1,100,000 SHARES
HEARTLAND BANCSHARES, INC.
COMMON STOCK
UNDERWRITING AGREEMENT
September 26, 1997
Xxxxx & Co., L.L.C.
Xxx Xxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
Dear Sirs:
Heartland Bancshares, Inc., an Indiana corporation (the"COMPANY"),
proposes to issue and sell 1,100,000 shares (the "FIRM SHARES") of its
authorized but unissued Common Stock (the "COMMON STOCK") to Xxxxx & Co.,
L.L.C., a Delaware limited liability company ("XXXXX & CO." or "UNDERWRITER").
In addition, the Company proposes to grant to the Underwriter an option to
purchase up to an additional 165,000 shares (the "OPTIONAL SHARES") to cover
over-allotments. The Firm Shares and the Optional Shares are called,
collectively, the "SHARES."
1. SALE AND PURCHASE OF THE SHARES.
(a) On the basis of the representations, warranties and agreements of the
Company contained in, and subject to the terms and conditions of, this
Agreement, the Company agrees to issue and sell to the Underwriter,
and the Underwriter agrees to purchase the Firm Shares at a purchase
price of $9.30 per Share, except as set forth in Section 1(b) below.
(b) On the basis of the representations, warranties and agreements of the
Company contained in, and subject to the terms and conditions of, this
Agreement, and pursuant to directions from the Company, the
Underwriter will offer to sell to each of the persons named in a list
provided by the Company to the Underwriter (who may purchase alone or
with family members to the extent permitted by the Free-Riding and
Withholding Interpretation (the "INTERPRETATION") under the Rules of
Fair Practice of the National Association of Securities Dealers, Inc.
(the "NASD")) the number of Shares set forth opposite their respective
names on the list. To the extent such persons (alone or with such
members) buy such Shares, the Underwriter agrees to purchase up to
200,000 of the Shares at a purchase price of $9.60 per Share. The
parties agree that the securities purchased and sold under this
subparagraph to the Company's employees and directors shall constitute
"issuer directed securities" under the Interpretation. The provisions
of this Section 1(b) shall not affect the Underwriter's right, with
respect to persons who are not employees or directors of the Company,
to withdraw, cancel or modify orders or to reject orders in whole or
in part.
(c) On the basis of the representations, warranties and agreements of the
Company contained in, and subject to the terms and conditions of, this
Agreement, the Company grants to the Underwriter an option to purchase
all or any part of the Optional Shares at a price per Share of $9.40
for any of the first 100,000 Optional Shares purchased and $9.30 for
any of the remaining 65,000 Optional Shares purchased. The
over-allotment option may be exercised only to cover over-allotments
in the sale of the Firm Shares by the Underwriter and may be exercised
in whole or in part at any time or times on or before 12:00 noon,
Detroit time, on the day before the Firm Shares Closing Date (as
defined in Section 2 below), and only once at any time after that date
and within 30 days after the Effective Date (as defined in Section 4
below), in each case upon written or transmitted facsimile notice, or
verbal notice confirmed by transmitted facsimile, written or
telegraphic notice, by Xxxxx & Co. to the Company no later than 12:00
noon, Detroit time, on the day before the Firm Shares Closing Date or
at least three but not more than five full business days before the
Optional Shares Closing Date (as defined in Section 2 below), as the
case may be, setting forth the number of Optional Shares to be
purchased and the time and date (if other than the Firm Shares Closing
Date) of such purchase.
2. DELIVERY AND PAYMENT. Delivery by the Company of the Firm Shares to
Xxxxx & Co. and payment of the purchase price by wire transfer of funds to the
Company, shall take place at the offices of Xxxxx & Co., Xxx Xxxxxxxx, Xxxxxxx,
Xxxxxxxx 00000, at 10:00 a.m., Detroit time, at such time and date, not later
than the third (or, if the Firm Shares are priced, as contemplated by Rule
15c6-1(c)under the Securities Exchange Act of 1934, as amended (the "EXCHANGE
ACT"), after 4:30 p.m., Washington, D.C. time, the fourth) full business day
following the first date that any of the Shares are released by the Underwriter
for sale to the public, as Xxxxx & Co. shall designate by at least 48 hours
prior notice to the Company (the "FIRM SHARES CLOSING DATE"); provided, however,
that if the Prospectus (as defined in Section 4 below) is at any time prior to
the Firm Shares Closing Date recirculated to the public, the Firm Shares Closing
Date shall occur upon the later of the third or fourth, as the case the may be,
full business day following the first date that any of the Shares are released
by the Underwriter for sale to the public or the date that is 48 hours after the
date that the Prospectus has been so recirculated. To the extent the option with
respect to the Optional Shares is exercised, delivery by the Company of the
Optional Shares, and payment of the purchase price by wire transfer of funds to
the Company, shall take place at the offices of Roney& Co. specified above at
the time and on the date (which may be the Firm Shares Closing Date) specified
in the notice referred to in Section l(c) (such time and date of delivery and
payment are called the "OPTIONAL SHARES CLOSING DATE"). The Firm Shares Closing
Date and the Optional Shares Closing Date are called, individually, a "CLOSING
DATE" and, collectively, the "CLOSING DATES." Certificates representing the Firm
Shares shall be registered in such names and shall be in such denominations as
Xxxxx & Co. shall request at least two full business days before the Firm Shares
Closing Date or, in the case of the Optional Shares, on the day of notice of
exercise of the option as described in Section l(c), and shall be made available
to Xxxxx & Co. for checking and packaging, at such place as is designated by
Xxxxx & Co., at least one full business day before the Closing Date.
3. PUBLIC OFFERING. The Company understands that the Underwriter
proposes to make a public offering of the Shares, as set forth in and pursuant
to the Prospectus, as soon after the Effective Date as Xxxxx & Co. deems
advisable. The Company hereby confirms that the Underwriter and dealers have
been authorized to distribute each preliminary prospectus and are authorized to
distribute the Prospectus (as from time to time amended or supplemented).
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to the Underwriter and agree with the Underwriter as
follows:
(a) The Company has carefully prepared in conformity with the requirements
of the Securities Act of 1933, as amended (the "SECURITIES ACT") and
the rules and regulations adopted by the Securities and Exchange
Commission (the "COMMISSION") thereunder (the "RULES"), a registration
statement on Form SB-2 (No. 333-32245), including a preliminary
prospectus, and has filed with the Commission the registration
statement and such amendments thereof as may have been required to the
date of this Agreement. Copies of such registration statement
(including all amendments thereof) and of the related preliminary
prospectus have heretofore been delivered by the Company to you. The
term "PRELIMINARY PROSPECTUS" means any preliminary prospectus (as
defined in Rule 430 of the Rules) included at any time as a part of
the registration statement. The registration statement as amended
(including any supplemental registration statement under Rule 462(b)
or any amendment under Rule 462(c) of the Rules) at the time and on
the date it becomes effective (the "EFFECTIVE DATE"), including the
prospectus, financial statements, schedules, exhibits, and all other
documents incorporated by reference therein or filed as a part
thereof, is called the "REGISTRATION STATEMENT;" provided, however,
that "REGISTRATION STATEMENT" shall also include all Rule 430A
Information (as defined below) deemed to be included in such
Registration Statement at the time such Registration Statement becomes
effective as provided by Rule 430A of the Rules. The term "PROSPECTUS"
means the Prospectus as filed with the Commission pursuant to Rule
424(b) of the Rules or, if no filing pursuant to Rule 424(b) of the
Rules is required, means the form of final prospectus included in the
Registration Statement at the time such Registration Statement becomes
effective. The term "RULE 430A INFORMATION" means information with
respect to the Shares and the offering thereof permitted to be omitted
from the Registration Statement when it becomes effective pursuant to
Rule 430A of the Rules. Reference made herein to any preliminary
prospectus or to the Prospectus shall be deemed to refer to and
include any document attached as an exhibit thereto or incorporated by
reference therein, as of the date of such preliminary prospectus or
the Prospectus, as the case may be. The Company will not file any
amendment of the Registration Statement or supplement to the
Prospectus to which Xxxxx & Co. shall reasonably object in writing
after being furnished with a copy thereof.
(b) Each preliminary prospectus, at the time of filing thereof, contained
all material statements which were required to be stated therein in
accordance with the Securities Act and the Rules, and conformed in all
material respects with the requirements of the Securities Act and the
Rules, and did 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 light of the circumstances under which they
were made, not misleading. The Commission has not issued any order
suspending or preventing the use of any preliminary prospectus. When
the Registration Statement shall become effective, when the Prospectus
is first filed pursuant to Rule 424(b) of the Rules, when any
post-effective amendment of the Registration Statement shall become
effective, when any supplement to or pre-effective amendment of the
Prospectus is filed with the Commission and at each Closing Date, the
Registration Statement and the Prospectus (and any amendment thereof
or supplement thereto) will comply with the applicable provisions of
the Securities Act and the Exchange Act and the respective rules and
regulations of the Commission thereunder, and neither the Registration
Statement nor the Prospectus, nor any amendment thereof or supplement
thereto, will contain any untrue statement of a material fact or will
omit to state any 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; provided,
however, that the Company makes no representation or warranty as to
the information contained in the Registration Statement or the
Prospectus or any amendment thereof or supplement thereto in reliance
upon and in conformity with information furnished in writing to the
Company by the Underwriter, specifically for use in connection with
the preparation thereof.
(c) All contracts and other documents required to be filed as exhibits to
the Registration Statement have been filed with the Commission as
exhibits to the Registration Statement.
(d) Xxxxx Xxxxxx & Co., whose report is filed with the Commission as part
of the Registration Statement, are, and during the periods covered by
their report were, independent public accountants as required by the
Securities Act and the Rules.
(e) The Company and its subsidiary, Heartland Community Bank, an Indiana
chartered commercial bank (the "BANK"), have been duly organized and
are validly existing as a corporation or banking corporation, as
applicable, under the laws of the State of Indiana. Neither the
Company nor the Bank have any properties or conduct any business
outside of the State of Indiana which would require either of them to
be qualified as a foreign corporation or bank, as the case may be, in
any jurisdiction outside of Indiana. Neither the Company nor the Bank
has any directly or indirectly held subsidiary other than the Bank.
The Company has all power, authority, authorizations, approvals,
consents, orders, licenses, certificates and permits needed to enter
into, deliver and perform this Agreement and to issue and sell the
Shares.
(f) The application for permission to organize the Bank (the "DFI
APPLICATION") was approved by the Indiana Department of Financial
Institutions (the "DFI") on September 25, 1997, subject to certain
conditions specified in the Order and supplemental correspondence from
the DFI dated the same date. The Order of the DFI and supplemental
correspondence from the DFI are collectively referred to in this
Agreement as the "DFI ORDER." All conditions contained in the DFI
Order required to be satisfied before the date of this Agreement have
been satisfied. The application to the Federal Deposit Insurance
Corporation (the "FDIC") to become an insured depository institution
under the provisions of the Federal Deposit Insurance Act (the "FDIC
APPLICATION") was approved by order of the FDIC dated September 25,
1997 (the "FDIC ORDER"), subject to certain conditions specified in
the Order. All conditions contained in the FDIC Order required to be
satisfied before the date of this Agreement have been satisfied. The
Company's application to become a bank holding company and acquire all
issued capital stock of the Bank and the Bank's application to become
a member of the Federal Reserve System (collectively, the "BANK
HOLDING COMPANY APPLICATION") under the Bank Holding Company Act of
1956, as amended, was approved on September 17, 1997 (collectively,
the "FEDERAL RESERVE BOARD APPROVAL"), subject to certain conditions
specified in the Federal Reserve Board Approval. All conditions in the
Federal Reserve Board Approval required to be satisfied before the
date of this Agreement have been satisfied. Each of the DFI
Application, FDIC Application, and Bank Holding Company Application,
at the time of their respective filings, contained all required
information and such information was complete and accurate in all
material respects. Other than the remaining conditions to be fulfilled
under the DFI Order, FDIC Order and the Federal Reserve Board Approval
specified above, no authorization, approval, consent, order, license,
certificate or permit of and from any federal, state, or local
governmental or regulatory official, body, or tribunal, is required
for the Company or the Bank to commence and conduct their respective
businesses and own their respective properties as described in the
Prospectus, except such authorizations, approvals, consents, orders,
licenses, certificates, or permits as are not material to the
commencement or conduct of their respective businesses or to the
ownership of their respective properties.
(g) The financial statements of the Company and any related notes thereto,
included in the Registration Statement and the Prospectus, present
fairly the financial position of the Company as of the date of such
financial statements and for the period covered thereby. Such
statements and any related notes have been prepared in accordance with
generally accepted accounting principals applied on a consistent basis
and certified by the independent accountants named in subsection 4(d)
above. No other financial statements are required to be included in
the Prospectus or the Registration Statement.
(h) The Company owns adequate and enforceable rights to use any patents,
patent applications, trademarks, trademark applications, service
marks, copyrights, copyright applications and other similar rights
(collectively, "INTANGIBLES") necessary for the conduct of the
material aspects of its business as described in the Prospectus and
the Company has not infringed, is infringing, or has received any
notice of infringement of, any Intangible of any other person.
(i) The Company owns its main office located at 000 X. Xxxxxx Xxxxxx,
Xxxxxxxx, Xxxxxxx, and has a valid and enforceable leasehold interest
in the real property in which its branch facility is located at 000
Xxxxx Xxxxx Xxxx 000, Xxxxxxxxx, Xxxxxxx, both of which are as
described in the Prospectus and are, except as otherwise described in
the Prospectus, free and clear of all liens, encumbrances, claims,
security interests and defects.
(j) There are no litigation or governmental or other proceedings or
investigations pending before any court or before or by any public
body or board or threatened against the Company or the Bank and to the
best of the Company's knowledge, there is no reasonable basis for any
such litigation, proceedings or investigations, which would have a
material adverse effect on commencement or conduct of the respective
businesses of the Company or the Bank or the ownership of their
respective properties.
(k) The Company and Bank have filed all federal, state, and local tax
returns required to be filed by them and paid all taxes shown due on
such returns as well as all other material taxes, assessments and
governmental charges which have become due; no material deficiency
with respect to any such return has been assessed or proposed.
(l) Subsequent to the respective dates as of which information is given in
the Registration Statement and the Prospectus, there has not been any
material adverse change in the condition (financial or other),
business, properties or prospects of the Company.
(m) No default exists, and no event has occurred which with notice or
lapse of time, or both, would constitute a default, in the due
performance and observance of any material term, covenant or
condition, by the Company, the Bank or, to the best of the Company's
knowledge, any other party, of any lease, indenture, mortgage, note or
any other agreement or instrument to which the Company or the Bank is
a party or by which either of them or either of their businesses may
be bound or affected, except such defaults or events as are not
material to the commencement or conduct of their respective businesses
or ownership of their respective properties.
(n) Neither the Company nor the Bank is in violation of any term or
provision of the articles of incorporation or bylaws of the Company or
the Bank. Neither the Company nor the Bank is in violation of, nor is
either of them required to take any action to avoid any material
violation of, any franchise, license, permit, judgment, decree, order,
statute, rule or regulation.
(o) Neither the execution, delivery or performance of this Agreement by
the Company nor the consummation of the transactions contemplated
hereby (including, without limitation, the issuance and sale by the
Company of the Shares) will give rise to a right to terminate or
accelerate the due date of any payment due under, or conflict with or
result in the breach of any term or provision of, or constitute a
default (or an event which with notice or lapse of time, or both,
would constitute a default) under, or require any consent under, or
result in the execution or imposition of any lien, charge or
encumbrance upon any properties or assets of the Company or the Bank
pursuant to the terms of, any lease, indenture, mortgage, note or
other agreement or instrument to which the Company or the Bank is a
party or by which either of them or either of their businesses may be
bound or affected, or any franchise, license, permit, judgment,
decree, order, statute, rule or regulation or violate any provision of
the articles of incorporation or bylaws of the Company or the Bank,
except those which are immaterial in amount or effect.
(p) The Company has authorized capital stock as set forth in the
Prospectus. One share of Common Stock of the Company is issued and
outstanding, which will be redeemed at or promptly following the
Closing if permitted by applicable law. No shares of preferred stock
are issued and outstanding. The issuance, sale and delivery of the
Shares have been duly authorized by all necessary corporate action by
the Company and, when issued, sold and delivered against payment
therefor pursuant to this Agreement, will be duly and validly issued,
fully paid and nonassessable and none of them will have been issued in
violation of any preemptive or other right. Upon issuance, sale, and
delivery thereof against payment therefor pursuant to the subscription
agreement, all of the capital stock of the Bank will be duly
authorized and validly issued, fully paid and nonassessable and will
be owned by the Company, free and clear of all liens, encumbrances and
security interests (subject to the provisions of the Indiana Financial
Institutions Act, as amended (the "BANKING CODE")). There is no
outstanding option, warrant or other right calling for the issuance
of, and no commitment, plan or arrangement to issue, any share of
stock of the Company or the Bank or any security convertible into or
exchangeable for stock of the Company or the Bank, except for stock
options described in the Registration Statement (the "STOCK OPTIONS")
under the 1997 Stock Option Plan and the 1997 Stock Option Plan For
Nonemployee Directors (collectively, the "STOCK OPTION PLANS"). The
Common Stock, the Shares and the Stock Options conform to all
statements in relation thereto contained in the Registration Statement
and the Prospectus.
(q) Subsequent to the respective dates as of which information is given in
the Registration Statement and the Prospectus, neither the Company nor
the Bank has (1) issued any securities or incurred any material
liability or obligation, direct or contingent, (2) entered into any
material transaction, or (3) declared or paid any dividend or made any
distribution on any of their stock, except liabilities, obligations,
and transactions reasonably expected based on the disclosures in the
Prospectus, and redemption of one share of Common Stock for $10 at or
promptly following the Closing if permitted by applicable law.
(r) This Agreement has been duly and validly authorized, executed and
delivered by the Company and is the legal, valid and binding agreement
and obligation of the Company.
(s) The Commission has not issued any order preventing or suspending the
use of any preliminary prospectus.
(t) Neither the Company, nor the Bank, nor, to the Company's knowledge any
director, officer, agent, employee or other person associated with the
Company or the Bank, acting on behalf of the Company or the Bank, has
used any corporate funds for any unlawful contribution, gift,
entertainment or other unlawful expense relating to political
activity; made any direct or indirect unlawful payment to any foreign
or domestic government official or employee from corporate funds;
violated or is in violation of any provision of the Foreign Corrupt
Practices Act of 1977; or made any bribe, rebate, payoff, influence
payment, kickback or other unlawful payment.
(u) Neither the Company nor the Bank nor any affiliate of either of them
has taken, and they will not take, directly or indirectly, any action
designed to cause or result in, or which has constituted or which
might reasonably be expected to constitute, the stabilization or
manipulation of the price of the shares of the Common Stock in order
to facilitate the sale or resale of any of the Shares.
(v) No transaction has occurred between or among the Company or the Bank
and any of their officers, directors, organizers or the Company's
shareholder or any affiliate or affiliates of any such officer,
director, organizer, or shareholder, that is required to be described
in and is not described in the Prospectus.
(w) The Company is not and will not after the offering be an "investment
company", or a company "controlled" by an "investment company", within
the meaning of the Investment Company Act of 1940, as amended.
(x) The Company has obtained from all of its executive officers and
directors their written agreement that (i) for a period of 150 days
from the date of the Effective Date, they will not offer to sell,
sell, transfer, contract to sell, or grant any option for the sale of
or otherwise dispose of, directly or indirectly, any shares of Common
Stock of the Company (or any securities convertible into or
exercisable for such shares of Common Stock), except for (1) the
exercise of Stock Options under the Stock Option Plans or (2) gifts of
Common Stock (or other securities) to a donee or donees who agree in
writing to be bound by this clause, and (ii) for a period of three
months from the date of the Effective Date, they will not sell,
transfer, assign, pledge, or hypothecate any shares of Common Stock
acquired under Section 1(b), above, except with respect to Xxxxxx X.
Xxxx who may resell one share of Common Stock to the Company.
5. CONDITIONS OF THE UNDERWRITER'S OBLIGATIONS. The obligation of the
Underwriter to purchase the Shares shall be subject to the accuracy of there
presentations and warranties of the Company in this Agreement as of the date of
this Agreement and as of the Firm Shares Closing Date or Optional Shares Closing
Date, as the case may be, to the accuracy of the statements of Company officers
made pursuant to the provisions of this Agreement, to the performance by the
Company of its obligations under this Agreement, and to the following additional
terms and conditions:
(a) The Registration Statement shall have become effective not later than
5:00 P.M., Detroit time, on the date of this Agreement or on such
later date and time as shall be consented to in writing by Xxxxx &
Co.; if the filing of the Prospectus, or any supplement thereto, is
required pursuant to Rule 424(b) of the Rules, the Prospectus shall
have been filed in the manner and within the time period required by
Rule 424(b) of the Rules; at each Closing Date, if any, no stop order
shall have been issued or proceedings therefor initiated or threatened
by the Commission; and any request of the Commission for inclusion of
additional information in the Registration Statement, or otherwise,
shall have been complied with to the reasonable satisfaction of Xxxxx
& Co.
(b) At each Closing Date, Xxxxx & Co. shall have received the opinion of
Leagre Xxxxxxxx & Xxxxxxx, counsel for the Company, dated the Firm
Shares Closing Date or the Optional Shares Closing Date, as the case
may be, addressed to the Underwriter and in form and scope reasonably
satisfactory to counsel for Xxxxx & Co. to the effect that:
(i) Each of the Company and the Bank (A) is a corporation or banking
corporation, as applicable, validly existing under the laws of the
State of Indiana and (B) is not required to be qualified to do
business in any jurisdiction outside Indiana, except where the failure
to so qualify would not have a material adverse effect on the Company
or the Bank.
(ii) Each of the Company and the Bank has full corporate power and
authority and all material authorizations, approvals, orders,
licenses, certificates and permits of and from all governmental
regulatory officials and bodies necessary to own or lease their
respective properties and conduct their respective businesses as
described in the Registration Statement and Prospectus;
(iii)The Company has authorized capital stock as set forth in the
Prospectus and, prior to the Closing, had one share of Common Stock
issued and outstanding; the Shares have been duly authorized and
validly issued and upon receipt by the Company of payment therefor in
accordance with the terms of this Agreement will be fully paid and
nonassessable and are not subject to preemptive rights; the Shares and
the other capital stock and Stock Options of the Company conform in
all material respects to the descriptions thereof contained in the
Registration Statement and the Prospectus;
(iv) To the best of such counsel's knowledge, after due inquiry, the
Company has no directly or indirectly held subsidiary other than the
Bank;
(v) The Company is the registered holder of all of the outstanding capital
stock of the Bank, and all such shares of stock are duly authorized
and validly issued, fully paid and nonassessable and free and clear of
any liens, encumbrances or other claims or restrictions whatsoever,
subject to the provisions of the Banking Code;
(vi) The certificates evidencing the Shares are in the form approved by the
Board of Directors of the Company, comply with the bylaws and the
articles of incorporation of the Company, and comply as to form and in
all other material respects with applicable legal requirements;
(vii)This Agreement has been duly and validly authorized, executed and
delivered by the Company, and is the legal, valid and binding
agreement and obligation of the Company enforceable in accordance with
its terms, except (a) as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other laws
relating to or affecting enforcement of creditors' rights or by
general equity principles, whether applied in an action at law or in
equity, or by the discretionary nature of specific performance,
injunctive relief, and other equitable remedies, including the
appointment of a receiver, and (b), with respect to provisions
relating to indemnification and contribution, to the extent they are
held by a court of competent jurisdiction to be void or unenforceable
as against public policy;
(viii) The Company is conveying to the Underwriter good and valid title to
the Shares, free and clear of any liens, encumbrances, security
interests, restrictions, and adverse claims;
(ix) To the best of such counsel's knowledge, after due inquiry, there are
(A) no contracts or other documents which are required to be filed as
exhibits to the Registration Statement other than those filed as
exhibits thereto, (B) no legal or governmental proceedings pending or
threatened against the Company or the Bank, and (C) no statutes or
regulations applicable to the Company or the Bank, or certificates,
permits, grants or other consents, approvals, orders, licenses or
authorizations from regulatory officials or bodies, which are required
to be obtained or maintained by the Company or the Bank and which are
of a character required to be disclosed in the Registration Statement
and Prospectus which have not been so disclosed and properly described
therein;
(x) The statements in the Registration Statement and the Prospectus,
insofar as they are descriptions of corporate documents, stock option
plans, contracts, agreements or other documents specifically
identified in the Registration Statement or descriptions of laws,
regulations, or regulatory requirements, are correct in all material
respects;
(xi) To the best of such counsel's knowledge, after due inquiry, the
execution, delivery and performance of this Agreement, the
consummation of the transactions herein contemplated and the
compliance with the terms and provisions hereof by the Company will
not give rise to a right to terminate or accelerate the due date of
any payment due under, or conflict with or result in a breach of any
of the terms or provisions of, or constitute a default (or an event
which, with notice or lapse of time, or both, would constitute a
default) under, or require any consent under, or result in the
execution or imposition of any lien, charge or encumbrance upon any
properties or assets of the Company or the Bank pursuant to the terms
of, any lease, indenture, mortgage, note or other agreement or
instrument to which the Company or the Bank is a party or by which
either of them or either of their properties or businesses is or may
be bound or affected, nor will such action result in any violation of
the provisions of the articles of incorporation or bylaws of the
Company or the Bank or any statute or any order, rule, or regulation
applicable to the Company or the Bank of any court or any federal,
state, local or other regulatory authority or other governmental body,
the effect of which, in any such case, would be expected to have a
material adverse effect to the Company or the Bank;
(xii)To the best of such counsel's knowledge, after due inquiry, no
consent, approval, authorization or order of any court or governmental
agency or body, domestic or foreign, is required to be obtained by the
Company in connection with the execution and delivery of this
Agreement or the sale of the Shares to the Underwriter as contemplated
by this Agreement, except such as have been obtained;
(xiii) To the best of such counsel's knowledge, after due inquiry, (A)
neither the Company nor the Bank is in breach of, or in default (and
no event has occurred which, with notice or lapse of time, or both,
would constitute a default) under, any lease, indenture, mortgage,
note, or other agreement or instrument to which the Company or the
Bank is a party; or (B) neither the Company nor the Bank is in
violation of any term or provision of either of their articles of
incorporation or bylaws, or of any franchise, license, grant, permit,
judgment, decree, order, statute, rule or regulation; and (C) neither
the Company nor the Bank has received any notice of conflict with the
asserted rights of others in respect of Intangibles necessary for the
commencement or conduct of its business, the effect of which, in any
such case, would be expected to have a material adverse effect on the
Company or the Bank;
(xiv)The Registration Statement and the Prospectus and any amendments or
supplements thereto (other than the financial statements as to which
no opinion need be rendered) comply as to form in all material
respects with the requirements of the Securities Act and the Rules;
and
(xv) The Registration Statement is effective under the Securities Act, and
any required filing of the Prospectus pursuant to Rule 424(b) has been
made in the manner and within the time period required by Rule 424(b)
and, to the best of such counsel's knowledge, after due inquiry, no
stop order suspending the effectiveness of the Registration Statement
or any post-effective amendment to the Registration Statement and no
order directed at any document incorporated by reference in the
Registration Statement or the Prospectus or any amendment or
supplement thereto has been issued, and no proceedings for that
purpose have been instituted or threatened or are contemplated by the
Commission.
In rendering the foregoing opinion, such counsel may rely upon certificates
of public officials (as to matters of fact and law) and officers of the Company
(as to matters of fact), and include customary qualifications in its opinion as
are acceptable to Xxxxx & Co. Copies of all such certificates shall be furnished
to counsel to Xxxxx & Co. on the Closing Date. In addition, such counsel shall
state that they have participated in conferences with officials of the Company
and its independent auditors, and representatives of the Underwriter and its
counsel at which the content of the Registration Statement and Prospectus and
related matters were discussed, and also had discussions with such officials of
the Company with a view toward a clear understanding on their part of the
requirements of the Act with reference to the preparation of registration
statements and prospectuses. Such counsel did not independently verify the
accuracy or completeness of the statements made in the Registration Statement
and Prospectus; however, based on such counsel's examination of the Registration
Statement and the Prospectus and on its participation in the above-mentioned
conferences, nothing has come to the attention of such counsel that gives them
reason to believe that the Registration Statement or Prospectus (other than
financial statements and notes, any related schedules or other financial
information contained in such Registration Statement or Prospectus as to which
such counsel need express no opinion or belief), at the time the Registration
Statement became effective, contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or necessary to
make the statements therein not misleading or that the Prospectus (other than
financial statement and notes, any related schedules or other financial
information contained in such Prospectus or amendment or supplement thereto, as
to which such counsel need express no opinion or belief), as of the date of the
opinion, contains any untrue statement of a material fact or omits to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(c) On or prior to each Closing Date, Xxxxx & Co. shall have been
furnished such documents, certificates and opinions as they may
reasonably require for the purpose of enabling them to review the
matters referred to in subsection (b) of this Section 5, and in order
to evidence the accuracy, completeness or satisfaction of the
representations, warranties or conditions herein contained.
(d) Prior to each Closing Date, (i) there shall have been no material
adverse change in the condition or prospects, financial or otherwise,
of the Company or the Bank; (ii) there shall have been no material
transaction, not in the ordinary course of business, entered into by
the Company or the Bank except as set forth in the Registration
Statement and Prospectus, other than transactions referred to or
contemplated therein or to which Xxxxx & Co. has given its written
consent; (iii) neither the Company nor the Bank shall be in default
(nor shall an event have occurred which, with notice or lapse of time,
or both, would constitute a default) under any provision of any
material agreement, understanding or instrument relating to any
outstanding indebtedness that is material in amount; (iv) no action,
suit or proceeding, at law or in equity, shall be pending or
threatened against the Company or the Bank before or by any court or
Federal, state or other commission, board or other administrative
agency having jurisdiction over the Company or the Bank, as the case
may be, which is expected to have a material adverse effect on the
Company or the Bank; and (v) no stop order shall have been issued
under the Securities Act and no proceedings therefor shall have been
initiated or be threatened by the Commission.
(e) At each Closing Date, Xxxxx & Co. shall have received a certificate
signed by the the President, and the Chief Financial Officer of the
Company dated the Firm Shares Closing Date or Optional Shares Closing
Date, as the case may be, to the effect that the conditions set forth
in subsection (d) above have been satisfied and as to the accuracy, as
of the Firm Shares Closing Date or the Optional Shares Closing Date,
as the case may be, of the representations and warranties of the
Company set forth in Section 4 hereof.
(f) At or prior to each Closing Date, Xxxxx & Co. shall have received a
"blue sky" memorandum (upon which Xxxxx & Co. may rely) of Xxxxx
XxXxxxx Xxxxxxxxx & Xxxxxxxx, counsel for Xxxxx & Co., addressed to
Xxxxx & Co. and in form and scope reasonably satisfactory to Xxxxx &
Co. concerning compliance with the blue sky or securities laws of the
states listed in Exhibit A attached to this Agreement.
(g) All proceedings taken in connection with the sale of the Shares as
herein contemplated shall be reasonably satisfactory in form and
substance to Xxxxx & Co. and to counsel for Xxxxx & Co., and Xxxxx &
Co. shall have received from counsel for Xxxxx & Co. a favorable
opinion, dated as of each Closing Date, with respect to such of the
matters set forth under Subsections (b) (i), (iii), (vi), (vii), and
(xv) of this Section 5, and with respect to such other related matters
as Xxxxx & Co. may require, if the failure to receive a favorable
opinion with respect to such other related matters would cause Xxxxx &
Co. to deem it inadvisable to proceed with the sale of the Shares.
(h) There shall have been duly tendered to Xxxxx & Co. certificates
representing all the Shares agreed to be sold by the Company on the
Firm Shares Closing Date or the Optional Shares Closing Date, as the
case may be.
(i) No order suspending the sale of the Shares prior to each Closing Date,
in any jurisdiction listed in Exhibit A, shall have been issued on the
Firm Shares Closing Date or the Optional Shares Closing Date, as the
case may be, and no proceedings for that purpose shall have been
instituted or, to Xxxxx & Co.'s knowledge or that of the Company,
shall be contemplated.
(j) The NASD, upon review of the terms of the public offering of the
Shares, shall not have objected to the Underwriter's participation in
the same. If any condition to the Underwriter's obligations hereunder
to be fulfilled prior to or at the Firm Shares Closing Date or the
Optional Shares Closing Date, as the case may be, is not so fulfilled,
Xxxxx & Co. may terminate this Agreement pursuant to Section 9(c)
hereof or, if Xxxxx & Co. so elects, waive any such conditions which
have not been fulfilled or extend the time of their fulfillment.
6. COVENANTS. The Company covenants and agrees that it will:
(a) Use its best efforts to cause the Registration Statement to become
effective and will notify Xxxxx & Co. immediately, and confirm the
notice in writing, (i) when the Registration Statement and any
post-effective amendment thereto becomes effective, (ii) of the
issuance by the Commission of any stop order or of the initiation, or
the threatening, of any proceedings for that purpose and (iii) of the
receipt of any comments from the Commission. The Company will make
every reasonable effort to prevent the issuance of a stop order, and,
if the Commission shall enter a stop order at any time, the Company
will make every reasonable effort to obtain the lifting of such order
at the earliest possible moment.
(b) During the time when a prospectus is required to be delivered under
the Securities Act, comply so far as it is able with all requirements
imposed upon it by the Securities Act, as now and hereafter amended,
and by the Rules, as from time to time in force, so far as necessary
to permit the continuance of sales of or dealings in the Shares. If at
any time when a prospectus relating to the Shares is required to be
delivered under the Securities Act any event shall have occurred as a
result of which, in the reasonable opinion of counsel for the Company
or counsel for Xxxxx & Co., the Registration Statement or Prospectus
as then amended or supplemented includes an untrue statement of a
material fact or omits to state any 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,
or if it is necessary at any time to amend or supplement the
Registration Statement or Prospectus to comply with the Securities
Act, the Company will notify Xxxxx & Co. promptly and prepare and file
with the Commission an appropriate amendment or supplement in form
satisfactory to Xxxxx & Co. The cost of preparing, filing and
delivering copies of such amendment or supplement shall be paid by the
Company.
(c) Deliver to the Underwriter such number of copies of each preliminary
prospectus as may reasonably be requested by Xxxxx & Co. and, as soon
as the Registration Statement, or any amendment or supplement thereto,
becomes effective, deliver to the Underwriter three signed copies of
the Registration Statement, including exhibits, and all post-effective
amendments thereto and deliver to the Underwriter such number of
copies of the Prospectus, the Registration Statement and supplements
and amendments thereto, if any, without exhibits, as Xxxxx & Co. may
reasonably request.
(d) Endeavor in good faith, in cooperation with Xxxxx & Co. and its
counsel, at or prior to the time the Registration Statement becomes
effective, to qualify the Shares for offering and sale under the
securities laws relating to the offering or sale of the Shares of the
states listed in Exhibit A. In each jurisdiction where such
qualification shall be effected, the Company will, unless Xxxxx & Co.
agrees that such action is not at the time necessary or advisable,
file and make such statements or reports at such times as are or may
reasonably be required by the laws of such jurisdiction. The Company
will advise Xxxxx & Co. promptly of the suspension of the
qualification of the Shares for offering, sale or trading in any
jurisdiction, or any initiation or threat of any proceeding for such
purpose, and in the event of the issuance of any order suspending such
qualification, the Company, with the cooperation of Xxxxx & Co., will
use all reasonable efforts to obtain the withdrawal thereof.
(e) Furnish its security holders as soon as practicable an earnings
statement (which need not be certified by independent certified public
accountants unless required by the Securities Act or the Rules)
covering a period of at least twelve months beginning after the
effective date of the Registration Statement, which shall satisfy the
provisions of Section 11(a) of the Securities Act and the Rules
thereunder.
(f) For a period of five years from the Effective Date, furnish to its
shareholders annual audited and quarterly unaudited consolidated
financial statements with respect to the Company including balance
sheets and income statements.
(g) For a period of five years from the Effective Date, furnish to Xxxxx &
Co. the following:
(i) at the time they have been sent to shareholders of
the Company or filed with the Commission one copy of
each annual, quarterly, interim, or current financial
and other report or communication sent by the Company
to its shareholders or filed with the Commission;
(ii) as soon as practicable, one copy of every press
release and every material news item and article in
respect of the Company or the affairs of the Company
which was released by the Company;
(iii) all other information reasonably requested by Xxxxx &
Co. with respect to the Company to comply with Rule
15c2-11 of the Rules and Section 4 of Schedule H of
the NASD By-Laws; and
(iv) such additional documents and information with
respect to the Company and its affairs as Xxxxx & Co.
may from time to time reasonably request.
(h) Acquire all of the Bank's outstanding capital stock, free and
clear of all liens, encumbrances, or other claims or restrictions
whatsoever, for not less than $9,000,000 from the proceeds of the
offering and, in all other material respects, apply the net
proceeds from the offering in the manner set forth under "Use of
Proceeds" in the Prospectus.
(i) Not file any amendment or supplement to the Registration
Statement or Prospectus after the effective date of the
Registration Statement to which Xxxxx & Co. shall reasonably
object in writing after being furnished a copy thereof.
(j) Timely file with the Commission the reports required and
containing the information required by Rule 463, as amended,
under the Securities Act.
(k) Comply with all registration, filing and reporting requirements
of the Securities Act or the Exchange Act, which may from time to
time be applicable to the Company.
(l) Cause the proper submission of the Certificate of Paid In Capital
and Surplus, give advance written notice to the DFI of the Bank's
projected opening date, and in all other respects use reasonable
efforts to comply with the requirements of, and satisfy the
conditions of, the DFI Order, the FDIC Order and the Federal
Reserve Board Approval; provided, however, that it shall not be a
breach of this Section 6(l) for the Company or the Bank to fail
to maintain any specified level of capital, surplus, capital
ratio, valuation reserve or financial or operating performance
after the Bank has commenced the business of banking if such
failure is waived or performance of such requirement or condition
is accepted as sufficient by the DFI, the FDIC, and/or the
Federal Reserve Board, as applicable.
(m) Pay, or reimburse if paid by the Underwriter, whether or not the
transactions contemplated hereby are consummated or this
Agreement is terminated, all costs and expenses incident to the
performance of the obligations of the Company under this
Agreement, including those relating to (1) the preparation,
printing, filing and delivery of the Registration Statement,
including all exhibits thereto, each preliminary prospectus, the
Prospectus, all amendments of and supplements to the Registration
Statement and the Prospectus, and the printing of the
Underwriting Agreement and related agreements including, without
limitation, the Dealer Agreement; (2) the issuance of the Shares
and the preparation and delivery of certificates for the Shares
to the Underwriter; (3) the registration or qualification of the
Shares for offer and sale under the securities or "blue sky" laws
of the various jurisdictions referred to in Exhibit A, including
the fees and disbursements of counsel in connection with such
registration and qualification and the preparation and printing
of preliminary, supplemental, and final blue sky memoranda; (4)
the furnishing (including costs of shipping and mailing) to the
Underwriter of copies of each preliminary prospectus, the
Prospectus and all amendments of or supplements to the
Prospectus, and of the several documents required by this Section
to be so furnished; (5) the filing requirements and fees of the
NASD in connection with its review of the terms of the public
offering and the underwriting; (6) the furnishing (including
costs of shipping and mailing) of copies of all reports and
information required by Section 6(g); (7) all transfer taxes, if
any, with respect to the sale and delivery of the Shares by the
Company to the Underwriter, (8) the inclusion of the Shares on
the OTC Bulletin Board; (9) an Underwriter's Fee of $50,000; and
(10) the Underwriter's out-of-pocket expenses, including without
limitation, road show expenses and legal fees of counsel to Xxxxx
& Co. (such out-of- pocket expenses and legal fees payable by the
Company shall not exceed $30,000). Upon a successful completion
of the offering, if the Underwriter purchases all the Firm
Shares, but less than all of the Optional Shares, the Underwriter
will credit against the amounts payable by the Company (i)
$25,000 of the Underwriter's Fee described in Section 6(m)(9)
hereof; (ii) the $10,000 advance referred to in Section 9(c); and
(iii) any portion of the $30,000 expense allowance previously
paid or accrued. Upon a successful completion of the offering, if
the Underwriter purchases all the Optional Shares, the
Underwriter will credit an additional $25,000 against the
Underwriter's Fee described in Section 6(m)(9) hereof.
(n) Not, without the prior written consent of Xxxxx & Co., sell,
contract to sell or grant any option for the sale of or otherwise
dispose of, directly or indirectly, or register with the
Commission, any shares of Common Stock of the Company (or any
securities convertible into or exercisable for such shares of
Common Stock) within 150 days after the date of the Prospectus,
except as provided in this Agreement and except for grants and
exercises of Stock Options under the Stock Option Plans as
described in the Prospectus.
(o) For not less than the 3 fiscal years after the Effective Date,
file all reports, whether or not otherwise required, as if
subject to Section 15(d) of the Exchange Act.
(p) Use its best efforts to cause itself and the Bank to commence
their businesses as described in the Prospectus not later than
December 31, 1997.
(q) Not, for one year after the Effective Date, issue any stock
options to purchase Common Stock under either of the Stock Option
Plans, or any other stock option plan of the Company, that have
an exercise price of less than $10 per share.
7. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless the Underwriter
and each person, if any, who controls the Underwriter within the
meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act against any and all losses, claims, damages and
liabilities, joint or several (including any reasonable
investigation, legal and other expenses incurred in connection
with, and any amount paid in settlement of, any action, suit or
proceeding or any claim asserted), to which they may become
subject under the Securities Act, the Exchange Act or other
Federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities
arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in any preliminary
prospectus, the Registration Statement or the Prospectus or any
amendment thereof or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make
the statements therein not misleading; provided, however, that
such indemnity shall not inure to the benefit of the Underwriter
(or any person controlling the Underwriter) on account of any
losses, claims, damages or liabilities arising from the sale of
the Shares in the public offering to any person by the
Underwriter if such untrue statement or omission or alleged
untrue statement or omission was made in such preliminary
prospectus, the Registration Statement or the Prospectus, or such
amendment or supplement, in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf
of the Underwriter specifically for use therein. The Company
shall not be liable hereunder to the Underwriter (or any
controlling person thereof) to the extent that any loss, claim,
damage or other liability incurred by the Underwriter arises from
the Underwriter's fraudulent act or omission.
(b) The Underwriter agrees to indemnify and hold harmless the
Company, each person, if any, who controls the Company within the
meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, each director of the Company and each officer of
the Company who signs the Registration Statement, to the same
extent as the foregoing indemnity from the Company to the
Underwriter, but only insofar as such losses, claims, damages or
liabilities arise out of or are based upon any untrue statement
or omission or alleged untrue statement or omission which was
made in any preliminary prospectus, the Registration Statement or
the Prospectus, or any amendment thereof or supplement thereto,
in reliance upon and in conformity with information furnished in
writing to the Company by the Underwriter specifically for use
therein; provided, however, that the obligation of the
Underwriter to indemnify the Company (including any controlling
person, director or officer thereof) hereunder shall be limited
to the total price at which the Shares purchased by the
Underwriter hereunder were offered to the public. The Underwriter
shall not be liable hereunder to the Company (including any
controlling person, director or officer thereof) to the extent
that any loss, claim, damage or other liability incurred by the
Company arises from a fraudulent act or omission by the Company.
(c) Any party that proposes to assert the right to be indemnified
under this Section will, promptly after receipt of notice of
commencement of any action, suit or proceeding against such party
in respect of which a claim is to be made against an indemnifying
party or parties under this Section, notify each such
indemnifying party of the commencement of such action, suit or
proceeding, enclosing a copy of all papers served, but the
omission so to notify such indemnifying party of any such action,
suit or proceeding shall not relieve it from any liability that
it may have to any indemnified party otherwise than under this
Section. In case any such action, suit or proceeding shall be
brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying
party shall be entitled to participate in, and, to the extent
that it shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel
reasonably satisfactory to such indemnified party, and after
notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof and the approval by
the indemnified party of such counsel, the indemnifying party
shall not be liable to such indemnified party for any legal or
other expenses, except as provided below and except for the
reasonable costs of investigation subsequently incurred by such
indemnified party in connection with the defense thereof. The
indemnified party shall have the right to employ its counsel in
any such action, but the fees and expenses of such counsel shall
be at the expense of such indemnified party unless (1) the
employment of counsel by such indemnified party has been
authorized in writing by the indemnifying parties, (2) the
indemnified party shall have reasonably concluded that, because
of the existence of different or additional defenses available to
the indemnified party or of other reasons, there may be a
conflict of interest between the indemnifying parties and the
indemnified party in the conduct of the defense of such action
(in which case the indemnifying parties shall not have the right
to direct the defense of such action on behalf of the indemnified
party) or that, under the circumstances, it is otherwise
appropriate, or (3) the indemnifying parties shall not have
employed counsel to assume the defense of such action within a
reasonable time after notice of the commencement thereof, in each
of which cases the fees and expenses of counsel shall be at the
expense of the indemnifying parties. An indemnifying party shall
not be liable for any settlement of any action, suit, proceeding
or claims effected without its written consent.
8. CONTRIBUTION. In order to provide for just and equitable
contribution in circumstances in which the indemnification provided for in
Section 7(a) or 7(b) is due in accordance with its terms but for any reason is
held to be unavailable, the Company and the Underwriter shall contribute to the
aggregate losses, claims, damages and liabilities (including any investigation,
legal and other expenses reasonably incurred in connection with, and any amount
paid in settlement of, any action, suit or proceeding or any claims asserted,
but after deducting any contribution received from other persons), to which the
Company and the Underwriter may be subject, in such proportion so that the
Underwriter is responsible for that portion represented by the percentage that
the underwriting discount appearing on the front cover page of the Prospectus
bears to the public offering price appearing thereon and the Company is
responsible for the balance; provided, however, that (a) in no case shall the
Underwriter be responsible for any amount in excess of the underwriting discount
applicable to the Shares purchased by the Underwriter hereunder and (b) no
person found guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from any
person who was guilty of such fraudulent misrepresentation. For purposes of this
Section, each person, if any, who controls the Underwriter within the meaning of
the Securities Act or the Exchange Act shall have the same rights to
contribution as the Underwriter, and each person, if any, who controls the
Company within the meaning of the Securities Act or the Exchange Act, each
officer of the Company who shall have signed the Registration Statement and each
director of the Company shall have the same rights to contribution as the
Company, subject in each case to clauses (a) and (b) of this Section. Any party
entitled to contribution will, promptly after receipt of notice of commencement
of any action, suit or proceeding against such party in respect of which a claim
for contribution may be made against another party or parties under this
Section, notify such party or parties from whom contribution may be sought, but
the omission so to notify such party or parties from whom contribution may be
sought shall not relieve the party or parties from whom contribution may be
sought from any other obligation it or they may have hereunder or otherwise than
under this Section. No party shall be liable for contribution with respect to
any action, suit, proceeding or claim settled without its written consent.
In any proceeding relating to the Registration Statement, any
preliminary prospectus, the Prospectus or any supplement thereto or amendment
thereof, each party against whom contribution may be sought under this Section 8
hereby consents to the jurisdiction of any court in Michigan, agrees that
process issuing from such court may be served upon him or it by any other
contributing party and consents to the service of such process and agrees that
any other contributing party may join him or it as an additional defendant in
any such proceeding in which such other contributing party is a party.
9. TERMINATION. This Agreement may be terminated by Xxxxx & Co. by
notifying the Company at any time:
(a) before the earlier of (1) 11:00 a.m., Detroit time, on the
business day following the Effective Date, or (2) the time when
the Shares are first generally offered by the Underwriter to
dealers by letter or telegram;
(b) at or before any Closing Date if, in the judgment of Xxxxx & Co.,
payment for and delivery of the Shares is rendered impracticable
or inadvisable because (1) additional material governmental
restrictions, not known to be in force and effect when this
Agreement is signed, shall have been imposed upon trading in
securities generally or minimum or maximum prices shall have been
generally established on the New York Stock Exchange, on the
American Stock Exchange or on the over-the-counter market, or
trading in securities generally shall have been suspended on
either such Exchange or on the over-the-counter market or a
general banking moratorium shall have been established by
federal, New York or Indiana authorities, (2) a war or other
calamity shall have occurred or shall have accelerated to such an
extent as to affect adversely the marketability of the Shares,
(3) the Company or the Bank shall have sustained a material loss
by fire, flood, accident, hurricane, earthquake, theft, sabotage
or other calamity or malicious act, which, whether or not said
loss shall have been insured, will in Xxxxx & Co.'s opinion, make
it inadvisable to proceed with the offering of the Shares, (4)
the DFI Order, the FDIC Order, or the Federal Reserve Board
Approval shall have been withdrawn or materially altered, or
notice shall have been received to the effect that any of such
approvals will not be received, or, if received, will be subject
to conditions that the Company would not be able to fulfill in a
reasonable time in Xxxxx & Co.'s reasonable opinion, (5) in Xxxxx
& Co.'s reasonable opinion it is not probable that the Company
and Bank will be able to commence business before December 31,
1997, for any reason, or (6) there shall have been such material
change in the condition, business operations or prospects of the
Company or the market for the Shares or similar securities as in
Xxxxx & Co.'s judgment would make it inadvisable to proceed with
the offering of the Shares; or
(c) at or before any Closing Date, if any of the conditions specified
in Section 5 or any other agreements, representations or
warranties of the Company in this Agreement shall not have been
fulfilled when and as required by this Agreement. If this
Agreement is terminated pursuant to any of its provisions, except
as otherwise provided in this Agreement, the Company shall not be
under any liability to the Underwriter (other than for
obligations assumed in Section 6 hereof), and the Underwriter
shall not be under any liability to the Company; provided,
however, that if this Agreement is terminated by Xxxxx & Co.
because of any failure, refusal or inability on the part of the
Company to comply with the terms or to fulfill any of the
conditions of this Agreement, or for any reasons provided in
subparagraphs (b) and (c) above, the Company will reimburse the
Underwriter for all accountable out-of-pocket expenses
(including, without limitation, road show expenses and fees and
disbursements of counsel to Xxxxx &Co.) up to a maximum of
$30,000 (excluding the $10,000 advance described below) incurred
by it in connection with the proposed purchase and sale of the
Shares or in contemplation of performing its obligations
hereunder. The Underwriter acknowledges receipt of a $10,000 non-
refundable advance from the Company. If this Agreement is
terminated for any reason, the Underwriter shall be entitled to
retain the $10,000 advance. If this Agreement is not terminated,
the $10,000, and any portion of the $30,000 expense allowance
previously paid or accrued, shall be credited at closing against
the underwriting discount.
10. REPRESENTATIONS AND AGREEMENTS TO SURVIVE DELIVERY. All
representations, warranties and agreements contained in this Agreement shall be
deemed to be representations, warranties and agreements at the Closing Dates,
and such representations, warranties and agreements of the Company, including,
without limitation, the payment and reimbursement agreements contained in
Section 6 hereof and the indemnity and contribution agreements contained in
Sections 7 and 8 hereof, shall remain operative and in full force and effect
regardless of any investigation made by or on behalf of the Underwriter or any
controlling person and shall survive termination of this Agreement and/or
delivery of the Shares to and payment for the Shares by the Underwriter pursuant
to this Agreement. In addition, the covenants contained in Section 6 hereof, the
agreements contained in this Section 10 and in Sections 7, 8 and 9 shall survive
termination of this Agreement and/or delivery of the Shares to and payment for
the Shares by the Underwriter pursuant to this Agreement.
11. MISCELLANEOUS. This Agreement has been and is made for the benefit
of the Underwriter, the Company and their respective successors and assigns,
and, to the extent expressed herein, for the benefit of persons controlling the
underwriter or the Company, and directors and certain officers of the Company
and their respective successors and assigns, and no other person, partnership,
association or corporation shall acquire or have any right under or by virtue of
this Agreement. The term "SUCCESSORS AND ASSIGNS" shall not include any
purchaser of Shares from the Underwriter merely because of such purchase.
If any action or proceeding shall be brought by the Underwriter or the
Company in order to enforce any right or remedy under this Agreement, the
underwriter and the Company hereby consent to, and agree that they will submit
to, the jurisdiction of the courts of the State of Michigan and of any Federal
court sitting in the State of Michigan.
All notices and communications hereunder shall be in writing and mailed or
delivered or by telephone or telegraph, if subsequently confirmed in writing, to
Xxxxx & Co., at Xxx Xxxxxxxx, Xxxxxxx, Xxxxxxxx 00000 (facsimile No. (313)
963-2303) (with a copy to Xxxxxxx X. Xxxxxx; Xxxxx XxXxxxx Xxxxxxxxx & Xxxxxxxx,
Xxxxx 0000, Xxx Xxxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx, 00000 (facsimile No.
(000) 000-0000)); and to the Company at X.X. Xxx 000, Xxxxxxxx, Xxxxxxx, 00000,
Attention: Xxxxx Xxxxxxx, President (facsimile No. (000) 000-0000) (with a copy
to Xxxx X. Xxxxxx; Leagre Xxxxxxxx & Xxxxxxx, 0000 Xxxxxxxx Xxxxxxxx, Xxxxx 000,
Xxxxxxxxxxxx, Xxxxxxx (facsimile No. (000) 000-0000).
This Underwriting Agreement shall be construed in accordance with the
laws of the state of Michigan, without giving effect to principles of conflicts
of laws. Please confirm that the foregoing correctly sets forth the agreement
between us.
Very truly yours,
HEARTLAND BANCSHARES, INC.
By: /s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx, President and Director
And by: /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx,
Executive Vice President
and Director
Confirmed by Xxxxx & Co.
XXXXX & CO., L.L.C.
By: /s/ Xxxx X. Xxxxxxxx
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Xxxx X. Xxxxxxxx Director,
Corporate Finance
EXHIBIT A
BLUE SKY STATES
Florida
Kentucky
Illinois
Indiana
Michigan
Ohio
