4,950,000 SHARES
HOME BANCSHARES, INC.
COMMON STOCK
PAR VALUE $0.01 PER SHARE
Stephens
Inc.
111 Center Street
Little Rock, Arkansas 72201
RBC Capital
Markets Corporation
Three World Financial Center
200 Vesey Street
New York, New York 10281
as Representatives of the several
Underwriters
named in Schedule I
hereto
Home BancShares,
Inc., a Arkansas corporation (the “Company”), proposes,
subject to the terms and conditions stated herein, to issue and
sell to the underwriters named in Schedule I hereto
(each, an “Underwriter” and, collectively, the
“Underwriters”), for whom Stephens Inc. and RBC Capital
Markets Corporation are acting as representatives (the
“Representatives”), an aggregate of 4,950,000 shares
(the “Firm Shares”) and, at the election of the
Underwriters, up to 742,500 additional shares (the “Optional
Shares”) of the common stock, $0.01 par value per share
(“Common Stock”), of the Company (the Firm Shares and
the Optional Shares that the Underwriters elect to purchase
pursuant to Section 2 hereof are herein collectively called
the “Shares”).
1. (a) The
Company represents and warrants to each of the several
Underwriters, as of the date hereof, as of the Applicable Time
referred to in Section 1(a)(v) hereof and as of each Time of
Delivery referred to in Section 4(a) hereof (each such date, a
“Representation Date”), and agrees with each of the
several Underwriters, as follows:
(i) The
Company has prepared and filed with the Securities and Exchange
Commission (the “Commission”) a shelf registration
statement on Form S-3 (Registration No. 333-161198), including
each preliminary prospectus or prospectus included therein, which
registration statement has been declared effective by the
Commission under the Securities Act of 1933, as amended (the
“1933 Act”). Such registration statement covers the
registration of the Shares under the 1933 Act. Promptly after
execution and delivery of this Agreement, the Company will prepare
a final prospectus supplement and file the final prospectus
supplement and the Base Prospectus (as hereinafter defined) in
accordance with the provisions of
1
Rule 430B
(“Rule 430B”) of the rules and regulations of the
Commission promulgated under the 1933 Act (the “1933 Act
Regulations”) and paragraph (b) of Rule 424
(“Rule 424(b)”) of the 1933 Act Regulations. Any
information included in such final prospectus supplement or the
Base Prospectus that was omitted from such registration statement
at the time it was originally declared effective but that is deemed
to be part of and included in such registration statement pursuant
to Rule 430B is referred to as “Rule 430B
Information.” Each prospectus, together with the related
prospectus supplement, used in connection with the offering of the
Shares that omitted the Rule 430B Information or that was
captioned “Subject to Completion” (or a similar
caption) is herein called, together with the documents incorporated
and deemed to be incorporated by reference therein pursuant to
Item 12 of Form S-3 under the 1933 Act, a “preliminary
prospectus,” and all references herein to any
“preliminary prospectus” shall be deemed to mean and
include, without limitation, the Statutory Prospectus (as
hereinafter defined) and each preliminary prospectus included in
the registration statement referred to above. Such registration
statement, at any given time, including the amendments thereto at
such time, the exhibits and any schedules thereto at such time, the
documents incorporated and deemed to be incorporated by reference
therein pursuant to Item 12 of Form S-3 under the 1933 Act at
such time, and the documents and information (including, without
limitation, any Rule 430B Information) otherwise deemed to be
a part thereof or included therein by 1933 Act Regulations at such
time, is herein called the “Registration Statement.”
The prospectus contained in the Company’s registration
statement declared effective by the Commission on August 28, 2009
(the “Base Prospectus”), the prospectus supplement,
dated September 15, 2009, relating to the offering of the
Shares, in the form first furnished to the Underwriters by the
Company for use in connection with the offering of the Shares
(whether to meet the requests of purchasers pursuant to
Rule 173 under the 1933 Act Regulations or otherwise),
including the documents incorporated and deemed to be incorporated
by reference therein pursuant to Item 12 of Form S-3 under the
1933 Act at such time, and the prospectus wrapper used in sales
outside the United States, are hereinafter called, collectively,
the “Prospectus.” For purposes of this Agreement, all
references to the Registration Statement, any preliminary
prospectus, the Statutory Prospectus, the Prospectus, any
Issuer-Represented Free Writing Prospectus (as hereinafter defined)
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”).
In the event that
the Company shall file a registration statement pursuant to Rule
462(b) under the 1933 Act (a “Rule 462(b) Registration
Statement”) in connection with the offering of the Shares,
then, from and after the date of such filing, all references herein
to the “Registration Statement” shall be deemed to mean
and include such Rule 462(b) Registration Statement, mutatis
mutandis , unless otherwise expressly stated or the context
otherwise requires.
All references in
this Agreement to consolidated financial statements and schedules
and other information which is “contained,”
“included” or “stated” (or other references
of like import) in the Registration Statement, any preliminary
prospectus, the Statutory Prospectus or the Prospectus shall be
deemed to mean and include all such consolidated financial
statements and schedules and other information which is
incorporated or deemed to be incorporated by reference in, or
otherwise deemed by the 1933 Act Regulations (including, without
limitation, pursuant to Rule 430B(f) of the 1933 Act
Regulations) to be a part of or included in, the Registration
Statement, such preliminary prospectus, the Statutory Prospectus or
the Prospectus,
2
as the case may
be; and all references in this Agreement to amendments or
supplements to the Registration Statement, any preliminary
prospectus, the Statutory Prospectus or the Prospectus shall be
deemed to mean and include the filing of any document under the
Securities Exchange Act of 1934, as amended (the “1934
Act”), which is incorporated or deemed to be incorporated by
reference in the Registration Statement, such preliminary
prospectus, the Statutory Prospectus or the Prospectus, as the case
may be.
(ii) At
the time of the original filing of the Registration Statement, at
the earliest time thereafter that the Company or another offering
participant made a bona fide offer (within the meaning of
Rule 164(h)(2) of the 1933 Act Regulations) of the Shares and
at each Representation Date, the Company was not, is not and will
not be an “ineligible issuer” as defined in
Rule 405 under the 1933 Act.
(iii) The
Registration Statement was originally declared effective by the
Commission on August 28, 2009, any post-effective amendments
thereto have also been declared effective by the Commission and any
Rule 462(b) Registration Statement has become or will become
effective upon filing thereof with the Commission. No stop order
suspending the effectiveness of the Registration Statement or any
Rule 462(b) Registration Statement has been issued under the 1933
Act and no proceedings for that purpose have been instituted or are
pending or, to the knowledge of the Company, are contemplated by
the Commission, and any request on the part of the Commission for
additional information with respect to the Registration Statement
(or any document incorporated or deemed to be incorporated therein
by reference pursuant to the 1934 Act) has been complied with. The
Company has taken all necessary actions to qualify the Shares for
sale under applicable Blue Sky laws and has obtained any necessary
notices of non-objection from the Financial Industry Regulatory
Authority (“FINRA”).
(iv) At
the respective times the Registration Statement was originally
declared effective and any amendment thereto was declared
effective, at the time that any Rule 462(b) Registration Statement
became effective, at the time the Company’s most recent
Annual Report on Form 10-K was filed with the Commission, at each
“new effective date” with respect to the Underwriters
pursuant to Rule 430B(f)(2) of the 1933 Act Regulations, and
at each Representation Date, the Registration Statement and any
amendments thereto complied, comply and will comply in all material
respects with the requirements of the 1933 Act and the 1933 Act
Regulations and did not, do not and will not contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading.
At the time the
Prospectus or any amendment or supplement thereto was issued and at
each Representation Date, neither the Prospectus nor any amendment
or supplement thereto included, includes or will include an untrue
statement of a material fact or omitted, omits or will omit to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading.
Each preliminary
prospectus (including, without limitation, the Statutory
Prospectus) filed as part of the Registration Statement as
originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424(b) under the 1933 Act, complied when so filed
(or, in the case of any preliminary prospectus or part thereof that
was not filed as part of the Registration Statement
3
or any
amendment thereto or pursuant to Rule 424(b), complied as of
its date), and each Prospectus and any amendments or supplements
thereto filed pursuant to Rule 424(b) under the 1933 Act complied
when so filed (or, in the case of any Prospectus or amendment or
supplement thereto that was not filed pursuant to Rule 424(b),
complied as of its date), in all material respects with the 1933
Act and the 1933 Act Regulations and each preliminary prospectus
(including, without limitation, the Statutory Prospectus) and the
Prospectus and any amendments or supplements thereto delivered to
Underwriters for use in connection with the offering of the Shares
(whether to meet requests of purchasers pursuant to Rule 173
under the 1933 Act Regulations or otherwise) was identical to the
electronically transmitted copies thereof filed with the Commission
pursuant to EDGAR, except to the extent permitted by
Regulation S-T.
(v) As
of the Applicable Time, neither (x) any Issuer-Represented
General Use Free Writing Prospectuses (as defined below) issued at
or prior to the Applicable Time and the Statutory Prospectus, all
considered together (collectively, the “General Disclosure
Package”), nor (y) any individual Issuer-Represented
Limited-Use Free Writing Prospectus (as defined below), when
considered together with the General Disclosure Package, included
an 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. The Company has not issued any Issuer-Represented
General Use Free Writing Prospectuses as of the Applicable
Time.
As used in this
Section 1(a)(v) and elsewhere in this Agreement:
“Applicable
Time” means 7:00 p.m. (New York, New York time) on
September 15, 2009, or such other date or time as agreed by
the Company and the Representatives.
“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 Shares,
including, without limitation, any such issuer free writing
prospectus that (i) is required to be filed with the
Commission by the Company, (ii) is a “road show that is
a written communication” within the meaning of
Rule 433(d)(8)(i), whether or not required to be filed with
the Commission or (iii) is exempt from filing pursuant to
Rule 433(d)(5)(i) because it contains a description of the
Shares or of the offering that does not reflect the final terms, in
each case in the form filed or required to be filed with the
Commission or, if not required to be filed, in the form retained in
the Company’s records pursuant to
Rule 433(g).
“Issuer-Represented
General Use Free Writing Prospectus” means any
Issuer-Represented Free Writing Prospectus that is intended for
general distribution to prospective investors.
“Issuer-Represented
Limited-Use Free Writing Prospectus” means any
Issuer-Represented Free Writing Prospectus that is not an
Issuer-Represented General Use Free Writing Prospectus.
“Statutory
Prospectus” means, at any time, the Base Prospectus and the
preliminary prospectus supplement dated September 11, 2009,
relating to the offering of the Shares, in the form first furnished
to the Underwriters by the Company for use in connection with the
offering
4
of the Shares,
including the documents incorporated and deemed to be incorporated
by reference therein pursuant to Item 12 of Form S-3 under the
1933 Act at such time.
Each
Issuer-Represented Free Writing Prospectus, as of its issue date
and at all subsequent times through the completion of the public
offering and sale of the Shares, did not, does not and will not
include any information that conflicted, conflicts or will conflict
with the information contained in the Registration Statement, the
Statutory Prospectus or the Prospectus, in each case including the
documents incorporated and deemed to be incorporated by reference
therein.
The
representations and warranties in this subsection (v) shall
not apply to statements in or omissions from the Registration
Statement, the Statutory Prospectus, the Prospectus or any
Issuer-Represented Free Writing Prospectus made in reliance upon
and in conformity with written information furnished to the Company
by the Underwriters through the Representatives expressly for use
therein.
(vi) The
documents incorporated or deemed to be incorporated by reference in
the Registration Statement, the Statutory Prospectus or the
Prospectus, at the respective time they were or hereafter are filed
with the Commission, complied, comply and will comply in all
material respects with the requirements of the 1934 Act and the
rules and regulations of the Commission thereunder (the “1934
Act Regulations”), and did not, do not and will not contain
an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which
they were made, not misleading.
(vii) The
consolidated financial statements, including the related schedules
and notes, filed with the Commission as a part of the Registration
Statement and included in the General Disclosure Package and the
Prospectus (the “Consolidated Financial Statements”)
present fairly the consolidated financial position of the Company
and its subsidiaries as of and at the dates indicated and the
results of their operations and cash flows for the periods
specified; such Consolidated Financial Statements, unless otherwise
noted therein have been prepared in conformity with generally
accepted accounting principles as applied in the United States
(“GAAP”) applied on a consistent basis throughout the
periods involved; no other consolidated financial statements or
supporting schedules are required to be included in the
Registration Statement, the General Disclosure Package and the
Prospectus; the statement of income data, balance sheet data and
earnings per share data for the five fiscal years ended
December 31, 2008 as set forth in the Prospectus under the
captions “Selected Historical Financial Data” fairly
present the information therein on a basis consistent with that of
the audited consolidated financial statements contained in the
Registration Statement, the General Disclosure Package and the
Prospectus; the income statement data and earnings per share data
for the fiscal quarters ended June 30, 2009 and June 30,
2008 and balance sheet data as of June 30, 2009 and
June 30, 2008 as set forth in the Prospectus under the
captions “Selected Historical Financial Data” fairly
present the information therein as a basis consistent with that of
the unaudited consolidated financial statements contained in the
Registration Statement, the General Disclosure Package and the
Prospectus; to the extent applicable, all disclosures contained in
the Registration Statement, the General Disclosure Package or the
Prospectus regarding “non-GAAP financial measures” as
such term is defined by the rules and regulations
5
of the
Commission comply with Regulation G of the 1934 Act, the 1934
Act Regulations and Item 10 of Regulation S-K under the 1933
Act;
(viii) BKD,
LLP, the independent registered public accounting firm that
certified the consolidated financial statements of the Company and
its subsidiaries that are included in or incorporated by reference
into the Registration Statement, the General Disclosure Package and
the Prospectus, is an independent registered public accounting firm
as required by the 1933 Act and the 1933 Act Regulations and by the
rules of the Public Accounting Oversight Board, BKD and such
accountants are not in violation of the auditor independence
requirements of the Sarbanes-Oxley Act of 2002 (the
“Sarbanes-Oxley Act”) with respect to the
Company;
(ix) The
statements set forth in the Statutory Prospectus and the Prospectus
under the captions “Risk Factors,” “Description
of Capital Stock,” and “Underwriting” and in the
Company’s Form 10 filed with the Commission on
April 7, 2006, as amended, insofar as they purport to
constitute a summary of the terms of the Shares or certain
provisions of the Company’s charter and bylaws or Arkansas
law, and under the caption “Supervision and Regulation”
in the Company’s Annual Report on Form 10-K for the year
ended December 31, 2008, insofar as they purport to describe
the provisions of the laws, rules, regulations and documents
referred to therein, are accurate and complete; the statistical and
market related data contained in the Statutory Prospectus and
Prospectus are based on or derived from sources which the Company
believes are reliable and accurate;
(x) The
Company has full legal right, corporate power and authority to
enter into this Agreement and perform the transactions contemplated
hereby. This Agreement has been duly authorized, executed and
delivered by the Company. This Agreement constitutes a legal, valid
and binding agreement of the Company, enforceable against the
Company in accordance with its terms, except as enforceability may
be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other laws of general application relating to or
affecting the enforcement of creditors’ rights and the
application of equitable principles relating to the availability of
remedies, and subject to 12 U.S.C. §1818(b)(6)(D) (or any
successor statute) and similar bank regulatory powers and to the
application of principles of public policy, and except as rights to
indemnity or contribution, including but not limited to,
indemnification provisions set forth in Section 8 of this
Agreement may be limited by federal or state securities law or the
public policy underlying such laws.
(xi) Since
the date of the latest audited consolidated financial statements
included in the Registration Statement, the General Disclosure
Package and the Prospectus, (A) neither the Company nor any of
its subsidiaries has sustained any material loss or interference
with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as
set forth or contemplated in the Registration Statement, the
General Disclosure Package and the Prospectus; and, except as set
forth in Registration Statement, the General Disclosure Package and
the Prospectus, there has not been any material change in the
capital stock, other equity interests or long-term debt of the
Company or any of its subsidiaries or any material adverse change,
or any development that may cause a prospective material adverse
change, in or affecting the general affairs, management, earnings,
business, properties, assets, current or future consolidated
financial position, business prospects, stockholders’ equity
or
6
results of
operations of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of
business and there has been no effect with respect to the Company
and its subsidiaries considered as one enterprise, which would
prevent, or be reasonably likely to prevent, the Company from
consummating the transaction contemplated by this Agreement (a
“Material Adverse Effect”), (B) there have been no
transactions entered into by the Company or any of its
subsidiaries, other than those in the ordinary course of business,
which are material with respect to the Company and its subsidiaries
considered as one enterprise, otherwise than as set forth or
contemplated in the Statutory Prospectus and the Prospectus, and
(C) except for quarterly dividends on the Common Stock, which
are set forth in the Prospectus under the caption “Price
Range of Common Stock and Dividends Declared,” and the
Series A Preferred Stock issued to the U.S. Department of the
Treasury in amounts per share that are consistent with past
practice, there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital
stock, otherwise than as set forth or contemplated in the
Registration Statement, the General Disclosure Package and the
Prospectus;
(xii) The
Company and its subsidiaries have good and marketable title in fee
simple to all real property and good and marketable title to all
personal property owned by them, in each case free and clear of all
mortgages, pledges, security interests, claims, restrictions,
liens, encumbrances and defects except such as are described in the
Registration Statement, the General Disclosure Package and the
Prospectus 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 and its subsidiaries; and any
real property and buildings held under lease by the Company and its
subsidiaries 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 and its subsidiaries, and
neither the Company nor any Subsidiary has any written, or to the
Company’s knowledge, oral notice of any material claim of any
sort that has been asserted by anyone adverse to the rights of the
Company or any subsidiary under any of the leases or subleases
mentioned above, or affecting or questioning the rights of the
Company or such Subsidiary to the continued possession of the
leased or subleased premises under any such lease or
sublease.
(xiii) The
Company is a registered bank holding company under the Bank Holding
Company Act of 1956, as amended (“BHCA”) with respect
to Centennial Bank (the “Bank”) and has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation,
with the corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the
Registration Statement, the General Disclosure Package and the
Prospectus and to enter into and perform its obligations under this
Agreement; the Company is duly qualified as a foreign corporation
to transact business and is in good standing in each other
jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify or to be in good
standing would not reasonably be expected to result in a Material
Adverse Effect; the Company is subject to the reporting
requirements of the 1934 Act and has timely filed all reports
required thereby;
(xiv) Each
subsidiary of the Company has been duly incorporated and is validly
existing as a corporation, limited liability company, trust
company, statutory business trust or bank in good standing under
the laws of the jurisdiction of its incorporation and has
the
7
corporate power
and authority to own, lease and operate its properties and to
conduct its business as described in the Registration Statement,
the General Disclosure Package and the Prospectus and, in the case
of the Bank, to enter into and perform its obligations under this
Agreement; each subsidiary of the Company is duly qualified as a
foreign corporation to transact business and is in good standing in
each other jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except for such jurisdictions where the
failure to so qualify, or be in good standing, would not,
individually or in the aggregate, reasonably be expected to result
in a Material Adverse Effect; all of the issued and outstanding
capital stock or other equity interests of each subsidiary has been
duly authorized and validly issued, is fully paid and nonassessable
and is owned by the Company, directly or through subsidiaries; the
Company owns, directly or through subsidiaries, the issued and
outstanding capital stock or other equity interest of each
subsidiary free and clear of any security interest, mortgage,
pledge, lien, encumbrance or claim; the Company does not own or
control, directly or indirectly, any corporation, association or
other entity other than the Bank and the Company’s other
direct and indirect subsidiaries listed on Schedule II
hereto; none of the outstanding shares of capital stock or other
equity interest of any subsidiary was issued in violation of the
preemptive or similar rights of any security holder or equity
holder of such subsidiary; the activities of the subsidiaries of
the Bank are permitted to subsidiaries of a state bank that is a
member of the Federal Reserve System and the deposit accounts of
the Bank are insured up to the applicable limits by the Federal
Deposit Insurance Corporation (the “FDIC”);
(xv) The
Company has an authorized capitalization as set forth in each of
the Registration Statement, the General Disclosure Package and the
Prospectus under the heading “Capitalization,” and all
of the issued shares of capital stock of the Company have been duly
and validly authorized and issued, are fully paid and
non-assessable and have been issued in compliance with federal and
state securities laws; none of the outstanding shares of Stock were
issued in violation of any preemptive rights, rights of first
refusal or other similar rights to subscribe for or purchase
securities of the Company; the description of the Company’s
stock option, stock bonus and other stock plans or arrangements and
the options or other rights granted thereunder, set forth or
incorporated by reference in the Registration Statement, the
General Disclosure Package and the Prospectus, accurately and
fairly presents, in all material respects, the information required
to be shown with respect to such plans, arrangements, options and
rights;
(xvi) The
Shares have been duly authorized and, when issued, delivered and
paid for in the manner set forth in this Agreement, will be validly
issued, fully paid and nonassessable, and conform to the
description thereof contained in each of the Registration
Statement, the General Disclosure Package and the Prospectus. No
preemptive rights or other rights to subscribe for or purchase any
shares of Common Stock exist with respect to the issuance and sale
of the Shares by the Company pursuant to this Agreement, except for
such rights as may have been fully satisfied or waived prior to the
Time of Delivery. There are no restrictions upon the voting or
transfer of any of the Shares except as required under applicable
federal or state securities laws. No further approval or authority
of the shareholders or the Board of Directors of the Company will
be required for the issuance and sale of the Shares as contemplated
herein;
8
(xvii) Except
as described in the Registration Statement, the General Disclosure
Package and the Prospectus, (A) there are no outstanding
rights (contractual or otherwise), warrants or options to acquire,
or instruments convertible into or exchangeable for, or agreements
or understandings with respect to the sale or issuance of, any
shares of capital stock of or other equity interest in the Company;
and (B) there are no contracts, agreements or understandings
between the Company and any person granting such person the right
to require the Company to file a registration statement under the
1933 Act or otherwise register any securities the Company owned or
to be owned by such person;
(xviii) The
issue and sale of the Shares by the Company and the compliance by
the Company with all of the provisions of this Agreement and the
consummation of the transactions herein contemplated have been duly
authorized by all necessary corporate action and do not and will
not, whether with or without the giving of notice or passage of
time or both, conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default or
result in a Repayment Event (as defined below) 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
subsidiaries is bound or to which any of the property or assets of
the Company or any of its subsidiaries is subject, nor will such
action result in any violation of the provisions of the certificate
of incorporation, articles of association or charter (as
applicable) or bylaws of the Company or any of its subsidiaries or
any statute or any order, rule or regulation of any federal, state,
local or foreign court, arbitrator, regulatory authority or
governmental agency (each a “Governmental Entity”) or
body having jurisdiction over the Company or any of its
subsidiaries or any of their properties, except for these
conflicts, breaches, violations, defaults or Repayment Events that
would not result in a Material Adverse Effect; 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, the performance by the Company of
its obligations hereunder or the consummation by the Company of the
transactions contemplated by this Agreement, except the
registration under the Act of the Shares and except as may be
required under the rules and regulations of the NASDAQ Global
Select Market or FINRA and such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the
purchase and distribution of the Shares by the Underwriters. As
used herein, a “Repayment Event” means any event or
condition that gives the holder of any note, debenture or other
evidence of indebtedness (or any person acting on such
holder’s behalf) the right to require the repurchase,
redemption or repayment of all or a portion of such indebtedness by
the Company or any subsidiary;
(xix) Neither
the Company nor any of its subsidiaries is in violation of its
certificate of incorporation, articles of organization or charter
(as applicable) or bylaws or in default in the performance or
observance of any obligation, agreement, covenant or condition
contained in any indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or other agreement or instrument to which it
is a party or by which it or any of its properties may be bound or
to which any of the property or assets of the Company or any
subsidiary is subject, except for such defaults that would not
result in a Material Adverse Effect;
(xx) Except
as disclosed in the Registration Statement, the General Disclosure
Package and the Prospectus, the Company and its subsidiaries are
conducting their
9
respective
businesses in compliance in all material respects with all federal,
state, local and foreign statutes, laws, rules, regulations,
decisions, directives and orders applicable to them, including,
without limitation, all regulations and orders of, or agreements
with, the Board of Governors of the Federal Reserve System (the
“FRB”), the State of Arkansas State Bank Department
(“ASBD”) and the FDIC, the Equal Credit Opportunity
Act, the Fair Housing Act, the Community Reinvestment Act, the Home
Mortgage Disclosure Act, all other applicable fair lending laws or
other laws relating to discrimination and the Bank Secrecy Act and
Title III of the USA Patriot Act, and neither the Company nor any
of its subsidiaries has received any written, or to the
Company’s knowledge, oral communication from any Governmental
Entity asserting that the Company or any of its subsidiaries is not
in compliance with any such statute, law, rule, regulation,
decision, directive or order;
(xxi) Except
as disclosed in the Registration Statement, the General Disclosure
Package and the Prospectus, there are no legal or governmental
actions or suits, investigations, inquiries or proceedings before
or by any court or Government Entity, now pending or, to the
knowledge of the Company, threatened or contemplated, 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
(A) that is required to be disclosed in the Registration
Statement by the 1933 Act or by the 1933 Act Regulations and not
disclosed therein or (B) which, if determined adversely to the
Company or any of its subsidiaries, would, individually or in the
aggregate, have a Material Adverse Effect; all pending legal or
governmental proceedings to which the Company or any of its
subsidiaries is a party or of which any of their property is the
subject, either individually or in the aggregate, which are not
described in the Registration Statement, the General Disclosure
Package or the Prospectus, including ordinary routine litigation
incidental to their respective businesses, would not have a
Material Adverse Effect; and there are no contracts or documents of
the Company or any of its subsidiaries which would be required to
be described in the Registration Statement, the General Disclosure
Package or the Prospectus or to be filed as exhibits thereto by the
1933 Act or by the 1933 Act Regulations which have not been so
described and filed;
(xxii) Each
of the Company and its subsidiaries possesses all permits,
licenses, approvals, consents and other authorizations of
(collectively, “Governmental Licenses”), and has made
all filings, applications and registrations with, all Governmental
Entities to permit the Company or such subsidiary to conduct the
business now operated by the Company or its subsidiaries; the
Company and its subsidiaries are in compliance with the terms and
conditions of all such Governmental Licenses, except where the
failure so to comply would not, individually or in the aggregate,
have a Material Adverse Effect; all of the Governmental Licenses
are valid and in full force and effect, except where the invalidity
of such Governmental Licenses or the failure of such Governmental
Licenses to be in full force and effect would not, individually or
in the aggregate, have a Material Adverse Effect; and neither the
Company nor any of its subsidiaries has received any notice of
proceedings relating to the revocation or modification of any such
Governmental Licenses which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would result
in a Material Adverse Effect;
(xxiii) Except
as described in the Registration Statement, the General Disclosure
Package and the Prospectus and except as would not, singly or in
the aggregate, result in a Material Adverse Effect,
(A) neither the Company nor any of its subsidiaries is in
violation
10
of any federal,
state or local statute, law, rule, regulation, ordinance, code,
policy or rule of common law or any judicial or administrative
interpretation thereof, including any judicial or administrative
order, consent, decree or judgment, relating to pollution or
protection of human health, the environment (including, without
limitation, ambient air, surface water, groundwater, land surface
or subsurface strata) or wildlife, including, without limitation,
laws and regulations relating to the release or threatened release
of chemicals, pollutants, contaminants, wastes, toxic substances,
hazardous substances, petroleum or petroleum products,
asbestos-containing materials or mold (collectively,
“Hazardous Materials”) or to the manufacture,
processing, distribution, use, treatment, storage, disposal,
transport or handling of Hazardous Materials (collectively,
“Environmental Laws”), (B) the Company and its
subsidiaries have all permits, authorizations and approvals
required under any applicable Environmental Laws and are each in
compliance with their requirements, and (C) there are no
pending or, to the Company’s knowledge, threatened
administrative, regulatory or judicial actions, suits, demands,
demand letters, claims, liens, notices of noncompliance or
violation, investigation or proceedings relating to any
Environmental Law against the Company or any of its
subsidiaries;
(xxiv) The
Company and each of its subsidiaries own or possess adequate rights
to use or can acquire on reasonable terms ownership or rights to
use all material patents, patent applications, patent rights,
licenses, trademarks, service marks, trade names, trademark
registrations, service mark registrations, copyrights, know-how
(including trade secrets and other unpatented and/or unpatenable
property or confidential information, systems or procedures and
excluding generally commercially available “off the
shelf” software programs licensed pursuant to shrink wrap or
“click and accept” licenses) and licenses
(collectively, “Intellectual Property”) necessary for
the conduct of their respective businesses, except where the
failure to own or possess such rights would not have not have a
Material Adverse Effect, and have no reason to believe that the
conduct of their respective businesses will conflict with, and have
not received any notice of any claim of infringement or conflict
with, any such rights of others or any facts or circumstances that
would render any Intellectual Property invalid or inadequate to
protect the interest of the Company or any of its subsidiaries
therein, except where such infringement or conflict (if the subject
of any unfavorable decision, ruling or finding) or invalidity or
inadequacy, singly or in the aggregate, would result in a Material
Adverse Effect;
(xxv) No
relationship, direct or indirect, exists between or among the
Company or any of its subsidiaries, on the one hand, and the
directors, officers, shareholders, customers or suppliers of the
Company or any of its subsidiaries, on the other hand, which is
required to be described in the Registration Statement, the General
Disclosure Package and the Prospectus by the 1933 Act or by the
1933 Act Regulations has not been so described;
(xxvi) The
Company is not and, after giving effect to the offering and sale of
the Shares and after receipt of payment for the Shares and the
application of such proceeds as described in the Registration
Statement, the General Disclosure Package and the Prospectus, will
not be an “investment company” or an entity
“controlled” by an “investment company,” as
such terms are defined in the Investment Company Act of 1940, as
amended (the “Investment Company Act”);
(xxvii) There
is and has been no failure on the part of the Company or any of the
Company’s directors or officers, in their capacities as such,
to comply in all material
11
respects with
any provision of the Sarbanes-Oxley Act and the rules and
regulations promulgated in connection therewith, including
Section 402 related to loans and Sections 302 and 906
related to certifications;
(xxviii) Neither
the Company nor any of its subsidiaries, nor any affiliates of the
Company or its subsidiaries has taken and will not take, directly
or indirectly, any action designed to or that might be reasonably
expected to cause or result in stabilization or manipulation of the
price of the Common Stock to facilitate the sale or resale of the
Shares;
(xxix) Neither
the Company nor any of its subsidiaries nor, to the Company’s
knowledge, any director, officer, employee or agent or other person
associated with or acting on behalf of the Company or any of its
subsidiaries has (A) used any corporate funds for any unlawful
contribution, gift, entertainment or other unlawful expense
relating to political activity; (B) made any direct or
indirect unlawful payment to any foreign or domestic government
official or employee from corporate funds; (C) violated or is
in violation of any provision of the Foreign Corrupt Practices Act
of 1977; or (D) made any bribe, rebate, payoff, influence
payment, kickback or other unlawful payment;
(xxx) The
Company and each of its subsidiaries maintains a system of internal
accounting controls sufficient to provide reasonable assurances
that (A) transactions are executed in accordance with
management’s general or specific authorization;
(B) transactions are recorded as necessary to permit
preparation of financial statements in conformity with GAAP and to
maintain accountability for assets; (C) access to assets is
permitted only in accordance with management’s general or
specific authorization; and (D) the recorded accounting for
assets is compared with existing assets at reasonable intervals and
appropriate action is taken with respect to any differences. Since
the end of the Company’s most recent audited fiscal year,
there has been (y) no material weakness in the Company’s
internal control over financial reporting (whether or not
remediated) and (z) 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;
(xxxi) The
Company has established and maintains disclosure controls and
procedures (as such term is defined in Rule 13a-15(e) and
15d-15(e) under the 1934 Act), which (A) are designed to
ensure that information required to be disclosed by the Company in
the reports that it files or submits under the 1934 Act is
recorded, processed, summarized and reported within the time
periods specified in the Commission’s rules and forms and
that material information relating to the Company and its
subsidiaries is made known to the Company’s principal
executive officer and principal financial officer by others within
the Company and its Subsidiaries to allow timely decisions
regarding disclosure, and (B) are effective in all material
respects to perform the functions for which they were established.
Based on the evaluation of the Company’s and each
subsidiary’s disclosure controls and procedures described
above, the Company is not aware of (y) any significant
deficiency in the design or operation of internal controls which
could adversely affect the Company’s ability to record,
process, summarize and report financial data or any material
weaknesses in internal controls or (z) any fraud, whether or
not material, that involves management or other employees who have
a significant role in the Company’s internal controls. Since
the most recent evaluation of the Company’s
disclosure
12
controls and
procedures described above, there have been no significant changes
in internal controls or in other factors that could significantly
affect internal controls;
(xxxii) Neither
the Company nor any of its 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 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 or any of its subsidiaries been advised by any such
Governmental 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;
(xxxiii) Any
“employee benefit plan” (as defined under the Employee
Retirement Income Security Act of 1974, as amended, and the
regulations and published interpretations thereunder (collectively,
“ERISA”)) established or maintained by the Company, its
subsidiaries or their “ERISA Affiliates” (as defined
below) is in compliance with ERISA, except where the failure to be
in such compliance would not have a Material Adverse Effect;
“ERISA Affiliate” means, with respect to the Company or
a subsidiary, any member of any group of organizations described in
Section 414(b), (c), (m) or (o) of the Internal
Revenue Code of 1986, as amended, and the regulations and published
interpretations thereunder (the “Code”) of which the
Company or such subsidiary is a member; no “reportable
event” (as defined under ERISA) has occurred or is reasonably
expected to occur with respect to any “employee benefit
plan” established or maintained by the Company, its
subsidiaries or any of their ERISA Affiliates; no “employee
benefit plan” established or maintained by the Company, its
subsidiaries or any of their ERISA Affiliates, if such
“employee benefit plan” were terminated, would have any
“amount of unfunded benefit liabilities” (as defined
under ERISA); none of the Company, its subsidiaries nor any of
their ERISA Affiliates has incurred or reasonably expects to incur
any liability under (A) Title IV of ERISA with respect to
termination of, or withdrawal from, any “employee benefit
plan” or (B) Sections 412, 4971, 4975 or 4980B of
the Code; each “employee benefit plan” established or
maintained by the Company, its subsidiaries or any of their ERISA
Affiliates that is intended to be qualified under Section 401(a) of
the Code has received a favorable determination or approval letter
from the Internal Revenue Service regarding its qualification under
such section and nothing has occurred whether by action or failure
to act, which would cause the loss of such
qualification;
(xxxiv) The
Company and its subsidiaries, taken as a whole, are insured by
insurers of recognized financial responsibility against such losses
and risks and in such amounts as are prudent and customary in the
business in which they are engaged; and neither the Company nor any
of its subsidiaries has any reason to believe that it will not be
able to renew its
13
existing
insurance coverage from similar insurers as may be necessary to
continue its business at a cost that would not have a Material
Adverse Effect; neither the Company nor any subsidiary has been
denied any insurance coverage which it has sought or for which it
has applied;
(xxxv) Except
as disclosed in the Registration Statement, the General Disclosure
Package and the Prospectus, there are no contracts, agreements or
understandings between the Company and any person that would give
rise to a valid claim against the Company, or the Underwriter, for
a brokerage commission, finder’s fee or other like
payment;
(xxxvi) The
Company and its consolidated subsidiaries and its other
subsidiaries have filed all necessary federal, state and foreign
income and franchise tax returns or have properly requested
extensions thereof, all such tax returns are true, complete and
correct; the Company and its consolidated subsidiaries and its
other subsidiaries have paid all taxes required to be paid by any
of them; the Company has made adequate charges, accruals and
reserves in the applicable consolidated financial statements
referred to in Section 1(a)(vii) above in respect of all
federal, state and foreign income and franchise taxes for all
periods as to which the tax liability of the Company or any of its
consolidated subsidiaries or any of its other subsidiaries has not
been finally determined;
(xxxvii) No
labor dispute with the employees of the Company or any subsidiary
exists or, to the knowledge of the Company, is imminent, which, in
any case, may reasonably be expected to result in a Material
Adverse Effect;
(xxxviii) 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, money
laundering statutes applicable to the Company and its subsidiaries,
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”), except where the failure to be in such
compliance would not have a Material Adverse Effect;
(xxxix) Except
as disclosed in the Registration Statement, the General Disclosure
Package and the Prospectus, no subsidiary of the Company is
currently prohibited, directly or indirectly, from paying any
dividends to the Company, from making any other distribution on
such subsidiary’s capital stock or other equity interest of
such subsidiary or from repaying to the Company any loans or
advances to such subsidiary from the Company;
(xl) The
merger agreement related to the Company’s acquisition of
Centennial Bancshares, Inc., an Arkansas bank holding company
(“Centennial”), provided for contingent consideration
to Centennial’s shareholders of up to a maximum of
$4 million, which could be paid in cash or shares of Common
Stock at the election of the former Centennial accredited
shareholders. The Company computed and paid final contingent
consideration of $3.1 million to former Centennial
shareholders on March 12, 2009. All former Centennial
shareholders elected to receive the contingent consideration in
cash. The Company has received no notice, oral or written, directly
or indirectly, that any former Centennial shareholders dispute or
intend to dispute the amount or type of consideration paid to them
by the Company.
14
(xli)
The Registration Statement is not the subject of a pending
proceeding or examination under Section 8(d) or 8(e) of the 1933
Act, and the Company is not the subject of a pending proceeding
under Section 8A of the 1933 Act in connection with the
offering of the Shares;
(xlii)
No person has the right to require the Company or any of its
subsidiaries to register any securities for sale under the Act by
reason of the filing of the Registration Statement with the
Commission or the issuance and sale of the Shares to be sold by the
Company hereunder;
(xliii)
The Company has not distributed and, prior to the later to occur of
(i) the Time of Delivery and (ii) completion of the
distribution of the Shares, will not distribute any prospectus (as
such term is defined in the 1933 Act and the 1933 Act Regulations)
in connection with the offering and sale of the Shares other than
the Registration Statement, the Statutory Prospectus, the
Prospectus or other materials, if any, permitted by the 1933 Act or
by the rules and regulations promulgated by the Commission
thereunder and approved by the Underwriters;
(xliv)
No forward-looking statement (within the meaning of
Section 27A of the 1933 Act and Section 21E of the 1934
Act) contained in the Registration Statement, the General
Disclosure Package and the Prospectus has been made or reaffirmed
without a reasonable basis or has been disclosed other than in good
faith;
(xlv)
Each of the Company’s executive officers and directors, in
each case as listed on Schedule III hereto, has
executed and delivered a lock-up agreement substantially in the
form of Exhibit A ;
(xlvi)
Neither the Company nor any of its subsidiaries has participated in
any reportable transaction, as defined in Treasury
Regulation Section 1.6011-(4)(b)(1);
(xlvii)
Each of the Company and its subsidiaries has good and marketable
title to all securities held by it (except securities sold under
repurchase agreements or held in any fiduciary or agency capacity)
free and clear of any lien, claim, charge, option, encumbrance,
mortgage, pledge or security interest or other restriction of any
kind, except to the extent such securities are pledged in the
ordinary course of business consistent
|
