EXHIBIT 1
UNDERWRITER'S PROPOSED FORM OF UNDERWRITING AGREEMENT
1,000,000 SHARES
HEARTLAND BANCSHARES, INC.
COMMON STOCK
UNDERWRITING AGREEMENT
_____________________, 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 1,000,000 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 150,000 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
$9.30. 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
certified or official bank check payable in Detroit Clearing House
(next day) 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 certified or official bank check
payable in Detroit Clearing House (next day) 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 - __________), 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 required to be stated therein or necessary
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, in
good standing 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
________________________, 1997, pursuant to Order No.
______________________________, subject to certain
conditions specified in the Order and supplemental
correspondence from the DFI dated the same date. The
Order 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 ____________________, 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
_______________________, 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
________________________________, Greenwood, Indiana,
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,
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 Employee 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 180 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 Xxxxx Xxxxxxx 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,
existing and in good standing 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 such counsel's knowledge, after due inquiry, the
Company has no directly or indirectly held
subsidiary other than the Bank;
(v) When issued, sold, and delivered against payment
therefor in accordance with the terms of the
subscription agreement, the Company will be the
registered holder of all of the outstanding capital
stock of the Bank, and all such shares of stock so
held will be duly authorized and validly issued,
fully paid and nonassessable and will be owned 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, injuncture
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, or refer to compliance with law or to
statements of law or legal conclusions, 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 Chairman of the Board, the
President, and the Treasurer 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 Alexander & 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 $____________
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 reports on Form SR (if
applicable) containing the information required by that
Form in accordance with the provisions of Rule 463 of the
Regulation under the 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
$25,000 against the Underwriter's Fee described in
Section 6(m)(9) hereof. 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 3 fiscal years after the Effective
Date, maintain the Exchange Act registration of the
Common Stock, unless the Company's shareholders direct
the Company to reregister the Common Stock.
(p) Use its best efforts to cause itself and the Bank to
commence their businesses as described in the Prospectus
not later than __________________________, 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 irresponsible 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
___________________________, 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. (000) 000-0000) (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 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:______________________________
Xxxxx Xxxxxxx, President and
Director
And by:____________________________
Xxxxxxx X. Xxxxx,
Executive Vice President
and Director
Confirmed by Xxxxx & Co.
XXXXX & CO., L.L.C.
By:________________________________
Xxxx X. Xxxxxxxx Director,
Corporate Finance
SS-126686-3
EXHIBIT A
BLUE SKY STATES