Exhibit 1.1
BANK OF THE OZARKS, INC.
1,331,700 Shares*
Common Stock
($.01 Par Value)
UNDERWRITING AGREEMENT
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July ___, 1997
XXXXXXXX INC.
As Representative of the Several Underwriters
000 Xxxxxx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Gentlemen:
Bank of the Ozarks, Inc., an Arkansas corporation (the "Company") together
with the Company's shareholders named on the signature page hereof (collectively
the "Selling Stockholders") confirm their agreement with the several
underwriters (the "Underwriters") for whom you are acting as representative
(the "Representative") to issue and sell an aggregate of 1,331,700 shares of
the Company's common stock, par value $.01 per share (the "Underwritten
Shares") to the Underwriters. The common stock is more fully described in the
Registration Statement and the Prospectus hereinafter mentioned.
For the sole purpose of covering over-allotments in connection with the
sale of the Underwritten Shares, the Company proposes to grant to the
Underwriters the option (the "Option") described in Section 2 hereof to
purchase all or any part of 199,755 shares of common stock (the "Option Shares")
owned by it. The Underwritten Shares and the Option Shares purchased pursuant
to this Underwriting Agreement are herein called the "Shares" and the proposed
offering of the Shares by the Underwriters is hereinafter referred to as the
"Public Offering."
The Company has filed with the Securities and Exchange Commission (the
"Commission"), pursuant to the Securities Act of 1933, as amended (the "Act"),
and published rules and regulations adopted by the Commission under the Act (the
"Rules"), a registration statement on Form S-1 ("Form S-1") (File No. 333-
27641), including a preliminary prospectus, relating to the Shares, and such
amendments to such registration statement as may have been filed with the
Commission to the date of this Agreement. The term "preliminary prospectus "
means any preliminary prospectus (as referred to in Rule 430 or Rule 430A of the
Rules) included at any time as a part of the registration
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* Plus up to 199,755 additional shares to cover over-allotments; if any.
statement. The Company has furnished to the Representative copies of such
registration statement, each amendment to it filed by the Company with the
Commission and each preliminary prospectus filed by the Company with the
Commission and any other offering materials used by the Company. If such
registration statement has not become effective, a further amendment (the "Final
Amendment") to such registration statement, including a form of final
prospectus, if necessary to permit such registration statement to become
effective, will promptly be filed by the Company with the Commission. If such
registration statement has become effective, a final prospectus (the "Rule 430A
Prospectus") containing information permitted to be omitted at the time of
effectiveness by Rule 430A of the Rules will promptly be filed by the Company
with the Commission in accordance with the Rules. The registration statement as
amended at the time it becomes or became effective (the "Effective Date"),
including financial statements and all exhibits and any information deemed to be
included by Rule 430A, is called the "Registration Statement." The term
"Prospectus" means the prospectus as first filed with the Commission pursuant to
Rule 424(b) of the Rules, or if no such filing is required, the form of final
prospectus included in the Registration Statement at the Effective Date.
Any reference herein to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to refer to and include any
documents incorporated by reference therein on or before the Effective Date or
the date of such preliminary prospectus or the Prospectus, as the case may be.
Any reference herein to the terms "amend," "amendment" or "supplement" with
respect to the Registration Statement, any preliminary prospectus or the
Prospectus shall be deemed to refer to and include the filing of any document
under the Securities Exchange Act of 1934 (the "Exchange Act") after the
Effective Date or the date of any preliminary prospectus or the Prospectus, as
the case may be, and deemed to be incorporated therein by reference.
As the Representative, you have advised the Company (a) that you are
authorized to enter into this Underwriting Agreement on behalf of the several
Underwriters and (b) the Underwriters are willing, acting severally and not
jointly, to purchase the amounts of the Underwritten Shares set forth opposite
their respective names in Schedule I hereto, plus their pro rata portion of the
Option Shares if you elect to exercise the over-allotment Option in whole or in
part for the accounts of the several Underwriters.
In consideration of the mutual agreements contained herein and of the
interests of the parties in the transactions contemplated hereby, the Company
and the Underwriters hereby agree as follows:
1. Representations, Warranties and Agreements of the Company.
(a) The Company and Xxxxxx X. Xxxxxxx, XX (in his individual capacity)
jointly and severally represent and warrant to, and agree with, each Underwriter
as follows:
(i) The Company has been duly organized, is in compliance with its
Amended and Restated Articles of Incorporation, and is validly existing as a
corporation in good standing under the laws of the State of Arkansas, with full
power and authority (corporate and other) to own
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its properties and conduct its business as described in the Registration
Statement and Prospectus; all significant subsidiaries (as defined by the Act)
of the Company (each, a "Subsidiary" and collectively, the "Subsidiaries") have
been duly incorporated, will be, and are validly existing as a banking
association or corporation, as the case may be, in good standing under the laws
of the jurisdiction of its association or incorporation, as the case may be,
with full power and authority (corporate and other) to own or lease its
properties and conduct its business; the Company and the Subsidiaries are duly
qualified to transact business in all jurisdictions in which the conduct of
their business or the ownership or lease of their properties requires such
qualifications; all of the outstanding shares of capital stock of each
Subsidiary are owned by the Company and have been duly and validly authorized
and issued, are fully paid and non-assessable.
(ii) The outstanding shares of common stock of the Company have been
duly and validly authorized and issued and are fully paid and non-assessable;
the Shares are duly and validly authorized, and, to the extent any portion of
the Shares has not yet been issued, when issued and paid for as contemplated
herein, will be fully paid and non-assessable; and no preemptive or other
restrictive rights of any holder of any class of the Company's stock exist with
respect to the Shares or the issue and sale thereof, except where the same shall
have been waived in writing by the holders thereof prior to the date hereof.
(iii) The Shares conform with the statements
concerning them in any preliminary prospectus, the Prospectus and the
Registration Statement. As of the Closing Date (as defined below) and any
Option Closing Date (as defined below), if applicable, the Company will have the
authorized capitalization set forth under the caption "Use of Proceeds and
Capitalization" and "Description of Capital Stock" in the Prospectus. No
further corporate approval or authority on behalf of the Company will be
required for the issuance and sale of the Shares to be sold by the Company as
contemplated herein.
(iv) Any preliminary prospectus, the Prospectus and the Registration
Statement have been carefully prepared by the Company in conformity with the
requirements of the Act and the Rules, including Form S-1. The Registration
Statement has been filed with the Commission under the Act.
(v) Neither the Commission nor any other agency, body, authority,
court or arbitrator of competent jurisdiction has, by order or otherwise,
prohibited or suspended the use of any preliminary prospectus or the Prospectus
relating to the proposed offering of the Shares or instituted proceedings for
that purpose. The Registration Statement, the Prospectus and any preliminary
prospectus and any amendments or supplements thereto at the time they became or
become effective or were filed or are filed with the Commission contained or
will contain all statements which are required to be stated therein by, and in
all material respects conformed or will conform to the requirements of, the Act
and the Rules. Neither the Registration Statement, nor any preliminary
prospectus nor any amendment thereto, and neither the Prospectus nor any
supplement thereto, as of its date 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, in light of the circumstances in which
they were made, not misleading; provided, however, that the Company makes no
representations or warranties as to information contained in or omitted from the
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Registration Statement or any preliminary prospectus or the Prospectus, or any
such amendment or supplement, in reliance upon, and in conformity with, written
information furnished to the Company by or on behalf of any Underwriter through
the Representative, expressly for use in the preparation thereof.
(vi) The consolidated financial statements of the Company and the
Subsidiaries, together with related notes and schedules as set forth in the
Registration Statement, present fairly the consolidated financial position and
the consolidated results of operations of the Company and the Subsidiaries
consolidated, at the indicated dates and for the indicated periods. Such
financial statements have been prepared in accordance with generally accepted
principles of accounting, consistently applied throughout the periods involved,
and all adjustments necessary for a fair presentation of results for such
periods have been made. The Summary Consolidated Financial Data and the
Selected Consolidated Financial Data included in the Prospectus present fairly
the information shown therein and have been compiled on a basis consistent with
that of the audited and unaudited financial statements from which they were
derived.
(vii) There is no action or proceeding pending or, to the knowledge
of the Company, threatened against the Company or any Subsidiary before any
court or administrative or governmental agency or other body which might (A)
result in any material adverse change in the condition (financial or otherwise),
or in the earnings, business, affairs, properties, business prospects or results
of operations of the Company and the Subsidiaries taken as a whole, whether or
not arising in the ordinary course of business, or (B) affect the performance of
this Agreement or the consummation of the transactions herein contemplated,
except as disclosed in the Registration Statement and for which the Company
maintains a reserve in an amount which is adequate to cover potential
liabilities.
(viii) The Company and each Subsidiary has good and marketable title
to all of the material properties and assets reflected in the financial
statements hereinabove described or as described in the Prospectus as being
owned by them, subject to no lien, mortgage, pledge, charge or encumbrance of
any kind except those securing indebtedness described in such financial
statements or as described in the Prospectus or which do not materially affect
the present or proposed use of such properties or assets. The Company and the
Subsidiaries occupy their leased properties under valid, subsisting and binding
leases with only such exceptions as in the aggregate are not material and do not
interfere with the conduct of the business of the Company.
(ix) The Company and each Subsidiary have filed all Federal, State
and foreign tax returns which have been required to be filed and have paid all
taxes indicated by said returns and all assessments received by them or any of
them to the extent that such taxes have become due.
(x) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, as they may be amended or
supplemented, (A) there has not been any material adverse change in the
condition (financial or otherwise), or in the earnings, business, affairs,
properties, business prospects or results of operations of the Company and the
Subsidiaries taken as a whole nor does the Company have knowledge of any such
change that is threatened, (B) there has
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not been any transaction entered into by the Company or the Subsidiaries that is
material to the earnings, business, affairs, properties, business prospects or
operations of the Company, other than transactions in the ordinary course of
business and changes and transactions contemplated by the Registration Statement
and the Prospectus, as they may be amended or supplemented, and (C) there has
not been any material change in the capital stock, long term debt or material
liabilities of the Company. The Company and the Subsidiaries have no material
contingent obligations which are not disclosed in the Registration Statement and
the Prospectus.
(xi) Neither the Company nor any of the Subsidiaries individually or
in the aggregate are in breach or violation of or default under any indenture,
mortgage, deed of trust, lease, contract, note or other agreement or instrument
to which it is a party or by which it or any of its properties is bound and
which default may result in a material adverse change in the condition
(financial or otherwise) or in the earnings, business, affairs, properties,
business prospects or results of operations of the Company and the Subsidiaries
taken as a whole. The consummation of the transactions herein contemplated and
the fulfillment of the terms hereof will not result in a breach or violation of
any of the material terms and provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, lease, contract, note or other agreement or
instrument to which the Company or any Subsidiary is a party, or of the
Company's Articles of Incorporation or by-laws or any law, decree, order, rule,
writ, injunction or regulation applicable to the Company or any Subsidiary of a
court or of any regulatory body or administrative agency or other governmental
body having jurisdiction.
(xii) Each approval, consent, order, authorization, designation,
declaration or filing by or with any regulatory, administrative or other
governmental body necessary in connection with the execution and delivery by the
Company of this Agreement and performance of its obligations hereunder (except
such additional steps as may be necessary to qualify the Shares for public
offering by the Underwriters under state securities or Blue Sky laws) have been
obtained or made and is in full force and effect.
(xiii) The Company and each Subsidiary hold all material licenses,
authorizations, charters, certificates and permits from governmental authorities
which are necessary to the conduct of their businesses and neither the Company
nor any Subsidiary has received notice of any proceeding relating to the
revocation or modification of any of such licenses, authorizations, charters,
certificates or permits. The Company and the Subsidiaries own or otherwise
possess rights to use the licenses, inventions, copyrights, trademarks, service
marks and trade names presently employed by them in connection with the business
now operated by them, and neither the Company nor any Subsidiary has infringed
or received any notice of infringement of or conflict with asserted rights of
others with respect to any of the foregoing.
(xiv) Each of Xxxxx Xxxxxxxx Xxxxx and Xxxxx, Xxxxx & Xxxxxx, who
have certified certain of the financial statements filed with the Commission and
included as part of the Registration Statement and Prospectus, are independent
public accountants within the meaning of the Act, the Rules and Regulation S-X
of the Commission and Rule 101 of the Code of Professional Ethics of the
American Institute of Certified Public Accountants.
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(xv) There are no agreements, contracts or other documents of a
character required to be described in the Registration Statement or the
Prospectus or required by Form S-1 to be filed as exhibits to the Registration
Statement which are not described or filed as required.
(xvi) No labor dispute exists or is imminent with the Company's
employees or with employees of any Subsidiary which could materially adversely
affect the condition (financial or otherwise), earnings, business, affairs,
properties, business prospects or results of operations of the Company.
(xvii) Except as contemplated by Section 2 hereof and as disclosed in
the Prospectus and permitted by the Rules, the Company has not (itself or
through any person) taken and will not take, directly or indirectly, any action
designed to or which might reasonably be expected to, cause or result in a
violation of Section 5 of the Act or Rule 10b-6 under the Exchange Act ("Rule
10b-6") or in stabilization or manipulation of the price of the Company's common
stock.
(xviii) This Agreement has been duly authorized, executed and
delivered by the Company and is enforceable against the Company in accordance
with its terms, subject to all applicable bankruptcy, insolvency, moratorium,
receivership, and other laws relating to or affecting the rights of creditors
generally and subject to the discretion of a court of equity in administering
any such rights or remedies.
(xix) Neither the Company nor any Subsidiary is in violation of any
law, ordinance, governmental rule or regulation or court decree to which it may
be subject, which violation might have a material adverse effect on the
condition (financial or otherwise), earnings, business, affairs, properties,
business prospects or the results of operations of the Company and its
Subsidiaries taken as a whole.
(b) Each Selling Stockholder further represents and warrants to, and
agrees with each Underwriter as follows:
(i) As of the Effective Date, the Selling Stockholder shall be the
lawful owner of the number of Shares to be sold by him, her or it, and has or at
such time or times, as required, will have, good and marketable title to all
such Shares, free of all restrictions on transfer (other than those imposed by
the Act, the Company's Articles of Incorporation and by-laws and the securities
or Blue Sky laws of certain jurisdictions), liens, encumbrances, security
interests and claims whatsoever, except where the same shall have been waived in
writing prior to the date hereof.
(ii) The Selling Stockholder has full legal right, power and
authority, and has obtained any approvals required by law or pursuant to any
agreement or instrument to which the Selling Stockholder is a party, to enter
into this Underwriting Agreement, and this Underwriting Agreement has been duly
executed and delivered by the Selling Stockholder.
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(iii) Upon delivery of payment for the Shares to be sold by the
Selling Stockholder pursuant to this Underwriting Agreement, good and marketable
title to such Shares will pass, free of all restrictions on transfer (other than
those imposed by the Act, the Company's Articles of Incorporation and the
securities or Blue Sky laws of certain jurisdictions), liens, encumbrances,
security interests and claims whatsoever, to the several Underwriters.
(iv) The Selling Stockholder has not taken, nor will he, she or it
take, directly or indirectly, any action designed to, or which might reasonably
be expected to, cause or result in stabilization or manipulation of the price of
any security of the Company to facilitate the sale or resale of the Shares owned
by the Selling Stockholder pursuant to the distribution contemplated by this
Underwriting Agreement.
(v) The Selling Stockholder will pay or cause to be paid all
transfer taxes, if any, with respect to the Shares to be sold by the Selling
Stockholder.
(c) Any certificate signed by any officer of the Company or any Selling
Stockholder, as the case may be and delivered to you or counsel for the
Representative shall be deemed a representation and warranty by the Company or
such Selling Stockholder to the Underwriters as to the matters covered thereby.
2. Purchase, Sale and Delivery of the Underwritten Shares. On the basis
of the representations, warranties and covenants herein contained, and subject
to the terms and conditions herein set forth, the Company and the Selling
Stockholders agree, severally, and not jointly, to sell to each Underwriter,
severally and not jointly, and each Underwriter agrees, severally and not
jointly, to purchase, at a price of $________ per share, the number of the
Underwritten Shares set forth opposite the name of each Underwriter in Schedule
I attached hereto, subject to adjustment in accordance with Section 10 hereof.
Subject to the above, the Company has hereby agreed to sell to the Underwriters
700,000 of said Underwritten Shares and the Selling Stockholders have agreed to
sell to the Underwriters 631,700 of said Underwritten Shares, all as
specifically set forth in Schedule I.
Payment for the Underwritten Shares shall be made by certified or bank
cashier's checks in clearing house funds (which will be next day funds) or, upon
mutual agreement of the parties, by wire transfer of U.S. Funds to designated
accounts of the Company and the Selling Stockholders, as appropriate, drawn to
the order of the Company and the Selling Stockholders, respectively, against
delivery of certificates for the Shares to the Representative for the accounts
of the several Underwriters. Delivery of certificates shall be to the
Representative at 000 Xxxxxx Xxxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000 or such other
place as the Representative may reasonably request. Payment will be made at 000
Xxxxxx Xxxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000, or at such other place as shall be
agreed upon by the Representative and the Company, at 8:00 A.M., Central Time,
on the fourth business day after the Effective Date (assuming that the time of
effectiveness is after 3:00 P.M., Central Time on the Effective Date) and
otherwise, at 10:00 A.M., Central Time, on the third business day after the
Effective Date, or at such other time and date not later than six days after the
Effective Date as you and the Company shall agree upon, such time and date of
payment being
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herein referred to as the "Closing Date." The certificates for the Underwritten
Shares will be delivered in such denominations and in such registrations as the
Representative requests in writing not later than the second full business day
prior to the Closing Date, and will be made available for inspection in the
offices of the Representative in Little Rock, or such other place as the
Representative may reasonably request, at least one full business day prior to
the Closing Date.
In addition, on the basis of the representations, warranties, agreements
and covenants herein contained and subject to the terms and conditions herein
set forth, the Company hereby grants an Option to the several Underwriters to
purchase the Option Shares at the price per share as set forth in the first
paragraph of this Section 2. The Option may be exercised in whole or in part at
any time upon written notice (or oral notice, subsequently confirmed in writing)
given not less than 30 days following the date of this Underwriting Agreement,
by you, as the Representative of the several Underwriters, to the Company
setting forth the number of Option Shares as to which the several Underwriters
are exercising the Option and the names and denominations in which the Option
Shares are to be registered. Closing of the purchase of the Option Shares, if
any, shall occur no later than four business days following the date upon which
notice of exercise of the Option is given to the Company. The number of Option
Shares to be purchased by each Underwriter shall be in the same proportion as
the total number of Underwritten Shares being purchased by such Underwriter
bears to the total number of Underwritten Shares being purchased by all
Underwriters as a group, as more particularly indicated on Schedule I, subject
to adjustment in accordance with Section 10 and as adjusted by you in such
manner to avoid fractional shares. The Option may be exercised only to cover
over-allotments in the sale of the Underwritten Shares by the Underwriters.
You, as the Representative, may cancel such Option at any time prior to its
expiration by giving written notice (or oral notice, subsequently confirmed in
writing) of such cancellation to the Company. To the extent, if any, that the
Option is exercised, payment for the Option Shares shall be made at such closing
by certified or bank cashier's checks in clearing house funds (which will be
next day funds) or, upon mutual agreement of the parties, by wire transfer of
U.S. Funds to a designated account of the Company, drawn to the order of the
Company.
3. Offering by the Underwriters. It is understood that the Public
Offering of the Underwritten Shares is to be made as soon as the Representative
deems it advisable to do so after the Registration Statement has become
effective. The Underwritten Shares are to be initially offered to the public
at the public offering price set forth in the Prospectus. The Representative
may from time to time thereafter change the public offering price and other
selling terms. To the extent, if at all, that any Option Shares are purchased
pursuant to Section 2 hereof, the Underwriters will offer them to the public on
the foregoing terms.
It is further understood that you will act as the Representative for the
Underwriters in the offering and sale of the Shares, in accordance with an
Agreement Among Underwriters which has been entered into among you and the
several other Underwriters.
4. Covenants of the Company.
(a) The Company covenants and agrees with the several Underwriters that:
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(i) The Company will use its best efforts to cause the Registration
Statement to become effective and will not, either before or after
effectiveness, file any amendment thereto or supplement to the Prospectus
(including a Prospectus filed pursuant to Rule 424(b) which differs from the
Prospectus on file at the time the Registration Statement becomes effective) of
which the Representative shall not previously have been advised and furnished
with a copy or to which the Representative shall have reasonably objected in
writing or which is not in compliance with the Act or Rules.
(ii) The Company will advise the Representative promptly of any
request of the Commission or other securities regulatory agency ("Other
Securities Regulator") for amendment of the Registration Statement or for
supplement to the Prospectus or for any additional information, or of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or the use of the Prospectus or of the institution of any
proceedings for that purpose, or comparable action taken or initiated by any
Other Securities Regulator, and the Company will use its best efforts to prevent
the issuance of any stop order preventing or suspending the use of the
Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(iii) The Company will cooperate with the Representative in
endeavoring to qualify the Shares for sale under the securities laws of such
jurisdictions (including foreign jurisdictions) as the Representative reasonably
may have designated in writing, and will make such applications, file such
documents and furnish such information as may be reasonably required for that
purpose; provided however, the Company shall not be required to qualify as a
foreign corporation or to file a general consent to service of process in any
jurisdiction where it is not so qualified or required to file such a consent.
The Company will, from time to time, prepare and file such statements, reports,
and other documents, as are or may be required to continue such qualifications
in effect for so long a period as the Representative may reasonably request for
distribution of the Shares.
(iv) The Company will deliver to, or upon the order of, the
Representative, from time to time, as many copies of any preliminary prospectus
as the Representative may reasonably request. The Company will deliver to, or
upon the order of, the Representative on the Effective Date and thereafter from
time to time during the period when delivery of a Prospectus is required under
the Act as many copies of the Prospectus in final form, or as thereafter amended
or supplemented, as the Representative may reasonably request. The Company will
deliver to the Representative at or before the Closing Date, one signed copy of
the Registration Statement and all amendments thereto including all exhibits
filed therewith, and will deliver to the Representative such number of copies of
the Registration Statement, and of all amendments thereto, as the Representative
may reasonably request.
(v) If during the period in which a Prospectus is required by law to
be delivered by an Underwriter or dealer any event shall occur as a result of
which, in the judgment of the Company or in the opinion of counsel for the
Underwriters, with the concurrence of the Company and its counsel, it becomes
necessary to amend or supplement the Prospectus in order to make the statements
therein, in the light of the circumstances existing at the time the Prospectus
is delivered
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to a purchaser, not misleading, or, if it is necessary at any time to amend or
supplement the Prospectus to comply with any law, the Company promptly will
notify the Representative and, subject to the Representative's prior review,
prepare and file with the Commission and any appropriate Other Securities
Regulator an appropriate amendment or supplement to the Prospectus so that the
Prospectus as so amended or supplemented will not, in light of the circumstances
when it is so delivered, be misleading, or so that the Prospectus will comply
with the law.
(vi) The Company will make generally available to its security
holders in the manner contemplated by Rule 158(b) under the Act, as soon as it
is practicable to do so, but in any event not later than the forty-fifth day
after the fiscal quarter first occurring one year after the Effective Date, an
earnings statement (which need not be audited) in reasonable detail covering a
period of at least twelve consecutive months beginning after the Effective Date,
which earnings statement shall satisfy the requirements of Section 11(a) of the
Act and will advise you in writing when such Statement has been so made
available.
(vii) The Company will, for a period of five years from the Closing
Date, deliver to the Representative copies of annual reports and information
furnished by the Company to its shareholders or filed with any securities
exchange pursuant to the requirements of such exchange or with the Commission
pursuant to the Act or the Exchange Act, as amended. The Company will deliver to
the Representative similar reports with respect to any significant subsidiaries,
as that term is defined in the Rules, which are not consolidated in the
Company's financial statements.
(viii) As soon as the Company is advised thereof, it will advise the
Representative, and confirm the advice in writing, that the Registration
Statement and any amendments shall have become effective.
(ix) The Company will use the net proceeds from the sale of the
Shares in the manner forth in the Prospectus under the caption "Use of
Proceeds."
(x) Other than as permitted by the Act and the Rules, the Company
will not distribute any prospectus or offering materials in connection with the
offering and sale of the Shares.
(xi) The Company will maintain a transfer agent and, if necessary
under the jurisdiction of incorporation of the Company, a registrar for its
common stock.
(xii) Except as contemplated hereby or by the Prospectus, the Company
will not, for a period of 180 days after the Effective Date of the Registration
Statement, offer to sell, contract to sell, sell or otherwise dispose of any
shares of the Company's common stock or securities convertible into shares of
the Company's common stock without your prior written consent. Furthermore, the
Company will cause each officer and director of the Company (as set forth in the
Prospectus) to furnish to you, on or prior to the execution of this Underwriting
Agreement, a letter or letters, in form and substance satisfactory to counsel
for Underwriters, pursuant to which each such person shall agree not to offer
for sale, sell, distribute or otherwise dispose of any shares of common stock of
the Company during the 180 days following the Effective Date, except with your
written consent. The Company will also cause each employee of the Company who
purchases any
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of the Shares in the Public Offering to furnish to you, prior to closing,
letters, in form and substance satisfactory to counsel for the Underwriters,
pursuant to which each such person shall agree not to sell, transfer, assign or
hypothecate such Shares for a period of three months following the Effective
Date.
The foregoing covenants and agreements shall apply to any successor of the
Company, including without limitation, any entity into which the Company might
convert or merge.
5. Costs and Expenses. Whether or not the Registration Statement becomes
effective, the Company and the Selling Stockholders (to the extent of their
prorata share based on the number of Shares sold by each) will pay all costs,
expenses and fees incident to the performance of the obligations of the Company
under this Underwriting Agreement, including, without limiting the generality of
the foregoing, the following: accounting fees of the Company; the fees and
disbursements of counsel for the Company; the cost of printing and delivering to
Underwriters copies of the Registration Statement, preliminary prospectus, the
Prospectus, this Underwriting Agreement, the Agreement Among Underwriters, the
Selected Dealer Agreement, Underwriters' Questionnaire and Power of Attorney,
and the Blue Sky Survey and any supplements thereto; the filing fees of the
Commission; the filing fees and expenses incident to securing any required
review by the NASD of the terms of the sale of the Shares; the filing or listing
fees imposed with respect to listing of the Shares on The Nasdaq Stock Market's
National Market, and the expenses, including the reasonable fees and
disbursements of counsel for the Underwriters, incurred in connection with the
qualification of the Shares under State securities or Blue Sky laws and the laws
of any foreign jurisdiction. Any transfer taxes imposed on the sale of the
Shares to the Underwriters will be paid by the Company. Neither the Company nor
the Selling Stockholders shall be required to pay for any of the Underwriters'
expenses (other than those related to qualification under State securities or
Blue Sky laws) except that, if this Underwriting Agreement shall not be
consummated because the conditions in Section 7 hereof are not satisfied, or
because this Underwriting Agreement is terminated by the Representative pursuant
to Section 6 hereof (other than by reason of the failure of the events described
in the first sentence of Section 6(d)), or by reason of any failure, refusal or
inability on the part of the Company or any of the Selling Stockholders to
perform any undertaking or satisfy any condition of this Underwriting Agreement
or to comply with any of the terms hereof on their part to be performed, unless
such failure to satisfy said condition or to comply with said terms is due to
the default or omission of any Underwriter, then the Company shall reimburse the
several Underwriters for all of their actual, accountable out-of-pocket costs
and expenses, including reasonable attorneys' fees and out-of-pocket expenses,
reasonably incurred in connection with investigating, marketing and proposing to
market the Shares or in contemplation of performing their obligations hereunder,
but the Company shall not in any event be liable to any of the several
Underwriters for damages on account of loss of anticipated profits from the sale
by them of the Shares.
6. Conditions of Obligations of the Underwriters. The obligations of the
several Underwriters are subject to the accuracy, as of the Closing Date, of the
representations and warranties of the Company and the Selling Stockholders
contained herein, and to the performance by the Company and the Selling
Stockholders of their respective obligations hereunder and to the following
additional conditions:
11
(a) The Registration Statement shall have become effective not later than
_____ P.M., Central Time, on ___________, 1997, unless a later time and date is
agreed to by the Representative, and no stop order or other order suspending the
effectiveness thereof or the qualification of the Shares under the state
securities or Blue Sky laws of any jurisdiction shall have been issued and no
proceeding for that purpose shall have been taken or, to the knowledge of the
Company, shall be contemplated or threatened by the Commission or any Other
Securities Regulator. If the Company has elected to rely upon Rule 430A of the
Rules, the price of the Shares and any price-related information previously
omitted from the effective Registration Statement pursuant to such Rule 430A
shall have been transmitted to the Commission for filing Pursuant to Rule 424(b)
of the Act within the prescribed time period, and prior to the Closing Date the
Company shall have provided evidence satisfactory to the Representative of such
timely filing, or a post-effective amendment providing such information shall
have been promptly filed and declared effective in accordance with the
requirements of Rule 430A under the Act. All requests for additional
information on the part of the Commission or any other government or regulatory
authority with jurisdiction (to be included in the Registration Statement or
Prospectus or otherwise) shall be complied with to the satisfaction of the
Commission or such authorities.
(b) The Representative shall have received on the Closing Date and any
Option Closing Date the opinion of Rose Law Firm, a Professional Association,
counsel for the Company and the Selling Stockholders, dated the Closing Date and
any Option Closing Date, addressed to the Underwriters in form and substance
satisfactory to Xxxxxx, Xxxxxxx, Xxxxxx & Xxxxxx, PLC, counsel to the
Underwriters, to the effect that:
(i) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Arkansas with
corporate power and authority to own its properties and conduct its business as
described in the Prospectus; each of the Subsidiaries is validly existing as a
state banking corporation in good standing under the laws of the jurisdiction of
its organization, and has corporate power and authority to own its properties
and conduct its business as described in the Prospectus; each of the Company and
the Subsidiaries is duly qualified to transact business in all jurisdictions in
which the conduct of its business or the location of the properties owned or
leased by it requires such qualification; and all of the outstanding shares of
capital stock of the Subsidiaries have been duly authorized and validly issued,
are fully paid and non-assessable, and except as set forth in the Prospectus and
the Registration Statement and except for directors' qualifying shares, if any,
no options, warrants or other rights to purchase, agreements or other
obligations to issue or other rights to convert any obligations into any shares
of capital stock or of ownership interests in the Subsidiaries are outstanding.
(ii) The Company has authorized or outstanding the capital stock set
forth under the caption "Use of Proceeds and Capitalization" in the Prospectus;
the outstanding shares of its capital stock have been duly authorized and
validly issued and are fully paid and non-assessable; all of the Shares conform
to the description thereof contained in the Prospectus; the certificates for the
Shares are in due and proper form, the portion of the Underwritten Shares and
the Option Shares, if any, to be sold pursuant to this Underwriting Agreement
have been duly authorized and will be validly issued, fully paid and non-
assessable when issued and paid for as contemplated by this
12
Underwriting Agreement; no preemptive or other restrictive rights of any holder
of any class of the Company's capital stock exist with respect to any of the
Shares or the issue and sale thereof, except as has been waived in writing by
such persons prior to the date of this Underwriting Agreement, and the issued
and outstanding common stock of each Subsidiary of the Company is owned as
described in the Registration Statement and is validly issued, fully paid and
nonassessable.
(iii) The Registration Statement has become effective under the Act
and to the best knowledge of such counsel, no stop order proceedings with
respect thereto have been instituted or are pending or threatened under the Act.
(iv) The Registration Statement, all preliminary prospectuses, the
Prospectus and each amendment or supplement thereto comply as to form in all
material respects with the requirements of the Act and the Rules, except that
such counsel need express no opinion as to the financial statements, schedules
and other statistical and financial information included therein.
(v) The statements under the caption "Description of Capital Stock"
in the Prospectus that constitute a summary of documents referred to therein or
matters of law, are accurate summaries and fairly and correctly represent the
material information required with respect to such documents and matters.
(vi) Any holders of securities of the Company who have rights to the
registration of shares of common stock or other securities because of the filing
of the Registration Statement by the Company have waived such rights in writing.
(vii) To the best knowledge of such counsel, after due inquiry,
except as set forth in the Registration Statement and Prospectus, no holders of
common stock or other securities of the Company have registration rights with
respect to such securities.
(viii) To the best knowledge of such counsel, after due inquiry, there
are no contracts or documents required to be filed as exhibits to the
Registration Statement or described in the Registration Statement or Prospectus
which are not so filed or described as required, and such contracts and
statements as are summarized in the Registration Statement or Prospectus are
fairly summarized in all material respects consistent with the requirements of
the Act and Rules.
(ix) To the best knowledge of such counsel, after due inquiry, there
are no legal, regulatory or administrative proceedings pending or threatened
against the Company or any Subsidiary which may be material to the earnings,
business, affairs, properties, business prospects or operations of the Company
and its Subsidiaries considered as a whole, except as set forth in the
Prospectus.
(x) This Underwriting Agreement has been duly authorized, executed
and delivered by the Company and the Selling Stockholders and is a valid and
binding obligation of the Company and the Selling Stockholders enforceable
against the Company and the Selling Stockholders in accordance with its terms,
subject to all applicable bankruptcy, insolvency,
13
moratorium, receivership and other laws relating to or affecting the rights of
creditors generally and subject to the discretion of a court of equity in
administering any such rights or remedies.
(xi) No approval, consent, order, authorization, designation,
declaration or filing by or with any regulatory, administrative or other
governmental body is necessary in connection with the execution and delivery of
this Underwriting Agreement and the consummation of the transactions herein
contemplated (other than required by state securities and Blue Sky laws as to
which such counsel need express no opinion) except such as have been obtained or
made, specifying the same.
(xii) The Company and the Subsidiaries hold all material licenses,
certificates and permits from governmental authorities that are necessary for
the conduct of their respective businesses.
In addition to the matters set forth above, such opinion shall also include
a statement to the effect that nothing has come to the attention of such counsel
which leads them to believe that the Registration Statement or any amendment
thereto at the time the Registration Statement or amendment became effective or
the Prospectus or any amendment or supplement thereto as of their respective
dates contains an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances in which they were made, not misleading
(except that such counsel need express no view as to financial statements,
schedules and other financial information included therein). With respect to
such statement, such firm may state that their belief is based upon the
procedures set forth therein, but is without independent check and verification.
(c) The Representative shall have received from Xxxxxx, Xxxxxxx, Xxxxxx and
Xxxxxx, PLC, counsel to the Underwriters, an opinion dated the Closing Date,
substantially to the effects specified in subparagraphs (iii) and (iv) of
paragraph (b) of this Section 6, and that the Company is a validly organized and
existing corporation under the laws of the State of Arkansas. In rendering such
opinion, Xxxxxx, Xxxxxxx, Xxxxxx & Xxxxxx, PLC may rely as to all matters
governed other than by the Federal laws on the opinion of counsel referred to in
paragraph (b) of this Section 6. In addition to the matters set forth above,
such opinion shall also include a statement to the effect that nothing has come
to the attention of such counsel which leads them to believe that the
Registration Statement, the Prospectus or any amendment or supplement thereto as
of their respective dates contains an untrue statement of a material fact or
omits to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances in which they were
made, not misleading (except that such counsel need express no view as to
financial statements, schedules and other financial information included
therein). With respect to such statement, such firm may state that their belief
is based upon the procedures set forth therein, but is without independent check
and verification.
(d) The Representative shall have received at or prior to the Closing Date
from Xxxxxx, Xxxxxxx, Xxxxxx & Xxxxxx, PLC a memorandum or summary, in form and
substance satisfactory to the Representative, with respect to the qualification
for offering and sale by the Underwriters of the Underwritten Shares under the
state securities or Blue Sky laws of such jurisdictions as the Representative
may reasonably have requested.
14
(e) The Representative shall have received on the Closing Date and any
Option Closing Date signed letters from each of Xxxxx Xxxxxxxx Xxxxx and Xxxxx,
Xxxxx & Xxxxxx addressed to the Underwriters dated as of the Effective Date and
again dated as of the Closing Date and any Option Closing Date, with respect to
the financial statements and certain financial information contained in the
Registration Statement and the Prospectus. All such letters shall be in form
and substance satisfactory to the Representative and Xxxxxx, Xxxxxxx, Xxxxxx &
Xxxxxx, PLC, counsel to the Underwriters.
(f) The Representative shall have received on the Closing Date and any
Option Closing Date a certificate of the Chairman of the Board of Directors and
the Chief Financial Officer of the Company, respectively, to the effect that, as
of the Closing Date and any Option Closing Date, each of them severally
represents as follows:
(i) (1) the representations and warranties of the Company in this
Agreement are true and correct on and as of the Closing Date and any Option
Closing Date, as the case may be, and (2) the Company has complied with all the
agreements and has satisfied all of the conditions on its part to be performed
or satisfied at or prior to the Closing Date and any Option Closing Date, as the
case may be.
(ii) (1) the Registration Statement has become effective under the
Act; (2) no stop order suspending the effectiveness of the Registration
Statement or the use or effectiveness of the Prospectus has been issued; (3) no
proceedings for such purpose have been taken or, to his knowledge, are
contemplated by the Commission or any Other Securities Regulator; and (4) all
requests for additional information on the part of the Commission or any Other
Securities Regulator have been complied with.
(iii) He has carefully examined the Registration Statement and the
Prospectus and, in his opinion, since the Effective Date, no event has occurred
which should have been set forth in a supplement to or an amendment to the
Prospectus which has not been so set forth in such supplement or amendment.
(g) The Underwriters shall have received from each of the Selling
Stockholders on the Closing Date, certificates dated as of the Closing Date, to
the effect as follows:
(i) The representations and warranties of the Selling Stockholder in
this Underwriting Agreement are true and correct as of the Closing Date; and
(ii) The Selling Stockholder has in all material respects complied
with all the agreements and have satisfied all of the conditions on his, her or
its part to be performed or satisfied at or prior to the Closing Date.
(h) The Company and the Selling Stockholders shall have furnished to the
Representative such additional information and further certificates and
documents confirming the representations
15
and warranties contained herein and related matters as the Representative may
reasonably have requested.
(i) Since the respective dates as of which information is given in the
Prospectus, there shall not have occurred any material adverse change in the
condition (financial or otherwise), or in the earnings, business, affairs,
properties, business prospects or results of operations of the Company or any
Subsidiary, whether or not arising in the ordinary course of business.
The opinions and certificates mentioned in this Agreement shall be deemed
to be in compliance with the provisions hereof only if they are in all material
respects satisfactory to the Representative and Xxxxxx, Xxxxxxx, Xxxxxx &
Xxxxxx, PLC, counsel for the Underwriters.
If any of the conditions hereinabove provided for in this Section 6 shall
not have been fulfilled when and as required by this Agreement to be fulfilled,
the obligations of the Underwriters hereunder may be terminated by the
Representative by notifying the Company of such termination in writing or by
confirmed telefax at or prior to the Closing Date. In such event, the Company,
the Selling Stockholders and the Underwriters shall not be under any obligation
to each other (except to the extent provided in Sections 5 and 8 hereof).
7. Conditions of the Obligations of the Company and the Selling
Stockholders. The obligations of the Company and the Selling Stockholders to
sell and deliver the Shares are subject to the conditions that (a) at or before
_____ P.M., Central Time, on _________________, or such later time and date as
the Company and the Representative may from time to time consent to in writing
or by confirmed telefax, the Registration Statement shall have become effective,
and (b) at the Closing Date no stop order suspending the effectiveness of the
Registration Statement shall have been issued or proceedings therefor initiated
or threatened. If either of the Conditions hereinabove provided for in this
Section 7 shall not have been fulfilled when and as required by this Agreement
to be fulfilled, this Agreement may be terminated by the Company and the Selling
Stockholders by notifying the Representative of such termination in writing or
by confirmed telefax at or prior to the Closing Date.
8. Indemnification.
(a) The Company and Xxxxxx X. Xxxxxxx, XX (in his individual capacity)
jointly and severally agree to indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning of the Act,
the Rules and the Exchange Act from and against any and all losses, claims,
damages, liabilities, joint or several, and all expenses (including costs of
investigation and legal expenses) to which such Underwriter or such controlling
person may become subject under the Act or otherwise, insofar as such losses,
claims, damages, liabilities or expenses (or actions or proceedings in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement, any
preliminary prospectus, the Prospectus or any amendment 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; and the Company and Mr.
16
Xxxxxxx will reimburse each Underwriter and each such controlling person for
legal and other expenses incurred in connection with investigating or defending
any such loss, claim, damage, liability, action or proceeding; provided,
however, that neither the Company nor Xx. Xxxxxxx will be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement, or alleged untrue statement, or omission
or alleged omission made in the Registration Statement, any preliminary
prospectus, the Prospectus, or such amendment or supplement, in reliance upon or
in conformity with written information furnished to the Company by or through
the Representative specifically for use in the preparation thereof. This
indemnity agreement will be in addition to any liability which the Company or
the Selling Stockholders may otherwise have.
Notwithstanding the above, Xx. Xxxxxxx shall be liable to all persons under
the indemnity agreement contained in this Section 8(a) and for breaches of the
representations and warranties contained in Section 1 hereof only for an
aggregate amount not exceeding the net proceeds received by him from the sale of
Shares hereunder.
(b) The Selling Stockholders, other than Xx. Xxxxxxx in light of his
agreement pursuant to Section 8(a) above, jointly and severally agree to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter, within the meaning of the Act, the Rules and the
Exchange Act, from and against any losses, claims, damages, or liabilities,
joint or several (or actions or proceedings in respect thereof) and all expenses
(including costs of investigation and legal expenses) to which such Underwriters
or such controlling person may become subject under the Act or otherwise,
insofar as such losses, claims, liabilities or expenses arise out of or are
based upon any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement, any preliminary prospectus, the
Prospectus or any amendment or supplement thereto, in each case to the extent,
but only to the extent, that either (A) such untrue statement or alleged untrue
statement or omission or alleged omission was made in the Registration
Statement, any preliminary prospectus, the Prospectus, or any amendment or
supplement thereto, in conformity with written information furnished to the
Company by or on behalf of such Selling Stockholder specifically for use therein
or (B) such Selling Stockholder, as of the date of any Registration Statement,
any preliminary prospectus, the Prospectus, or any amendment or supplement
thereto in issue, possessed actual knowledge that such statement was untrue or
possessed actual knowledge of the information that had been omitted or was
alleged to be omitted; provided, however, that the Selling Stockholders will not
be liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement, or alleged untrue
statement, or omission or alleged omission made in the Registration Statement,
any preliminary prospectus, the Prospectus, or such amendment or supplement, in
reliance upon and in conformity with written information furnished to the
Company by or through the Representative specifically for use in the preparation
thereof.
Notwithstanding the above, each Selling Stockholder shall be liable to all
persons under the indemnity agreements contained in this Section 8(b) and for
breaches of its representations contained in Section 1 hereof only for an
aggregate amount not exceeding the net proceeds received by such Selling
Stockholder from the sale of Shares hereunder.
17
(c) Each Underwriter will indemnify and hold harmless the Selling
Stockholders, the Company, each of its directors, each of its officers who have
signed the Registration Statement, and each person, if any, who controls the
Company, within the meaning of the Act, the Rules and the Exchange Act, from and
against any losses, claims, damages, liabilities or expenses to which the
Selling Stockholders, the Company or any such director, officer, or controlling
person may become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions or proceedings in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in the Registration Statement, any preliminary
prospectus, the Prospectus or any amendment 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 in light of the circumstances under which they were made;
and will reimburse any legal or other expenses reasonably incurred by the
Selling Stockholders, the Company or any such director, officer, or controlling
person in connection with investigating or defending any such loss, claim,
damage, liability, action or proceeding; provided, however, that each
Underwriter will be liable in such case only to the extent that such untrue
statement, or alleged untrue statement or omission or alleged omission has been
made in the Registration Statement, any preliminary prospectus, the Prospectus,
or such amendment or supplement, in reliance upon and in conformity with written
information furnished to the Company by or through the Representative expressly
for use in the preparation thereof. This indemnity agreement will be in
addition to any liability which such Underwriter may otherwise have.
(d) Promptly after receipt by an indemnified party under this Section 8 of
notice of the commencement of any action or proceeding, such indemnified party
will, if a claim in respect thereof is to be made against an indemnifying party
under this Section 8, notify the indemnifying party of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than under
this Section 8. In case any such action or proceeding is brought against any
party, and it notifies an indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and, to the extent
that it may wish, jointly with any other indemnifying party similarly notified,
to assume the defense thereof with counsel 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, the indemnifying party will not
be liable to such indemnified party under this Section 8 for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation. Notwithstanding
the foregoing, the indemnified party, at any time after such assumption of
defense by the indemnifying party, shall be entitled to participate in such
defense and to engage separate counsel (at the indemnifying party's expense) if,
in the indemnified party's reasonable belief, a conflict of interest exists with
counsel engaged by the indemnifying party.
(e) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in this Section 8 is for
any reason held to be unavailable to an indemnified party under subsection (a),
(b) or (c) above in respect of any losses, claims, damages, liabilities or
expenses referred to therein, then each applicable indemnifying party, in lieu
of indemnifying such indemnified party, shall contribute to the amount paid or
payable by such
18
indemnified party as a result of such losses, claims, damages, liabilities and
expenses (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Selling Stockholders on the one hand
and the Underwriters on the other hand from the offering of the Shares or (ii)
if the allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
parties in connection with the statements or omissions which resulted in such
losses, claims, damages, liabilities, expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Company and the
Selling Stockholders on the one hand and the Underwriters on the other shall be
deemed to be in the same proportion as the total proceeds from the offering (net
of underwriting discounts and commissions but before deducting expenses)
received by the Company and the Selling Stockholders bears to the underwriting
discounts and commissions received by the Underwriters. The relative fault of a
party shall be determined by reference to, among other things, whether the true
or alleged untrue statement of a material fact or the omission to state a
material fact relates to information supplied by each party and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The amount paid or payable by a party as a
result of the losses, claims, damages, liabilities and expenses referred to
above shall be deemed to include any legal or other fees or expenses reasonably
incurred by such party in connection with investigating or defending any such
action or claim.
The Company, the Selling Stockholders and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this Section 8 were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to in the immediately
preceding paragraph. Notwithstanding the provisions of this Section 8, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Shares underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages that
such Underwriters have otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this subsection
(e) to contribute shall be several in proportion to their respective
underwriting obligations and not joint.
(f) In any proceeding relating to the Registration Statement, any
preliminary prospectus, the Prospectus or any supplement or amendment thereto,
each party against whom contribution may be sought under this Section 8 hereby
consents to the jurisdiction of any court having jurisdiction over any other
contributing party, 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. Representations, Warranties and Agreements to Survive Delivery. All
representations, warranties and agreements of the Selling Stockholders, the
Company and officers
19
of the Company herein or in certificates delivered pursuant hereto, and the
indemnity and contribution agreements contained in Section 8 hereof, shall
remain operative and in full force and effect regardless of any investigation
made by or on behalf of any Underwriters or any controlling person, or by or on
behalf of the Selling Stockholders, the Company or any of its officers,
directors or controlling persons, and shall survive delivery of the Underwritten
Shares and, if applicable, the Option Shares to the Representative or
termination of this Underwriting Agreement.
10. Default by Underwriters. If any Underwriter shall fail to purchase
and pay for the Shares which such Underwriter has agreed to purchase and pay for
hereunder (otherwise than by reason of any default on the part of the Company or
any of the Selling Stockholders), you, as the Representative of the
Underwriters, shall use your best efforts to procure within twenty-four hours
thereafter one or more of the other Underwriters, or any others, to purchase
from the Company and the Selling Stockholders such amounts as may be agreed upon
and upon the terms set forth herein, the Shares which the defaulting Underwriter
or Underwriters failed to purchase. If during such twenty-four hours you, as
such Representative, shall not have procured such other Underwriters, or any
others, to purchase the Shares agreed to be purchased by the defaulting
Underwriter or Underwriters, then (a) if the aggregate number of Shares with
respect to which such result shall occur does not exceed 10% of the Shares which
the Underwriters are obligated to purchase hereby, the other Underwriters shall
be obligated, severally, in proportion to the respective number of shares which
they are obligated to purchase hereunder, to purchase the Shares which such
defaulting Underwriter or Underwriters failed to purchase, or (b) if the
aggregate number of Shares with respect to which such default shall occur
exceeds 10% of the Company's and the Selling Stockholders' common stock covered
hereby, the Company and the Selling Stockholders or you, as the Representative
of the Underwriters will have the right, by written notice given within the next
twenty-four hour period to the parties to this Underwriting Agreement, to
terminate this Underwriting Agreement without liability on the part of the non-
defaulting Underwriters or of the Company and the Selling Stockholders except to
the extent provided in Section 8 hereof. In the event of a default by any
Underwriter or Underwriters, as set forth in this Section 10, the time of
closing may be postponed for such period, not to exceed seven days, as you, as
the Representative, may determine in order that the required changes in the
Registration Statement or in the Prospectus or in any other documents or
arrangements may be effected. The term "Underwriters" includes any person
substituted for a defaulting Underwriter. Any action taken under Section 10
shall not relieve any defaulting Underwriter from liability in respect of any
default of such Underwriter under this Underwriting Agreement.
11. Notices. All communications hereunder shall be in writing and, except
as otherwise provided herein, will be mailed, delivered or telefaxed and
confirmed as follows: if to the Underwriters, to Xxxxxxxx Inc., 000 Xxxxxx
Xxxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000, Attention: Xxxxxxx X. Xxxxx; with a copy to
H. Xxxx Xxxxxxx, III, Xxxxxx, Xxxxxxx, Xxxxxx & Xxxxxx, PLC, 000 Xxxxxx
Xxxxxx, Xxxxx 0000, Xxxxxx Xxxx, Xxxxxxxx, 00000; if to the Company or the
Selling Stockholders, to Bank of the Ozarks, Inc., 000 Xxxx Xxxxxxx Xxxxxx,
Xxxxx 0000, Xxxxxx Xxxx, Xxxxxxxx 00000, Attention: Xxxxxx X. Xxxxxxx, XX; with
a copy to Xxx X. Xxxxxxx, Xxxx Law Firm, a Professional Association, 000 Xxxx
Xxxxxx Xxxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000.
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12. Termination. This Agreement may be terminated by notice to the
Company as follows:
(a) at any time prior to the earlier of (i) the time the Shares are
released by you for sale by notice to the Underwriters, or (ii) 11:30 A.M.,
Central Time, on the first business day following the date on which the
Registration Statement becomes effective;
(b) at any time prior to the Closing Date if any of the following has
occurred: (i) since the respective dates as of which information is given in the
Registration Statement and the Prospectus, any material adverse change or a
development involving a prospective material adverse change in or affecting
particularly the condition, financial or otherwise, of the Company or the
earnings, affairs or business prospects of the Company, whether or not arising
in the ordinary course of business, which would, in your reasonable judgment,
materially impair the investment quality of the Shares, (ii) any outbreak of
hostilities or other national or international calamity or crisis or change in
economic or political conditions if the effect of such outbreak, calamity,
crisis or change on the financial markets of the United States would, in your
reasonable judgment, make the offering or delivery of the Shares impracticable,
(iii) suspension of trading or general trading halts in securities on the New
York Stock Exchange, the American Stock Exchange, The Nasdaq Stock Market or the
over-the-counter market or limitation on prices (other than limitations on hours
or numbers of days or trading) for securities on either such Exchange, The
Nasdaq Stock Market or the over-the-counter market, (iv) the enactment,
publication, decree or other promulgation of any federal or state statute,
regulation, rule or order of any court or other governmental authority which in
your reasonable opinion materially and adversely affects or will materially or
adversely affect the business or operations of the Company, (v) declaration of a
banking moratorium by either federal or New York State authorities, or (vi) the
taking of any action by any federal, state or local government or agency in
respect of its monetary or fiscal affairs which in your reasonable opinion has a
material adverse effect on the securities markets in the United States; or
(c) as provided in Sections 6 and 10 of this Agreement.
13. Successors. This Agreement has been and is made solely for the
benefit of the Underwriters, the Selling Stockholders, the Company and their
respective successors, executors, administrators, heirs, and assigns, and the
officers, directors and controlling persons referred to herein, and no other
person will have any right or obligation hereunder. The term "Successors" shall
not include any purchaser of the Shares merely because of such purchase.
14. Miscellaneous. The reimbursement, indemnification and contribution
agreements contained in this Underwriting Agreement and the representations,
warranties and covenants of the Company and the Selling Stockholders in this
Underwriting Agreement shall remain in full force and effect regardless of (a)
any termination of this Underwriting Agreement, (b) any investigation made by or
on behalf of the Underwriters or controlling person or (c) delivery of any
payment for the Shares under this Underwriting Agreement.
21
This Underwriting Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
This Underwriting Agreement shall be governed by, and construed in
accordance with, the laws of the State of Arkansas applicable to contracts made
and performed within such State.
22
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicates hereof, whereupon it will
become a binding agreement among the Company, the Selling Stockholders and the
several Underwriters in accordance with its terms.
Very truly yours,
BANK OF THE OZARKS, INC.
By:
----------------------------------------
Its:
---------------------------------------
23
SELLING STOCKHOLDERS:
-------------------------------------------
Xxxxxx X. Xxxxxxx, XX
XXXX-XXXX CHILDREN'S TRUST #1
XXXX-XXXX CHILDREN'S TRUST #2
XXXX-XXXX CHILDREN'S TRUST #3
XXXX-XXXX CHILDREN'S TRUST #4
XXXX-XXXX CHILDREN'S TRUST #5
XXXX-XXXX CHILDREN'S TRUST #6
XXXX-XXXX GRANDCHILDREN'S TRUST
By:
-----------------------------------------
Xxxxxx X. Xxxxxxx, XX, Trustee for all
of the above-referenced Trusts
The foregoing Underwriting Agreement
is hereby confirmed and accepted as of
the date first above written.
XXXXXXXX INC., As Representative of the
Several Underwriters named in Schedule I
By:
-----------------------------------
Authorized Officer
24
SCHEDULE I
No. of Underwritten
Name Shares
---- -------------------
Xxxxxxxx Inc.
-------------------
TOTAL 1,331,700
===================
SHARES BEING SOLD BY SELLING STOCKHOLDERS
-----------------------------------------
Name of Selling Stockholder No. of Underwritten
--------------------------- Shares
-------------------
Xxxxxx X. Xxxxxxx, XX 316,900
-------------------
Xxxx-Xxxx Children's Trust #1
-------------------
Xxxx-Xxxx Children's Trust #2
-------------------
Xxxx-Xxxx Children's Trust #3
-------------------
Xxxx-Xxxx Children's Trust #4
-------------------
Xxxx-Xxxx Children's Trust #5
-------------------
Xxxx-Xxxx Children's Trust #6
-------------------
Xxxx-Xxxx Grandchildren's Trust 133,300
-------------------
TOTAL 631,700
===================
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