EXHIBIT 1.1
EXECUTION
COPY
PICO Holdings, Inc.
694,444 Shares
Common Stock
($0.001 par value)
Underwriting Agreement
June 9, 2009
ThinkEquity LLC
600 Montgomery Street
3
rd
Floor
San Francisco, California 94111
Ladies and Gentlemen:
Introductory
. PICO Holdings, Inc., a California
corporation (“ Company ”), proposes to issue and
sell (the “ Offering ”) to ThinkEquity LLC
(the “ Underwriter ”) an aggregate of 694,444
shares of the Company’s Common Stock, par value $0.001
(the “ Securities ”).
In consideration of the mutual
agreements contained herein and of the interests of the parties in
the transactions contemplated hereby, the parties hereto agree as
follows:
1. Representations and Warranties of
the Company. The Company represents and warrants to, and agrees
with, the Underwriter that:
(a) Filing and Effectiveness of
Registration Statement; Certain Defined Terms . The Company has
filed with the Commission a registration statement on Form S-3 (No.
333-147547), including a related prospectus or prospectuses,
covering the registration of the Securities under the Act, which
has become effective. “ Registration Statement ”
at any particular time means such registration statement in the
form then filed with the Commission, including any amendment
thereto, any document incorporated by reference therein
(collectively, the “ Incorporated Documents ”)
and all 430B Information and all 430C Information with respect to
such registration statement, that in any case has not been
superseded or modified. “ Registration Statement
” without reference to a time means the Registration
Statement as of the Effective Time. For purposes of this
definition, 430B Information shall be considered to be included in
the Registration Statement as of the time specified in Rule
430B.
For purposes of this
Agreement:
“ 430B Information
” means information included in a prospectus then deemed to
be a part of the Registration Statement pursuant to Rule 430B(e) or
retroactively deemed to be a part of the Registration Statement
pursuant to Rule 430B(f).
“ 430C Information
” means information included in a prospectus then deemed to
be a part of the Registration Statement pursuant to Rule
430C.
“ Act ” means the
United States Securities Act of 1933, as amended.
“ Applicable Time
” means 8:30 pm (Eastern time) on the date of this
Agreement.
“ Bring-Down Letter
” has the meaning defined in Section 6(a)
hereof.
“ Closing Date ”
has the meaning defined in Section 2 hereof.
“ Comfort Letter
” has the meaning defined in Section 6(a)
hereof.
“ Commission ”
means the United States Securities and Exchange
Commission.
“ Effective Time
” of the Registration Statement relating to the Securities
means the time of execution of this Agreement.
“ Exchange Act ”
means the United States Securities Exchange Act of 1934, as
amended.
“ Final Prospectus
” means the Statutory Prospectus that discloses the public
offering price, other 430B Information and other final terms of the
Securities and otherwise satisfies Section 10(a) of the
Act.
“ General Use Issuer Free
Writing Prospectus ” means any Issuer Free Writing
Prospectus that is intended for general distribution to prospective
investors, as evidenced by its being so specified in Schedule
I to this Agreement.
“ Issuer Free Writing
Prospectus ” means any “issuer free writing
prospectus,” as defined in Rule 433, relating to the
Securities 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).
“ Limited Use Issuer Free
Writing Prospectus ” means any Issuer Free Writing
Prospectus that is not a General Use Issuer Free Writing
Prospectus.
“ Rules and Regulations
” means the rules and regulations of the
Commission.
“ Securities Laws
” means, collectively, the United States Sarbanes-Oxley Act
of 2002 (“ Sarbanes-Oxley ”), the Act, the
Exchange Act, the Rules and Regulations, the auditing principles,
rules, standards and practices applicable to auditors of
“issuers” (as defined in Sarbanes-Oxley) promulgated or
approved by the Public Company Accounting Oversight Board and, as
applicable, the rules of The NASDAQ Stock Market (“
Exchange Rules ”).
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“ Statutory Prospectus
” with reference to any particular time means the prospectus
relating to the Securities that is included in the Registration
Statement immediately prior to that time, including all
430B Information and all 430C Information with respect to
the Registration Statement and all documents incorporated by
reference therein. For purposes of the foregoing definition,
430B Information shall be considered to be included in the
Statutory Prospectus only as of the actual time that form of
prospectus (including a prospectus supplement) is filed with the
Commission pursuant to Rule 424(b) and not
retroactively.
Unless otherwise specified, a
reference to a “Rule” is to the indicated rule under
the Act.
(b) Compliance with Securities
Act Requirements . (i) (A) At the Effective Time
relating to the Securities and (B) on the Closing Date, the
Registration Statement conformed and will conform in all material
respects to the requirements of the Act and the Rules and
Regulations, and it did not and will not include any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, and (ii) (A) on the date of the Final
Prospectus and (B) on the Closing Date, the Final Prospectus
will conform in all material respects to the requirements of the
Act and the Rules and Regulations, and will not include any untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading. The
preceding sentence does not apply to statements in or omissions
from any such document based upon written information furnished to
the Company by the Underwriter specifically for use therein, it
being understood and agreed that the only such information is that
described as such in Section 7(b) .
(c) Shelf Registration
Statement . The date of this Agreement is not more than three
years subsequent to the initial effective time of the Registration
Statement.
(d) Ineligible Issuer Status
. (i) At the earliest time after the filing of the
Registration Statement that the Company or another offering
participant made a bona fide offer (within the meaning of Rule
164(h)(2)) of the Securities and (ii) at the date of this
Agreement, the Company was not and is not an “ineligible
issuer,” as defined in Rule 405, including (x) the
Company or any subsidiary of the Company (each, a “
Subsidiary ”) in the preceding three years not having
been convicted of a felony or misdemeanor or having been made the
subject of a judicial or administrative decree or order as
described in Rule 405 and (y) the Company in the preceding
three years not having been the subject of a bankruptcy petition or
insolvency or similar proceeding, not having had a registration
statement be the subject of a proceeding under Section 8 of
the Act and not being the subject of a proceeding under
Section 8A of the Act in connection with the offering of the
Securities, all as described in Rule 405. The Company is eligible
to use Form S-3 for the Offering.
(e) General Disclosure
Package . As of the Applicable Time, neither (i) the
General Use Issuer Free Writing Prospectus(es) issued at or prior
to the Applicable Time and any preliminary prospectus supplement,
including the base prospectus, dated December 3, 2007 (which
is the most recent Statutory Prospectus distributed to investors
generally), and the other information, if any, stated in
Schedule I to this Agreement to be included in the General
Disclosure Package, all considered together (collectively, the
“ General Disclosure Package ”), nor
(ii) any individual Limited Use Issuer Free Writing
Prospectus, when considered together with the General Disclosure
Package, included any untrue statement of a material fact or
omitted to state any material fact necessary in order to make the
statements therein, in the light of the circumstances
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under which they were made, not
misleading. The preceding sentence does not apply to statements in
or omissions from any Statutory Prospectus or any Issuer Free
Writing Prospectus in reliance upon and in conformity with written
information furnished to the Company by the Underwriter
specifically for use therein, it being understood and agreed that
the only such information is that described as such in
Section 7(b) .
(f) Issuer Free Writing
Prospectuses . Each Issuer Free Writing Prospectus, as of its
issue date did not include any information that conflicted with the
information then contained in the Registration Statement. If, at
any time following issuance of an Issuer Free Writing Prospectus
through the completion of the offer and sale of the Securities,
there occurred or occurs an event or development as a result of
which such Issuer Free Writing Prospectus conflicted or would
conflict with the information then contained in the Registration
Statement or as a result of which such Issuer Free Writing
Prospectus, if republished immediately following such event or
development, would include an untrue statement of a material fact
or omitted or would 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,
(i) the Company has promptly notified or will promptly notify
the Underwriter and (ii) the Company has promptly amended or
will promptly amend or supplement such Issuer Free Writing
Prospectus to eliminate or correct such conflict, untrue statement
or omission.
(g) Good Standing of the
Company . The Company has been duly incorporated and is
existing and in good standing under the laws of the State of
California, with corporate power and authority to own its
properties and conduct its business as described in the General
Disclosure Package; and the Company is duly qualified to do
business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification, except to the
extent that the failure to be so qualified or in good standing
would not, individually or in the aggregate, result in a material
adverse effect on the condition (financial or otherwise), results
of operations, business or properties of the Company and its
Subsidiaries taken as a whole (a “ Material Adverse
Effect ”).
(h) Subsidiaries . Each
Subsidiary of the Company that is a “significant
subsidiary” of the Company within the meaning of Rule 1-02(w)
of Regulation S-X has been duly organized, and each Subsidiary is
existing and in good standing under the laws of the jurisdiction of
its organization, with power and authority (corporate and other) to
own its properties and conduct its business as described in the
General Disclosure Package; and each Subsidiary of the Company is
duly qualified to do business as a foreign entity in good standing
in all other jurisdictions in which its ownership or lease of
property or the conduct of its business requires such
qualification, except to the extent that the failure to be so
qualified or in good standing would not, individually or in the
aggregate, result in a Material Adverse Effect; all of the issued
and outstanding capital stock or similar equity interests of each
Subsidiary of the Company has been duly authorized and validly
issued and is fully paid and nonassessable; and the capital stock
(or similar equity interests) of each Subsidiary owned by the
Company, directly or through Subsidiaries, is owned free from
liens, encumbrances and defects.
(i) Securities . The
Securities and all other outstanding shares of capital stock of the
Company have been duly authorized; the authorized equity
capitalization of the Company is as set forth in the General
Disclosure Package; all outstanding shares of capital stock of the
Company are, and, when the Securities have been delivered and paid
for in accordance with this Agreement on the Closing Date, the
Securities will have been, validly issued, fully paid
and
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nonassessable, will conform to the
information in the General Disclosure Package and to the
description of the Securities contained in the Final Prospectus;
the shareholders of the Company have no preemptive rights with
respect to the Securities; and none of the outstanding shares of
capital stock of the Company have been issued in violation of any
preemptive or similar rights of any security holder.
(j) No Finder’s Fee .
Except as disclosed in the General Disclosure Package, 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 in connection with this Offering.
(k) Registration Rights .
Except as disclosed in the General Disclosure Package, there are no
contracts, agreements or understandings between the Company and any
person granting such person the right to require the Company to
include securities held by such person in this Offering.
(l) Listing. The
Company’s Common Stock, par value $0.001, is registered under
Section 12(b) of the Exchange Act and listed on The NASDAQ
Global Market.
(m) Absence of Further
Requirements . No consent, approval, authorization, or order
of, or filing or registration with, any person (including any
governmental agency or body or any court) is required for the
consummation by the Company of the transactions contemplated by
this Agreement in connection with the Offering, except such as have
been obtained, or made and such as may be required under state
securities or Blue Sky laws or the bylaws and rules of the
Financial Industry Regulatory Authority, Inc. (“ FINRA
”) in connection with the Offering.
(n) Title to Property .
Except as disclosed in the General Disclosure Package, the Company
and its Subsidiaries have good and marketable title to all real
properties (including all water rights of the Company and its
Subsidiaries described in the General Disclosure Package, subject
to the qualifications and conditions contained in, and with respect
to transfers, any consents and approvals required under, any
underlying water rights permits or applicable law) owned by them,
in each case free from liens, charges, encumbrances and defects
that would materially affect the aggregate value thereof or
materially interfere with the aggregate use made or to be made
thereof by them and, except as disclosed in the General Disclosure
Package, the Company and its Subsidiaries hold any leased real or
personal property under valid and enforceable leases with no terms
or provisions that would materially interfere with the aggregate
use made or to be made thereof by them.
(o) Absence of Defaults and
Conflicts Resulting from Transaction . Except for that certain
Underwriting Agreement dated June 4, 2009, by and between the
Company and the Underwriter, the execution, delivery and
performance of this Agreement and the issuance and sale of the
Securities will not result in a breach or violation of any of the
terms and provisions of, or constitute a default or a Debt
Repayment Triggering Event (as defined below) under, or result in
the imposition of any lien, charge or encumbrance upon any property
or assets of the Company or any of its Subsidiaries pursuant to,
(i) the charter or by-laws of the Company or any of its
Subsidiaries, (ii) any statute, rule, regulation or order of
any governmental agency or body or any court, domestic or foreign,
having jurisdiction over the Company or any of its Subsidiaries or
any of their properties, or (iii) any 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 properties of the Company or any of its Subsidiaries is
subject, except in the cases of
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clauses (ii) and (iii), any
breach, violation, default, lien, charge or encumbrance that would
not, individually or in the aggregate, result in a Material Adverse
Effect; a “ Debt Repayment Triggering Event ”
means any event or condition that gives, or with the giving of
notice or lapse of time would give, 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 of its Subsidiaries.
(p) Absence of Existing Defaults
and Conflicts . Neither the Company nor any of its Subsidiaries
is in violation of its respective charter or by-laws or in default
(or with the giving of notice or lapse of time would be in default)
under any existing obligation, agreement, covenant or condition
contained in any indenture, loan agreement, mortgage, lease or
other agreement or instrument to which any of them is a party or by
which any of them is bound or to which any of the properties of any
of them is subject, except such defaults that would not,
individually or in the aggregate, result in a Material Adverse
Effect.
(q) Authorization of
Agreements . This Agreement has been duly authorized, executed
and delivered by the Company and constitutes a valid and binding
obligation of the Company enforceable in accordance with its terms,
except that (a) the validity of the indemnification and
contribution provisions of Section 7 of this Agreement
may be limited by public policy considerations, and (b) the
validity of Section 7 of this Agreement may be limited
by the public policy of the State of New York, and may be subject
to the discretion of the United States federal or New York State
courts with respect to venue, as provided in 28 U.S.C.
Section 1404(a) and/or New York CPLR Section 510,
respectively.
(r) Possession of Licenses and
Permits . The Company and its Subsidiaries possess all
certificates, authorizations, franchises, licenses and permits
(“ Licenses ”) necessary to the conduct of the
business now conducted by them and are not in violation of, and
have not received any notice of proceedings relating to the
revocation or modification of, any Licenses except where such
violation would or such proceedings if determined adversely to the
Company or any of its Subsidiaries would, in each case,
individually or in the aggregate, have a Material Adverse
Effect.
(s) Absence of Labor Dispute
. No labor dispute with the employees of the Company or any of its
Subsidiaries exists or, to the knowledge of the Company, is
imminent that could have a Material Adverse Effect.
(t) Possession of Intellectual
Property . The Company and its Subsidiaries own, or have the
right to use, inventions, know-how, patents, copyrights, trademarks
and other proprietary rights (collectively, “ intellectual
property rights ”) as are necessary to operate the
business as currently conducted. The Company and its Subsidiaries
have not received any written notice of infringement of the
intellectual property rights of any third party, which
infringement, if determined adversely to the Company or any of its
Subsidiaries, would individually or in the aggregate have a
Material Adverse Effect.
(u) Environmental Laws .
Except as disclosed in the General Disclosure Package and in each
case as would not individually or in the aggregate have a Material
Adverse Effect, (a)(i) to the knowledge of the Company,
neither the Company nor any of its Subsidiaries is in violation of,
or has any liability under, any federal, state, local or non-U.S.
statute, law, rule, regulation, ordinance, code, other requirement
or rule of law (including common law), or decision or order of any
governmental agency, governmental body or court, relating to
pollution, to the use, handling,
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transportation, treatment, storage,
discharge, disposal or release of Hazardous Substances, to the
protection or restoration of the environment or natural resources
(including biota), to health and safety including as such relates
to exposure to Hazardous Substances, and to natural resource
damages (collectively, “Environmental Laws ”),
(ii) neither the Company nor any of its Subsidiaries owns,
occupies, operates or uses any real property contaminated with
Hazardous Substances, (iii) neither the Company nor any of its
Subsidiaries is conducting or funding any investigation,
remediation, remedial action or monitoring of actual or suspected
Hazardous Substances in the environment, (iv) to the knowledge
of the Company, neither the Company nor any of its Subsidiaries is
liable or allegedly liable for any release or threatened release of
Hazardous Substances, including at any off-site treatment, storage
or disposal site, (v) to the knowledge of the Company, neither
the Company nor any of its Subsidiaries is subject to any claim by
any governmental agency or governmental body or person relating to
Environmental Laws or Hazardous Substances, and (vi) the
Company and its Subsidiaries have received and are in compliance
with all, and have no liability under any, permits, licenses,
authorizations, identification numbers or other approvals required
under applicable Environmental Laws to conduct their respective
businesses; and (b) to the knowledge of the Company, there are
no facts or circumstances that would reasonably be expected to
result in a violation of, liability under, or claim pursuant to any
Environmental Law. For purposes of this Section 1(u)
“Hazardous Substances” means (A) petroleum
and petroleum products, by-products or breakdown products,
radioactive materials, asbestos-containing materials,
polychlorinated biphenyls and mold, and (B) any other
chemical, material or substance defined or regulated as toxic or
hazardous or as a pollutant, contaminant or waste under
Environmental Laws.
(v) Accurate Disclosure . The
statements in the General Disclosure Package and the Final
Prospectus under the headings “Tax Matters,”
“Description of Capital Stock,” and “Legal
Proceedings,” insofar as such statements summarize
agreements, documents or proceedings discussed therein, are fair
summaries of such agreements, documents or proceedings.
(w) Offering Material . The
Company has not distributed, and will not distribute prior to the
Closing Date, any offering material in connection with the Offering
other than any preliminary prospectuses, any Issuer Free Writing
Prospectus, the Final Prospectus and the Registration
Statement.
(x) Absence of Manipulation .
The Company has not taken, directly or indirectly, any action that
is designed to or that has constituted or that would reasonably be
expected to cause or result in the stabilization or manipulation of
the price of any security of the Company to facilitate the sale or
resale of the Securities.
(y) Internal Controls and
Compliance with the Sarbanes-Oxley Act . Except as set forth in
the General Disclosure Package, the Company, its Subsidiaries and,
to the Company’s knowledge, the Company’s Board of
Directors (the “ Board ”) are in compliance in
all material respects with Sarbanes-Oxley and all applicable
Exchange Rules. The Company maintains internal controls over
financial reporting and disclosure controls and procedures, each as
defined in Rule 13a-15 under the Exchange Act and a system of
internal controls over accounting matters (collectively, “
Internal Controls ”) that are designed to provide
reasonable assurances that (i) transactions are executed in
accordance with management’s general or specific
authorizations, (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with
generally accepted accounting principles of the United States
(“ GAAP ”) and to maintain accountability for
assets, (iii) access to assets is permitted only in accordance
with
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management’s general or
specific authorization and (iv) the recorded accountability
for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any
differences. The Internal Controls are overseen by the Audit
Committee (the “ Audit Committee ”) of the Board
in accordance with Exchange Rules. Since the date of the latest
audited financial statements included in the General Disclosure
Package, the Company has not identified (i) any material
weakness in the Company’s internal control over financial
reporting (whether or not remediated) or (ii) any 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. Since the later of the date of the Company’s last
quarterly report on Form 10-Q or annual report on Form 10-K, the
Company has not determined that its disclosure controls and
procedures are ineffective to perform the functions for which they
were established.
(z) Litigation . Except as
disclosed in the General Disclosure Package, there are no pending
or, to the knowledge of the Company, threatened actions, suits or
proceedings (including any inquiries or investigations by any court
or governmental agency or body) against or affecting the Company,
any of its Subsidiaries or any of their respective properties that,
if determined adversely to the Company or any of its Subsidiaries,
would individually or in the aggregate have a Material Adverse
Effect, or would materially and adversely affect the ability of the
Company to perform its obligations under this Agreement.
(aa) Financial Statements .
The financial statements included in the Registration Statement and
the General Disclosure Package present fairly in all material
respects the financial position of the Company and its consolidated
Subsidiaries as of the dates shown and their results of operations
and cash flows for the periods shown, and such financial statements
have been prepared in conformity with GAAP applied on a consistent
basis.
(bb) No Material Adverse Change
in Business . Except as disclosed in the General Disclosure
Package, since the end of the period covered by the latest audited
financial statements included in the General Disclosure Package
(i) there has been no material adverse change in the condition
(financial or otherwise), results of operations, business or
properties of the Company and its Subsidiaries, taken as a whole,
(ii) there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital
stock, and (iii) there has been no material adverse change in
the capital stock, short-term indebtedness, long-term indebtedness,
net current assets or net assets of the Company and its
Subsidiaries.
(cc) Investment Company Act .
The Company is not and, after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof
as described in the General Disclosure Package, will not be an
“investment company” as defined in the Investment
Company Act of 1940 (the “ Investment Company Act
”).
(dd) FCPA; Anti-Money
Laundering . To the Company’s knowledge, each of the
Company, its Subsidiaries, and any of their respective officers,
directors, agents, or employees, that it has not violated and its
participation in the Offering will not violate any of the following
laws: (a) anti-bribery laws, including but not limited to, any
applicable law, rule, or regulation of any locality, including but
not limited to any law, rule, or regulation promulgated to
implement the OECD Convention on Combating Bribery of Foreign
Public Officials in International Business Transactions, signed
December 17, 1997, including the U.S. Foreign Corrupt
Practices Act of 1977 or any other law, rule or regulation of
similar purpose and scope, (b) anti-money
laundering
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laws, including but not limited to,
applicable federal, state, international, foreign or other laws,
regulations or government guidance regarding anti-money laundering,
including, without limitation, Title 18 U.S. Code section 1956 and
1957, the Patriot Act, the Bank Secrecy Act, and international
anti-money laundering principals or procedures by an
intergovernmental group or organization, such as the Financial
Action Task Force on Money Laundering, of which the United States
is a member and with which designation the United States
representative to the group or organization continues to concur,
all as amended, and any Executive order, directive, or regulation
pursuant to the authority of any of the foregoing, or any orders or
licenses issued thereunder, or (c) laws and regulations
imposing U.S. economic sanctions measures, including, but not
limited to, the International Emergency Economic Powers Act, the
Trading with the Enemy Act, the United Nations Participation Act,
and the Syria Accountability and Lebanese Sovereignty Act, all as
amended, and any Executive Order, directive, or regulation pursuant
to the authority of any of the foregoing, including the regulations
of the United States Treasury Department set forth under 31 CFR,
Subtitle B, Chapter V, as amended, or any orders or licenses issued
thereunder.
(ee) Tax Returns . The
Company and its Subsidiaries have filed all U.S. federal, state,
local and non-U.S. tax returns that are required to be filed or
have requested extensions thereof (except in any case in which the
failure so to file would not have a Material Adverse Effect); and,
except as set forth in the General Disclosure Package, the Company
and its Subsidiaries have paid all taxes (including any
assessments, fines or penalties) required to be paid by them,
except for any such taxes, assessments, fines or penalties
currently being contested in good faith or as would not,
individually or in the aggregate, have a Material Adverse
Effect.
(ff) Insurance. The
Company and its Subsidiaries are insured by insurers against such
losses and risks and in such amounts as the Company deems adequate;
all policies of insurance and fidelity or surety bonds insuring the
Company or any of its Subsidiaries or their respective businesses,
assets, employees, officers and directors are in full force and
effect; and the Company and its Subsidiaries are in compliance with
the terms of such policies and instruments in all material
respects.
(gg) Exemption from FINRA
Filing . As of the date of this Agreement, the Company
satisfies the eligibility requirements in existence prior to
October 21, 1992 for the use of a registration statement on
Form S-3 for the offering of the Securities.
2. Purchase, Sale and Delivery of
the Securities.
(a) On the basis of the
representations, warranties and covenants herein contained, and
subject to the conditions herein set forth, the Company agrees to
sell to the Underwriter and the Underwriter agrees to purchase, at
a price of $25.65 per share, the Securities.
(b) Payment for the Securities to be
sold hereunder is to be made in Federal (same day) funds against
delivery of certificates therefor to the Underwriter. Such payment
and delivery are to be made through the facilities of The
Depository Trust Company, New York, New York at 10:00 am (Eastern
time), on the fourth business day after the date of this Agreement
or at such other time and date not later than five business days
thereafter as the Underwriter and the Company shall agree upon,
such time and date being herein referred to as the “
Closing Date .” As used herein, “ business
day ” means a day on which the New York Stock Exchange
and The NASDAQ Stock Market are open for trading and on which banks
in New York are open for business and are not permitted by law or
executive order to be closed.
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3. Offering by the
Underwriter.
It is understood that the
Underwriter is to make a public offering of the Securities as soon
as the Underwriter deems it advisable to do so. The Securities are
to be initially offered to the public at the initial public
offering price set forth in the Prospectus. The Underwriter may
from time to time thereafter change the public offering price and
other selling terms.
4. Certain Agreements of the
Company . The Company agrees with the Underwriter
that:
(a) Filing of Prospectuses.
The Company has filed or will file each Statutory Prospectus
(including the Final Prospectus) pursuant to and in accordance with
Rule 424(b)(2) (or, if applicable and consented to by the
Underwriter, subparagraph (5)) not later than the second
business day following the earlier of the date it is first used and
the execution and delivery of this Agreement. The Company has
complied and will comply with Rule 433 with respect to a
prospectus relating to the Securities.
(b) Filing of Amendments;
Response to Commission Requests . The Company will promptly
advise the Underwriter of any proposal to amend or supplement the
Registration Statement or any Statutory Prospectus at any time
(including by incorporation by reference of any report filed under
the Exchange Act) and will offer the Underwriter a reasonable
opportunity to comment on any such amendment or supplement; and the
Company will also advise the Underwriter promptly of (i) the
filing of an
