1
EXHIBIT 1.1
3,330,000 Common Shares
ROCK FINANCIAL CORPORATION
UNDERWRITING AGREEMENT
_________, 1998
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
PRUDENTIAL SECURITIES INCORPORATED
▇▇▇▇▇ & CO. L.L.C.
as Representatives of the
several Underwriters named in
Schedule I attached hereto
c/o Bear, ▇▇▇▇▇▇▇ & Co. Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇
Ladies and Gentlemen:
Rock Financial Corporation, a corporation organized and
existing under the laws of the State of Michigan (the "Company"), and the
selling shareholders listed on Schedule II (the "Selling Shareholders")
severally propose, subject to the terms and conditions stated herein, to issue
and sell to the several underwriters named in Schedule I hereto (the
"Underwriters") an aggregate of 3,330,000 shares (the "Firm Shares") of its
common shares, par value $.01 per share (the "Common Stock"). The Firm Shares
consist of 3,000,000 shares to be issued and sold by the Company and 330,000
shares to be sold by the Selling Shareholders. The Company also proposes, for
the sole purpose of covering over-allotments in connection with the sale of the
Firm Shares, at the option of the Underwriters and subject to the terms and
conditions stated herein, to sell up to an additional 499,500 shares (the
"Additional Shares") of Common Stock. The Firm Shares and any Additional Shares
purchased by the Underwriters are referred to herein as the "Shares". The Shares
are more fully described in the Registration Statement referred to below.
1. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, the Underwriters that:
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(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement, and may have
filed an amendment or amendments thereto, on Form S-1 (No. 333-46885),
for the registration of the Shares under the Securities Act of 1933, as
amended (the "Act"). Such registration statement, including the
prospectus, financial statements and schedules, exhibits and all other
documents filed as a part thereof, as amended at the time of
effectiveness of the registration statement, including any information
deemed to be a part thereof as of the time of effectiveness pursuant to
paragraph (b) of Rule 430A or Rule 434 of the Rules and Regulations of
the Commission under the Act (the "Regulations"), is herein called the
"Registration Statement" and the prospectus, in the form first filed
with the Commission pursuant to Rule 424(b) of the Regulations, or
filed as part of the Registration Statement at the time of
effectiveness if no Rule 424(b) or Rule 434 filing is required, is
herein called the "Prospectus". The term "preliminary prospectus" as
used herein means a preliminary prospectus as described in Rule 430 of
the Regulations.
(b) At the time of the effectiveness of the Registration
Statement or the effectiveness of any post-effective amendment to the
Registration Statement, when the Prospectus is first filed with the
Commission pursuant to Rule 424(b) or Rule 434 of the Regulations, when
any supplement to or amendment of the Prospectus is filed with the
Commission and at the Closing Date and the Additional Closing Date, if
any (as hereinafter respectively defined), the Registration Statement
and the Prospectus and any amendments thereof and supplements thereto
complied or will comply in all material respects with the applicable
provisions of the Act and the Regulations and do not or will not
contain an untrue statement of a material fact and do not or will not
omit to state any material fact required to be stated therein or
necessary in order to make the statements therein (i) in the case of
the Registration Statement, not misleading and (ii) in the case of the
Prospectus, in light of the circumstances under which they were made,
not misleading. When any related preliminary prospectus was first filed
with the Commission (whether filed as part of the registration
statement for the registration of the Shares or any amendment thereto
or pursuant to Rule 424(a) of the Regulations) and when any amendment
thereof or supplement thereto was first filed with the Commission, such
preliminary prospectus and any amendments thereof and supplements
thereto complied in all material respects with the applicable
provisions of the Act and the Regulations and did not contain an untrue
statement of a material fact and did not 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. No representation and warranty is made in this
subsection (b), however, with respect to any information contained in
or omitted from the Registration Statement or the Prospectus or any
related preliminary prospectus or any amendment thereof or supplement
thereto in reliance upon and in conformity with information furnished
in writing to the Company by or on behalf of any Underwriter through
the Representatives as herein stated expressly for use in connection
with the preparation thereof. If Rule 434 is used, the Company will
comply with the requirements of Rule 434.
(c) KPMG Peat Marwick LLP, who have certified the financial
statements and supporting schedules included in the Registration
Statement, are independent public accountants as required by the Act
and the Regulations.
(d) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, except as
disclosed in the Registration Statement and the Prospectus, there has
been no material adverse change or any
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development involving a prospective material adverse change in the
business, prospects, properties, operations, condition (financial or
other) or results of operations of the Company and its subsidiaries
taken as a whole, whether or not arising from transactions in the
ordinary course of business, and since the date of the latest balance
sheet presented in the Registration Statement and the Prospectus,
neither the Company nor any of its subsidiaries has incurred or
undertaken any liabilities or obligations, direct or contingent, not in
the ordinary course of the Company's business and consistent with its
past practices, which are material to the Company and its subsidiaries
taken as a whole, except for liabilities or obligations which are
disclosed in the Registration Statement and the Prospectus.
(e) This Agreement and the transactions contemplated herein
have been duly and validly authorized by the Company and this Agreement
has been duly and validly executed and delivered by the Company.
(f) The execution, delivery, and performance of this Agreement
and the consummation of the transactions contemplated hereby do not and
will not, with notice or the passage of time or both, (i) conflict with
or result in a breach of any of the terms and provisions of, or
constitute a default (or an event which with notice or lapse of time,
or both, would constitute a default) under, or result in the creation
or imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any of its subsidiaries pursuant to, any
agreement, instrument, franchise, license or permit to which the
Company or any of its subsidiaries is a party or by which any of such
corporations or their respective properties or assets may be bound or
(ii) violate or conflict with any provision of the articles of
incorporation or by-laws of the Company or any of its subsidiaries or
(assuming compliance with all applicable state securities and blue sky
laws) any judgment, decree, order, statute, rule or regulation of any
court or any public, governmental or regulatory agency or body having
jurisdiction over the Company or any of its subsidiaries or any of
their respective properties or assets. No consent, approval,
authorization, order, registration, filing, qualification, license or
permit of or with any court or any public, governmental or regulatory
agency or body having jurisdiction over the Company or any of its
subsidiaries or any of their respective properties or assets is
required for the execution, delivery and performance of this Agreement
or the consummation of the transactions contemplated hereby by the
Company, including the issuance, sale and delivery of the Shares to be
issued, sold and delivered by the Company hereunder, except the
registration under the Act of the Shares and such consents, approvals,
authorizations, orders, registrations, filings, qualifications,
licenses and permits as may be required under state securities or Blue
Sky laws in connection with the purchase and distribution of the Shares
by the Underwriters.
(g) All of the outstanding shares of Common Stock are duly and
validly authorized and issued, fully paid and non-assessable and were
not issued and are not now in violation of or subject to any preemptive
rights. The Shares, when issued, delivered and sold in accordance with
this Agreement, will be duly and validly issued and outstanding, fully
paid and non-assessable, and will not have been issued in violation of
or be subject to any preemptive rights. The Company had, at December
31, 1997, an authorized and outstanding capitalization as set forth in
the Registration Statement and the Prospectus. The Common Stock, the
Firm Shares and the Additional Shares conform in all material respects
to the descriptions thereof contained in the Registration Statement and
the Prospectus.
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(h) Each of the Company and its subsidiaries has been duly
organized and is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation. Each of the
Company and its subsidiaries is duly qualified and in good standing as
a foreign corporation in each jurisdiction in which the character or
location of its properties (owned, leased or licensed) or the nature or
conduct of its business makes such qualification necessary, except for
those failures to be so qualified or in good standing which will not,
singly or in the aggregate, have a material adverse effect on the
business, prospects, properties, operations, condition (financial or
other) or results of operations of the Company and its subsidiaries
taken as a whole. Each of the Company and its subsidiaries has all
requisite power and authority, and all necessary consents, approvals,
authorizations, orders, registrations, qualifications, licenses and
permits of and from all public, regulatory or governmental agencies and
bodies, to own, lease and operate its properties and conduct its
business as now being conducted and as described in the Registration
Statement and the Prospectus, and no such consent, approval,
authorization, order, registration, qualification, license or permit
contains a material restriction not adequately disclosed in the
Registration Statement and the Prospectus. Neither the Company nor any
of its subsidiaries has received any written notice of any proceedings
relating to the revocation or modification of any such consent,
approval, authorization, order, registration, qualification, license or
permit which, singly or in the aggregate, if the subject of an
unfavorable decision, would have a material adverse effect on the
business, prospects, properties, operations, condition (financial or
other) or results of operations of the Company and its subsidiaries
taken as a whole.
(i) Except as described in the Prospectus, there is no
litigation or governmental proceeding to which the Company or any of
its subsidiaries is a party or to which any property of the Company or
any of its subsidiaries is subject or which is pending or, to the
actual knowledge of the Company, threatened against the Company or any
of its subsidiaries which will result in any material adverse change or
any development involving a material adverse change in the business,
prospects, properties, operations, condition (financial or other) or
results of operations of the Company and its subsidiaries taken as a
whole or which is required to be disclosed in the Registration
Statement and the Prospectus.
(j) Neither the Company nor any of its officers or directors
has taken, nor will any of them take, directly or indirectly, any
action designed to cause or result in, or which constitutes or which
might reasonably be expected to constitute, the stabilization or
manipulation of the price of the shares of Common Stock to facilitate
the sale or resale of the Shares.
(k) The financial statements, including the notes thereto, and
supporting schedules included in the Registration Statement and the
Prospectus present fairly the financial position of the Company as of
the dates indicated and the results of its operations for the periods
specified; except as otherwise stated in the Registration Statement,
said financial statements have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis;
and the supporting schedules included in the Registration Statement
present fairly the information required to be stated therein. The
selected financial data for the Company set forth in the Prospectus
have been prepared on a basis consistent with the financial statements
of the Company. No other financial statements of the Company or any
other entity are required by the Act or the Rules and Regulations to be
included in the Registration Statement or the Prospectus.
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(l) Except as described in the Prospectus, no holder of
securities of the Company has any rights to the registration of
securities of the Company because of the filing of the Registration
Statement or otherwise in connection with the sale of the Shares
contemplated hereby.
(m) The Company is not, and upon consummation of the
transactions contemplated hereby will not be, subject to registration
as an "investment company" under the Investment Company Act of 1940, as
amended.
(n) No labor dispute with the employees of the Company or any
of its subsidiaries exists or, to the Company's actual knowledge, is
threatened or imminent that would have a material adverse effect on the
business, prospects, properties, operations, condition (financial or
other) or results of operations of the Company and its subsidiaries
taken as a whole.
(o) The Company and its subsidiaries own or possess, or can
acquire on reasonable terms, all material trademarks, service marks,
trade names, licenses, copyrights and proprietary or other confidential
information currently employed by them in connection with their
respective businesses, and neither the Company nor any such subsidiary
has received any notice of infringement of any asserted rights of any
third party with respect to the foregoing which, singly or in the
aggregate, if the subject of an unfavorable decision, would have a
material adverse effect on the business, prospects, properties,
operations, condition (financial or other) or results of operations of
the Company and its subsidiaries taken as a whole.
(p) The Company has filed all foreign, federal, state and
local tax returns that are required to be filed or has requested
extensions thereof (except in any case in which the failure so to file
would not have a material adverse effect on the business, prospects,
properties, operations, condition (financial or other) or results of
operations of the Company and its subsidiaries taken as a whole) and
has paid all taxes required to be paid by it and any other assessment,
fine or penalty levied against it, to the extent that any of the
foregoing is due and payable, except for any such assessment, fine or
penalty that is currently being contested in good faith or as described
in or contemplated by the Prospectus, and except in any case in which
the failure so to pay would not have a material adverse effect on the
business, prospects, properties, operation, condition (financial or
other) or results of operations of the Company and its subsidiaries
taken as a whole.
(q) Neither the Company nor any of its subsidiaries is in
violation of any federal or state law or regulation relating to their
respective lending activities, including, without limitation, rules and
regulations of the Federal Housing Administration and applicable
banking laws, rules and regulations, except for any such violation of
law or regulation which would not have a material adverse effect on the
business, prospects, properties, operations, condition (financial or
other) or results of operations of the Company and its subsidiaries
taken as a whole or which is described in or contemplated by the
Prospectus.
(r) Except for the shares of capital stock of each of the
Federal National Mortgage Association and the Federal Home Loan
Mortgage Corporation owned by the Company, the Company owns no shares
of stock or any other equity securities of any
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corporation nor has any equity interest in any firm, partnership,
association or other entity, except as described in or contemplated by
the Prospectus.
(s) No event has occurred that will, with notice or the
passage of time or both, (i) conflict with or result in a breach of any
of the terms and provisions of, or constitute a default (or an event
which with notice or lapse of time, or both, would constitute a
default) under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any
of its subsidiaries pursuant to, any agreement, instrument, franchise,
license or permit to which the Company or any of its subsidiaries is a
party or by which any of such corporations or their respective
properties may be bound, except for such conflicts, breaches or
defaults which would not have a material adverse effect on the
business, prospects, properties, operations, condition (financial or
other) or results of operations of the Company and its subsidiaries
taken as a whole, or (ii) conflict with any provision of the articles
of incorporation or bylaws of the Company or any of its subsidiaries or
any judgment, decree, order, statute, rule or regulation of any court
or any public, governmental or regulatory agency or body having
jurisdiction over the Company or any of its subsidiaries or any of
their respective properties or assets, except for such violations which
would not have a material adverse effect on the business, prospects,
properties, operations, condition (financial or other) or results of
operations of the Company and its subsidiaries taken as a whole.
(t) Each certificate signed by any officer of the Company and
delivered to the Representatives or counsel for the Underwriters shall
be deemed to be a representation and warranty by the Company, and not
by such officer in an individual capacity, to each Underwriter as to
the matters covered thereby.
1A. Representations and Warranties of the Selling
Shareholders. Each Selling Shareholder, severally and not jointly, represents
and warrants to the Underwriters that:
(a) Such Selling Shareholder at the time of delivery thereof
hereunder will have (i) sole legal and beneficial ownership of the
Shares to be sold by such Selling Shareholder hereunder, free and clear
of all adverse claims (as defined in the applicable Uniform Commercial
Code) and (ii) full legal right and power, and all authorizations and
approvals required by law, except as required under the Act and the
state blue sky laws or by the NASD, to sell, transfer and deliver the
Shares to be sold by such Selling Shareholder to the Underwriters
hereunder and to make the representations, warranties and agreements
made by such Selling Shareholder herein. Upon delivery of and payment
for the Shares to be sold by the Selling Shareholder hereunder, such
Selling Shareholder will deliver sole legal and beneficial ownership
thereof, free and clear of all adverse claims (as defined in the
applicable Uniform Commercial Code).
(b) On the Closing Date, all stock transfer and other taxes
(other than income taxes) which are required to be paid in connection
with the sale and transfer of the Shares to be sold by such Selling
Shareholder to the several Underwriters hereunder will have been fully
paid or provided for and all laws imposing such taxes will have been
complied with in all material respects.
(c) The execution, delivery, and performance of this Agreement
or the Power of Attorney and Custody Agreement (as hereinafter defined)
and the consummation of the transactions contemplated hereby and
thereby do not and will not , with notice or the passage of time or
both, (i) conflict with or result in a breach of any of the terms and
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provisions of, or constitute a default (or an event which with notice
or lapse of time, or both, would constitute a default) under, or result
in the creation or imposition of any lien, charge or encumbrance upon
any property or assets of such Selling Shareholder pursuant to, any
agreement, instrument, franchise, license or permit to which such
Selling Shareholder is a party or by which such Selling Shareholder's
properties or assets may be bound or (ii) (assuming compliance with all
applicable state securities and blue sky laws) violate or conflict with
any judgment, decree, order, statute, rule or regulation of any court
or any public, governmental or regulatory agency or body having
jurisdiction over such Selling Shareholder or any of such properties or
assets. No consent, approval, authorization, order, registration,
filing, qualification, license or permit of or with any court or any
public, governmental or regulatory agency or body having jurisdiction
over such Selling Shareholder or any of such properties or assets is
required for the execution, delivery and performance of this Agreement
or the Power of Attorney and Custody Agreement by such Selling
Shareholder or the consummation of the transactions contemplated hereby
and thereby, including the sale and delivery of the Shares to be sold
and delivered by such Selling Shareholder hereunder, except the
registration under the Act of the Shares and such consents, approvals,
authorizations, orders, registrations, filings, qualifications,
licenses and permits as may be required under state securities or Blue
Sky laws in connection with the purchase and distribution of the Shares
by the Underwriters.
(d) The sale of the Shares proposed to be sold by the Selling
Shareholder is not prompted by such Selling Shareholder's knowledge of
any material non-public information regarding the Company or any of its
subsidiaries.
(e) At the time of the effectiveness of the Registration
Statement or the effectiveness of any post-effective amendment to the
Registration Statement, when the Prospectus is first filed with the
Commission pursuant to Rule 424(b) or Rule 434 of the Regulations, when
any supplement to or amendment of the Prospectus is filed with the
Commission and at the Closing Date, all information with respect to
such Selling Shareholder contained in the Registration Statement and
the Prospectus and any amendments thereof and supplements thereto in
reliance upon and in conformity with written information relating to
such Selling Shareholder furnished to the Company by or on behalf of
such Selling Shareholder expressly for use therein complied or will
comply in all material respects with the applicable provisions of the
Act and the Regulations, the Registration Statement and the Prospectus
and any amendments thereof and supplements thereto contains and will
contain all statements with respect to such Selling Shareholder
required to be stated therein in accordance with the Act and the
Regulations, and do not or will not contain an untrue statement of a
material fact and do not or will not omit to state any material fact
regarding such Selling Shareholder required to be stated therein or
necessary in order to make the statements therein (i) in the case of
the Registration Statement, not misleading and (ii) in the case of the
Prospectus, in light of the circumstances under which they were made,
not misleading. When any related preliminary prospectus was first filed
with the Commission (whether filed as part of the registration
statement for the registration of the Shares or any amendment thereto
or pursuant to Rule 424(a) of the Regulations) and when any amendment
thereof or supplement thereto was first filed with the Commission, all
information with respect to such Selling Shareholder contained in such
preliminary prospectus and any amendments thereof and supplements
thereto complied in all material respects with the applicable
provisions of the Act and the Regulations and did not contain an untrue
statement of a material fact regarding such Selling Shareholder and
did not omit to state any
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material fact regarding such Selling Shareholder 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.
(f) Other than as permitted by the Act and the Regulations,
such Selling Shareholder has not distributed and will not distribute
any preliminary prospectus, the Prospectus or any other offering
material in connection with the offering or sale of the Shares. Such
Selling Shareholder has not taken and will not take, directly or
indirectly, any action designed to cause or result in, or which
constitutes or which might reasonably be expected to constitute, the
stabilization or manipulation of the price of the shares of Common
Stock to facilitate the sale or resale of the Shares.
(g) Each certificate signed by such Selling Shareholder and
delivered to the Representatives or counsel for the Underwriters shall
be deemed to be a representation and warranty by such Selling
Shareholder to each Underwriter as to the matters covered thereby.
(h) Such Selling Shareholder has full power and authority to
enter into this Agreement and the Power of Attorney and Custody
Agreement. All authorizations and consents necessary for the execution
and delivery by such Selling Shareholder of this Agreement and the
Power of Attorney and Custody Agreement and the performance of the
transactions contemplated hereby and thereby have been obtained. Each
of this Agreement and the Power of Attorney and Custody Agreement has
been duly authorized, executed and delivered by or on behalf of such
Selling Shareholder and constitutes a valid and bind agreement of such
Selling Shareholder and is enforceable against such Selling Shareholder
in accordance with its terms, except, in the case of enforceability, as
limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other laws now or hereafter in effect relating to the
availability of remedies and by general principles of equity and except
as rights to indemnity and contribution may be limited by federal or
state securities laws or the public policy underlying such laws.
(i) Each Selling Shareholder has duly executed and delivered
in the form heretofore furnished to the Representatives a power of
attorney and custody agreement ("Power of Attorney and Custody
Agreement") with ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and/or ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ as the
attorney(s)-in-fact ("Attorney-in-Fact") and National City Bank as the
custodian ("Custodian"); the Attorney-in-Fact is authorized to execute
and deliver this Agreement and the certificates referred to in Section
6(e), to authorize the delivery of the Shares to be sold hereunder by
such Selling Shareholder, to duly endorse (in blank or otherwise) the
certificate or certificates representing such Shares, to accept payment
therefor, and otherwise to act on behalf of such Selling Shareholder in
connection with this Agreement.
2. Purchase, Sale and Delivery of the Shares.
(a) On the basis of the representations, warranties, covenants
and agreements herein contained, but subject to the terms and
conditions herein set forth, the Company agrees to sell to the
Underwriters 3,000,000 Firm Shares, each Selling Shareholder, severally
and not jointly, agrees to sell to the Underwriters the number of Firm
Shares set forth opposite such Selling Shareholder's name in Schedule
II, and the Underwriters, severally and not jointly, agree to purchase
from the Company and each of the Selling
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Shareholders, at a purchase price per share of $_______, the number of
Firm Shares set forth opposite the respective names of the Underwriters
in Schedule I hereto plus any additional number of Shares which such
Underwriter may become obligated to purchase pursuant to the provisions
of Section 9 hereof.
(b) Payment of the purchase price for, and delivery of
certificates for, the Firm Shares shall be made at the offices of Bear,
▇▇▇▇▇▇▇ & Co. Inc., or at such other place as shall be agreed upon by
the Representatives and the Company, at 10:00 A.M. on the third or
fourth business day (as permitted under Rule 15c6-1 under the Exchange
Act) (unless postponed in accordance with the provisions of Section 9
hereof) following the date of the effectiveness of the Registration
Statement (or, if the Company has elected to rely upon Rule 430A of the
Regulations, the third or fourth business day (as permitted under Rule
15c6-1 under the Exchange Act) after the determination of the initial
public offering price of the Shares), or such other time not later than
ten business days after such date as shall be agreed upon by the
Representatives and the Company (such time and date of payment and
delivery being herein called the "Closing Date"). Payment shall be made
to the Company and each of the Selling Shareholders by certified or
official bank check or checks drawn in federal funds or similar same
day funds payable to the order of the Company and each of the Selling
Shareholders or by wire transfer in same day funds, against delivery to
the Representatives for the respective accounts of the Underwriters of
certificates for the Firm Shares to be purchased by them. Certificates
for the Firm Shares shall be registered in such name or names and in
such authorized denominations as the Representatives may request in
writing at least two full business days prior to the Closing Date. The
Company and each of the Selling Shareholders will permit the
Representatives to examine and package such certificates for delivery
at least one full business day prior to the Closing Date.
(c) In addition, the Company hereby grants to the Underwriters
the option to purchase up to 499,500 Additional Shares at the same
purchase price per share to be paid by the Underwriters to the Company
and the Selling Shareholders for the Firm Shares as set forth in this
Section 2, for the sole purpose of covering over-allotments in the sale
of Firm Shares by the Underwriters. This option may be exercised once
at any time, in whole or in part, on or before the thirtieth day
following the date of the Prospectus, by written notice by the
Representatives to the Company. Such notice shall set forth the
aggregate number of Additional Shares as to which the option is being
exercised and the date and time, as reasonably determined by the
Representatives, when the Additional Shares are to be delivered (such
date and time being herein sometimes referred to as the "Additional
Closing Date"); provided, however, that the Additional Closing Date
shall not be earlier than the Closing Date or earlier than the second
full business day after the date on which the option shall have been
exercised nor later than the eighth full business day after the date on
which the option shall have been exercised (unless such time and date
are postponed in accordance with the provisions of Section 9 hereof).
Certificates for the Additional Shares shall be registered in such name
or names and in such authorized denominations as the Representatives
may request in writing at least two full business days prior to the
Additional Closing Date. The Company will permit the Representatives to
examine and package such certificates for delivery at least one full
business day prior to the Additional Closing Date.
The number of Additional Shares to be sold to each Underwriter
shall be the number which bears the same ratio to the aggregate number
of Additional Shares being purchased as the number of Firm Shares set
forth opposite the name of such Underwriter
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in Schedule I hereto (or such number increased as set forth in Section
9 hereof) bears to 3,330,000, subject, however, to such adjustments to
eliminate any fractional shares as the Representatives in their sole
discretion shall make.
Payment for the Additional Shares shall be made by certified
or official bank check or checks drawn in federal funds or similar same
day funds, payable to the order of the Company or by wire transfer in
same day funds, at the offices of Bear, ▇▇▇▇▇▇▇ & Co. Inc., or such
other location as may be mutually acceptable, upon delivery of the
certificates for the Additional Shares to the Representatives for the
respective accounts of the Underwriters.
3. Offering. Upon the authorization by the Representatives of
the release of the Firm Shares, the Underwriters propose to offer the Shares for
sale to the public upon the terms set forth in the Prospectus.
4. Covenants of the Company. The Company and the Selling
Shareholders, severally and not jointly, covenant and agree with the
Underwriters that:
(a) If the Registration Statement has not yet been declared
effective, the Company will use its reasonable best efforts to cause
the Registration Statement and any amendments thereto to become
effective as promptly as possible, and if Rule 430A is used or the
filing of the Prospectus is otherwise required under Rule 424(b) or
Rule 434, the Company will file the Prospectus (properly completed if
Rule 430A has been used) pursuant to Rule 424(b) or Rule 434 within the
prescribed time period and will provide evidence satisfactory to the
Representatives of such timely filing. If the Company elects to rely on
Rule 434, the Company will prepare and file a term sheet that complies
with the requirements of Rule 434.
The Company will notify the Representatives as promptly as
practicable (and, if requested by the Representatives, will confirm
such notice in writing) (i) when the Registration Statement and any
amendments thereto become effective, (ii) of any request by the
Commission for any amendment of or supplement to the Registration
Statement or the Prospectus or for any additional information, (iii) of
the mailing or the delivery to the Commission for filing of any
amendment of or supplement to the Registration Statement or the
Prospectus, (iv) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or any
post-effective amendment thereto or of the initiation, or the
threatening, of any proceedings therefor, (v) of the receipt of any
comments from the Commission, and (vi) of the receipt by the Company of
any notification with respect to the suspension of the qualification of
the Shares for sale in any jurisdiction or the initiation or
threatening of any proceeding for that purpose. If the Commission shall
propose or enter a stop order at any time, the Company will make every
reasonable effort to prevent the issuance of any such stop order and,
if issued, to obtain the lifting of such order as soon as possible. The
Company will not file any amendment to the Registration Statement or
any amendment of or supplement to the Prospectus (including the
prospectus required to be filed pursuant to Rule 424(b)or Rule 434)
that differs from the prospectus on file at the time of the
effectiveness of the Registration Statement before or after the
effective date of the Registration Statement to which the
Representatives shall reasonably object in writing after being timely
furnished in advance a copy thereof.
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(b) If at any time when a prospectus relating to the Shares is
required to be delivered under the Act any event shall have occurred as
a result of which the Prospectus as then amended or supplemented
would, in the judgment of the Underwriters or the Company, include an
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 the light of the circumstances under which they were made,
not misleading, or if it shall be necessary at any time to amend or
supplement the Prospectus or Registration Statement to comply with the
Act or the Regulations, the Company will notify the Representatives
promptly and prepare and file with the Commission an appropriate
amendment or supplement (in form and substance reasonably satisfactory
to the Representatives) which will correct such statement or omission
and will use its reasonable best efforts to have any amendment to the
Registration Statement declared effective as soon as possible.
(c) The Company will promptly deliver to the Representatives
two signed copies of the Registration Statement, including exhibits,
and all amendments thereto, and the Company will promptly deliver to
each of the Underwriters such number of copies of any preliminary
prospectus, the Prospectus, the Registration Statement, and all amend-
ments of and supplements to such documents, if any, as the
Representatives may reasonably request.
(d) The Company will endeavor in good faith, in cooperation
with the Representatives, at or prior to the time of effectiveness of
the Registration Statement, to qualify the Shares for offering and sale
under the securities laws relating to the offering or sale of the
Shares of such jurisdictions as the Representatives reasonably may
designate and to maintain such qualification in effect for so long as
required for the distribution thereof; except that in no event shall
the Company be obligated in connection therewith to qualify as a
foreign corporation or to execute a general consent to service of
process.
(e) The Company will make generally available (within the
meaning of Section 11(a) of the Act) to its security holders and to the
Representatives as soon as reasonably practicable, but not later than
45 days after the end of its fiscal quarter in which the first
anniversary date of the effective date of the Registration Statement
occurs, an earning statement (in form complying with the provisions of
Rule 158 of the Regulations) covering a period of at least twelve
consecutive months beginning after the effective date of the
Registration Statement.
(f) During the period of 180 days from the date of the
Prospectus, the Company will not, without the prior written consent of
the Representatives, issue, sell, offer or agree to sell, grant any
option for the sale of, or otherwise dispose of, directly or
indirectly, any Common Stock (or any securities convertible into,
exercisable for or exchangeable for Common Stock), and the Company will
obtain the undertaking of each of its officers and directors, each
person purchasing 10,000 or more Common Shares pursuant to the Directed
Share Program (as defined in the Prospectus) and such of its
shareholders as have been heretofore designated by the Representatives
and listed on Schedule III attached hereto not to engage in any of the
aforementioned transactions on their own behalf, other than the
Company's and the Selling Shareholders' sale of Shares hereunder, the
Company's grant of stock options under the Rock Financial Corporation
1996 Stock Option Plan (the "Plan") and the Company's issuance of
Common Stock upon the exercise of stock options granted under the
Plan, and other than (i) exercises of options to acquire Common Stock
granted under the Plan, (ii) transfers to the holder's spouse or lineal
descendants or ancestors, natural or adopted
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(collectively, "Relatives"), or to an inter vivos trust for the benefit
of such holder's Relatives, (iii) transfers upon the death of such
holder pursuant to the laws of descent and distribution or pursuant to
▇▇▇▇▇, or (iv) gifts, provided that, in the case of the foregoing
clauses (ii) through (iv), the transferee agrees in writing to be bound
by the terms of these restrictions.
(g) During a period of three years from the effective date of
the Registration Statement, the Company will furnish to the
Representatives copies of (i) all reports to its shareholders; and (ii)
all reports, financial statements and proxy or information statements
filed by the Company with the Commission or any national securities
exchange.
(h) The Company will apply the proceeds from the sale of the
Shares as set forth under "Use of Proceeds" in the Prospectus.
(i) The Company will use its reasonable best efforts to cause
the Shares to be listed for inclusion in the Nasdaq Stock Market's
National Market.
(j) The Company will file with the Commission such information
as may be required pursuant to Rule 463 of the Regulations.
(k) Neither the Company nor any of its subsidiaries, nor any
of their respective officers or directors, nor the Selling
Shareholders, will take, directly or indirectly, any action designed to
cause or result in, or which constitutes or might reasonably be
expected to constitute, the stabilization or manipulation of the price
of the shares of Common Stock to facilitate the sale or resale of the
Shares.
(l) The Company, during the period when the Prospectus is
required to be delivered under the Act or the Securities Exchange Act
of 1934, as amended (the "1934 Act"), will file all documents required
to be filed with the Commission pursuant to Sections 13, 14 or 15 of
the 1934 Act within the time periods required by the 1934 Act and the
rules and regulations thereunder.
(m) As promptly as practicable after the Selling Shareholders
are advised thereof, the Selling Shareholders will advise the
Representatives and, if requested by the Representatives, confirm such
advice in writing (i) of receipt by the Selling Shareholders, or by any
representative of the Selling Shareholders, of any communication from
the Commission relating to the Registration Statement, the Prospectus
or any preliminary prospectus, or any notice or order from the
Commission relating to the Company or the Selling Shareholders in
connection with the transactions contemplated hereby and (ii) of the
happening of any event during the period from and after the Effective
Date that in the judgment of the Selling Shareholders makes any
statement made in the Registration Statement untrue or that requires
the making of any changes in the Registration Statement or the
Prospectus in order to make the statements therein, in light of the
circumstances in which they were made, not misleading.
(n) The Selling Shareholders will deliver to the Underwriters
prior to or on the Closing Date properly-completed and executed United
States Treasury Department Forms W-9 (or other applicable form or
statement specified by the Treasury Department regulations in lieu
thereof).
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5. Payment of Expenses. Whether or not the transactions
contemplated in this Agreement are consummated or this Agreement is terminated,
the Company hereby agrees to pay all costs and expenses incident to the
performance of the obligations of the Company and the Selling Shareholders
hereunder, including those in connection with (i) preparing, printing,
duplicating, filing and distributing the Registration Statement, as originally
filed and all amendments thereof (including all exhibits thereto), any
preliminary prospectus, the Prospectus and any amendments or supplements thereto
(including, without limitation, fees and expenses of the Company's and the
Selling Shareholders' accountants and counsel), the underwriting documents
(including this Agreement and the Agreement Among Underwriters, but not
including the costs of preparing such underwriting documents) and all other
documents related to the public offering of the Shares (including those supplied
to the Underwriters in quantities as hereinabove stated), (ii) the issuance,
transfer and delivery of the Shares to the Underwriters, including any transfer
or other taxes payable thereon, (iii) the qualification of the Shares under
state or foreign securities or Blue Sky laws, including the costs of printing
and mailing a preliminary and final "Blue Sky Survey" and the fees of counsel
for the Underwriters and such counsel's disbursements in relation thereto, (iv)
listing of the Shares on the Nasdaq Stock Market's National Market, (v) filing
fees of the Commission and the National Association of Securities Dealers, Inc.,
(vi) the cost of printing certificates representing the Shares, and (vii) the
cost and charges of any transfer agent or registrar.
6. Conditions of Underwriters' Obligations. The obligations of
the Underwriters to purchase and pay for the Firm Shares and the Additional
Shares, as provided herein, shall be subject to the accuracy of the
representations and warranties of the Company and the Selling Shareholders
herein contained, as of the date hereof and as of the Closing Date (for purposes
of this Section 6 "Closing Date" shall refer to the Closing Date for the Firm
Shares and any Additional Closing Date, if different, for the Additional
Shares), to the absence from any certificates, opinions, written statements or
letters furnished to the Representatives or to Berick, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ Co.,
L.P.A. ("Underwriters' Counsel") pursuant to this Section 6 of any misstatement
or omission, to the performance by the Company and the Selling Shareholders of
their respective obligations hereunder, and to the following additional
conditions:
(a) The Registration Statement shall have become effective not
later than 5:30 P.M., New York time, on the date of this Agreement, or
at such later time and date as shall have been consented to in writing
by the Representatives; if the Company shall have elected to rely upon
Rule 430A or Rule 434 of the Regulations, the Prospectus shall have
been filed with the Commission in a timely fashion in accordance with
Section 4(a) hereof; and, at or prior to the Closing Date no stop
order suspending the effectiveness of the Registration Statement or
any post-effective amendment thereof shall have been issued and no
proceedings therefor shall have been initiated or threatened by the
Commission.
(b) At the Closing Date the Representatives shall have
received the opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇, counsel for
the Company, dated the Closing Date, addressed to the Underwriters and
in form and substance satisfactory to Underwriters' Counsel, to the
effect that:
(i) The Company is duly organized, validly existing
and in good standing under the laws of the State of Michigan
and is duly qualified and in good standing as a foreign
corporation under the laws of the States of Arizona,
Connecticut, Delaware, Florida, Georgia, Illinois, Indiana,
Iowa, Kentucky, Louisiana, Maine, Maryland, Massachusetts,
Minnesota, Missouri, Nevada, New
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14
Hampshire, North Carolina, Ohio, Oregon, Pennsylvania,
South Carolina, Tennessee, Texas, Utah and West Virginia to
transact business in such States. The Company has all
requisite corporate power and authority to own, lease and
license its respective properties and conduct its business
as described in the Registration Statement.
(ii) Based solely on such counsel's review of the
Company's Restated Articles of Incorporation, as amended (the
"Articles"), and minute books, the authorized capital stock of
the Company is as set forth in the Registration Statement and
the Prospectus under the caption "Capitalization". All of the
outstanding shares of Common Stock are duly authorized,
validly issued, fully paid and non-assessable and were not
issued in violation of, or subject to, any preemptive rights
arising under the Michigan Business Corporation Act, as
amended, or any agreement listed as an Exhibit to the
Registration Statement (the "Exhibits"). To such counsel's
actual knowledge, there are no contracts or documents which
are required by the Act to be filed as exhibits to the
Registration Statement which are not so filed. The Firm Shares
to be delivered on the Closing Date have been duly authorized
and, when issued, delivered and paid for by the Underwriters
in accordance with this Agreement, will be validly issued,
fully paid and non-assessable and will not have been issued in
violation of, or subject to, any preemptive rights arising
under the Michigan Business Corporation Act, as amended, or
any of the Exhibits. The Common Stock conforms in all material
respects to the description thereof contained in the
Prospectus under the caption "Description of Capital Stock",
to the extent that such description constitutes statements of
law or legal conclusions.
(iii) The Company has duly filed all documents, and
has satisfied all conditions, that the staff of The Nasdaq
Stock Market, Inc. has advised the Company are required to be
filed or satisfied by the Company in connection with the
listing of the Common Stock on The Nasdaq National Market.
Based solely on a telephone call with a member of the staff of
The Nasdaq Stock Market, Inc., such counsel shall confirm to
the Underwriters that the Common Stock, including the Shares
to be sold under this Agreement, have been approved for
listing on The Nasdaq National Market.
(iv) Execution, delivery and performance by the
Company of this Agreement have been duly authorized by all
necessary corporate action on behalf of the Company, and such
counsel shall confirm to the Underwriters that the Agreement
has been duly executed and delivered on behalf of the Company.
(v) Based solely on a certificate of responsible
officers of the Company (the "Certificate"), a copy of which
shall have been furnished to Underwriters' Counsel prior to
the Closing Date, and the results of an inquiry circulated to
the attorneys of such firm (the "Inquiry"), such counsel shall
confirm to the Underwriters that, to such counsel's actual
knowledge, there is no litigation or governmental or other
action, suit, proceeding or investigation before any court or
before or by any regulatory or governmental agency or body
pending or threatened against, or involving the properties or
business of, the Company which is required to be disclosed in
the Registration Statement and the Prospectus which is not so
disclosed therein.
-14-
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(vi) The execution, delivery, and performance of this
Agreement, and the issuance and sale of the Shares, and the
application of the proceeds thereof, as described in the
Registration Statement and the Prospectus, by the Company (i)
do not and will not, with notice or the passage of time or
both, result in the breach of any of the terms and provisions
of, constitute a default (or an event which, with notice or
lapse of time or both, would constitute a default) under, or
result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company
pursuant to, any agreement, instrument, franchise, license or
permit to which the Company is a party or by which it or its
properties or assets may be bound and which agreement,
instrument, franchise, license or permit is included as an
Exhibit to the Registration Statement, where such default or
breach would reasonably be expected to have a material adverse
effect on the Company's ability to perform its obligations
under the Agreement or to impose any liability upon any one or
more of the Underwriters and (ii) do not and will not, with
notice or the passage of time or both, violate (A) any
provision of the Articles or bylaws of the Company, (B) based
solely on the Certificate and the Inquiry, to such counsel's
actual knowledge, any of the Company's existing obligations
under any judgment, decree or order of any court or any
governmental or regulatory agency or body having jurisdiction
over the Company or any of its properties or assets, or (C)
any statute, rule, regulation or other law which is known to
such counsel to be applicable to the Company where (as to
clauses (B) and (C)) such violation would reasonably be
expected to have a material adverse effect on the validity,
performance or enforceability of any of the terms of this
Agreement applicable to the Company. No consent, approval,
authorization, order, registration, filing, qualification,
license or permit of or with any court or any governmental, or
regulatory agency or body having jurisdiction over the Company
or any of its properties or assets is legally required for the
execution, delivery and performance of this Agreement by the
Company, except for (1) such as may be required under state
securities or Blue Sky laws in connection with the purchase
and distribution of the Shares by the Underwriters, (2) such
as may be required under the Act and the Regulations, and (3)
such as may be required by the National Association of
Securities Dealers, Inc. ("NASD") in connection with the
purchase and distribution of the Shares by the Underwriters
(as to which such counsel need express no opinion).
(vii) The Registration Statement and the Prospectus
and any amendments thereof or supplements thereto (other than
the financial statements and schedules and other financial
data included or incorporated by reference therein, as to
which no opinion need be rendered) comply as to form in all
material respects with the requirements of the Act and the
Regulations.
(viii) The Registration Statement has become
effective under the Act, and, to the actual knowledge of such
counsel, no stop order suspending the effectiveness of the
Registration Statement or any post-effective amendment thereof
has been issued under the Act and no proceedings therefor have
been initiated or threatened by the Commission under the Act.
Assuming that April __, 1998 was the date of determination of
the offering price, and that the Prospectus was first used on
April __, 1998 and was filed with the Commission on April __,
1998, all filings required by Rule 424(b) of the Regulations
have been made within the time periods required thereby.
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(ix) Such counsel shall confirm to the Underwriters
that this Agreement and the Power of Attorney and Custody
Agreement have been duly executed and delivered by the Selling
Shareholders. Each constitutes a valid and binding obligation
of the Selling Shareholders and, except for the contribution
and indemnification provisions thereof, as to which such
counsel need express no opinion, is enforceable against the
Selling Shareholders in accordance with its terms.
(x) The execution, delivery, and performance of this
Agreement and the Power of Attorney and Custody Agreement by
each Selling Shareholder (i) do not and will not, with notice
or the passage of time or both, result in a breach of any of
the terms and provisions of, constitute a default (or an event
which, with notice or the passage of time or both, would
constitute a default) under, or result in the creation or
imposition of any lien, charge or encumbrance upon any
property or assets of the Selling Shareholders pursuant to,
any agreement, instrument, franchise, license or permit to
which any of the Selling Shareholders is a party or by which
any of their properties or assets may be bound and which
agreement, instrument, franchise, license or permit is
included as an Exhibit to the Registration Statement, where
such default or breach would reasonably be expected to have a
material adverse effect on the ability of any of the Selling
Shareholders to perform his obligations under the Agreement or
to impose any liability upon any one or more of the
Underwriters and (ii) do not and will not, with notice or the
passage of time or both, violate (A) based solely on the
Certificate and the Inquiry, to such counsel's actual
knowledge, any of the Selling Shareholders' existing
obligations under any judgment, decree or order of any court
or any governmental or regulatory agency or body having juris-
diction over the Selling Shareholders or any of their
properties or assets, or (B) any statute, rule, regulation or
other law which is known to such counsel to be applicable to
the Selling Shareholders where such violation would reasonably
be expected to have a material adverse effect on the validity,
performance or enforceability of any of the terms of this
Agreement or the Power of Attorney or Custody Agreement
applicable to the Selling Shareholders. No consent, approval,
authorization, order, registration, filing, qualification,
license or permit of or with any court or any governmental, or
regulatory agency or body having jurisdiction over the Selling
Shareholders or any of their respective properties or assets
is legally required for the execution, delivery and
performance of this Agreement or the Power of Attorney or
Custody Agreement by the Selling Shareholders, except for (1)
such as may be required under state securities or Blue Sky
laws in connection with the purchase and distribution of the
Shares by the Underwriters, (2) such as may be required under
the Act and the Regulations, and (3) such as may be required
by the bylaws and rules of the NASD in connection with the
purchase and distribution of the Shares by the Underwriters
(with respect to which such counsel need express no opinion).
(xi) To such counsel's actual knowledge, based solely
on a review of the Company's minute books, the Company's stock
transfer records, certificates representing Common Stock
registered in the names of the Selling Shareholders and the
Certificate, immediately prior to the Closing Date the Selling
Shareholders are the record holders of the Shares to be sold
by them pursuant to this Agreement. Upon delivery of, and
payment for, the Shares to be sold by the Selling Shareholders
pursuant to this Agreement, such Selling Shareholders will
-16-
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deliver sole legal and beneficial ownership thereof, free and
clear of any adverse claims (within the meaning of the
Michigan Uniform Commercial Code). In rendering such opinion,
such counsel may assume that the Underwriters are purchasing
such Shares in good faith, for value and without notice of any
defect in title of any, or adverse claims against any, of the
Shares being purchased from the Selling Shareholders.
In addition, such opinion shall also contain a statement that
such counsel has participated in conferences with officers and
representatives of the Company, representatives of the independent
public accountants for the Company and representatives of the
Underwriters at which the contents of the Registration Statement and
the Prospectus and related matters were discussed, and no facts have
come to the attention of such counsel that cause such counsel to
believe that either the Registration Statement at the time it became
effective (including the information deemed to be part of the
Registration Statement at the time of effectiveness pursuant to Rule
430A(b) or Rule 434, if applicable), or any amendment thereof made
prior to the Closing Date as of the date of such amendment, contained
an untrue statement of a material fact or omitted to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus as of its date (or any
amendment thereof or supplement thereto made prior to the Closing Date
as of the date of such amendment or supplement) and as of the Closing
Date contained or contains an untrue statement of a material fact or
omitted or omits 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 (it being
understood that such counsel need express no belief or opinion with
respect to the financial statements, schedules and other financial data
included or incorporated by reference therein).
In rendering such opinion, such counsel may (A) limit the law
covered by the opinion to the federal law of the United States and the
law of the State of Michigan; (B) rely, as to matters of fact, without
independent investigation or verification, on the representations and
warranties in this Agreement, on certificates of responsible officers
of the Company and of the Selling Shareholders and certificates or
other statements or advice of public officials or of officers of
departments of various jurisdictions having custody of documents
respecting the corporate existence or good standing of the Company and
its subsidiaries, provided that copies of any such written statements
or certificates shall be delivered to Underwriters' Counsel.
(c) All proceedings taken in connection with the sale of the
Firm Shares and the Additional Shares as herein contemplated shall be
reasonably satisfactory in form and substance to the Representatives
and to Underwriters' Counsel, and the Underwriters shall have received
from said Underwriters' Counsel a favorable opinion, dated as of the
Closing Date with respect to the issuance and sale of the Shares, the
Registration Statement and the Prospectus and such other related
matters as the Representatives may reasonably require, and the Company
and the Selling Shareholders shall have furnished to Underwriters'
Counsel such documents as they reasonably request for the purpose of
enabling them to pass upon such matters.
(d) (i) At the Closing Date and the Additional Closing Date
the Representatives shall have received a certificate signed on behalf
of the Company by the Chief Executive Officer and Chief Financial
Officer of the Company, dated the Closing Date (or the Additional
Closing Date, as the case may be) to the effect that (A) the condition
set forth
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in subsection (a) of this Section 6 has been satisfied, (B) as of the
date hereof and as of the Closing Date (or the Additional Closing Date,
as the case may be) the representa tions and warranties of the Company
set forth in Section 1 hereof are accurate, (C) as of the Closing Date
(or the Additional Closing Date, as the case may be) the obligations of
the Company to be performed hereunder on or prior thereto have been
duly performed, and (D) subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus,
the Company has not sustained any material loss or interference with
its business or properties from fire, flood, hurricane, accident or
other calamity, whether or not covered by insurance, or from any labor
dispute or any legal or governmental proceeding, and there has not been
any material adverse change, or any development involving a material
adverse change, in the business prospects, properties, operations,
condition (financial or otherwise), or results of operations of the
Company, except in each case as described in or contemplated by the
Prospectus. (ii) At the Closing Date the Representatives shall have
received a certificate of each of the several Selling Shareholders
dated the Closing Date to the effect that (i) as of the date hereof and
as of the Closing Date the representations and warranties of such
Selling Shareholder set forth in Section 1A above are accurate and (ii)
as of the Closing Date the obligations of such Selling Shareholder to
be performed hereunder on or prior thereto have been duly performed.
(e) At the time this Agreement is executed and at the Closing
Date and at the Additional Closing Date, if any, the Representatives
shall have received a letter, from KPMG Peat Marwick LLP, independent
public accountants for the Company, dated, respectively, as of the date
of this Agreement and as of the Closing Date and as of the Additional
Closing Date, addressed to the Underwriters and in form and substance
satisfactory to the Representatives, to the effect that: (i) they are
independent certified public accountants with respect to the Company
within the meaning of the Act and the Regulations and stating that the
answer to Item 10 of the Registration Statement is correct insofar as
it relates to them; (ii) stating that, in their opinion, the financial
statements and schedules of the Company included in the Registration
Statement and the Prospectus and covered by their opinion therein
comply as to form in all material respects with the applicable
accounting requirements of the Act and the applicable published rules
and regulations of the Commission thereunder; (iii) on the basis of
procedures consisting of a reading of the latest available unaudited
interim consolidated financial statements of the Company, and its
subsidiaries, a reading of the minutes of meetings and consents of the
shareholders and boards of directors of the Company and its
subsidiaries and the committees of such boards subsequent to December
31, 1997, inquiries of officers and other employees of the Company and
its subsidiaries who have responsibility for financial and accounting
matters of the Company and its subsidiaries with respect to
transactions and events subsequent to December 31, 1997 and other
specified procedures and inquiries to a date not more than five days
prior to the date of such letter, nothing has come to their attention
that would cause them to believe that: (A) with respect to the period
subsequent to December 31, 1997 there were, as of the date of the most
recent available monthly financial statements of the Company, if any,
and as of a specified date not more than five days prior to the date of
such letter, any changes in the capital stock, warehousing financing
facilities, term loans, notes payable or other debt or indebtedness of
the Company or any decrease in the total assets or shareholders' equity
of the Company, in each case as compared with the amounts shown in the
most recent balance sheet presented in the Registration Statement and
the Prospectus, except for changes or decreases which the Registration
Statement and the Prospectus disclose have occurred or may occur or
which are set forth in such letter or
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(B) that during the period from December 31, 1997 to the date of the
most recent available monthly financial statements of the Company, if
any, and to a specified date not more than five days prior to the date
of such letter, there was any decrease, as compared with the
corresponding period in the prior fiscal year, in gain on sale of
loans, total revenues, or total or per share net income, except for
decreases which the Registration Statement and the Prospectus disclose
have occurred or may occur or which are set forth in such letter; and
(iv) stating that they have compared specific dollar amounts, numbers
of shares, percentages of revenues and earnings, and other financial
information pertaining to the Company set forth in the Registration
Statement and the Prospectus, which have been specified by the
Representatives prior to the date of this Agreement, to the extent that
such amounts, numbers, percentages, and information may be derived from
the general accounting and financial records of the Company and its
subsidiaries or from schedules furnished by the Company, and excluding
any questions requiring an interpretation by legal counsel, with the
results obtained from the application of specified readings, inquiries,
and other appropriate procedures specified by the Representatives set
forth in such letter, and found them to be in agreement.
(f) Prior to the Closing Date the Company and the Selling
Shareholders shall have furnished to the Representatives such further
information, certificates and documents as the Representatives may
reasonably request.
(g) The Representatives shall have received from each person
who is a director or officer of the Company or such shareholders as
have been heretofore designated by the Representatives and listed on
Schedule III hereto an agreement to the effect that such person will
not, directly or indirectly, without your prior written consent, offer,
sell, offer or agree to sell, grant any option to purchase or otherwise
dispose (or announce any offer, sale, grant of an option to purchase or
other disposition) of any shares of Common Stock (or any securities
convertible into, exercisable for or exchangeable or exercisable for
shares of Common Stock) for a period of 180 days after the date of the
Prospectus, other than the Company's and the Selling Shareholders' sale
of Shares hereunder, and other than (i) exercises of options to acquire
shares of Common Stock granted under the Rock Financial Corporation
1996 Stock Option Plan, (ii) transfers to the holder's spouse or lineal
descendants or ancestors, natural or adopted (collectively,
"Relatives"), or to an inter vivos trust for the benefit of such
holder's Relatives, (iii) transfers upon the death of such holder
pursuant to the laws of descent and distribution or pursuant to ▇▇▇▇▇,
or (iv) gifts, provided that, in the case of the foregoing clauses (ii)
through (iv), the transferee agrees in writing to be bound by the terms
of these restrictions.
(h) At the Closing Date, the Shares shall have been approved
for listing on the Nasdaq Stock Market's National Market.
If any of the conditions specified in this Section 6 shall not
have been fulfilled when and as required by this Agreement, or if any of the
certificates, opinions, written statements or letters furnished to the
Representatives or to Underwriters' Counsel pursuant to this Section 6 shall not
be in all material respects reasonably satisfactory in form and substance to the
Representatives and to Underwriters' Counsel, all obligations of the
Underwriters hereunder may be canceled by the Representatives at, or at any time
prior to, the Closing Date and the obligations of the Underwriters to purchase
the Additional Shares may be canceled by the Representatives at, or at any time
prior to, the Additional Closing Date. Notice of such
-19-
20
cancellation shall be given to the Company and the Selling Shareholders in
writing, or by telephone, telex or telegraph, confirmed in writing.
7. Indemnification.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the Act or Section 20(a) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
against any and all losses, liabilities, claims, damages and expenses
whatsoever as incurred (including but not limited to attorneys' fees
and any and all expenses whatsoever incurred in investigating,
preparing or defending against any litigation, commenced or threatened,
or any claim whatsoever, and any and all amounts paid in settlement of
any such claim or litigation), joint or several, to which they or any
of them may become subject under the Act, the Exchange Act or
otherwise, insofar as such losses, liabilities, claims, damages or
expenses (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact
contained in the registration statement for the registration of the
Shares under the Act, as originally filed or any amendment thereof, or
any related preliminary prospectus or the Prospectus, or in any
supplement thereto or amendment thereof, 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 the Company will not be
liable in any such case to the extent but only to the extent that any
such loss, liability, claim, damage or expense arises out of or is
based upon any such untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Company by or on
behalf of any Underwriter through the Representatives expressly for use
therein; and provided further, however, that the foregoing indemnity
agreement with respect to any preliminary prospectus or the prospectus
or any related registration statement shall not inure to the benefit of
any Underwriter from whom the person asserting any such losses,
liabilities, claims or damages (and any related expenses) purchased
Shares, or any person controlling such Underwriter, if a copy of the
Prospectus (as then amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) was not sent or given
by or on behalf of such Underwriter to such person, if required by law
so to have been delivered, at or prior to the written confirmation of
the sale of such Shares to such person, and if the Prospectus (as so
amended or supplemented ) would have corrected the defect giving rise
to such loss, liability, claim, damage or expense. This indemnity
agreement will be in addition to any liability which the Company may
otherwise have including under this Agreement.
(b) Each Selling Shareholder severally, and not jointly,
agrees to indemnify and hold harmless each Underwriter and each person,
if any, who controls any Underwriter within the meaning of Section 15
of the Act or Section 20(a) of the Exchange Act, against any and all
losses, liabilities, claims, damages and expenses whatsoever as
incurred (including but not limited to attorneys' fees and any and all
expenses whatsoever incurred in investigating, preparing or defending
against any litigation, commenced or threatened, or any claim
whatsoever, and any and all amounts paid in settlement of any such
claim or litigation), joint or several, to which they or any of them
may become subject under the Act, the Exchange Act or otherwise,
insofar as such losses, liabilities, claims, damages or expenses (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material
-20-
21
fact contained in the registration statement for the registration of
the Shares under the Act, as originally filed or any amendment thereof
or any related preliminary prospectus 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, in each case to the extent, but only to the
extent, that any such loss, liability, claim, damage or expense arises
out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon
and in conformity with written information relating to such Selling
Shareholder furnished to the Company by or on behalf of such Selling
Shareholder expressly for use therein; provided, however, that in no
case shall any Selling Shareholder be liable or responsible for any
amount in excess of either (i) the net proceeds received by such
Selling Shareholder from the sale of his Shares pursuant to this
Agreement, or (ii) that portion of the aggregate indemnification
obligations of the Company and the Selling Shareholders which is equal
to the proportion that the number of Shares sold by such Selling
Shareholder bears to the total number of Shares being sold to the
Underwriters by the Company and the Selling Shareholders; and provided
further, however, that the foregoing indemnity agreement with respect
to any preliminary prospectus or the prospectus or any related
registration statement shall not inure to the benefit of any
Underwriter from whom the person asserting any such losses,
liabilities, claims or damages (and any related expenses) purchased
Shares, or any person controlling such Underwriter, if a copy of the
Prospectus (as then amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) was not sent or given
by or on behalf of such Underwriter to such person, if required by law
so to have been delivered, at or before the written confirmation of the
sale of the Shares to such person, and if the Prospectus (as so amended
or supplemented) would have cured the defect giving rise to such loss,
liability, claim, damage or expense. This liability shall be in
addition to any liability which any Selling Shareholder may otherwise
have including under this Agreement.
(c) Each Underwriter severally, and not jointly, agrees to
indemnify and hold harmless the Company, each of the directors of the
Company, each of the officers of the Company who shall have signed the
Registration Statement, the Selling Shareholders and each other person,
if any, who controls the Company or any of the Selling Shareholders
within the meaning of Section 15 of the Act or Section 20(a) of the
Exchange Act, against any and all losses, liabilities, claims, damages
and expenses whatsoever as incurred (including but not limited to
attorneys' fees and any and all expenses whatsoever incurred in
investigating, preparing or defending against any litigation,
commenced or threatened, or any claim whatsoever, and any and all
amounts paid in settlement of any such claim or litigation), joint or
several, to which they or any of them may become subject under the Act,
the Exchange Act or otherwise, insofar as such losses, liabilities,
claims, damages or expenses (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement
of a material fact contained in the registration statement for the
registration of the Shares under the Act, as originally filed or any
amendment thereof, or any related preliminary prospectus or the
Prospectus, or in 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, in each case to the extent,
but only to the extent, that any such loss, liability, claim, damage or
expense arises out of or is based upon any such untrue statement or
alleged untrue statement or omission or alleged omission (i) made
therein in reliance upon and in
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conformity with written information furnished to the Company by or on
behalf of any Underwriter through the Representatives expressly for use
therein, or (ii) if the person asserting any such losses, liabilities,
claims or damages (and any related expenses) purchased Shares from such
Underwriter and a copy of the Prospectus (as then amended or
supplemented if the Company shall have furnished any amendments or
supplements thereto) was not sent or given on behalf of such
Underwriter to such person, if required by law so to have been
delivered, at or before written confirmation of the sale of the Shares
to such person, and if the Prospectus (as so amended or supplemented)
would have cured the defect giving rise to such loss, liability, claim
or expense; provided, however, that in no case shall any Underwriter be
liable or responsible for any amount in excess of the underwriting
discount applicable to the Shares purchased by such Underwriter
hereunder. This indemnity will be in addition to any liability which
any Underwriter may otherwise have including under this Agreement. The
Company and the Selling Shareholders acknowledge that the statements
set forth in the last paragraph of the cover page, the legends on the
inside cover page, and under the caption "Underwriting" in the
Prospectus (other than the third to last paragraph under that caption)
constitute the only information furnished in writing to the Company by
or on behalf of any Underwriter through the Representatives expressly
for use in the registration statement relating to the Shares as
originally filed or in any amendment thereof, any related preliminary
prospectus or the Prospectus or in any amendment thereof or supplement
thereto, as the case may be.
(d) Promptly after receipt by an indemnified party under
subsection (a), (b) or (c) above of notice of the commencement of any
action, such indemnified party shall, if a claim in respect thereof is
to be made against the indemnifying party under such subsection, notify
each party against whom indemnification is to be sought in writing of
the commencement thereof (but the failure so to notify an indemnifying
party shall not relieve it from any liability which it may have under
this Section 7, except to the extent it is materially prejudiced as a
result of such failure). In case any such action is brought against any
indemnified party, the indemnifying party will be entitled to
participate therein, and to the extent it may elect by written notice
delivered to the indemnified party promptly after receiving the
aforesaid notice from such indemnified party, 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, the
indemnifying party will not be liable to such indemnified party for any
legal or other expenses subsequently incurred by such indemnified party
in connection with the defense thereof, unless the indemnifying party
does not so assume the defense thereof if given the opportunity to do
so. Notwithstanding the foregoing, the indemnified party or parties
shall have the right to employ its or their own counsel in any such
case, but the fees and expenses of such counsel shall be at the expense
of such indemnified party or parties unless (i) the employment of such
counsel shall have been authorized in writing by the indemnifying
parties in connection with the defense of such action, (ii) the
indemnifying parties shall not have employed counsel to have charge of
the defense of such action within a reasonable time after notice of
commencement of the action, or (iii) such indemnified party or parties
shall have reasonably concluded that there may be defenses available to
it or them which are different from or additional to those available to
one or all of the indemnifying parties (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 parties), in any of which events
such fees and expenses of one counsel (in addition to local counsel)
for all indemnified parties under each of subsections (a), (b) and (c)
shall be borne by the
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indemnifying parties. Anything in this subsection to the contrary
notwithstanding, an indemnifying party shall not be liable for any
settlement of any claim or action effected without its written consent;
provided, however, that such consent was not unreasonably withheld.
8. Contribution. In order to provide for contribution in
circumstances in which the indemnification provided for in Section 7 hereof is
for any reason held to be unavailable from any indemnifying party or is
insufficient to hold harmless a party indemnified thereunder, the Company and
the Selling Shareholders, on the one hand, and the Underwriters, on the other
hand, shall contribute to the aggregate losses, claims, damages, liabilities and
expenses of the nature contemplated by such indemnification provision (including
any investigation, legal and other expenses incurred in connection with, and any
amount paid in settlement of, any such action, suit or proceeding or any claims
asserted), but after deducting in the case of losses, claims, damages,
liabilities and expenses suffered by the Company any contribution received by
the Company from persons, other than the Underwriters, who may also be liable
for contribution, including persons who control the Company within the meaning
of Section 15 of the Act or Section 20(a) of the Exchange Act, officers of the
Company who signed the Registration Statement and directors of the Company) as
incurred to which the Company, one or more of the Selling Shareholders and one
or more of the Underwriters may be subject, in such proportions as is
appropriate to reflect the relative benefits received by the Company and the
Selling Shareholders, on the one hand, and the Underwriters, on the other hand,
from the offering of the Shares or, if such allocation is not permitted by
applicable law or indemnification is not available as a result of the
indemnifying party not having received notice as provided in Section 7 hereof,
in such proportion as is appropriate to reflect not only the relative benefits
referred to above but also the relative fault of the Company and the Selling
Shareholders, on the one hand, and the Underwriters, on the other hand, in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Company and the
Selling Shareholders, on the one hand, and the Underwriters, on the other hand,
shall be deemed to be in the same proportion as (x) the total proceeds from the
offering (net of underwriting discounts and commissions but before deducting
expenses) received by the Company and the Selling Shareholders and (y) the
underwriting discounts and commissions received by the Underwriters,
respectively, in each case as set forth in the table on the cover page of the
Prospectus. The relative fault of the Company and the Selling Shareholders, on
the one hand, and of the Underwriters, on the other hand, shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company, the Selling Shareholders or the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Company,
the Selling Shareholders 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 above. Notwithstanding the provisions of
this Section 8, (i) in no case shall any Underwriter be liable or responsible
for any amount in excess of the underwriting discount applicable to the Shares
purchased by such Underwriter hereunder, (ii) 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, and (iii) in no case shall any Selling Shareholder be liable
or responsible for any amount in excess of either (1) the net proceeds received
by such Selling Shareholder from the sale of his Shares pursuant to this
Agreement or (2) that portion of the aggregate contribution obligations of the
Company and the Selling Shareholders which
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is equal to the proportion that the number of Shares sold by such Selling
Shareholder bears to the total number of Shares being sold to the Underwriters
by the Company and the Selling Shareholders. Notwithstanding the provisions of
this Section 8 and the preceding sentence, 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 Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. For purposes of this Section 8, each person, if
any, who controls an Underwriter within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act shall have the same rights to contribution as
such Underwriter, and each person, if any, who controls the Company or any
Selling Shareholder within the meaning of Section 15 of the Act or Section 20(a)
of 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 or the Selling Shareholders, as the case
may be, subject in each case to clauses (i) and (ii) of this Section 8. 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,
notify each party or parties from whom contribution may be sought in writing,
but the omission to so notify such party or parties shall not relieve the party
or parties from whom contribution may be sought from any obligation it or they
may have under this Section 8 or otherwise, except to the extent it is
materially prejudiced as a result of such failure. No party shall be liable for
contribution with respect to any action or claim settled without its consent;
provided, however, that such consent was not unreasonably withheld.
9. Default by an Underwriter.
(a) If any Underwriter or Underwriters shall default in its or
their obligation to purchase Firm Shares or Additional Shares
hereunder, and if the Firm Shares or Additional Shares with respect to
which such default relates do not (after giving effect to arrangements,
if any, made by the Representatives pursuant to subsection (b) below)
exceed in the aggregate 10% of the number of Firm Shares or Additional
Shares, the number of Firm Shares or Additional Shares to which the
default relates shall be purchased by the non-defaulting Underwriters
in proportion to the respective proportions which the numbers of Firm
Shares set forth opposite their respective names in Schedule I hereto
bear to the aggregate number of Firm Shares set forth opposite the
names of the non-defaulting Underwriters.
(b) In the event that such default relates to more than 10% of
the Firm Shares or Additional Shares, as the case may be, the
Representatives may in their discretion arrange for themselves or for
another party or parties (including any non-defaulting Underwriter or
Underwriters who so agree) to purchase such Firm Shares or Additional
Shares, as the case may be, to which such default relates on the terms
contained herein. In the event that within 5 calendar days after such a
default the Representatives do not arrange for the purchase of the Firm
Shares or Additional Shares, as the case may be, to which such default
relates as provided in this Section 9(b), this Agreement or, in the
case of a default with respect to the Additional Shares, the
obligations of the Underwriters to purchase and of the Company to sell
the Additional Shares shall thereupon terminate, without liability on
the part of the Company or the Selling Shareholders with respect
thereto (except in each case as provided in Section 5, 7(a), 7(b) and 8
hereof) or the Underwriters (except as provided in Section 7), but
nothing in this Agreement shall relieve a defaulting Underwriter or
Underwriters of its or their
-24-
25
liability, if any, to the other Underwriters, the Company and the
Selling Shareholders for damages occasioned by its or their default
hereunder.
(c) In the event that the Firm Shares or Additional Shares to
which the default relates are to be purchased by the non-defaulting
Underwriters, or are to be purchased by another party or parties as
aforesaid, the Representatives or the Company shall have the right to
postpone the Closing Date or Additional Closing Date, as the case may
be, for a period, not exceeding five business days, in order to effect
whatever changes may thereby be made necessary in the Registration
Statement or the Prospectus or in any other documents and arrangements,
and the Company agrees to file promptly any amendment or supplement to
the Registration Statement or the Prospectus which, in the reasonable
opinion of Underwriters' Counsel, may thereby be made necessary or
advisable. The term "Underwriter" as used in this Agreement shall
include any party substituted under this Section 9 with like effect as
if it had originally been a party to this Agreement with respect to
such Firm Shares and Additional Shares.
10. Survival of Representations and Agreements. All
representations and warranties, covenants and agreements of the Underwriters,
the Selling Shareholders and the Company contained in this Agreement, including
the agreements contained in Section 5, the indemnity agreements contained in
Section 7 and the contribution agreements contained in Section 8, shall remain
operative and in full force and effect regardless of any investigation made by
or on behalf of any Underwriter or any controlling person thereof, by or on
behalf of any Selling Shareholder or any controlling person thereof, or by or on
behalf of the Company, any of its officers and directors or any controlling
person thereof, and shall survive delivery of and payment for the Shares to and
by the Underwriters. The representations contained in Section 1 and the
agreements contained in Sections 5, 7, 8 and 11(d) hereof shall survive the
termination of this Agreement, including termination pursuant to Section 9 or 11
hereof.
11. Effective Date of Agreement; Termination.
(a) This Agreement shall become effective upon the later to
occur of (i) receipt by the Representatives and the Company of
notification of the effectiveness of the Registration Statement or (ii)
the execution of this Agreement. If either the initial public offering
price or the purchase price per Share has not been agreed upon prior to
5:00 P.M., New York time, on the fifth full business day after the
Registration Statement shall have become effective, this Agreement
shall thereupon terminate without liability to the Company, the Selling
Shareholders or the Underwriters except as herein expressly provided.
Until this Agreement becomes effective as aforesaid, it may be
terminated by the Company by notifying the Representatives or by the
Representatives notifying the Company and the Selling Shareholders.
Notwithstanding the foregoing, the provisions of this Section 11 and of
Sections 1, 5, 7 and 8 hereof shall at all times be in full force and
effect.
(b) The Representatives shall have the right to terminate this
Agreement at any time prior to the Closing Date or the obligations of
the Underwriters to purchase the Additional Shares at any time prior to
the Additional Closing Date, as the case may be, if (A) any domestic or
international event or act or occurrence has materially disrupted, or
in the opinion of the Representatives will in the immediate future
materially disrupt, the market for the Company's securities or
securities in general; or (B) if trading on the New York or American
Stock Exchanges or the Nasdaq Stock Market's National Market shall have
been suspended, or minimum or maximum prices for trading shall have
been
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fixed, or maximum ranges for prices for securities shall have been
required, on the New York or American Stock Exchanges or the Nasdaq
Stock Market's National Market by the New York or American Stock
Exchanges or the Nasdaq Stock Market or by order of the Commission or
any other governmental authority having jurisdiction; or (C) if a
banking moratorium has been declared by a state or federal authority or
if any new restriction materially adversely affecting the distribution
of the Firm Shares or the Additional Shares, as the case may be, shall
have become effective; or (D) (i) if the United States becomes engaged
in hostilities or there is an escalation of hostilities involving the
United States or there is a declaration of a national emergency or war
by the United States or (ii) if there shall have been such change in
political, financial or economic conditions if the effect of any such
event in (i) or (ii) as in the judgment of the Representatives makes it
impracticable or inadvisable to proceed with the offering, sale and
delivery of the Firm Shares or the Additional Shares, as the case may
be, on the terms contemplated by the Prospectus.
(c) Any notice of termination pursuant to this Section 11
shall be by telephone, telex, or telegraph, confirmed in writing by
letter.
(d) If this Agreement shall be terminated pursuant to any of
the provisions hereof (otherwise than pursuant to Section 9(b) hereof),
or if the sale of the Shares provided for herein is not consummated
because any condition to the obligations of the Underwriters set forth
herein is not satisfied or because of any refusal, inability or failure
on the part of the Company to perform any agreement herein or comply
with any provision hereof, the Company will, subject to demand by the
Representatives, reimburse the Underwriters for all out-of-pocket
expenses (including the fees and expenses of their counsel), incurred
by the Underwriters in connection herewith.
12. Notices. All communications hereunder, except as may be
otherwise specifically provided herein, shall be in writing and , if sent to any
Underwriter, shall be mailed, delivered, or telexed, telecopied or telegraphed
and confirmed in writing, to such Underwriter c/o Bear, ▇▇▇▇▇▇▇ & Co. Inc., ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇; if sent to the
Company or any Selling Shareholder, shall be mailed, delivered, or telegraphed
or telecopied and confirmed in writing to the Company, Rock Financial
Corporation, Fourth Floor, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attention: Chief Executive Officer. These addresses may be changed by notice to
the other parties.
13. Parties. This Agreement shall inure solely to the benefit
of, and shall be binding upon, the Underwriters, the Selling Shareholders and
the Company and the controlling persons, directors, officers, employees and
agents referred to in Section 7 and 8, and their respective successors and
assigns, and no other person shall have or be construed to have any legal or
equitable right, remedy or claim under or in respect of or by virtue of this
Agreement or any provision herein contained. The term "successors and assigns"
shall not include a purchaser, in its capacity as such, of Shares from any of
the Underwriters.
14. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, BUT WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
15. Miscellaneous. The Representatives represent and warrant
that they have been authorized by the several Underwriters to enter into this
Agreement on their behalf and to act for them in the manner provided in this
Agreement.
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If the foregoing correctly sets forth the understanding among
the Representatives, the Selling Shareholders and the Company, please so
indicate in the space provided below for that purpose, whereupon this letter
shall constitute a binding agreement among the parties hereto.
Very truly yours,
ROCK FINANCIAL CORPORATION
By: ________________________
Name:
Title:
Selling Shareholders:
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
By:________________________
Name:
Attorney-in-Fact
Accepted as of the date first above written
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
PRUDENTIAL SECURITIES INCORPORATED
▇▇▇▇▇ & CO. L.L.C.
By: Bear, ▇▇▇▇▇▇▇ & Co. Inc.
By _________________________
On behalf of themselves and the other
Underwriters named in Schedule I hereto.
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SCHEDULE I
Number of Firm
Name of Underwriter Shares to be Purchased
------------------- ----------------------
Bear, ▇▇▇▇▇▇▇ & Co. Inc.
Prudential Securities Incorporated
▇▇▇▇▇ & Co. L.L.C.
Total. . . . . . ______________
3,330,000
==============
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SCHEDULE II
Number of Firm
Name of Selling Shareholder Shares to be Sold
--------------------------- -----------------
▇▇▇▇▇▇ ▇▇▇▇▇ 214,500
▇▇▇▇ ▇▇▇▇▇▇▇▇ 57,750
▇▇▇▇ ▇▇▇▇▇▇ 57,750
------
Total 330,000
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SCHEDULE III
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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