1,430,000 Shares CENTER BANCORP, INC. Common Stock UNDERWRITING AGREEMENT
1,430,000
Shares
CENTER
BANCORP, INC.
Common
Stock
September
22, 2010
▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ & COMPANY, INCORPORATED
▇▇▇ ▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies
and Gentlemen:
Center Bancorp, Inc., a New Jersey
corporation (the “Company”),
proposes to issue and sell to ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated
(“▇▇▇▇▇▇
▇▇▇▇▇▇▇▇” or the “Underwriter”)
an aggregate of 1,430,000 shares (the “Shares”)
of the common stock, no par value per share, of the Company (“Common
Stock”).
The
Company confirms as follows its agreements with the Underwriter.
1. The
Company represents and warrants to, and agrees with, the Underwriter that, as of
the date hereof and as of the Closing Date (as defined herein):
(i) The
Company has filed with the Securities and Exchange Commission (the “Commission”)
a registration statement on Form S-3 (File No. 333-165787) (the “Initial
Registration Statement”) in respect of the Shares; the Initial
Registration Statement and any post effective amendment thereto, each in the
form heretofore delivered to the Underwriter and, excluding exhibits to the
Initial Registration Statement, but including all documents incorporated by
reference in the prospectus included therein, have been declared effective by
the Commission in such form; other than a registration statement, if any,
increasing the size of the offering (a “Rule 462(b)
Registration Statement”), filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended (the “Securities
Act”), which became effective upon filing, no other document amending or
supplementing the Initial Registration Statement has heretofore been filed, or
transmitted for filing, with the Commission (other than (x) any amendment or
addition to the documents incorporated by reference in the Initial Registration
Statement and (y) prospectuses filed pursuant to Rule 424(b) of the rules and
regulations of the Commission under the Securities Act (the “Securities Act
Regulations”), each in the form heretofore delivered to the Underwriter)
(the base prospectus filed as part of the Initial Registration Statement, in the
form in which it has most recently been filed with the Commission on or prior to
the date of this Agreement relating to the Shares, is hereinafter called the
“Basic
Prospectus”; any preliminary prospectus (including any preliminary
prospectus supplement) relating to the Shares filed with the Commission pursuant
to Rule 424(b) of the Securities Act Regulations is hereinafter called a “Preliminary
Prospectus”; the various parts of the Initial Registration Statement and
the Rule 462(b) Registration Statement, if any, including all exhibits thereto
and including any prospectus supplement relating to the Shares that is filed
with the Commission and deemed by virtue of Rule 430B of the Securities Act
Regulations to be part of the Initial Registration Statement, each as amended at
the time such part of the Initial Registration Statement became effective or
such part of the Rule 462(b) Registration Statement, if any, became or hereafter
becomes effective, are hereinafter collectively called the “Registration
Statement”; the Basic Prospectus, as amended and supplemented immediately
prior to the Applicable Time (as defined in Section 1(iv) hereof), is
hereinafter called the “Pricing
Prospectus”; the form of the final prospectus relating to the Shares
filed with Commission pursuant to Rule 424(b) of the Securities Act Regulations
in accordance with Section 5(a) hereof is hereinafter called the “Prospectus”;
any reference herein to the Basic Prospectus, the Pricing Prospectus, any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to Item 12 of Form S-3,
as of the date of such prospectus; any reference to any amendment or supplement
to the Basic Prospectus, any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include any post-effective amendment to the Registration
Statement, any prospectus supplement relating to the Shares filed with the
Commission pursuant to Rule 424(b) of the Securities Act Regulations and any
documents filed under the Securities Exchange Act of 1934, as amended (the
“Exchange
Act”), and incorporated therein, in each case after the date of the Basic
Prospectus, such Preliminary Prospectus or the Prospectus, as the case may be;
any reference to any amendment to the Registration Statement shall be deemed to
refer to and include any annual report of the Company filed pursuant to Section
13(a) or 15(d) of the Exchange Act after the effective date of the Registration
Statement that is incorporated by reference in the Registration Statement. For
purposes of this Agreement, all references to the Registration Statement, any
Preliminary Prospectus, 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, the Basic Prospectus, any Preliminary Prospectus or the Prospectus
(or other references of like import) shall be deemed to mean and include all
such financial statements (including pro forma financial
information) and schedules and other information which is incorporated by
reference in or otherwise deemed by the Securities Act Regulations to be a part
of or included in the Registration Statement, the Basic Prospectus, any
Preliminary Prospectus or the Prospectus, as the case may be;
(ii) Each
of the Registration Statement, any Rule 462(b) Registration Statement and any
post-effective amendment thereto and any part thereof has become effective under
the Securities Act, and no stop order suspending the effectiveness of the
Registration Statement, any Rule 462(b) Registration Statement and any
post-effective amendment thereto and any part thereof has been issued under the
Securities Act and no proceedings for that purpose have been instituted or are
pending or are contemplated by the Commission, and any request on the part of
the Commission for additional information has been complied with;
(iii) (1) 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 Date, the Registration Statement, any Rule 462(b) Registration Statement
and any amendments and supplements thereto complied and will comply in all
material respects with the requirements of the Securities Act and the Securities
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, and (2) at the time the
Prospectus or any amendments or supplements thereto were issued and at the
Closing Date, neither the Prospectus nor any amendment or supplement thereto
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; provided that the representations and warranties in clauses (1) and
(2) above shall not apply to statements in or omissions from the Registration
Statement or the Prospectus made in reliance upon and in strict conformity with
information furnished to the Company in writing by the Underwriter expressly for
use in the Registration Statement or the Prospectus, it being understood and
agreed that the only such information provided by the Underwriter is that
described as such in Section 10(b) hereof; and no order preventing or
suspending the use of any Preliminary Prospectus, the Pricing Prospectus or any
Issuer Free Writing Prospectus (as defined below) has been issued by the
Commission. “Issuer Free
Writing Prospectus” means any “issuer free writing prospectus,” as
defined in Rule 433 of the Securities Act Regulations (“Rule
433”), relating to the Shares that (i) is required to be filed with the
Commission by the Company, (ii) is a “road show that is a written communication”
within the meaning of Rule 433(d)(8)(i) whether or not required to be filed with
the Commission or (iii) is exempt from filing pursuant to Rule 433(d)(5)(i)
because it contains a description of the Shares 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 required to be
retained in the Company’s records pursuant to Rule 433(g);
2
(2) (A) each Preliminary
Prospectus, Pricing Prospectus, Issuer Free Writing Prospectus and the Basic
Prospectus and Prospectus filed pursuant to Rule 424 under the Securities Act,
complied when so filed in all material respects with the requirements of the
Securities Act and the Securities Act Regulations and did not include an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, provided that the
representations and warranties in this clause (iii)(2)(A) shall not apply to
statements in or omissions from any such document made in reliance upon and in
conformity with information furnished to the Company in writing by the
Underwriter expressly for use therein, it being understood and agreed that the
only such information provided by the Underwriter is that described as such in
Section 10(b) hereof, (B) each Preliminary Prospectus, Pricing Prospectus,
Issuer Free Writing Prospectus and the Basic Prospectus and Prospectus delivered
to the Underwriter 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, (C) to the extent
applicable, all disclosures contained in each Preliminary Prospectus, Pricing
Prospectus, and the Basic Prospectus and 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 Exchange Act and Item 10 of
Regulation S-K under the Securities Act, as applicable, (D) there are no
statutes, regulations, documents or contracts of a character required to be
described in the Registration Statement, Basic Prospectus, each Preliminary
Prospectus, the Pricing Prospectus or the Prospectus or to be filed as an
exhibit to the Registration Statement which are not described or filed as
required, (E) no forward-looking statement (within the meaning of Section 27A of
the Securities Act and Section 21E of the Exchange Act) contained in the
Registration Statement, Basic Prospectus, each Preliminary Prospectus, the
Pricing Prospectus and the Prospectus has been made or reaffirmed without a
reasonable basis or has been disclosed other than in good faith, and (F) the
statistical information required by the Commission Industry Guide 3 (“Guide 3”)
included or incorporated by reference in the Registration Statement, Basic
Prospectus, each Preliminary Prospectus, the Pricing Prospectus and the
Prospectus has been derived from the records of the Company and presents fairly
the information set forth therein, is in material compliance with the Securities
Act and the Securities Act Regulations and Guide 3, and is consistent in all
material respects with the Company’s financial statements included or
incorporated by reference in the Registration Statement, Basic Prospectus, each
Preliminary Prospectus, the Pricing Prospectus and the Prospectus and the other
statistical and market and industry-related data included in the Registration
Statement, Basic Prospectus, each Preliminary Prospectus, the Pricing Prospectus
and the Prospectus are based on or derived from sources which the Company
believes to be reliable and accurate or represent the Company’s good faith
estimates that are made on the basis of data derived from such sources, and the
Company has obtained the written consent to the use of such data from sources to
the extent required;
3
(3) the
Company meets the requirements for the use of Form S-3 under the Securities Act
and the use of such form is appropriate under the Securities Act Regulations,
and the Company is eligible under the Securities Act to furnish information
under Form S-3 by incorporating such information by reference to Company
filings made pursuant the Exchange Act, and the Company was not at the time
of initial filing of the Registration Statement and at the earliest time
thereafter that the Company or another offering participant made a bona fide offer (within the
meaning of Rule 164(h)(2) of the Securities Act) of the Shares, an
“ineligible issuer” (as defined in Rule 405);
(4) the
documents incorporated or deemed incorporated by reference in the Registration
Statement, Basic Prospectus, each Preliminary Prospectus, the Pricing Prospectus
and the Prospectus, at the time they were filed with the Commission (or, with
respect to any such incorporated document that has been amended, at the time the
latest amendment thereto was filed with the Commission), complied in all
material respects with the requirements of the Securities Act, the Securities
Act Regulations, the Exchange Act and the rules and regulations of the
Commission thereunder (the “Exchange Act
Regulations”), and such incorporated documents constitute all the
documents required to be incorporated under Form S-3, and such incorporated
documents, at the time they were filed, or with respect to any incorporated
document that was amended, at the time the amendment was filed, and at the
Closing Date, did not and will not contain an untrue statement of a material
fact required to be stated therein or necessary to make the statements therein
not misleading, provided that the representations and warranties in this clause
(iii)(4) shall not apply to statements in or omissions from any such document
made in reliance upon and in conformity with information furnished to the
Company in writing by the Underwriter expressly for use therein, it being
understood and agreed that the only such information provided by the Underwriter
is that described as such in Section 10(b) hereof;
(iv) for
the purposes of this Agreement, the “Applicable
Time” is 8:00 a.m. (Eastern time) on the date of this Agreement; the
Pricing Prospectus as supplemented by the Issuer Free Writing Prospectuses and
other documents listed in Schedule I hereto,
taken together (collectively, the “Pricing
Disclosure Package”) as of the Applicable Time, did not include any
untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; and each Issuer Free Writing Prospectus
listed on Schedule
I hereto does not conflict with the information contained in the
Registration Statement, the Basic Prospectus, the Pricing Prospectus or the
Prospectus and each such Issuer Free Writing Prospectus, as supplemented by and
taken together with the Pricing Disclosure Package as of the Applicable Time,
did not include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; provided, however,
that this representation and warranty shall not apply to statements or omissions
from the Pricing Disclosure Package or an Issuer Free Writing Prospectus made in
reliance upon and in strict conformity with information furnished in writing to
the Company by the Underwriter expressly for use therein; it being understood
and agreed that the only such information provided by the Underwriter is that
described as such in Section 10(b) hereof;
(v) the
Company has been duly incorporated and is validly existing as a corporation in
good standing under the laws of the State of New Jersey, with power and
authority (corporate and other) to own, lease and operate its properties and
conduct its business as described in the Registration Statement, Basic
Prospectus, each Preliminary Prospectus, the Pricing Prospectus and the
Prospectus and to enter into and perform its obligations under this Agreement,
and has been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other jurisdiction in
which it owns or leases properties or conducts any business so as to require
such qualification, except where the failure to qualify or be in good standing
would not have a material adverse effect on the general affairs, business,
management, financial position, shareholders’ equity or results of operations of
the Company and each of its direct and indirect subsidiaries (the “Subsidiaries”),
considered as one enterprise (a “Material Adverse
Effect”);
4
(vi) (1) the
Company is duly registered and qualified as a bank holding company under the
applicable provisions of the Bank Holding Company Act of 1956, as amended (the
“BHC
Act”), and each of the Company and Union Center National Bank, a national
banking association (the “Bank”) is
in compliance in all material respects with all applicable laws administered by
and regulations of the Board of Governors of the Federal Reserve (the “FRB”), the
Federal Deposit Insurance Corporation (the “FDIC”),
the Office of the Comptroller of the Currency (the “OCC”) and
any other federal or state bank regulatory authority (collectively, the “Bank Regulatory
Authorities”) with jurisdiction over the Company or the Bank, and, except
as otherwise disclosed in the Registration Statement, Basic Prospectus, each
Preliminary Prospectus, the Pricing Prospectus and the Prospectus, neither the
Company nor the Bank is a party to any written agreement or memorandum of
understanding with, or a party to, any commitment letter or similar undertaking
to, or is subject to any order or directive by, or is a recipient of an
extraordinary supervisory letter from, or has adopted any board resolutions at
the request of, any Bank Regulatory Authority which restricts the conduct of its
business, or in any manner relates to its capital adequacy, its credit policies
or its management, nor have either of them been advised by any Bank Regulatory
Authority that it is contemplating issuing or requesting (or is considering the
appropriateness of requesting) any such order, decree, agreement, memorandum of
understanding, extraordinary supervisory letter, commitment letter or similar
submission, or any such board resolutions;
(2) the
activities of the Company and each of its Subsidiaries are permitted under
applicable federal and state banking laws and regulations, and the Company has
all necessary approvals, including the approval of the Bank Regulatory
Authorities to own, directly or indirectly, the capital stock of the
Subsidiaries;
(3) no
report or application filed by the Company or any of its Subsidiaries with any
Bank Regulatory Authority as of the date it was filed or, if amended, as of the
filing date of the latest amendment thereto, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading when made or failed
to comply with the applicable requirements of the applicable Bank Regulatory
Authority, except for such failures to comply with applicable requirements as
would not individually or in the aggregate have a Material Adverse
Effect.
(4) the
deposit accounts of the Bank are insured by the FDIC up to the maximum amount
provided by law, and no proceedings for the modification, termination or
revocation of any such insurance are pending or, to the knowledge of the
Company, threatened;
(5) the
operations of the Company and the Subsidiaries are, and have been conducted at
all times, in compliance with applicable financial recordkeeping and reporting
requirements of the Bank Secrecy Act, the Currency and Foreign Transactions
Reporting Act of 1970, as amended, the Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of
2001, the money laundering statutes of all applicable jurisdictions, the rules
and regulations thereunder and any related or similar rules, regulations or
guidelines issued, administered or enforced by any governmental agency
(collectively, the “Money Laundering
Laws”) and no action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the Company
or any Subsidiary with respect to any Money Laundering Laws is pending or, to
the knowledge of the Company, threatened;
5
(6) the
Bank and the other Subsidiaries have administered all accounts for which they
act as a fiduciary, including but not limited to accounts for which they serve
as a trustee, agent, custodian, personal representative, guardian, conservator
or investment advisor, in accordance with the terms of the governing documents
and applicable state and federal law and regulation and common law, except for
failures to administer accounts in accordance with governing documents and
applicable laws as would not individually or in the aggregate have a Material
Adverse Effect; and none of the Bank or other Subsidiaries nor any of their
directors, officers or employees has committed any material breach of trust with
respect to any such fiduciary account, and the accountings for each such
fiduciary account are true and correct and accurately reflect the assets of such
fiduciary account in all material respects;
(7) the
most recent regulatory rating given to the Bank as to compliance with the
Community Reinvestment Act of 1977, as amended (the “CRA”) is
“satisfactory,” and since the Bank’s last regulatory examination of CRA
compliance, the Bank has not received any complaints as to CRA
compliance;
(vii) none
of the Company, any of its Subsidiaries or, to the knowledge of the Company, any
director, officer, agent, employee or affiliate of the Company or any of its
Subsidiaries is currently subject to any U.S. sanctions administered by the
Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”);
and the Company will not directly or indirectly use the proceeds of the offering
of the Shares hereunder, or lend, contribute or otherwise make available such
proceeds to any Subsidiary, joint venture partner or other person or entity, for
the purpose of financing the activities of any person currently subject to any
U.S. sanctions administered by OFAC;
(viii) other
than the Bank, no Subsidiary is a “significant subsidiary,” as such term is
defined in 17 C.F.R. Section 210.1-02(w); each Subsidiary has been duly
incorporated (or organized) and is validly existing as a corporation (or other
organization) in good standing under the laws of the jurisdiction of its
incorporation (or organization), with power and authority to own, lease and
operate its properties and conduct its business as described in the Registration
Statement, the Basic Prospectus, each Preliminary Prospectus, the Pricing
Prospectus and the Prospectus, and has been duly qualified as a foreign
corporation (or other organization) for the transaction of business and is in
good standing under the laws of each other jurisdiction in which its owns or
leases properties or conducts any business so as to require such qualification,
except where the failure to qualify or be in good standing would not,
individually or in the aggregate, have a Material Adverse Effect; and all of the
issued and outstanding capital stock (or other ownership interests) of each
Subsidiary has been duly and validly authorized and 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, and all of such capital stock (or other ownership interest) is
valued on the books of the Company and its Subsidiaries in accordance with
generally accepted accounting principles in the United States of America (“GAAP”);
(ix) (1) the
Company has an authorized capitalization as set forth in the Registration
Statement, Basic Prospectus, each Preliminary Prospectus, the Pricing Prospectus
and the Prospectus, and all of the issued and outstanding shares of capital
stock of the Company have been duly and validly authorized and issued, are fully
paid and non-assessable and conform to the descriptions thereof contained in the
Registration Statement, Basic Prospectus, each Preliminary Prospectus, the
Pricing Prospectus and the Prospectus, and none of the issued and outstanding
shares of capital stock of the Company are subject to any preemptive or similar
rights; except as disclosed in the Registration Statement, Basic Prospectus,
each Preliminary Prospectus, the Pricing Prospectus and the Prospectus,
(A) there are no outstanding rights (contractual or otherwise), warrants or
options to acquire, or instruments convertible into or exchangeable for, or
agreements or understandings with respect to the sale or issuance of, any shares
of capital stock of or other equity interest in the Company or any of its
Subsidiaries; and (B) there are no contracts, agreements or understandings
between the Company and any person granting such person the right to require the
Company to file a registration statement under the Securities Act or otherwise
register any securities of the Company owned or to be owned by such
person;
6
(2) since
January 1, 2007, all offers and sales of the Company’s capital stock and other
debt or securities were made in compliance with, or were the subject of an
available exemption from, the Securities Act and all other applicable state and
federal laws or regulations;
(3) the
Common Stock is registered pursuant to Section 12(b) of the Exchange Act and is
listed on the NASDAQ Global Select Market (“NASDAQ”), 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 NASDAQ, nor has the Company received any notification that the
Commission or NASDAQ is contemplating terminating such registration or listing,
and the Company has applied to list the Shares on NASDAQ and the Shares will be
so listed on or before the Closing Date (or the Option Closing Date, if
applicable), and the transactions contemplated by this Agreement will not
contravene the rules and regulations of NASDAQ;
(4) except
as otherwise disclosed in the Registration Statement, Basic Prospectus, each
Preliminary Prospectus, the Pricing Prospectus and the Prospectus, (A) none of
the Company nor any Subsidiary is prohibited or restricted, directly or
indirectly, from paying dividends or from making any other distribution with
respect to their respective equity, debt or hybrid securities, and (B) no
Subsidiary is restricted, except by banking laws of general applicability, from
repaying to the Company or any other subsidiary of the Company any amounts that
may from time to time become due under any loans or advances to each Subsidiary
from the Company or from transferring any property or assets to the Company or
to any other Subsidiary;
(x) the
Shares have been duly and validly authorized and, when issued and delivered to
and paid for by the Underwriter in accordance with the terms of this Agreement,
will be duly and validly issued and fully paid and non-assessable and will
conform to the descriptions thereof contained in the Registration Statement,
Basic Prospectus, each Preliminary Prospectus, the Pricing Prospectus and the
Prospectus, and the issuance of such Shares is not subject to any preemptive or
similar rights;
(xi) this
Agreement has been duly authorized, executed and delivered by the Company and
constitutes a valid and binding obligation of the Company, enforceable against
the Company in accordance with its terms, except as the enforceability hereof
may be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to creditors’ rights generally or by general equitable
principles (whether considered in an action at law or in equity) and except as
the rights to indemnification and contribution hereunder may be limited by
federal or state securities laws, and this Agreement conforms in all material
respects to the description thereof contained in the Registration Statement,
Basic Prospectus, each Preliminary Prospectus, the Pricing Prospectus and the
Prospectus;
(xii) the
issue and sale of the Shares, the execution of this Agreement by the Company and
the compliance by the Company with all of the provisions of this Agreement and
the consummation of the transactions herein contemplated will not conflict with
or result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or any of the
Subsidiaries is a party or by which the Company or any of the Subsidiaries is
bound or to which any of the property or assets of the Company or any of the
Subsidiaries is subject, nor will such action result in any violation of the
provisions of the certificate or articles of incorporation or by-laws (or other
organization documents) of the Company or any of the Subsidiaries or any statute
or any order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Company or any of the Subsidiaries or any of their
properties; and no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is
required for the issue and sale of the Shares or the consummation by the Company
of the transactions contemplated by this Agreement, except the registration
under the Securities Act of the Shares and such consents, approvals,
authorizations, registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and distribution of
the Shares by the Underwriter;
7
(xiii) (1)
ParenteBeard LLC, who have certified certain financial statements of the Company
and the Subsidiaries are independent public accountants as required by the
Securities Act, the Securities Act Regulations, the Exchange Act and the
Exchange Act Regulations, (2) ▇▇▇▇▇ ▇▇▇▇▇▇ Company LLP, who have certified
certain financial statements of the Company and the Subsidiaries are independent
public accountants as required by the Securities Act, the Securities Act
Regulations, the Exchange Act and the Exchange Act Regulations, (3) the
financial statements, together with related schedules and notes, included in the
Registration Statement, Basic Prospectus, each Preliminary Prospectus, the
Pricing Prospectus and the Prospectus comply in all material respects with the
requirements of the Securities Act and present fairly the consolidated financial
position, results of operations and changes in financial position of the Company
and the Subsidiaries on the basis stated in the Registration Statement at the
respective dates or for the respective periods to which they apply, (4) such
statements and related schedules and notes have been prepared in accordance with
generally accepted accounting principles consistently applied throughout the
periods involved, except as disclosed therein, and (5) the selected financial
data and the summary financial data included in the Pricing Prospectus present
fairly the information shown therein and have been compiled on a basis
consistent with that of the financial statements included in the Registration
Statement;
(xiv) neither
the Company nor any Subsidiary has sustained since the date of the latest
audited financial statements included or incorporated by reference in the
Registration Statement, Basic Prospectus, each Preliminary Prospectus, the
Pricing Prospectus and the Prospectus any material loss or interference with its
business from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental action, order
or decree, otherwise than as set forth or contemplated in the Registration
Statement, Basic Prospectus, each Preliminary Prospectus, the Pricing
Prospectus, and the Prospectus; since the respective dates as of which
information is given in the Registration Statement, Basic Prospectus, each
Preliminary Prospectus, and the Pricing Prospectus, (1) there has not been any
change in the capital stock of the Company or any of the Subsidiaries (except
for any changes from (A) the exercise of options to acquire Common Shares
granted under the Company’s equity incentive plans in existence on the date
hereof, (B) the grant of stock awards under such equity incentive plans or (C)
the issuance of Common Shares pursuant to the Company’s 401(k) plan) or any
changes in long-term debt (except any change from the repayment of any Federal
Home Loan Bank advance or borrowing) of the Company or any of the Subsidiaries
on a consolidated basis, (2) there has not been any event that would constitute
a Material Adverse Effect, or any development involving a prospective event that
may reasonably be expected to have a Material Adverse Effect, (3) except as set
forth in the Registration Statement, Basic Prospectus, each Preliminary
Prospectus, the Pricing Prospectus and the Prospectus, there have been no
transactions entered into by, and no obligations or liabilities, contingent or
otherwise, incurred by the Company or any of the Subsidiaries, whether or not in
the ordinary course of business, which are material to the Company and the
Subsidiaries, considered as one enterprise, and (4) there has been no dividend
or distribution of any kind declared, paid or made by the Company on any class
of its capital stock, in each case, otherwise than as set forth or contemplated
in the Registration Statement, Basic Prospectus, each Preliminary Prospectus,
the Pricing Prospectus and the Prospectus;
(xv) neither
the Company nor any of the Subsidiaries is (1) in violation of its certificate
or articles of incorporation or bylaws (or other organization documents), (2) in
violation of any law, ordinance, administrative or governmental rule or
regulation applicable to the Company or any of the Subsidiaries, (3) in
violation of any decree of any court or governmental agency or body having
jurisdiction over the Company or any of the Subsidiaries, or (4) in default in
the performance of any obligation, agreement or condition contained in any bond,
debenture, note or any other evidence of indebtedness or in any agreement,
indenture, lease or other instrument to which the Company or any of the
Subsidiaries is a party or by which any of them or any of their respective
properties may be bound; except in the case of clauses (2, (3), and (4) where
the violation or default would not, individually or in the aggregate, have a
Material Adverse Effect;
8
(xvi) the
Company and each Subsidiary has good and marketable title to all real and
personal property owned by it, in each case free and clear of all liens,
encumbrances and defects except such as are described in the Registration
Statement, Basic Prospectus, each Preliminary Prospectus, the Pricing Prospectus
and the Prospectus or such as would not, individually or in the aggregate, have
a Material Adverse Effect, and any real property and buildings held under lease
by the Company or any Subsidiary are held under valid, subsisting and
enforceable leases, except such as are described in the Registration Statement,
each Preliminary Prospectus, the Pricing Prospectus and the Prospectus or such
as would not, individually or in the aggregate, have a Material Adverse
Effect;
(xvii) other
than as set forth in the Registration Statement, the Basic Prospectus, each
Preliminary Prospectus, the Pricing Prospectus and the Prospectus, there are no
legal or governmental proceedings pending to which the Company or any of the
Subsidiaries is a party or of which any property of the Company or any of the
Subsidiaries is the subject which, if determined adversely to the Company or the
Subsidiary, individually or in the aggregate, would have or may reasonably be
expected to have a Material Adverse Effect, or would prevent or impair the
consummation of the transactions contemplated by this Agreement, or which are
required to be described in the Registration Statement, the Basic Prospectus,
each Preliminary Prospectus, the Pricing Prospectus and the Prospectus; and, to
the best of the Company’s knowledge, no such proceedings are threatened or
contemplated by governmental authorities or others;
(xviii) the
Company and the Subsidiaries possess all permits, licenses, approvals, consents
and other authorizations (collectively, “Permits”)
issued by the appropriate federal, state, local or foreign regulatory agencies
or bodies necessary to conduct the businesses now operated by them; the Company
and the Subsidiaries are in compliance with the terms and conditions of all such
Permits and all of the Permits are valid and in full force and effect, and
neither the Company nor any Subsidiary has received any notice of proceedings
relating to the revocation or material modification of any such Permits; except
where the failure to possess or comply with such Permit would not, individually
or in the aggregate, have a Material Adverse Effect
(xix) the
Company and the Subsidiaries own or possess, or can acquire on reasonable terms,
all licenses, inventions, copyrights, know-how (including trade secrets and
other unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks and trade names, patents and
patent rights (collectively, “Intellectual
Property”) material to carrying on their businesses as described in the
Pricing Prospectus or the Prospectus, except where the defect in ownership would
not, individually or in the aggregate, have a Material Adverse Effect, and
neither the Company nor any Subsidiary has received any correspondence relating
to any Intellectual Property or notice of infringement of or conflict with
asserted rights of others with respect to any Intellectual Property which would
render any Intellectual Property invalid or inadequate to protect the interest
of the Company and the Subsidiaries, except where such claims, if determined
adversely, would not, individually or in the aggregate, have a Material Adverse
Effect;
(xx) no
labor dispute with the employees of the Company or the Subsidiaries exists, or,
to the knowledge of the Company, is imminent;
9
(xxi) the
Company and the Subsidiaries are insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are prudent
and customary in the businesses in which they are engaged, neither the Company
nor any Subsidiary has been refused any insurance coverage sought or applied
for, and the Company has no reason to believe that either it or any Subsidiary
will not be able to renew its existing insurance coverage as and when such
coverage expires or to obtain similar coverage from similar insurers as may be
necessary to continue its business at a cost that would not have a Material
Adverse Effect;
(xxii) each
of the Company and its Subsidiaries has good and marketable title to all
securities held by it (except securities sold under repurchase agreements or
held in any fiduciary or agency capacity) free and clear of any lien, claim,
charge, option, encumbrance, mortgage, pledge or security interest or other
restriction of any kind, except to the extent such securities are pledged in the
ordinary course of business to secure obligations of the Company or any of its
Subsidiaries and except for such defects in title or liens, claims, charges,
options, encumbrances, mortgages, pledges or security interests or other
restrictions of any kind that would not be material to the Company and its
subsidiaries. Such securities are valued on the books of the Company and its
subsidiaries in accordance with GAAP;
(xxiii) since
January 1, 2007, neither the Company nor any of its Subsidiaries has been a
party to, or has owned, any swaps, caps, floors, futures, forward contracts,
option agreements (other than employee stock options) and other derivative
financial instruments, contracts or arrangements, whether entered into for the
account of the Company or one of its Subsidiaries or for the account of a
customer of the Company or one of its Subsidiaries;
(xxiv) the
allowance for loan and lease losses included in the most recent financial
statements of the Company are at an appropriate level in light of estimated
credit losses within the Company’s and its Subsidiaries’ portfolio of loans and
leases as of the date of those financial statements and was prepared in
accordance with GAAP and the regulations and policies of the Bank Regulatory
Authorities having jurisdiction over the Company and its
Subsidiaries;
(xxv) the
Company and its Subsidiaries maintain systems of “internal control over
financial reporting” (as defined in Rule 13a-15(f) of the Exchange Act) that
comply with the requirements of the Exchange Act and have been designed by, or
under the supervision of, their respective principal executive and principal
financial officers, or persons performing similar functions, to provide
reasonable assurance regarding the reliability of financial reporting and the
preparation of financial statements for external purposes in accordance with
generally accepted accounting principles, including, but not limited to internal
accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management’s general or specific
authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with GAAP and to maintain
asset accountability; (iii) access to assets is permitted only in accordance
with management’s general or specific authorization; and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences; since
the date of the latest audited financial statements included or incorporated by
reference in the Registration Statement, the Basic Prospectus, each Preliminary
Prospectus, the Pricing Prospectus and the Prospectus, (1) the Company has not
been advised of (A) any significant deficiencies in the design or operation of
internal controls that could adversely affect the ability of the Company and
each of its Subsidiaries to record, process, summarize and report financial
data, or any material weaknesses in internal controls or (B) any fraud, whether
or not material, that involves management or other employees who have a
significant role in the internal controls of the Company and each of its
Subsidiaries, and (2) there has been 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;
10
(xxvi) the
Company maintains disclosure controls and procedures (as such term is defined in
Rule 13a-15(e) of the Exchange Act) that comply with the requirements of the
Exchange Act, and such disclosure controls and procedures are effective, and the
Company has complied and continues to comply in all material respects with the
corporate governance compliance guidelines set forth in the NASDAQ Listing
Standards;
(xxvii) all
United States federal income tax returns of the Company and the Subsidiaries
required by law to be filed have been filed and all taxes shown by such returns
or otherwise assessed, which are due and payable, have been paid, except
assessments against which appeals have been or will be promptly taken and as to
which adequate reserves have been provided, and the Company and the Subsidiaries
have (1) filed all other tax returns that are required to have been filed by
them pursuant to applicable foreign, state, local or other law, and (2) paid all
taxes due pursuant to such returns or pursuant to any assessment received by the
Company or any Subsidiary except for such taxes, if any, as are being contested
in good faith and as to which adequate reserves have been provided; and the
charges, accruals and reserves on the books of the Company and the Subsidiaries
in respect of any income and corporation tax liability for any years not finally
determined are adequate to meet any assessments or re-assessments for additional
income tax for any years not finally determined;
(xxviii) neither
the Company nor any of the Subsidiaries is in violation of any statute or any
rule, regulation, decision or order of any governmental agency or body or any
court, domestic or foreign, relating to the use, production, disposal or release
of hazardous or toxic substances or relating to the protection or restoration of
the environment or human exposure to hazardous or toxic substances
(collectively, “environmental
laws”), owns or operates any real property contaminated with any
substance that is subject to any environmental laws, is liable for any off-site
disposal or contamination pursuant to any environmental laws, or is subject to
any claim relating to any environmental laws, which violation, contamination,
liability or claim, individually or in the aggregate, would have a Material
Adverse Effect, and the Company is not aware of any pending investigation which
might lead to such a claim;
(xxix) each
employee benefit plan, as defined under the Employee Retirement Income Security
Act of 1974, as amended and the regulations and published interpretations
thereunder (collectively, “ERISA”),
that is maintained, administered or contributed to by the Company or any member
of its “Controlled
Group” (defined as any organization which is a member of a controlled
group of corporations within the meaning of Section 414 of the Internal Revenue
Code of 1986, as amended (the “Code”))
for employees or former employees of the Company and its affiliates (“Plan”) has
been maintained in compliance with its terms and the requirements of any
applicable statutes, orders, rules and regulations, including but not limited to
ERISA and the Code; no prohibited transaction, within the meaning of Section 406
of ERISA or Section 4975 of the Code has occurred with respect to any such Plan
excluding transactions effected pursuant to a statutory or administrative
exemption; for each Plan that is subject to the funding rules of Section 412 of
the Code or Section 302 of ERISA, no “accumulated funding deficiency” as defined
in Section 412 of the Code, whether or not waived, has occurred or is reasonably
expected to occur; the fair market value of the assets of each Plan exceeds the
present value of all benefits accrued under such Plan (determined based on those
assumptions used to fund such Plan); no “reportable event” (within the meaning
of Section 4043(c) of ERISA) has occurred or is reasonably expected to occur;
and neither the Company nor any member of the Controlled Group has incurred, nor
reasonably expects to incur, any liability under Title IV of ERISA (other than
contributions to a Plan, in the ordinary course and without default) in respect
of a Plan (including a “multiemployer plan,” within the meaning of Section
4001(a)(3) of ERISA);
11
(xxx) neither
the Company nor any of its Subsidiaries, or any director, officer, agent,
employee or other person associated with or acting on behalf of the Company or
any of its Subsidiaries, has (1) used any corporate funds for any unlawful
contribution, gift, entertainment or other unlawful expense relating to
political activity, (2) made any direct or indirect unlawful payment to any
foreign or domestic government official or employee from corporate funds, (3)
violated or is in violation of any provision of the Foreign Corrupt Practices
Act of 1977, or (4) made any bribe, unlawful rebate, payoff, influence payment,
kickback or other unlawful payment;
(xxxi) except
as described in the Registration Statement, the Basic Prospectus, each
Preliminary Prospectus, the Pricing Prospectus and the Prospectus, neither the
Company nor any Subsidiary has outstanding, and at the Closing Date, will have
outstanding any options to purchase or any warrants to subscribe for, or any
securities or obligations convertible into, or any contracts or commitments to
issue or sell, any Shares or any such warrants, convertible securities or
obligations, and there are no persons with registration rights or other similar
rights to have securities registered in connection with the filing of the
Registration Statement or otherwise registered by the Company under the
Securities Act;
(xxxii) the
Company is not and, after giving effect to the offering and sale of the Shares
as contemplated herein and the application of the net proceeds therefrom as
described in the Registration Statement, the Basic Prospectus, each Preliminary
Prospectus, the Pricing Prospectus and the Prospectus, will not be an
“investment company,” as such term is defined in the Investment Company Act of
1940, as amended, and the rules and regulations of the Commission thereunder
(collectively, the “Investment
Company Act”);
(xxxiii) the
Company has not distributed and, prior to the later to occur of the Closing Date
(as defined in Section 4 hereof) and completion of distribution of the
Shares, will not distribute any offering materials in connection with the
offering and sale of the Shares, other than the Basic Prospectus, any
Preliminary Prospectus, the Pricing Prospectus, the Prospectus and, subject to
compliance with Section 6 hereof, any Issuer
Free Writing Prospectus; and the Company has not taken and will not take,
directly or indirectly, any action designed to cause or result in, or which
constitutes or might reasonably be expected to constitute, the stabilization or
manipulation of the price of any security of the Company to facilitate the sale
or resale of the Shares or for any other purpose;
(xxxiv) 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;
(xxxv) 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 (“▇▇▇▇▇▇▇▇-▇▇▇▇▇
Act”) and the rules and regulations promulgated in connection therewith,
including Section 402 related to loans and Sections 302 and 906 related to
certifications; and
(xxxvi) any
certificate signed by any officer of the Company delivered to the Underwriter or
to counsel for the Underwriter shall be deemed a representation and warranty by
the Company to the Underwriter as to the matters covered
thereby.
12
2. Subject
to the terms and conditions herein set forth, the Company agrees to sell to the
Underwriter, and the Underwriter agrees, to purchase from the Company 1,430,000
number of Shares, at a purchase price per share of $6.61 (the “Purchase
Price”).
3. It
is understood that the Underwriter proposes to offer the Shares for sale to the
public upon the terms and conditions set forth in the Prospectus.
4. The
Company will deliver the Shares to the Underwriter through the facilities of the
Depository Trust Company (“DTC”) for
the account(s) of the Underwriter, against payment of the purchase price
therefor in Federal (same day) funds by official bank check or checks or wire
transfer drawn to the order of the Company at the office of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
LLP (“▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇”), ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ at 10:00 a.m., New York time , on September 27, 2010,
or at such other time not later than seven full business days thereafter as
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and the Company determine, such time being herein referred to as
the “Closing
Date.” For purposes of Rule 15c6-1 under the Exchange Act, the
Closing Date (if later than the otherwise applicable settlement date) shall be
the settlement date for payment of funds and delivery of securities for all the
Firm Shares.
5. The
Company covenants and agrees with the Underwriter as follows:
(a) The
Company, subject to Section 5(b), will comply with the requirements of Rule 430B
under the Securities Act, and will notify the Underwriter 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, to furnish the
Underwriter with copies thereof, and to file promptly all material required to
be filed by the Company with the Commission pursuant to Rule 433(d) under the
Securities Act, (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 Shares 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 Securities Act concerning the
Registration Statement and (v) if the Company becomes the subject of a
proceeding under Section 8A of the Securities Act in connection with the
offering of the Shares. The Company will promptly effect the filings
necessary pursuant to Rule 424(b) under the Securities Act 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) The
Company will give the Underwriter notice of its intention to file or prepare any
amendment to the Registration Statement (including any filing under Rule 462(b)
under the Securities Act), or any amendment, supplement or revision to the
Prospectus, or any Issuer Free Writing Prospectus, will furnish the Underwriter
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 Underwriter or counsel for the Underwriter shall
object. The Company has given the Underwriter notice of any filings
made pursuant to the Exchange Act or Exchange Act Regulations within 48 hours
prior to the Applicable Time; the Company will give the Underwriter notice of
its intention to make any such filing from the Applicable Time to the Closing
Date and will furnish the Underwriter with copies of any such documents a
reasonable amount of time prior to such proposed filing and will not file or use
any such document to which the Underwriter or counsel for the Underwriter shall
object. The Company will file all material required to be filed with
the Commission pursuant to Rule 433(d) of the Securities Act
Regulations. For the purposes of clarity, nothing in this Section
5(b) shall restrict the Company from making any filings required under the
Exchange Act or the Exchange Act Regulations.
13
(c) If
by the third anniversary (the “Renewal
Deadline”) of the initial effective date of the Registration Statement,
any of the Shares remain unsold by the Underwriter, at the request of the
Underwriter, the Company will file, if it has not already done so and is
eligible to do so, a new shelf registration statement relating to the Shares, in
a form satisfactory to the Underwriter, and will use its best efforts to cause
such registration statement to be declared effective within 180 days after the
Renewal Deadline. The Company will take all other action necessary or
appropriate to permit the public offering and sale of the Shares to continue as
contemplated in the expired registration statement relating to the
Shares. References herein to the Registration Statement shall include
such new automatic shelf registration statement or such new shelf registration
statement, as the case may be.
(d) The
Company has furnished or will deliver to the Underwriter, without charge, four
signed copies of the Initial Registration Statement as originally filed, any
Rule 462(b) Registration Statement and of each amendment to each (including
exhibits filed therewith or incorporated by reference therein) and signed copies
of all consents and certificates of experts, and will also, upon the request of
the Underwriter, deliver to the Underwriter, without charge, a conformed copy of
the Registration Statement as originally filed and of each amendment thereto
(without exhibits). The copies of the Registration Statement and each
amendment thereto furnished to the Underwriter 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) The
Company has delivered to the Underwriter, without charge, as many written and
electronic copies of each Preliminary Prospectus as the Underwriter reasonably
requests, and the Company hereby consents to the use of such copies for purposes
permitted by the Securities Act. The Company will furnish to the
Underwriter, without charge, prior to 5:00 p.m. on the business day next
succeeding the date of this Agreement and from time to time thereafter during
the period when the Prospectus is required to be delivered in connection with
sales of the Shares under the Securities Act or the Exchange Act or in lieu
thereof, the notice referred to in Rule 173(a) under the Securities Act, such
number of written and electronic copies of the Prospectus (as amended or
supplemented) as the Underwriter may reasonably request. The
Prospectus and any amendments or supplements thereto furnished to the
Underwriter will be identical to the electronically transmitted copies thereof
filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by
Regulation S-T.
(f) The
Company will comply with the Securities Act and the Securities Act Regulations
so as to permit the completion of the distribution of the Shares as contemplated
in this Agreement and in the Prospectus. If at any time when, in the
opinion of counsel for the Underwriter, a prospectus is required to be delivered
in connection with sales of the Shares under the Securities Act or the Exchange
Act (or in lieu thereof, the notice referred to in Rule 173(a) under the
Securities Act), any event shall occur or condition shall exist as a result of
which it is necessary, in the opinion of counsel for the Underwriter 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 (or in lieu thereof, the notice referred to in Rule 173(a) under
the Securities Act) is delivered to a purchaser, or if it shall be necessary, in
the opinion of either such counsel, at any such time to amend the Registration
Statement or amend or supplement the Prospectus in order to comply with the
requirements of the Securities Act or the Securities Act Regulations, the
Company will promptly prepare and file with the Commission, subject to Section
5(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 Underwriter such number
of written and electronic copies of such amendment or supplement as the
Underwriter may reasonably request. The Company will provide the
Underwriter with notice of the occurrence of any event during the period
specified above that may give rise to the need to amend or supplement the
Registration Statement or the Prospectus as provided in the preceding sentence
promptly after the occurrence of such event.
14
(g) The
Company will make generally available (within the meaning of Section 11(a) of
the Securities Act) to its security holders and to the Underwriter as soon as
practicable, but not later than 45 days after the end of its fiscal quarter in
which the first anniversary date of the effective date of the Registration
Statement occurs, an earnings statement (in form complying with the provisions
of Rule 158 under the Securities Act) covering a period of at least twelve
consecutive months beginning after the effective date of the Registration
Statement.
(h) The
Company will use the net proceeds received by it from the sale of the Shares in
the manner specified in the Pricing Prospectus under the heading “Use of
Proceeds.”
(i) The
Company will use its best efforts to effect and maintain the listing for
quotation of the Common Stock (including the Shares) on NASDAQ.
(j) During
a period of 90 days from the date of the Prospectus, the Company will not,
without the prior written consent of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, (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 to purchase, lend or
otherwise transfer or dispose of, directly or indirectly, any Common Stock or
any securities convertible into or exercisable or exchangeable for Common Stock
or (ii) enter into any swap or other agreement that transfers, in whole or in
part, any of the economic consequences of ownership of Common Stock, whether any
such 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, other
than (1) the Shares to be sold hereunder, (2) the issuance of options to acquire
shares of Common Stock or stock awards, granted in the ordinary course of
business consistent with past practice, pursuant to the Company’s benefit plans
existing on the date hereof that are referred to in the Prospectus, (3) the
issuance of shares of Common Stock upon the exercise of any such options or upon
the exercise of the warrant issued to the U.S. Department of the Treasury, (4)
the issuance of shares of Common Stock pursuant to the Company’s 401(k) plan, as
such plan may be amended and (5) the sale of 285,000 shares of Common Stock to
certain directors and executive officers of the Company at a price of $7.50 per
share of Common Stock (the “Concurrent Sale”). Notwithstanding the
foregoing, if (A) during the last 17 days of the 90-day restricted period the
Company issues an earnings release or material news or a material event relating
to the Company occurs; or (B) 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 period, the restrictions
imposed by this agreement shall continue to apply until the expiration of the
18-day period beginning on the issuance of the earnings release or the
occurrence of the material news or material event. The Company shall
promptly notify the Underwriter of any earnings release, news or event that may
give rise to an extension of the initial 90-day restricted period.
(k) The
Company, during the period when the Prospectus is required to be delivered in
connection with sales of the Shares under the Securities Act or the Exchange Act
(or in lieu thereof, the notice referred to in Rule 173(a) under the Securities
Act), will (i) file all documents required to be filed with the Commission
pursuant to the Exchange Act within the time periods required by the Exchange
Act and the Exchange Act Regulations and (ii) file with the Commission such
information on Form 10-Q or Form 10-K as may be required pursuant to Rule 463
under the Securities Act.
15
(l) During
a period of five years from the effective date of the Registration Statement,
the Company will furnish to you copies of all reports or other communications
(financial or other) furnished to shareholders generally, and to deliver to you
(i) as soon as they are available, copies of any reports and financial
statements furnished to or filed with the Commission or any national securities
exchange on which any class of securities of the Company is listed (provided,
that the Company shall be deemed to have furnished and delivered such documents
if and when such documents are available through ▇▇▇▇▇ on the Commission’s
website); and (ii) such additional information concerning the business and
financial condition of the Company as you may from time to time reasonably
request (such financial statements to be on a consolidated basis to the extent
the accounts of the Company and the Subsidiaries are consolidated in reports
furnished to its shareholders generally or to the Commission).
(m) If
the Company elects to rely upon Rule 462(b) under the Securities Act, the
Company will file a Rule 462(b) Registration Statement with the Commission in
compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of
this Agreement, and at the time of filing either pay to the Commission the
filing fee for the Rule 462(b) Registration Statement or give irrevocable
instructions for the payment of such fee pursuant to Rule 111(b) under the
Securities Act.
(n) If
so requested by the Underwriter, the Company shall cause to be prepared and
delivered, at its expense, within one business day from the effective date of
this Agreement, to the Underwriter an “electronic Prospectus” to be used by the
Underwriter in connection with the offering and sale of the
Shares. As used herein, the term “electronic Prospectus” means a form
of the most recent Preliminary Prospectus, any Issuer Free Writing Prospectus or
the Prospectus, and any amendment or supplement thereto, that meets each of the
following conditions: (i) it shall be encoded in an electronic
format, satisfactory to the Underwriter, that may be transmitted electronically
by the Underwriter to offerees and purchasers of the Shares, (ii) it shall
disclose the same information as such paper Preliminary Prospectus, Issuer Free
Writing Prospectus or the Prospectus, as the case may be; and (iii) it shall be
in or convertible into a paper format or an electronic format, satisfactory to
the Underwriter, that will allow investors to store and have continuously ready
access to such Preliminary Prospectus, Issuer Free Writing Prospectus or the
Prospectus at any future time, without charge to investors (other than any fee
charged for subscription to the Internet generally). The Company
hereby confirms that, if so requested by the Underwriter, it has included or
will include in the Prospectus filed with the Commission an undertaking that,
upon receipt of a request by an investor or his or her representative, the
Company shall transmit or cause to be transmitted promptly, without charge, a
paper copy of such paper Preliminary Prospectus, Issuer Free Writing Prospectus
or the Prospectus to such investor or representative.
(o) The
Company will use its best efforts, in cooperation with the Underwriter, to
qualify the Shares for offering and sale under the applicable securities laws of
such states and other jurisdictions as the Underwriter may designate and to
maintain such qualifications in effect for a period as long as may be necessary
to complete the distribution of the Shares; provided, however, that the
Company shall not be obligated to file any general consent to service of process
or to qualify as a foreign corporation or as a dealer in securities in any
jurisdiction in which it is not so qualified or to subject itself to taxation in
respect of doing business in any jurisdiction in which it is not otherwise so
subject. The Company will also supply the Underwriter with such
information as is necessary for the determination of the legality of the Shares
for investment under the laws of such jurisdictions as the Underwriter may
request.
16
(p) The
Company represents and agrees that, unless it obtains the prior consent of the
Underwriter, and the Underwriter represents and agrees that, unless it obtains
the prior consent of the Company, it has not made and will not make any offer
relating to the Shares 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
Underwriter or by the Company, as the case may be, is hereinafter referred to as
a “Permitted Free
Writing Prospectus” and is listed on Schedule
I. The Company represents that it has treated or agrees that
it will treat each 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 Permitted Free Writing Prospectus,
including timely filing with the Commission where required, legending and record
keeping.
6.
(a) The
Company represents and agrees with the Underwriter that, without the prior
consent of the Underwriter, it has not made and will not make any offer relating
to the Shares that would constitute a “free writing prospectus” as defined in
Rule 405 under the Securities Act; the Underwriter represents and agrees that,
without the prior consent of the Company and the Underwriter, it has not made
and will not make any offer relating to the Shares that would constitute a free
writing prospectus; any such free writing prospectus the use of which has been
consented to by the Company and the Underwriter is listed on Schedule I
hereto;
(b) The
Company has complied and will comply with the requirements of Rule 433 under the
Securities Act applicable to any Issuer Free Writing Prospectus, including
timely filing with the Commission or retention where required and legending; and
the Company represents that it has satisfied and agrees that it will satisfy the
conditions under Rule 433 under the Securities Act to avoid a requirement to
file with the Commission any electronic road show;
(c) The
Company agrees that if at any time following issuance of an Issuer Free Writing
Prospectus any event occurred or occurs as a result of which such Issuer Free
Writing Prospectus would conflict with the information in the Registration
Statement, the Pricing Prospectus or the Prospectus or would include an untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading, the Company will give prompt notice thereof to
the Underwriter and, if requested by the Underwriter, will prepare and furnish
without charge to the Underwriter an Issuer Free Writing Prospectus or other
document which will correct such conflict, statement or omission; provided,
however, that this representation and warranty shall not apply to any statements
or omissions in an Issuer Free Writing Prospectus made in reliance upon and in
strict conformity with information furnished in writing to the Company by an
Underwriter through the Underwriter expressly for use therein.
(d) The
Company will not take, 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 Shares and will not take any action prohibited
by Regulation M under the Exchange Act in connection with the distribution of
the Shares contemplated hereby.
7. [Intentionally
omitted]
17
8. The
Company covenants and agrees with the Underwriter that, whether or not the
transactions contemplated by this Agreement are consummated, the Company will
pay or cause to be paid all expenses incident to the performance of its
obligations under this Agreement, including (i) the fees, disbursements and
expenses of the Company’s counsel, accountants and other advisors; (ii) filing
fees and all other expenses in connection with the preparation, printing and
filing of the Registration Statement, each Preliminary Prospectus, any Issuer
Free Writing Prospectus and the Prospectus and amendments and supplements
thereto and the mailing and delivering of copies thereof to the Underwriter and
dealers; (iii) the cost of printing or producing this Agreement, closing
documents (including any compilations thereof) and such other documents as may
be required in connection with the offering, purchase, sale and delivery of the
Shares; (iv) all expenses in connection with the qualification of the Shares for
offering and sale under state securities laws, including filing fees and the
reasonable fees and disbursements of counsel for the Underwriter in connection
with such qualification and in connection with the Blue Sky survey up to $5,000;
(v) all fees and expenses in connection with listing the Common Stock (including
the Shares) on NASDAQ; (vi) the filing fees incident to, and the reasonable fees
and disbursements of counsel for the Underwriter in connection with, securing
any required review by the Financial Industry Regulatory Authority (“FINRA”) of
the terms of the sale of the Shares; (vii) all fees and expenses in connection
with the preparation, issuance and delivery of the certificates representing the
Shares to the Underwriter, including any stock or other transfer taxes and any
stamp or other duties payable upon the sale, issuance or delivery of the Shares
to the Underwriter; (viii) the cost and charges of any transfer agent or
registrar; (ix) the transportation and other expenses incurred by the Company in
connection with presentations to prospective purchasers of Shares; (x) transfer
taxes on the resale of any Shares by the Underwriter and any advertising
expenses in connection with offers of Shares; and (xi) all other costs and
expenses incurred by the Company incident to the performance of the Company’s
obligations hereunder which are not otherwise specifically provided for in this
Section. Except as provided in this Section, the Underwriter shall
pay its own expenses, including the fees and disbursements of its counsel (other
than as described in clauses (iv) and (vi) of this Section.
9. The
obligation of the Underwriter to purchase the Shares on the Closing Date is
subject to the performance by the Company of its obligations hereunder and to
the following additional conditions:
(a) The
Prospectus shall have been filed with the Commission pursuant to Rule 424(b)
under the Securities Act within the applicable time period prescribed for such
filing by the Securities Act Regulations and in accordance with
Section 5(a); all material required to be filed by the Company pursuant to
Rule 433(d) under the Securities Act shall have been filed with the Commission
within the applicable time period prescribed for such filing by Rule 433 under
the Securities Act; if the Company has elected to rely upon Rule 462(b) under
the Securities Act, the Rule 462(b) Registration Statement shall have become
effective by 10:00 p.m., Washington, D.C. time, on the date of this Agreement;
no stop order suspending the effectiveness of the Registration Statement or any
part thereof or the Prospectus or any part thereof or any Issuer Free Writing
Prospectus shall have been issued and no proceeding for that purpose shall have
been initiated or threatened by the Commission or any state securities
commission; and all requests for additional information on the part of the
Commission shall have been complied with to the Underwriter’s reasonable
satisfaction.
(b) The
representations and warranties of the Company contained herein are true and
correct on and as of the Closing Date, as if made on and as of the Closing Date,
and the Company shall have complied with all agreements and all conditions on
its part to be performed or satisfied hereunder at or prior to the Closing
Date.
(c) (i) Neither
the Company nor any Subsidiary shall have sustained since the date of the latest
audited financial statements included in the Pricing Prospectus any material
loss or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth or
contemplated in the Pricing Prospectus, and (ii) since the respective dates as
of which information is given in the Registration Statement and the Prospectus,
(1) there shall not have been any change in the capital stock of the Company or
any of the Subsidiaries (except for any changes from (A) the exercise of options
to acquire Common Shares granted under the Company’s equity incentive plans in
effect on the date hereof or the exercise of the warrant to purchase Common
Shares issued to the U.S. Department of the Treasury, (B) the grant of stock
awards under such equity incentive plans, (C) the issuance of Common Shares
pursuant to the Company’s 401(k) plan) or long-term debt (except any change from
the repayment of any Federal Home Loan Bank advance or borrowing) of the Company
on a consolidated basis or (D) the consummation of the Concurrent Sale or (2)
there shall not have been any material adverse change, or any development
involving a prospective material adverse change, in or affecting the general
affairs, business, management, financial position, shareholders’ equity or
results of operations of the Company and the Subsidiaries, considered as one
enterprise, the effect of which, in any such case described in clause (i) or
(ii), is in the judgment of the Underwriter so material and adverse as to make
it impracticable or inadvisable to proceed with the public offering or the
delivery of the Shares being delivered at such Closing Date on the terms and in
the manner contemplated in the Pricing Prospectus.
18
(d) the
Underwriter shall have received on and as of the Closing Date a certificate of
two executive officers of the Company, at least one of whom has specific
knowledge about the Company’s financial matters, satisfactory to the
Underwriter, to the effect (i) that the matters set forth in Section 9(b)
are true and correct (with respect to the respective representations,
warranties, agreements and conditions of the Company), (ii) that none of
the situations set forth in clause (i) or (ii) of Section 9(c) shall have
occurred, and (iii) that no stop order suspending the effectiveness of the
Registration Statement has been issued and to the knowledge of the Company, no
proceedings for that purpose have been instituted or are pending or contemplated
by the Commission.
(e) On
the Closing Date, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ PC (“▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇”) shall have furnished to the Underwriter their favorable written
opinion and letter, dated the Closing Date, in form and substance satisfactory
to counsel for the Underwriter, to the effect set forth in Exhibit A
hereto.
(f) At
the time of execution of this Agreement, ParenteBeard LLC shall have furnished
to the Underwriter a letter, dated the date of delivery thereof, in form and
substance satisfactory to the Underwriter, containing statements and information
of the type customarily 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.
(g) (A)
On the Closing Date, the Underwriter shall have received from ParenteBeard LLC a
letter, dated the Closing Date, to the effect that they reaffirm the statements
made in the letter or letters furnished pursuant to Section 9(f) except that the
specified date referred to shall be a date not more than three business days
prior to the Closing Date.
(h) On
the Closing Date, as the case may be, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, counsel for the
Underwriter, shall have furnished to the Underwriter their favorable opinion
dated the Closing Date, with respect to the due authorization and valid issuance
of the Shares, the Registration Statement, the Prospectus and other related
matters as the Underwriter may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request to enable
them to pass upon such matters. 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. In rendering such opinion,
such counsel may rely, as to the incorporation of the Company and all other
matters covered by the law of the State of New Jersey, upon the opinion of
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, delivered pursuant to Section 9(e).
(i) The
Shares to be delivered on the Closing Date shall have been approved for listing
on NASDAQ, subject to official notice of issuance.
(j) FINRA
shall not have raised any objection with respect to the fairness and
reasonableness of the underwriting terms and conditions.
19
(k) The
Underwriter shall have received “lock-up” agreements, each substantially in the
form of Exhibit
B hereto, from all the executive officers and directors of the Company
and such agreements shall be in full force and effect on the Closing
Date.
(l) On
or prior to the Closing Date, the Company shall have furnished to the
Underwriter such further information, certificates and documents as the
Underwriter shall reasonably request.
(m) On
or after the Applicable Time there shall not have occurred any of the following:
(a) a suspension or material limitation in trading in securities generally
on the NASDAQ Global Select Market or on the New York Stock Exchange, 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 order of the Commission, FINRA or
any other governmental authority, (b) a suspension or material limitation in
trading in the Company’s securities on the NASDAQ Global Select Market, (c) a
general moratorium on commercial banking activities in New Jersey shall have
been declared by Federal or New Jersey State authorities, (d) a new restriction
materially adversely affecting the distribution of the Shares shall have become
effective, (e) a material disruption in the financial markets in the United
States or the international financial markets, the outbreak of hostilities or
escalation thereof involving the United States or the declaration by the United
States of a national emergency or war, or (f) the occurrence of any other
calamity or crisis or any change in national or international political,
financial or economic conditions, in each case of clause (d) through (f) above
the effect of which is such as to make it, in the judgment of the Underwriter,
impracticable or inadvisable to proceed with the public offering or the delivery
of the Shares to be delivered on the Closing Date or to enforce contracts for
the sale of the Shares.
If any condition specified in this
Section 9 shall not have been fulfilled when and as required to be
fulfilled, this Agreement may be terminated, subject to the provisions of
Section 13, by the Underwriter by notice to the Company at any time at or
prior to the Closing Date, and such termination shall be without liability of
any party to any other party, except as provided in
Section 13.
10.
(a) The
Company agrees to indemnify and hold harmless the Underwriter and each person,
if any, who controls the Underwriter within the meaning of Section 15 of the
Securities Act or Section 20(a) of the Exchange Act against any and all losses,
liabilities, claims, damages and expenses whatsoever as incurred (including
without limitation, reasonable attorneys’ fees and any and all reasonable
expenses whatsoever incurred in investigating, preparing or defending against
any litigation, commenced or threatened, or any claim whatsoever, and any and
all amounts paid in settlement of any claim or litigation), joint or several, to
which they or any of them may become subject under the Securities Act, the
Exchange Act or otherwise, insofar as such losses, liabilities, claims, damages
or expenses (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in the
Initial Registration Statement, as originally filed or any amendment thereof,
the Registration Statement, or any post-effective amendment thereof, the Basic
Prospectus, any Preliminary Prospectus, the Pricing Prospectus or the
Prospectus, or in any supplement thereto or amendment thereof, any Issuer Free
Writing Prospectus, or any “issuer information” filed or required to be filed
pursuant to Rule 433(d) under the Securities Act, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading;
provided, however, that the Company will not be liable in any such case to the
extent that any such loss, liability, claim, damage or expense arises out of or
is based upon any such untrue statement or alleged untrue statement or omission
or alleged omission made in the Initial Registration Statement, as originally
filed or any amendment thereof, the Registration Statement, or any
post-effective amendment thereof, the Basic Prospectus, any Preliminary
Prospectus, the Pricing Prospectus or the Prospectus, or in any supplement
thereto or amendment thereof, or any Issuer Free Writing Prospectus in reliance
upon and in strict conformity with written information furnished to the Company
by or on behalf of the Underwriter expressly for use therein, it being
understood and agreed that the only such information furnished by the
Underwriter is the information described as such in Section 10(b)
below.
20
(b) The
Underwriter agrees to indemnify and hold harmless the Company, each of the
directors of the Company, each of the officers of the Company who shall have
signed the Registration Statement, and each other person, if any, who controls
the Company within the meaning of Section 15 of the Securities Act or Section
20(a) of the Exchange Act, against any losses, liabilities, claims, damages and
expenses whatsoever as incurred (including without limitation, reasonable
attorneys’ fees and any and all reasonable expenses whatsoever incurred in
investigating, preparing or defending against any litigation, commenced or
threatened, or any claim whatsoever, and any and all amounts paid in settlement
of any claim or litigation), joint or several, to which they or any of them may
become subject under the Act, the Exchange Act or otherwise, insofar as such
losses, liabilities, claims, damages or expenses (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of a material fact contained in the Initial Registration Statement, as
originally filed or any amendment thereof, the Registration Statement, or any
post-effective amendment thereof, the Basic Prospectus, or any Preliminary
Prospectus, the Pricing Prospectus or the Prospectus, or in any supplement
thereto or amendment thereof, or any Issuer Free Writing Prospectus, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
any such loss, liability, claim, damage or expense arises out of or is based
upon any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in strict conformity with
written information furnished to the Company by or on behalf of the Underwriter
expressly for use therein, it being understood and agreed that the only such
information furnished by the Underwriter to the Company consists of the
following information in the Prospectus furnished on behalf of the Underwriter
to the Company.
The
statements with respect to the offering of the Shares by the Underwriter set
forth in the fourth paragraph, the fifth paragraph, the first four sentences of
the sixth paragraph, the twelfth paragraph, the thirteenth paragraph and the
fifteenth paragraph, in each case, under the “Underwriting” section of the
Pricing Prospectus and the Prospectus.
(c) Promptly
after receipt by an indemnified party under Section 10(a) or 10(b) of
notice of the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party under such
Section, notify each party against whom indemnification is to be sought in
writing of the commencement thereof (but the failure so to notify an
indemnifying party shall not relieve it from any liability which it may have
under this Section 10 except to the extent that it has been materially
prejudiced by such failure). In case any such action is brought
against any indemnified party, and it notifies an indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein, and jointly with any other indemnifying party similarly notified, to
the extent it may elect by written notice delivered to the indemnified party
promptly after receiving the aforesaid notice from such indemnified party, to
assume the defense thereof with counsel reasonably satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnified party). Notwithstanding the
foregoing, the indemnified party or parties shall have the right to employ its
or their own counsel in any such case, but the fees and expenses of such counsel
shall be at the expense of such indemnified party or parties unless (i) the
employment of such counsel shall have been authorized in writing by one of the
indemnifying parties in connection with the defense of such action, (ii) the
indemnifying parties shall not have employed counsel to have charge of the
defense of such action within a reasonable time after notice of commencement of
the action, or (iii) such indemnified party or parties shall have reasonably
concluded that there may be defenses available to it or them which are different
from or additional to those available to one or all of the indemnifying parties
(in which case the indemnifying parties shall not have the right to direct the
defense of such action on behalf of the indemnified party or parties), in any of
which events such fees and expenses shall be borne by the indemnifying
parties. 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, which
counsel, in the event of indemnified parties under Section 10(a) shall be
selected by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇. No indemnifying party shall, without the
written consent of the indemnified party, effect the settlement or compromise
of, or consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act, by or
on behalf of any indemnified party.
21
(d) If
the indemnification provided for in this Section 10 is unavailable to or
insufficient to hold harmless an indemnified party under Section 10(a) or 10(b)
in respect of any losses, liabilities, claims, damages or expenses (or actions
in respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, liabilities, claims, damages or expenses (or actions in respect
thereof) in such proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and the Underwriter on the other from
the offering of the Shares. If, however, the allocation provided by
the immediately preceding sentence is not permitted by applicable law, then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company on the one hand and
the Underwriter on the other in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company on the
one hand and the Underwriter on the other from the offering of the Shares shall
be deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by the Underwriter, in each case
as set forth in the table on the cover page of the Prospectus. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Company on the one hand or the Underwriter on the other and the parties’
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company and the Underwriter agree
that it would not be just and equitable if contributions pursuant to this
Section 10(d) were determined by pro rata allocation or by any other method
of allocation which does not take account of the equitable considerations
referred to above in this Section 10(d). The amount paid or
payable by an indemnified party as a result of the losses, liabilities, claims,
damages or expenses (or actions in respect thereof) referred to above in this
Section 10(d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions
of this Section 10(d), the Underwriter shall not be required to contribute
any amount in excess of the amount by which the total price at which the Shares
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which the Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission.
22
No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation.
(e) The
obligations of the parties to this Agreements contained in this Section 10
are not exclusive and shall not limit any rights or remedies which may otherwise
be available to any indemnified party at law or in equity.
11. If
the Underwriter defaults in its obligations to purchase Shares hereunder on the
Closing Date, the Underwriter may make arrangements satisfactory to the Company
for the purchase of such Shares by other persons. If the Underwriter
so defaults and arrangements satisfactory to the Underwriter and the Company for
the purchase of such Shares by other persons are not made within 36 hours after
such default, this Agreement will terminate, subject to the provisions of
Section 13. Nothing herein will relieve the Underwriter from
liability for its default.
In the event of any such default which
does not result in a termination of this Agreement, either the Underwriter or
the Company shall have the right to postpone the Closing Date 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 in this Agreement, the term “Underwriter” includes any person substituted
for the Underwriter under this Section 11.
12. Notwithstanding
anything herein contained, this Agreement may be terminated, subject to the
provisions of Section 13, in the absolute discretion of the Underwriter, by
notice given to the Company, if after the execution and delivery of this
Agreement and prior to the Closing Date any of the following shall have
occurred, (a) a suspension or material limitation in trading in securities
generally on the NASDAQ Global Select Market or on the New York Stock Exchange,
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 order of the
Commission, FINRA or any other governmental authority, (b) a suspension or
material limitation in trading in the Company’s securities on the NASDAQ Global
Select Market, (c) a general moratorium on commercial banking activities in New
Jersey shall have been declared by Federal or New Jersey State authorities, (d)
a new restriction materially adversely affecting the distribution of the Shares
shall have become effective, (e) a material disruption in the financial markets
in the United States or the international financial markets, the outbreak of
hostilities or escalation thereof involving the United States or the declaration
by the United States of a national emergency or war, or (f) the occurrence of
any other calamity or crisis or any change in national or international
political, financial or economic conditions, in each case of clause (d) through
(f) above the effect of which is such as to make it, in the judgment of the
Underwriter, impracticable or inadvisable to proceed with the public offering or
the delivery of the Shares to be delivered on the Closing Date or to enforce
contracts for the sale of the Shares.
If this Agreement is terminated
pursuant to this Section 12, such termination will be without liability of
any party to any other party except as provided in Section 13
hereof.
23
13. The
respective indemnities, agreements, representations, warranties and other
statements of the Company or its officers and of the Underwriter set forth in or
made pursuant to this Agreement will remain in full force and effect, regardless
of any investigation, or statement as to the results thereof, made by or on
behalf of the Underwriter, the Company or any of their respective
representatives, officers or directors or any controlling person, and will
survive delivery of and payment for the Shares. If this Agreement is
terminated pursuant to Section 9, 11 or 12 or if for any reason the
purchase of any of the Shares by the Underwriter is not consummated, the Company
shall remain responsible for the expenses to be paid or reimbursed by it
pursuant to Section 8 (provided, however, that in no event shall the amount
of such reimbursement exceed $15,000;), the respective obligations of the
Company and the Underwriter pursuant to Section 10 and the provisions of
Sections 13, 14, 17, 18 and 22 shall remain in effect and, if any Shares
have been purchased hereunder the representations and warranties in Section 1
and all obligations under Section 5 and Section 6 shall also remain in
effect. Subject to the immediately preceding sentence, if this
Agreement shall be terminated by the Underwriter under Section 9 or
otherwise because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement or any condition of the Underwriter’s obligations cannot be fulfilled,
the Company agrees to reimburse the Underwriter for all out-of-pocket expenses
(including the fees and expenses of its counsel) reasonably incurred by the
Underwriter in connection with this Agreement or the offering contemplated
hereunder, but the Company shall then be under no further liability to the
Underwriter except as provided in Section 10 of this Agreement.
14. This
Agreement shall inure to the benefit of and be binding upon the Company and the
Underwriter, the officers and directors of the Company referred to herein, any
controlling persons referred to herein and their respective successors and
assigns. Nothing expressed or mentioned in this Agreement is intended
or shall be construed to give any other person, firm or corporation any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. No purchaser of Shares from the
Underwriter shall be deemed to be a successor or assign by reason merely of such
purchase.
15. All
notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given upon receipt thereof by the recipient if mailed
or transmitted by any standard form of telecommunication. Notices to
the Underwriter shall be given to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Company, Incorporated,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ (fax no.: ▇▇▇-▇▇▇-▇▇▇▇), Attention: ▇▇▇ ▇▇▇▇▇▇▇ with a copy to
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Company, Incorporated, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ (fax no.: ▇▇▇-▇▇▇-▇▇▇▇), Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Esq. Notices to the Company shall be given to it at Center Bancorp,
Inc., ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (fax no.: (▇▇▇) ▇▇▇-▇▇▇▇);
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇.
16. This
Agreement may be signed in counterparts, each of which shall be an original and
all of which together shall constitute one and the same
instrument. In the event that any signature to this Agreement or any
amendment hereto is delivered by facsimile transmission or by e-mail delivery of
a “.pdf” format data file, such signature shall create a valid and binding
obligation of the party executing (or on whose behalf such signature is
executed) with the same force and effect as if such facsimile or “.pdf”
signature page were an original thereof. At the request of any party
each other party shall promptly re-execute an original form of this Agreement or
any amendment hereto and deliver the same to the other party. No
party hereto shall raise the use of a facsimile machine or e-mail delivery of a
“.pdf” format data file to deliver a signature to this Agreement or any
amendment hereto or the fact that such signature was transmitted or communicated
through the use of a facsimile machine or e-mail delivery of a “.pdf” format
data file as a defense to the formation or enforceability of a contract, and
each party hereto forever waives any such defense.
17. THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK, WITHOUT REGARD TO SUCH STATE’S PRINCIPLES OF CONFLICTS OF
LAWS.
18. The
parties hereby submit to the jurisdiction of and venue in the federal courts
located in New York, New York in connection with any dispute related to this
Agreement, any transaction contemplated hereby, or any other matter contemplated
hereby.
24
19. The
Company acknowledges and agrees that (i) the purchase and sale of the Shares
pursuant to this Agreement, including the determination of the public offering
price of the Shares and any related discounts and commissions, is an
arm’s-length commercial transaction between the Company on the one hand, and the
Underwriter, on the other, (ii) in connection therewith and with the process
leading to such transaction the Underwriter is acting solely as a principal and
not the agent or fiduciary of the Company or its respective stockholders,
creditors, employees or any other party, (iii) the Underwriter has not assumed
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 the Underwriter has advised or is currently advising the Company on
other matters) or any other obligation to the Company except the obligations
expressly set forth in this Agreement, and (iv) the Company has consulted its
own legal and financial advisors to the extent it deemed
appropriate. The Company agrees that it will not claim that the
Underwriter has rendered advisory services of any nature or respect, or owes a
fiduciary or similar duty to the Company, in connection with such transaction or
the process leading thereto.
20. Notwithstanding
anything herein to the contrary, the Company is authorized to disclose to any
persons the U.S. federal and state income tax treatment and tax structure of the
potential transaction and all materials of any kind (including tax opinions and
other tax analyses) provided to the Company relating to that treatment and
structure, without the Underwriter imposing any limitation of any
kind. However, any information relating to the tax treatment and tax
structure shall remain confidential ( and the foregoing sentence shall not
apply) to the extent necessary to enable any person to comply with securities
laws. For this purpose, “tax structure” is limited to any facts that
may be relevant to that treatment.
21. This
Agreement supersedes all prior agreements and understandings (whether written or
oral) between the Company and the Underwriter, with respect to the subject
matter hereof.
22. The
Company and the Underwriter hereby irrevocably waives, to the fullest extent
permitted by applicable law, any and all right to trial by jury in any legal
proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby.
23. The
language used in this Agreement will be deemed to be the language chosen by the
parties to express their mutual intent, and no rules of strict construction will
be applied against any party.
24. Terms
for which meanings are defined in this Agreement shall apply equally to the
singular and plural forms of the terms defined. Whenever the context
may require, any pronoun shall include the corresponding masculine and feminine
forms. The term “including,” whenever used in any provision of this
Agreement, means including but without limiting the generality of any
description preceding or succeeding such term. Each reference to a
person or entity shall include a reference to the successors and assigns of such
person or entity.
[Signatures
appear on the following pages]
25
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 will become a binding agreement
among the Company and the Underwriter.
|
Very
truly yours,
|
|
|
CENTER
BANCORP, INC.
|
|
|
By:
|
/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
|
|
Name: ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
|
|
|
Title: President
& CEO
|
|
26
|
Accepted
as of the date hereof:
|
|
|
▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ & COMPANY, INCORPORATED
|
|
|
By:
|
/s/
▇▇▇▇▇▇▇▇▇▇▇ College
|
|
Name: ▇▇▇▇▇▇▇▇▇▇▇
College
|
|
|
Title: Managing
Director
|
|
27