RIVERVIEW BANCORP, INC. (a Washington corporation) 10,041,841 Shares of Common Stock ($0.01 Par Value Per Share) UNDERWRITING AGREEMENT
Exhibit 1.1
RIVERVIEW
BANCORP, INC.
(a
Washington corporation)
10,041,841 Shares
of Common Stock
($0.01
Par Value Per Share)
July 29,
2010
▇▇▇▇▇▇▇▇▇▇
SECURITIES, INC.
as
Representative of the several Underwriters
▇▇▇▇▇▇▇▇▇▇
Securities, Inc.
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies
and Gentlemen:
Riverview
Bancorp, Inc., a Washington corporation (the “Company”), confirms its agreements
with ▇▇▇▇▇▇▇▇▇▇ Securities, Inc. (“▇▇▇▇▇▇▇▇▇▇”) and each of the other
Underwriters named in Schedule A hereto (collectively, the “Underwriters”, which
term shall also include any underwriter substituted as hereinafter provided in
Section 10 hereof), for whom ▇▇▇▇▇▇▇▇▇▇ is acting as representative (in such
capacity, the “Representative”), with respect to (i) the sale by the Company,
and the purchase by the Underwriters, acting severally and not jointly, of the
respective numbers of shares of Common Stock, $0.01 par value per share, of the
Company (“Common Stock”) set forth in Schedule A hereto and (ii) the grant by
the Company to the Underwriters, acting severally and not jointly, of the option
described in Section 2(b) hereof to purchase all or any part of 1,506,276
additional shares of Common Stock to cover over-allotments, if
any. The aforesaid 10,041,841 shares of Common Stock (the “Initial
Securities”) to be purchased by the Underwriters and all or any part of the
10,041,841 shares of Common Stock subject to the option described in Section
2(b) hereof (the “Option Securities”) are hereinafter called, collectively, the
“Securities”.
The
Company understands that the Underwriters propose to make a public offering of
the Securities as soon as the Representative deems advisable after this
Agreement has been executed and delivered.
The
Company has filed with the Securities and Exchange Commission (the “Commission”)
a registration statement on Form S-1 (No. 333-162621), including the related
preliminary prospectus or prospectus covering the registration of the Securities
under the Securities Act of 1933, as amended (the “1933
Act”). Promptly after execution and delivery of this Agreement, the
Company will prepare and file a prospectus in accordance with the provisions of
Rule 430A (“Rule 430A”) of the rules and regulations of the Commission under the
1933 Act (the “1933 Act Regulations”) and paragraph (b) of Rule 424 (“Rule
424(b)”) of the
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1933 Act
Regulations. The information included in such prospectus that was
omitted from such registration statement at the time it became effective but
that is deemed to be part of such registration statement at the time it became
effective pursuant to paragraph (b) of Rule 430A is referred to as “Rule 430A
Information.” Each prospectus used before such registration statement became
effective, and any prospectus that omitted, as applicable, the Rule 430A
Information that was used after such effectiveness and prior to the execution
and delivery of this Agreement, is herein called a “preliminary prospectus.”
Such registration statement, including the amendments thereto, the exhibits and
any schedules thereto, if any, and the documents incorporated by reference
therein pursuant to Item 12 of Form S-1 under the 1933 Act, at the time it
became effective and including the Rule 430A Information, is herein called the
“Registration Statement,” Any registration statement filed pursuant to Rule
462(b) of the 1933 Act Regulations is herein referred to as the “Rule 462(b)
Registration Statement,” and after such filing the term “Registration Statement”
shall include the Rule 462(b) Registration Statement. The final
prospectus, including the documents incorporated by reference therein, in the
form first furnished to the Underwriters for use in connection with the offering
of the Securities is herein called the “Prospectus.” For purposes of this
Agreement, all references to the Registration Statement, any preliminary
prospectus or the Prospectus or any amendment or supplement to any of the
foregoing shall be deemed to include the copy filed with the Commission pursuant
to its Electronic Data Gathering, Analysis and Retrieval system
(“▇▇▇▇▇”).
All
references in this Agreement to financial statements and schedules and other
information which is “contained,” “included” or “stated” in the Registration
Statement, any preliminary prospectus or the Prospectus (or other references of
like import) shall be deemed to mean and include all such financial statements
and schedules and other information which is incorporated by reference in the
Registration Statement, any preliminary prospectus or the Prospectus, as the
case may be; and all references in this Agreement to amendments or supplements
to the Registration Statement, any preliminary prospectus or the Prospectus
shall be deemed to mean and include the filing of any document under the
Securities Exchange Act of 1934 (the “1934 Act”) which is incorporated by
reference in the Registration Statement, such preliminary prospectus or the
Prospectus, as the case maybe.
SECTION
1. Representations and
Warranties and Agreements
(a)
Representations and Warranties by
the Company. The Company represents and warrants to each
Underwriter as of the date hereof, as of the Closing Time referred to in Section
2(c) hereof, and as of each Date of Delivery (if any) referred to in Section
2(b) hereof, and agrees with each Underwriter, as follows:
(i)
Compliance with Registration
Requirements. (A) At the time of filing the Registration
Statement, any 462(b) Registration Statement and any post-effective amendments
thereto and (B) at the date hereof, the Company was not an “ineligible issuer”
as defined in Rule 405 of the 1933 Act Regulations (“Rule 405”). Each
of the Registration Statement and any Rule 462(b) Registration Statement has
become effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement and any post-effective amendment
thereto or any Rule 462(b) Registration Statement has been issued and any
post-effective amendment thereto under the 1933 Act and no proceedings for that
purpose have been instituted
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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.
At the
respective times the Registration Statement, any Rule 462(b) Registration
Statement and any post-effective amendments thereto became effective and at the
Closing Time (and, if any Option Securities are purchased, at the Date of
Delivery), the Registration Statement, the Rule 462(b) Registration Statement
and any amendments and supplements thereto complied and will comply in all
material respects with the requirements of the 1933 Act and the 1933 Act
Regulations and did not and will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading. Neither the Prospectus
nor any amendments or supplements thereto, at the time the Prospectus or any
such amendment or supplement was issued and at the Closing Time (and, if any
Option Securities are purchased, at the Date of Delivery), included or will
include an untrue statement of a material fact or omitted or will omit to state
a material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
Each
preliminary prospectus and the prospectus filed as part of the Registration
Statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the 1933 Act, complied when so filed in all material
respects with the 1933 Act and the 1933 Act Regulations and each preliminary
prospectus and the Prospectus delivered to the Underwriters for use in
connection with this offering was identical to the electronically transmitted
copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent
permitted by Regulation S-T.
As of the
Applicable Time, neither (x) the Issuer-Represented General Free Writing
Prospectus(es) (as defined below) issued at or prior to the Applicable Time (as
defined below) and the Statutory Prospectus (as defined below), all considered
together (collectively, the “General Disclosure Package”),
nor (y) any individual Issuer-Represented Limited Use Free Writing
Prospectus, when considered together with the General Disclosure Package,
included any untrue statement of a material fact or omitted to state any
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
As used
in this subsection and elsewhere in this Agreement:
“Applicable Time” means 11:00
a.m. (Eastern time) on the date of this Agreement or such other time as agreed
by the Company and ▇▇▇▇▇▇▇▇▇▇.
“Statutory Prospectus” as of
any time means the prospectus relating to the Securities that is included in the
Registration Statement immediately prior to that time, including any document
incorporated by reference therein and any preliminary or other prospectus deemed
to be a part thereof. For purposes of this definition, information contained in
a form of prospectus that is deemed retroactively to be a part of the
Registration Statement pursuant to Rule 430A shall be considered to be included
in the Statutory Prospectus as of the actual time that form of prospectus is
filed with the Commission pursuant to Rule 424(b).
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“Issuer-Represented Free Writing
Prospectus” means any “issuer free writing prospectus,” as defined in
Rule 433 of the 1933 Act Regulations (“Rule 433”), relating to the
Securities that (i) is required to be filed with the Commission by the Company
or (ii) is exempt from filing pursuant to Rule 433(d)(5)(i) because it contains
a description of the Securities or of the offering that does not reflect the
final terms, in each case in the form filed or required to be filed with the
Commission or, if not required to be filed, in the form retained in the
Company’s records pursuant to Rule 433(g).
“Issuer-Represented General Free
Writing Prospectus” means any Issuer-Represented Free Writing Prospectus
that is intended for general distribution to prospective investors, as evidenced
by its being specified in Schedule B hereto.
“Issuer-Represented Limited Use Free
Writing Prospectus” means any Issuer-Represented Free Writing Prospectus
that is not an Issuer-Represented General Free Writing Prospectus.
Each
Issuer-Represented Free Writing Prospectus, as of its issue date and at all
subsequent times through the completion of the public offer and sale of the
Securities or until any earlier date that the issuer notified or notifies
▇▇▇▇▇▇▇▇▇▇ as described in the next sentence, did not, does not and will not
include any information that conflicted, conflicts or will conflict with the
information contained in the Registration Statement or the Prospectus, including
any document incorporated by reference therein and any preliminary or other
prospectus deemed to be a part thereof that has not been superseded or
modified.
The
representations and warranties in this subsection shall not apply to statements
in or omissions from the Registration Statement, any preliminary prospectus, the
Prospectus or any Issuer-Represented Free Writing Prospectus made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through ▇▇▇▇▇▇▇▇▇▇ expressly for use therein.
(ii)
Incorporated
Documents. The documents incorporated or deemed to be
incorporated by reference in the Registration Statement and the Prospectus, at
the time they were or hereafter are filed with the Commission, complied and will
comply in all material respects with the requirements of the 1934 Act and the
rules and regulations of the Commission thereunder (the “1934 Act Regulations”),
and, when read together with the other information in the Prospectus, at the
time the Registration Statement became effective, at the time the Prospectus was
issued and at the Closing Time (and, if any Option Securities are purchased, at
the Date of Delivery), did not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.
(iii)
Independent
Accountants. Deloitte & Touche LLP, the accounting firm
that certified the financial statements and supporting schedules of the Company
included in the Registration Statement and the Prospectus, is an independent
registered public accounting firm as required by the 1933 Act and the 1933 Act
Regulations. With respect to the Company, Deloitte & Touche LLP is not and
has not been in violation of the auditor independence
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requirements
of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 (“▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act”) and the related rules
and regulations of the Commission.
(iv)
Financial
Statements. The financial statements included in the
Registration Statement, the General Disclosure Package and the Prospectus,
together with the related schedules and notes, present fairly the financial
position of the Company and its consolidated subsidiaries at the dates indicated
and the statement of operations, stockholders’ equity and cash flows of the
Company and its consolidated subsidiaries for the periods specified; said
financial statements have been prepared in conformity with generally accepted
accounting principles (“GAAP”) applied on a consistent basis throughout the
periods involved. The supporting schedules, if any, included in the
Registration Statement, the General Disclosure Package and the Prospectus
present fairly in accordance with GAAP the information required to be stated
therein. The selected financial data and the summary financial
information included in the Registration Statement, the General Disclosure
Package and the Prospectus present fairly the information shown therein and have
been compiled on a basis consistent with that of the audited financial
statements included in the Registration Statement and the books and records of
the Company. No other financial statements or schedules are required
to be included in the Registration Statement. To the extent
applicable, all disclosures contained in the Registration Statement or the
Prospectus regarding “non-GAAP financial measures” (as such term is defined by
the rules and regulations of the Commission) comply with Regulation G of the
Securities Exchange Act of 1934, as amended (“1934 Act”), the rules and
regulations of the 1934 Act (the “1934 Act Regulations”) and Item 10 of
Regulation S-K under the 1933 Act, as applicable.
(v)
No Material Adverse Change
in Business. Since the respective dates as of which
information is given in the Registration Statement, the General Disclosure
Package and the Prospectus, except as otherwise stated therein, (A) there has
been no material adverse change in the condition, financial or otherwise, or in
the earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business (a “Material Adverse Effect”), (B) there have been
no transactions entered into by the Company or any of its subsidiaries, other
than those in the ordinary course of business, which are material with respect
to the Company and its subsidiaries considered as one enterprise, and (C) except
for regular quarterly dividends on the Common Stock prior to the suspension of
such dividends in the third quarter of the fiscal year ended March 31, 2009, in
amounts per share that are consistent with past practice, there has been no
dividend or distribution of any kind declared, paid or made by the Company on
any class of its capital stock.
(vi)
Good Standing of the
Company. The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of the State of
Washington and has corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the General Disclosure
Package and the Prospectus and to enter into and perform its obligations under
this Agreement; and the Company is duly qualified as a foreign corporation to
transact business and is in good standing in each other jurisdiction in which
such qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to qualify or
to be in good standing would not result in a Material Adverse
Effect.
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(vii)
Good Standing of
Subsidiaries. Each “significant subsidiary’ of the Company (as
such term is defined in Rule 1-02 of Regulation S-X) (each a “Subsidiary” and,
collectively, the “Subsidiaries”) has been duly organized and is validly
existing as a corporation in good standing under the laws of the jurisdiction of
its incorporation, has corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the General
Disclosure Package and the Prospectus and is duly qualified as a foreign
corporation to transact business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure so to
qualify or to be in good standing would not result in a Material Adverse
Effect. Except as otherwise disclosed in the Registration Statement,
all of the issued and outstanding capital stock of each such Subsidiary has been
duly authorized and validly issued, is fully paid and non-assessable and is
owned by the Company, directly or through subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or equity; none of
the outstanding shares of capital stock of any Subsidiary was issued in
violation of the preemptive or similar rights of any securityholder of such
Subsidiary. The only subsidiaries of the Company are the subsidiaries
listed on Schedule C hereto. Riverview Community Bank, a subsidiary
of the Company, is an insured bank under the provisions of the Federal Deposit
Insurance Act, as amended. The deposit accounts of Riverview
Community Bank are insured up to the applicable limits by the Federal Deposit
Insurance Corporation (“FDIC”) to the fullest extent permitted by law and the
rules and regulations of the FDIC, and no proceeding for the revocation or
termination of such insurance is pending or, to the Company’s knowledge,
threatened.
(viii)
Capitalization. The
authorized, issued and outstanding capital stock of the Company is as set forth
in the General Disclosure Package and the Prospectus in the column entitled
“Actual” under the caption “Capitalization” (except for subsequent issuances, if
any, pursuant to this Agreement, pursuant to reservations, agreements or
employee benefit plans referred to in the Prospectus or pursuant to the exercise
of convertible securities or options referred to in the
Prospectus). The shares of issued and outstanding capital stock have
been duly authorized and validly issued and are fully paid and non-assessable;
none of the outstanding shares of capital stock was issued in violation of the
preemptive or other similar rights of any securityholder of the
Company. Except as described in the Registration Statement and the
Prospectus, there are no outstanding rights (contractual or otherwise), warrants
or options to acquire, or instruments convertible into or exchangeable for, or
agreements or understandings with respect to the sale or issuance of, any shares
of capital stock of or other equity interest in the Company.
(ix)
Authorization of
Agreement. This Agreement has been duly authorized, executed
and delivered by the Company.
(x)
Authorization and
Description of Securities. The Securities to be purchased by
the Underwriters from the Company have been duly authorized for issuance and
sale to the Underwriters pursuant to this Agreement and, when issued and
delivered by the Company pursuant to this Agreement against payment of the
consideration set forth herein, will be validly issued and fully paid and
non-assessable; the Common Stock conforms in all material respects to all
statements relating thereto contained in the Prospectus and such description
conforms in all material respects to the rights set forth in the instruments
defining the same; no
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holder of
the Securities will be subject to personal liability for the debts of the
Company by reason of being such a holder; and the issuance of the Securities is
not subject to the preemptive or other similar rights of any securityholder of
the Company.
(xi)
Absence of Defaults and
Conflicts. Neither the Company nor any of its subsidiaries is
in violation of its articles of incorporation or by-laws or in default in the
performance or observance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or other agreement or instrument to which the Company or
any of its subsidiaries is a party or by which it or any of them may be bound,
or to which any of the property or assets of the Company or any subsidiary is
subject (collectively, “Agreements and Instruments”) except for such defaults
that would not result in a Material Adverse Effect; and the execution, delivery
and performance of this Agreement and the consummation of the transactions
contemplated herein and in the Registration Statement (including the issuance
and sale of the Securities and the use of the proceeds from the sale of the
Securities as described in the Prospectus under the caption “Use of Proceeds”)
and compliance by the Company with its obligations hereunder have been duly
authorized by all necessary corporate action and do not and will not, whether
with or without the giving of notice or passage of time or both, conflict with
or constitute a breach of, or default or Repayment Event (as defined below)
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any subsidiary
pursuant to, the Agreements and Instruments (except for such conflicts, breaches
or defaults or liens, charges or encumbrances that would not result in a
Material Adverse Effect), nor will such action result in any violation of the
provisions of the articles of incorporation or by-laws of the Company or any
subsidiary or any applicable law, statute, rule, regulation, judgment, order,
writ or decree of any government, government instrumentality or court, domestic
or foreign, having jurisdiction over the Company or any subsidiary or any of
their assets, properties or operations. As used herein, a “Repayment
Event” means any event or condition which gives the holder of any note,
debenture or other evidence of indebtedness (or any person acting on such
holder’s behalf) the right to require the repurchase, redemption or repayment of
all or a portion of such indebtedness by the Company or any
subsidiary. Except as disclosed in the Registration Statement and the
Prospectus, the Company and its subsidiaries are conducting their respective
businesses in compliance in all material respects with all federal, state, local
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 Office of Thrift Supervision, the FDIC and the
Commission, and neither the Company nor any of its subsidiaries has received any
written, or to the Company’s knowledge, oral communication asserting that the
Company or any of its subsidiaries is not in material compliance with any
statute, law, rule, regulation, decision, directive or order.
(xii)
Absence of Labor
Dispute. No labor dispute with the employees of the Company or
any subsidiary exists or, to the knowledge of the Company, is imminent, and the
Company is not aware of any existing or imminent labor disturbance by the
employees of any of its 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.
(xiii)
Absence of
Proceedings. There is no action, suit, proceeding, inquiry or
investigation before or brought by any court or governmental agency or body,
domestic or
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foreign,
now pending, or, to the knowledge of the Company, threatened, against or
affecting the Company or any subsidiary, which is required to be disclosed in
the Registration Statement, the General Disclosure Package or the Prospectus
(other than as disclosed therein), or which might reasonably be expected to
result in a Material Adverse Effect, or which might reasonably be expected to
materially and adversely affect the properties or assets thereof or 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 property or assets is the subject
which are not described in the Registration Statement, including ordinary
routine litigation incidental to the business, could not reasonably be expected
to result in a Material Adverse Effect.
(xiv)
Accuracy of
Exhibits. There are no contracts or documents which are
required to be described in the Registration Statement, or the General
Disclosure Package, the Prospectus or the documents incorporated by reference
therein or to be filed as exhibits thereto which have not been so described and
filed as required.
(xv)
Possession of Intellectual
Property. The Company and its subsidiaries own or possess, 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 and excluding generally commercially available “off the shelf’
software programs licensed pursuant to shrink wrap or “click and accept”
licenses), trademarks, service marks, trade names or other intellectual property
(collectively, “Intellectual Property”) necessary to carry on the business now
operated by them, and neither the Company nor any of its subsidiaries has
received any notice or is otherwise aware of any infringement of or conflict
with asserted rights of others with respect to any Intellectual Property or of
any facts or circumstances which would render any Intellectual Property invalid
or inadequate to protect the interest of the Company or any of its subsidiaries
therein, and which infringement or conflict (if the subject of any unfavorable
decision, ruling or finding) or invalidity or inadequacy, singly or in the
aggregate, would result in a Material Adverse Effect.
(xvi)
Absence of Further
Requirements. No filing with, or authorization, approval,
consent, license, order, registration, qualification or decree of, any court or
governmental authority or agency is necessary or required for the performance by
the Company of its obligations hereunder, in connection with the offering,
issuance or sale of the Securities hereunder or the consummation of the
transactions contemplated by this Agreement, except such consents, approvals,
authorizations, registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and distribution of
the Shares by the Underwriters.
(xvii)
Possession of Licenses and
Permits. The Company and its subsidiaries possess such
material 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; the Company and its subsidiaries are in
compliance with the terms and conditions of all such Governmental Licenses,
except where the failure so to comply would not, singly or in the
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aggregate,
have a Material Adverse Effect; all of the Governmental Licenses are valid and
in full force and effect, except where the invalidity of such Governmental
Licenses or the failure of such Governmental Licenses to be in full force and
effect would not have a Material Adverse Effect; and neither the Company nor any
of its subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses which, singly or in
the aggregate, if the subject of an unfavorable decision, ruling or finding,
would result in a Material Adverse Effect. Neither the Company nor
any of its Subsidiaries has failed to file with applicable regulatory
authorities any statement, report, information or form required by any
applicable law, regulation or order, except where the failure to be so in
compliance would not, individually or in the aggregate, have a Material Adverse
Effect, all such filings were in material compliance with applicable laws when
filed and no material deficiencies have been asserted by any regulatory
commission, agency or authority with respect to any such filings or
submissions.
(xviii)
Title to
Property. The Company and its subsidiaries have good and
marketable title to all real property owned by the Company and its subsidiaries
and good title to all other properties owned by them, in each case, free and
clear of all mortgages, pledges, liens, security interests, claims, restrictions
or encumbrances of any kind except such as (a) are described in the General
Disclosure Package and the Prospectus or (b) do not, singly or in the aggregate,
materially affect the value of such property and do not materially interfere
with the use made and proposed to be made of such property by the Company or any
of its subsidiaries; and all of the leases and subleases material to the
business of the Company and its subsidiaries, considered as one enterprise, and
under which the Company or any of its subsidiaries holds properties described in
the General Disclosure Package and the Prospectus, are in full force and effect,
and neither the Company nor any subsidiary has any actual notice of any material
claim of any sort that has been asserted by anyone adverse to the rights of the
Company or any subsidiary under any of the leases or subleases mentioned above,
or affecting or questioning the rights of the Company or such subsidiary to the
continued possession of the leased or subleased premises under any such lease or
sublease.
(xix)
Investment Company
Act. The Company is not, and upon the issuance and sale of the
Securities as herein contemplated and the application of the net proceeds
therefrom as described in the General Disclosure Package and the Prospectus will
not be, an “investment company” or an entity “controlled” by an “investment
company” as such terms are defined in the Investment Company Act of 1940, as
amended (the “1940 Act”).
(xx)
Environmental
Laws. Except as described in the Registration Statement and
except as would not, singly or in the aggregate, result in a Material Adverse
Effect, (A) neither the Company nor any of its subsidiaries is in violation of
any federal, state, local or foreign 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,
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treatment,
storage, disposal, transport or handling of Hazardous Materials (collectively,
“Environmental Laws”), (B) the Company and its subsidiaries have all permits,
authorizations and approvals required under any applicable Environmental Laws
and are each in compliance with their requirements, (C) there are no pending or
threatened administrative, regulatory or judicial actions, suits, demands,
demand letters, claims, liens, notices of noncompliance or violation,
investigation or proceedings relating to any Environmental Law against the
Company or any of its subsidiaries, and (D) there are no events or circumstances
that might reasonably be expected to form the basis of an order for clean-up or
remediation, or an action, suit or proceeding by any private party or
governmental body or agency, against or affecting the Company or any of its
subsidiaries relating to Hazardous Materials or any Environmental
Laws.
(xxi)
Taxes. The
Company and each of the subsidiaries has (a) timely filed all material foreign,
United States federal, state and local tax returns, information returns, and
similar reports that are required to be filed (taking into account valid
extensions), and all tax returns are true, correct and complete, (b) paid in
full all taxes required to be paid by it and any other assessment, fine or
penalty levied against it, except for any such tax assessment, fine or penalty
that is currently being contested in good faith or as would not have,
individually or in the aggregate, a Material Adverse Effect, and (c) established
on the most recent balance sheet reserves that are adequate for the payment of
all taxes not yet due and payable.
(xxii)
Insurance. The
Company and its Subsidiaries carry, or are covered by, insurance in such amounts
and covering such risks as the Company reasonably believes are adequate for the
conduct of the business of the Company and its Subsidiaries and the value of
their properties and as are customary in the business in which the Company and
its Subsidiaries are engaged; neither the Company nor any of its Subsidiaries
has been refused any insurance coverage sought or applied for; and the Company
has no reason to believe that they will not be able to renew their existing
insurance coverage as and when such coverage expires or to obtain similar
coverage from similar insurers as may be necessary to continue its business at a
cost that would not have a Material Adverse Effect.
(xxiii)
Statistical and Market
Data. The statistical and market related data contained in the
Prospectus and Registration Statement are based on or derived from sources which
the Company believes are reliable and accurate.
(xxiv)
Relationship. No
relationship, direct or indirect, exists between or among the Company or any of
its subsidiaries, on the one hand, and the directors, officers, shareholders,
customers or suppliers of the Company or any of its subsidiaries, on the other,
that is required by the Securities Act or by the rules and regulations of the
Commission thereunder to be described in the Registration Statement and/or the
Prospectus and that is not so described.
(xxv)
Internal Control Over
Financial Reporting. The Company maintains a system of
internal accounting controls sufficient to provide reasonable assurance that (A)
transactions are executed in accordance with management’s general or specific
authorizations; (B) transactions are recorded as necessary to permit preparation
of financial statements in conformity with generally accepted accounting
principles and to maintain asset accountability; (C) access to assets is
permitted only in accordance with management’s general or specific
authorization; and (D) the recorded accountability for assets is compared with
the existing assets
10
at
reasonable intervals and appropriate action is taken with respect to any
differences. Except as described in the Registration Statement,
General Disclosure Package and Prospectus, since the end of the Company’s most
recent audited fiscal year, there has been (I) no material weakness in the
Company’s internal control over financial reporting (whether or not remediated),
and (II) no change in the Company’s internal control over financial reporting
that has materially affected, or is reasonably likely to materially affect, the
Company’s internal control over financial reporting.
(xxvi)
Disclosure Controls and
Procedures. The Company and its Subsidiaries employ disclosure
controls and procedures (as such term is defined in Rule 13a-15 under the 1934
Act), which (A) are designed to ensure that information required to be disclosed
by the Company in the reports that it files or submits under the 1934 Act is
recorded, processed, summarized and reported within the time periods specified
in the Commission’s rules and forms and that material information relating to
the Company and its Subsidiaries is made known to the Company’s principal
executive officer and principal financial officer by others within the Company
and its Subsidiaries to allow timely decisions regarding disclosure, and (B) are
effective in all material respects to perform the functions for which they were
established. Based on the evaluation of the Company’s and each
Subsidiary’s disclosure controls and procedures described above, the Company is
not aware of (1) any significant deficiency in the design or operation of
internal controls which could adversely affect the Company’s ability to record,
process, summarize and report financial data or any material weaknesses in
internal controls, or (2) any fraud, whether or not material, that involves
management or other employees who have a significant role in the Company’s
internal controls. Since the most recent evaluation of the Company’s
disclosure controls and procedures described above, there have been no
significant changes in internal controls or in other factors that could
significantly affect internal controls.
(xxvii)
Compliance with the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. There is and has been no failure on the
part of the Company or any of the Company’s directors or officers, in their
capacities as such, to comply in all material respects with any provision of the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the rules and regulations promulgated in
connection therewith (the “▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act”), including Section 402 related
to loans and Sections 302 and 906 related to certifications.
(xxviii)
Pending Procedures and
Examinations. The Registration Statement is not the subject of
a pending proceeding or examination under Section 8(d) or 8(e) of the 1933 Act,
and the Company is not the subject of a pending proceeding under Section 8A of
the 1933 Act in connection with the offering of the Securities.
(xxix)
Unlawful
Payments. Neither the Company nor any of its subsidiaries nor,
to the knowledge of the Company, any director, officer, agent, employee or other
person associated with or acting on behalf of the Company or any of its
subsidiaries has: (A) used any corporate funds for any unlawful contribution,
gift, entertainment or other unlawful expense relating to political activity;
(B) made any direct or indirect unlawful payment to any foreign or domestic
government official or employee from corporate funds; (C) violated or is in
violation of any provision of the Foreign Corrupt Practices Act of 1977; or (D)
made any bribe, rebate, payoff, influence payment, kickback or other unlawful
payment.
11
(xxx)
No Registration
Rights. No person has the right to require the Company or any
of its subsidiaries to register any securities for sale under the 1933 Act by
reason of the filing of the Registration Statement with the Commission or the
issuance and sale of the Securities to be sold by the Company
hereunder.
(xxxi)
No Stabilization or
Manipulation. Neither the Company nor any of its Subsidiaries,
nor any affiliates of the Company or its Subsidiaries, has taken, directly or
indirectly, any action designed to or that could reasonably be expected to cause
or result in any stabilization or manipulation of the price of the
Securities.
(xxxii)
No Unauthorized Use of
Prospectus. The Company has not distributed and, prior to the
later to occur of (i) the Closing Time and (ii) completion of the distribution
of the Securities, will not distribute any prospectus (as such term is defined
in the 1933 Act and the 1933 Act Regulations) in connection with the offering
and sale of the Securities other than the Registration Statement, any
preliminary prospectus, the Prospectus or other materials, if any, permitted by
the 1933 Act or by the 1933 Act Regulations and approved by
▇▇▇▇▇▇▇▇▇▇.
(xxxiii)
Forward-Looking
Statements. No forward-looking statement (within the meaning
of Section 27A of the 1933 Act and Section 21E of the ▇▇▇▇ ▇▇▇) contained in the
Registration Statement and the Prospectus has been made or reaffirmed without a
reasonable basis or has been disclosed other than in good faith.
(xxxiv)
Lock-up
Agreements. Each of the Company’s executive officers and
directors and 5% or greater shareholders and certain other shareholders, in each
case as listed on Schedule E hereto, has executed and delivered lock-up
agreements as contemplated by Section 5(i) hereof.
(xxxv)
Fees. Other
than as contemplated by this Agreement, there is no broker, finder or other
party that is entitled to receive from the Company or any subsidiary any
brokerage or finder’s fee or any other fee, commission or payment as a result of
the transactions contemplated by this Agreement.
(xxxvi)
ERISA. The
Company and each of the subsidiaries or their “ERISA Affiliates” (as defined
below) are in compliance in all material respects with all presently applicable
provisions of the Employee Retirement Income Security Act of 1974, as amended,
including the regulations and published interpretations thereunder (“ERISA”); no
“reportable event” (as defined in ERISA) has occurred with respect to any
“employee benefit plan” (as defined in ERISA) for which the Company or any of
the subsidiaries or ERISA Affiliates would have any liability; the Company and
each of the subsidiaries or their ERISA Affiliates have not incurred and do not
expect to incur liability under (i) Title IV of ERISA with respect to
termination of, or withdrawal from, any “employee benefit plan” or (ii) Sections
412, 4971, 4975 or 4980B of the United States Internal Revenue Code of 1986, as
amended, and the regulations and published interpretations thereunder
(collectively the “Code”); and each “employee benefit plan” for which the
Company and each of its Subsidiaries or any of their ERISA Affiliates would have
any liability that is intended to be qualified under Section 401(a) of the Code
is so qualified in all material respects and nothing has occurred to the
Company’s knowledge, whether by action or by failure to act, which would cause
the loss of such qualification. “ERISA Affiliate”
12
means,
with respect to the Company or a subsidiary, any member of any group of
organizations described in Sections 414(b), (c), (m) or (o) of the Code or
Section 400(b) of ERISA of which the Company or such subsidiary is a
member.
(xxxvii)
Money Laundering
Laws. The operations of the Company and its subsidiaries are
currently in compliance in all material respects with applicable financial
recordkeeping and reporting requirements and the money laundering statutes and
the rules and regulations thereunder and any related or similar rules,
regulations or guidelines, issued, administered or enforced by any governmental
agency (collectively, the “Money Laundering Laws”) and no action, suit or
proceeding by or before any court or governmental agency, authority or body or
any arbitrator involving the Company or any of its subsidiaries with respect to
the Money Laundering Laws is pending or, to the Company’s knowledge,
threatened.
(xxxviii)
No Regulatory
Proceedings. Except as disclosed in the Prospectus and the
General Disclosure Package, neither the Company nor any of its subsidiaries is a
party to or subject to any order, decree, agreement, memorandum of understanding
or similar agreement with, or a commitment letter, supervisory letter or similar
submission to, any federal, state or local court or governmental agency (each a
“Governmental Entity”) charged with the supervision or regulation of depository
institutions or engaged in the insurance of deposits (including the Federal
Deposit Insurance Corporation) or the supervision or regulation of it or any of
its subsidiaries and neither the Company nor any of its subsidiaries has been
advised by any such Governmental Entity that such Governmental Entity is
contemplating issuing or requesting (or is considering the appropriateness of
issuing or requesting) any such order, decree, agreement, memorandum of
understanding, commitment letter, supervisory letter or similar
submission.
(b) Officer‘s
Certificates. Any certificate signed by any officer of the
Company or any of its subsidiaries delivered to the Representative or to counsel
for the Underwriters shall be deemed a representation and warranty by the
Company to each Underwriter as to the matters covered thereby.
SECTION
2. Sale and Delivery to
Underwriters; Closing.
(a)
Initial
Securities. On the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Company agrees to sell to each Underwriter, severally and not jointly, and each
Underwriter, severally and not jointly, agrees to purchase from the Company, at
the price per share set forth in Schedule D, that proportion of the number of
Initial Securities set forth in Schedule A opposite the name of such
Underwriter, plus any additional number of Initial Securities which such
Underwriter may become obligated to purchase pursuant to the provisions of
Section 10 hereof, bears to the total number of Initial Securities, subject, in
each case, to such adjustments among the Underwriters as the Representative in
its sole discretion shall make to eliminate any sales or purchases of fractional
securities.
(b) Option
Securities. In addition, on the basis of the representations
and warranties herein contained and subject to the terms and conditions herein
set forth, the Company hereby grants an option to the Underwriters, severally
and not jointly, to purchase up to an additional 1,506,276 shares of Common
Stock, as set forth in Schedule A, at the price per share set forth
in
13
Schedule
D, less an amount per share equal to any dividends or distributions declared by
the Company and payable on the Initial Securities but not payable on the Option
Securities. The option hereby granted will expire 30 days after the
date hereof and may be exercised in whole or in part from time to time only for
the purpose of covering over-allotments which may be made in connection with the
offering and distribution of the Initial Securities upon notice by the
Representative to the Company setting forth the number of Option Securities as
to which the several Underwriters are then exercising the option and the time
and date of payment and delivery for such Option Securities. Any such
time and date of delivery (a “Date of Delivery”) shall be determined by the
Representative, but shall not be later than seven full business days after the
exercise of said option, nor in any event prior to the Closing Time, as
hereinafter defined. If the option is exercised as to all or any
portion of the Option Securities, each of the Underwriters, acting severally and
not jointly, will purchase that proportion of the total number of Option
Securities then being purchased which the number of Initial Securities set forth
in Schedule A opposite the name of such Underwriter bears to the total number of
Initial Securities, subject in each case to such adjustments as the
Representative in its discretion shall make to eliminate any sales or purchases
of fractional shares.
(c)
Payment. Payment
of the purchase price for, and delivery of certificates for, the Initial
Securities shall be made at the offices of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, or at such other place as shall be agreed upon
by the Representative and the Company, at 9:00 a.m. (Eastern time) on the third
(fourth, if the pricing occurs after 4:30 p.m. (Eastern time) on any given day)
business day after the date hereof (unless postponed in accordance with the
provisions of Section 10), or such other time not later than ten business days
after such date as shall be agreed upon by the Representative and the Company
(such time and date of payment and delivery being herein called “Closing
Time”).
In
addition, in the event that any or all of the Option Securities are purchased by
the Underwriters, payment of the purchase price for, and delivery of
certificates for, such Option Securities shall be made at the above-mentioned
offices, or at such other place as shall be agreed upon by the Representative
and the Company, on each Date of Delivery as specified in the notice from the
Representative to the Company.
Payment
shall be made to the Company by wire transfer of immediately available funds to
a bank account designated by the Company against delivery to the Representative
for the respective accounts of the Underwriters of certificates for the
Securities to be purchased by them. It is understood that each
Underwriter has authorized the Representative, for its account, to accept
delivery of, receipt for, and make payment of the purchase price for, the
Initial Securities and the Option Securities, if any, which it has agreed to
purchase. ▇▇▇▇▇▇▇▇▇▇, individually and not as representative of the
Underwriters, may (but shall not be obligated to) make payment of the purchase
price for the Initial Securities or the Option Securities, if any, to be
purchased by any Underwriter whose funds have not been received by the Closing
Time or the relevant Date of Delivery, as the case may be, but such payment
shall not relieve such Underwriter from its obligations hereunder.
(d)
Denominations;
Registration. Certificates for the Initial Securities and the
Option Securities, if any, shall be in such denominations and registered in such
names as the Representatives may request in writing at least one full business
day before the Closing Time or
14
the
relevant Date of Delivery, as the case may be. The certificates for
the Initial Securities and the Option Securities, if any, will be made available
for examination and packaging by the Representative not later than 10:00 a.m.
(Eastern time) on the business day prior to the Closing Time or the relevant
Date of Delivery, as the case may be.
SECTION
3. Covenants of the
Company. The Company covenants with each Underwriter as
follows:
(a)
Compliance with Securities
Regulations and Commission Requests. The Company, subject to
Section 3(b), will comply with the requirements of Rule 430A, as applicable, and
will notify the Representative immediately, and confirm the notice in writing,
(i) when any post-effective amendment to the Registration Statement shall become
effective, or any supplement to the Prospectus or any amended Prospectus shall
have been filed, (ii) of the receipt of any comments from the Commission, (iii)
of any request by the Commission for any amendment to the Registration Statement
or any amendment or supplement to the Prospectus or for additional information,
(iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the suspension of the
qualification of the Securities for offering or sale in any jurisdiction, or of
the initiation or threatening of any proceedings for any of such purposes or of
any examination pursuant to Section 8(e) of the 1933 Act concerning the
Registration Statement and (v) if the Company becomes the subject of a
proceeding under Section 8A of the 1933 Act in connection with the offering of
the Securities. The Company will promptly effect the filings
necessary pursuant to Rule 424(b) in the manner and within the time period
required by Rule 424(b) (without reliance on Rule 424(b)(8)) and will take such
steps as it deems necessary to ascertain promptly whether the form of prospectus
transmitted for filing under Rule 424(b) was received for filing by the
Commission and, in the event that it was not, it will promptly file such
prospectus. The Company will make every reasonable effort to prevent
the issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b)
Filing of
Amendments. The Company will give the Representative notice of
its intention to file or prepare any amendment to the Registration Statement
(including any filing under Rule 462(b)), any Term Sheet or any amendment,
supplement or revision to either any preliminary prospectus (including the
prospectus included in the Registration Statement at the time it became
effective) or to the Prospectus, whether pursuant to the 1933 Act, the 1934 Act
or otherwise, will furnish the Representative with copies of any such documents
a reasonable amount of time prior to such proposed filing or use, as the case
may be, and will not file or use any such document to which the Representatives
or counsel for the Underwriters shall object.
(c)
Delivery of Registration
Statements. The Company has furnished or will deliver to the
Representative and counsel for the Underwriters, without charge, signed copies
of the Registration Statement as originally filed and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein and
documents incorporated or deemed to be incorporated by reference therein) and
signed copies of all consents and certificates of experts, and will also deliver
to the Representative, without charge, a conformed copy of the Registration
Statement as originally filed and of each amendment thereto (without exhibits)
for each of the Underwriters. The copies of the Registration
Statement and each amendment thereto furnished
15
to the
Underwriters will be identical to the electronically transmitted copies thereof
filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by
Regulation S-T.
(d)
Delivery of
Prospectuses. The Company has delivered to each Underwriter,
without charge, as many copies of each preliminary prospectus as such
Underwriter reasonably requested, and the Company hereby consents to the use of
such copies for purposes permitted by the 1933 Act. The Company will
furnish to each Underwriter, without charge, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, such
number of copies of the Prospectus (as amended or supplemented) as such
Underwriter may reasonably request. The Prospectus and any amendments
or supplements thereto furnished to the Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission pursuant to
▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(e)
Continued Compliance with Securities
Laws. The Company will comply in all material respects with
the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act
Regulations so as to permit the completion of the distribution of the Securities
as contemplated in this Agreement and in the Prospectus. If at any
time when a prospectus is required by the 1933 Act to be delivered in connection
with sales of the Securities, any event shall occur or condition shall exist as
a result of which it is necessary, in the opinion of counsel for the
Underwriters or for the Company, to amend the Registration Statement or amend or
supplement the Prospectus in order that the Prospectus will not include any
untrue statements of a material fact or omit to state a material fact necessary
in order to make the statements therein not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the opinion of such counsel, at any such time to amend
the Registration Statement or amend or supplement the Prospectus in order to
comply with the requirements of the 1933 Act or the 1933 Act Regulations, the
Company will promptly prepare and file with the Commission, subject to Section
3(b), such amendment or supplement as may be necessary to correct such statement
or omission or to make the Registration Statement or the Prospectus comply with
such requirements, and the Company will furnish to the Underwriters such number
of copies of such amendment or supplement as the Underwriters may reasonably
request. If at any time following issuance of an Issuer-Represented
Free Writing Prospectus there occurred or occurs an event or development as a
result of which such Issuer-Represented Free Writing Prospectus conflicted or
would conflict with the information contained in the Registration Statement or
included or would include an untrue statement of a material fact or omitted or
would omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances prevailing at that subsequent time,
not misleading, the Company has promptly notified or will promptly notify the
Representative and has promptly amended or will promptly amend or supplement, at
its own expense, such Issuer-Represented Free Writing Prospectus to eliminate or
correct such conflict, untrue statement or omission.
(f)
Blue Sky
Qualifications. The Company will use its best efforts, in
cooperation with the Underwriters, to qualify the Securities for offering and
sale under the applicable securities laws of such states and other jurisdictions
(domestic or foreign) as the Representatives may designate and to maintain such
qualifications in effect for a period of not less than one year from the later
of the effective date of the Registration Statement and any Rule 462(b)
Registration Statement; provided, however, that the Company shall not be
obligated to file any general consent to service of process or to qualify as a
foreign corporation or as a dealer in
16
securities
in any jurisdiction in which it is not so qualified or to subject itself to
taxation in respect of doing business in any jurisdiction in which it is not
otherwise so subject. In each jurisdiction in which the Securities
have been so qualified, the Company will file such statements and reports as may
be required by the laws of such jurisdiction to continue such qualification in
effect for a period of not less than one year from the effective date of the
Registration Statement and any Rule 462(b) Registration
Statement. The Company will also supply the Underwriters with such
information as is necessary for the determination of the legality of the
Securities for investment under the laws of such jurisdiction as the
Underwriters may request.
(g)
Rule 158. The
Company will timely file such reports pursuant to the 1934 Act as are necessary
in order to make generally available to its securityholders as soon as
practicable an earnings statement for the purposes of, and to provide the
benefits contemplated by, the last paragraph of Section 11(a) of the 1933
Act.
(h)
Use of
Proceeds. The Company will use the net proceeds received by it
from the sale of the Securities in the manner specified in the Prospectus under
“Use of Proceeds”.
(i)
Listing. The
Company will use its best efforts to obtain, effect and maintain the quotation
of the Securities on the Nasdaq Global Select Market and will file with the
Nasdaq Global Select Market all documents and notices required by the Nasdaq
Global Select Market of companies that have securities that are traded in the
over-the-counter market and quotations for which are reported by the Nasdaq
Global Select Market.
(j)
Restriction on Sale of
Securities. During a period of 90 days from the date of this
Agreement, the Company will not, without the prior written consent of
▇▇▇▇▇▇▇▇▇▇, (i) directly or indirectly, offer, pledge, sell, contract to sell,
sell any option or contract to purchase, purchase any option or contract to
sell, grant any option, right or warrant to purchase or otherwise transfer or
dispose of any share of Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock or file any registration statement
under the 1933 Act with respect to any of the foregoing or (ii) enter into any
swap or any other agreement or any transaction that transfers, in whole or in
part, directly or indirectly, the economic consequence of ownership of the
Common Stock, whether any such swap or transaction described in clause (i) or
(ii) above is to be settled by delivery of Common Stock or such other
securities, in cash or otherwise. The foregoing sentence shall not
apply to (A) the Securities to be sold hereunder, (B) any shares of Common Stock
issued by the Company upon the exercise of an option or warrant or the
conversion of a security outstanding on the date hereof and referred to in the
Prospectus, or (C) any shares of Common Stock issued or options to purchase
Common Stock granted pursuant to existing employee benefit plans of the Company
referred to in the Prospectus provided that such options shall not be vested and
exercisable within the 90 day period referred to above.
(k)
Reporting
Requirements. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will
file all documents required to be filed with the Commission pursuant to the 1934
Act within the time periods required by the 1934 Act and the 1934 Act
Regulations.
17
(l)
Issuer Free Writing
Prospectus. The Company represents and agrees that, unless it
obtains the prior consent of ▇▇▇▇▇▇▇▇▇▇, it has not made and will not make any
offer relating to the Securities that would constitute an “issuer free writing
prospectus,” as defined in Rule 433, or that would otherwise constitute a “free
writing prospectus,” as defined in Rule 405, required to be filed with the
Commission. Any such free writing prospectus consented to by the
Representative is hereinafter referred to as an “Issuer Permitted Free Writing
Prospectus.” The Company represents that it has treated or agrees that it
will treat each Issuer Permitted Free Writing Prospectus as an “issuer free
writing prospectus,” as defined in Rule 433, and has complied and will comply
with the requirements of Rule 433 applicable to any Issuer Permitted Free
Writing Prospectus, including timely filing with the Commission where required,
legending and record keeping.
SECTION
4. Payment of
Expenses.
(a)
Expenses. The
Company will pay or cause to be paid 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 thereto, (ii) the
preparation, printing and delivery to the Underwriters of this Agreement, any
Agreement among Underwriters and such other documents as may be required in
connection with the offering, purchase, sale, issuance or delivery of the
Securities, (iii) the preparation, issuance and delivery of the certificates for
the Securities to the Underwriters, including any stock or other transfer taxes
and any stamp or other duties payable upon the sale, issuance or delivery of the
Securities to the Underwriters, (iv) the fees and disbursements of the Company’s
counsel, accountants and other advisors, (v) the qualification of the Securities
under securities laws in accordance with the provisions of Section 3(f) hereof,
including filing fees in connection therewith and in connection with the
preparation of the Blue Sky Survey and any supplement thereto, (vi) the printing
and delivery to the Underwriters of copies of each preliminary prospectus, any
Issuer Permitted Free Writing Prospectus and of the Prospectus and any
amendments or supplements thereto (including any costs associated with
electronic delivery of these materials), (vii) the preparation, printing and
delivery to the Underwriters of copies of the Blue Sky Survey and any supplement
thereto, (viii) the fees and expenses of any transfer agent or registrar for the
Securities, (ix) the costs and expenses of the Company relating to investor
presentations on any “road show” undertaken in connection with the marketing of
the Securities, including without limitation, expenses associated with the
production of road show slides and graphics, fees and expenses of any
consultants engaged in connection with the road show presentations, travel and
lodging expenses of the representatives and officers of the Company and any such
consultants, and the cost of aircraft and other transportation chartered in
connection with the road show, and (x) the filing fees incident to the review by
the Financial Industry Regulatory Authority (the “FINRA”) of the terms of the
sale of the Securities and (xi) the fees and expenses incurred in connection
with the inclusion of the Securities in the Nasdaq Global Select
Market.
In
addition to the expenses to be borne by the Company pursuant to the preceding
paragraph, the Company agrees to reimburse the Underwriters, upon request made
from time to time, for their reasonable out-of-pocket expenses incurred in
connection with their engagement hereunder, including legal fees and expenses,
marketing, syndication and travel expenses; provided that such expenses will not
exceed $75,000.
18
(b)
Termination of
Agreement. If this Agreement is terminated by the
Representative in accordance with the provisions of Section 5 or Section 9(a)(i)
hereof, the Company shall reimburse the Underwriters for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
SECTION
5. Conditions of Underwriters’
Obligations. The obligations of the several Underwriters
hereunder are subject to the accuracy of the representations and warranties of
the Company contained in Section 1 hereof or in certificates of any officer of
the Company or any subsidiary of the Company delivered pursuant to the
provisions hereof, to the performance by the Company of its covenants and other
obligations hereunder, and to the following further conditions:
(a) Effectiveness of Registration
Statement. The Registration Statement, including any Rule
462(b) Registration Statement, has become effective and at Closing Time no stop
order suspending the effectiveness of the Registration Statement shall have been
issued under the 1933 Act or proceedings therefor initiated or threatened by the
Commission, and any request on the part of the Commission for additional
information shall have been complied with to the reasonable satisfaction of
counsel to the Underwriters. A prospectus containing the Rule 430A
Information shall have been filed with the Commission in the manner and within
the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)) (or
a post-effective amendment providing such information shall have been filed and
declared effective in accordance with the requirements of Rule
430A).
(b) Opinion of Counsel for
Company. At Closing Time, the Representative shall have
received the favorable opinion, dated as of Closing Time, of Breyer &
Associates PC, counsel for the Company, in form and substance satisfactory to
counsel for the Underwriters, together with signed or reproduced copies of such
letter for each of the other Underwriters to the effect set forth in Exhibit A
hereto and to such further effect as counsel to the Underwriters may reasonably
request, each in form and substance satisfactory to counsel for the
Underwriters, together with signed or reproduced copies of such letter for each
of the other Underwriters.
(c)
Opinion of Counsel for
Underwriters. At Closing Time, the Representative shall have
received the favorable opinion, dated as of Closing Time, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
LLP, counsel for the Underwriters, with respect to certain legal matters under
the federal law of the United States and certain states thereof, together with
signed or reproduced copies of such letter for each of the other
Underwriters. The opinion shall address the matters set forth in
clauses (i), (v), (vi) (solely as to preemptive or other similar rights arising
by operation of law or under the articles of incorporation or by-laws of the
Company), (viii) through (x), inclusive, (xiv) (solely as to the information in
the Prospectus under “Description of Capital Stock”) and the penultimate
paragraph of Exhibit A hereto. In giving such opinion such counsel
may rely upon the opinions of counsel for the Company and any other counsel
satisfactory to the Representative. Such counsel may also state that,
insofar as such opinion involves factual matters, they have relied, to the
extent they deem proper, upon certificates of officers of the Company and its
subsidiaries and certificates of public officials.
(d)
Officers’
Certificate. At Closing Time, there shall not have been, since
the date hereof or since the respective dates as of which information is given
in the preliminary
19
prospectus,
the General Disclosure Package or the Prospectus as of the execution of this
Agreement or the Applicable Time, any material adverse change in the financial
condition, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, and the Representative shall have
received a certificate of the President and Chief Executive Officer or a Vice
President of the Company and of the chief financial or chief accounting officer
of the Company, dated as of Closing Time, to the effect that (i) there has been
no such material adverse change, (ii) the representations and warranties in
Section 1(a) hereof are true and correct with the same force and effect as
though expressly made at and as of Closing Time, (iii) the Company has complied
with all agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to Closing Time, and (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceedings
for that purpose have been instituted or are pending or are to their knowledge
contemplated by the Commission.
(e)
Accountant ‘s Comfort
Letter. At the time of the execution of this Agreement, the
Representative shall have received from Deloitte & Touche LLP a letter dated
such date, in form and substance satisfactory to the Representative, together
with signed or reproduced copies of such letter for each of the other
Underwriters containing statements and information of the type ordinarily
included in accountants’ “comfort letters” to underwriters with respect to the
financial statements and certain financial information contained in the
Registration Statement and the Prospectus.
(f)
Bring-down Comfort
Letter. At Closing Time, the Representative shall have
received from Deloitte & Touche LLP a letter, dated as of Closing Time, to
the effect that they reaffirm the statements made in the letter furnished
pursuant to subsection (e) of this Section, except that the specified date
referred to shall be a date not more than three business days prior to Closing
Time.
(g)
Approval of
Listing. The Common Stock (including the Securities) is
registered pursuant to Section 12(b) of the Exchange Act and is listed on the
Nasdaq Global Select Market, and the Company has taken no action designed to, or
likely to have the effect of, terminating the registration of the Common Stock
under the Exchange Act or delisting the Common Stock from the Nasdaq Global
Select Market, nor has the Company received any notification that the Commission
or the Nasdaq Global Select Market is contemplating terminating such
registration or listing.
(h)
No Objection. The
F1NRA shall have confirmed that it has not raised any objection with respect to
the fairness and reasonableness of the underwriting terms and
arrangements.
(i)
Lock-up
Agreements. At the date of this Agreement, the Representative
shall have received an agreement substantially in the form of Exhibit B hereto
signed by the persons listed on Schedule E hereto.
(j)
Delivery of
Prospectus. The Company shall have complied with the
provisions hereof with respect to the furnishing of prospectuses, in electronic
or printed format, on the business day in the State of Washington next
succeeding the date of this Agreement.
20
(k)
No Termination
Event. On or after the date hereof, there shall not have
occurred any of the events, circumstances or occurrences set forth in Section
9(a).
(l)
Conditions to Purchase of Option
Securities. In the event that the Underwriters exercise their
option provided in Section 2(b) hereof to purchase all or any portion of the
Option Securities, the representations and warranties of the Company contained
herein and the statements in any certificates furnished by the Company and any
subsidiary of the Company hereunder shall be true and correct as of each Date of
Delivery and, at the relevant Date of Delivery, the Representative shall have
received:
(i)
Officers’
Certificate. A certificate, dated such Date of Delivery, of
the President and Chief Executive Officer or a Vice President of the Company and
of the chief financial or chief accounting officer of the Company confirming
that the certificate delivered at the Closing Time pursuant to Section 5(d)
hereof remains true and correct as of such Date of Delivery.
(ii)
Opinion of Counsel for
Company. The favorable opinion of Breyer & Associates PC,
counsel for the Company, in form and substance satisfactory to counsel for the
Underwriters, dated such Date of Delivery, relating to the Option Securities to
be purchased on such Date of Delivery and otherwise to the same effect as the
opinion required by Section 5(b) hereof.
(iii)
Opinion of Counsel for
Underwriters. The favorable opinion of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
LLP, counsel for the Underwriters, dated such Date of Delivery, relating to the
Option Securities to be purchased on such Date of Delivery and otherwise to the
same effect as the opinion required by Section 5(d) hereof.
(iv)
Bring-down Comfort
Letter. A letter from Deloitte & Touche LLP, in form and
substance satisfactory to the Representative and dated such Date of Delivery,
substantially in the same form and substance as the letter furnished to the
Representative pursuant to Section 5(e) hereof, except that the “specified date”
in the letter furnished pursuant to this paragraph shall be a date not more than
five days prior to such Date of Delivery.
(v)
No Termination
Event. There shall not have occurred prior to the Date of
Delivery any of the events, circumstances or occurrences set forth in Section
9(a).
(m)
Additional
Documents. At Closing Time and at each Date of Delivery
counsel for the Underwriters shall have been furnished with such documents and
opinions as they may require for the purpose of enabling them to pass upon the
issuance and sale of the Securities as herein contemplated, or in order to
evidence the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Company in connection with the issuance and sale of the Securities
as herein contemplated shall be satisfactory in form and substance to the
Representative and counsel for the Underwriters.
(n)
Termination of
Agreement. If any condition specified in this Section shall
not have been fulfilled when and as required to be fulfilled, this Agreement,
or, in the case of any condition to the purchase of Option Securities on a Date
of Delivery which is after the Closing
21
Time, the
obligations of the several Underwriters to purchase the relevant Option
Securities, may be terminated by the Representative by notice to the Company at
any time at or prior to Closing Time or such Date of Delivery, as the case may
be, and such termination shall be without liability of any party to any other
party except as provided in Section 4 and except that Sections 1, 6, 7 and 8
shall survive any such termination and remain in full force and
effect.
SECTION
6. Indemnification.
(a)
Indemnification of
Underwriters. The Company agrees to indemnify and hold
harmless each Underwriter, its affiliates (as such term is defined in rule
501(b) under the ▇▇▇▇ ▇▇▇) (“Affiliates”), its selling agents, and each person,
if any, who controls any Underwriter within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act to the extent and in the manner set forth
in clauses (i), (ii) and (iii) below as follows:
(i)
against
any and all loss, liability, claim, damage and expense whatsoever, as incurred,
arising out of any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement (or any amendment thereto),
including the Rule 430A Information, if applicable, or the omission or alleged
omission therefrom of a material fact required to be stated therein or necessary
to make the statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact included in any
preliminary prospectus, any Issuer-Represented Free Writing Prospectus, the
General Disclosure Package or the Prospectus (or any amendment or supplement
thereto), or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii)
against
any and all loss, liability, claim, damage and expense whatsoever, as incurred,
to the extent of the aggregate amount paid in settlement of any litigation, or
any investigation or proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission; provided that
(subject to Section 6(d) below) any such settlement is effected with the written
consent of the Company; and
(iii)
against
any and all expense whatsoever, as incurred (including the fees and
disbursements of counsel chosen by ▇▇▇▇▇▇▇▇▇▇), 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), (ii) or (iii) above;
provided, however, that this
indemnity agreement shall not apply to any loss, liability, claim, damage or
expense to the extent arising out of any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with
written information furnished to the Company by any Underwriter through
▇▇▇▇▇▇▇▇▇▇ expressly for use in the Registration Statement (or any amendment
thereto), including the Rule 430A Information, if applicable, or any preliminary
prospectus, any Issuer-Represented Free Writing Prospectus, or the Prospectus
(or any amendment or supplement thereto); provided that the parties acknowledge
and agree that the only written information that the Underwriters have furnished
to the Company
22
specifically
for inclusion in the Registration Statement, preliminary prospectus and
Prospectus (or any amendment or supplement thereto) are the concession and
reallowance figures appearing in the Prospectus in the section entitled
“Underwriting” and the information contained under the caption “Underwriting —
Price Stabilization and Short Positions.”
(b)
Indemnification of Company,
Directors and Officers. Each Underwriter severally agrees to
indemnify and hold harmless the Company, its directors, each of its officers who
signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act, against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto), including the Rule 430A Information, if applicable, or any
preliminary prospectus, or any Issuer-Represented Free Writing Prospectus, the
General Disclosure Package or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Company by such Underwriter through ▇▇▇▇▇▇▇▇▇▇ expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary
prospectus, or any Issuer-Represented Free Writing Prospectus, the General
Disclosure Package or the Prospectus (or any amendment or supplement thereto);
provided that the parties acknowledge and agree that the only written
information that the Underwriters have furnished to the Company specifically for
inclusion in the Registration Statement, preliminary prospectus, or any
Issuer-Represented Free Writing Prospectus and Prospectus (or any amendment or
supplement thereto) are the concession and reallowance figures appearing in the
Prospectus in the section entitled “Underwriting” and the information contained
under the caption “Underwriting — Price Stabilization and Short Positions,” and
“Selling Restrictions.”
(c)
Actions against Parties;
Notification. Each indemnified party shall give notice as
promptly as reasonably practicable to each indemnifying party of any action
commenced against it in respect of which indemnity may be sought hereunder, but
failure to so notify an indemnifying party shall not relieve such indemnifying
party from any liability hereunder to the extent it is not materially prejudiced
as a result thereof and in any event shall not relieve it from any liability
which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section
6(a) above, counsel to the indemnified parties shall be selected by ▇▇▇▇▇▇▇▇▇▇,
and, in the case of parties indemnified pursuant to Section 6(b) above, counsel
to the indemnified parties shall be selected by the Company. An
indemnifying party may participate at its own expense in the defense of any such
action; provided, however, that counsel to the indemnifying party shall not
(except with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying parties be
liable for fees and expenses of more than one counsel (in addition to any local
counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or
circumstances. No indemnifying party shall, without the prior written
consent of the indemnified parties, settle or compromise or consent to the entry
of any judgment with respect to any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any
claim whatsoever in respect of which indemnification or contribution could be
sought under this Section 6 or Section 7 hereof (whether or not the indemnified
parties are actual or potential parties thereto), unless such settlement,
compromise or
23
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.
(d)
Settlement Without Consent if
Failure to Reimburse. If at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel, such indemnifying party agrees that it shall
be liable for any settlement of the nature contemplated by Section 6(a)(ii)
effected without its written consent if (i) such settlement is entered into more
than 45 days after receipt by such indemnifying party of the aforesaid request,
(ii) such indemnifying party shall have received notice of the terms of such
settlement at least 30 days prior to such settlement being entered into and
(iii) such indemnifying party shall not have reimbursed such indemnified party
in accordance with such request prior to the date of such
settlement.
SECTION
7. Contribution. If
the indemnification provided for in Section 6 hereof is for any reason
unavailable to or insufficient to hold harmless an indemnified party in respect
of any losses, liabilities, claims, damages or expenses referred to therein,
then each indemnifying party shall contribute to the aggregate amount of such
losses, liabilities, claims, damages and expenses incurred by such indemnified
party, as incurred, (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other hand from the offering of the Securities pursuant to this Agreement
or (ii) if the allocation provided by clause (i) is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Company on the one hand and of the Underwriters on the other hand in connection
with the statements or omissions which resulted in such losses, liabilities,
claims, damages or expenses, as well as any other relevant equitable
considerations.
The
relative benefits received by the Company on the one hand and the Underwriters
on the other hand in connection with the offering of the Securities pursuant to
this Agreement shall be deemed to be in the same respective proportions as the
total net proceeds from the offering of the Securities pursuant to this
Agreement (before deducting expenses) received by the Company, on the one hand,
and the total underwriting discount and commissions received by the
Underwriters, on the other hand, in each case as set forth on the cover of the
Prospectus.
The
relative fault of the Company, on the one hand, and the Underwriters, on the
other hand, shall be determined by reference to, among other things, whether any
such untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by the
Company or by the Underwriters and the parties’ relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The
Company and the Underwriters agree that it would not be just and equitable if
contribution pursuant to this Section 7 were determined by pro rata allocation
(even if the Underwriters were treated as one entity for such purpose) or by any
other method of allocation which does not take account of the equitable
considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
24
indemnified
party and referred to above in this Section 7 shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding
the provisions of this Section 7, no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the
Securities underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such Underwriter has otherwise
been required to pay by reason of any such untrue or alleged untrue statement or
omission or alleged omission.
No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
For
purposes of this Section 7, each person, if any, who controls an Underwriter
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
and each Underwriter’s Affiliates and selling agents shall have the same rights
to contribution as such Underwriter, and each director of the Company, each
officer of the Company who signed the Registration Statement, and each person,
if any, who controls the Company within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act shall have the same rights to contribution as
the Company. The Underwriters’ respective obligations to contribute
pursuant to this Section 7 are several in proportion to the number of Initial
Securities set forth opposite their respective names in Schedule A hereto and
not joint.
SECTION
8. Representations, Warranties
and Agreements to Survive Delivery. All representations,
warranties and agreements contained in this Agreement or in certificates of
officers of the Company or any of its subsidiaries submitted pursuant hereto,
shall remain operative and in full force and effect, regardless of any (i)
investigation made by or on behalf of any Underwriter or its Affiliates or
selling agents, any person controlling any Underwriter, its officers or
directors, or by or on behalf of the Company, and (ii) delivery of and payment
for the Securities.
SECTION
9. Termination of
Agreement.
(a)
Termination;
General. The Representative may terminate this Agreement, by
notice to the Company, at any time at or prior to Closing Time (i) if there has
been, since the time of execution of this Agreement or since the respective
dates as of which information is given in the preliminary prospectus, the
General Disclosure Package or the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, or (ii)
if there has occurred any material adverse change in the financial markets in
the United States, any outbreak of hostilities or escalation thereof or other
calamity or crisis or any change or development involving a prospective change
in national or international political, financial or economic conditions,
including without limitation as a result of terrorist activities, in each case
the effect of which is
25
such as
to make it, in the judgment of the Representative, impracticable or inadvisable
to market the Securities or to enforce contracts for the sale of the Securities,
or (iii) if trading in any securities of the Company has been suspended or
materially limited by the Commission or the Nasdaq Global Select Market, or if
trading generally on the American Stock Exchange or the New York Stock Exchange
or in the Nasdaq Global Select Market has been suspended or materially limited,
or minimum or maximum prices for trading have been fixed, or maximum ranges for
prices have been required, by any of said exchanges or by such system or by
order of the Commission, the National Association of Securities Dealers, Inc. or
any other governmental authority, or (iv) a material disruption has occurred in
commercial banking or securities settlement or clearance services in the United
States or with respect to Clearstream or Euroclear Systems in Europe, or (v) if
a banking moratorium has been declared by either Federal, Washington or New York
authorities.
(b)
Liabilities. If
this Agreement is terminated pursuant to this Section, such termination shall be
without liability of any party to any other party except as provided in Section
4 hereof, and provided further that Sections 1, 6, 7 and 8 shall survive such
termination and remain in full force and effect.
SECTION
10. Default by One or More of
the Underwriters. If one or more of the Underwriters shall
fail at Closing Time or a Date of Delivery to purchase the Securities which it
or they are obligated to purchase under this Agreement (the “Defaulted
Securities”), the Representative shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, the Representative shall not have completed
such arrangements within such 24-hour period, then:
(a)
if the
number of Defaulted Securities does not exceed 10% of the number of Securities
to be purchased on such date, each of the non-defaulting Underwriters shall be
obligated, severally and not jointly, to purchase the full amount thereof in the
proportions that their respective underwriting obligations hereunder bear to the
underwriting obligations of all non-defaulting Underwriters, or
(b)
if the
number of Defaulted Securities exceeds 10% of the number of Securities to be
purchased on such date, this Agreement or, with respect to any Date of Delivery
which occurs after the Closing Time, the obligation of the Underwriters to
purchase and of the Company to sell the
(c)
Option
Securities to be purchased and sold on such Date of Delivery shall terminate
without liability on the part of any non-defaulting Underwriter.
No action
taken pursuant to this Section shall relieve any defaulting Underwriter from
liability in respect of its default.
In the
event of any such default which does not result in a termination of this
Agreement or, in the case of a Date of Delivery which is after the Closing Time,
which does not result in a termination of the obligation of the Underwriters to
purchase and the Company to sell the
26
relevant
Option Securities, as the case maybe, either (i) the Representative or (ii) the
Company shall have the right to postpone Closing Time or the relevant Date of
Delivery, as the case may be, for a period not exceeding seven days in order to
effect any required changes in the Registration Statement or Prospectus or in
any other documents or arrangements. As used herein, the term
“Underwriter” includes any person substituted for an Underwriter under this
Section 10.
SECTION
11. Notices. All
notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted by any standard form of
telecommunication. Notices to the Underwriters shall be directed to
the Representative at ▇▇▇▇▇▇▇▇▇▇ Securities, Inc., ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, attention of Syndicate Desk; notices to the Company
shall be directed to it at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Chairman of the Board and Chief
Executive Officer.
SECTION
12. Parties. This
Agreement shall each inure to the benefit of and be binding upon the
Underwriters, 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 Underwriters, the Company
and their respective successors and the controlling persons and officers and
directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This
Agreement and all conditions and provisions hereof are intended to be for the
sole and exclusive benefit of the Underwriters, the Company and their respective
successors, and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Securities from any Underwriter shall be
deemed to be a successor by reason merely of such purchase.
SECTION
13. No
Fiduciaries. The Company acknowledges and agrees that (i) the
purchase and sale of the Securities pursuant to this Agreement, including the
determination of the public offering price of the Securities and any related
discounts and commissions, is an arm’s-length commercial transaction between the
Company, on the one hand, and the several Underwriters, on the other hand, (ii)
in connection with the offering contemplated hereby and the process leading to
such transaction each Underwriter is and has been acting solely as a principal
and is not the agent or fiduciary of the Company, or their respective
shareholders, creditors, employees or any other third party, (iii) no
Underwriter has assumed or will assume an advisory or fiduciary responsibility
in favor of the Company with respect to the offering contemplated hereby or the
process leading thereto (irrespective of whether such Underwriter has advised or
is currently advising the Company on other matters) and no Underwriter has any
obligation to the Company with respect to the offering contemplated hereby
except the obligations expressly set forth in this Agreement, (iv) the
Underwriters and their respective affiliates may be engaged in a broad range of
transactions that involve interests that differ from those of the Company, and
(v) the Underwriters have not provided any legal, accounting, regulatory or tax
advice with respect to the offering contemplated hereby and the Company has
consulted its own legal, accounting, regulatory and tax advisors to the extent
it deemed appropriate.
27
SECTION
14. GOVERNING LAW AND
TIME. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SPECIFIED TIMES OF
DAY REFER TO EASTERN STANDARD TIME.
SECTION
15. General
Provisions. This Agreement constitutes the entire agreement of
the parties to this Agreement and supersedes all prior written or oral and all
contemporaneous oral agreements, understandings and negotiations with respect to
the subject matter hereof. This Agreement may be executed in two or
more counterparts, each one of which shall be an original, but all of which
together shall constitute one and the same instrument. The exchange
of copies of this Agreement and of signature pages by facsimile or other
electronic means shall constitute effective execution and delivery of this
Agreement by the parties hereto and may be used in lieu of the original
signature pages to this Agreement for all purposes. This Agreement
may not be amended or modified unless in writing by all of the parties hereto,
and no condition herein (express or implied) may be waived unless waived in
writing by each party whom the condition is meant to benefit. The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
28
If the
foregoing is in accordance with your understanding of our agreement, please sign
and return to the
Company a counterpart hereof, whereupon this instrument, along with all
counterparts, will become a binding agreement among the Underwriters and the
Company in accordance with its terms.
| Very truly yours, | |
| RIVERVIEW BANCORP, INC. | |
| By: /s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |
| Authorized Signatory |
|
|
CONFIRMED
AND ACCEPTED,
|
|
|
as of the date first above written:
|
|
|
▇▇▇▇▇▇▇▇▇▇
SECURITIES, INC.
|
|
|
By: /s/J. ▇▇▇▇▇▇
▇▇▇▇▇
|
|
|
Authorized Signatory
|
For
themselves and as Representative of the other Underwriters named in Schedule A
hereto.
29
SCHEDULE
A
|
Name of Underwriter
|
Number
of Initial
Securities
|
Maximum
Number of
Option Securities to be
Sold
|
||
|
▇▇▇▇▇▇▇▇▇▇
Securities, Inc.
|
6,527,197
|
979,080
|
||
|
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇, Inc.
|
3,514,644
|
527,196
|
||
|
Total
|
10,041,841 | 1,506,276 |
Schedule
A - 1
SCHEDULE
B
Issuer-Represented
General Free Writing Prospectus
Free
Writing Prospectus Filed on July 16, 2010
Schedule
B - 1
SCHEDULE
C
List of
Subsidiaries
Subsidiaries
of Riverview Bancorp, Inc.:
Riverview
Community Bank
Subsidiaries
of Riverview Community Bank:
Riverview
Services, Inc.
Riverview
Asset Management Corp.
Schedule
C - 1
SCHEDULE
D
RIVERVIEW
BANCORP, INC.
10,041,841 Shares
of Common Stock
($0.01
Par Value Per Share)
1. The
initial public offering price per share for the Securities, determined as
provided in said Section 2, shall be $1.80.
2. The
purchase price per share for the Securities to be paid by the several
Underwriters shall be $1.674, being an amount equal to the initial public
offering price set forth above less $0.126 per share; provided that the purchase
price per share for any Option Securities purchased upon the exercise of the
over-allotment option described in Section 2(b) shall be reduced by an amount
per share equal to any dividends or distributions declared by the Company and
payable on the Initial Securities but not payable on the Option
Securities.
Schedule
D - 1
SCHEDULE
E
List of
Persons and Entities Subject to Lock-Up Agreement
Riverview
Community Bank Employee Stock Ownership Plan Trust
▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇.
▇▇▇▇
▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇
▇▇▇▇▇ ▇.
▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇
▇▇▇▇ ▇.
▇▇▇▇▇
▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇
Schedule
E - 1
Exhibit
A-Form of ▇▇▇▇▇ Opinion
[Intentionally
Omitted]
Exhibit A
- 1
Exhibit
B-Form of Lock-Up Agreement
▇▇▇▇▇▇▇▇▇▇
SECURITIES, INC.
as
Representative of the several
Underwriters
to be named in the
▇▇▇▇▇▇▇▇▇▇
Securities, Inc.
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇
Re: Proposed
Public Offering by Riverview Bancorp, Inc.
Dear
Sirs/Madams:
This
letter is being delivered to you in connection with the proposed Underwriting
Agreement (the “Underwriting Agreement”) between Riverview Bancorp, Inc., a
Washington corporation (the “Company”), and ▇▇▇▇▇▇▇▇▇▇ Securities, Inc.
(“▇▇▇▇▇▇▇▇▇▇”), as representative of the underwriters named therein (the
“Underwriters”), relating to an underwritten public offering of shares of Common
Stock, $0.01 par value per share (the “Common Stock”), of the
Company.
In order
to induce the Underwriters to enter into the Underwriting Agreement and in
recognition of the benefit that the underwritten public offering will confer
upon the undersigned as a shareholder, director and/or executive officer of the
Company, the undersigned agrees that the undersigned will not, during a period
of 90 days from the date of the Underwriting Agreement, without the prior
written consent of ▇▇▇▇▇▇▇▇▇▇, directly or indirectly, (i) offer, pledge, sell,
contract to sell, sell any option or contract to purchase, purchase any option
or contract to sell, grant any option, right or warrant for the sale of, or
otherwise dispose of or transfer any shares of the Company’s Common Stock or any
securities convertible into or exchangeable or exercisable for Common Stock,
whether now owned or hereafter acquired by the undersigned or with respect to
which the undersigned has or hereafter acquires the power of disposition or file
any registration statement under the Securities Act of 1933, as amended, with
respect to any of the foregoing, or (ii) enter into any swap or any other
agreement or any transaction that transfers, in whole or in part, directly or
indirectly, the economic consequence of ownership of the Common Stock, whether
any such swap or transaction is to be settled by delivery of Common Stock or
other securities, in cash or otherwise. In the event that either (i)
during the period that begins on the date that is 15 calendar days plus three
(3) business days before the last day of the 90-day restricted period and ends
on the last day of the 90-day restricted period, the Company issues an earnings
release or material news or a material event relating to the Company and/or
Riverview Community Bank occurs, or (ii) prior to the expiration of the 90-day
restricted period, the Company announces that it will release earnings results
during the 16-day period beginning on the last day of the 90-day restricted
period, the restrictions
Exhibit B-1
Notwithstanding
the foregoing, the undersigned may transfer the undersigned’s
shares of Common Stock (i) as a bona fide gift or gifts, provided that the donee
or donees agree to be bound in writing by the restrictions set forth herein,
(ii) to any trust or family limited partnership for the direct or indirect
benefit of the undersigned or the immediate family of the undersigned, provided
that the trustee or general partner of the family limited partnership, as the
case may be, agrees to be bound by the restrictions set forth herein, and
provided further that any such transfer shall not involve a disposition for
value, (iii) pledged in a bona fide transaction as of the date hereof to a
lender to the undersigned, as disclosed in writing to ▇▇▇▇▇▇▇▇▇▇, (iv) pursuant
to the exercise by the undersigned of stock options that have been granted by
the Company prior to, and are outstanding as of, the date of the Underwriting
Agreement, where the Common Stock received upon any such exercise is held by the
undersigned, individually or as a fiduciary, in accordance with the terms of
this Lock-Up Agreement, (v) upon the death of the undersigned to his or her
executors, administrators, testamentary trustees, legatees or beneficiaries,
provided that all such transferees agree to be bound by the restrictions set
forth herein, or (vi) with the prior written consent of
▇▇▇▇▇▇▇▇▇▇. For purposes of this Lock-Up Agreement, “immediate
family” shall mean any relationship by blood, marriage or adoption, not more
remote than first cousin.
The
undersigned now has and, except as contemplated by clauses (i) through (v)
above, for the duration of the Lock-Up Agreement will have good and marketable
title to the undersigned’s shares of Common Stock, free and clear of all liens,
encumbrances, and claims whatsoever, except with respect to any liens,
encumbrances and claims that were in existence on the date
hereof. The undersigned also agrees and consents to the entry of stop
transfer instructions with the Company’s transfer agent and registrar against
the transfer of the undersigned’s common stock, except in compliance with this
Lock-Up Agreement. In furtherance of the foregoing, the Company and
its transfer agent are hereby authorized to decline to make any transfer of
securities if such transfer would constitute a violation or breach of this
Lock-Up Agreement.
The
undersigned represents and warrants that the undersigned has full power and
authority to enter into this Lock-Up Agreement. The undersigned
agrees that the provisions of this Lock-Up Agreement shall be binding also upon
the successors, assigns, heirs and personal representatives of the
undersigned.
The
undersigned understands that, if the Underwriting Agreement shall be executed
but thereafter the Underwriting Agreement (other than the provisions thereof
which survive termination) shall terminate or be terminated prior to payment for
and delivery of the Common Stock to be sold thereunder, the undersigned shall be
released from all obligations under this Lock-Up Agreement.
Exhibit B-2
This
Lock-Up Agreement shall be governed by and construed in accordance with the laws
of the State of New York.
| Very truly yours, | |
| Signature: _____________________ | |
| Print Name: _____________________ |
| Exhibit B -3 |