281-0001 5 misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with the Agent Information. No order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus has been issued by the Commission, and the Prospectus and each amendment or supplement thereto, if any, at the time of filing thereof, conformed in all material respects to the requirements of the Securities Act and the rules and regulations of the Commission thereunder, and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with the Agent Information. There are no contracts or other documents required to be described in the Prospectus, the Prospectus Supplement or to be filed as exhibits to the Registration Statement which have not been described or filed as required. The Original Registration Statement became effective on February 29, 2024. No stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Company, are contemplated by the Commission, and any request on the part of the Commission for additional information has been complied with. The Company filed the Registration Statement with the Commission before using any free writing prospectus and each free writing prospectus was preceded or accompanied by the Prospectus satisfying the requirements of Section 10 under the Securities Act. At the respective times the Original Registration Statement and any amendment thereto became effective, at each deemed effective date with respect to the Placement Shares pursuant to Rule 430B(f)(2), and at each relevant Settlement Date, the Registration Statement complied, complies and will comply in all material respects with the requirements of the Securities Act, and did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. Each preliminary prospectus (including the base prospectus or prospectuses filed as part of the Original Registration Statement or any amendment thereto) complied when so filed in all material respects with the Securities Act. Each preliminary prospectus and the Prospectus delivered to the Distribution Agents for use in connection with the offering of any Placement Shares was identical to the electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S- T. Each Issuer Free Writing Prospectus, as of its issue date and as of the relevant Applicable Time and Settlement Date, or until any earlier date that the issuer notified or notifies the Distribution Agents as described in Section 7(d), did not, does not and will not (i) include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein and any preliminary or other prospectus deemed to be a part thereof that has not been superseded or modified or (ii) when taken together with the Prospectus, 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.
US-LEGAL-13226288/2 181281-0001 6 The representations and warranties in this Section 5(a)(1) shall not apply to statements in or omissions from the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus made in reliance upon and in conformity with written information furnished to the Company by the Distribution Agents expressly for use therein. (2) Incorporated Documents. The documents incorporated or deemed to be incorporated by reference in the Registration Statement or the Prospectus (the “Incorporated Documents”), when they became effective or at the time they were or hereafter are filed with the Commission, complied, comply and will comply in all material respects with the requirements of the Exchange Act and, when read together with the other information in the Registration Statement or the Prospectus, (a) at the time the Original Registration Statement became effective, (b) with respect to any offering of Placement Shares, at the earlier of the time the Prospectus was first used and the date and time of the first contract of sale of such Placement Shares, and (c) at each relevant Settlement Date, did not and will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. (3) Independent Accountants. The accounting firm that certified the financial statements and supporting schedules incorporated by reference in the Registration Statement and the Prospectus is an independent registered public accounting firm as required by the Securities Act, the Exchange Act and the Public Company Accounting Oversight Board (United States) (“PCAOB”). (4) Good Standing of the Company. The Company is a Delaware corporation duly formed and validly existing and in good standing under the laws of the State of Delaware, with full power and authority to own and lease its properties and to conduct its business as described in the Registration Statement and the Prospectus and to enter into and perform its obligations under this Agreement; and the Company is in good standing in each jurisdiction in which such qualification or registration is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify or to be in good standing would not result in a Material Adverse Effect (as defined below). (5) Good Standing of Subsidiaries. The only Subsidiaries of the Company that may constitute a “significant subsidiary” within the meaning of Rule 1-02(w) of Regulation S-X are the Subsidiaries listed on Exhibit 21.1 to the Company’s most recent Annual Report on Form 10-K (each, a “Significant Subsidiary”). Each Significant Subsidiary of the Company has been duly incorporated or organized and is validly existing as a corporation, limited partnership, general partnership or limited liability company, as applicable, in good standing under the laws of the jurisdiction in which it is chartered or organized and has the requisite power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus, and is duly qualified or registered as a foreign corporation, limited partnership, general partnership or limited liability company, as applicable, and is in good standing in the jurisdiction in which such qualification or registration is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify or register would not result in a Material Adverse Effect. All the outstanding shares of capital stock, partnership interests, limited liability company interests or other equivalent equity interests of each such Significant Subsidiary have been duly authorized and validly issued and are fully paid and non-assessable, and, except as otherwise set forth in each of the Registration Statement and the Prospectus, all outstanding shares of capital stock, US-LEGAL-13226288/2 181281-0001 7 partnership interests, limited liability company interests or other equivalent equity interest of the Significant Subsidiaries are owned by the Company either directly or through wholly-owned Significant Subsidiaries free and clear of any perfected security interest or any other security interests, claims, liens or encumbrances. (6) Capitalization. If the Registration Statement or the Prospectus contains a “Capitalization” section, the authorized, issued and outstanding capital shares of the Company are as set forth in the column entitled “Actual” under such section (except for subsequent issuances thereof, if any, contemplated under this Agreement, pursuant to reservations, agreements, equity incentive plans or employee benefit plans referred to in the Registration Statement and the Prospectus or pursuant to the exercise of convertible securities or options referred to in the Registration Statement and the Prospectus). The issued and outstanding capital shares have been duly authorized and validly issued by the Company and are fully paid and non-assessable, and none of the outstanding capital shares was issued in violation of preemptive or other similar rights of any securityholder of the Company. (7) Authorization and Description of Placement Shares. The Placement Shares to be sold through the Distribution Agents, as principal or agent, have been duly authorized for issuance, sale and delivery pursuant to this Agreement and, when issued and delivered by the Company pursuant to this Agreement against payment of the consideration provided for herein, will be validly issued, fully paid and non-assessable. The Placement Shares conform to all statements relating thereto contained in the Registration Statement and the Prospectus. No holder of the Placement Shares will be subject to personal liability by reason of being such a holder. The issuance of the Placement Shares is not subject to the preemptive or other similar rights of any securityholder of the Company. The form of certificate used to evidence the Placement Shares, if any, will be in substantially the form to be filed or incorporated by reference, as the case may be, as an exhibit to the Registration Statement, and such form complies with all applicable statutory requirements, requirements of the Company’s Certificate of Incorporation and the Amended and Restated By-laws of the Company, each as amended to date, and requirements of NYSE. (8) Authorization of Agreement. This Agreement and the transactions contemplated herein have been duly authorized by the Company, and this Agreement has been duly executed and delivered by the Company and constitutes a valid and binding obligation of the Company, enforceable in accordance with its terms except to the extent that the indemnification provisions hereof may be limited by federal or state securities laws and public policy considerations in respect thereof and except as enforcement may be limited by bankruptcy, reorganization, moratorium or similar laws affecting creditors’ rights generally and general principles of equity. (9) Accuracy of Exhibits. There are no contracts or documents which are required to be described in the Registration Statement or the Prospectus or the documents incorporated by reference therein or to be filed as exhibits thereto which have not been so described and filed as required. (10) Absence of Further Requirements. No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any Governmental Entity (as defined below) is necessary or required for the performance by the Company of its obligations hereunder, in connection with the offering, issuance or sale of the Placement Shares hereunder or the consummation of the transactions contemplated by this Agreement, except such as have already been obtained or will be obtained under the Securities Act or US-LEGAL-13226288/2 181281-0001 8 as required under state securities laws or the rules of the Financial Industry Regulatory Authority (“FINRA”). (11) Registration Statement. No holders of securities or other equity interests of the Company has rights to the registration of such securities or equity interests under a registration statement except for those that have been effectively waived or are inapplicable to the offering of Placement Shares from time to time. (12) NYSE. The outstanding shares of Common Stock and the Placement Shares to be sold by the Company from time to time hereunder have been approved for listing, subject only to official notice of issuance, on NYSE, and are registered pursuant to Section 12(b) of the Exchange Act, and the Company has taken no action designed to, or likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act or delisting any such securities from NYSE, nor has the Company received any notification that the Commission or NYSE is contemplating terminating such registration or listing. (13) Transfer Taxes. There are no transfer taxes or other similar fees or charges under federal law or the laws of any state, or any political subdivision thereof, required to be paid in connection with the execution and delivery of this Agreement or the issuance or sale by the Company of the Placement Shares from time to time as contemplated by this Agreement. (14) Tax Returns. The Company has filed all foreign, federal, state and local tax returns that are required to be filed or has requested extensions thereof (except in any case in which the failure so to file would not have a Material Adverse Effect), whether or not arising from transactions in the ordinary course of business, except as described in the Registration Statement and the Prospectus, and has paid all taxes required to be paid by it and any other assessment, fine or penalty levied against it, to the extent that any of the foregoing is due and payable, except for any such assessment, fine or penalty that is currently being contested in good faith or as would not have a Material Adverse Effect, whether or not arising from transactions in the ordinary course of business, except as described in the Registration Statement and the Prospectus. (15) Permitted Free Writing Prospectus. Neither the Company nor any of its Subsidiaries has distributed or will distribute any offering material in connection with the offering and sale of the Placement Shares to be sold hereunder by a Distribution Agent as principal or agent for the Company, other than the Prospectus and any Permitted Free Writing Prospectus (as defined in Section 22) reviewed and consented to by the Distribution Agents. (16) Pending Proceedings and Examinations. The Registration Statement is not the subject of a pending proceeding or examination under Section 8(d) or 8(e) of the Securities Act, and the Company is not the subject of a pending proceeding under Section 8A of the Securities Act in connection with the offering of the Placement Shares from time to time pursuant to this Agreement. (17) Holding Company Regulation. The Company is duly registered as a federal savings and loan holding company and regulated by the Board of Governors of the Federal Reserve System. The Company’s banking subsidiary holds the requisite authority from the Office of the Comptroller of Currency to do business as a covered savings association. The Company and its banking subsidiary are in compliance in all material respects with all laws administered by and regulations of the Office of the Comptroller of US-LEGAL-13226288/2 181281-0001 9 the Currency, the Board of Governors of the Federal Reserve System, the Federal Deposit Insurance Corporation (the “FDIC”), and any other federal or state bank regulatory authority with jurisdiction over the Company or any of its subsidiaries (the “Bank Regulatory Authorities”), except where the failure to so comply would not have a Material Adverse Effect. Except as otherwise disclosed in the Prospectus, or except as would not reasonably be expected to result in a Material Adverse Effect, neither the Company nor any of its subsidiaries is a party to any written agreement or memorandum of understanding with, or a party to any commitment letter or similar undertaking to, or is subject to any order or directive by, or is a recipient of any extraordinary supervisory letter from, or has adopted any board resolutions at the request of, any Bank Regulatory Authority which restricts materially the conduct of its business, or requires any material change in its policies or practices relating to capital, credit or management, nor have any of them been advised by any Bank Regulatory Authority that it is contemplating issuing or requesting (or is considering the appropriateness of issuing or requesting) any such order, decree, agreement, memorandum of understanding, extraordinary supervisory letter, commitment letter or similar submission, or any such board resolutions, except as previously disclosed to the Distribution Agents in writing. (18) Proprietary Trading by the Distribution Agents. The Company acknowledges and agrees that each Distribution Agent has informed the Company that each Distribution Agent may, to the extent permitted under the Securities Act and the Exchange Act, purchase and sell shares of Common Stock for its own account while this Agreement is in effect, and shall be under no obligation to purchase Placement Shares on a principal basis pursuant to this Agreement, except as otherwise agreed by a Distribution Agent in the Placement Notice; provided, that no such purchase or sales shall take place while a Placement Notice is in effect (except (i) as agreed by a Distribution Agent in the Placement Notice or (ii) to the extent a Distribution Agent may engage in sales of Placement Shares purchased or deemed purchased from the Company as a “riskless principal” or in a similar capacity). (19) Actively Traded Security. The Common Stock is an “actively traded security” excepted from the requirements of Rule 101 of Regulation M under the Exchange Act by subsection (c)(1) of such rule. (20) Stabilization Activities. Neither the Company nor, to the knowledge of the Company, any of its officers or directors has taken, or will take, directly or indirectly, any action designed to or that might reasonably be expected to result in a violation of Regulation M under the Exchange Act or cause or result in stabilization or manipulation of the price of any of the Company’s securities to facilitate the sale or resale of the Placement Shares. (21) Good Standing of the Bank. Axos Bank (the “Bank”) has been duly chartered and is validly existing as a covered savings association in good standing, with the corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus and to enter into and perform its obligations under this Agreement. (22) Reserved. (23) Reserved. (24) FDIC Insurance. The deposit accounts of the Bank are insured up to the maximum amount provided by the FDIC and no proceedings for the modification,
US-LEGAL-13226288/2 181281-0001 10 termination or revocation of any such insurance are pending or, to the knowledge of the Company, threatened against the Bank. (25) Financial Statements; Non-GAAP Financial Measures. The financial statements of the Company and its consolidated Subsidiaries set forth in or incorporated by reference in the Registration Statement and the Prospectus, together with the related schedules and notes, present fairly in all material respects the financial position, results of operations and cash flows of the Company and its consolidated Subsidiaries at the dates and for the periods specified, and such financial statements have been prepared in conformity with U.S. generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved. The supporting schedules, if any, set forth in or incorporated by reference in the Registration Statement or the Prospectus present fairly in all material respects in accordance with GAAP the information required to be stated therein. Any selected historical operating and financial data set forth in or incorporated by reference in the Registration Statement or the Prospectus present fairly in all material respects the information shown therein and have been compiled on a basis consistent with the books and records of the Company and that of the audited financial statements set forth in or incorporated by reference in the Registration Statement or the Prospectus. Other than as set forth therein, the Company is not required to include any financial statements or pro forma financial statements in the Registration Statement or the Prospectus under the Securities Act or any document required to be filed with the Commission under the Exchange Act. All disclosures contained in the Registration Statement or the Prospectus regarding “non-GAAP financial measures” (as such term is defined by the rules and regulations of the Commission) comply in all material respects with Regulation G of the Exchange Act and Item 10 of Regulation S-K under the Securities Act, to the extent applicable. (26) No Material Adverse Change in Business. Except as otherwise disclosed in the Registration Statement and the Prospectus (including filings incorporated by reference therein), subsequent to the respective dates as of which information is given in the Registration Statement or the Prospectus: (A) there has been no material adverse change in the condition, financial or otherwise, or in the properties, earnings, business affairs or business prospects of the Company and the Subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business (a “Material Adverse Effect”), (B) there have been no transactions entered into by the Company or any Subsidiary, other than those in the ordinary course of business, which are material with respect to the Company and the Subsidiaries considered as one enterprise and (C), there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock. (27) Absence of Defaults and Conflicts. None of the Company or any Significant Subsidiary is (A) in violation of its articles or certificate of incorporation, charter, by-laws, declaration of trust, partnership agreement, operating agreement, or other governing instrument (“Governing Instruments”), (B) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any Subsidiary is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company or any Subsidiary is subject (collectively, “Agreements and Instruments”) or (C) in violation of any applicable law, statute, rule, regulation, judgment, order, writ or decree (“Laws”) of any government, government instrumentality, arbitrator, court, regulatory body, administrative agency or any other authority, body or agency, domestic or foreign, having US-LEGAL-13226288/2 181281-0001 11 jurisdiction over the Company or any Subsidiary or any of their assets, properties or operations (“Governmental Entities”), except for such violations or defaults of any Agreements and Instruments or Laws that would not result in a Material Adverse Effect. The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein and in the Prospectus (including the issuance and sale of the Placement Shares from time to time pursuant to this Agreement and the use of the Net Proceeds from the sale of the Placement Shares as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary pursuant to, the Agreements and Instruments or Laws (except for such conflicts, breaches, defaults or Repayment Events or liens, charges or encumbrances that would not result in a Material Adverse Effect), nor will such action result in any violation of the provisions of the Governing Instruments of the Company or any Subsidiary or of any Laws, except for such violations that would not have a Material Adverse Effect. As used herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a material portion of such indebtedness by the Company or any Significant Subsidiary. (28) Absence of Labor Dispute. No labor dispute with the employees of the Company or any Subsidiary exists or, to the knowledge of the Company is imminent, and the Company is not aware of any existing or imminent labor disturbance by the employees of it or any Subsidiary’s principal suppliers, manufacturers, customers or contractors, which, in either case, may reasonably be expected to result in a Material Adverse Effect. (29) Absence of Proceedings. There is no action, arbitration, suit, proceeding, inquiry or investigation before or brought by any Governmental Entity, now pending, or, to the knowledge of the Company threatened, against or affecting the Company, or any Subsidiary, which is required to be disclosed in the Registration Statement or the Prospectus (other than as disclosed therein), or which might reasonably be expected to result in a Material Adverse Effect or which might materially and adversely affect the consummation of the transactions contemplated in this Agreement or the performance by the Company of its obligations hereunder. The aggregate of all pending legal or governmental proceedings to which the Company or any Subsidiary is a party or of which any of their respective properties or assets is the subject which are not described in the Registration Statement and the Prospectus, including ordinary routine litigation, could not reasonably be expected to result in a Material Adverse Effect. (30) Possession of Intellectual Property. The Company and the Significant Subsidiaries own or possess, or can acquire on reasonable terms, adequate patents, patent rights, licenses, inventions, copyrights, know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures), trademarks, service marks, trade names or other intellectual property (collectively, “Intellectual Property”) necessary to carry on the business now operated by them, and neither the Company, nor any Subsidiary has received any written notice or is otherwise aware of any infringement of or conflict with asserted rights of others with respect to any Intellectual Property or of any facts or circumstances which would render any Intellectual Property invalid or inadequate to protect the interest of the Company or US-LEGAL-13226288/2 181281-0001 12 any Subsidiary therein, and which infringement or conflict (if the subject of any unfavorable decision, ruling or finding) or invalidity or inadequacy, singly or in the aggregate, would result in a Material Adverse Effect. (31) Possession of Licenses and Permits. Each of the Company and the Subsidiaries possess such permits, licenses, approvals, consents and other authorizations (collectively, “Governmental Licenses”) issued by the appropriate federal, state, local or foreign regulatory agencies or bodies necessary to conduct the business now operated by them, except where failure to possess any such Governmental Licenses would not result, singly or in the aggregate, in a Material Adverse Effect; the Company and the Subsidiaries are in compliance with the terms and conditions of all such Governmental Licenses, except where the failure so to comply would not, singly or in the aggregate, result in a Material Adverse Effect; all of the Governmental Licenses are valid and in full force and effect, except when the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not, singly or in the aggregate, result in a Material Adverse Effect; and neither the Company nor any of the Subsidiaries has received any notice of proceedings relating to the revocation or modification of any such Governmental Licenses which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would result in a Material Adverse Effect. (32) Investment Company Act. Neither the Company nor any Subsidiary is, or upon the issuance and sale of the Placement Shares from time to time as herein contemplated and the application of the Net Proceeds therefrom as described in the Prospectus will be, an “investment company” or an entity “controlled” by an “investment company” as such terms are defined in the Investment Company Act. (33) Environmental Laws. Except as described in the Registration Statement and the Prospectus and except as would not, singly or in the aggregate, result in a Material Adverse Effect, (A) none of the Company or any of the Subsidiaries is in violation of any federal, state or local statute, law, rule, regulation, ordinance, code, policy or rule of common law or any judicial or administrative interpretation thereof, including any judicial or administrative order, consent, decree or judgment, relating to pollution or protection of human health, the environment (including, without limitation, ambient air, surface water, groundwater, land surface or subsurface strata) or wildlife, including, without limitation, laws and regulations relating to the release or threatened release of chemicals, pollutants, contaminants, wastes, toxic substances, hazardous substances, petroleum or petroleum products, asbestos-containing materials or mold (collectively, “Hazardous Materials”) or to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials (collectively, “Environmental Laws”), (B) the Company and the Subsidiaries have all permits, authorizations and approvals required under any applicable Environmental Laws and are each in compliance with their requirements, (C) there are no pending or, to the knowledge of the Company, threatened administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens, notices of noncompliance or violations, investigations or proceedings relating to any Environmental Law against the Company or any of the Subsidiaries and (D) there are no events or circumstances that might reasonably be expected to form the basis of an order for clean-up or remediation, or an action, suit or proceeding by any private party or Governmental Entity, against or affecting the Company or any of the Subsidiaries relating to Hazardous Materials or any Environmental Laws. (34) Insurance. The Company and the Significant Subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in such US-LEGAL-13226288/2 181281-0001 13 amounts as are prudent and customary in the businesses in which they are engaged; all policies of insurance and fidelity or surety bonds insuring the Company or any of the Significant Subsidiaries or their respective properties, businesses, employees, officers and directors are in full force and effect. (35) ERISA. Each “plan” (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended, including the regulations and published interpretations thereunder (“ERISA”)) in which employees of the Company and the Significant Subsidiaries are eligible to participate is in compliance in all material respects with the presently applicable provisions of ERISA; no “reportable event” (within the meaning of Section 4043 of ERISA) has occurred with respect to any “pension plan” (as defined in Section 3(2) of ERISA) for which the Company or such Significant Subsidiary would have any material liability; none of the Company or any of its Significant Subsidiaries has incurred, and does not expect to incur, material liability under (i) Title IV of ERISA with respect to the termination of, or withdrawal from, any pension plan or (ii) Section 412, 430 or 4971 of the Internal Revenue Code of 1986, as amended, including the regulations and published interpretations thereunder (the “Code”), or Section 302 of ERISA, and no failure to satisfy the minimum funding standard as defined in Sections 412 and 430 of the Code or Section 302 of ERISA, has occurred with respect to any pension plan for which the Company or any of the Significant Subsidiaries would have any liability; and each pension plan maintained by the Company or any of its subsidiaries that is intended to be qualified under Section 401(a) of the Code is so qualified and nothing has occurred, whether by action or failure to act, that would cause the loss of such qualification. (36) Cybersecurity. (A) There has been no security breach, unauthorized access or disclosure of the Company’s or the Significant Subsidiaries’ information technology and computer systems, networks, hardware, software, data and databases (including the data and information of their respective customers, employees, suppliers, vendors and any third party data maintained, processed or stored by the Company and the Significant Subsidiaries, and any such data processed or stored by third parties on behalf of the Company and the Significant Subsidiaries), equipment or technology (collectively, “IT Systems and Data”); (B) neither the Company nor the Significant Subsidiaries have been notified of, and have no knowledge of any event or condition that would result in, any security breach, unauthorized access or disclosure to their IT Systems and Data and (C) the Company and the Significant Subsidiaries have implemented controls, policies, procedures, and technological safeguards consistent with industry practice to maintain and protect the integrity, continuous operation, redundancy and security of their IT Systems and Data reasonably consistent with industry standards and practices, or as required by applicable regulatory standards, except with respect to clauses (A) and (B), for any such security breach, unauthorized access or disclosure, as would not, individually or in the aggregate, have a Material Adverse Effect, or with respect to clause (C), where the failure to do so would not, individually or in the aggregate, have a Material Adverse Effect. The Company and the Significant Subsidiaries are presently in compliance with all applicable laws or statutes and all judgments, orders, rules and regulations of any Governmental Entity, internal policies and contractual obligations relating to the privacy and security of IT Systems and Data and to the protection of such IT Systems and Data from unauthorized use, access, misappropriation or modification, except for such non-compliance that would not result in a Material Adverse Effect. (37) Disclosure Controls and Procedures; Internal Controls. The Company and the Significant Subsidiaries have established and maintain disclosure controls and procedures (as such term is defined in Rule 13a-15 and 15d-15 under the Exchange Act);
US-LEGAL-13226288/2 181281-0001 14 such disclosure controls and procedures are designed to ensure that material information relating to the Company and the Significant Subsidiaries is made known to the Company’s Chief Executive Officer and its Chief Financial Officer by others within those entities, and such disclosure controls and procedures are effective to perform the functions for which they were established; the Company’s auditors and the Audit Committee of the Board of Directors have been advised of: (i) any significant deficiencies in the design or operation of internal controls which could adversely affect the Company’s ability to record, process, summarize, and report financial data; and (ii) any fraud, whether or not material, that involves management or other employees of the Company who have a role in the Company’s internal controls and any fraud that is material or known to the Company that involves persons other than management or employees of the Company who have a role in the Company’s internal controls; any material weakness or other material significant deficiency in internal controls have been identified for the Company’s auditors and disclosed in the Registration Statement and the Prospectus; and since the date of the most recent evaluation of such disclosure controls and procedures, there have been no significant changes in internal controls or in other factors that could significantly affect internal controls, including any corrective actions with regard to any material weakness or significant deficiency. (38) Sarbanes-Oxley Act. The Company and the Subsidiaries and any of the officers, trustees and directors of the Company and any of the Subsidiaries, in their capacities as such, are in compliance in all material respects with the provisions of the Sarbanes-Oxley Act which are applicable to them. (39) Regulatory Agreements. Except as described in the Registration Statement and the Prospectus or except as would not reasonably be expected to result in a Material Adverse Effect, neither the Company nor any of its Subsidiaries is subject or is party to, or has received any notice or advice that any of them may become subject or party to any investigation with respect to, any suspension or cease-and-desist order, agreement, consent agreement, memorandum of understanding or other regulatory enforcement action, proceeding or order with or by, or is a party to any commitment letter or similar undertaking to, or is subject to any directive by, or has been a recipient of any supervisory letter from, or has adopted any board resolutions at the request of, any Regulatory Agency (as defined below) that currently restricts in any material respect the conduct of their business or their capital adequacy, credit policies or management and applicable to the Company or its subsidiaries specifically rather than to banks and bank holding companies generally (each, a “Regulatory Agreement”), nor has the Company or any of its subsidiaries been advised by any Regulatory Agency that it is considering issuing or requesting any such Regulatory Agreement. Except as described in the Registration Statement and the Prospectus, the Company and its subsidiaries are each in substantial compliance with all Regulatory Agreements, and to the Company’s knowledge there is no unresolved violation or exception by any Regulatory Agency with respect to any report or statement relating to any examinations of the Company or any of its subsidiaries which, in the reasonable judgment of the Company, is expected to result in a Material Adverse Effect. As used herein, the term “Regulatory Agency” means any Governmental Entity having supervisory or regulatory authority with respect to the Company or any of its subsidiaries, including, but not limited to, any federal or state agency charged with the supervision or regulation of depositary institutions or holding companies of depositary institutions, or engaged in the insurance of depositary institution deposits. (40) Regulatory Compliance. Except as disclosed in each of the Registration Statement and the Prospectus and except as would not, individually or in the aggregate, US-LEGAL-13226288/2 181281-0001 15 result in a Material Adverse Effect, the Company and its subsidiaries are currently conducting their respective businesses in compliance in all material respects with all federal, state, and foreign statutes, laws, rules, regulations, decisions, directives and orders applicable to them (including, without limitation, all regulations and orders of, or agreements with, the Federal Reserve Board, the Office of the Comptroller of the Currency and the FDIC, the Equal Credit Opportunity Act, the Fair Housing Act, the Community Reinvestment Act, the Home Mortgage Disclosure Act, all other applicable fair lending laws and the Bank Secrecy Act and Title III of the USA Patriot Act), and neither the Company nor any of its subsidiaries has received any written, or to the Company’s knowledge, oral communication from any Governmental Entity asserting that the Company or any of its subsidiaries is not currently in compliance with any such statute, law, rule, regulation, decision, directive or order. (41) Regulatory Enforcement Matters. Other than as set forth in each of the Registration Statement and the Prospectus, there are no legal or governmental actions, suits, investigations or proceedings before or by any Governmental Entity, or to the Company’s knowledge now pending or threatened or contemplated by Governmental Entities or threatened by others, to which the Company or any of its subsidiaries is a party or of which any property or asset of the Company or any of its subsidiaries is the subject (A) that are required to be disclosed in the Registration Statement by the Securities Act or by the rules and regulations of the Commission thereunder and not disclosed therein or (B) which would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; and there are no contracts or documents of the Company or any of its subsidiaries that are required to be described in the Registration Statement or to be filed as exhibits thereto by the Securities Act or by the rules and regulations of the Commission thereunder which have not been so described and filed. (42) Compliance with Anti-Money Laundering Laws. The operations of the Company and its Subsidiaries are in compliance in all material respects with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the anti-money laundering statutes of all jurisdictions to which the Company or its Subsidiaries is subject, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any Governmental Entity having jurisdiction over the Company or either of its Subsidiaries (collectively, the “Anti-Money Laundering Laws”), and no action, suit or proceeding by or before any Governmental Entity involving the Company or any of its Subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Company, threatened. The Company and its Subsidiaries and, to the knowledge of the Company, their respective affiliates, have conducted their businesses in compliance in all material respects with applicable anti-corruption laws and have instituted and maintain and will continue to maintain policies and procedures designed to promote and achieve compliance with such laws in all material respects. (43) Compliance with OFAC. None of the Company, any of the Subsidiaries or nor, to the knowledge of the Company, any officer or director of either the Company or any Subsidiary, any agent, employee, affiliate or person acting on behalf of the Company or any of the Subsidiaries is or has been (A) engaged in any services (including financial services), transfers of goods, software, or technology, or any other business activity related to (i) Cuba, Iran, North Korea, Syria, Crimea, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, and the Kherson and Zaporizhzhia regions of Ukraine or any other country or territory that is, or whose government is, the subject of Sanctions that broadly prohibit dealings with that country or territory (collectively, US-LEGAL-13226288/2 181281-0001 16 “Sanctioned Countries” and each, a “Sanctioned Country”), (ii) the government of any Sanctioned Country, (iii) any person, entity or organization located in, resident in, formed under the laws of, or owned or controlled by the government of, any Sanctioned Country, or (iv) any person, entity or organization made subject of any sanctions administered or enforced by the United States Government, including, without limitation, the list of Specially Designated Nationals of the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”), or by the United Nations Security Council, the European Union, His Majesty’s Treasury, or other relevant sanctions authority (collectively, “Sanctions”) and the Company will not directly or indirectly use the proceeds of the offering of the Securities, or lend, contribute or otherwise make available such proceeds to any Subsidiary, or any joint venture partner or other person or entity, for the purpose of financing the activities of or business with any person, or in any country or territory, that currently is the subject or target of any U.S. sanctions administered by OFAC or in any other manner that will result in a violation by any person (including any person participating in the transaction whether as underwriter, advisor, investor or otherwise) of U.S. sanctions administered by OFAC; (B) engaged in any transfers of goods, technologies or services (including financial services) that may assist the governments of Sanctioned Countries or facilitate money laundering or other activities proscribed by United States laws, rules or regulations; (C) is a person, entity or organization currently the subject of any Sanctions; or (D) located, organized or resident in any Sanctioned Country. The information contained in the Registration Statement, the Prospectus and any Issuer- Represented Free Writing Prospectus that constitutes “forward-looking” information within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange Act were made by the Company on a reasonable basis and reflect the Company’s good faith belief or estimate of the matters described therein. (45) No Other Representations. Except for the representations and warranties contained in this Section 5 of this Agreement or in a certificate described in Section 5(c), neither the Company nor any affiliate has made and does not make any other express or implied representation or warranty, either written or oral, including any representation or warranty as to the accuracy or completeness of any information regarding the Company or its affiliates made available to the Distribution Agents and their representatives (including any information, documents or material delivered to the Distribution Agents or made available to the Distribution Agents in a virtual data room, management presentations or in any other form in expectation of any Placements) or as to the future revenue, profitability or success of the Company or its affiliates, or any representation or warranty arising from statute or otherwise in law. (b) Certificates. Any certificate signed by any officer of the Company delivered to the Distribution Agents or to Agent Counsel (as defined below) shall be deemed a representation and warranty by the Company to the Distribution Agents as to the matters covered thereby. SECTION 6. Sale and Delivery to Designated Distribution Agent; Settlement. (a) Sale of Placement Shares. On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, upon KBW’s acceptance of the terms of a Placement Notice or upon receipt by KBW of an Acceptance, as the case may be, and unless the sale of the Placement Shares described therein has been declined, suspended, or otherwise terminated in accordance with the terms of this Agreement, the Designated Distribution Agent, for the period specified in the Placement Notice, will use its commercially reasonable efforts consistent with its normal trading and sales practices to sell such Placement Shares at prevailing US-LEGAL-13226288/2 181281-0001 17 market prices up to the amount specified, and otherwise in accordance with the terms of such Placement Notice. The Company acknowledges and agrees that (i) there can be no assurance that the Designated Distribution Agent will be successful in selling Placement Shares, (ii) the Designated Distribution Agent will incur no liability or obligation to the Company or any other person or entity if it does not sell Placement Shares for any reason other than a failure by the Designated Distribution Agent to use its commercially reasonable efforts consistent with its normal trading and sales practices to sell such Placement Shares as required under this Section 6 and (iii) the Distribution Agents shall be under no obligation to purchase Placement Shares on a principal basis pursuant to this Agreement, except as otherwise agreed by the Designated Distribution Agent in the Placement Notice. (b) Settlement of Placement Shares. Unless otherwise specified in the applicable Placement Notice, settlement for sales of Placement Shares will occur on the first (1st) Trading Day (or such earlier day as is industry practice for regular-way trading) following the date on which such sales are made (each, a “Settlement Date”). The amount of proceeds to be delivered to the Company on a Settlement Date against receipt of the Placement Shares sold (the “Net Proceeds”) will be equal to the aggregate offering price received by the Designated Distribution Agent at which such Placement Shares were sold, after deduction for (i) the Designated Distribution Agent’s commission, discount or other compensation for such sales payable by the Company pursuant to Section 2 hereof, and (ii) any transaction fees imposed by any governmental or self-regulatory organization in respect of such sales that are not otherwise paid by the Company. (c) Delivery of Placement Shares. On or before each Settlement Date, concurrently with the receipt by the Company of the Net Proceeds due to the Company in respect of such Settlement Date, the Company will, or will cause its transfer agent to, electronically transfer the Placement Shares being sold by crediting the Designated Distribution Agent’s or its designee’s account (provided the Designated Distribution Agent shall have given the Company written notice of such designee prior to the Settlement Date) at The Depository Trust Company through its Deposit and Withdrawal at Custodian System or by such other means of delivery as may be mutually agreed upon by the parties hereto which in all cases shall be freely tradable, transferable, registered shares in good deliverable form. On each Settlement Date, the Designated Distribution Agent will deliver the related Net Proceeds in same day funds to an account designated by the Company on or prior to the Settlement Date. The Company agrees that if the Company, or its transfer agent (if applicable), defaults in its obligation to deliver Placement Shares on a Settlement Date, the Company agrees that in addition to and in no way limiting the rights and obligations set forth in Section 10(a) and Section 11 hereto, it will (i) hold the Designated Distribution Agent harmless against any loss, liability, claim, damage, or expense whatsoever (including reasonable legal fees and expenses), as incurred, arising out of or in connection with such default by the Company or its transfer agent (if applicable) and (ii) pay to the Designated Distribution Agent any commission, discount, or other compensation to which it would otherwise have been entitled absent such default. (d) Denominations; Registration. The Placement Shares shall be in such denominations and registered in such names as the Designated Distribution Agent may request in writing at least one (1) full business day before the Settlement Date. The Company shall deliver the Placement Shares, if any, through the facilities of The Depository Trust Company unless the Designated Distribution Agent shall otherwise instruct. (e) Limitations on Offering Size. Under no circumstances shall the Company cause or request the offer or sale of any Placement Shares, if after giving effect to the sale of such Placement Shares, the aggregate offering price of the Placement Shares sold pursuant to this Agreement would exceed the lesser of (A) the Maximum Amount and (B) the amount authorized from time to time
US-LEGAL-13226288/2 181281-0001 18 to be issued and sold under this Agreement by the Company and notified to the Designated Distribution Agent in writing. Under no circumstances shall the Company cause or request the offer or sale of any Placement Shares pursuant to this Agreement at a price lower than the minimum price authorized from time to time by the Company and notified to the Designated Distribution Agent in writing. Further, under no circumstances shall the aggregate offering price of Placement Shares sold pursuant to this Agreement, including any separate underwriting or similar agreement covering principal transactions described in Section 1 of this Agreement, exceed the Maximum Amount. (f) Limitations on Sales. Notwithstanding any other provision of this Agreement, the Company shall not offer, sell or deliver, or request the offer or sale of, any Placement Shares under this Agreement and, by notice to the Designated Distribution Agent given by telephone (confirmed promptly by email), shall cancel any instructions for the offer or sale of any Placement Shares, and the Designated Distribution Agent shall not be obligated to offer or sell any Placement Shares, (i) during any period in which the Company is in possession of material non-public information or (ii) except as provided in Section 6(g) below, at any time from and including the date (each, an “Announcement Date”) on which the Company has issued a press release containing, or has otherwise publicly announced, its earnings, revenues or other results of operations (each, an “Earnings Announcement”) through and including the time that is 24 hours after the time that the Company files (which 24-hour period shall commence when the Company receives a notice of acceptance of a submission from EDGAR) (a “Filing Time”) a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K that includes consolidated financial statements as of and for the same period or periods, as the case may be, covered by such Earnings Announcement. (g) Earnings 8-K. If the Company wishes to offer, sell or deliver Placement Shares at any time during the period from and including an Announcement Date through and including the time that is 24 hours after the corresponding Filing Time, the Company shall (i) prepare and deliver to the Distribution Agents (with a copy to Agent Counsel) a Current Report on Form 8-K which shall include substantially the same financial and related information as was set forth in the relevant Earnings Announcement (other than any earnings projections, similar forward-looking data and officers’ quotations) (each, an “Earnings 8-K”), in form and substance reasonably satisfactory to the Distribution Agents, (ii) provide the Distribution Agents with the officers’ certificate, opinions/letters of counsel and accountants’ letter called for by Section 7(o), (p), (q) and (r) hereof; respectively, (iii) afford the Distribution Agents the opportunity to conduct a due diligence review in accordance with Section 7(m) hereof and (iv) file such Earnings 8-K with the Commission, then the provisions of clause (ii) of Section 6(f) shall not be applicable for the period from and after the time at which the foregoing conditions shall have been satisfied (or, if later, the time that is 24 hours after the time that the relevant Earnings Announcement was first publicly released) through and including the time that is 24 hours after the Filing Time of the relevant Quarterly Report on Form 10-Q or Annual Report on Form 10-K under the Exchange Act, as the case may be. For purposes of clarity, the parties hereto agree that (A) the delivery of any officers’ certificate, opinions/letters of counsel and accountants’ letter pursuant to this (f) shall not relieve the Company from any of its obligations under this Agreement with respect to any Quarterly Report on Form 10- Q or Annual Report on Form 10-K, as the case may be, including, without limitation, the obligation to deliver officers’ certificates, opinions/letters of counsel and accountants’ letters as provided in Section 7 hereof and (B) this Section 6(g) shall in no way affect or limit the operation of the provisions of clauses (i) and (ii) of Section 6(f), which shall have independent application. (h) Alternative Arrangements. If the Company wishes to issue and sell the Placement Shares other than as set forth in Section 6 of this Agreement (an “Alternative Placement”), it will notify the Designated Distribution Agent of the proposed terms of such Alternative Placement. If the Designated Distribution Agent, acting as principal or agent, wishes to accept such proposed US-LEGAL-13226288/2 181281-0001 19 terms (which it may decline to do for any reason in its sole discretion) or, following discussions with the Company wishes to accept amended terms, the Designated Distribution Agent and the Company will enter into a terms agreement, setting forth the terms of such Alternative Placement. The terms set forth in such terms agreement will not be binding on the Company or the Designated Distribution Agent unless and until the Company and the Designated Distribution Agent have each executed such terms agreement accepting all of the terms of such terms agreement. In the event of a conflict between the terms of this Agreement and the terms of a terms agreement, the terms of such terms agreement will control. (i) Sales Through Distribution Agents. The Company agrees that any offer to sell, any solicitation of an offer to buy, or any sales of Placement Shares or any other equity security of the Company shall only be effected by or through one (1) Distribution Agent on any single given date, and in no event shall more than one (1) Distribution Agent sell Placement Shares on the same day; provided however, that (i) the foregoing limitation shall not apply to (A) exercise of any option, warrant, right or any conversion privilege set forth in the instruction governing such securities, (B) sales solely to employees, directors or security holders of the Company or its subsidiaries, or to a trustee or other person acquiring such securities for the accounts of such person and (ii) such limitation shall not apply (A) on any day during which no sales are made pursuant to this Agreement or (B) during a period in which the Company has notified the Distribution Agents that it will not sell Placement Shares under this Agreement and (1) no Placement Notice is pending or (2) after a Placement Notice Withdrawal. (j) Trading by Distribution Agents. The Company consents to the Distribution Agents trading Common Stock for the Distribution Agents’ own accounts and for the accounts of their respective clients at the same time as sale of the Placement Shares occur pursuant to this Agreement. (k) Affirmation of Representations, Warranties and Covenants. At each Applicable Time, each date that Placement Shares are sold or delivered to a Distribution Agent, each date that the Registration Statement or Prospectus is amended or supplemented, the Company shall be deemed to have affirmed each representation, warranty, covenant and other agreement contained in this Agreement. SECTION 7. Covenants of the Company. The Company covenants with the Distribution Agents as follows: (a) Registration Statement Amendments. The Company shall prepare the Prospectus in a form approved by the Distribution Agent and to file such Prospectus pursuant to Rule 424(b) under the Securities Act on or prior to the date that is one (1) business day following the date hereof unless otherwise agreed to by the Distribution Agents. Other than a prospectus filed under the Registration Statement which does not pertain to the offer or sale of the Placement Shares, after the date of this Agreement and during any period in which a Prospectus relating to any Placement Shares is required to be delivered by the Distribution Agents under the Securities Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), (i) the Company will notify Distribution Agents promptly of the time when any subsequent amendment to the Registration Statement, other than documents incorporated by reference, has been filed with the Commission and/or has become effective or any subsequent supplement to the Prospectus has been filed and of any comment letter from the Commission or any request by the Commission for any amendment or supplement to the Registration Statement or Prospectus or for additional information; (ii) the Company will prepare and file with the Commission, promptly upon a Distribution Agent’s request, any amendments or supplements to the Registration Statement or Prospectus that, in a Distribution Agent’s reasonable opinion, may be necessary or advisable in connection with the distribution of the Placement Shares by a Distribution Agent (provided, US-LEGAL-13226288/2 181281-0001 20 however, that the failure of a Distribution Agent to make such request shall not relieve the Company of any obligation or liability hereunder, or affect a Distribution Agent’s right to rely on the representations and warranties made by the Company in this Agreement); (iii) the Company will not file any amendment or supplement to the Registration Statement or Prospectus, other than documents incorporated by reference, relating to the Placement Shares or a security convertible into the Placement Shares unless a copy thereof has been submitted to the Distribution Agents within a reasonable period of time before the filing and the Distribution Agents have not reasonably objected thereto (provided, however, that the failure of a Distribution Agent to make such objection shall not relieve the Company of any obligation or liability hereunder, or affect the Distribution Agent’s right to rely on the representations and warranties made by the Company in this Agreement) and the Company will furnish to the Distribution Agents at the time of filing thereof a copy of any document that upon filing is deemed to be incorporated by reference into the Registration Statement or Prospectus, except for those documents available via EDGAR; and (iv) the Company will cause each amendment or supplement to the Prospectus, other than documents incorporated by reference, to be filed with the Commission as required pursuant to the applicable paragraph of Rule 424(b) (without reliance on Rule 424(b)(8)). (b) Notice of Commission Stop Orders. The Company will advise the Distribution Agents, promptly after it receives notice or obtains knowledge thereof, of the issuance or threatened issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any other order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus, or of the suspension of the qualification of the Placement Shares for offering or sale in any jurisdiction or of the loss or suspension of any exemption from any such qualification, or of the initiation or threatening of any proceedings for any of such purposes, or of any examination pursuant to Section 8(e) of the Securities Act concerning the Registration Statement or if the Company becomes the subject of a proceeding under Section 8A of the Securities Act in connection with the offering of the Placement Shares. The Company will make every reasonable effort to prevent the issuance of any stop order, the suspension of any qualification of the Placement Shares for offering or sale and any loss or suspension of any exemption from any such qualification, and if any such stop order is issued or any such suspension or loss occurs, to obtain the lifting thereof at the earliest possible moment. (c) Delivery of Registration Statement and Prospectus. The Company will furnish to the Distribution Agents and Agent Counsel (at the expense of the Company) copies of the Registration Statement, the Prospectus (including all documents incorporated by reference therein) and all amendments and supplements to the Registration Statement or Prospectus, and any Issuer Free Writing Prospectuses, that are filed with the Commission during any period in which a Prospectus relating to the Placement Shares is required to be delivered under the Securities Act, in each case as soon as reasonably practicable and in such quantities and at such locations as the Distribution Agents may from time to time reasonably request; provided, however, that the Company shall not be required to furnish any document (other than the Prospectus) to the Distribution Agents to the extent such document is available on EDGAR. The copies of the Registration Statement and the Prospectus and any supplements or amendments thereto furnished to the Distribution Agents will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T. (d) Continued Compliance with Securities Laws. If at any time when a Prospectus is required by the Securities Act or the Exchange Act to be delivered in connection with a pending sale of the Placement Shares (including, without limitation, pursuant to Rule 172 or 173(d)), any event shall occur or condition shall exist as a result of which it is necessary, in the opinion of Agent Counsel or Company Counsel (as defined below), to amend the Registration Statement or amend or supplement the Prospectus in order that the Prospectus will not include any untrue statement of US-LEGAL-13226288/2 181281-0001 21 a material fact or omit to state a material fact necessary in order to make the statements therein not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the opinion of such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the Securities Act, the Company will promptly notify the Distribution Agents to suspend the offering of Placement Shares during such period and the Company will promptly prepare and file with the Commission such amendment or supplement as may be necessary to correct such statement or omission or to make the Registration Statement or the Prospectus comply with such requirements, and the Company will furnish to the Distribution Agents such number of copies of such amendment or supplement as the Distribution Agents may reasonably request. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted, conflicts or would conflict with the information contained in the Registration Statement or the Prospectus or included, includes or would include an untrue statement of a material fact or omitted, omits or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances prevailing at that subsequent time, not misleading, the Company will promptly notify the Distribution Agents to suspend the offering of Placement Shares during such period and the Company will, subject to Section 7(a) hereof, promptly amend or supplement such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission. (e) Blue Sky and Other Qualifications. The Company will use its best efforts, in cooperation with and at the reasonable request of the Distribution Agents, to qualify the Placement Shares for offering and sale, or to obtain an exemption for the Placement Shares to be offered and sold, under the applicable securities laws of such states and other jurisdictions (domestic or foreign) as the Distribution Agents may designate and to maintain such qualifications and exemptions in effect for so long as required for the distribution of the Placement Shares (but in no event for less than one (1) year from the date of this Agreement); provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject. In each jurisdiction in which the Placement Shares have been so qualified or exempt, the Company will file such statements and reports as may be required by the laws of such jurisdiction to continue such qualification or exemption, as the case may be, in effect for so long as required for the distribution of the Placement Shares (but in no event for less than one (1) year from the date of this Agreement). (f) Rule 158. The Company will timely file such reports pursuant to the Exchange Act as are necessary in order to make generally available to its securityholders as soon as practicable an earnings statement for the purposes of, and to provide to the Distribution Agents the benefits contemplated by, the last paragraph of Section 11(a) of the Securities Act. (g) Use of Proceeds. The Company will use the Net Proceeds received by it from the sale of the Placement Shares in the manner specified in the Prospectus under “Use of Proceeds.” (h) Listing. During any period in which the Prospectus relating to the Placement Shares is required to be delivered by the Distribution Agents under the Securities Act with respect to a pending sale of the Placement Shares (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), the Company will use its commercially reasonable efforts to cause the Placement Shares to be listed on NYSE.
US-LEGAL-13226288/2 181281-0001 22 (i) Filings with NYSE. The Company will timely file with NYSE all material documents and notices required by NYSE of companies that have or will issue securities that are traded on NYSE. (j) Reporting Requirements. The Company, during any period when the Prospectus is required to be delivered under the Securities Act and the Exchange Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act), will file all documents required to be filed with the Commission pursuant to the Exchange Act within the time periods required by the Exchange Act. (k) No Other Sales. During any time that a Placement Notice is pending and is not the subject of a Placement Notice Withdrawal, the Company will not sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to sell, exchange or otherwise dispose of or agree to dispose of, directly or indirectly, any shares of the Common Stock or securities convertible into or exchangeable for exercisable for the Common Stock or warrants or other rights to purchase the Common Stock or any other securities of the Company that are substantially similar to the Common Stock or permit the registration under the Securities Act of any shares of the Common Stock, except for (A) the registration of the Placement Shares and the sales through the Distribution Agents pursuant to this Agreement, (B) any shares of Common Stock issued by the Company upon the exercise of an option or warrant or the conversion of a security outstanding on the date hereof and referred to in the Prospectus, (C) any shares of Common Stock issued or options to purchase Common Stock granted pursuant to existing equity incentive or employee benefit plans of the Company or (D) any shares of Common Stock issued pursuant to any non-employee director stock plan, dividend reinvestment plan or stock purchase plan of the Company. (l) Change of Circumstances. The Company will, at any time during a Calendar Quarter in which the Company intends to tender a Placement Notice or sell Placement Shares, advise the Distribution Agents promptly after it shall have received notice or obtained knowledge of any information or fact that would alter or affect in any material respect any opinion, certificate, letter or other document provided to the Distribution Agents pursuant to this Agreement as of the date such item was furnished to the Distribution Agents. (m) Due Diligence Cooperation. During the term of this Agreement, the Company will cooperate with any reasonable due diligence review conducted by the Distribution Agents or its agents in connection with the transactions contemplated hereby, including, without limitation, providing information and making available documents and senior officers, during regular business hours and at the Company’s principal offices, as the Distribution Agents may reasonably request. (n) Disclosure of Sales. For any Calendar Quarter during which the Company sells Placement Shares to or through the Distribution Agents pursuant to this Agreement, the Company will disclose in its Quarterly Report on Form 10-Q or Annual Report on Form 10-K covering such Calendar Quarter, as applicable, the number of Placement Shares sold through the Distribution Agents, the Net Proceeds to the Company and the compensation payable by the Company to the Distribution Agents with respect to such Placement Shares. (o) Representation Dates; Certificates. On or prior to the date that the first Placement Shares are sold pursuant to the terms of this Agreement, each time Placement Shares are delivered to a Distribution Agent as principal on a Settlement Date and: (1) each time the Company: (i) files the Prospectus relating to the Placement Shares or amends or supplements the Registration Statement or the Prospectus relating US-LEGAL-13226288/2 181281-0001 23 to the Placement Shares by means of a post-effective amendment, sticker, or supplement but not by means of incorporation of documents by reference into the Registration Statement or the Prospectus relating to the Placement Shares; (ii) files an Annual Report on Form 10-K under the Exchange Act; (iii) files a Quarterly Report on Form 10-Q under the Exchange Act; or (iv) files a Current Report on Form 8-K containing amended financial information (other than an Earnings Announcement, to “furnish” information pursuant to Item 2.02 or 7.01 of Form 8-K or to provide disclosure pursuant to Item 8.01 of Form 8-K relating to the reclassifications of certain properties as discontinued operations in accordance with Statement of Financial Accounting Standards No. 144) under the Exchange Act; and (2) at any other time reasonably requested by a Distribution Agent (each such date of filing of one (1) or more of the documents referred to in clauses (1)(i) through (iv) and any time of request pursuant to this Section 7(o) shall be a “Representation Date”), the Company shall furnish the Distribution Agent with a certificate, in the form attached hereto as Exhibit E, as promptly as possible and in no event later than two (2) Trading Days of any Representation Date. The requirement to provide a certificate under this Section 7(o) shall be waived for any Representation Date occurring at a time at which no Placement Notice is pending, which waiver shall continue until the earlier to occur of the date the Company delivers a Placement Notice hereunder (which for such Calendar Quarter shall be considered a Representation Date) and the next occurring Representation Date; provided, however, that such waiver shall not apply for any Representation Date on which the Company files its Annual Report on Form 10-K. Notwithstanding the foregoing, if the Company subsequently decides to sell Placement Shares following a Representation Date when the Company relied on such waiver and did not provide a Distribution Agent with a certificate under this Section 7(o), then before the Company delivers the Placement Notice or a Distribution Agent sells any Placement Shares, the Company shall provide the Designated Distribution Agent with a certificate, in the form attached hereto as Exhibit E, dated the date of the Placement Notice. (p) Company Counsel Legal Opinions. On or prior to the date that the first Placement Shares are sold pursuant to the terms of this Agreement and each time Placement Shares are delivered to a Distribution Agent as principal on a Settlement Date, as promptly as possible and in no event later than three (3) Trading Days of each Representation Date with respect to which the Company is obligated to deliver a certificate in the form attached hereto as Exhibit E for which no waiver is applicable, the Company shall cause to be furnished to the Distribution Agents written opinions of Thompson Coburn LLP or other counsel satisfactory to the Distribution Agents (“Company Counsel”), in form and substance satisfactory to the Distribution Agents and Agent Counsel, substantially similar to the forms attached hereto as Exhibit D, modified, as necessary, to relate to the Registration Statement and the Prospectus as then amended or supplemented; provided, however, that in lieu of such opinions for subsequent Representation Dates, Company Counsel may furnish the Distribution Agents with a letter (a “Reliance Letter”) to the effect that the Distribution Agents may rely on a prior opinion delivered under this Section 7(p) to the same extent as if it were dated the date of such letter (except that statements in such prior opinion shall be deemed to relate US-LEGAL-13226288/2 181281-0001 24 to the Registration Statement and the Prospectus as amended or supplemented at such Representation Date). (q) Distribution Agent Counsel Legal Opinion. On or prior to the date that the first Placement Shares are sold pursuant to the terms of this Agreement and each time Placement Shares are delivered to a Distribution Agent as principal on a Settlement Date, as promptly as possible and in no event later than two (2) Trading Days of each Representation Date with respect to which the Company is obligated to deliver a certificate in the form attached hereto as Exhibit E for which no waiver is applicable, the Distribution Agents shall have received the favorable opinion of Freshfields US LLP or other counsel satisfactory to the Distribution Agents (“Agent Counsel”), in customary form and substance satisfactory to the Distribution Agents, and the Company shall have furnished to Agent Counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters. (r) Comfort Letter. On or prior to the date that the first Placement Shares are sold pursuant to the terms of this Agreement and each time Placement Shares are delivered to a Distribution Agent as principal on a Settlement Date, as promptly as possible and in no event later than three (3) Trading Days of each Representation Date with respect to which the Company is obligated to deliver a certificate in the form attached hereto as Exhibit E for which no waiver is applicable, the Company shall cause its independent accountants to furnish the Distribution Agents a letter (a “Comfort Letter”), in form and substance satisfactory to the Distribution Agents, (i) confirming that they are an independent registered public accounting firm within the meaning of the Securities Act, the Exchange Act and the PCAOB, (ii) stating, as of such date, the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings (the first such letter, the “Initial Comfort Letter”) and (iii) updating the Initial Comfort Letter with any information that would have been included in the Initial Comfort Letter had it been given on such date and modified as necessary to relate to the Registration Statement and the Prospectus, as amended and supplemented to the date of such letter and the nature of the filings incorporated by reference. (s) Insurance. The Company and the Subsidiaries shall maintain, or cause to be maintained, insurance in such amounts and covering such risks as is reasonable and customary for companies engaged in similar businesses in similar industries. (t) Compliance with Laws. The Company and the Subsidiaries shall maintain, or cause to be maintained, all material environmental permits, licenses and other authorizations required by federal, state and local law in order to conduct their businesses as described in the Prospectus, and the Company and each of the Subsidiaries shall conduct their businesses, or cause their businesses to be conducted, in substantial compliance with such permits, licenses and authorizations and with applicable Environmental Laws, except where the failure to maintain or be in compliance with such permits, licenses and authorizations could not reasonably be expected to have a Material Adverse Effect. (u) Investment Company Act. The Company will conduct its affairs in such a manner so as to reasonably ensure that neither of the Company nor any of the Subsidiaries will be or become, at any time prior to the termination of this Agreement, required to register as an “investment company,” as such term is defined in the Investment Company Act, assuming no change in the Commission’s current interpretation as to entities that are not considered an investment company. US-LEGAL-13226288/2 181281-0001 25 (w) Securities Act and Exchange Act. The Company will use its best efforts to comply with all requirements imposed upon it by the Securities Act and the Exchange Act as from time to time in force, so far as necessary to permit the continuance of sales of, or dealings in, the Placement Shares as contemplated by the provisions hereof and the Prospectus. (x) No Offer to Sell. Other than a free writing prospectus (as defined in Rule 405 under the Securities Act) approved in advance in writing by the Company and the Distribution Agents in their respective capacities as a principal or an agent hereunder, the Company (including its agents and representatives, other than Distribution Agents in their capacity as such) will not, directly or indirectly, make, use, prepare, authorize, approve or refer to any free writing prospectus relating to the Placement Shares to be sold by the Distribution Agents as principal or agent hereunder. (y) Renewal of Registration Statement. The date of this Agreement is not more than three (3) years subsequent to the initial effective date of the Registration Statement (the “Renewal Date”). If, immediately prior to the third anniversary of the Renewal Date, this Agreement has not terminated and a prospectus is required to be delivered or made available by the Distribution Agents under the Securities Act or the Exchange Act in connection with the sale of such Placement Shares, the Company will, prior to the Renewal Date, file, if it has not already done so, a new shelf registration statement or, if applicable, an automatic shelf registration statement relating to such Placement Shares, and, if such registration statement is not an automatic shelf registration statement, will use its best efforts to cause such registration statement to be declared effective within 180 days after the Renewal Date, and will take all other reasonable actions necessary or appropriate to permit the public offer and sale of such Placement Shares to continue as contemplated in the expired registration statement relating to such Placement Shares. References herein to the “Registration Statement” shall include such new shelf registration statement or automatic shelf registration statement, as the case may be.Rights to Refuse Purchase. If, to the knowledge of the Company, all filings required by Rule 424 in connection with the offering of the Placement Shares shall not have been made or the representations and warranties of the Company in Section 5 hereof shall not be true and correct on any applicable Settlement Date, the Company will offer to any person who has agreed to purchase Placement Shares from the Company as a result of an offer to purchase solicited by a Distribution Agent the right to refuse to purchase and pay for such Placement Shares. SECTION 8. Payment of Expenses. (a) Expenses. The Company will pay all expenses incident to the performance of its obligations under this Agreement, including (i) the preparation, printing and filing of the Registration Statement (including financial statements and exhibits) as originally filed and of each amendment and supplement thereto, (ii) the word processing, printing and delivery to the Distribution Agents of this Agreement and such other documents as may be required in connection with the offering, purchase, sale, issuance or delivery of the Placement Shares, (iii) the preparation, issuance and delivery of the certificates for the Placement Shares to the Distribution Agents, including any stock or other transfer taxes and any capital duties, stamp duties or other duties or taxes payable upon the sale, issuance or delivery of the Placement Shares to the Distribution Agents, (iv) the fees and disbursements of the counsel, accountants and other advisors to the Company, (v) the qualification or exemption of the Placement Shares under securities laws in accordance with the provisions of Section 7(e) hereof, including filing fees in connection therewith and in connection with the preparation of a state securities law or “blue sky” survey and any supplements thereto, (vi) the printing and delivery to the Distribution Agents of copies of any Permitted Free Writing Prospectus and the Prospectus and any amendments or supplements thereto and any costs associated with electronic delivery of any of the foregoing by the Distribution Agents to investors, (vii) the preparation, printing and delivery to the Distribution Agents of copies of the
US-LEGAL-13226288/2 181281-0001 26 Blue Sky survey and any Canadian “wrapper” (if applicable) and any supplements thereto, (viii) the fees and expenses of the custodian and the transfer agent and registrar for the Placement Shares, (ix) the filing fees incident to, the review by FINRA of the terms of the sale of the Placement Shares, and (x) the fees and expenses incurred in connection with the listing of the Placement Shares on NYSE. (b) Payment of Expenses. KBW, on behalf of the Distribution Agents, shall submit monthly invoices to the Company for all amounts payable pursuant to Section 8(a) hereof, which submission shall include documentation of such amounts with reasonable detail. Such invoices shall be due and payable by the Company within five (5) business days of submission. SECTION 9. Conditions of the Distribution Agents’ Obligations. The obligations of the Distribution Agents hereunder with respect to a Placement will be subject to the continuing accuracy and completeness of the representations and warranties of the Company contained in this Agreement or in certificates of any officer of the Company or any Subsidiary of the Company delivered pursuant to the provisions hereof, to the performance by the Company of its covenants and other obligations hereunder, and to the following further conditions: (a) Filing of Prospectus. The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act on or prior to the date hereof and the Company shall have complied with all other requirements applicable to the Prospectus or any supplement thereto under Rule 424(b) (without giving effect to Rule 424(b)(8)). The Company shall have complied with all filing requirements applicable to any Issuer Free Writing Prospectus used or referred to after the date hereof. No stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding or examination for such purpose shall have been initiated or threatened by the Commission, any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus (including, without limitation, in any document incorporated by reference therein) or otherwise shall have been complied with, and the Commission shall not have notified the Company of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto. (b) No Material Notices. None of the following events shall have occurred and be continuing: (i) receipt by the Company or any of the Subsidiaries of any request for additional information from the Commission or any other federal or state governmental authority during the period of effectiveness of the Registration Statement, the response to which would require any post- effective amendments or supplements to the Registration Statement or the Prospectus; (ii) the issuance by the Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose; (iii) receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Placement Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; or (iv) the occurrence of any event that makes any material statement made in the Registration Statement or the Prospectus, or any Issuer Free Writing Prospectus, or any material document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in the Registration Statement, related Prospectus, or any Issuer Free Writing Prospectus, or such documents so that, in the case of the Registration Statement, it will not contain any materially untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, that in the case of the Prospectus and any Issuer Free Writing Prospectus, it will not contain any materially untrue statement of a material fact or omit to state any material fact required to be stated therein or US-LEGAL-13226288/2 181281-0001 27 necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. (c) No Misstatement or Material Omission. The Distribution Agents shall not have advised the Company that the Registration Statement or Prospectus, or any Issuer Free Writing Prospectus, or any amendment or supplement thereto, contains an untrue statement of fact that in the Distribution Agents’ opinion is material, or omits to state a fact that in the Distribution Agents’ opinion is material and is required to be stated therein or is necessary to make the statements therein not misleading. (d) Material Changes. Except as contemplated in the Prospectus or disclosed in the Company’s reports filed with the Commission, there shall not have been any Material Adverse Effect. (e) Opinion of Counsel for Company. The Distribution Agents shall have received the favorable opinions of Company Counsel, required to be delivered pursuant to Section 7(p) on or before the date on which such delivery of such opinion is required pursuant to Section 7(p). (f) Opinion of Counsel for Distribution Agents. The Distribution Agents shall have received the favorable opinion of Agent Counsel required to be delivered pursuant to Section 7(q) on or before the date on which the delivery of such opinion is required pursuant to Section 7(q). (g) Representation Certificate. The Distribution Agents shall have received the certificate required to be delivered pursuant to Section 7(o) on or before the date on which delivery of such certificate is required pursuant to Section 7(o). (h) Accountant’s Comfort Letter. The Distribution Agents shall have received the Comfort Letter required to be delivered pursuant to Section 7(r) on or before the date on which such delivery of such Comfort Letter is required pursuant to Section 7(r). (i) Approval for Listing. The Placement Shares shall have been approved for listing, subject to official notice of issuance, on NYSE. (j) No Suspension. Trading in shares of Common Stock shall not have been suspended on NYSE. (k) Additional Documents. On each date on which the Company is required to deliver a certificate pursuant to Section 7(o), the Distribution Agents or Agent Counsel shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Placement Shares as herein contemplated, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, contained in this Agreement. (l) Securities Act Filings Made. All filings with the Commission required by Rule 424 under the Securities Act to have been filed prior to the issuance of any Placement Notice hereunder shall have been made within the applicable time period prescribed for such filing by Rule 424. (m) Termination of Agreement. If any condition specified in this Section 9 shall not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated by the Distribution Agents by notice to the Company, and such termination shall be without liability of any party to any other party except as provided in Section 8 hereof and except that, in the case of any termination of this Agreement, Sections 5, 10, 11, 12 and 21 hereof shall survive such termination and remain in full force and effect (without affecting the date(s) as of which any representations or warranties of the Company are deemed to have been given under Section 5). US-LEGAL-13226288/2 181281-0001 28 SECTION 10. Indemnification. (a) Indemnification by the Company. The Company agrees to indemnify and hold harmless each of the Distribution Agents and each person, if any, who controls a Distribution Agent within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act and any director, officer, employee or affiliate thereof as follows: (i) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading, or arising out of any untrue statement or alleged untrue statement of a material fact included in any Issuer Free Writing Prospectus or the Prospectus (or any amendment or supplement thereto), or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; (ii) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided that (subject to Section 10(d) below) any such settlement is effected with the written consent of the Company; and (iii) against any and all expense whatsoever, as incurred (including the fees and disbursements of counsel chosen by a Distribution Agent), 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, to the extent that any such expense is not paid under (i) or (ii) above, provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished to the Company by or on behalf of a Distribution Agent expressly for use in the Registration Statement (or any amendment thereto), or in any Issuer Free Writing Prospectus or the Prospectus (or any amendment or supplement thereto) (such written information, the “Agent Information”). (b) Indemnification by a Distribution Agent. Each Distribution Agent severally agrees to indemnify and hold harmless the Company and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, and any officer, director, trustee, employee or affiliate thereof, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section 10, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), any Issuer Free Writing Prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Distribution Agent expressly for use therein. (c) Actions against Parties; Notification. Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any action commenced against it in respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying US-LEGAL-13226288/2 181281-0001 29 party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity agreement. In the case of parties indemnified pursuant to Section 10(a) above, counsel to the indemnified parties shall be selected by such Distribution Agent, and, in the case of parties indemnified pursuant to Section 10(b) above, counsel to the indemnified parties shall be selected by the Company. An indemnifying party may participate at its own expense in the defense of any such action; provided, however, that counsel to the indemnifying party shall not (except with the consent of the indemnified party) also be counsel to the indemnified party. In no event shall the indemnifying parties be liable for fees and expenses of more than one (1) counsel (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one (1) 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 10 or Section 11 hereof (whether or not the indemnified parties are actual or potential parties thereto, unless (x) 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 and (y) the indemnifying party confirms in writing its indemnification obligations hereunder with respect to such settlement, compromise or judgment. SECTION 11. Contribution. If the indemnification provided for in Section 10 hereof is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, (i) in such proportion as is appropriate to reflect the relative benefits received by the Company, on the one hand, and such Distribution Agent, on the other hand, from the offering of the Placement 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 Company, on the one hand, and of such Distribution Agent, on the other hand, in connection with the statements or omissions that resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company, on the one hand, and such Distribution Agent, on the other hand, in connection with the offering of the Placement 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 Placement Shares pursuant to this Agreement (before deducting expenses) received by the Company and the total commissions received by such Distribution Agent, in each case as set forth on the cover of the Prospectus, bear to the aggregate public offering price of the Placement Shares as set forth on such cover. The relative fault of the Company, on the one hand, and such Distribution Agent, on the other hand, shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Company or by or on behalf of such Distribution Agent and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
US-LEGAL-13226288/2 181281-0001 30 The Company and such Distribution Agent agree that it would not be just and equitable if contribution pursuant to this Section 11 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 11. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 11 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 11, such Distribution Agent shall not be required to contribute any amount in excess of the amount by which the total price at which the Placement Shares sold through it and distributed to the public were offered to the public exceeds the amount of any damages which such Distribution Agent has otherwise been required to pay by reason of any such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 11, each director, officer, employee or affiliate of such Distribution Agent and each person, if any who controls such Distribution Agent 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 such Distribution Agent, and each trustee of the Company, each officer of the Company who signed the Registration Statement, and each person, if any who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the Company, subject in each case to the preceding two paragraphs. SECTION 12. Representations, Warranties and Agreements to Survive Delivery. All representations, warranties and agreements contained in this Agreement or in certificates of officers of the Company or any Subsidiary of the Company submitted pursuant hereto, shall remain operative and in full force and effect, regardless of any investigation made by or on behalf of such Distribution Agent or controlling person, or by or on behalf of the Company, and shall survive delivery of the Placement Shares to such Distribution Agent. SECTION 13. Termination of Agreement. (a) Termination; General. Each Distribution Agent may terminate its participation in this Agreement by notice to the Company as hereinafter specified at any time (i) if there has been, since the time of execution of this Agreement or since the date as of which information is given in the Prospectus, any Material Adverse Effect with respect to the Company or the Subsidiaries, whether or not arising in the ordinary course of business, or (ii) if there has occurred any material adverse change in the financial markets in the United States or the international financial markets, any outbreak of hostilities or escalation thereof or other calamity or crisis or any change or development involving a prospective change in national or international political, financial or economic conditions, in each case the effect of which is such as to make it, in the judgment of such Distribution Agent, impracticable or inadvisable to market the Placement Shares or to enforce contracts for the sale of the Placement Shares, or (iii) if trading in the Placement Shares has been suspended or limited by the Commission or NYSE, or if trading generally on NYSE American, the Nasdaq Global Market or the Nasdaq Capital Market has been suspended or limited, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices have been required, US-LEGAL-13226288/2 181281-0001 31 by any of said exchanges or by order of the Commission, FINRA or any other governmental authority, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States or in Europe, or (iv) if a banking moratorium has been declared by either Federal or New York authorities. (b) Termination by the Company. Subject to Section 13(f) hereof, the Company shall have the right, by giving one (1) day’s written notice to all other parties as hereinafter specified, to terminate this Agreement in its sole discretion at any time after the date of this Agreement. (c) Termination by a Distribution Agent. Subject to Section 13(f) hereof, KBW shall have the right, by giving one (1) day’s written notice to all other parties as hereinafter specified, to terminate this Agreement in its sole discretion at any time after the date of this Agreement. (d) Automatic Termination. Unless earlier terminated pursuant to this Section 13, this Agreement shall automatically terminate upon the issuance and sale of Placement Shares through the Distribution Agents on the terms and subject to the conditions set forth herein equal to the Maximum Amount. (e) Continued Force and Effect. This Agreement shall remain in full force and effect unless terminated pursuant to this Section 13 or otherwise by mutual agreement of the parties. (f) Effectiveness of Termination. Any termination of this Agreement pursuant to Section 13(a), (b) or (c) hereof shall be effective on the date specified in such notice of termination; provided, however, that such termination shall not be effective until the close of business on the date of receipt of such notice by a Distribution Agent or the Company, as the case may be. If such termination shall occur prior to the Settlement Date for any sale of Placement Shares, such Placement Shares shall settle in accordance with the provisions of this Agreement. (g) Liabilities; Survival. If this Agreement is terminated pursuant to this Section 13, such termination shall be without liability of any party to any other party except as provided in Section 8 hereof, and except that, in the case of any termination of this Agreement, Section 5, 8, 10, 11, 12, 14, 17, 18 and 21 hereof shall survive such termination and remain in full force and effect. SECTION 14. Notices. Except as otherwise provided in this Agreement, all notices and other communications hereunder shall be in writing, unless otherwise specified. Notices to the Distribution Agents shall be delivered to: Keefe, Bruyette & Woods, Inc. 787 Seventh Avenue, 5th Floor New York, New York 10019 Attention: Equity Capital Markets Email: kbwsyndicatedesk@kbw.com and Raymond James & Associates, Inc. 880 Carillon Parkway St. Petersburg, Florida 33716 Attention: General Counsel, Investment Banking Email: GEIBLegal@raymondjames.com with a copy to (which shall not constitute notice) to: US-LEGAL-13226288/2 181281-0001 32 Freshfields US LLP 3 World Trade Center 175 Greenwich Street, 51st Floor New York, NY 10007 Attention: Christopher DeCresce Email: christophertopher.decresce@freshfields.com Notices to the Company shall be delivered to: Axos Financial, Inc. 9205 West Russell Road, Suite 400 Las Vegas, NV 89148 Attention: Chief Financial Officer and Chief Legal Officer Email: dwalsh@axosbank.com; ebaradon@axosbank.com with a copy to (which shall not constitute notice) to: Thompson Coburn LLP One US Bank Plaza 505 N 7th Street St. Louis, MO 63101 Attention: Brent Trame and Michele Kloeppel Email: btrame@thompsoncoburn.com; mkloeppel@thompsoncoburn.com SECTION 15. Parties. This Agreement shall inure to the benefit of and be binding upon the Distribution Agents and the Company, 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 Distribution Agents the Company and their respective successors and the controlling persons and officers, directors, employees or affiliates referred to in Sections 10 and 11 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 Distribution Agents, the Company, and their respective successors, and said controlling persons and officers, directors, employees or affiliates and their heirs and legal representatives, and for the benefit of no other person, firm or corporation. No purchaser of Placement Shares from the Distribution Agents shall be deemed to be a successor by reason merely of such purchase. SECTION 16. Adjustments for Share Splits. The parties acknowledge and agree that all share-related numbers contained in this Agreement shall be adjusted to take into account any share split, share dividend or similar event effected with respect to the Placement Shares. SECTION 17. Governing Law; Consent to Jurisdiction. (a) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED WITHIN THE STATE OF NEW YORK. (b) Any legal suit, action or proceeding arising out of or based upon this Agreement or the transactions contemplated hereby may be instituted in the federal or state courts of the United States of America located in the Southern District of New York and borough of Manhattan (collectively, the “Specified Courts”), and each party irrevocably submits to the exclusive jurisdiction (except for proceedings instituted in regard to the enforcement of a judgment of any US-LEGAL-13226288/2 181281-0001 33 such court, as to which such jurisdiction is non-exclusive) of such courts in any such suit, action or proceeding. Service of any process, summons, notice or document by mail to such party’s address set forth above shall be effective service of process for any suit, action or other proceeding brought in any such court. The parties irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or other proceeding in the Specified Courts and irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such suit, action or other proceeding brought in any such court has been brought in an inconvenient forum. SECTION 18. Waiver of Jury Trial. The Company and each Distribution Agent hereby irrevocably waives, 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 19. Time. Specified times of day refer to New York City time. SECTION 20. Effect of Headings. The Section and Exhibit headings herein are for convenience only and shall not affect the construction hereof. SECTION 21. Definitions. As used in this Agreement, the following terms have the respective meanings set forth below: “Applicable Time” means the time of each sale of any Placement Shares pursuant to this Agreement. “Calendar Quarter” means a three (3)-month period beginning on any of January 1, April 1, July 1 or October 1. “EDGAR” means the Commission’s Electronic Data Gathering, Analysis and Retrieval system. “Investment Company Act” means the Investment Company Act of 1940, as amended. “Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as defined in Rule 433, relating to the Placement Shares that (i) is required to be filed with the Commission by the Company, (ii) is a “road show” that is a “written communication” within the meaning of Rule 433(d)(8)(i) whether or not required to be filed with the Commission, or (iii) is exempt from filing pursuant to Rule 433(d)(5)(i) because it contains a description of the Placement Shares or of the offering that does not reflect the final terms, and all free writing prospectuses that are listed in Exhibit F hereto, in each case in the form furnished (electronically or otherwise) to the Distribution Agents for use in connection with the offering of the Placement Shares. “NYSE” means the New York Stock Exchange. “Rule 172,” “Rule 405,” “Rule 415,” “Rule 424(b),” “Rule 430B,” and “Rule 433” refer to such rules under the Securities Act. “Sarbanes-Oxley Act” means the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated thereunder or implementing the provisions thereof. “Subsidiary” means a corporation, partnership, limited liability company or other entity, a majority of the outstanding voting or capital stock, partnership, membership or other voting or equity interests or general partnership interests, as the case may be, of which is owned or controlled, directly or indirectly, by the Company or one (1) or more other Subsidiaries of the Company.
US-LEGAL-13226288/2 181281-0001 34 All references in this Agreement to financial statements and schedules and other information that is “contained,” “included” or “stated” in the Registration Statement or the Prospectus (and all other references of like import) shall be deemed to mean and include all such financial statements and schedules and other information that is incorporated by reference in the Registration Statement or the Prospectus, as the case may be. All references in this Agreement to the Registration Statement, the Prospectus or any amendment or supplement to any of the foregoing shall be deemed to include the copy filed with the Commission pursuant to EDGAR; all references in this Agreement to any Issuer Free Writing Prospectus (other than any Issuer Free Writing Prospectuses that, pursuant to Rule 433, are not required to be filed with the Commission) shall be deemed to include the copy thereof filed with the Commission pursuant to EDGAR; and all references in this Agreement to “supplements” to the Prospectus shall include, without limitation, any supplements, “wrappers” or similar materials prepared in connection with any offering, sale or private placement of any Placement Shares by the Distribution Agents outside of the United States. SECTION 22. Permitted Free Writing Prospectuses. The Company represents, warrants and agrees that, unless it obtains the prior consent of the Distribution Agents, and each Distribution Agent represents, warrants and agrees that, unless it obtains the prior consent of the Company, it has not made and will not make any offer relating to the Placement Shares that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405, required to be filed with the Commission. Any such free writing prospectus consented to by the Distribution Agents or by the Company, as the case may be, is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents and warrants that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping. For the purposes of clarity, the parties hereto agree that all free writing prospectuses, if any, listed in Exhibit F hereto are Permitted Free Writing Prospectuses. SECTION 23. Absence of Fiduciary Relationship. Each of the Company acknowledges and agrees that: (a) The Distribution Agents are acting solely in their respective capacities as agent and/or principal in connection with the public offering of the Placement Shares and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between the Company or any of its respective affiliates, shareholders (or other equity holders), creditors or employees or any other party, on the one hand, and the Distribution Agents, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not a Distribution Agent has advised or is advising the Company on other matters, and the Distribution Agent has no obligation to the Company with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement; (b) the public offering price of the Placement Shares sold from time to time pursuant to this Agreement will not be established by the Distribution Agents; (c) it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement; US-LEGAL-13226288/2 181281-0001 35 (d) the Distribution Agents have not provided any legal, accounting, regulatory or tax advice with respect to the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate; (e) it is aware that the Distribution Agents and their respective affiliates are engaged in a broad range of transactions which may involve interests that differ from those of the Company and the Distribution Agents have no obligation to disclose such interests and transactions to the Company by virtue of any fiduciary, advisory or agency relationship or otherwise as a result of this Agreement or the transactions contemplated by this Agreement; and (f) it waives, to the fullest extent permitted by law, any claims it may have against the Distribution Agents for breach of fiduciary duty or alleged breach of fiduciary duty and agrees that the Distribution Agents shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any person asserting a fiduciary duty claim on its behalf or in right of it or the Company or employees or creditors of the Company a result of this Agreement or the transactions contemplated by this Agreement. [Signature Page Follows] US-LEGAL-13226288/2 181281-0001 36 If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the Distribution Agents and the Company in accordance with its terms. Very truly yours, AXOS FINANCIAL, INC. By /s/ Derrick K. Walsh Name: Derrick K. Walsh Title: EVP and Chief Financial Officer CONFIRMED AND ACCEPTED, as of the date first above written: KEEFE, BRUYETTE & WOODS, INC. By /s/Aaron J. Axton Name: Aaron J. Axton Title: Managing Director RAYMOND JAMES & ASSOCIATES, INC. By /s/ Aaron C. DiRusso Name: Aaron C. DiRusso Title: Managing Director US-LEGAL-13226288/2 181281-0001 A-1 EXHIBIT A FORM OF PLACEMENT NOTICE From: [ ] Cc: [ ] To: [ ] Subject: Equity Distribution Agreement – Placement Notice Ladies and Gentlemen: Pursuant to the terms and subject to the conditions contained in the Equity Distribution Agreement among Axos Financial, Inc. (the “Company”), and Keefe, Bruyette & Woods, Inc. and Raymond James & Associates, Inc., dated January 28, 2025 (the “Agreement”), I hereby request on behalf of the Company that the Distribution Agents sell up to [●] shares of the Company’s common stock at a minimum market price of $[●] per share through and until [●], 20[●]. The Company hereby confirms that, as of the date of this Placement Notice, neither the Prospectus, nor any Issuer Free Writing Prospectus, when taken together with the Prospectus, includes an untrue statement of a material fact or omits 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. ADDITIONAL SALES PARAMETERS MAY BE ADDED, SUCH AS THE TIME PERIOD IN WHICH SALES ARE REQUESTED TO BE MADE, SPECIFIC DATES THE PLACEMENT SHARES MAY NOT BE SOLD ON, THE MANNER IN WHICH SALES ARE TO BE MADE BY THE DESIGNATED DISTRIBUTION AGENT, AND/OR THE CAPACITY IN WHICH THE DESIGNATED DISTRIBUTION AGENT MAY ACT IN SELLING SHARES (AS PRINCIPAL, AGENT, OR BOTH).
US-LEGAL-13226288/2 181281-0001 B-1 EXHIBIT B AUTHORIZED INDIVIDUALS FOR PLACEMENT NOTICES AND ACCEPTANCES The Company Greg Garrabrants, President & Chief Executive Officer Derrick Walsh, EVP Chief Financial Officer Andrew Micheletti, EVP Finance KBW Scott Jaffe (sjaffe@kbw.com) US-LEGAL-13226288/2 181281-0001 C-1 EXHIBIT C COMPENSATION The Designated Distribution Agent shall be paid compensation of 2.5% of the gross sales price of Placement Shares sold pursuant to the terms of this Agreement. US-LEGAL-13226288/2 181281-0001 D-1 EXHIBIT D FORM OF COMPANY COUNSEL OPINION US-LEGAL-13226288/2 181281-0001 E-1 EXHIBIT E FORM OF OFFICERS’ CERTIFICATE
US-LEGAL-13226288/2 181281-0001 F-1 EXHIBIT F ISSUER FREE WRITING PROSPECTUSES None.