PRIVATEBANCORP, INC. 11,600,000 Shares of Common Stock Underwriting Agreement
EXHIBIT
1.1
EXECUTION
COPY
11,600,000
Shares of Common Stock
Underwriting
Agreement
May 13,
2009
X.X.
Xxxxxx Securities Inc.
As
Representative of the
several Underwriters
listed
in Schedule 1 hereto
c/o X.X.
Xxxxxx Securities Inc.
000 Xxxx
Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Ladies
and Gentlemen:
PrivateBancorp,
Inc., a Delaware corporation (the “Company”), proposes to issue and sell to the
several Underwriters listed in Schedule 1 hereto (the “Underwriters”), for whom
you are acting as representative (the “Representative”), an aggregate of
11,600,000 shares of Common Stock, no par value, of the Company (the
“Underwritten Shares”) and, at the option of the Underwriters, up to an
additional 1,740,000 shares of Common Stock, no par value, of the Company (the
“Option Shares”). The Underwritten Shares and the Option Shares are
herein referred to as the “Shares”. The shares of Common Stock of the
Company to be outstanding after giving effect to the sale of the Shares are
referred to herein as the “Stock”.
The
Company hereby confirms its agreement with the several Underwriters concerning
the purchase and sale of the Shares, as follows:
1. Registration
Statement. The Company has prepared and filed with the
Securities and Exchange Commission (the “Commission”) under the Securities Act
of 1933, as amended, and the rules and regulations of the Commission thereunder
(collectively, the “Securities Act”), a registration statement (File No.
333-150767), including a prospectus (the “Basic Prospectus”) relating to the
Shares. The Company has also prepared and filed, or will file, with
the Commission a prospectus supplement specifically relating to the Shares (the
“Prospectus Supplement”). The registration statement, as amended at
the time of this Agreement, including the information, if any, deemed pursuant
to Rule 430A, 430B or 430C under the Securities Act to be part of the
registration statement at the time of its effectiveness (“Rule 430
Information”), is referred to herein as the “Registration Statement”; and as
used herein, the term “Prospectus” means the Basic Prospectus included in the
Registration Statement (and any amendments thereto) as supplemented by the
Prospectus Supplement in the form first used (or made available upon request of
purchasers pursuant to Rule 173 under the Securities Act) in connection with
confirmation of sales of the Shares, and the term “Preliminary Prospectus” means
any preliminary prospectus supplement specifically relating to the Shares
together with the Basic Prospectus. If the Company has filed an
abbreviated registration statement pursuant to Rule 462(b) under the Securities
Act (the “Rule 462 Registration Statement”), then any reference herein to the
term “Registration Statement” shall be deemed to include such Rule 462
Registration Statement. Any reference in this Agreement to the
Registration Statement, the Basic Prospectus, any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents incorporated by
reference therein, and any reference to
“amend”,
“amendment” or “supplement” with respect to the Registration Statement, any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and include
any documents filed by the Company after such date under the Securities Exchange
Act of 1934, as amended, and the rules and regulations of the Commission
thereunder (collectively, the “Exchange Act”) that are deemed to be incorporated
by reference therein. Capitalized terms used but not defined herein
shall have the meanings given to such terms in the Registration Statement and
the Prospectus.
At or
prior to the Applicable Time (as defined below), the Company had prepared the
following information (collectively with the pricing information set forth on
Annex B, the “Pricing Disclosure Package”): the Preliminary
Prospectus dated May 11, 2009 and each “free-writing prospectus” (as defined
pursuant to Rule 405 under the Securities Act) listed on Annex B
hereto.
“Applicable
Time” means the time when the first sale of the Shares is made.
2. Purchase of the Shares by
the Underwriters.
(a) The
Company agrees to issue and sell the Underwritten Shares to the several
Underwriters as provided in this Agreement, and each Underwriter, on the basis
of the representations, warranties and agreements set forth herein and subject
to the conditions set forth herein, agrees, severally and not jointly, to
purchase from the Company the respective number of Underwritten Shares set forth
opposite such Underwriter’s name in Schedule 1 hereto at a price per share (the
“Purchase Price”) of $18.2875.
In
addition, the Company agrees to issue and sell the Option Shares to the several
Underwriters as provided in this Agreement, and the Underwriters, on the basis
of the representations, warranties and agreements set forth herein and subject
to the conditions set forth herein, shall have the option to purchase, severally
and not jointly, from the Company the Option Shares at the Purchase Price less
an amount per share equal to any dividends or distributions declared by the
Company and payable on the Underwritten Shares but not payable on the Option
Shares.
If any
Option Shares are to be purchased, the number of Option Shares to be purchased
by each Underwriter shall be the number of Option Shares which bears the same
ratio to the aggregate number of Option Shares being purchased as the number of
Underwritten Shares set forth opposite the name of such Underwriter in Schedule
1 hereto (or such number increased as set forth in Section 10 hereof) bears to
the aggregate number of Underwritten Shares being purchased from the Company by
the several Underwriters, subject, however, to such adjustments to eliminate any
fractional Shares as the Representative in its sole discretion shall
make.
The
Underwriters may exercise the option to purchase Option Shares at any time in
whole, or from time to time in part, on or before the thirtieth day following
the date of the Prospectus, by written notice from the Representative to the
Company. Such notice shall set forth the aggregate number of Option
Shares as to which the option is being exercised and the date and time when the
Option Shares are to be delivered and paid for, which may be the same date and
time as the Closing Date (as hereinafter defined) but shall not be earlier than
the Closing Date or later than the tenth full business day (as hereinafter
defined) after the date of such notice (unless such time and date are postponed
in accordance with the provisions of Section 10 hereof). Any such
notice shall be given at least two business days prior to the date and time of
delivery specified therein.
(b) The
Company understands that the Underwriters intend to make a public offering of
the Shares as soon after the effectiveness of this Agreement as in the judgment
of the Representative is advisable, and initially to offer the Shares on the
terms set forth in the Prospectus. The Company
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acknowledges
and agrees that the Underwriters may offer and sell Shares to or through any
affiliate of an Underwriter.
(c) Payment
for the Shares shall be made by wire transfer in immediately available funds to
the account specified by the Company to the Representative in the case of the
Underwritten Shares, at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx
Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, at 10:00 A.M., New York City time, on
May 19, 2009, or at such other time or place on the same or such other date, not
later than the fifth business day thereafter, as the Representative and the
Company may agree upon in writing or, in the case of the Option Shares, on the
date and at the time and place specified by the Representative in the written
notice of the Underwriters’ election to purchase such Option
Shares. The time and date of such payment for the Underwritten Shares
is referred to herein as the “Closing Date”, and the time and date for such
payment for the Option Shares, if other than the Closing Date, is herein
referred to as the “Additional Closing Date”.
Payment
for the Shares to be purchased on the Closing Date or the Additional Closing
Date, as the case may be, shall be made against delivery to the Representative
for the respective accounts of the several Underwriters of the Shares to be
purchased on such date or the Additional Closing Date, as the case may be, with
any transfer taxes payable in connection with the sale of such Shares duly paid
by the Company. Delivery of the Shares shall be made through the
facilities of The Depository Trust Company (“DTC”) unless the Representative
shall otherwise instruct.
(d) The
Company acknowledges and agrees that the Underwriters 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 the offering) and not as a financial advisor or a
fiduciary to, or an agent of, the Company or any other
person. Additionally, neither the Representative nor any other
Underwriter is advising the Company or any other person as to any legal, tax,
investment, accounting or regulatory matters in any
jurisdiction. The Company shall consult with its own advisors
concerning such matters and shall be responsible for making its own independent
investigation and appraisal of the transactions contemplated hereby, and the
Underwriters shall have no responsibility or liability to the Company with
respect thereto. Any review by the Underwriters of the Company, the
transactions contemplated hereby or other matters relating to such transactions
will be performed solely for the benefit of the Underwriters and shall not be on
behalf of the Company.
3. Representations and
Warranties of the Company. The Company represents and warrants
to each Underwriter that:
(a) Preliminary
Prospectus. No order preventing or suspending the use of any
Preliminary Prospectus has been issued by the Commission, and the Preliminary
Prospectus included in the Pricing Disclosure Package, at the time of filing
thereof, complied in all material respects with the Securities Act, and no
Preliminary Prospectus, at the time of filing thereof, contained any untrue
statement of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided that the
Company makes no representation and warranty with respect to any statements or
omissions made in reliance upon and in conformity with information relating to
any Underwriter furnished to the Company in writing by such Underwriter through
the Representative expressly for use in any Preliminary Prospectus, it being
understood and agreed that the only such information furnished by any
Underwriter consists of the information described as such in Section 7(b)
hereof.
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(b) Pricing Disclosure
Package. The Pricing Disclosure Package as of the Applicable
Time did not, and as of the Closing Date and as of the Additional Closing Date,
as the case may be, will not, contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
provided that
the Company makes no representation and warranty with respect to any statements
or omissions made in reliance upon and in conformity with information relating
to any Underwriter furnished to the Company in writing by such Underwriter
through the Representative expressly for use in such Pricing Disclosure Package,
it being understood and agreed that the only such information furnished by any
Underwriter consists of the information described as such in Section 7(b)
hereof.
(c) Issuer Free Writing
Prospectus. Other than the Registration Statement, the
Preliminary Prospectus and the Prospectus, the Company (including its agents and
representatives, other than the Underwriters in their capacity as such) has not
prepared, used, authorized, approved or referred to and will not prepare, use,
authorize, approve or refer to any “written communication” (as defined in Rule
405 under the Securities Act) that constitutes an offer to sell or solicitation
of an offer to buy the Shares (each such communication by the Company or its
agents and representatives (other than a communication referred to in clause (i)
below) an “Issuer Free Writing Prospectus”) other than (i) any document not
constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act
or Rule 134 under the Securities Act or (ii) the documents listed on Annex B
hereto, each electronic road show and any other written communications approved
in writing in advance by the Representative. Each such Issuer Free
Writing Prospectus complied in all material respects with the Securities Act,
has been or will be (within the time period specified in Rule 433) filed in
accordance with the Securities Act (to the extent required thereby) and, when
taken together with the Preliminary Prospectus filed prior to the first use of
such Issuer Free Writing Prospectus, did not, and as of the Closing Date and as
of the Additional Closing Date, as the case may be, will not, contain any untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided that the
Company makes no representation and warranty with respect to any statements or
omissions made in each such Issuer Free Writing Prospectus or Preliminary
Prospectus in reliance upon and in conformity with information relating to any
Underwriter furnished to the Company in writing by such Underwriter through the
Representative expressly for use in such Issuer Free Writing Prospectus or
Preliminary Prospectus, it being understood and agreed that the only such
information furnished by any Underwriter consists of the information described
as such in Section 7(b) hereof.
(d) Registration Statement and
Prospectus. The Registration Statement is an “automatic shelf
registration statement” as defined under Rule 405 of the Securities Act that has
been filed with the Commission not earlier than three years prior to the date
hereof; and no notice of objection of the Commission to the use of such
registration statement or any post-effective amendment thereto pursuant to Rule
401(g)(2) under the Securities Act has been received by the
Company. No order suspending the effectiveness of the Registration
Statement has been issued by the Commission, and no proceeding for that purpose
or pursuant to Section 8A of the Securities Act against the Company or related
to the offering of the Shares has been initiated or threatened by the
Commission; as of the applicable effective date of the Registration Statement
and any post-effective amendment thereto, the Registration Statement and any
such post-effective amendment complied and will comply in all material respects
with the Securities Act, and did not and will not contain any 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 not misleading; and
as of the date of the Prospectus and any amendment or supplement thereto and as
of the Closing Date and as of the Additional Closing Date, as the case may be,
the Prospectus will not contain any untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading;
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provided that the
Company makes no representation and warranty with respect to any statements or
omissions made in reliance upon and in conformity with information relating to
any Underwriter furnished to the Company in writing by such Underwriter through
the Representative expressly for use in the Registration Statement and the
Prospectus and any amendment or supplement thereto, it being understood and
agreed that the only such information furnished by any Underwriter consists of
the information described as such in Section 7(b) hereof.
(e) Incorporated
Documents. The documents incorporated by reference in the
Registration Statement, the Prospectus and the Pricing Disclosure Package, when
they were filed with the Commission conformed in all material respects to the
requirements of the Exchange Act, and none of such documents contained any
untrue statement of a material fact or omitted to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; and any further documents so filed
and incorporated by reference in the Registration Statement, the Prospectus or
the Pricing Disclosure Package, when such documents are filed with the
Commission, will conform in all material respects to the requirements of the
Exchange Act and will not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading.
(f) Financial
Statements. The financial statements (including the related
notes thereto) of the Company and its consolidated subsidiaries included or
incorporated by reference in the Registration Statement, the Pricing Disclosure
Package and the Prospectus comply in all material respects with the applicable
requirements of the Securities Act and the Exchange Act, as applicable, and
present fairly the financial position of the Company and its consolidated
subsidiaries as of the dates indicated and the results of their operations and
the changes in their cash flows for the periods specified; such financial
statements have been prepared in conformity with U.S. generally accepted
accounting principles in the United States applied on a consistent basis
throughout the periods covered thereby, and any supporting schedules included or
incorporated by reference in the Registration Statement present fairly the
information required to be stated therein; and the other financial information
included or incorporated by reference in the Registration Statement, the Pricing
Disclosure Package and the Prospectus has been derived from the accounting
records of the Company and its consolidated subsidiaries and presents fairly the
information shown thereby; and there is no pro forma financial
information (other than the pro forma capitalization
information included in the Preliminary Prospectus and the Prospectus) included
or incorporated by reference in the Registration Statement, the Pricing
Disclosure Package or the Prospectus.
(g) No Material Adverse
Change. Since the date of the most recent consolidated
financial statements of the Company and its subsidiaries included or
incorporated by reference in the Registration Statement, the Pricing Disclosure
Package and the Prospectus (1) there has not been any material loss or
interference with the business of the Company or any of its subsidiaries from
fire, explosion, flood or other calamity, whether or not covered by insurance,
or from any labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Pricing Disclosure Package,
(2) there has not been any change in the capital stock (other than capital stock
issued pursuant to the exercise of options or pursuant to inducement equity
awards made under the Company’s existing equity plans) or long-term debt of the
Company or any of its subsidiaries, (3) there has not been any material adverse
change, or any development involving a prospective material adverse change, in
or affecting the general affairs, business, prospects, management, financial
position, stockholders’ equity or results of operations of the Company and its
subsidiaries, considered as one enterprise, (4) there have been no transactions
entered into by, and no obligations or liabilities, contingent or otherwise,
incurred by the Company or any of its subsidiaries, whether or not in the
ordinary course of business, which are material to the Company and its
subsidiaries, considered as one enterprise, and (5) there has been no dividend
or distribution (other than regularly scheduled quarterly dividend payments on
the Company’s common stock and preferred
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stock) of
any kind declared, paid or made by the Company on any class of its capital
stock, in each case, otherwise than as set forth or contemplated in the
Registration Statement, the Pricing Disclosure Package and the
Prospectus.
(h) Organization and Good
Standing. The Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the State
of Delaware, with power and authority (corporate and other) to own, lease and
operate its properties and conduct its business as described in the Registration
Statement, the Pricing Disclosure Package and the Prospectus and to enter into
and perform its obligations under this Agreement, and has been duly qualified as
a foreign corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases properties
or conducts any business so as to require such qualification, except where the
failure so to qualify or be in good standing would not have a material adverse
effect on the business, assets, properties, condition (financial or otherwise),
results of operations or prospects of the Company and its subsidiaries taken as
a whole (a “Material Adverse Effect”). The PrivateBank and Trust
Company is the only significant subsidiary (as such term is defined in Rule 1-02
of Regulation S-X) of the Company (the “Subsidiary”). Each subsidiary
of the Company has been duly incorporated (or organized) and is validly existing
as a corporation, bank or other organization in good standing under the laws of
the jurisdiction of its incorporation (or organization), with power and
authority to own, lease and operate its properties and conduct its business as
described in the Registration Statement, the Pricing Disclosure Package and the
Prospectus, and has been duly qualified as a foreign corporation (or other
organization) for the transaction of business and is in good standing under the
laws of each other jurisdiction in which it owns or leases properties or
conducts any business so as to require such qualification, except where the
failure so to qualify or be in good standing would not have a Material Adverse
Effect; all of the issued and outstanding capital stock (or other ownership
interests) of each subsidiary of the Company has been duly and validly
authorized and issued, is fully paid and non-assessable and is owned by the
Company, directly or through its subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance or claim, except that the shares
of capital stock of the Subsidiary have been pledged pursuant to the terms of
that certain Revolving Credit Agreement and that certain Term Loan Agreement,
each dated as of September 26, 2008, between the Company, the lenders from time
to time party thereto and SunTrust Bank as administrative agent, as
amended.
(i) Capitalization. The
Company has an authorized capitalization as of March 31, 2009 as set forth in
the Registration Statement, the Pricing Disclosure Package and the Prospectus in
the section captioned “Capitalization”, and all of the issued and outstanding
shares of capital stock of the Company have been duly and validly authorized and
issued, are fully paid and non-assessable and conform to the descriptions
thereof contained in the Registration Statement, the Pricing Disclosure Package
and the Prospectus; and, except for certain preemptive rights held by GTCR
Xxxxxx Xxxxxx XX, L.L.C. and its affiliates as described in the Registration
Statement, the Pricing Disclosure Package and the Prospectus in the section
captioned “Description of Capital Stock – Series A Junior Nonvoting Preferred
Stock – Preemptive Rights”, none of the issued and outstanding shares of capital
stock of the Company are subject to any preemptive or similar
rights.
(j) Stock
Options. With respect to the stock options (the “Stock
Options”) granted pursuant to the stock-based compensation plans of the Company
and its subsidiaries (the “Company Stock Plans”), (i) each Stock Option intended
to qualify as an “incentive stock option” under Section 422 of the Internal
Revenue Code of 1986, as amended (the “Code”), so qualifies, (ii) each grant of
a Stock Option was duly authorized no later than the date on which the grant of
such Stock Option was by its terms to be effective (the “Grant Date”) by all
necessary corporate action, including, as applicable, approval by the board of
directors of the Company (or a duly constituted and authorized committee
thereof) and any required stockholder approval by the necessary number of votes
or written consents, and the award agreement
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governing
such grant (if any) was duly executed and delivered by each party thereto, (iii)
each such grant was made in accordance with the terms of the Company Stock
Plans, the Exchange Act and all other applicable laws and regulatory rules or
requirements, including the rules of the NASDAQ Global Select Market, and
(iv) each such grant was properly accounted for in accordance with
generally accepted accounting principles in the financial statements (including
the related notes) of the Company, and any disclosure in the Company's filings
with the Commission with respect to any such grant complied in all material
respects with the Exchange Act and all other applicable laws. The Company has
not knowingly granted, and there is no and has been no policy or practice of the
Company of granting, Stock Options prior to, or otherwise coordinating the grant
of Stock Options with, the release or other public announcement of material
information regarding the Company or its subsidiaries or their results of
operations or prospects.
(k) Underwriting
Agreement. The Company has full right, power and authority to
execute and deliver this Agreement and to perform its obligations hereunder; and
all action required to be taken for the due and proper authorization, execution
and delivery by it of this Agreement and the consummation by it of the
transactions contemplated hereby has been duly and validly
taken. This Agreement has been duly executed and delivered by the
Company.
(l) The Shares. The
Shares have been duly and validly authorized and, when issued and delivered to
and paid for by the Underwriters in accordance with the terms of this Agreement,
will be duly and validly issued and fully paid and non-assessable shares of
Common Stock, and will conform to the descriptions thereof contained in the
Registration Statement, the Pricing Disclosure Package and the Prospectus; and
the issuance of the Shares is not subject to any preemptive or similar rights
other than the preemptive rights held by GTCR Xxxxxx Xxxxxx XX, L.L.C. and its
affiliates as described in the Registration Statement, the Pricing Disclosure
Package and the Prospectus in the section captioned “Description of Capital
Stock – Series A Junior Nonvoting Preferred Stock – Preemptive Rights.”
(m) Description of this
Agreement. This Agreement conforms in all material respects to
the description thereof contained in the Registration Statement, the Pricing
Disclosure Package and the Prospectus.
(n) No Violation or
Default. Neither the Company nor any of its subsidiaries is
(1) in violation of its certificate or articles of incorporation or bylaws (or
other organization documents), as applicable, (2) in violation of any law,
ordinance, administrative or governmental rule or regulation to which it is
subject, including, without limitation, the Emergency Economic Stabilization Act
of 2008 (the “EESA”) and the American Recovery and Reinvestment Act of 2009 (the
“ARRA”), (3) in violation of any decree of any court or governmental agency or
body to which it is subject, or (4) in default in the performance of any
obligation, agreement or condition contained in any bond, debenture, note or any
other evidence of indebtedness or in any agreement, indenture, lease or other
instrument to it is a party or by which it or any of its properties may be
bound, including, without limitation, any agreement or instrument entered into
by the Company or its directors or officers in connection with the EESA, the
ARRA or the Company’s participation in the Troubled Asset Relief Program Capital
Purchase Program (“TARP-CPP”), except, in the case of clauses (2), (3) and (4),
for any such violation or default that would not, individually or in the
aggregate, have a Material Adverse Effect.
(o) No Conflicts. The
execution, delivery and performance by the Company of this Agreement, the
issuance and sale of the Shares and the consummation of the transactions
contemplated by this Agreement will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a party or by
which the Company or any of its
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subsidiaries
is bound or to which any of the property or assets of the Company or any of its
subsidiaries is subject, except as would not, individually and in the aggregate,
have or reasonably be expected to have a Material Adverse Effect, nor will such
action result in any violation of the provisions of the certificate or articles
of incorporation or by-laws (or other organization documents) of the Company or
any of its subsidiaries or any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the Company or any
of its subsidiaries or any of their properties; and no consent, approval,
authorization, order, registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale of the Shares or
the consummation by the Company of the transactions contemplated hereby, except
such as have been made or obtained under the Securities Act and the notification
made to the NASDAQ Stock Market with respect to the issuance of the
Shares.
(p) Legal
Proceedings. Other than as set forth in the Registration
Statement, the Pricing Disclosure Package and the Prospectus, there are no legal
or governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any of its
subsidiaries is the subject which, if determined adversely to the Company or the
Subsidiary, individually or in the aggregate, would have or may reasonably be
expected to have a Material Adverse Effect, or would prevent or impair the
consummation of the transactions contemplated by this Agreement, or which are
required to be described in the Registration Statement or the Pricing Disclosure
Package; and, to the Company’s knowledge, no such proceedings are threatened or
contemplated by governmental authorities or others.
(q) Independent
Accountants. Ernst & Young LLP, which has certified
certain financial statements of the Company and its subsidiaries, is an
independent registered public accounting firm with respect to the Company and
its subsidiaries within the applicable rules and regulations adopted by the
Commission and the Public Company Accounting Oversight Board (United States) and
as required by the Securities Act, the Exchange Act and the rules and
regulations thereunder.
(r) Title to Real and Personal
Property. Each of the Company and its subsidiaries has good
and marketable title to all real and personal property owned by it, in each case
free and clear of all liens, encumbrances and defects except those that (1) are
described in the Registration Statement, the Pricing Disclosure Package and the
Prospectus, (2) do not materially affect the value of such property and do not
interfere with the use made and proposed to be made of such property by the
Company or any of its subsidiaries, or (3) could not reasonably be
expected, individually or in the aggregate, to have a Material Adverse
Effect. Any real property and buildings held under lease by the
Company or any of its subsidiaries are held under valid, subsisting and
enforceable leases with such exceptions as are not material and do not interfere
with the use made and proposed to be made of such property and buildings by the
Company or any subsidiary.
(s) Title to Intellectual
Property. The Company and its subsidiaries own or possess, or
can acquire on reasonable terms, all licenses, inventions, copyrights, know-how
(including trade secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures), trademarks, service marks and
trade names, patents and patent rights (collectively “Intellectual Property”)
material to carrying on each of their respective businesses as described in the
Pricing Disclosure Package, and neither the Company nor the Subsidiary has
received any correspondence relating to any Intellectual Property or notice of
infringement of or conflict with asserted rights of others with respect to any
Intellectual Property which would render any Intellectual Property invalid or
inadequate to protect the interest of the Company and its subsidiaries and which
infringement or conflict (if the subject of any unfavorable decision, ruling or
finding) or invalidity or inadequacy, individually or in the aggregate, would
have or may reasonably be expected to have a Material Adverse
Effect.
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(t) No Undisclosed
Relationships. No relationship, direct or indirect, exists
between or among the Company or any of its subsidiaries, on the one hand, and
the directors, officers, stockholders, customers or suppliers of the Company or
any of its subsidiaries, on the other, that is required by the Securities Act to
be described in the Registration Statement and the Prospectus and that is not so
described in such documents and in the Pricing Disclosure Package.
(u) Investment Company
Act. The Company is not and, after giving effect to the
offering and sale of the Shares and the application of the proceeds thereof as
described in the Registration Statement, the Pricing Disclosure Package and the
Prospectus, will not be required to register as an “investment company” or an
entity “controlled” by an “investment company” within the meaning of the
Investment Company Act of 1940, as amended, and the rules and regulations of the
Commission thereunder (collectively, the “Investment Company Act”).
(v) Taxes. All United
States federal income tax returns of the Company and its subsidiaries required
by law to be filed have been filed, except insofar as the failure to file such
returns, individually or in the aggregate, would not result in a Material
Adverse Effect, and all taxes shown by such returns or that were otherwise
assessed by the Internal Revenue Service and are due and payable have been paid,
except with respect to those assessments against which appeals have been or will
be promptly taken (or which are otherwise being contested in good faith) and as
to which adequate reserves have been provided. The Company and its subsidiaries
have filed all other tax returns that are required to have been filed by them
pursuant to applicable foreign, state, local or other law, except insofar as the
failure to file such returns, individually or in the aggregate, would not result
in a Material Adverse Effect, and have paid all taxes due pursuant to such
returns or pursuant to any assessment received by the Company or any of its
subsidiaries, except for such taxes, if any, as are being contested in good
faith and as to which adequate reserves have been provided. The
charges, accruals and reserves on the books of the Company and its subsidiaries
in respect of any income and corporation tax liability for any years not finally
determined are adequate to meet any actual or, to the Company’s knowledge,
threatened assessments or re-assessments for additional income tax for any years
not finally determined.
(w) Licenses and Permits and Bank
Regulatory Compliance. The Company and its subsidiaries
possess all permits, licenses, approvals, consents and other authorizations
(collectively, “Permits”) issued by the appropriate federal, state, local or
foreign regulatory agencies or bodies necessary to conduct their businesses as
currently being conducted, except where the failure to obtain or possess any
Permit would not, individually or in the aggregate, have a Material Adverse
Effect; the Company and its subsidiaries are in compliance with the terms and
conditions of all such Permits and all applicable laws and regulations
(including, without limitation, all applicable banking laws and regulations),
and all of the Permits are valid and in full force and effect, except, in each
case, where the failure so to comply or where the invalidity of such Permits or
the failure of such Permits to be in full force and effect, individually or in
the aggregate, would not have a Material Adverse Effect; and neither the Company
nor any of its subsidiaries has received any notice of proceedings relating to
the revocation or material modification of any such Permits, except such
revocations or modifications which would not, individually or in the aggregate,
have a Material Adverse Effect.
(x) No Labor
Disputes. No labor dispute with the employees of the Company
or any of its subsidiaries exists or, to the knowledge of the Company, is
imminent or has been threatened, in each case, which may reasonably be expected
to have a Material Adverse Effect.
(y) Compliance with and Liability under
Environmental Laws. Neither the Company nor any of its
subsidiaries is in violation of any statute or any rule, regulation, decision or
order of any governmental agency or body or any court, domestic or foreign,
relating to the use, production, disposal
9
or
release of hazardous or toxic substances or relating to the protection or
restoration of the environment or human exposure to hazardous or toxic
substances (collectively, “environmental laws”), owns or operates any real
property contaminated with any substance that is subject to any environmental
laws, is liable for any off-site disposal or contamination pursuant to any
environmental laws, or is subject to any claim relating to any environmental
laws, which violation, contamination, liability or claim, individually or in the
aggregate, would have a Material Adverse Effect; and the Company is not aware of
any pending investigation which might lead to such a claim.
(z) Compliance with
ERISA. Each employee benefit plan, within the meaning of
Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended
(“ERISA”), that is maintained, administered or contributed to by the Company or
any of its subsidiaries for employees or former employees of the Company and its
affiliates has been maintained in compliance with its terms and the material
requirements of any applicable statutes, orders, rules and regulations,
including, but not limited, to ERISA and the Code, except to the extent that
failure to so comply, individually or in the aggregate, would not have a
Material Adverse Effect. No prohibited transaction, within the
meaning of Section 406 of ERISA or Section 4975 of the Code has occurred with
respect to any such plan excluding transactions effected pursuant to a statutory
or administrative exemption. No such plan is subject to Section 302
or 303 or Title IV of ERISA, or Section 412 or 430 of the Code. There
is no pending audit or investigation by the Internal Revenue Service, the U.S.
Department of Labor or any other governmental agency or any foreign regulatory
agency with respect to any such plan that could reasonably be expected to result
in material liability to the Company or its subsidiaries. None of the
following events has occurred or is reasonably likely to occur: (x) a material
increase in the aggregate amount of contributions required to be made to all
such plans by the Company or any of its subsidiaries in the current fiscal year
of the Company and any of its subsidiaries compared to the amount of such
contributions made in the Company and any of its subsidiaries’ most recently
completed fiscal year; or (y) a material increase in the Company and any of its
subsidiaries’ “accumulated post-retirement benefit obligations” (within the
meaning of Statement of Financial Accounting Standards 106) compared to the
amount of such obligations in the Company and its any of subsidiaries’ most
recently completed fiscal year.
(aa) Disclosure
Controls. The Company maintains disclosure controls and
procedures (as such term is defined in Rule 13a-15(e) of the Exchange Act) that
comply with the requirements of the Exchange Act in all material
respects.
(bb) Accounting
Controls. The Company maintains a system of internal
accounting controls sufficient to provide reasonable assurance that (1)
transactions are executed in accordance with management’s general or specific
authorizations; (2) transactions are recorded as necessary to permit preparation
of financial statements in conformity with generally accepted accounting
principles and to maintain accountability for assets; (3) access to assets is
permitted only in accordance with management’s general or specific
authorization; and (4) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences. Since the date of the latest audited
financial statements included or incorporated by reference in the Pricing
Disclosure Package, (a) the Company has not been advised of (1) any
significant deficiencies in the design or operation of internal controls that
could adversely affect the ability of the Company and each of its subsidiaries
to record, process, summarize and report financial data, or any material
weaknesses in internal controls and (2) any fraud, whether or not material, that
involves management or other employees who have a significant role in the
internal controls of the Company and each of its subsidiaries, and (b) there has
been no change in the Company’s internal control over financial reporting that
has materially affected, or is reasonably likely to materially affect, the
Company’s internal control over financial reporting.
10
(cc) Insurance. The
Company and its subsidiaries are insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as the Company
believes are reasonably sufficient to protect the Company and its subsidiaries;
neither the Company nor any of its subsidiaries (1) has been refused any
insurance coverage sought or applied for or (2) has reason to believe that it
will not be able (A) to renew its existing insurance coverage as and when such
coverage expires or (B) to obtain similar coverage from similar insurers as may
be necessary to continue its business at a cost that would not have a Material
Adverse Effect.
(dd) No Unlawful
Payments. None of the Company, any of its subsidiaries or, to
the knowledge of the Company, any director, officer, agent, employee or other
person associated with or acting on behalf of the Company or any of its
subsidiaries, has (i) used any corporate funds for any unlawful contribution,
gift, entertainment or other unlawful expense 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 Foreign Corrupt Practices Act of 1977, or (iv)
made any bribe, unlawful rebate, payoff, influence payment, kickback or other
unlawful payment.
(ee) Compliance with Money Laundering
Laws. The operations of the Company and its subsidiaries are
and have been conducted at all times in compliance with applicable financial
recordkeeping and reporting requirements of the Currency and Foreign
Transactions Reporting Act of 1970, as amended, the money laundering statutes of
all jurisdictions, the rules and regulations thereunder and any related or
similar rules, regulations or guidelines, issued, administered or enforced by
any governmental agency (collectively, the “Money Laundering Laws”) and no
action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company or any of its
subsidiaries with respect to the Money Laundering Laws is pending or, to the
knowledge of the Company, threatened or contemplated.
(ff) Compliance with
OFAC. None of the Company, any of its subsidiaries or, to the
knowledge of the Company, any director, officer, agent, employee or affiliate of
the Company or any of its subsidiaries, is currently subject to any U.S.
sanctions administered by the Office of Foreign Assets Control of the U.S.
Department of the Treasury (“OFAC”), nor has OFAC, to the knowledge of the
Company, threatened the Company or any of its subsidiaries with such sanctions,
nor are any such sanctions contemplated; and the Company will not, directly or
indirectly, use the proceeds of the offering of the Shares hereunder, or lend,
contribute or otherwise make available such proceeds to any subsidiary, joint
venture partner or other person or entity, for the purpose of financing the
activities of any person currently subject to any U.S. sanctions administered by
OFAC.
(gg) No
Restrictions. Except as restricted as a result of the
Company’s participation in TARP-CPP as described in the Registration Statement,
the Prospectus and the Pricing Disclosure Package, none of the Company or any
subsidiary thereof is currently prohibited, directly or indirectly, under any
agreement or other instrument to which it is a party or is subject, from paying
any dividends, from making any other distribution on its capital stock, from
repaying any loans or advances or from transferring any of its properties or
assets. None of the Company or any subsidiary thereof is a party to
any cease and desist order, supervisory agreement, memorandum of understanding,
or similar order or agreement, and, to the Company’s knowledge, no such order or
agreement has been threatened or is contemplated.
(hh) No Broker’s
Fees. Other than as contemplated by this Agreement, there is
no broker, finder or other party that is entitled to receive from the Company or
any subsidiary any brokerage or
11
finder’s
fee or any other fee, commission or payment as a result of the transactions
contemplated by this Agreement.
(ii) No Registration
Rights. No person has the right to require the Company or any
of its subsidiaries to register any securities for sale under the Securities Act
by reason of the filing of the Registration Statement with the Commission or the
issuance and sale of the Shares, other than such rights that have been duly
waived.
(jj) No
Stabilization. The Company has not distributed, nor prior to
the later to occur of the Closing Date and completion of distribution of the
Shares will distribute, any offering materials in connection with the offering
and sale of the Shares, other than the Registration Statement, the Pricing
Disclosure Package, the Prospectus and, subject to compliance with the terms
hereof, any Issuer Free Writing Prospectus; and the Company has not taken, nor
will the Company take, directly or indirectly, any action designed to or that
could reasonably be expected to cause or result in any stabilization or
manipulation of the price of any security of the Company to facilitate the sale
or purchase of the Shares.
(kk) Margin Rules. The
application of the proceeds received by the Company from the issuance, sale and
delivery of the Shares as described in the Registration Statement, the Pricing
Disclosure Package and the Prospectus will not violate Regulation T, U or X of
the Board of Governors of the Federal Reserve System or any other regulation of
such Board of Governors.
(ll) Forward-Looking
Statements. The forward-looking statements (as defined in
Section 27A of the Securities Act) included in the Registration Statement, the
Pricing Disclosure Package and the Prospectus (i) are within the coverage of the
safe harbor for forward looking statements set forth in Section 27A of the
Securities Act, Rule 175(b) under the Securities Act or Rule 3b-6 under the
Exchange Act, as applicable, and (ii) were made by the Company with a reasonable
basis and in good faith and reflect the Company’s good faith best estimate of
the matters described therein.
(mm) Statistical and Market
Data. Any statistical and market and industry-related data
included or incorporated by reference in the Registration Statement, the Pricing
Disclosure Package and the Prospectus are based on or derived from sources which
the Company believes to be reliable and accurate or represent the Company’s good
faith estimates that are made on the basis of data derived from such sources,
and the Company has obtained the written consent to the use of such data from
sources to the extent required.
(nn) Xxxxxxxx-Xxxxx
Act. There is and has been no failure on the part of the
Company or, to the knowledge of the Company, any of the Company’s directors or
officers, in their capacities as such, to comply with any applicable provision
of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations promulgated in
connection therewith (the “Xxxxxxxx-Xxxxx Act”), including Section 402 related
to loans and Sections 302 and 906 related to certifications.
(oo) Status under the Securities
Act. At the time of filing the Registration Statement and any
post-effective amendment thereto, at the earliest time thereafter that the
Company or any offering participant made a bona fide offer (within the
meaning of Rule 164(h)(2) under the Securities Act) of the Shares and at the
date hereof, the Company was not and is not an “ineligible issuer,” and is a
well-known seasoned issuer, in each case as defined in Rule 405 under the
Securities Act. The Company has paid the registration fee for this
offering pursuant to Rule 456(b)(1) under the Securities Act or will pay such
fee within the time period required by such rule (without giving effect to the
proviso therein) and in any event prior to the Closing Date.
12
(pp) Books and
Records. The Company and each of its subsidiaries have made
and keep books, records and accounts, which, in reasonable detail, accurately
and fairly reflect the transactions and dispositions of the assets of the
Company and its subsidiaries.
(qq) No Additional Required
Disclosure. There are no statutes, regulations, documents or
contracts of a character required to be described in the Registration Statement
or the Pricing Disclosure Package or to be filed as an exhibit to the
Registration Statement which are not described or filed as
required.
(rr) Certificates. Any
certificate signed by any officer of the Company delivered to the Underwriters
or to counsel for the Underwriters shall be deemed a representation and warranty
by the Company to the Underwriters as to the matters covered
thereby.
(ss) Registration; No
Delisting. The Common Stock (including the Shares) is
registered pursuant to Section 12(b) of the Exchange Act and is listed on the
NASDAQ Global Select Market, and the Company has taken no action designed to, or
likely to have the effect of, terminating the registration of the Common Stock
under the Exchange Act or delisting of the Common Stock from the NASDAQ Global
Select Market, nor has the Company received any notification that the Commission
or the NASDAQ Stock Market is contemplating terminating such registration or
listing.
(tt) Bank Holding Company; Banking
Regulatory Authorities. The Company is duly registered as a
bank holding company under the Bank Holding Company Act of 1956, as amended, and
meets in all material respects the applicable requirements for qualification as
such, including, but not limited to, being well-capitalized under federal
banking guidelines. Each subsidiary bank of the Company holds the
requisite authority from all applicable bank regulatory authorities to conduct
business as a bank, including, but not limited to, being well-capitalized under
federal banking guidelines.
(uu) Deposits. The
deposit accounts of each subsidiary bank are insured up to the regulatory
maximum amount provided by the Federal Deposit Insurance Corporation and no
proceedings for the modification, termination or revocation of any such
insurance are pending or, to the knowledge of the Company, threatened or
contemplated.
4. Further Agreements of the
Company. The Company covenants and agrees with each
Underwriter that:
(a) Required
Filings. The Company will file the final Prospectus with the
Commission within the time periods specified by Rule 424(b) and Rule 430A, 430B
or 430C under the Securities Act, will file any Issuer Free Writing Prospectus
to the extent required by Rule 433 under the Securities Act; will 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), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of the Prospectus and for so
long as the delivery of a prospectus is required in connection with the offering
or sale of the Shares; and will furnish copies of the Prospectus and each Issuer
Free Writing Prospectus (to the extent not previously delivered) to the
Underwriters in New York City prior to 10:00 A.M., New York City time, on the
business day next succeeding the date of this Agreement in such quantities as
the Representative may reasonably request. The Company will pay the
registration fee for this offering within the time period required by Rule
456(b)(1) under the Securities Act (without giving effect to the proviso
therein) and in any event prior to the Closing Date.
(b) Delivery of
Copies. The Company will deliver, without charge, (i) to the
Representative, two signed copies of the Registration Statement as originally
filed and each amendment thereto, in each case including all exhibits and
consents filed therewith; and (ii) to each Underwriter (A) a
conformed
13
copy of
the Registration Statement as originally filed and each amendment thereto
(without exhibits) and (B) during the Prospectus Delivery Period (as defined
below), as many copies of the Prospectus (including all amendments and
supplements thereto and documents incorporated by reference therein and each
Issuer Free Writing Prospectus) as the Representative may reasonably
request. As used herein, the term “Prospectus Delivery Period” means
such period of time after the first date of the public offering of the Shares as
in the opinion of counsel for the Underwriters a prospectus relating to the
Shares is required by law to be delivered (or required to be delivered but for
Rule 172 under the Securities Act) in connection with sales of the Shares by any
Underwriter or dealer.
(c) Amendments or Supplements, Issuer
Free Writing Prospectuses. Before preparing, using,
authorizing, approving, referring to or filing any Issuer Free Writing
Prospectus, and before filing any amendment or supplement to the Registration
Statement or the Prospectus, whether before or after the time that the
Registration Statement becomes effective, the Company will furnish to the
Representative and counsel for the Underwriters a copy of the proposed Issuer
Free Writing Prospectus, amendment or supplement for review and will not
prepare, use, authorize, approve, refer to or file any such Issuer Free Writing
Prospectus or file any such proposed amendment or supplement to which the
Representative reasonably objects.
(d) Notice to the
Representative. The Company will advise the Representative
promptly, and confirm such advice in writing, (i) when the Registration
Statement has become effective; (ii) when any amendment to the Registration
Statement has been filed or becomes effective; (iii) when any supplement to the
Prospectus or any Issuer Free Writing Prospectus or any amendment to the
Prospectus has been filed; (iv) of any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement to the
Prospectus or the receipt of any comments from the Commission relating to the
Registration Statement or any other request by the Commission for any additional
information; (v) of the issuance by the Commission of any order suspending the
effectiveness of the Registration Statement or preventing or suspending the use
of any Preliminary Prospectus, any of the Registration Statement, the Pricing
Disclosure Package or the Prospectus or the initiation or threatening of any
proceeding for that purpose or pursuant to Section 8A of the Securities Act;
(vi) of the occurrence of any event within the Prospectus Delivery Period as a
result of which the Prospectus, the Registration Statement, the Pricing
Disclosure Package or any Issuer Free Writing Prospectus as then amended or
supplemented would include any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances existing when the Prospectus, the Registration
Statement, the Pricing Disclosure Package or any such Issuer Free Writing
Prospectus is delivered to a purchaser, not misleading; (vii) of the receipt by
the Company of any notice of objection of the Commission to the use of the
Registration Statement or any post-effective amendment thereto pursuant to Rule
401(g)(2) under the Securities Act; and (viii) of the receipt by the Company of
any notice with respect to any suspension of the qualification of the Shares for
offer and sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose; and the Company will use its best efforts to
prevent the issuance of any such order suspending the effectiveness of the
Registration Statement, preventing or suspending the use of any Preliminary
Prospectus, any of the Registration Statement, the Pricing Disclosure Package or
the Prospectus or suspending any such qualification of the Shares and, if any
such order is issued, will obtain as soon as possible the withdrawal
thereof.
(e) Ongoing
Compliance. (1) If during the Prospectus Delivery Period (i)
any event shall occur or condition shall exist as a result of which the
Prospectus as then amended or supplemented would 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 existing when the
Prospectus is delivered to a purchaser, not misleading or (ii) it is necessary
to amend or supplement the Prospectus to comply with law, the Company will
immediately notify the Underwriters thereof and forthwith prepare and, subject
to
14
paragraph
(c) above, file with the Commission and furnish to the Underwriters and to such
dealers as the Representative may designate such amendments or supplements to
the Prospectus as may be necessary so that the statements in the Prospectus as
so amended or supplemented will not, in the light of the circumstances existing
when the Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus will comply with law and (2) if at any time prior to the Closing Date
(i) any event shall occur or condition shall exist as a result of which the
Pricing Disclosure Package as then amended or supplemented would 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
existing when the Pricing Disclosure Package is delivered to a purchaser, not
misleading or (ii) it is necessary to amend or supplement the Pricing Disclosure
Package to comply with law, the Company will immediately notify the Underwriters
thereof and forthwith prepare and, subject to paragraph (c) above, file with the
Commission (to the extent required) and furnish to the Underwriters and to such
dealers as the Representative may designate such amendments or supplements to
the Pricing Disclosure Package as may be necessary so that the statements in the
Pricing Disclosure Package as so amended or supplemented will not, in the light
of the circumstances existing when the Pricing Disclosure Package is delivered
to a purchaser, be misleading or so that the Pricing Disclosure Package will
comply with law.
(f) Blue Sky
Exemption. Pursuant to Section 18(a)(1)(A) of the Securities
Act, the Shares are exempt from any and all offer and sale restrictions under
the securities or Blue Sky laws of each “State” (as defined in the Securities
Act) or political subdivision thereof.
(g) Earning
Statement. The Company will make generally available to its
security holders and the Representative as soon as practicable an earning
statement that satisfies the provisions of Section 11(a) of the Securities Act
and Rule 158 of the Commission promulgated thereunder covering a period of at
least twelve months beginning with the first fiscal quarter of the Company
occurring after the “effective date” (as defined in Rule 158) of the
Registration Statement.
(h) Clear Market. For
a period of 90 days after the date of the Prospectus, the Company will not (i)
offer, pledge, announce the intention to sell, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to sell, grant
any option, right or warrant to purchase or otherwise transfer or dispose of,
directly or indirectly, or file with the Commission a registration statement
under the Securities Act relating to, any shares of Stock or any securities
convertible into or exercisable or exchangeable for Stock, or publicly disclose
the intention to make any offer, sale, pledge, disposition or filing, or (ii)
enter into any swap or other agreement that transfers, in whole or in part, any
of the economic consequences of ownership of the Stock, whether any such
transaction described in clause (i) or (ii) above is to be settled by delivery
of Stock or such other securities, in cash or otherwise, without the prior
written consent of the Representative. The foregoing sentence shall not apply to
(A) the Shares to be sold hereunder, (B) any shares of Common Stock issued by
the Company upon the exercise of an option or warrant or the conversion of a
security outstanding on the date hereof and referred to in the Prospectus, (C)
any shares of a new class of non-voting common stock of the Company issued in
exchange for outstanding shares of the Company’s Series A Junior Non-Voting
Preferred Stock as described in the Company’s definitive proxy statement for the
2009 annual meeting of the Company’s stockholders, (D) any shares of Common
Stock issued or options to purchase Common Stock granted pursuant to existing
employee benefit and non-employee director stock plans of the Company referred
to in the Prospectus, provided that (except with respect to shares of restricted
stock issued, consistent with past practice, to the Company’s non-employee
directors) such shares or options shall not be vested or exercisable within the
90-day period referred to above or (E) any shares of Common Stock issued
pursuant to any dividend reinvestment plan. Notwithstanding the
foregoing, if (1) during the last 17 days of the 90-day restricted period, the
Company issues an earnings release or material news or a material event relating
to the Company occurs; or (2) prior to the expiration of the 90-day restricted
period, the
15
Company
announces that it will release earnings results during the 16-day period
beginning on the last day of the 90-day period, the restrictions imposed by this
Agreement shall continue to apply until the expiration of the 18-day period
beginning on the issuance of the earnings release or the occurrence of the
material news or material event.
(i) Use of
Proceeds. The Company will apply the net proceeds from the
sale of the Shares as described in the Registration Statement, the Pricing
Disclosure Package and the Prospectus under the heading “Use of
Proceeds”.
(j) No
Stabilization. The Company will not take, directly or
indirectly, any action designed to or that could reasonably be expected to cause
or result in any stabilization or manipulation of the price of the
Stock.
(k) Exchange
Listing. The Company will use its best efforts to list the
Shares on the NASDAQ Global Select Market.
(l) Reports. So long
as the Shares are outstanding, the Company will furnish to the Representative,
as soon as they are available, copies of all reports or other communications
(financial or other) furnished to holders of the Shares, and copies of any
reports and financial statements furnished to or filed with the Commission or
any national securities exchange or automatic quotation system; provided the Company
will be deemed to have furnished such reports and financial statements to the
Representative to the extent they are filed on the Commission’s Electronic Data
Gathering, Analysis, and Retrieval system (or successor thereto).
(m) Record
Retention. The Company will, pursuant to reasonable procedures
developed in good faith, retain copies of each Issuer Free Writing Prospectus
that is not filed with the Commission in accordance with Rule 433 under the
Securities Act.
5. Certain Agreements of the
Underwriters. Each Underwriter hereby represents and agrees
that:
(a) It has
not used, authorized use of, referred to or participated in the planning for use
of, and will not use, authorize use of, refer to or participate in the planning
for use of, any “free writing prospectus”, as defined in Rule 405 under the
Securities Act (which term includes use of any written information furnished to
the Commission by the Company and not incorporated by reference into the
Registration Statement and any press release issued by the Company) other than
(i) a free writing prospectus that contains no “issuer information” (as defined
in Rule 433(h)(2) under the Securities Act) that was not included (including
through incorporation by reference) in the Preliminary Prospectus or a
previously filed Issuer Free Writing Prospectus, (ii) any Issuer Free Writing
Prospectus listed on Annex B or prepared pursuant to Section 3(c) or Section
4(c) above (including any electronic road show), or (iii) any free writing
prospectus prepared by such Underwriter and approved by the Company in advance
in writing (each such free writing prospectus referred to in clauses (i) or
(iii), an “Underwriter Free Writing Prospectus”).
(b) It has
not and will not, without the prior written consent of the Company, use any free
writing prospectus that contains the final terms of the Shares unless such terms
have previously been included in a free writing prospectus filed with the
Commission; provided
that Underwriters may use a term sheet substantially in the form of Annex C
hereto without the consent of the Company; provided further that any
Underwriter using such term sheet shall notify the Company and provide a copy of
such term sheet to the Company, prior to, or substantially concurrently with,
the first use of such term sheet.
16
(c) It is not
subject to any pending proceeding under Section 8A of the Securities Act with
respect to the offering (and will promptly notify the Company if any such
proceeding against it is initiated during the Prospectus Delivery
Period).
6.
Conditions of Underwriters’
Obligations. The obligation of each Underwriter to purchase
the Underwritten Shares on the Closing Date or the Option Shares on the
Additional Closing Date, as the case may be, as provided herein is subject to
the performance by the Company of its covenants and other obligations hereunder
and to the following additional conditions:
(a) Registration Compliance; No Stop
Order. No order suspending the effectiveness of the
Registration Statement shall be in effect, and no proceeding for such purpose,
pursuant to Rule 401(g)(2) or pursuant to Section 8A under the Securities Act
shall be pending before or threatened by the Commission; the Prospectus and each
Issuer Free Writing Prospectus shall have been timely filed with the Commission
under the Securities Act (in the case of an Issuer Free Writing Prospectus, to
the extent required by Rule 433 under the Securities Act) and in accordance with
Section 4(a) hereof; and all requests by the Commission for additional
information shall have been complied with to the reasonable satisfaction of the
Representative.
(b) Representations and
Warranties. The representations and warranties of the Company
contained herein shall be true and correct on the date hereof and on and as of
the Closing Date or the Additional Closing Date, as the case may be; and the
statements of the Company and its officers made in any certificates delivered
pursuant to this Agreement shall be true and correct on and as of the Closing
Date or the Additional Closing Date, as the case may be.
(c) No
Downgrade. Subsequent to the earlier of (A) the Applicable
Time and (B) the execution and delivery of this Agreement, if there are any debt
securities or preferred stock of, or guaranteed by, the Company or any of its
subsidiaries that are rated by a “nationally recognized statistical rating
organization,” as such term is defined by the Commission for purposes of Rule
436(g)(2) under the Securities Act, (i) no downgrading shall have occurred in
the rating accorded any such debt securities or preferred stock and (ii) no such
organization shall have publicly announced that it has under surveillance or
review, or has changed its outlook with respect to, its rating of any such debt
securities or preferred stock (other than an announcement with positive
implications of a possible upgrading).
(d) No Material Adverse
Change. No event or condition of a type described in Section
3(g) hereof shall have occurred or shall exist, which event or condition is not
described in the Pricing Disclosure Package (excluding any amendment or
supplement thereto) and the Prospectus (excluding any amendment or supplement
thereto) and the effect of which in the judgment of the Representative makes it
impracticable or inadvisable to proceed with the offering, sale or delivery of
the Shares on the Closing Date or the Additional Closing Date, as the case may
be, on the terms and in the manner contemplated by this Agreement, the
Registration Statement, the Pricing Disclosure Package and the
Prospectus.
(e) Officer’s
Certificate. The Representative shall have received on and as
of the Closing Date or the Additional Closing Date, as the case may be, a
certificate of the chief financial officer or chief accounting officer of the
Company and one additional senior executive officer of the Company who is
satisfactory to the Representative (i) confirming that such officers have
carefully reviewed the Registration Statement, the Pricing Disclosure Package
and the Prospectus and, to the knowledge of such officers, the representations
set forth in Sections 3(b) and 3(d) hereof are true and correct, (ii) confirming
that the other representations and warranties of the Company in this Agreement
are true and correct and that the Company has complied with all agreements and
satisfied all conditions on its part to be
17
performed
or satisfied hereunder at or prior to the Closing Date or the Additional Closing
Date, as the case may be, and (iii) to the effect set forth in paragraphs (a)
and (d) above.
(f) Comfort
Letters. On the date of this Agreement and on the Closing Date
or the Additional Closing Date, as the case may be, Ernst & Young LLP shall
have furnished to the Representative, at the request of the Company, letters,
dated the respective dates of delivery thereof and addressed to the
Underwriters, in form and substance reasonably satisfactory to the
Representative, containing statements and information of the type customarily
included in accountants’ “comfort letters” to underwriters with respect to the
financial statements and certain financial information contained or incorporated
by reference in the Registration Statement, the Pricing Disclosure Package and
the Prospectus; provided, that the letter delivered on the Closing Date or the
Additional Closing Date, as the case may be, shall use a “cut-off” date no more
than three business days prior to such Closing Date or such Additional Closing
Date, as the case may be.
(g) Opinion and 10b-5 Statement of
Counsel for the Company. Xxxxxx Price P.C., counsel for the
Company, shall have furnished to the Representative, at the request of the
Company, their written opinion and 10b-5 statement, dated the Closing Date or
the Additional Closing Date, as the case may be, and addressed to the
Underwriters, in form and substance reasonably satisfactory to the
Representative, to the effect set forth in Annex A hereto.
(h) Opinion and 10b-5 Statement of
Counsel for the Underwriters. The Representative shall have
received on and as of the Closing Date or the Additional Closing Date, as the
case may be, an opinion and 10b-5 statement of Xxxxxx Xxxxxx Rosenman LLP,
counsel for the Underwriters, with respect to such matters as the Representative
may reasonably request, and such counsel shall have received such documents and
information as they may reasonably request to enable them to pass upon such
matters.
(i) No Legal Impediment to
Issuance. No action shall have been taken and no statute,
rule, regulation or order shall have been enacted, adopted or issued by any
federal, state or foreign governmental or regulatory authority that would, as of
the Closing Date or the Additional Closing Date, as the case may be, prevent the
issuance or sale of the Shares; and no injunction or order of any federal, state
or foreign court shall have been issued that would, as of the Closing Date or
the Additional Closing Date, as the case may be, prevent the issuance or sale of
the Shares.
(j) Good Standing. The
Representative shall have received on and as of the Closing Date or the
Additional Closing Date, as the case may be, satisfactory evidence of the good
standing of the Company and the Subsidiary in their respective jurisdictions of
organization and their good standing as foreign entities in such other
jurisdictions as the Representative may reasonably request, in each case in
writing or any standard form of telecommunication from the appropriate
governmental authorities of such jurisdictions.
(k) Exchange
Listing. The Shares to be delivered on the Closing Date or
Additional Closing Date, as the case may be, shall have been approved for
listing on the NASDAQ Global Select Market, subject to official notice of
issuance.
(l) Lock-up
Agreements. The “lock-up” agreements, each substantially in
the form of Exhibit A hereto, between you and all of the executive officers and
directors of the Company relating to sales and certain other dispositions of
shares of Stock or certain other securities, delivered to you on or before the
date hereof, shall be full force and effect on the Closing Date or Additional
Closing Date, as the case may be.
18
(m) Additional
Documents. On or prior to the Closing Date or the Additional
Closing Date, as the case may be, the Company shall have furnished to the
Representative such further certificates and documents as the Representative may
reasonably request.
All
opinions, letters, certificates and evidence mentioned above or elsewhere in
this Agreement shall be deemed to be in compliance with the provisions hereof
only if they are in form and substance reasonably satisfactory to counsel for
the Underwriters.
7. Indemnification and
Contribution.
(a) Indemnification of the
Underwriters. The Company agrees to indemnify and hold
harmless each Underwriter, its affiliates, directors and officers and each
person, if any, who controls such Underwriter within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act, from and against any
and all losses, claims, damages and liabilities (including, without limitation,
legal fees and other expenses incurred in connection with any suit, action or
proceeding or any claim asserted, as such fees and expenses are incurred), joint
or several, that arise out of, or are based upon, (i) any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary in order to make the
statements therein, not misleading, (ii) or any untrue statement or alleged
untrue statement of a material fact contained in the Prospectus (or any
amendment or supplement thereto), any Issuer Free Writing Prospectus, any
“issuer information” filed or required to be filed pursuant to Rule 433(d) under
the Securities Act or any Pricing Disclosure Package (including any Pricing
Disclosure Package that has subsequently been amended), or caused by any
omission or alleged omission to state therein a material fact necessary in order
to make the statements therein, in light of the circumstances under which they
were made, not misleading, in each case except insofar as such losses, claims,
damages or liabilities arise out of, or are based upon, any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with any information relating to any Underwriter furnished to the
Company in writing by such Underwriter through the Representative expressly for
use therein, it being understood and agreed that the only such information
furnished by any Underwriter consists of the information described as such in
subsection (b) below.
(b) Indemnification of the
Company. Each Underwriter agrees, severally and not jointly,
to indemnify and hold harmless the Company, its directors, its officers who
signed the Registration Statement and each person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act to the same extent as the indemnity set forth in paragraph (a)
above, but only with respect to any losses, claims, damages or liabilities that
arise out of, or are based upon, any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with any
information relating to such Underwriter furnished to the Company in writing by
such Underwriter through the Representative expressly for use in the
Registration Statement, the Prospectus (or any amendment or supplement thereto),
any Issuer Free Writing Prospectus or any Pricing Disclosure Package, it being
understood and agreed upon that the only such information furnished by any
Underwriter consists of the following information in the Prospectus furnished on
behalf of each Underwriter: the concession and reallowance figures
appearing in the third paragraph under the caption “Underwriting”, the
information contained in the twelfth through fifteenth and seventeenth through
nineteenth paragraphs under the caption “Underwriting”.
(c) Notice and
Procedures. If any suit, action, proceeding (including any
governmental or regulatory investigation), claim or demand shall be brought or
asserted against any person in respect of which indemnification may be sought
pursuant to either paragraph (a) or (b) of this Section 7, such person (the
“Indemnified Person”) shall promptly notify the person against whom such
indemnification may be
19
sought
(the “Indemnifying Person”) in writing; provided that the
failure to notify the Indemnifying Person shall not relieve it from any
liability that it may have under paragraph (a) or (b) of this Section 7 except
to the extent that it has been materially prejudiced (through the forfeiture of
substantive rights or defenses) by such failure; and provided, further, that the
failure to notify the Indemnifying Person shall not relieve it from any
liability that it may have to an Indemnified Person otherwise than under
paragraph (a) or (b) of this Section 7. If any such proceeding shall
be brought or asserted against an Indemnified Person and it shall have notified
the Indemnifying Person thereof, the Indemnifying Person shall retain counsel
reasonably satisfactory to the Indemnified Person (who shall not, without the
consent of the Indemnified Person, be counsel to the Indemnifying Person) to
represent the Indemnified Person in such proceeding and shall pay the fees and
expenses of such counsel related to such proceeding, as incurred. In
any such proceeding, any Indemnified Person shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such Indemnified Person unless (i) the Indemnifying Person and the
Indemnified Person shall have mutually agreed to the contrary; (ii) the
Indemnifying Person has failed within a reasonable time to retain counsel
reasonably satisfactory to the Indemnified Person; (iii) the Indemnified Person
shall have reasonably concluded that there may be legal defenses available to it
that are different from or in addition to those available to the Indemnifying
Person; or (iv) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between
them. It is understood and agreed that the Indemnifying Person shall
not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm
(in addition to any local counsel) for all Indemnified Persons, and that all
such fees and expenses shall be paid or reimbursed as they are
incurred. Any such separate firm for any Underwriter, its affiliates,
directors and officers and any control persons of such Underwriter shall be
designated in writing by the Representative and any such separate firm for the
Company, its directors, its officers who signed the Registration Statement and
any control persons of the Company shall be designated in writing by the
Company. The Indemnifying Person shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff, the
Indemnifying Person agrees to indemnify each Indemnified Person from and against
any loss or liability by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time an
Indemnified Person shall have requested that an Indemnifying Person reimburse
the Indemnified Person for fees and expenses of counsel as contemplated by this
paragraph, the Indemnifying Person shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by the Indemnifying Person of such
request and (ii) the Indemnifying Person shall not have reimbursed the
Indemnified Person in accordance with such request prior to the date of such
settlement. No Indemnifying Person shall, without the written consent
of the Indemnified Person, effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Person is or could have been a
party and indemnification could have been sought hereunder by such Indemnified
Person, unless such settlement (x) includes an unconditional release of such
Indemnified Person, in form and substance reasonably satisfactory to such
Indemnified Person, from all liability on claims that are the subject matter of
such proceeding and (y) does not include any statement as to or any admission of
fault, culpability or a failure to act by or on behalf of any Indemnified
Person.
(d) Contribution. If
the indemnification provided for in paragraphs (a) and (b) of this Section 7 is
unavailable to an Indemnified Person or insufficient in respect of any losses,
claims, damages or liabilities referred to therein, then each Indemnifying
Person under such paragraph, in lieu of indemnifying such Indemnified Person
thereunder, shall contribute to the amount paid or payable by such Indemnified
Person as a result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company, on the one hand, and the Underwriters on the other, from the offering
of the Shares or (ii) if the allocation provided by clause (i) is
20
not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) but also the relative fault
of the Company, on the one hand, and the Underwriters on the other, in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company, on the
one hand, and the Underwriters on the other, shall be deemed to be in the same
respective proportions as the net proceeds (before deducting expenses) received
by the Company from the sale of the Shares and the total underwriting discounts
and commissions received by the Underwriters in connection therewith, in each
case as set forth in the table on the cover of the Prospectus, bear to the
aggregate offering price of the Shares. The relative fault of the
Company, on the one hand, and the Underwriters on the other, shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company or by the
Underwriters and the parties’ relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
(e) Limitation on
Liability. The Company and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation (even
if the Underwriters were treated as one entity for such purpose) or by any other
method of allocation that does not take account of the equitable considerations
referred to in paragraph (d) of this Section 7. The amount paid or
payable by an Indemnified Person as a result of the losses, claims, damages and
liabilities referred to in paragraph (d) of this Section 7 shall be deemed to
include, subject to the limitations set forth above, any legal or other expenses
incurred by such Indemnified Person in connection with any such action or
claim. Notwithstanding the provisions of this Section 7, in no event
shall an Underwriter be required to contribute any amount in excess of the
amount by which the total underwriting discounts and commissions received by
such Underwriter with respect to the offering of the Shares exceeds the amount
of any damages that such Underwriter 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 Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters’ obligations to contribute
pursuant to this Section 7 are several in proportion to their respective
purchase obligations hereunder and not joint.
(f) Non-Exclusive
Remedies. The remedies provided for in this Section 7 are not
exclusive and shall not limit any rights or remedies which may otherwise be
available to any Indemnified Person at law or in equity.
8 Effectiveness of
Agreement. This Agreement shall become effective upon the
execution and delivery hereof by the parties hereto.
9. Termination. This
Agreement may be terminated in the absolute discretion of the Representative, by
notice to the Company, if after the execution and delivery of this Agreement and
prior to the Closing Date or, in the case of the Option Shares, prior to the
Additional Closing Date (i) trading generally shall have been suspended or
materially limited on or by any of the New York Stock Exchange, the NYSE Amex,
the NASDAQ Stock Market or the over-the-counter market; (ii) trading of any
securities issued or guaranteed by the Company shall have been suspended on any
exchange or in any over-the-counter market; (iii) a general moratorium on
commercial banking activities shall have been declared by federal or New York
State authorities or a material disruption in commercial banking or securities
settlement or clearance services in the United States shall have occurred; or
(iv) there shall have occurred any outbreak or escalation of hostilities or any
change in financial markets or any calamity or crisis, either within or outside
the United States, that, in the judgment of the Representative, is
material
21
and
adverse and makes it impracticable or inadvisable to proceed with the offering,
sale or delivery of the Shares on the Closing Date or the Additional Closing
Date, as the case may be, on the terms and in the manner contemplated by this
Agreement, the Registration Statement, the Pricing Disclosure Package and the
Prospectus.
10. Defaulting
Underwriter.
(a) If, on
the Closing Date or the Additional Closing Date, as the case may be, any
Underwriter defaults on its obligation to purchase the Shares that it has agreed
to purchase hereunder on such date, the non-defaulting Underwriters may in their
discretion arrange for the purchase of such Shares by other persons satisfactory
to the Company on the terms contained in this Agreement. If, within
36 hours after any such default by any Underwriter, the non-defaulting
Underwriters do not arrange for the purchase of such Shares, then the Company
shall be entitled to a further period of 36 hours within which to procure other
persons satisfactory to the non-defaulting Underwriters to purchase such Shares
on such terms. If other persons become obligated or agree to purchase
the Shares of a defaulting Underwriter, either the non-defaulting Underwriters
or the Company may postpone the Closing Date or the Additional Closing Date, as
the case may be, for up to five full business days in order to effect any
changes that in the opinion of counsel for the Company or counsel for the
Underwriters may be necessary in the Registration Statement and the Prospectus
or in any other document or arrangement, and the Company agrees to promptly
prepare any amendment or supplement to the Registration Statement and the
Prospectus that effects any such changes. As used in this Agreement,
the term “Underwriter” includes, for all purposes of this Agreement unless the
context otherwise requires, any person not listed in Schedule 1 hereto that,
pursuant to this Section 10, purchases Shares that a defaulting Underwriter
agreed but failed to purchase.
(b) If, after
giving effect to any arrangements for the purchase of the Shares of a defaulting
Underwriter or Underwriters by the non-defaulting Underwriters and the Company
as provided in paragraph (a) above, the aggregate number of Shares that remain
unpurchased on the Closing Date or the Additional Closing Date, as the case may
be, does not exceed one-eleventh of the aggregate number of Shares to be
purchased on such date, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the number of Shares that such
Underwriter agreed to purchase hereunder on such date plus such Underwriter’s
pro rata share (based on the number of Shares that such Underwriter agreed to
purchase on such date) of the Shares of such defaulting Underwriter or
Underwriters for which such arrangements have not been made.
(c) If, after
giving effect to any arrangements for the purchase of the Shares of a defaulting
Underwriter or Underwriters by the non-defaulting Underwriters and the Company
as provided in paragraph (a) above, the aggregate number of Shares that remain
unpurchased on the Closing Date or the Additional Closing Date, as the case may
be, exceeds one-eleventh of the aggregate amount of Shares to be purchased on
such date, or if the Company shall not exercise the right described in paragraph
(b) above, then this Agreement or, with respect to any Additional Closing Date,
the obligation of the Underwriters to purchase Shares on the Additional Closing
Date shall terminate without liability on the part of the non-defaulting
Underwriters. Any termination of this Agreement pursuant to this
Section 10 shall be without liability on the part of the Company, except that
the Company will continue to be liable for the payment of expenses as set forth
in Section 11 hereof and except that the provisions of Section 7 hereof
shall not terminate and shall remain in effect.
(d) Nothing
contained herein shall relieve a defaulting Underwriter of any liability it may
have to the Company or any non-defaulting Underwriter for damages caused by its
default.
22
11. Payment of
Expenses.
(a) Whether
or not the transactions contemplated by this Agreement are consummated or this
Agreement is terminated, the Company will pay or cause to be paid all costs and
expenses incident to the performance of its obligations hereunder, including
without limitation, (i) the costs incident to the authorization, issuance,
sale, preparation and delivery of the Shares and any taxes payable in that
connection; (ii) the costs incident to the preparation, printing and filing
under the Securities Act of the Registration Statement, the Preliminary
Prospectus, any Issuer Free Writing Prospectus, any Pricing Disclosure Package
and the Prospectus (including all exhibits, amendments and supplements thereto)
and the distribution thereof; (iii) the fees and expenses of the Company’s
counsel and independent accountants; (iv) the fees and expenses incurred in
connection with the registration or qualification of the Shares under the state
or foreign securities or blue sky laws of such jurisdictions as the
Representative may designate and the preparation, printing and distribution of a
Blue Sky Memorandum up to a maximum of $5,000 (including the related
fees and expenses of counsel for the Underwriters); (v) the cost of
preparing stock certificates; (vi) the costs and charges of any transfer
agent and any registrar; (vii) all expenses and application fees incurred in
connection with any filing with, and clearance of the offering by, Financial
Industry Regulatory Authority up to a maximum of $10,000; (viii) all expenses
incurred by the Company in connection with any “road show” presentation to
potential investors; and (ix) all expenses and application fees related to the
listing of the Shares on the NASDAQ Global Select Market.
(b) If (i)
this Agreement is terminated pursuant to Section 9, (ii) the Company for any
reason fails to tender the Shares for delivery to the Underwriters or (iii) the
Underwriters decline to purchase the Shares for any reason permitted under this
Agreement, the Company agrees to reimburse the Underwriters for all
out-of-pocket costs and expenses (including the fees and expenses of their
counsel) reasonably incurred by the Underwriters in connection with this
Agreement and the offering contemplated hereby.
12. Persons Entitled to Benefit
of Agreement. This Agreement shall inure to the benefit of and
be binding upon the parties hereto and their respective successors and the
affiliates, officers and directors and any controlling persons referred to in
Section 7 hereof. Nothing in this Agreement is intended or shall be
construed to give any other person any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision contained
herein. No purchaser of Shares from any Underwriter shall be deemed
to be a successor merely by reason of such purchase.
13. Survival. The
respective indemnities, rights of contribution, representations, warranties and
agreements of the Company and the Underwriters contained in this Agreement or
made by or on behalf of the Company or the Underwriters pursuant to this
Agreement or any certificate delivered pursuant hereto shall survive the
delivery of and payment for the Shares and shall remain in full force and
effect, regardless of any termination of this Agreement or any investigation
made by or on behalf of the Company or the Underwriters.
14. Certain Defined
Terms. For purposes of this Agreement, (a) except where
otherwise expressly provided, the term “affiliate” has the meaning set forth in
Rule 405 under the Securities Act; (b) the term “business day” means any day
other than a day on which banks are permitted or required to be closed in New
York City; and (c) the term “subsidiary” has the meaning set forth in Rule 405
under the Securities Act.
23
15. Miscellaneous.
(a) Authority of X.X. Xxxxxx Securities
Inc. Any action by the Underwriters hereunder may be taken by the
Representative on behalf of the Underwriters, and any such action taken by the
Representative shall be binding upon the Underwriters.
(b) Notices. All
notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted and confirmed by any
standard form of telecommunication. Notices to the Underwriters shall
be given to the Representative c/o X.X. Xxxxxx Securities Inc., 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (fax: (000) 000-0000);
Attention Equity Syndicate Desk. Notices to the Company shall be
given to it at PrivateBancorp, Inc., 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx
00000 (fax: 000-000-0000); Attention: Xxxxxxxxxxx X. Xxxxxx,
Esq.
(c) Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to agreements made
and to be performed in such state.
(d) Counterparts. This
Agreement may be signed in counterparts (which may include counterparts
delivered by any standard form of telecommunication), each of which shall be an
original and all of which together shall constitute one and the same
instrument.
(e) Amendments or
Waivers. No amendment or waiver of any provision of this
Agreement, nor any consent or approval to any departure therefrom, shall in any
event be effective unless the same shall be in writing and signed by the parties
hereto.
(f) Headings. The
headings herein are included for convenience of reference only and are not
intended to be part of, or to affect the meaning or interpretation of, this
Agreement.
24
If the
foregoing is in accordance with your understanding, please indicate your
acceptance of this Agreement by signing in the space provided
below.
Very
truly yours,
By:/s/Xxxxx X.
Richman_________________________________
Name:
Xxxxx X. Xxxxxxx
Title:
President and Chief Executive Officer
Accepted: May
13, 2009
X.X.
XXXXXX SECURITIES INC.
For
itself and on behalf of the
several Underwriters
listed
in
Schedule 1 hereto.
By:/s/Xxxxxxxxx
Myers________________________________
Authorized Signatory
Schedule
1
Underwriter
|
Number of Shares
|
X.X.
Xxxxxx Securities Inc.
|
6,960,000 |
Xxxxxx
X. Xxxxx & Co. Incorporated
|
1,160,000 |
Xxxxxxx
Xxxxx & Company, L.L.C.
|
1,160,000 |
Xxxxx,
Xxxxxxxx & Xxxxx, Inc.
|
1,160,000 |
SunTrust
Xxxxxxxx Xxxxxxxx, Inc.
|
1,160,000 |
Total
|
11,600,000
|