First Community Bancshares,
Inc.
Common Stock
par value $1.00 per share
Sandler
O’Neill & Partners, L.P.,
as Representative of the several
Underwriters
919 Third Avenue
6 th
Floor
New York, New York 10022
First Community
Bancshares, Inc., a Nevada corporation (the “Company”),
proposes, subject to the terms and conditions stated herein, to
issue and sell to Sandler O’Neill & Partners, L.P.
(“Sandler O’Neill” or an
“Underwriter”) and each of the other underwriters named
in Schedule A hereto (collectively, the
“Underwriters,” which term shall also include any
underwriter substituted as hereinafter provided in Section 11
hereof), for whom Sandler O’Neill is acting as representative
(in such capacity, the “Representative”) with respect
to (i) the sale by the Company, and the purchase by the
Underwriters, acting severally and not jointly, of an aggregate of
4,600,000 shares of Common Stock, $1.00 par value per share, of the
Company (the “Stock”), as set forth in
Schedule I hereto (the “Firm Shares”) and
(ii) the grant by the Company to the Underwriters, acting
severally and not jointly, of the option described in
Section 2 hereof to purchase all or any part of 690,000
additional shares of Common Stock (the “Optional
Shares”) to cover over-allotments, if any (the Firm Shares
and the Optional Shares that the Underwriters elect to purchase
pursuant to Section 2 hereof being collectively called the
“Shares”).
The Company has
filed with the Securities and Exchange Commission (the
“Commission”) a registration statement on Form S-3
(No. 333-153692) covering the registration of the Shares under
the Securities Act of 1933, as amended (the “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 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 Act, together with the Base Prospectus. Any
registration statement filed pursuant to Rule 462(b) under the 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 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”).
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.
1. (a) The
Company represents and warrants to, and agrees with, the
Underwriters that:
(i) The
Company satisfies the registrant eligibility requirements for the
use of Form S-3 under the 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.1 to such form; the
Company has filed with the Commission the Registration Statement on
such Form, including a Base Prospectus, for registration under the
Act of the offering and sale of the Shares, and the Company may
have filed
2
with the
Commission one or more amendments to such Registration Statement,
each in the form previously delivered to the Underwriters. Such
Registration Statement, as so amended, has been declared effective
by the Commission, and the Shares 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 Shares and the offering thereof
required by the 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 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)(2) or (5) a
final supplement to the Base Prospectus included in such
Registration Statement relating to the Shares and the offering
thereof, with such information as is required or permitted by the
Act and as has been provided to and approved by the Underwriters
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
Underwriters, 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 Act, or the
Commission has received payment of such filing fee.
(ii) No
order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, conformed in all
material respects to the requirements of the 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 required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading; provided , 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
Underwriters expressly for use therein; there are no contracts or
other documents required to be described in the Prospectus or to be
filed as exhibits to the Registration Statement which have not been
described or filed as required;
As used in this
subsection and elsewhere in this Agreement:
“Applicable
Time” means 7:00 p.m. (Eastern Time) on June 4,
2009.
“General
Disclosure Package” means (i) the Preliminary
Prospectus, if any, used most recently prior to the Time of
Delivery, (ii) the Issuer-Represented Free Writing
Prospectuses, if any, identified in Schedule II hereto
and (iii) any other Free Writing Prospectus that the
parties
3
hereto shall
hereafter expressly agree in writing to treat as part of the
General 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 Shares
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 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).
Each
Issuer-Represented Free Writing Prospectus, when considered
together with the General Disclosure Package as of the Applicable
Time, did not contain any untrue statement of material fact or omit
to state a material fact necessary 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.
(iii) 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 Act), was identical to the copy
thereof delivered to the Underwriters for use in connection with
the offer and sale of the Shares; 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 Act
and the rules and regulations of the Commission thereunder and do
not and will not, as of the Effective Date, and as of the
applicable filing date as to the Prospectus and any amendment or
supplement thereto, 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;
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 Underwriters expressly for use
therein;
(iv) 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 Time of
Delivery (as defined below) did not and will not contain an untrue
statement of a material fact or omit to state a
4
material fact
required to be stated therein or necessary to make to the
statements therein not misleading;
(v) The
financial statements, including the related schedules and notes,
filed with the Commission as a part of the Registration Statement
and included in the Preliminary Prospectus and the Prospectus (the
“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 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 financial statements or
supporting schedules are required to be included in the
Registration Statement the Preliminary Prospectus 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 “Summary Selected Consolidated Financial
Information” fairly present the information therein on a
basis consistent with that of the audited financial statements
contained in the Registration Statement, the Preliminary Prospectus
and the Prospectus; the income statement data and earnings per
share data for the fiscal quarters ended March 31, 2009 and
balance sheet data as of March 31, 2009 as set forth in the
Prospectus under the captions “Summary Selected Consolidated
Financial Information” fairly present the information therein
as a basis consistent with that of the unaudited financial
statements contained in the Registration Statement; to the extent
applicable, all disclosures contained in the Prospectus regarding
“non-GAAP financial measures” as such term is defined
by the rules and regulations of the Commission comply with
Regulation G of the Exchange Act, the rules and regulations
promulgated by the Commission thereunder and Item 10 of
Regulation S-K under the Act;
(vi) Dixon
Hughes PLLC, 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 and the Prospectus is an
independent registered public accounting firm as required by the
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;
(vii) The
statistical and market related data contained in the Prospectus and
Registration Statement are based on or derived from sources which
the Company believes are reliable and accurate;
(viii) This
Agreement has been duly authorized, executed and delivered by the
Company and, when duly executed by the Representative, will
constitute the valid and binding agreement of the Company
enforceable against the Company in accordance with its terms,
except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws
relating to or affecting creditors’ rights generally or by
general equitable principles and except as any indemnification or
contribution provisions thereof may be limited under applicable
securities laws;
5
(ix) Since
the date of the latest audited financial statements included in the
Registration Statement 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 Prospectus, and
there has not been any material change in the capital stock or
long-term debt of the Company or any of its subsidiaries or any
material adverse change, or any development known to the Company
that may reasonably be expected to cause a material adverse change,
in or affecting the general affairs, management, earnings,
business, properties, assets, consolidated financial position,
business prospects, stockholders’ equity or 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 Registration Statement and the Prospectus, and
(C) except for quarterly dividends on the Common Stock 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 and the Prospectus;
(x) 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 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.
(xi) The
Company is a registered bank holding company under the Bank Holding
Company Act of 1956, as amended (“BHCA”) with respect
to First Community Bank, N.A. (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 and the Prospectus and to enter into and
perform its obligations under
6
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;
(xii) 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
corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the
Registration Statement 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, result in a Material Adverse
Effect; all of the issued and outstanding capital stock 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 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, GreenPoint Insurance Group, Inc.,
a North Carolina corporation, Investment Planning Consultants, a
West Virginia corporation, Stone Capital Management, a Virginia
corporation, and FCBI Capital Trust, a Delaware statutory business
trust; 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 national banking
association and the deposit accounts of the Bank are insured up to
the applicable limits by the Federal Deposit Insurance Corporation
(the “FDIC”);
(xiii) The
Company has an authorized capitalization as set forth in 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 Prospectus, accurately and fairly
presents, in all material respects, the information required to be
shown with respect to such plans, arrangements, options and
rights;
(xiv) The
unissued Shares to be issued and sold by the Company to the
Underwriters hereunder have been duly and validly authorized and,
when issued and delivered against payment therefor as provided
herein, will be duly and validly issued and fully paid and
non-assessable and will conform to the description of the Stock
contained in the Registration
7
Statement and
the Prospectus and the issuance of the shares is not subject to the
preemptive or other similar rights of any security holder of the
Company;
(xv) Except
as described in the Registration Statement 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
Act or otherwise register any securities the Company owned or to be
owned by such person;
(xvi) 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 the Financial Industry Regulatory Authority
(“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;
(xvii) Neither
the Company nor any of its subsidiaries is in violation of its
articles of incorporation, articles of association 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
8
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;
(xviii) The
statements set forth in the Prospectus under the caption
“Description of Common Stock,” insofar as they purport
to constitute a summary of the terms of the capital stock of the
Company, and under the caption “Underwriting,” insofar
as they purport to describe the provisions of the laws and
documents referred to therein, are accurate and
complete;
(xix) Except
as disclosed in the Registration Statement and the Prospectus, the
Company and its subsidiaries are conducting their 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 Federal Reserve Board (the “FRB”), the Office
of the Comptroller of the Currency (the “OCC”) 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 material compliance
with any statute, law, rule, regulation, decision, directive or
order;
(xx) Except
as disclosed in the Registration Statement 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 Act or by the
rules and regulations of the Commission thereunder 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, 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 or to be
filed as exhibits thereto by the Act or by the rules and
regulations of the Commission thereunder which have not been so
described and filed;
(xxi) Each
of the Company and its subsidiaries possess 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
9
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;
(xxii) Except
as described in 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 in any material respect 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.
(xxiii) 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, individually or in
the aggregate, result in 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;
(xxiv) 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
10
required to be
described in the Registration Statement and the Prospectus by the
Act or by the rules and regulations of the Commission thereunder
which has not been so described;
(xxv) 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 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”);
(xxvi) There
is and has been no failure on the part of the Company or any of the
Company’s directors or officers, in their capacities as such,
to comply in all material respects with any provision of the
Sarbanes-Oxley Act of 2002 and the rules and regulations
promulgated in connection therewith (the “Sarbanes-Oxley
Act”), including Section 402 related to loans and
Sections 302 and 906 related to certifications;
(xxvii) Neither
the Company nor any of its subsidiaries, nor, to the knowledge of
the Company, 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 Stock to
facilitate the sale or resale of the Shares;
(xviii) 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;
(xxix) 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 accountability
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 (x) no material weakness in the
Company’s internal control over financial reporting (whether
or not remediated) and (y) 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;
(xxx) 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 Exchange
11
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 (x) 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 (y) 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
controls and procedures described above, there have been no
significant changes in internal controls or in other factors that
could significantly affect internal controls.
(xxxi) 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;
(xxxii) 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) are in compliance with ERISA, except where the failure to be
in compliance with ERISA would not result in a Material Adverse
Effect; “ERISA Affiliate” means, with respe
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