Exhibit 10.1
1,700,000 Shares
Middleburg Financial
Corporation
Common Stock
par value $2.50 per
share
UNDERWRITING
AGREEMENT
July 27, 2009
Scott & Stringfellow,
LLC
909 East Main Street
Richmond, Virginia 23219
Ladies and Gentlemen:
Middleburg Financial Corporation, a
Virginia corporation (the “Company”), proposes, subject
to the terms and conditions stated herein, to issue and sell to
Scott & Stringfellow, LLC (the “Underwriter”)
1,700,000 shares (the “Firm Securities”) of common
stock, $2.50 par value, of the Company (the “Common
Stock”) and at the election of the Underwriter, up to 208,598
additional shares (the “Optional Securities”) of Common
Stock, to cover overallotments, if any (the Firm Securities and the
Optional Securities that the Underwriter elect to purchase pursuant
to Section 2 hereof being collectively called the
“Securities”).
1. Representations and
Warranties
(a) The Company represents and
warrants to, and agrees with, the Underwriter that:
(i) The Company has filed with the
Securities and Exchange Commission (the “Commission”) a
shelf registration statement on Form S-3 (No. 333-160422)
covering the registration of the Securities under the Securities
Act of 1933, as amended (the “Securities Act”),
including a related prospectus, which has become effective. The
registration statement (including the exhibits thereto and
schedules thereto, if any) as amended at the time it became
effective, or, if a post-effective amendment has been filed with
respect thereto, as amended by such post-effective amendment at the
time of its effectiveness (including in each case the information
(if any) deemed to be part of such registration statement at the
time of effectiveness pursuant to Rule 430A under the
Securities Act), is hereinafter referred to as the
“Registration Statement.” The term “Effective
Date” shall mean each date that the Registration Statement
and any post-effective amendment or amendments thereto became or
become effective. The term “Base Prospectus” shall mean
the prospectus referred to in Section 1(a)(i) hereof contained
in the Registration Statement at the Effective Date.
“Preliminary Prospectus” means any preliminary
prospectus supplement to the Base Prospectus used prior to the
filing of the Prospectus, together with the Base Prospectus; the
term “Prospectus” means the final prospectus supplement
to the Base Prospectus first filed with the Commission pursuant to
Rule 424(b) under the Securities Act, together with the Base
Prospectus. Any registration statement filed pursuant to Rule
462(b) under the Securities Act is herein referred to as the
“Rule 462(b) Registration Statement,” and after
such filing the term “Registration Statement” shall
include the Rule 462(b) Registration Statement.
Any reference in this Agreement to
the Registration Statement, any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form
S-3 under the Securities Act, as of the Effective Date or the date
of such Preliminary Prospectus or the Prospectus, as the case may
be. For purposes of this Agreement, all references to the
Registration Statement, any Preliminary Prospectus, or the
Prospectus or any amendment or supplement to any of the foregoing
shall be deemed to include the copy filed with the Commission
pursuant to its Electronic Data Gathering, Analysis and Retrieval
system (“EDGAR”).
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All references in this Agreement to
financial statements and schedules and other information which is
“contained,” “included” or
“stated” in the Registration Statement, any Preliminary
Prospectus or the Prospectus (or other references of like import)
shall be deemed to mean and include all such financial statements
and schedules and other information which is incorporated by
reference in the Registration Statement, any Preliminary Prospectus
or the Prospectus, as the case may be.
(ii) The Company satisfies the
registrant eligibility requirements for the use of Form S-3 under
the Securities Act set forth in General Instruction I.A to such
form and the transactions contemplated by this Agreement satisfy
the transaction eligibility requirements for the use of such form
set forth in General Instruction I.B.6 to such form; the Company
has filed with the Commission the Registration Statement on such
Form, including a Base Prospectus, for registration under the
Securities Act of the offering and sale of the Securities, and the
Company may have filed with the Commission one or more amendments
to such Registration Statement, each in the form previously
delivered to the Underwriter. Such Registration Statement, as so
amended, has been declared effective by the Commission, and the
Securities have been registered under the Registration Statement in
compliance with the requirements for the use of Form S-3. Although
the Base Prospectus may not include all the information with
respect to the Securities and the offering thereof required by the
Securities Act and the rules and regulations of the Commission
thereunder to be included in the Prospectus, the Base Prospectus
includes all such information required by the Securities Act and
the rules and regulations of the Commission thereunder to be
included therein as of the Effective Date. The Company has complied
to the Commission’s satisfaction with all requests of the
Commission for additional or supplemental information; and no stop
order suspending the effectiveness of the Registration Statement
has been issued and no proceeding for that purpose has been
initiated or, to the knowledge of the Company, threatened by the
Commission. After the execution of this Agreement, the Company will
file with the Commission pursuant to Rules 415 and 424(b) a
final supplement to the Base Prospectus included in such
Registration Statement relating to the Securities and the offering
thereof, with such information as is required or permitted by the
Securities Act and as has been provided to and approved by the
Underwriter prior to the date hereof or, to the extent not
completed at the date hereof, containing only such specific
additional information and other changes (beyond that contained in
the Base Prospectus and any Preliminary Prospectus) as the Company
has advised the Underwriter, prior to the date hereof, will be
included or made therein. If the Company has elected to rely on
Rule 462(b) and the Rule 462(b) Registration Statement is not
effective, (x) the Company will file a Rule 462(b)
Registration Statement in compliance with, and that is effective
upon filing pursuant to, Rule 462(b) and (y) the Company has
given irrevocable instructions for transmission of the applicable
filing fee in connection with the filing of the Rule 462(b)
Registration Statement, in compliance with Rule 111 under the
Securities Act, or the Commission has received payment of such
filing fee.
(iii) No order preventing or
suspending the use of any Preliminary Prospectus or Prospectus has
been issued by the Commission, and each Preliminary Prospectus and
Prospectus, at the time of filing thereof, conformed in all
material respects to the requirements of the Securities Act and the
rules and regulations of the Commission thereunder and did not
contain an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; provided , however , that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by the Underwriter expressly
for use therein.
As used in this subsection and
elsewhere in this Agreement:
“Applicable Time” means
5:45 p.m. (Eastern Time) on July 27, 2009.
“Disclosure Package”
means (i) the Preliminary Prospectus, if any, used most
recently prior to the Delivery Date, (ii) the
Issuer-Represented Free Writing Prospectuses, if any, identified in
Schedule I hereto and (iii) any other Free Writing Prospectus
that the parties hereto shall hereafter expressly agree in writing
to treat as part of the Disclosure Package.
“Issuer-Represented Free
Writing Prospectus” means any “issuer free writing
prospectus,” as defined in Rule 433 of the 1933 Act
Regulations (“Rule 433”), relating to the
Securities that (i) is required to be filed with the
Commission by the Company or (ii) is exempt from filing
pursuant to Rule 433(d)(5)(i) because it contains a
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description of the Securities or of the offering
that does not reflect the final terms, in each case in the form
filed or required to be filed with the Commission or, if not
required to be filed, in the form retained in the Company’s
records pursuant to Rule 433(g).
Each Issuer-Represented Free Writing
Prospectus, when considered together with the Disclosure Package as
of the Applicable Time, did not contain any untrue statement of
material fact or omit to state a material fact necessary in order
to make the statements therein, in light of the circumstances in
which they were made, not misleading and, did not, does not and
will not include any information that conflicted, conflicts or will
conflict with the information contained in the Registration
Statement or the Prospectus, including any document incorporated by
reference therein and any preliminary or other prospectus deemed to
be a part thereof that, in each case, has not been superseded or
modified.
(iv) The Preliminary Prospectus, the
Prospectus and each Issuer-Represented Free Writing Prospectus when
filed, if filed by electronic transmission, pursuant to EDGAR
(except as may be permitted by Regulation S-T under the
Securities Act), was identical to the copy thereof delivered to the
Underwriter for use in connection with the offer and sale of the
Securities; the Registration Statement conforms, and the Prospectus
and any further amendments or supplements to the Registration
Statement or the Prospectus will conform, in all material respects
to the requirements of the Securities Act and the rules and
regulations of the Commission thereunder and do not and will not,
as of the Effective Date.
(v) The documents which are
incorporated or deemed to be incorporated by reference in the
Registration Statement or any Preliminary Prospectus or the
Prospectus or from which information is so incorporated by
reference (the “Exchange Acts Reports”), when they
became effective or were filed with the Commission, as the case may
be (or, if an amendment with respect to any such documents was
filed or became effective, when such amendment was filed or became
effective), complied in all material respects to the requirements
of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), and the rules and regulations of the
Commission thereunder, and, when read together with the other
information in the Prospectus, at the time the Registration
Statement became effective, at the time the Prospectus was issued,
at the Applicable Time and at any Delivery Date (as defined below)
did not and will not contain an untrue statement of a material fact
or omit to state a material fact necessary in order to make to the
statements therein, in light of the circumstances in which they
were made, not misleading.
(vi) The Company and its
wholly-owned subsidiaries, Middleburg Bank, a Virginia state
chartered bank (the “Bank”), Middleburg Investment
Group, Inc., a Virginia corporation (“MIG”), and its
majority owned subsidiary Southern Trust Mortgage, LLC
(“STM”), have not sustained since the date of the
latest audited financial statements included in the Disclosure
Package and the Prospectus, respectively, any material loss or
interference with their respective businesses 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 expressly contemplated in
the Disclosure Package and the Prospectus.
(vii) Since the respective dates as
of which information is given in the Registration Statement, the
Disclosure Package and the Prospectus, and except as otherwise set
forth or expressly contemplated therein, (i) there has not
been any change in the capital stock or long-term debt of the
Company, the Bank, MIG or STM, respectively, (ii) there has
not been any material adverse change, or any development involving
a prospective material adverse change, in or affecting the
management, condition (financial or otherwise), business,
properties, stockholders’ equity or results of operations of
the Company, the Bank, MIG or STM taken as a whole;
(iii) there have been no transactions entered into by the
Company, the Bank, MIG or STM other than transactions entered into
in the ordinary course of business, that are material with respect
to the Company, the Bank, MIG and STM taken as a whole; and
(iv) there has been no dividend or distribution of any kind
declared, paid or made by the Company or the Bank on any class of
its respective capital stock.
(viii) The Company, the Bank, MIG
and STM have good and marketable title to all real property and
good and marketable title to all personal property owned by them,
in each case free and clear of all liens, encumbrances and defects
except such as are described in the Disclosure Package or such as
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, the Bank, MIG and STM; and any real
property and buildings held under lease by the Company, the Bank,
MIG and
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STM are held by them 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, the Bank, MIG and
STM.
(ix) The Company, the Bank, MIG, STM
and their respective subsidiaries have been duly incorporated and
are validly existing as corporations in good standing under the
laws of their respective jurisdictions of incorporation or
organization, with power and authority (corporate and other) to own
or lease their respective properties and conduct their respective
businesses as described in the Disclosure Package; and each has
been duly qualified as a foreign corporation or entity for the
transaction of business and is in good standing under the laws of
each other jurisdiction in which it owns or leases properties, or
conducts any business, so as to require such qualification, except
where the failure to so qualify would not result in a material
adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Company, the
Bank, MIG and STM taken as a whole (“Material Adverse
Effect”); and each of the Company, the Bank, MIG, STM and
their respective subsidiaries holds all material licenses,
certificates, authorizations and permits from governmental
authorities necessary for the conduct of its business as described
in the Disclosure Package.
(x) The Company has an authorized
capitalization as set forth in the Disclosure Package and the
Prospectus; all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued, are fully
paid and nonassessable and conform to the description of the
capital stock of the Company contained in the Disclosure Package
and the Prospectus; there are no preemptive or other rights to
subscribe for or to purchase any securities of the Company under
the Articles of Incorporation of the Company or under Virginia law;
except as described in the Disclosure Package and the Prospectus,
there are no warrants, options or other rights to purchase any
securities of the Company which have been granted by the Company;
and neither the filing of the Registration Statement nor the
offering or sale of the Securities as contemplated by this
Agreement gives rise to any rights for or relating to the
registration of any securities of the Company.
(xi) All outstanding shares of
capital stock of the Bank, MIG and all of the limited liability
company interests of STM owned by the Company, are owned by the
Company free and clear of any perfected security interest and any
other security interests, claims, liens or encumbrances; and except
as set forth in the Disclosure Package and the Prospectus, the
Company does not own or control, directly or indirectly, any
corporation, company, partnership association or other
entity.
(xii) The Securities have been duly
authorized and, when issued and delivered against payment therefor
as provided herein, will be validly issued and fully paid and
nonassessable and will conform to the description of the Securities
contained in the Disclosure Package and the Prospectus.
(xiii) The issuance and sale of the
Securities being issued at each Delivery Date (as hereinafter
defined) by the Company and the performance of this Agreement and
the consummation by the Company of the other transactions herein
contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a
default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company,
the Bank, MIG or STM pursuant to, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the
Company, the Bank, MIG or STM is a party or by which the Company,
the Bank, MIG or STM is bound or to which any of the property or
assets of the Company, the Bank, MIG or STM is subject, nor will
such action result in any violation of the provisions of the
articles of incorporation or bylaws of the Company, the Bank, MIG
or STM or any statute or any order, rule or regulation of any court
or governmental agency or body having jurisdiction over the
Company, the Bank, MIG or STM or any of their respective
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 issuance and sale
of the Securities or the consummation by the Company of the
transactions contemplated by this Agreement, except such consents,
approvals, authorizations, orders, registrations or qualifications
as may be required under the Securities Act, under state securities
or Blue Sky laws, and under the rules of the Financial Industry
Regulatory Authority (“FINRA”) in connection with the
purchase and distribution of the Securities by the
Underwriter.
(xiv) There are no legal or
governmental proceedings pending to which the Company, the Bank,
MIG or STM is a party or of which any of their respective
properties or assets is subject, which, if determined adversely to
the Company, the Bank, MIG or STM, would individually or in the
aggregate, have a Material Adverse Effect and,
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to the best of the Company’s knowledge, no
such proceedings are threatened or contemplated by governmental
authorities or by others. Except as previously disclosed to the
Underwriter, neither the Company, the Bank, MIG or STM nor any of
their respective subsidiaries is subject or is party to, or has
received any notice or advice that any of them may become subject
or party to any investigation with respect to, any corrective,
suspension or cease-and-desist order, agreement, memorandum of
understanding, consent agreement or other regulatory enforcement
action, proceeding or order with or by, or is a party to any
commitment letter or similar undertaking to, or is subject to any
directive by, or has been a recipient of any supervisory letter
from, or has adopted any board resolutions at the request of, any
governmental agency or entity charged with the supervision or
regulation of depository institutions or engaged in the insurance
of deposits (including the FDIC) or the supervision or regulation
of the Company or any of its subsidiaries that currently relates to
or restricts in any material respect their business or their
management (each, a “Regulatory Agreement”), nor has
the Company, the Bank, MIG or STM or any of their respective
subsidiaries been advised by any such governmental agency or entity
that it is considering issuing or requesting any such Regulatory
Agreement; there is no unresolved violation, criticism or exception
by any such Governmental Entity with respect to any report or
statement relating to any examinations of the Company or any of its
subsidiaries which, in the reasonable judgment of the Company,
currently results in or is expected to result in a Material Adverse
Effect.
(xv) Yount, Hyde & Barbour,
P.C., the independent registered public accounting firm that
certified the financial statements of the Company and its
subsidiaries, that are included in or incorporated by reference
into the Registration Statement, the Disclosure Package and the
Prospectus is an independent registered public accounting firm as
required by the Securities Act and the rules and regulations of the
Commission thereunder, and such accountants are not in violation of
the auditor independence requirements of the Sarbanes-Oxley Act of
2002 (the “Sarbanes-Oxley Act”) and the related rules
and regulations of the Commission.
(xvi) Except as disclosed in
the Registration Statement, the Disclosure Package and the
Prospectus, neither the Company, the Bank, MIG nor STM is aware of
(i) any material weakness in its internal control over
financial reporting or (ii) change in internal control over
financial reporting that has materially affected, or is reasonably
likely to materially affect, the Company’s internal control
over financial reporting.
(xvii) To the extent that the
Sarbanes-Oxley Act and the rules and regulations promulgated by the
Commission and The Nasdaq Stock Market thereunder has been
applicable to the Company, there is and has been no failure on the
part of the Company to comply in all material respects with any
provision of the Sarbanes-Oxley Act or such rules and regulations.
The Company has taken all necessary actions to ensure that it is in
compliance with all provisions of the Sarbanes-Oxley Act and such
rules and regulations that are in effect and with which the Company
is required to comply.
(xviii) All employee benefit plans
established, maintained or contributed to by the Company, the Bank,
MIG or STM comply in all material respects with all applicable
requirements of the Employee Retirement Income Security Act of
1974, as amended (“ERISA”) and no such plan has
incurred or assumed an “accumulated funding deficiency”
within the meaning of Section 302 of ERISA or has incurred or
assumed any material liability to the Pension Benefit Guaranty
Corporation.
(xix) The consolidated financial
statements of the Company, together with related notes, as set
forth in the Registration Statement, the Disclosure Package and the
Prospectus present fairly the consolidated financial position and
the results of operations of the Company at the indicated dates and
for the indicated periods, all in accordance with accounting
principles generally accepted in the United States of America,
consistently applied throughout the periods presented except as
noted in such financial statements and the notes thereon, and all
adjustments necessary for a fair presentation of results for such
periods have been made; and the selected financial information
(including the selected financial information for the three and six
month periods ended June 30, 2009 and 2008 presented under the
caption “Recent Developments”) included in the
Prospectus presents fairly the information shown therein and has
been compiled on a basis consistent with the financial statements
presented therein.
(xx) The Company is not, and after
giving effect to the offering and sale of the Securities as herein
contemplated will not be, be an “investment company” or
an entity “controlled” by an “investment
company”, as such terms are defined in the Investment Company
Act of 1940, as amended.
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(xxi) The Company, the Bank, MIG and
STM (i) are in compliance with any and all applicable federal,
state and local laws and regulations relating to the protection of
human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants
(“Environmental Laws”); (ii) have received all
permits, licenses or other approvals required of them under
applicable Environmental Laws to conduct their respective
businesses; and (iii) are in compliance with all terms and
conditions of any such permit, license or approval, except where
such noncompliance with Environmental Laws, failure to receive
required permits, licenses or other approvals or failure to comply
with the terms and conditions of such permits, licenses or
approvals would not, singly or in the aggregate, have a Material
Adverse Effect.
(xxii) The Company, the Bank, MIG
and STM each maintain a system of internal accounting controls
sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with
management’s general or specific authorizations;
(ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with accounting
principles generally accepted in the United States of America and
to maintain asset accountability; (iii) access to assets is
permitted only in accordance with management’s general or
specific authorization; and (iv) the recorded accountability
for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any
differences.
(xxiii) There are no contracts or
documents which are required to be described in the Registration
Statement, the Disclosure Package and the Prospectus or the
documents incorporated by reference therein or to be filed as
exhibits thereto which have not been so described and filed as
required.
(xxiv) The Company and each of its
subsidiaries are insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as
are prudent and customary in the businesses in which they are
engaged; neither the Company nor any of its subsidiaries has been
refused any insurance coverage sought or applied for; and neither
the Company nor any of its subsidiaries has any reason to believe
that it will not be able to renew its existing insurance coverage
as and when such coverage expires or to obtain similar coverage
from similar insurers as may be necessary to continue its business
at a cost that would not have a Material Adverse Effect.
(xxv) The Company, the Bank, MIG and
STM have filed all federal, state, local and foreign income and
franchise tax returns that have been required to be filed (or have
received extensions with respect thereto) other than those filings
being contested in good faith, and have paid, or made adequate
reserves for, all taxes indicated by said returns and all
assessments received by them to the extent that such taxes have
become due and are not being contested in good faith.
(xxvi) No relationship, direct or
indirect, exists between or among the Company, the Bank, MIG and
STM, on the one hand, and the directors, officers, shareholders,
customers or suppliers of the Company, the Bank, MIG or STM, on the
other hand, that is required by the Securities Act or by the rules
and regulations thereunder to be described in the Registration
Statement, the Disclosure Package and the Prospectus which is not
so described.
(xxvii) The Company, the Bank, MIG
and STM have not taken and will not take, directly or indirectly,
any action which is designed to or which has constituted or which
might reasonably be expected to cause or result in stabilization or
manipulation of the price of any security of the Company to
facilitate the sale or resale of the Securities.
(xxviii) This Agreement has been
duly authorized, executed and delivered by the Company and
constitutes a valid and binding agreement of the Company in
accordance with its terms.
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2. Purchase and Sale of the
Securities
Subject to the terms and conditions
herein set forth, (a) the Company agrees to issue and sell to
the Underwriter, and the Underwriter agrees to purchase from the
Company, at a purchase price per share of $10.105, the Firm
Securities, provided, however, that the purchase price per shares
will be $10.374 per share for up to 225,000 shares of Common Stock
included in the Firm Securities which shares may be purchased by
directors, executive officers and any holder of 10% or more of the
outstanding shares of Common Stock (a “Substantial
Shareholder”) of the Company and the Bank solely at any
office of the Underwriter and (b) in the event and to the
extent that the Underwriter shall exercise its election to purchase
Optional Securities as provided below, the Company agrees to issue
and sell to the Underwriter, and the Underwriter agrees to purchase
from the Company, at the purchase price per share set forth in
clause (a) of this Section 2 for persons other than
directors, executive officers and Substantial Shareholders, that
portion of the number of Optional Securities as to which such
election shall have been exercised.
Subject to the terms and conditions
herein set forth, the Company hereby grants to the Underwriter the
right to purchase at their election up to 208,598 Optional
Securities, at the purchase price per share set forth in clause
(a) of the paragraph above for persons other than directors,
executive officers and Substantial Shareholders, for the sole
purpose of covering sales of shares in excess of the number of Firm
Securities. Any such election to purchase Optional Securities may
be exercised only by written notice from the Underwriter to the
Company, given within a period of 30 calendar days after the date
of this Agreement, setting forth the aggregate number of Optional
Securities to be purchased, the number of Optional Securities to be
purchased by the Underwriter and the date on which such Optional
Securities are to be delivered, as determined by the Underwriter
but in no event earlier than the First Delivery Date (as defined in
Section 4 hereof) or, unless the Underwriter and the Company
otherwise agree in writing, no earlier than two or later than ten
business days after the date of such notice.
3. Offering by the
Underwriters
Upon the authorization by the
Company of the release of the Firm Securities, the Underwriter
proposes to offer the Firm Securities for sale upon the terms and
conditions set forth in the Prospectus.
4. Delivery and
Payment
Certificates in definitive form for
the Securities to be purchased by the Underwriter hereunder, and in
such denominations and registered in such names as you may request
upon at least two business days’ prior notice to the Company,
shall be delivered by or on behalf of the Company to you for the
account of the Underwriter, against payment of the purchase price
therefor by wire transfer of same day funds to an account
designated by the Company at least 24 hours in advance (the Company
agreeing to reimburse the Underwriters for any costs associated
with such settlement, if any), all at the offices of
Scott & Stringfellow, LLC, 909 East Main Street, Richmond,
Virginia 23219. Such certificates may be deposited with the
Depository Trust Company (“DTC”) or a custodian for DTC
and registered in the name Cede & Co., as nominee for DTC.
The time and date of such delivery and payment shall be, with
respect to the Firm Securities, 10:00 a.m., Richmond, Virginia
time, on July 31, 2009, or at such other time and date as you
and the Company may agree upon in writing and, with respect to the
Optional Securities, 10:00 a.m., Richmond, Virginia time, on the
date specified by you in the written notice of the
Underwriters’ election to purchase such Optional Securities,
or at such other time and date as you and the Company may agree
upon in writing. Such time and date for delivery of the Firm
Securities is herein called the “First Delivery Date,”
such time and date for delivery of the Optional Securities, if not
the First Delivery Date, is herein called the “Second
Delivery Date,” and each such time and date for delivery is
herein called a “Delivery Date.” Such certificates will
be made available to the Underwriters for checking and packaging at
least 24 hours prior to each Delivery Date at the offices of
Scott & Stringfellow, Inc., in Richmond, Virginia or such
other location designated by the Underwriter to the
Company.
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5. Agreements of the
Company
The Company covenants and agrees
with the Underwriter as follows:
(a) To prepare a Prospectus in a
form approved by the Underwriter containing information previously
omitted at the time of effectiveness of the Registration Statement
in reliance on Rules 430A, 430B or 430C under the Securities Act,
and to file such Prospectus pursuant to Rule 424(b) under the
Securities Act not later than the Commission’s close of
business on the second business day following the execution and
delivery of this Agreement, or, if applicable, such earlier time as
may be required by under the Securities Act; to make no amendment
or supplement to the Registration Statement, the Disclosure Package
or the Prospectus which shall be reasonably disapproved by you
promptly after reasonable notice thereof; to advise the
Underwriter, promptly after it receives notice thereof, of the time
when any amendment to the Registration Statement has been filed or
becomes effective or any supplement to the Prospectus or any
amended Prospectus has been filed and to furnish the Underwriter
with copies thereof; to advise the Underwriter, promptly after it
receives notice thereof, of the issuance by the Commission of any
stop order or of any order preventing or suspending the use of any
Preliminary Prospectus or Prospectus, of the suspension of the
qualification of the Shares for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding
for any such purpose, or of any request by the Commission for the
amending or supplementing of the Registration Statement or the
Prospectus or for additional information; and, in the event of the
issuance of any stop order or of any order preventing or suspending
the use of any Preliminary Prospectus or Prospectus or suspending
any such qualification, promptly to use its best efforts to obtain
the withdrawal of such order.
(b) Promptly from time to time
to take such action as the Underwriter may reasonably request to
qualify the Securities for offering and sale under the securities
laws of such jurisdictions as the Underwriter may request and to
comply with such laws so as to permit the continuance of sales and
dealings therein in such jurisdictions for as long as may be
necessary to complete the distribution of the Securities, provided
that in connection therewith the Company shall not be required to
qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction.
(c) Prior to 10:00 a.m.,
Eastern Time, on the business day next succeeding the date of this
Agreement and from time to time, to furnish the Underwriter with
copies of the Prospectus in Richmond, Virginia (or such other place
as the Underwriter may designate) in such quantities as the
Underwriter may from time to time reasonably request, and, if the
delivery of a prospectus is required at any time prior to the
expiration of nine months after the time of issue of the Prospectus
in connection with the offering or sale of the Securities and if at
such time any event shall have occurred as a result of which the
Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made when such Prospectus
is delivered, not misleading, or, if for any other reason it shall
be necessary during such period to amend or supplement the
Prospectus in order to comply with the Securities Act, to notify
the Underwriter and upon the Underwriter’s request to prepare
and furnish without charge to the Underwriter and to any dealer in
securities as many copies as the Underwriter may from time to time
reasonably request of an amended Prospectus or a supplement to the
Prospectus which will correct such statement or omission or effect
such compliance, and in case the Underwriter is required to deliver
a Prospectus in connection with sales of any of the Securities at
any time nine months or more after the time of issue of the
Prospectus, upon the Underwriter’s request but at the expense
of the Underwriter, to prepare and deliver to the Underwriter as
many copies as they may request of an amended or supplemented
Prospectus complying with Section 10(a)(3) of the Securities
Act.
(d) To make generally available
to its securityholders as soon as practicable, an earnings
statement of the Company and its subsidiaries (which need not be
audited) complying with Section 11(a) of the Securities Act
and the rules and regulations thereunder.
(e) During the period beginning
from the date hereof and continuing to and including the date
90 days after the date of the Prospectus, not to directly or
indirectly, offer, sell, contract or grant any option to sell,
pledge, transfer or establish an open “put equivalent
position” within the meaning of Rule 16a-l(h) under the
Exchange Act, or otherwise dispose of or transfer, or announce the
offering of, or file a registration statement under the Securities
Act in respect of, except as provided hereunder, any securities of
the Company that are substantially similar to the Securities,
including but not limited to any securities that are convertible
into or exchangeable for, or that represent the right to receive,
Common Stock or any such substantially similar securities, without
your prior written consent. The foregoing sentence shall not apply
to (A) the Securities to be sold hereunder, (B) any
shares of Stock issued by
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the Company upon the exercise of an option or
wa
