1
EXHIBIT 1
700,000 SHARES
COMMUNITY CENTRAL BANK CORPORATION
COMMON STOCK
UNDERWRITING AGREEMENT
____________, 1998
Xxxxx Capital Markets,
A Division of First Chicago Capital
Markets, Inc.
Xxx Xxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
Dear Sirs:
Community Central Bank Corporation, a Michigan corporation
(the "COMPANY"), proposes to issue and sell 700,000 shares (the "FIRM SHARES")
of its authorized but unissued Common Stock (the "COMMON STOCK") to Xxxxx
Capital Markets, a division of First Chicago Capital Markets, Inc. ("XXXXX" or
"UNDERWRITER"). In addition, the Company proposes to grant to the Underwriter an
option to purchase up to an additional 105,000 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
for a purchase price of $_____ ($_____ per Share plus $20,000).
(b) On the basis of the representations, warranties and
agreements of the Company contained in, and subject to the terms and
conditions herein set forth and to the policies of the National
Association of Securities Dealers, Inc. (the "NASD"), and pursuant to
directions from the Company, Xxxxx will offer to sell to each of the
persons listed on Exhibit A who may purchase alone or with family
members, all to the extent permitted by the Free-Riding and Withholding
Interpretation (the "INTERPRETATION") under the NASD's Conduct Rules,
the number of shares of Common Stock set forth opposite their
respective names on Exhibit A. To the extent such persons offer to buy
such Shares of Common
2
Stock, Xxxxx agrees to purchase such Shares at the price per Share set
forth in Section 1(a) above, to the extent permitted by the
Interpretation. The Company acknowledges that in order to comply with
the Interpretation, Xxxxx may be required to cancel trades involving
such persons.
(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 the price
per Share set forth in Section 1(a) above. 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 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 and payment of the purchase price by wire transfer of immediately
available funds or 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, 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 shall designate by
at least 48 hours prior notice to the Company (the "FIRM SHARES CLOSING DATE");
provided, however, that if the Prospectus (as defined in Section 4 below) is at
any time prior to the Firm Shares Closing Date recirculated to the public, the
Firm Shares Closing Date shall occur upon the later of the third or fourth, as
the case the may be, full business day following the first date that any of the
Shares are released by the Underwriter for sale to the public or the date that
is 48 hours after the date that the Prospectus has been so recirculated.
To the extent the option with respect to the Optional Shares
is exercised, delivery by the Company of the Optional Shares, and payment of the
purchase price by wire transfer of immediately available funds or by certified
or official bank check payable in Detroit Clearing
2
3
House (next day) funds to the Company, shall take place at the offices of Xxxxx
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 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, if requested by Xxxxx, shall be made available to Xxxxx
for checking and packaging, at such place as is designated by Xxxxx, 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 xxxxx 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
agrees 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. 333-04113), 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
3
4
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 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.
4
5
(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) Xxxxxx & Xxxxx, LLP, 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, Community Central Bank, a
Michigan banking corporation (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 Michigan.
Neither the Company nor the Bank have any properties or conduct any
business outside of the State of Michigan 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 Michigan. 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
"FIB APPLICATION") was approved by the Commissioner of the Financial
Institutions Bureau for the State of Michigan (the "COMMISSIONER") on
May 9, 1996, pursuant to Order No. BT-0612-96-02, subject to certain
conditions specified in the Order and supplemental correspondence from
the Commissioner dated the same date. The Order and supplemental
correspondence from the Commissioner are collectively referred to in
this Agreement as the "FIB ORDER." All conditions contained in the FIB
Order 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 August
6, 1996 (the "FDIC ORDER"), subject to certain conditions specified in
the Order. Except as described in the Registration Statement with
respect to the ratio of Tier 1 capital to unadjusted assets, 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 (the "BANK HOLDING COMPANY APPLICATION")
under the Bank Holding Company Act of 1956, as amended, was approved on
September 11, 1996 (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
5
6
have been satisfied. Each of the FIB 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. The FIB Order, the FDIC
Order, and the Federal Reserve Board approval remain in full force and
effect and have not been modified in any way. Other than the remaining
conditions to be fulfilled under the FIB 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 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 periods 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 not infringing, or has not received any
notice of infringement of, any Intangible of any other person.
(i) The Company has a valid and enforceable leasehold interest
in the premises located at 000 Xxxxx Xxxx Xxxxxx, and 00 Xxxxx Xxxxxx,
Xxxxx 000, Xxxxx Xxxxxxx, Xxxxxxxx, which is as described in the
Prospectus, and is 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 the Company or the
6
7
Bank, or the 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,
7
8
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. The number of shares of Common Stock of the Company
that are issued and outstanding is set forth in the Prospectus. 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.
All of the outstanding capital stock of the Bank is duly authorized and
validly issued, fully paid and nonassessable and is owned by the
Company, free and clear of all liens, encumbrances and security
interests (subject to the provisions of the Michigan Banking Code of
1969 (the "BANKING CODE"), including, without limitation, Sections 77
and 201 of 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 1996 Employee Stock Option
Plan and the 1996 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.
(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.
8
9
(t) Neither the Company, nor the Bank, nor, to the Company's
knowl edge 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 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.
(y) No person holds a right to (i) require or participate in
the registration under the Act of the Shares to be affected by the
Registration Statement, or (ii) require any other registration
statement to be filed in connection with any capital stock of the
Company within 180 days from the date of the Prospectus, without your
prior written consent.
9
10
(z) The Company has filed all reports, proxy statements and
other information, and all amendments to previously filed reports,
proxy statements and other information, required to be filed by it
pursuant to Sections 13, 14 or 15(d) of the Exchange Act.
5. CONDITIONS OF THE UNDERWRITER'S OBLIGATIONS. The obligation of the
Underwriter to purchase the Shares shall be subject to and conditioned on the
accuracy of the representations 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;
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
(b) At each Closing Date, Xxxxx shall have received the
favorable opinion of Xxxxxxxxx Xxxxxx PLLC, 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, to the effect that:
(i) The Company (A) is a corporation duly
organized, existing and in good standing under the laws of the
State of Michigan and (B) is not required to be qualified to
do business in any jurisdiction outside Michigan. The Bank (A)
is a banking corporation existing and in good standing under
the laws of the State of Michigan and (B) is not required to
be qualified to do business in any jurisdiction outside
Michigan.
(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 bank regulatory officials
and bodies necessary, to own its properties and to commence
and conduct its business as described in the Registration
10
11
Statement and Prospectus, including, without limitation, the
FIB Order, the FDIC Order and the Federal Reserve Board
Approval all as described in Section 4(f) above, except for
such authorizations, approvals, orders, licenses, certificates
and permits as are not material to the ownership of their
properties or commencement or conduct of their businesses;
(iii) The Company has authorized and outstanding
capital stock as set forth in the Prospectus; the Shares have
been duly and validly authorized and 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 and will not be subject to preemptive rights; the
Shares and the Common 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 and the Bank has no
subsidiary;
(v) The Company is the registered holder of all of
the outstanding capital stock of the Bank, and all such shares
of stock so held are validly issued and outstanding, fully
paid and nonassessable and are owned free and clear of any
liens, encumbrances or other claims or restrictions
whatsoever, subject to the provisions of the Banking Code,
including, without limitation, Sections 77 and 201 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, 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 (including requirements of reasonableness
and good faith in the exercise of rights and remedies),
whether applied by a court of equity or a court of law 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
11
12
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 or limited by applicable laws or the policies
embodied in them;
(viii) the Company is conveying to the Underwriter
good and valid title to the Shares that are issued in its
name, free and clear of any adverse claims, except to the
extent the Underwriter has notice of any adverse claim;
(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, which are of a
character required to be disclosed in the Registration
Statement and Prospectus and which have not been so
disclosed;
(x) the statements in the Registration Statement
and the Prospectus, insofar as they are descriptions of
corporate documents, stock option plans, contracts, or
agreements 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
12
13
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 be materially adverse 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 those which 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, as the case may be, is a party or by which it is
bound; (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 be materially adverse to 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 with the requirements of the Securities Act
and the Rules in all material respects; and
(xv) the Registration Statement is effective under
the Securities Act, and, to the best of such counsel's
knowledge, after due inquiry, no proceedings for a stop order
are pending or threatened under the Securities Act.
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
qualifications in its opinion as are
13
14
reasonably acceptable to Xxxxx Copies of all such certificates shall
be furnished to counsel to Xxxxx on the Closing Date.
In addition, such counsel shall state that they have
participated in con ferences with officers of the Company, some of
which conferences were also attended by one or more representatives of
the Underwriter, at which the contents of the Registration Statement
and Prospectus and related matters were discussed and although such
counsel did not independently verify the accuracy or completeness of
the statements made in the Registration Statement and Prospectus and
does not assume any responsibility for the accuracy or completeness of
the statements in the Registration Statement and Prospectus, on the
basis of the foregoing, nothing has come to the attention of such
counsel that would lead them to believe that the Registration Statement
or Prospectus, as amended or supplemented, if amended or supplemented,
contains any untrue statement of a material fact or omits a material
fact required to be stated therein or necessary to make the statements
therein not misleading; except that such statement may exclude
financial statements, financial data, and statistical information
included in the Registration Statement and Prospectus.
(c) On or prior to each Closing Date, Xxxxx 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 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.
14
15
(e) At each Closing Date, Xxxxx shall have received a
certificate signed by the Chairman of the Board and the President 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 shall have
received a "blue sky" memorandum of Xxxxxxxxx Xxxxxx PLLC, counsel for
the Company, addressed to Xxxxx and in form and scope reasonably
satisfactory to Xxxxx concerning compliance with the blue sky or
securities laws of the states listed in Exhibit B 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 and to counsel for Xxxxx, and Xxxxx shall have
received from counsel for Xxxxx 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 may reasonably
require, if the failure to receive a favorable opinion with respect to
such other related matters would cause Xxxxx to deem it inadvisable to
proceed with the sale of the Shares.
(h) There shall have been duly tendered to Xxxxx or Roney's
nominee 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 B, 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 Roney'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.
(k) At the time this Agreement is executed and at each Closing
Date, you shall have received a comfort letter from Xxxxxx & Xxxxx, LLP
in a form reasonably acceptable to Xxxxx, dated as of the date of this
Agreement and as of each Closing Date.
15
16
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 may terminate this
Agreement pursuant to Section 9(c) hereof or, if Xxxxx 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 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, 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 promptly and prepare and file with the
Commission an appropriate amendment or supplement in form satisfactory
to Xxxxx. 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 and, as
soon as the Registration Statement, or any amendment or supplement
thereto, becomes
16
17
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 may reasonably
request.
(d) Endeavor in good faith, in cooperation with Xxxxx 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 B. In each jurisdiction where such
qualification shall be effected, the Company will, unless Xxxxx 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 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, 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 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 the following:
(i) at the time they have been sent to shareholders
of the Company or filed with the Commission three copies 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, three copies 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;
17
18
(iii) all other information reasonably requested by
Xxxxx 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 may from time
to time reasonably request.
(h) Apply the net proceeds from the offering in the manner set
forth under "Purpose of the Offering" 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 shall reasonably object in writing after being
furnished a copy thereof.
(j) 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.
(k) Use every reasonable effort to affect the quotation of the
Firm Shares and any Additional Shares on the OTC Bulletin Board as
promptly as practicable.
(l) 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 B, 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
18
19
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; and (9) the
Underwriter's out-of-pocket expenses, including without limitation,
road show expenses and legal fees of counsel to Xxxxx (such
out-of-pocket expenses and legal fees payable by the Company shall not
exceed $45,000), but not including any expenses for items described in
Section 6(l)(1-8). Upon a successful completion of the offering, the
Underwriter will waive its right to reimbursement for, or if previously
reimbursed by the Company will credit against the underwriting
discount, the out-of-pocket and legal fee reimbursement described in
Section 6(l)(9).
(m) Not, without the prior written consent of Xxxxx, 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
180 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.
(n) For not less than 3 fiscal years after the Effective Date,
unless Xxxxx shall otherwise consent in writing, (i) timely file with
the Commission all reports required by Section 15(d) of the Exchange
Act and not seek suspension of the duty to file such reports; and (ii)
not less frequently than annually prepare a proxy statement and annual
report which conform substantially to the requirements of Commission
Regulation 14A and distribute such proxy statement and annual report to
record and beneficial owners substantially in the manner which would be
required by Commission Regulation 14A if it were applicable.
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
19
20
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, 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,
20
21
enclosing a copy of all papers served, but the omission so to notify
such indemnifying party of any such action, suit or proceeding shall
not relieve it from any liability that it may have to any indemnified
party otherwise than under this Section. In case any such action, suit
or proceeding shall be brought against any indemnified party and it
shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate in, and, to the
extent that it shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel
reasonably satisfactory to such indemnified party, and after notice
from the indemnifying party to such indemnified party of its election
so to assume the defense thereof and the approval by the indemnified
party of such counsel, the indemnifying party shall not be liable to
such indemnified party for any legal or other expenses, except as
provided below and except for the reasonable costs of investigation
subsequently incurred by such indemnified party in connection with the
defense thereof. The indemnified party shall have the right to employ
its counsel in any such action, but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless (1)
the employment of counsel by such indemnified party has been authorized
in writing by the indemnifying parties, (2) the indemnified party shall
have reasonably concluded that, because of the existence of different
or additional defenses available to the indemnified party or of other
reasons, there may be a conflict of interest between the indemnifying
parties and the indemnified party in the conduct of the defense of such
action (in which case the indemnifying parties shall not have the right
to direct the defense of such action on behalf of the indemnified
party) or that, under the circumstances, it is otherwise appropriate,
or (3) the indemnifying parties shall not have employed counsel to
assume the defense of such action within a reasonable time after notice
of the commencement thereof, in each of which cases the fees and
expenses of counsel shall be at the expense of the indemnifying
parties. An indemnifying party shall not be liable for any settlement
of any action, suit, proceeding or claims effected without its written
consent.
8. CONTRIBUTION. In order to provide for just and equitable
contribution in circumstances in which the indemnification provided for in
Section 7(a) or 7(b) is due in accordance with its terms but for any reason is
held to be unavailable, the Company and the Underwriter shall contribute to the
aggregate losses, claims, damages and liabilities (including any investigation,
legal and other expenses reasonably incurred in connection with, and any amount
paid in settlement of, any action, suit or proceeding or any claims asserted,
but after deducting any contribution received from other persons), to which the
Company and the Underwriter may be subject, in such proportion so that the
Underwriter is responsible for that portion represented by the percentage that
the underwriting discount appearing on the front cover page of the Prospectus
bears to the public offering price appearing thereon and the Company is
responsible for the balance; provided, however, that (a) in no case shall the
Underwriter be responsible for
21
22
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 not
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 by notifying
the Company at any time:
(a) before the earliest of (1) 11:00 a.m., Detroit time, on
the business day following the Effective Date, (2) the time of release
by Xxxxx for publication of the first newspaper advertisement with
respect to the Shares and (3) the time when the Shares are first
generally offered by the Underwriter to dealers by letter or telegram
or other means;
(b) at or before any Closing Date if, in the judgment of
Xxxxx, 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
22
23
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 Michigan 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 Roney's opinion, make it inadvisable to proceed
with the offering of the Shares, or (4) 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
Roney'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 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) (other than (b)(4)) 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), up to a maximum of $45,000, incurred by it in connection with
the proposed purchase and sale of the Shares or in contemplation of performing
its obligations hereunder.
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
23
24
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 facsimile transmission, if
subsequently confirmed in writing, to Xxxxx, at Xxx Xxxxxxxx, Xxxxxxx, Xxxxxxxx
00000 (facsimile No. (000) 000-0000) (with a copy to Xxxxxx X. Xxxxx, Xxxxxx
Xxxxxxxx & Xxxx LLP, 000 Xxx Xxxx Xxxxxxxx, 000 Xxxx Xxxxxx, X.X., Xxxxx Xxxxxx,
Xxxxxxxx 00000 (facsimile No. (000) 000-0000)); and to the Company at 000 Xxxxx
Xxxx Xxxxxx, Xxxxx Xxxxxxx, Xxxxxxxx 00000, Attention: Xxxxxx X. Xxxxxxxxx,
Chairman of the Board and Chief Executive Officer (facsimile No. (000) 000-0000)
(with a copy to Xxxxxx X. Xxxxxxxx, Xxxxxxxxx Xxxxxx PLLC, 000 Xxxxxxxx Xxxxxx,
Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000 (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,
COMMUNITY CENTRAL BANK CORPORATION
By:_________________________________
Xxxxxxx X. Xxxxxx
Its: President
24
25
Confirmed by Xxxxx
XXXXX CAPITAL MARKETS,
A DIVISION OF FIRST CHICAGO CAPITAL
MARKETS, INC.
By: ______________________________________
Xxxx X. Xxxxxxxx
Its: Managing Director-Corporate Finance
25
26
EXHIBIT A
Directed Sales
Name of Requested
Beneficial Owner Purchases
---------------- ----------
Xxxxxx X. Xxxxxxxxx 10,000
Xxxxxx X. Xxxxx 8,000
Xxxxxx Xxxxxxxxx 12,000
Xxxxxxx X. Xxxxxxxx 0
Xxxxxxxxx Xxxxxxx 8,000
Xxxxxxxxx Xxxxx 0
Xxxxx X. Xxxx 1,040
Xxxxxx X. Xxxxxxxxx 16,560
Xxxxxxx X. Xxxxxx 0
Xxxx X. Xxxxxxxxx 20,000
Xxxxx X. Xxxxxxxxx 160
Xxxxxx X. Xxxxxxxx 1,440
Xxxxxx Xxxxxxxxxxx 1,040
All directors and executive officers of
the Company as a group
-------
(13 persons) 78,240
=======
27
EXHIBIT B
States
Michigan
Florida
Illinois
Indiana
Kentucky
Missouri
New Jersey
New York
Ohio
Wisconsin
