CENTRAL PACIFIC FINANCIAL CORP. Common Stock, no par value per share Distribution Agreement
Exhibit
10.27
$15,000,000
Common
Stock, no par value per share
September
4, 2009
Sandler
▇’▇▇▇▇▇ & Partners, L.P.,
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
RBC
Capital Markets Corporation,
3 World
Financial Center,
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies
and Gentlemen:
Central
Pacific Financial Corp., a Hawaii corporation (the “Company”), proposes
to issue and sell from time to time to or through Sandler ▇’▇▇▇▇▇ &
Partners, L.P. (“Sandler ▇’▇▇▇▇▇ &
Partners”) and RBC Capital Markets Corporation (“RBC Capital
Markets”), as sales agents and/or principals (the “Agents”), shares of
the Company’s common stock, without par value (the “Common
Stock”) having aggregate sales proceeds of up to $15,000,000, on the
terms set forth in this Distribution Agreement (this “Agreement”). For
the purposes of this Agreement, shares of Common Stock to be sold under this
Agreement shall be referred to as “Shares.” The
Company agrees that whenever it determines to sell Shares directly to either of
the Agents, as principals, it will enter into a separate agreement (each, a
“Terms
Agreement”) with such Agent, in substantially the form of Annex I hereto,
relating to such sale.
Section
1. Representations and
Warranties. The Company represents and warrants to the Agents
that, as of the date of this Agreement, any applicable Registration Statement
Amendment Date (as defined in Section 3(i) below), each Company
Periodic Report Date (as defined in Section 3(h) below), each
Applicable Time (as defined in Section 1(a) below) and each
Settlement Date (as defined in Section 2(g) below):
(a) The
Company has filed with the Securities and Exchange Commission (the “Commission”) a
registration statement on Form S-3 (Registration No. 333-157166) for the
registration of the Shares and other securities of the Company, which
registration statement has been declared effective by the Commission under the
Securities Act of 1933, as amended (the “1933 Act”), in
respect of the Shares; and no stop order suspending the effectiveness of such
registration statement or any part thereof has been issued and no proceeding for
that purpose has been initiated or, to the knowledge of the Company, threatened
by the Commission, and no written (or, to the knowledge of the Company,
oral) notice of objection of the Commission to the use of such form of
registration statement or any post-effective amendment thereto has been received
by the Company (the base prospectus filed as part of such registration
statement, in the form in which it has most recently been filed with the
Commission on or prior to the date of this Agreement, is hereinafter called the
“Basic
Prospectus”; the various parts of such registration statement, and any
prospectus supplement relating to the Shares that is filed with the Commission
and deemed by virtue of Rule 430B under the 1933 Act to be part of such
registration statement, each as amended at the time such part of the
registration statement became effective, are hereinafter collectively called the
“Registration
Statement”; the prospectus supplement specifically relating to the Shares
prepared and filed with the Commission pursuant to Rule 424(b) under
the 1933 Act is hereinafter called the “Prospectus
Supplement”; the Basic Prospectus, as amended and supplemented by the
Prospectus Supplement, is hereinafter called the “Prospectus”; any
reference herein to the Basic Prospectus, the Prospectus Supplement 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 under the 1933 Act; any
reference to any amendment or supplement to the Basic Prospectus, the Prospectus
Supplement 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) under the 1933 Act and any documents filed under the
Securities Exchange Act of 1934, as amended (the “1934 Act”), and
incorporated therein, in each case after the date of the Basic Prospectus, the
Prospectus Supplement 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 1934 Act after the effective date
of the Registration Statement that is incorporated by reference in the
Registration Statement; and any “issuer free writing prospectus” as defined in
Rule 433 under the 1933 Act relating to the Shares is hereinafter called an
“Issuer Free Writing
Prospectus”).
At the
respective times the Registration Statement was originally declared effective
and any amendment thereto was declared effective, at the time the Company’s most
recent Annual Report on Form 10-K was filed with the Commission, at each “new
effective date” with respect to the Agents pursuant to Rule 430B(f)(2) of the
rules and regulations of the Commission under the 1933 Act (the “1933 Act
Regulations”), the Registration Statement and any amendments thereto
complied, comply and will comply in all material respects with the requirements
of the 1933 Act and the 1933 Act Regulations and did not, do 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.
No order
preventing or suspending the use of the Basic Prospectus, the Prospectus
Supplement, the Prospectus or any Issuer Free Writing Prospectus has been issued
by the Commission, and the Basic Prospectus and the Prospectus Supplement, at
the time of filing thereof, conformed in all material respects to the
requirements of the 1933 Act and the 1933 Act Regulations and did not contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
For the
purposes of this Agreement, the “Applicable Time”
means, with respect to any Shares, the time of sale of such Shares pursuant to
this Agreement; the Prospectus and the applicable Issuer Free Writing
Prospectus(es) issued at or prior to such Applicable Time, taken together
(collectively, and, with respect to any Shares, together with the public
offering price of such Shares, the “General Disclosure
Package”) as of each Applicable Time and each Settlement Date, will
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
applicable Issuer Free Writing Prospectus will not conflict with the information
contained in the Registration Statement, the Prospectus Supplement or the
Prospectus, and each such Issuer Free Writing Prospectus, as supplemented by and
taken together with the General Disclosure Package as of such Applicable Time,
will 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.
(b) The
documents incorporated or deemed to be incorporated by reference in the
Prospectus Supplement or the Prospectus, at the respective time they were or
hereafter are filed with the Commission, complied, comply and will comply in all
material respects with the requirements of the 1934 Act and the rules and
regulations of the Commission thereunder (the “1934 Act
Regulations”), and did not, do 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 in order to make the statements therein, in light of
the circumstances under which they were made, not misleading.
(c) The
statements set forth in the Prospectus Supplement under the captions “Risk
Factors — Risks Related to this Offering”, “Description of Common Stock” and
“Plan of Distribution” and in the Company’s Form 8-A filed with the Commission
on December 12, 2002, as amended, insofar as they purport to constitute a
summary of the terms of the Shares or certain provisions of the Company’s
charter and by-laws or Hawaii law, and in the Basic Prospectus under the caption
“Our Company - Supervision and Regulation”, in the Prospectus Supplement under
the caption “Certain United States Tax Consequences to Non-U. S. Holders of Our
Common Stock” and in the Company’s Annual Report on Form 10-K for the year ended
December 31, 2008 under the caption “Supervision and Regulation”, insofar as
they purport to describe the provisions of the laws, rules, regulations and
documents referred to therein, are accurate in all material respects and
represent a fair summary of such terms or provisions, as
applicable.
(d) The
Company is a corporation duly incorporated, validly existing and in good
standing under the laws of the State of Hawaii and the Company is qualified to
do business as a foreign corporation in each jurisdiction in which qualification
is required, except where failure to so qualify would not have a Material
Adverse Effect (as defined below). Each of the Company’s subsidiaries
that is a “significant subsidiary” as defined in Rule 1-02 of
Regulation S-X (each a “Subsidiary” and
collectively the “Subsidiaries”) is
listed on Exhibit 21 to the Company’s most recent Annual Report on Form 10-K/A
filed with the Commission. Except as otherwise stated on Exhibit 21,
each Subsidiary is a direct or indirect wholly owned subsidiary of the
Company. Each Subsidiary is duly incorporated, validly existing and
in good standing under the laws of its jurisdiction of incorporation and is
qualified to do business as a foreign corporation in each jurisdiction in which
qualification is required, except where failure to so qualify would not have a
Material Adverse Effect. For the purposes of this Agreement, the term
“Material Adverse
Effect” shall mean a material adverse effect on the business, financial
condition, properties, shareholder’s equity, or results of operations of the
Company and its Subsidiaries, taken as a whole.
(e) The
Company is duly registered as a bank holding company under the Bank Holding
Company Act of 1956, as amended. The Company’s banking subsidiary
holds the requisite authority from the Hawaii Division of Financial Institutions
(the “Division”) to do
business as a state-chartered banking corporation under the laws of the State of
Hawaii as described in each of the General Disclosure Package and the
Prospectus. The Company and each Subsidiary are in compliance in all
material respects with all laws administered by the Board of Governors of the
Federal Reserve System (the “Federal Reserve
Board”), the Federal Deposit Insurance Corporation (the “FDIC”), the Division
and any other federal or state bank regulatory authorities with jurisdiction
over the Company and its subsidiaries, except for failures to be so in
compliance that would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
(f) The
Company is subject to the reporting requirements of the 1934 Act and has timely
filed all reports required thereby.
(g) The
Company has the authorized capitalization set forth in the
Prospectus. All of the issued shares of capital stock of the Company
have been duly and validly authorized and issued, are fully paid and
nonassessable, have been issued in compliance with all federal and state
securities laws, and were not issued in violation of or subject to any
preemptive rights or other similar rights, except for such rights as may have
been fully satisfied or waived. Except as disclosed in the Prospectus
and for options, restricted stock, restricted stock units and similar securities
issued under the Company’s existing shareholder-approved equity compensation
plans, the Company does not have outstanding any options to purchase, or any
preemptive rights or other rights to subscribe for or to purchase, any
securities or obligations convertible into, or any contracts or commitments to
issue or sell, shares of its capital stock or any such options, rights,
convertible securities or obligations. With respect to each of the
Subsidiaries, all the issued and outstanding shares of such Subsidiary’s capital
stock have been duly authorized and validly issued, are fully paid and
nonassessable, and, except as disclosed in the Prospectus, are owned directly by
the Company or one of its Subsidiaries free and clear of any liens, claims or
encumbrances, other than the pledge of the capital of CPB Real Estate, Inc. to
the Federal Home Loan Bank.
(h) The
Shares have been duly authorized and, when issued, delivered and paid for in the
manner set forth in this Agreement, will be validly issued, fully paid and
nonassessable, and conform in all material respects to the description thereof
contained in each of the Registration Statement, the General Disclosure Package
and the Prospectus. No preemptive rights or other rights to subscribe
for or purchase any shares of Common Stock exist with respect to the issuance
and sale of the Shares by the Company pursuant to this Agreement, except for
such rights as may have been fully satisfied or waived prior to the Settlement
Date. There are no restrictions upon the voting or transfer of any of
the Shares except as required under applicable federal or state securities
laws. No further approval or authority of the shareholders or the
Board of Directors of the Company will be required for the issuance and sale of
the Shares as contemplated herein.
(i) The
Company has full legal right, corporate power and authority to enter into this
Agreement and perform the transactions contemplated hereby. This
Agreement has been duly authorized, executed and delivered by the
Company. This Agreement constitutes a legal, valid and binding
agreement of the Company, enforceable against the Company in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other laws of general application
relating to or affecting the enforcement of creditors’ rights and the
application of equitable principles relating to the availability of remedies,
and subject to 12 U.S.C. §1818(b)(6)(D) (or any successor statute) and
similar bank regulatory powers and to the application of principles of public
policy, and except as rights to indemnity or contribution, including but not
limited to, indemnification provisions set forth in Section 7 of this
Agreement may be limited by federal or state securities law or the public policy
underlying such laws.
(j) KPMG LLP,
who has expressed its opinion with respect to the consolidated financial
statements contained in the Company’s Annual Report on Form 10-K/A for the year
ended December 31, 2008, are registered independent public accountants as
required by the 1933 Act and the 1933 Act Regulations and by the rules of the
Public Accounting Oversight Board and, to the knowledge of the Company after
reasonable inquiry, KPMG is not in violation of the auditor independence
requirements of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 with respect to the
Company.
(k) The
execution, delivery and performance of this Agreement by the Company, the
issuance and sale of the Shares by the Company, the compliance by the Company
with all of the provisions of this Agreement and the consummation of the
transactions herein contemplated (including, without limitation, the use of
proceeds from the sale of the Shares as described in the Prospectus Supplement
and the Prospectus under the caption “Use of Proceeds”), do not and will not
(i) violate or conflict with any provision of the amended and restated
articles of incorporation or bylaws of the Company or the organizational
documents of any Subsidiary and (ii) except as would not reasonably be
expected to result in a Material Adverse Effect and will not materially and
adversely affect the Company’s ability to consummate the transactions
contemplated by this Agreement, (x) result in the creation of any lien,
charge, security interest or encumbrance upon any assets of the Company or any
Subsidiary pursuant to the terms or provisions of, and will not conflict with,
result in the breach or violation of, or constitute, either by itself or upon
notice or the passage of time or both, a default under, or give rise to the
accelerated due date of any payment due under, any agreement, mortgage, deed of
trust, lease, franchise, license, indenture, permit or other instrument to which
any of the Company or any Subsidiary is a party or by which any of the Company
or any Subsidiary or their respective properties may be bound or affected or
(y) violate any statute or any authorization, judgment, decree, order, rule
or regulation of any court or any regulatory body, administrative agency or
other governmental agency or body applicable to the Company or any Subsidiary or
any of their respective properties. All consents, approvals,
licenses, qualifications, authorizations or other orders of any court,
regulatory body, administrative agency or other governmental agency or body that
are required for the execution and delivery of this Agreement or the
consummation of the transactions contemplated by this Agreement, including the
issuance, sale and delivery of the Shares, have been obtained, except such
consents, approvals authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with the purchase
and distribution of the Shares by the Agents.
(l) Except as
would not reasonably be expected to have a Material Adverse Effect, the material
contracts to which the Company or any of its Subsidiaries is a party, have been
duly and validly authorized, executed and delivered by the Company or its
Subsidiaries, as the case may be, and constitute the legal, valid and binding
agreements of the Company or its Subsidiaries, enforceable by and against it in
accordance with their respective terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization or other similar
laws relating to enforcement of creditors’ rights generally, and general
equitable principles relating to the availability of remedies, and subject to 12
U.S.C. §1818(b)(6)(D) (or any successor statute) and similar bank
regulatory powers and to the application of principles of public policy, and
except as rights to indemnity or contribution may be limited by federal or state
securities laws and the public policy underlying such laws.
(m) The
deposit accounts of the Central Pacific Bank (the “Bank”) are
insured up to the maximum amount provided by the FDIC and no proceedings for the
modification, termination or revocation of any such insurance are pending or
threatened.
(n) Except as
disclosed in each of the General Disclosure Package and the Prospectus, there
are no legal or governmental actions, suits or proceedings pending or, to the
Company’s knowledge, threatened against the Company or any Subsidiary before or
by any court, regulatory body or administrative agency or any other governmental
agency or body, domestic, or foreign, which actions, suits or proceedings,
individually or in the aggregate, would reasonably be expected to have a
Material Adverse Effect; and no labor disturbance by the employees of the
Company exists or, to the Company’s knowledge, is imminent, that would
reasonably be expected to have a Material Adverse Effect.
(o) Except as
disclosed in each of the General Disclosure Package and the Prospectus, no
Subsidiary of the Company is currently prohibited, directly or indirectly, under
any order of the Federal Reserve Board (other than orders applicable to bank
holding companies and their subsidiaries generally), under any applicable law,
or under any agreement or other instrument to which it is a party or is subject,
from paying any dividends to the Company, from making any other
distribution on such Subsidiary’s capital stock (other than as provided in the
(x) Indenture, dated December 15, 2004, by and between the Company, as issuer,
and Wilmington Trust Company, as trustee, and (y) Indenture, dated October 10,
2003, by and between the Company, as issuer, and U.S. Bank National Association,
as trustee), from repaying to the Company any loans or advances to such
Subsidiary from the Company or from transferring any of such Subsidiary’s
properties or assets to the Company or any other Subsidiary of the
Company.
(p) Each of
the Company and its Subsidiaries has valid title to all the properties and
assets described as owned by it in the consolidated financial statements
included in the Registration Statement, the General Disclosure Package and the
Prospectus, free and clear of all liens, mortgages, pledges, or encumbrances of
any kind except (i) those, if any, reflected in such consolidated financial
statements, or (ii) those that would not reasonably be expected to have a
Material Adverse Effect. Any real property and buildings held under
lease or sublease by the Company and each of its Subsidiaries are held by them
under valid, subsisting and enforceable leases.
(q) Except as
disclosed in each of the General Disclosure Package and the Prospectus, since
December 31, 2008, (i) the Company and its Subsidiaries have conducted
their respective businesses in all material respects in the ordinary course,
consistent with prior practice, (ii) except for publicly disclosed ordinary
dividends on the Common Stock and dividends paid on the Company’s Fixed Rate
Cumulative Perpetual Preferred Stock, the Company has not made or declared any
distribution in cash or in kind to its shareholders, (iii) neither the
Company nor any of its Subsidiaries has issued any capital stock or securities
issuable into capital stock except for securities issued pursuant to the
Company’s existing shareholder-approved equity incentive plans,
(iv) neither the Company nor its Subsidiaries has incurred any liabilities
or obligations of any nature (absolute, accrued, contingent or
otherwise) which are not fully reflected or reserved against in the
financial statements described in Section 1(cc), except for liabilities
that have arisen since such date in the ordinary and usual course of business
and consistent with past practice and that, individually or in the aggregate,
have not had and would not reasonably be expected to have a Material Adverse
Effect and (v) no event or events have occurred that, individually or in
the aggregate, has had or would reasonably be expected to have a Material
Adverse Effect. As used in this paragraph, references to the General
Disclosure Package and the Prospectus exclude any amendments or supplements
thereto subsequent to the date of this Agreement.
(r) The
Company owns, is licensed or otherwise possesses all rights to use, all patents,
patent rights, inventions, know-how (including trade secrets and other
unpatented or unpatentable or confidential information, systems, or procedures),
trademarks, service marks, trade names, copyrights and other intellectual
property rights (collectively, the “Intellectual Property”) necessary for
the conduct of its business as described in each of the General Disclosure
Package and the Prospectus, except as would not reasonably be expected to have a
Material Adverse Effect. No claims have been asserted against the
Company by any person with respect to the use of any such Intellectual Property
or challenging or questioning the validity or effectiveness of any such
Intellectual Property except as would not reasonably be expected to have a
Material Adverse Effect.
(s) Each of
the Company and its Subsidiaries is in compliance with all applicable laws,
rules and regulations of the jurisdictions in which it is conducting business,
including, without limitation, all applicable local, state and federal banking
and environmental laws and regulations, except where failure to be so in
compliance would not reasonably be expected to have a Material Adverse
Effect. Except as described in the General Disclosure Package and the
Prospectus, neither the Company nor any of its Subsidiaries is (a) in violation
of its charter or bylaws or other organizational documents, as applicable,
except for any immaterial failure on the part of the Subsidiaries (other than
the Bank) to comply; (b) is in default under, and no event has occurred which,
with notice or lapse of time or both, would constitute such a default or result
in the creation or imposition of any lien, charge, or encumbrance upon any
property or assets of the Company or any of its Subsidiaries, pursuant to any
agreement, mortgage, deed of trust, lease, franchise, license, indenture or
permit, except as would not reasonably be expected to have a Material Adverse
Effect or (c) a party to or subject to or has received any order, decree,
agreement, memorandum of understanding or similar arrangement with, or a
commitment letter, supervisory letter or similar submission to, any governmental
authority, and neither the Company nor any Subsidiary has been advised by any
governmental authority that such governmental authority is contemplating issuing
or requesting (or is considering the appropriateness of issuing or requesting)
any such order, decree, agreement, memorandum of understanding, commitment
letter, supervisory letter or similar submission. Neither the Company
nor any Subsidiary has received any communication from any governmental
authority that it is not acting in material compliance with any statute,
regulation or ordinance. The Bank has received a Community
Reinvestment Act rating of “Satisfactory” or better.
(t) Each of
the Company and its Subsidiaries has filed on a timely basis (giving effect to
extensions) all required federal, state and foreign income and franchise
tax returns and has paid or accrued all taxes shown as due thereon to the extent
that such taxes have become due and are not being contested in good faith, and
the Company does not have knowledge of any tax deficiency that has been or might
be asserted or threatened against it or any Subsidiary, in each case, that could
reasonably be expected to have a Material Adverse Effect. All
material tax liabilities accrued through the date hereof have been adequately
provided for on the books of the Company. There is no tax lien,
whether imposed by any federal, state or other taxing authority, outstanding
against the assets of the Company or any of its Subsidiaries that would
reasonably be expected to have a Material Adverse Effect.
(u) On the
Settlement Date, all stock transfer or other taxes (other than income
taxes) that are required to be paid in connection with the sale and
transfer of the Shares will have been, fully paid or provided for by the Company
and all laws imposing such taxes will have been fully complied
with.
(v) The
Company is not and, after giving effect to the offering and sale of the Shares
and the application of the proceeds thereof, will not be an “investment
company,” as such term is defined in the Investment Company Act of 1940, as
amended.
(w) The
Company and each of its Subsidiaries maintain insurance underwritten by insurers
of recognized financial responsibility, of the types and in the amounts that the
Company reasonably believes is adequate for its business on a consolidated
basis, including, but not limited to, insurance covering real and personal
property owned or leased by the Company or any of its Subsidiaries against
theft, damage, destruction, acts of vandalism and all other risks customarily
insured against, with such deductibles as are customary for companies in the
same or similar business, all of which insurance is in full force and
effect. There are no material claims by the Company or any Subsidiary
under any such policy or instrument as to which any insurance company is denying
liability or defending under a reservation of rights clause. Neither
the Company nor any Subsidiary has received notice from any insurance carrier
that such insurance will be canceled or that coverage thereunder will be reduced
or eliminated (except any such insurance or coverage that will be replaced by
policies covering the full or substantially the full amount of the original
coverage with no lapse in coverage), and there are presently no material claims
pending under policies of such insurance and no notices have been given by the
Company or any Subsidiary under such policies.
(x) Neither
the Company nor any affiliate of the Company nor any person acting on their
behalf has taken, nor will the Company or any affiliate or any person acting on
their behalf take, directly or indirectly, any action which is designed to or
which has constituted or which would reasonably be expected to cause or result
in stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Shares.
(y) The
Company shall use the net proceeds received by it from the sale of the Shares
pursuant to this Agreement in the manner specified in each of the General
Disclosure Package and the Prospectus under the caption “Use of
Proceeds.”
(z) No
transaction has occurred between or among the Company or any Subsidiary, on the
one hand, and its affiliates, officers or directors on the other hand, that is
required to have been described under applicable securities laws in its 1934 Act
filings and is not so described in such filings.
(aa) There is
no transaction, arrangement or other relationship between the Company or any of
its Subsidiaries and an unconsolidated or other off-balance sheet entity that is
required to be disclosed by the Company in its 1934 Act filings and is not so
disclosed or that otherwise would be reasonably expected to have a Material
Adverse Effect.
(bb) Each of
the Company and its Subsidiaries has all franchises, licenses, certificates and
other authorizations from such federal, state or local government or
governmental agency, department or body that are currently
necessary to own, lease and operate their respective properties and
currently necessary for the operation of their respective businesses, except
where the failure to possess currently such franchises, licenses, certificates
and other authorizations would not reasonably be expected to have a Material
Adverse Effect. Neither the Company nor any Subsidiary has received
any notice of proceedings relating to the revocation or modification of any such
permit that, if the subject of an unfavorable decision, ruling or finding, could
reasonably be expected to have a Material Adverse Effect.
(cc) The
consolidated financial statements of the Company and the related notes and
schedules thereto included in its 1934 Act filings fairly present the financial
position, results of operations, shareholders’ equity and cash flows of the
Company and its consolidated Subsidiaries at the dates and for the periods
specified therein. Such financial statements and the related notes
and schedules thereto have been prepared in accordance with accounting
principles generally accepted in the United States consistently applied
throughout the periods involved (except as otherwise noted therein) and all
adjustments necessary for a fair presentation of results for such periods have
been made; provided, however, that the
unaudited financial statements are subject to normal year-end audit adjustments
(which are not expected to be material) and do not contain all footnotes
required under generally accepted accounting principles.
(dd) The
Company is in compliance in all material respects with the requirements of the
New York Stock Exchange (“NYSE”) for
continued listing of the Common Stock thereon. The Company has taken
no action designed to, or likely to have the effect of, terminating the
registration of the Common Stock under the 1934 Act or the listing of the Common
Stock on the NYSE, nor has the Company received any notification that the
Commission or NYSE is contemplating terminating such registration or
listing. The transactions contemplated by this Agreement will not
contravene the rules and regulations of NYSE.
(ee) The
Company maintains a system of internal controls over financial reporting (as
defined in Rule 13a-15 under the ▇▇▇▇ ▇▇▇) that have been designed by,
or under the supervision of, its principal executive and financial officer, to
provide reasonable assurance that (i) transactions are executed in
accordance with management’s general or specific authorization;
(ii) transactions are recorded as necessary to permit preparation of
financial statements in conformity with generally accepted accounting principles
and to maintain accountability for assets; (iii) access to assets is
permitted only in accordance with management’s general or specific
authorization; and (iv) the recorded accountability for assets is compared
with existing assets at reasonable intervals and appropriate action is taken
with respect to any differences. The Company has disclosure controls
and procedures (as defined in Rules 13a-4 and 15d-14 under the ▇▇▇▇
▇▇▇) that are designed to ensure that material information relating to the
Company is made known to the Company’s principal executive officer and the
Company’s principal financial officer or persons performing similar
functions. The Company has not become aware of any fraud, whether or
not material, that involves management or other employees who have a significant
role in the Company’s internal control over financial reporting. The
Company is otherwise in compliance in all material respects with all applicable
provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, as amended and the rules and
regulations promulgated thereunder.
(ff) Neither
the Company, nor any Subsidiary, nor, to the knowledge of the Company, any
director, officer, agent, employee or other Person acting on behalf of the
Company or any Subsidiary has, in the course of its actions for, or on behalf
of, the Company (i) used any corporate funds for any unlawful contribution,
gift, entertainment or other unlawful expenses relating to political activity;
(ii) made any direct or indirect unlawful payment to any foreign or
domestic government official or employee from corporate funds;
(iii) violated or is in violation of any provision of the U.S. Foreign
Corrupt Practices Act of 1977, as amended; or (iv) made any unlawful bribe,
rebate, payoff, influence payment, kickback or other unlawful payment to any
foreign or domestic government official or employee.
(gg) Except as
described in each of the General Disclosure Package 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 with respect to the sale or issuance of, any shares of capital stock
of or other equity interest in the Company (other than this Agreement) and
(B) there are no agreements between the Company and any person granting
such person the right to require the Company to file a registration statement
under the 1933 Act or otherwise register any securities of the Company owned or
to be owned by such person.
(hh) Except as
described in the Prospectus, the Company is in compliance in all material
respects with all presently applicable provisions of the Employee Retirement
Income Security Act of 1974, as amended, including the regulations and published
interpretations thereunder (herein called “ERISA”); no
“reportable event” (as defined in ERISA) has occurred with respect to any
“pension plan” (as defined in ERISA) for which the Company would have any
material liability; the Company has not incurred and does not expect to incur
any material liability under (i) Title IV of ERISA with respect to
termination of, or withdrawal from, any “pension plan”; or (ii) Sections
412 or 4971 of the Internal Revenue Code of 1986, as amended, including the
regulations and published interpretations thereunder (the “Code”); and each
“Pension Plan” for which the Company would have liability that is intended to be
qualified under Section 401(a) of the Code is so qualified in all
material respects and nothing has occurred, whether by action or by failure to
act, which would cause the loss of such qualification.
(ii) There has
been no storage, disposal, generation, manufacture, transportation, handling or
treatment of toxic wastes, hazardous wastes or hazardous substances by the
Company or any Subsidiary (or, to the knowledge of the Company, any of their
predecessors in interest) at, upon or from any of the property now or
previously owned or leased by the Company or any Subsidiary in violation of any
applicable law, ordinance, rule, regulation, order, judgment, decree or permit
or that would require remedial action under any applicable law, ordinance, rule,
regulation, order, judgment, decree or permit; there has been no material spill,
discharge, leak, emission, injection, escape, dumping or release of any kind
into such property or into the environment surrounding such property of any
toxic wastes, medical wastes, solid wastes, hazardous wastes or hazardous
substances due to or caused by the Company or any Subsidiary or with respect to
which the Company or any Subsidiary have knowledge; in each of the foregoing
cases, except as would not reasonably be expected to have a Material Adverse
Effect. As used in this Section 1(ii), the terms “hazardous
wastes”, “toxic wastes”, “hazardous substances”, and “medical wastes” shall have
the meanings specified in any applicable local, state, federal and foreign laws
or regulations with respect to environmental protection.
(jj) The
Company is not, nor has ever been, a U.S. real property holding corporation
within the meaning of Section 897 of the Internal Revenue Code of 1986, as
amended.
(kk) The
Company is not, nor has ever been, an issuer of the type described in
Rule 144(i)(l) under the 1933 Act.
(ll) Each of
the Company and its Subsidiaries does and will, after giving effect to the
transactions contemplated hereby, own assets the fair saleable value of which
are (i) greater than the total amount of its liabilities (including known
contingent liabilities) and (ii) greater than the amount that will be
required to pay the probable liabilities of its existing debts as they become
absolute and matured considering the financing alternatives reasonably available
to it. The Company has no knowledge of any facts or circumstances
which lead it to believe that it or any of its Subsidiaries will be required to
file for reorganization or liquidation under the bankruptcy or reorganization
laws of any jurisdiction, and has no present intent to so file.
(mm) Neither
the execution of this Agreement nor the issuance of the Shares will trigger any
rights or obligations, or require compliance with any Hawaii “takeover”
statute.
Section
2. Sale and Delivery of
Shares.
(a) Subject
to the terms and conditions set forth herein, the Company agrees to sell through
the Agents, acting as sales agents, or directly to the Agents, acting as
principals, from time to time, and the Agents agree to use their commercially
reasonable efforts to sell, as sales agents for the Company, the
Shares. Sales of the Shares, if any, through the Agents acting as
sales agents or directly to the Agents, acting as principals, will be made by
means of ordinary brokers’ transactions on the NYSE or otherwise at market
prices prevailing at the time of sale, at prices related to prevailing market
prices or at negotiated prices.
(b) The
Shares are to be sold on a daily basis or otherwise as shall be agreed to by the
Company and the Agent that is the exclusive sales Agent for the sale of the
Shares, pursuant to Section 2(c) below (the “Exclusive Sales
Agent”), on any trading day (other than a day on which the NYSE is
scheduled to close prior to its regular weekday closing time, each, a “Trading
Day”) that the Company has satisfied its obligations under
Section 6 of this Agreement and that the Company has instructed such
Exclusive Sales Agent to make such sales. On any Trading Day, the
Company may instruct the Exclusive Sales Agent by telephone (confirmed promptly
by telecopy or email, which confirmation will be promptly acknowledged by the
Exclusive Sales Agent) as to the maximum number of Shares to be sold by the
Exclusive Sales Agent on such day (in any event not in excess of the number
available for sale under the Prospectus and the currently effective Registration
Statement) and the minimum price per Share at which such Shares may be
sold. Subject to the terms and conditions hereof, the Exclusive Sales
Agent shall use its commercially reasonable efforts to sell, as sales agent, all
of the Shares so designated by the Company. The Company and each
Agent acknowledge and agree that (A) there can be no assurance that either
Agent will be successful in selling the Shares, (B) no Agent will incur
liability or obligation to the Company or any other person or entity if it does
not sell Shares for any reason other than a failure by such Agent to use its
commercially reasonable efforts consistent with its normal trading and sales
practices and applicable law and regulations to sell such Shares as required by
this Agreement and (C) no Agent shall be obligated to purchase Shares on a
principal basis, except as otherwise specifically agreed by such Agent and the
Company pursuant to a Terms Agreement, (D) no Agent shall be liable for
executing sales in reliance upon information provided to it by the Company,
provided that such Agent
has complied with the terms of this Agreement. In the event of a
conflict between the terms of this Agreement and the terms of a Terms Agreement,
the terms of such Terms Agreement will control.
(c) Sandler
▇’▇▇▇▇▇ & Partners shall act as the Exclusive Sales Agent until Shares have
been sold by Sandler ▇’▇▇▇▇▇ & Partners with aggregate gross proceeds of
Five Million Dollars ($5,000,000). Then RBC Capital Markets shall act
as the Exclusive Sales Agent until Shares have been sold by RBC Capital Markets
with aggregate gross proceeds of Five Million Dollars
($5,000,000). Thereafter, Sandler ▇’▇▇▇▇▇ & Partners shall be the
Exclusive Sales Agent until Shares have been sold by Sandler ▇’▇▇▇▇▇ &
Partners with aggregate gross proceeds of Two Million Five Hundred Thousand
Dollars ($2,500,000). Thereafter, RBC Capital Markets shall be the
Exclusive Sales Agent until Shares have been sold by RBC Capital Markets with
aggregate gross proceeds of Two Million Five Hundred Thousand Dollars
($2,500,000). The Company agrees that any offer to sell, any
solicitation of an offer to buy, or any sales of Shares or any other equity
security of the Company shall only be effected by or through the Exclusive Sale
Agent on any given Trading Day, and the Company shall in no event request that
Agents sell Shares on the same day; provided, however, that
(i) the foregoing limitation shall not apply to (A) exercise of any
option, warrant, right or any conversion privilege set forth in the instrument
governing such security or (B) sales solely to employees or security
holders of the Company or its Subsidiaries, or to a trustee or other person
acquiring such securities for the accounts of such persons and (ii) such
limitation shall not apply on any day during which no sales are made pursuant to
this Agreement.
(d) Notwithstanding
the foregoing, the Company shall not authorize the sale of, and neither Agent,
acting as sales agent, shall be obligated to use its commercially reasonable
efforts to sell, any Shares (i) at a price lower than the minimum price therefor
authorized from time to time by the Company’s Board of Directors, or a duly
authorized committee thereof, and communicated to the Agent in writing, or (ii)
when such sales would result in the aggregate offering price or number, as the
case may be, of Shares sold pursuant to this Agreement and any Terms Agreement
exceeding the aggregate offering price or number, as the case may be, of Common
Stock (x) set forth in the preamble paragraph of this Agreement, (y) available
for sale under the Prospectus and the then currently effective Registration
Statement or (z) authorized from time to time to be sold under this Agreement or
any Terms Agreement by the Company’s Board of Directors, or a duly authorized
committee thereof, and communicated to the Agent in writing. In
addition, the Company or the relevant Agent may, upon notice to the other party
hereto by telephone (confirmed promptly by telecopy or email, which confirmation
will be promptly acknowledged), suspend the offering of the Shares with respect
to the portion of the offering for which such Agent is acting as sales agent for
any reason and at any time; provided, however, that such suspension or
termination shall not affect or impair the parties’ respective obligations with
respect to the Shares sold hereunder prior to the giving of such
notice.
(e) The gross
sales price of any Shares sold pursuant to this Agreement by either Agent acting
as sales agent of the Company shall be the market price prevailing at the time
of sale for Common Stock sold by such Agent on the NYSE or otherwise, at prices
relating to prevailing market prices or at negotiated prices. The
compensation payable to each Agent for sales of the Shares pursuant to this
Agreement shall be equal to 1.25% of the gross sales price of the Shares,
regardless of which Agent sells the Shares. The Company may sell
Shares to either Agent as principal at a price agreed upon between the Company
and such Agent at the relevant Applicable Time and pursuant to a separate Terms
Agreement. The gross proceeds, after deduction of 2.5% of the gross
sales price of the Shares sold by the Agents and for any transaction fees
imposed by any governmental, regulatory or self-regulatory organization in
respect of such sales, shall constitute the net proceeds to the Company for such
Shares (the “Net
Proceeds”). The applicable Agent shall notify the Company as
promptly as practicable if any deduction referenced in the preceding sentence
will be required.
(f) Each
Agent acting as the Exclusive Sales Agent for any given Trading Day as specified
in Section 2(c) above shall provide written confirmation to the Company and the
other Agent following the close of trading on the NYSE each day in which Shares
are sold under this Agreement setting forth the number of Shares sold on such
day, the aggregate gross sales proceeds of the Shares, the Net Proceeds to the
Company and the compensation payable by the Company to such Agent with respect
to such sales.
(g) Settlement
for sales of Shares pursuant to this Section 2 will occur on the third
business day that is also a Trading Day following the trade date on which such
sales are made, unless another date shall be agreed to by the Company and the
Agent who made such sale (each such day, a “Settlement
Date”). On each Settlement Date, the Shares sold through the
Agent for settlement on such date shall be delivered by the Company to the
applicable Agent against payment from such Agent of the gross proceeds of the
Shares sold, less such Agent’s commission of 1.25% from the sale of such Shares
and the Company shall pay the other Agent (who did not act as the Exclusive
Sales Agent), in same day funds delivered to accounts designated by such other
Agent, an amount equal to 1.25% of the gross proceeds from the sale of such
Shares. Settlement for all Shares shall be effected by book-entry
delivery of Shares to an account at The Depository Trust Company designated by
the Agent against payments by the Agent of the Net Proceeds from the sale of
such Shares in same day funds delivered to an account designated by the
Company. If the Company shall default on its obligation to deliver
Shares on any Settlement Date, the Company shall (i) indemnify and hold the
Agent who sold such Shares harmless against any loss, claim or damage arising
from or as a result of such default by the Company and (ii) pay the Agent
who sold such Shares any commission to which it would otherwise be entitled
absent such default. Any Agent who breaches this Agreement by failing
to deliver the applicable gross proceeds, less such Agent’s commission of 1.25%
from the sale of the Shares on any Settlement Date, for Shares delivered by the
Company, will pay the Company interest based on the effective overnight federal
funds rate until such proceeds, together with such interest, have been fully
paid.
(h) Notwithstanding
any other provision of this Agreement, the Company and the Agents agree that no
sales of Shares shall take place, and the Company shall not request the sale of
any Shares that would be sold, and no Agent shall be obligated to sell, during
any period in which the Company is in possession of material non-public
information. The Company will notify the Agent when the Company’s
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policy would prohibit the purchase or sale of Common Stock by
its officers or directors.
(i) At each
Applicable Time, Settlement Date, Registration Amendment Date and each Company
Periodic Report Date, the Company shall be deemed to have affirmed each
representation and warranty contained in this Agreement. Any
obligation of the Agents to use their commercially reasonable efforts to sell
the Shares on behalf of the Company as Exclusive Sales Agent shall be subject to
the continuing accuracy of the representations and warranties of the Company
herein, to the performance by the Company of its obligations hereunder and to
the continuing satisfaction of the additional conditions specified in
Section 6 of this Agreement.
Section
3. Covenants. The
Company covenants with each Agent as follows:
(a) During
any period when the delivery of a prospectus is required in connection with the
offering or sale of Shares (whether physically or through compliance with
Rule 153 or Rule 172 under the 1933 Act, or in lieu thereof, a notice
referred to in Rule 173(a) under the 1933 Act), (i) to make no
further amendment or any supplement to the Registration Statement or the
Prospectus prior to any Settlement Date which shall be disapproved by either
Agent promptly after reasonable notice thereof and to advise each Agent,
promptly after it receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any amendment or
supplement to the Prospectus has been filed and to furnish the Agents with
copies thereof, (ii) to file promptly all other material required to be
filed by the Company with the Commission pursuant to Rule 433(d) under
the 1933 Act, (iii) to file promptly all reports and any definitive proxy
or information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), Section 13(c), Section 14
or Section 15(d) of the 1934 Act, (iv) to advise each Agent,
promptly after it receives notice thereof, of the issuance by the Commission of
any stop order or of any order preventing or suspending the use of the
Prospectus or other prospectus in respect of the Shares, of the suspension of
the qualification of the Shares for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such purpose, or of any
request by the Commission for the amending or supplementing of the form of the
Registration Statement or the Prospectus or for additional information, and
(v) in the event of the issuance of any such stop order or of any such
order preventing or suspending the use of the Prospectus in respect of the
Shares or suspending any such qualification, to promptly use its commercially
reasonable efforts to obtain the withdrawal of such order; and in the event of
any such issuance of a notice of objection, promptly to take such reasonable
steps as may be necessary to permit offers and sales of the Shares by the
Agents, which may include, without limitation, amending the Registration
Statement or filing a new registration statement, at the Company’s expense
(references herein to the Registration Statement shall include any such
amendment or new registration statement).
(b) Promptly
from time to time to take such action as each Agent may reasonably request to
qualify the Shares for offering and sale under the securities laws of such
jurisdictions as either Agent may request and to comply with such laws so as to
permit the continuance of sales and dealings therein in such jurisdictions for
as long as may be necessary to complete the sale of the Shares, provided, however, that in
connection therewith the Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in any
jurisdiction; and to promptly advise each Agent of the receipt by the Company of
any notification with respect to the suspension of the qualification of the
Shares for offer or sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose.
(c) During
any period when the delivery of a prospectus is required (whether physically or
through compliance with Rule 153 or Rule 172 under the 1933 Act, or in
lieu thereof, a notice referred to in Rule 173(a) under the ▇▇▇▇
▇▇▇) in connection with the offering or sale of Shares, the Company will
make available to each Agent, as soon as practicable after the execution of this
Agreement, and thereafter from time to time furnish to each Agent, copies of the
most recent Prospectus in such quantities and at such locations as each Agent
may reasonably request for the purposes contemplated by the 1933
Act. During any period when the delivery of a prospectus is required
(whether physically or through compliance with Rule 153 or Rule 172
under the 1933 Act, or in lieu thereof, a notice referred to in
Rule 173(a) under the ▇▇▇▇ ▇▇▇) in connection with the offering
or sale of Shares, and if at such time any event shall have occurred as a result
of which the Prospectus as then amended or supplemented 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 the light of the circumstances under
which they were made when such Prospectus is delivered, not misleading, or, if
for any other reason it shall be necessary during such same period to amend or
supplement the Prospectus or to file under the 1934 Act any document
incorporated by reference in the Prospectus in order to comply with the 1933 Act
or the 1934 Act, to notify the Agents and to file such document and to prepare
and furnish without charge to the Agents as many written and electronic copies
as each Agent may from time to time reasonably request of an amended Prospectus
or a supplement to the Prospectus which will correct such statement or omission
or effect such compliance.
(d) To make
generally available to its securityholders as soon as practicable, but in any
event not later than eighteen months after the effective date of the
Registration Statement (as defined in Rule 158(c) under the 1933 Act),
an earnings statement of the Company and the Subsidiaries (which need not be
audited) complying with Section 11(a) of the 1933 Act and the
1933 Act Regulations (including, at the option of the Company, Rule 158
under the 1933 Act).
(e) To pay
the required Commission filing fees relating to the Shares within the time
required by Rule 456(b)(1) under the 1933 Act without regard to the
proviso therein and otherwise in accordance with Rule 456(b) and
Rule 457(r) under the 1933 Act.
(f) To use
the Net Proceeds received by it from the sale of the Shares pursuant to this
Agreement and any Terms Agreement in the manner specified in the General
Disclosure Package.
(g) To file
with the NYSE all documents and notices, and make all certifications, required
by the NYSE of companies that have securities that are listed on the NYSE and
maintain such listing.
(h) At each
Applicable Time, each Settlement Date, each Registration Statement Amendment
Date (as defined below) and each Company Periodic Report Date (as defined
below) and each date on which Shares are delivered to the Agents pursuant
to a Terms Agreement, the Company shall be deemed to have affirmed each
representation, warranty, covenant and other agreement contained in this
Agreement or any Terms Agreement. In each Annual Report on Form 10-K
or Quarterly Report on Form 10-Q filed by the Company in respect of any quarter
in which sales of Shares were made by or through the Agents under this Agreement
or any Terms Agreement (each date on which any such document is filed, and any
date on which an amendment to any such document is filed, a “Company Periodic Report
Date”), or in a prospectus supplement to the Prospectus filed pursuant to
Rule 424(b) promptly after each such Company Periodic Report Date in respect of
any quarter in which sales of Shares were made by or through the Agents under
this Agreement or any Terms Agreement, the Company shall set forth with regard
to such quarter the number of Shares sold through the Agents under this
Agreement or any Terms Agreement, the Net Proceeds received by the Company and
the compensation paid by the Company to the Agents with respect to sales of
Shares pursuant to this Agreement or any Terms Agreement.
(i) Upon
commencement of the offering of Shares under this Agreement and each time the
Shares are delivered to any Agent as principal on a Settlement Date and promptly
after each (i) date the Registration Statement or the Prospectus shall be
amended or supplemented (other than (1) by an amendment or supplement
providing solely for the determination of the terms of the Shares, (2) in
connection with the filing of a prospectus supplement that contains solely the
information set forth in Section 3(h), (3) in connection with the
filing of any current reports on Form 8-K (other than any current reports on
Form 8-K which contain financial statements, supporting schedules or other
financial data, including any current report on Form 8-K under Item 2.02 of such
form that is considered “filed” under the ▇▇▇▇ ▇▇▇) or (4) by a
prospectus supplement relating to the offering of other securities (including,
without limitation, other shares of Common Stock)) (each such date, a
“Registration
Statement Amendment Date”) and (ii) Company Periodic Report
Date, the Company will furnish or cause to be furnished forthwith to each Agent
a certificate dated the date of effectiveness of such amendment or the date of
filing with the Commission of such supplement or other document, as the case may
be, in a form reasonably satisfactory to the Agents to the effect that the
statements contained in the certificate referred to in Section 6(i) of
this Agreement which were last furnished to the Agents are true and correct at
the time of such amendment, supplement or filing, as the case may be, as though
made at and as of such time (except that such statements shall be deemed to
relate to the Registration Statement, the General Disclosure Package and the
Prospectus as amended and supplemented to such time) or, in lieu of such
certificate, a certificate of the same tenor as the certificate referred to in
said Section 6(i), but modified as necessary to relate to the Registration
Statement and the Prospectus as amended and supplemented, or to the document
incorporated by reference into the Prospectus, to the time of delivery of such
certificate. As used in this paragraph, to the extent there shall be
an Applicable Time on or following the date referred to in clause (i) or
(ii) above, promptly shall be deemed to be on or prior to the next
succeeding Applicable Time.
(j) Upon
commencement of the offering of Shares under this Agreement and each time the
Shares are delivered to each Agent as principal on a Settlement Date, and
promptly after each (i) Registration Statement Amendment Date and
(ii) Company Periodic Report Date, the Company will furnish or cause to be
furnished to each Agent and to counsel to the Agents the written opinions and
letters of counsel for the Company or other counsel reasonably satisfactory to
each Agent, dated the date of effectiveness of such amendment or the date of
filing with the Commission of such supplement or other document, as the case may
be, in a form and substance reasonably satisfactory to each Agent and counsel to
the Agents, of the same tenor as the opinions and letters referred to in
Section 6(c), (d), and (e) of this Agreement, but modified as
necessary to relate to the Registration Statement, the General Disclosure
Package and the Prospectus as amended and supplemented, or to the document
incorporated by reference into the Prospectus, to the time of delivery of such
opinions and letters or, in lieu of such opinions and letters, counsels last
furnishing such letters to the Agents shall furnish such Agents with letters
substantially to the effect that the Agents may rely on such last opinions and
letters to the same extent as though each were dated the date of the letters
authorizing reliance (except that statements in such last letters shall be
deemed to relate to the Registration Statement and the Prospectus as amended and
supplemented to the time of delivery of such letters authorizing
reliance). As used in this paragraph, to the extent there shall be an
Applicable Time on or following the date referred to in clause (i) or
(ii) above, promptly shall be deemed to be on or prior to the next
succeeding Applicable Time.
(k) Upon
commencement of the offering of Shares under this Agreement, and at the time
Shares are delivered to each Agent as principal on a Settlement Date, and
promptly after each (i) Registration Statement Amendment Date and
(ii) Company Periodic Report Date, the Company will cause KPMG LLP, or
other independent accountants reasonably satisfactory to the Agents, to furnish
to each Agent a letter, dated the date of effectiveness of such amendment or the
date of filing of such supplement or other document with the Commission, as the
case may be, in form reasonably satisfactory to each Agent and its counsel, of
the same tenor as the letter referred to in Section 6(f) hereof, but
modified as necessary to relate to the Registration Statement, the General
Disclosure Package and the Prospectus, as amended and supplemented, or to the
document incorporated by reference into the Prospectus, to the date of such
letter. As used in this paragraph, to the extent there shall be an
Applicable Time on or following the date referred to in clause (i) or
(ii) above, promptly shall be deemed to be on or prior to the next
succeeding Applicable Time.
(l) The
Company consents to the Agents trading in shares of Common Stock for their own
account and for the account of their clients at the same time as sales of Shares
occur pursuant to this Agreement or any Terms Agreement.
(m) If, to
the knowledge of the Company, all filings required by Rule 424 in
connection with this offering shall not have been made or the representations in
Section 1(a) shall not be true and correct on the applicable
Settlement Date, the Company will offer to any person who has agreed to purchase
Shares from the Company as the result of an offer to purchase solicited by the
Agents the right to refuse to purchase and pay for such Shares.
(n) The
Company will cooperate timely with any reasonable due diligence review conducted
by the Agents or their counsel from time to time in connection with the
transactions contemplated hereby or in any Terms Agreement, including, without
limitation, and upon reasonable notice providing information and making
available documents and appropriate corporate officers, during regular business
hours and at the Company’s principal offices, as the Agents may reasonably
request.
(o) The
Company will not, without (i) giving each Agent at least five business
days’ prior written notice (or two business days’ prior written notice on any
Trading Day with respect to which the Company has not instructed either Agent to
make sales and which does not occur in any period when the delivery of a
prospectus is required in connection with the offering or sale of Shares)
specifying the nature of the proposed sale and the date of such proposed sale
and (ii) each Agent suspending activity under this program (which such
Agent shall do promptly if so requested) for such period of time as requested by
the Company or as deemed appropriate by the Agents in light of the proposed
sale, (A) sell, offer, agree to sell, contract to sell, hypothecate,
pledge, grant any option to purchase, make any short sale of, or otherwise
dispose of or hedge, directly or indirectly, except as contemplated by this
Agreement or as provided in the last sentence of this Section 3(o), any
shares of Common Stock or any securities convertible into, exchangeable or
exercisable for, or that represent the right to receive any shares of Common
Stock or any securities of the Company substantially similar to the Common Stock
or publicly announce an intention to do any of the
foregoing. Notwithstanding the provisions set forth in the
immediately preceding sentence, the Company may (1) issue shares, and
options to purchase shares, of Common Stock pursuant to stock option plans
described in the Registration Statement and the Prospectus, as those plans are
in effect on the date of this Agreement and (2) issue shares of Common
Stock upon the exercise of stock options or other securities convertible into or
exchangeable for Common Stock that are described in the Registration Statement
and the Prospectus and that are outstanding on the date of this Agreement, and
issue shares of Common Stock upon the exercise of stock options issued after the
date of this Agreement under stock option plans referred to in clause
(2) of this sentence.
(p) To not
take, directly or indirectly, any action designed to cause or result in, or that
has constituted or might reasonably be expected to constitute, under the 1934
Act or otherwise, the stabilization or manipulation of the price of any
securities of the Company to facilitate the sale or resale of the
Shares.
(q) The
Company will comply with all requirements of the NYSE with respect to the
issuance of the Shares and will use its reasonable best efforts to: (i) have the
Shares approved for listing on the NYSE, subject only to notice of issuance, or
(ii) file an application for listing of the Shares on the NYSE at, or prior to,
the Settlement Date.
Section
4. Free Writing
Prospectus.
(a) (i) The Company represents
and agrees that it has not made and, without the prior consent of the Agents,
will not make any offer relating to the Shares that would constitute a “free
writing prospectus” as defined in Rule 405 under the 1933 Act;
and
(ii) each
Agent represents and agrees that it has not made and, without the prior consent
of the Company, will not make any offer relating to the Shares that would
constitute a free writing prospectus required to be filed with the
Commission.
(b) The
Company has complied and will comply with the requirements of Rule 433
under the 1933 Act applicable to any Issuer Free Writing Prospectus (including
any free writing prospectus identified in Section 4(a) hereof),
including timely filing with the Commission or retention where required and
legending.
Section
5. Payment of
Expenses. The Company covenants and agrees with each Agent
that the Company will pay or cause to be paid the
following: (i) the reasonable out-of-pocket expenses incurred by
the Agents in connection with the transactions contemplated hereby (regardless
of whether the sale of the Shares is consummated), including, without
limitation, disbursements, fees and expenses of the Agents’ counsel and the
reasonable out-of-pocket expenses incurred by Sandler ▇’▇▇▇▇▇ & Partners in
connection with the postponed offering of Common Stock by the Company commenced
in July 2009 (regardless of whether the sale of the Shares is consummated),
including, without limitation, disbursements, fees and expenses of Sandler
▇’▇▇▇▇▇ & Partners’ counsel and marketing and travel expenses; (ii) the
fees, disbursements and expenses of the Company’s counsel and accountants in
connection with the registration of the Shares under the 1933 Act and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, any Issuer Free Writing Prospectus and the Prospectus
and amendments and supplements thereto and the mailing and delivering of copies
thereof to the Agents; (iii) the cost of printing or producing this
Agreement, any Terms Agreement, any Blue Sky and legal investment memoranda,
closing documents (including any copying or compilations thereof) and any
other documents 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 as provided in
Section 3(b) hereof, including the fees and disbursements of counsel
for the Agents in connection with such qualification and in connection with the
Blue Sky and legal investment memoranda; (v) all fees and expenses in
connection with the supplemental listing of the Shares on the NYSE;
(vi) the filing fees incident to, and the fees and disbursements of counsel
for the Agents in connection with, securing any required review by the Financial
Industry Regulatory Authority (“FINRA”) of the
terms of the sale of the Shares; (vii) the cost of preparing stock
certificates; (viii) the cost and charges of any transfer agent or
registrar; (ix) any transaction fees imposed by any governmental, regulatory or
self-regulatory organization in respect of the sale of the Shares, and
(x) all other costs and expenses incident to the performance of its
obligations hereunder which are not otherwise specifically provided for in this
Section; provided, however, that in no
event will the Company be responsible for the expenses described in
clause (i) in excess of $375,000.
Section
6. Conditions of Agents’
Obligations. The obligations of the Agents hereunder shall be
subject, in their discretion, to the condition that all representations and
warranties and other statements of the Company herein or in certificates of any
officer of the Company delivered pursuant to the provisions hereof are true and
correct as of the time of the execution of this Agreement, the date of any
executed Terms Agreement and as of each Registration Statement Amendment Date,
Company Periodic Report Date, Applicable Time and Settlement Date, to the
condition that the Company shall have performed all of its obligations hereunder
theretofore to be performed, and the following additional
conditions:
(a) The
Prospectus shall have been filed with the Commission pursuant to
Rule 424(b) on or prior to the date hereof and in accordance with
Section 3(a) hereof; any other material required to be filed by the
Company pursuant to Rule 433(d) shall have been filed with the
Commission within the applicable time periods prescribed for such filings by
Rule 433 under the 1933 Act; no stop order suspending the effectiveness of
the Registration Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the
Commission; and all requests for additional information on the part of the
Commission shall have been complied with; and the FINRA shall have raised no
objection to the fairness and reasonableness of the underwriting terms and
arrangements.
(b) On every
date specified in Section 3(i) hereof and on such other dates as reasonably
requested by the Agents, Manatt, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, counsel for the
Agents, shall have furnished to the Agents such written opinion or opinions,
dated as of such date, with respect to such matters as the Agents 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.
(c) On every
date specified in Section 3(j) hereof and on such other dates as
reasonably requested by the Agents following the filing of any current reports
on Form 8-K, the General Counsel for the Company shall have furnished to the
Agents written opinion or opinions, dated as of such date, in form and substance
satisfactory to the Agents.
(d) On every
date specified in Section 3(j) hereof and on such other dates as
reasonably requested by the Agents following the filing of any current reports
on Form 8-K, Carlsmith Ball LLP, Hawaii counsel for the Company, shall have
furnished to the Agents written opinion or opinions, dated as of such date, in
form and substance satisfactory to the Agents.
(e) On every
date specified in Section 3(j) hereof and on such other dates as
reasonably requested by the Agents following the filing of any current reports
on Form 8-K, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Company, shall
have furnished to the Agents written opinion or opinions, dated as of such date,
in form and substance satisfactory to the Agents.
(f) At the
dates specified in Section 3(k) hereof and on such other dates as
reasonably requested by the Agents following the filing of any current reports
on Form 8-K, the independent accountants of the Company who have certified the
financial statements of the Company and the Subsidiaries included or
incorporated by reference in the Registration Statement shall have furnished to
the Agents a letter, dated as of the date of delivery thereof and addressed to
the Agents, in form and substance reasonably satisfactory to the Agents and
their counsel, containing statements and information of the type ordinarily
included in accountants’ “comfort letters” to agents with respect to the
financial statements of the Company and the Subsidiaries included or
incorporated by reference in the Registration Statement.
(g) (i) Neither the Company nor
any of its Subsidiaries shall have sustained since the date of the latest
audited financial statements included in each of the General Disclosure Package
and the Prospectus any 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 each of the General Disclosure Package and
the Prospectus, and (ii) since the respective dates as of which information
is given in each of the General Disclosure Package and the Prospectus there
shall not have been any change in the capital stock or long-term debt of the
Company or any of its subsidiaries or any change, or any development involving a
prospective change, in or affecting the general affairs, management, financial
position, shareholders’ equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in each of the General
Disclosure Package and the Prospectus, the effect of which, in any such case
described in clause (i) or (ii), is in the judgment of the Agents 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 on the
Settlement Date on the terms and in the manner contemplated in each of the
General Disclosure Package and the Prospectus. As used in this
paragraph, references to the General Disclosure Package and the Prospectus
exclude any amendments or supplements thereto subsequent to the date of this
Agreement.
(h) Upon
commencement of the offering of Shares under this Agreement and on such other
dates as reasonably requested by either Agent, the Company will furnish or cause
to be furnished promptly to the Agents a certificate of an officer in a form
satisfactory to the Agents stating the minimum price for the sale of such Shares
pursuant to this Agreement and the maximum number of Shares that may be sold
pursuant to this Agreement or, alternatively, maximum gross proceeds from such
sales, as authorized from time to time by the Company’s Board of Directors or a
duly authorized committee thereof or, in connection with any amendment, revision
or modification of such minimum price or maximum Share number or amount, a new
certificate with respect thereto;
(i) On each
date specified in Section 3(i), each Agent shall have received certificates
of officers of the Company satisfactory to each Agent, dated as of such date, as
to the accuracy of the representations and warranties of the Company herein, as
to the performance by the Company of all of its obligations hereunder to be
performed as of such date, as to the matters set forth in subsections
(a) and (g) of this Section and as to such other matters as the
Agents may reasonably request.
(j) The
Company shall have complied with the provisions of Section 3(c) hereof
with respect to the timely furnishing of prospectuses.
(k) On such
dates as reasonably requested by the Agents, the Company shall have conducted
due diligence sessions, in form and substance satisfactory to the Agents.
(l) All
filings with the Commission required by Rule 424 under the 1933 Act to have
been filed by each Applicable Time or related Settlement Date shall have been
made within the applicable time period prescribed for such filing by
Rule 424 under the 1933 Act (without reliance on
Rule 424(b)(8) under the 1933 Act).
(m) On or
after the date hereof (i) no downgrading shall have occurred in the rating
accorded to the Company’s debt securities or preferred stock by any “nationally
recognized statistical rating organization,” as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the 1933 Act, and
(ii) no such organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating of the
Company’s debt securities or preferred stock.
(n) On or
after the date hereof there shall not have occurred any of the following:
(i) a suspension or material limitation in trading in securities generally
on the NYSE, the Nasdaq Global Market or the Nasdaq Global Select Market;
(ii) a suspension or material limitation in trading of any securities of
the Company on any exchange or in the over-the-counter market; (iii) a
general moratorium on commercial banking activities declared by either federal,
New York or Hawaii state authorities; (iv) any major disruption of
settlements of securities, payment, or clearance services in the United States
or any other country where such securities are listed, or (v) the outbreak
or escalation of hostilities involving the United States or the declaration by
the United States of a national emergency or war or a material adverse change in
general economic, political or financial conditions, or currency exchange rates
or exchange controls, including without limitation as a result of terrorist
activities after the date hereof, or any other calamity or crisis, if the effect
of any such event specified in this clause (v), in the judgment of either Agent,
is 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 on the
Settlement Date on the terms and in the manner contemplated in either the
General Disclosure Package or the Prospectus or to enforce contracts for the
sale of the Shares.
(o) The
Shares shall either have been (i) approved for listing on the NYSE, subject only
to notice of issuance, or (ii) the Company shall have filed an application for
listing of the Shares on the NYSE at, or prior to, the Settlement
Date.
Section
7. Indemnification.
(a) The
Company shall indemnify and hold harmless each Agent against any losses, claims,
damages or liabilities, joint or several, to which such Agent may become
subject, under the 1933 Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, the Basic Prospectus, the Prospectus
Supplement or the Prospectus, or any amendment or supplement thereto, any Issuer
Free Writing Prospectus or any “issuer information” filed or required to be
filed pursuant to Rule 433(d) under the 1933 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, and will reimburse each Agent for any legal or other expenses
reasonably incurred by such Agent in connection with investigating or defending
any such action or claim as such expenses are incurred; provided, however, that the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in the
Registration Statement, the Basic Prospectus, the Prospectus Supplement or the
Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing
Prospectus, in reliance upon and in conformity with written information
furnished to the Company by the Agents expressly for use therein (provided, however, that the
Company and the Agents hereby acknowledge and agree that the only information
that the Agents have furnished to the Company specifically for inclusion in the
Registration Statement, the Basic Prospectus, the Prospectus Supplement or the
Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing
Prospectus, is the Agents’ names and the last sentence of the first paragraph
appearing in the Prospectus Supplement relating to no stabilizing transactions
in the section entitled “Plan of Distribution.”
(b) The
Agents shall indemnify and hold harmless the Company against any losses, claims,
damages or liabilities to which the Company may become subject, under the 1933
Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement, the Basic Prospectus, the Prospectus Supplement, or the
Prospectus, or any amendment or supplement thereto, 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 such untrue statement or alleged untrue statement or
omission or alleged omission was made in the Registration Statement, the Basic
Prospectus, the Prospectus Supplement, or the Prospectus, or any amendment or
supplement thereto, or any Issuer Free Writing Prospectus, in reliance upon and
in conformity with written information furnished to the Company by the Agents
expressly for use therein; and will reimburse the Company for any legal or other
expenses reasonably incurred by the Company in connection with investigating or
defending any such action or claim as such expenses are incurred.
(c) Promptly
after receipt by an indemnified party under subsection (a) or
(b) above 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 subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection except and then only
to the extent such indemnifying party is materially prejudiced
thereby. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of the commencement
thereof, the indemnifying party shall be entitled to participate therein and, to
the extent that it shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party, and, after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party shall not be liable to such indemnified party
under this Section 7 for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party, in
connection with the defense thereof other than reasonable costs of
investigation. 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.
(d) If the
indemnification provided for in this Section 7 is unavailable to or
insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (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, claims, damages or liabilities (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 Agents 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 or if the indemnified party failed to give the notice required under
subsection (c) above, 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 each Agent on the other in connection
with the statements or omissions which resulted in such losses, claims, damages
or liabilities (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 Agents on the other shall be deemed to be in the
same proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company bear to the total compensation hereunder
received by the Agents. 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 Agent 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 Agents agree that it would not be just and equitable if
contributions pursuant to this subsection (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 subsection (d). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above in
this subsection (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 subsection (d), no Agent shall be required to contribute any amount in
excess of the amount by which the total price at which the Shares were offered
to the public exceeds the amount of any damages which such Agent has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇
▇▇▇) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation.
(e) The
obligations of the Company under this Section 7 shall be in addition to any
liability which the Company may otherwise have and shall extend, upon the same
terms and conditions, to each person, if any, who controls (within the meaning
of the 1933 Act) either Agent, or any of the respective partners,
directors, officers and employees of either Agent or any such controlling
person; and the obligations of the Agents under this Section 7 shall be in
addition to any liability which the Agents may otherwise have and shall extend,
upon the same terms and conditions, to each director of the Company (including
any person who, with his or her consent, is named in the Registration Statement
as about to become a director of the Company), each officer of the Company who
signs the Registration Statement and to each person, if any, who controls the
Company within the meaning of the 1933 Act.
Section
8. Representations, Warranties
and Agreements to Survive Delivery. The respective
indemnities, agreements, representations, warranties and other statements of the
Company and the Agents, as set forth in this Agreement or made by or on behalf
of them, respectively, pursuant to this Agreement, shall remain in full force
and effect, regardless of any investigation (or any statement as to the results
thereof) made by or on behalf of the Agents or any controlling person of
the Agents, or the Company, or any officer or director or controlling person of
the Company, and shall survive delivery of and payment for the
Shares.
Section
9. No Advisory or Fiduciary
Relationship. The Company acknowledges and agrees that
(i) the Agents are acting solely in the capacity of an arm’s length
contractual counterparty to the Company with respect to the offering of Shares
contemplated hereby (including in connection with determining the terms of such
offering) and (ii) the Agents have 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
Agent 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 (iii) 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 either Agent 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.
Section
10. Termination.
(a) The
Company shall have the right, by giving written notice as hereinafter specified,
to terminate this Agreement with respect to either Agent or both Agents in its
sole discretion at any time. Any such termination shall be without
liability of any party to any other party, except that (i) with respect to
any pending sale through either Agent for the Company, the obligations of the
Company, including in respect of compensation of such Agent, shall remain in
full force and effect notwithstanding such termination; and (ii) the
provisions of Section 1, Section 5, Section 7 and Section 8
of this Agreement shall remain in full force and effect notwithstanding such
termination.
(b) Each
Agent shall have the right, by giving written notice as hereinafter specified,
to terminate this Agreement in its sole discretion at any time; provided, however that such
termination shall only be with respect to the Agent giving notice and shall have
no effect on any other Agent’s rights or obligations under this
Agreement. Any such termination shall be without liability of any
party to any other party except that the provisions of Section 1,
Section 5, Section 7 and Section 8 of this Agreement shall remain
in full force and effect notwithstanding such termination.
(c) This
Agreement shall remain in full force and effect unless and until terminated
pursuant to Section 10(a) or (b) above, or otherwise by mutual
agreement of the parties; provided, however, that any
such termination by mutual agreement or pursuant to this clause (c) shall
in all cases be deemed to provide that Section 1, Section 5,
Section 7 and Section 8 of this Agreement shall remain in full force
and effect.
(d) Any
termination of this Agreement shall be effective on the date specified in such
notice of termination; provided, however, that such
termination shall not be effective until the close of business on the date of
receipt of such notice by any Agent or the Company, as the case may
be. If such termination shall occur prior to the Settlement Date for
any sale of Shares, such sale shall settle in accordance with the provisions of
Section 2(g) hereof; provided, however that, if this
Agreement is terminated with respect to either Agent, the terminated Agent shall
no longer be entitled to the compensation set forth in Section 2 hereof from
sales made by the continuing Agent and the continuing Agent shall be entitled to
the full compensation of 2.5%.
(e) In the
case of any purchase by an Agent pursuant to a Terms Agreement, the Agent may
terminate this Agreement and such Terms Agreement, at any time at or prior to
the Settlement Date for such purchase as a result of the occurrence of any of
the events set forth in Sections 6(g) or 6(n) hereof.
Section
11. Notices. All
statements, requests, notices and agreements hereunder shall be in writing, and
if to the Agents shall be delivered or sent by mail, electronic or facsimile
transmission to Sandler ▇’▇▇▇▇▇ & Partners, L.P., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: General Counsel and to RBC Capital Markets
Corporation, 3 World Financial Center, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇ ▇▇▇▇▇; and if to the Company shall be delivered or sent by mail to
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇.▇. ▇▇▇▇▇ – Senior
Vice President and General Counsel. Any such statements, requests,
notices or agreements shall take effect upon receipt thereof.
Section
12. Parties. This
Agreement shall be binding upon, and inure solely to the benefit of, the Agents
and the Company and, to the extent provided in Sections 7 and 8 hereof, the
officers and directors of the Company and the Agents and each person who
controls the Company or the Agents, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. No purchaser of
Shares through the Agents shall be deemed a successor or assign by reason merely
of such purchase.
Section
13. Time of the Essence;
Business Day. Time shall be of the essence of this
Agreement. As used herein, the term “business day” shall mean any day
when the Commission’s office in Washington, D.C. is open for
business.
Section
14. Waiver of Jury
Trial. The Company and the Agents hereby irrevocably waive, to
the fullest extent permitted by applicable law, any and all right to trial by
jury in any legal proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
Section
15. Governing
Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section
16. Counterparts. This
Agreement and any Terms Agreement may be executed by any one or more of the
parties hereto and thereto in any number of counterparts, each of which shall be
deemed to be an original, but all such respective counterparts shall together
constitute one and the same instrument. This Agreement and any Terms
Agreement may be delivered by any party by facsimile or other electronic
transmission.
Section
17. Severability. The
invalidity or unenforceability of any Section, paragraph or provision of this
Agreement shall not affect the validity or enforceability of any other Section,
paragraph or provision hereof. If any Section, paragraph or provision
of this Agreement is for any reason determined to be invalid or unenforceable,
there shall be deemed to be made such minor changes (and only such minor
changes) as are necessary to make it valid and enforceable.
[Signatures
on next page]
If the
foregoing is in accordance with your understanding of our agreement, please sign
and return to the Company a counterpart hereof, whereupon this instrument, along
with all counterparts, will become a binding agreement among the parties hereto
in accordance with its terms.
Very
truly yours,
|
|
By:
|
/s/ ▇▇▇▇ ▇.
▇▇▇▇▇▇
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|
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Name:
▇▇▇▇ ▇. ▇▇▇▇▇▇
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|
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Title:
Chief Financial Officer
|
Accepted
as of the date hereof:
Sandler
▇’▇▇▇▇▇ & Partners, L.P.
|
By:
|
Sandler
▇’▇▇▇▇▇ & Partners Corp.,
|
|
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the
sole general partner
|
|
By:
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/s/ ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇
|
|
|
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
|
|
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Title:
An Officer of the Corporation
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RBC
Capital Markets Corporation
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By:
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/s/ ▇▇▇▇▇▇ ▇.
▇▇▇▇▇
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|
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Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title:
Managing Director
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Annex
1
Common
Stock
(without
par value)
TERMS
AGREEMENT
[Name of
Agent]
Ladies
and Gentlemen:
Central
Pacific Financial Corp., a Hawaii corporation (the “Company”), proposes,
subject to the terms and conditions stated herein and in the Distribution
Agreement, dated September [4], 2009 (the “Distribution
Agreement”), among the Company, Sandler ▇’▇▇▇▇▇ & Partners, L.P. and
RBC Capital Markets Corporation, to sell to [Name of Agent] (the “Agent”) the
securities specified in the Schedule hereto (the “Purchased
Securities”).
Each of
the provisions of the Distribution Agreement not specifically related to the
solicitation by the Agent, as agent of the Company, of offers to purchase
securities is incorporated herein by reference in its entirety, and shall be
deemed to be part of this Terms Agreement to the same extent as if such
provisions had been set forth in full herein. Each of the
representations and warranties set forth therein shall be deemed to have been
made at and as of the date of this Terms Agreement and the Applicable Time,
except that each representation and warranty in Section 1 of the
Distribution Agreement which makes reference to the Prospectus (as therein
defined) shall be deemed to be a representation and warranty as of the date
of the Distribution Agreement in relation to the Prospectus, and also a
representation and warranty as of the date of this Terms Agreement and the
Settlement Date in relation to the Prospectus as amended and supplemented to
relate to the Purchased Securities.
An
amendment to the Registration Statement (as defined in the Distribution
Agreement), or a supplement to the Prospectus, as the case may be, relating to
the Purchased Securities in the form heretofore delivered to the Agent is now
proposed to be filed with the Securities and Exchange Commission.
Subject
to the terms and conditions set forth herein and in the Distribution Agreement
which are incorporated herein by reference, the Company agrees to sell to the
Agent and the latter agrees to purchase from the Company the number of Purchased
Securities at the time and place and at the purchase price set forth in the
Schedule hereto.
If the
foregoing is in accordance with your understanding of our agreement, please sign
and return to the Company a counterpart hereof, whereupon this instrument, along
with all counterparts, will become a binding agreement between the Agent and the
Company in accordance with its terms.
Very
truly yours,
By: ____________________
Name:
Title:
Accepted
as of the date hereof:
[Name of
Agent]
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By:
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_________________________________,
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|
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_________________________________
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By:
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_________________________________
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|
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Name:
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Title:
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SCHEDULE OF PURCHASED
SECURITIES
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Central
Pacific Financial Corp. agrees to sell to the Agent listed below and the Agent
listed below agrees to purchase from Central Pacific Financial Corp., pursuant
to the Terms Agreement to which this schedule is attached, as
follows:
NAME OF
AGENT:
NUMBER OF
PURCHASED SECURITIES:
TIME AND
PLACE:
PURCHASE
PRICE: