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Exhibit 1
1,300,000 SHARES
GLB BANCORP, INC.
COMMON STOCK
UNDERWRITING AGREEMENT
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May ___, 1998
Xxxxx & Co., L.L.C.
Xxx Xxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
Dear Sirs:
GLB Bancorp, Inc., an Ohio corporation (the "Company"), proposes to
issue and sell 1,300,000 shares (the "Firm Shares") of its authorized but
unissued Common Stock (the "Common Stock") to Xxxxx & Co., L.L.C., a Delaware
limited liability company ("Xxxxx & Co." or the "Underwriter"). In addition, the
Company proposes to grant to the Underwriter an option to purchase up to an
additional 195,000 shares (the "Optional Shares") to cover over-allotments. The
Firm Shares and the Optional Shares are called, collectively, the "Shares."
1. SALE AND PURCHASE OF THE SHARES.
(a) On the basis of the representations, warranties and
agreements of the Company contained in, and subject to the terms and
conditions of, this Agreement, the Company agrees to issue and sell to
the Underwriter, and the Underwriter agrees to purchase, the Firm
Shares at a purchase price of $[______] per Share, except as set forth
in Section 1(b) below.
(b) On the basis of the representations, warranties and
agreements of the Company contained in, and subject to the terms and
conditions of, this Agreement, the policies of the National Association
of Securities Dealers, Inc. (the "NASD"), and pursuant to directions
from the Company, the Underwriter will offer to sell to each of the
persons listed on EXHIBIT A (who may purchase alone or with family
members to the extent permitted by the Free-Riding and Withholding
Interpretation (the "Interpretation") under the Rules of Fair Practice
of the NASD) the number of Shares set forth opposite their respective
names on EXHIBIT A. To the extent such persons (alone or with such
family members) offer to buy such Shares, the Underwriter
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agrees to purchase up to [__________] of such Shares at a purchase
price of $[______] per Share. The parties agree that the securities
purchased and sold under this subparagraph shall constitute "issuer
directed securities" sold to the issuer's employees or directors or
other persons under the Interpretation.
(c) On the basis of the representations, warranties and
agreements of the Company contained in, and subject to the terms and
conditions of, this Agreement, the Company grants to the Underwriter an
option to purchase all or any part of the Optional Shares at a price
per Share of $[______]. The over-allotment option may be exercised only
to cover over-allotments in the sale of the Firm Shares by the
Underwriter and may be exercised in whole or in part at any time or
times on or before 12:00 noon, Detroit time, on the day before the Firm
Shares Closing Date (as defined in Section 2 below), and only once at
any time after that date and within 30 days after the Effective Date
(as defined in Section 4 below), in each case upon written or
transmitted facsimile notice, or verbal notice confirmed by transmitted
facsimile, written or telegraphic notice, by Xxxxx & Co. to the Company
no later than 12:00 noon, Detroit time, on the day before the Firm
Shares Closing Date or at least three but not more than five full
business days before the Optional Shares Closing Date (as defined in
Section 2 below), as the case may be, setting forth the number of
Optional Shares to be purchased and the time and date (if other than
the Firm Shares Closing Date) of such purchase.
2. DELIVERY AND PAYMENT. Delivery by the Company of the Firm
Shares to Xxxxx & Co. and payment of the purchase price by certified or official
bank check payable in Detroit Clearing House (next day) funds to the Company,
shall take place at the offices of Benesch, Friedlander, Xxxxxx & Aronoff LLP,
0000 XX Xxxxx, 000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000, at such time and date,
not later than the third (or, if the Firm Shares are priced, as contemplated by
Rule 15c6-1(c) under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), after 4:30 p.m., Washington, D.C. time, the fourth) full
business day following the first date that any of the Shares are released by the
Underwriter for sale to the public, as Xxxxx & Co. shall designate by at least
48 hours prior notice to the Company (the "Firm Shares Closing Date"); provided,
however, that if the Prospectus (as defined in Section 4 below) is at any time
prior to the Firm Shares Closing Date recirculated to the public, the Firm
Shares Closing Date shall occur upon the later of the third or fourth, as the
case the may be, full business day following the first date that any of the
Shares are released by the Underwriter for sale to the public or the date that
is 48 hours after the date that the Prospectus has been so recirculated.
To the extent the option with respect to the Optional Shares
is exercised, delivery by the Company of the Optional Shares, and payment of the
purchase price by certified or official bank check payable in Detroit Clearing
House (next day) funds to the Company, shall take place at the offices of
Benesch, Friedlander, Xxxxxx & Xxxxxxx LLP specified above at the time and on
the date (which may be the Firm Shares Closing Date) specified in the notice
referred to in Section 1(c) (such time and date of delivery and payment are
called the "Optional Shares Closing Date"). The Firm Shares Closing Date and the
Optional Shares Closing Date are called, individually, a "Closing Date" and,
collectively, the "Closing Dates."
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Certificates representing the Firm Shares shall be registered
in such names and shall be in such denominations as Xxxxx & Co. shall request at
least two full business days before the Firm Shares Closing Date or, in the case
of the Optional Shares, on the day of notice of exercise of the option as
described in Section 1(c), and shall be made available to Xxxxx & Co. for
checking and packaging, at such place as is designated by Xxxxx & Co., at least
one full business day before the Closing Date.
3. PUBLIC OFFERING. Subject to the terms and conditions hereof,
the Underwriter agrees that (i) it will offer the Shares to the public as set
forth in the Prospectus as soon after the Registration Statement becomes
effective as may be advisable, and (ii) it will offer and sell the Shares to the
public only in those jurisdictions, and in such amounts, where due qualification
and/or registration has been effected or an exemption from such qualification
and/or registration is available under the applicable securities or Blue Sky
laws of such jurisdiction; it being understood, however, that such agreement
only covers the initial sale of the Shares by the Underwriter and not any
subsequent sale of such Shares in any trading market that may develop after the
public offering. The Company hereby confirms that the Underwriter and dealers
have been authorized to distribute each preliminary prospectus and are
authorized to distribute the Prospectus (as from time to time amended or
supplemented).
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to the Underwriter and
agrees with the Underwriter as follows:
(a) The Company has prepared in conformity with the
requirements of the Securities Act of 1933, as amended (the "Securities
Act") and the rules and regulations adopted by the Securities and
Exchange Commission (the "Commission") thereunder (the "Rules"), a
registration statement on Form SB-2 (No. 333-48387), including a
preliminary prospectus, and has filed with the Commission the
registration statement and such amendments thereof as may have been
required to the date of this Agreement. Copies of such registration
statement (including all amendments thereof) and of the related
preliminary prospectus have heretofore been delivered by the Company to
you. The term "preliminary prospectus" means any preliminary prospectus
(as defined in Rule 430 of the Rules) included at any time as a part of
the registration statement. The registration statement as amended
(including any supplemental registration statement under Rule 462(b) or
any amendment under Rule 462(c) of the Rules) at the time and on the
date it becomes effective (the "Effective Date"), including the
prospectus, financial statements, schedules, exhibits, and all other
documents incorporated by reference therein or filed as a part thereof,
is called the "Registration Statement;" provided, however, that
"Registration Statement" shall also include all Rule 430A Information
(as defined below) deemed to be included in such Registration Statement
at the time such Registration Statement becomes effective as provided
by Rule 430A of the Rules. The term "Prospectus" means the Prospectus
as filed with the Commission pursuant to Rule 424(b) of the Rules or,
if no filing pursuant to Rule 424(b) of the Rules is required, means
the form
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of final prospectus included in the Registration Statement at the time
such Registration Statement becomes effective. The term "Rule 430A
Information" means information with respect to the Shares and the
offering thereof permitted to be omitted from the Registration
Statement when it becomes effective pursuant to Rule 430A of the Rules.
Reference made herein to any preliminary prospectus or to the
Prospectus shall be deemed to refer to and include any document
attached as an exhibit thereto or incorporated by reference therein, as
of the date of such preliminary prospectus or the Prospectus, as the
case may be. The Company will not file any amendment of the
Registration Statement or supplement to the Prospectus to which Xxxxx &
Co. shall reasonably object in writing after being furnished with a
copy thereof.
(b) Each preliminary prospectus, at the time of filing
thereof, contained all material statements which were required to be
stated therein in accordance with the Securities Act and the Rules, and
conformed in all material respects with the requirements of the
Securities Act and the Rules, and did not include any untrue statement
of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading. The
Commission has not issued any order suspending or preventing the use of
any preliminary prospectus. When the Registration Statement shall
become effective, when the Prospectus is first filed pursuant to Rule
424(b) of the Rules, when any post-effective amendment of the
Registration Statement shall become effective, when any supplement to
or pre-effective amendment of the Prospectus is filed with the
Commission and at each Closing Date, the Registration Statement and the
Prospectus (and any amendment thereof or supplement thereto) will
comply with the applicable provisions of the Securities Act and the
Exchange Act and the respective rules and regulations of the Commission
thereunder, and neither the Registration Statement nor the Prospectus,
nor any amendment thereof or supplement thereto, will contain any
untrue statement of a material fact or will omit to state any material
fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were
made, not misleading; provided, however, that the Company makes no
representation or warranty as to the information contained in the
Registration Statement or the Prospectus or any amendment thereof or
supplement thereto in reliance upon and in conformity with information
furnished in writing to the Company by the Underwriter, specifically
for use in connection with the preparation thereof. The Company hereby
acknowledges for all purposes under this Agreement that the statements
set forth under the caption "Underwriting" and the stabilization legend
on page 2 of the Prospectus constitute the only written information
furnished to the Company by or on behalf of the Underwriters for use in
the preparation of the Registration Statement or the Prospectus or any
amendment or supplement thereto.
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(c) All contracts and other documents required to be filed as
exhibits to the Registration Statement have been filed with the
Commission as exhibits to the Registration Statement.
(d) KPMG Peat Marwick LLP, whose report is filed with the
Commission as part of the Registration Statement, are, and during the
periods covered by their report were, independent public accountants as
required by the Securities Act and the Rules.
(e) The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of the State
of Ohio. The Company's sole subsidiary, Great Lakes Bank (the "Bank"),
is an Ohio-chartered bank. Neither the Company nor the Bank has any
properties or conducts any business outside of the State of Ohio which
would require either of them to be qualified as a foreign corporation
or bank, as the case may be, in any jurisdiction outside of Ohio. The
Bank does not have any directly or indirectly held subsidiary. The
Company has all power, authority, authorizations, approvals, consents,
orders, licenses, certificates and permits needed to enter into,
deliver and perform this Agreement and to issue and sell the Shares.
(f) The Company is a bank holding company duly registered with
the Board of Governors of the Federal Reserve System ("Federal Reserve
Board") under the Bank Holding Company Act of 1956, as amended. The
conduct of the business of the Company and each of its subsidiaries is
in compliance in all respects with applicable federal, state, local and
foreign laws and regulations, except where the failure to be in
compliance would not have a material adverse effect upon the condition
(financial or otherwise), business, properties or prospects of the
Company and the Bank taken as a whole. The Company and the Bank own or
possess or have obtained all governmental licenses, permits, consents,
orders, approvals and other authorizations necessary to lease or own,
as the case may be, and to operate their properties and to carry on
their business as presently conducted, except where the failure to have
obtained such licenses, permits, consents, orders, approvals and other
authorization would not have a material adverse effect upon the
condition (financial or otherwise), business, properties or prospects
of the Company and the Bank taken as a whole, and neither the Company
nor the Bank has received any notice of proceedings related to
revocation or modification of any such licenses, permits, consents,
orders, approvals or authorizations that singly or in the aggregate, if
the subject of an unfavorable ruling or finding, would result in a
material adverse effect upon the condition (financial or otherwise),
business, properties or prospects of the Company and the Bank taken as
a whole. Neither the Company nor the Bank is a party or subject to any
agreement or memorandum with, or directive or order issued
by, the Federal Reserve Board, the Federal Deposit Insurance
Corporation (the "FDIC"), the Ohio Division of Financial Institutions
(the "Division") or any other bank regulatory authority, which imposes
any restrictions or requirements not generally applicable to bank
holding companies or commercial banks.
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(g) The financial statements of the Company and any related
notes thereto, included in the Registration Statement and the
Prospectus, present fairly the financial position of the Company as of
the date of such financial statements and for the period covered
thereby. Such statements and any related notes have been prepared in
accordance with generally accepted accounting principals ("GAAP")
applied on a consistent basis and certified by the independent
accountants named in subsection 4(d) above. The supporting schedules,
if any, included in the Registration Statement present fairly, in
accordance with GAAP, the information required to be stated therein.
The selected financial data and the summary financial information
included in the Prospectus present fairly the information shown therein
and have been compiled on a basis consistent with that of the audited
financial statements included in the Registration Statement.
(h) The Company owns adequate and enforceable rights to use
any patents, patent applications, trademarks, trademark applications,
service marks, copyrights, copyright applications and other similar
rights (collectively, "Intangibles") necessary for the conduct of the
material aspects of its business as described in the Prospectus and the
Company has not infringed, is infringing, or has received any notice of
infringement of, any Intangible of any other person.
(i) The Bank owns the following properties, which are as
described in the Prospectus, free and clear of all liens, encumbrances,
claims, security interests and defects, and all such locations have
been duly approved as Bank locations by the Division and the FDIC:
1. 0000 Xxxxxx Xxxxxx, Xxxxxx, Xxxx;
2. 0000 Xxxxxx Xxxxxx, Xxxxxx, Xxxx;
3. 00000 Xxxxxxxxx Xxxxxxxxx, Xxxxxxxxxx, Xxxx;
4. 00000 Xxxxxxx Xxxx, Xxxxxxxxxx Xxxxx, Xxxx; and
5. 0000 Xxxxxxxxx Xxxxxxxxx, Xxxxxx, Xxxx.
(j) The Bank has valid and enforceable leasehold interests in
the real property listed below, which properties are as described in
the Prospectus, and all such locations have been duly approved as Bank
locations by the Division and the FDIC:
1. 0000 Xxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxx;
2. 00000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxx; and
3. 00 Xxxxx Xxxx Xxxxx, Xxxxxxxxxxx, Xxxx.
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(k) There are no litigation or governmental or other
proceedings or investigations pending before any court or before or by
any public body or board or threatened against the Company or the Bank
and to the best of the Company's knowledge, there is no reasonable
basis for any such litigation, proceedings or investigations, which are
required to be disclosed in the Registration Statement (other than as
disclosed therein), or which might reasonably be expected to have a
material adverse effect on commencement or conduct of the respective
businesses of the Company or the Bank, the ownership of their
respective properties, the consummation of the transactions
contemplated in this Agreement, or the performance by the Company of
its obligations hereunder.
(l) The Company and the Bank have filed all federal, state,
and local tax returns required to be filed by them and paid all taxes
shown due on such returns as well as all other material taxes,
assessments and governmental charges which have become due; no material
deficiency with respect to any such return has been assessed or
proposed.
(m) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, except as
otherwise stated or contemplated herein, there has not been any
material adverse change in the condition (financial or other),
business, properties or prospects of the Company.
(n) No default exists, and no event has occurred which with
notice or lapse of time, or both, would constitute a default, in the
due performance and observance of any material term, covenant or
condition, by the Company, the Bank or, to the best of the Company's
knowledge, any other party, of any lease, indenture, mortgage, note or
any other agreement or instrument to which the Company or the Bank is a
party or by which either of them or either of their businesses may be
bound or affected, except such defaults or events as are not material
to the conduct of their respective businesses or ownership of their
respective properties.
(o) Neither the Company nor the Bank is in violation of any
term or provision of the articles of incorporation or code of
regulations of the Company or the Bank, except for such violations
which would not have a material adverse effect on the condition
(financial or otherwise), business, properties, prospects or results of
operation of the Company and the Bank, taken as a whole. Neither the
Company nor the Bank is in material violation of, nor is either of them
required to take any action to avoid any material violation of, any
franchise, license, permit, judgment, decree, order, statute, rule or
regulation.
(p) Neither the execution, delivery or performance of this
Agreement by the Company nor the consummation of the transactions
contemplated hereby (including, without limitation, the issuance and
sale by the Company of the Shares) will give rise to a right to
terminate or accelerate the due date of any payment due under, or
conflict with or result in the breach of any term or provision of, or
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constitute a default (or an event which with notice or lapse of time,
or both, would constitute a default) under, or require any consent
under, or result in the execution or imposition of any lien, charge or
encumbrance upon any properties or assets of the Company or the Bank
pursuant to the terms of, any lease, indenture, mortgage, note or other
agreement or instrument to which the Company or the Bank is a party or
by which either of them or either of their businesses may be bound or
affected, or any franchise, license, permit, judgment, decree, order,
statute, rule or regulation or violate any provision of the articles of
incorporation or code of regulations of the Company or the Bank, except
those which are immaterial in amount or effect.
(q) The Company has authorized, issued and outstanding capital
stock as set forth in the Prospectus, and all such outstanding capital
stock was duly and validly authorized and issued, and is fully paid and
nonassessable. The issuance, sale and delivery of the Shares have been
duly authorized by all necessary corporate action by the Company and,
when issued, sold and delivered against payment therefor pursuant to
this Agreement, will be duly and validly issued, fully paid and
nonassessable and none of them will have been issued in violation of
any preemptive or other right. All of the outstanding capital stock of
the Bank has been duly authorized and validly issued, and is fully paid
and owned by the Company, free and clear of all liens, encumbrances and
security interests. There is no outstanding option, warrant or other
right calling for the issuance of, and no binding commitment to issue,
any share of stock of the Company or the Bank or any security
convertible into or exchangeable for stock of the Company or the Bank,
except for stock options described in the Registration Statement (the
"Stock Options") under the GLB Bancorp, Inc. 1998 Stock Option and
Incentive Plan (the "Stock Option Plan"). There are no holders of
securities of the Company who, by reason of the filing of the
Registration Statement under the Securities Act, have the right to
request the Company to register such securities under the Securities
Act. The Common Stock, the Company's serial preferred stock (the
"Preferred Stock"), the Shares and the Stock Options conform in all
material respects to all statements in relation thereto contained in
the Registration Statement and the Prospectus.
(r) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, neither the
Company nor the Bank has (1) issued any securities or incurred any
material liability or obligation, direct or contingent, (2) entered
into any material transaction, or (3) declared or paid any dividend or
made any distribution on any of their stock, except liabilities,
obligations, and transactions reasonably expected based on the
disclosures in the Prospectus.
(s) This Agreement has been duly and validly authorized,
executed and delivered by the Company and is the legal, valid and
binding agreement and obligation of the Company.
(t) The Commission has not issued any order preventing or
suspending the use of any preliminary prospectus.
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(u) Neither the Company, nor the Bank, nor, to the Company's
knowledge any director, officer, agent, employee or other person
associated with the Company or the Bank, acting on behalf of the
Company or the Bank, has used any corporate funds for any unlawful
contribution, gift, entertainment or other unlawful expense relating to
political activity; made any direct or indirect unlawful payment to any
foreign or domestic government official or employee from corporate
funds; violated or is in violation of any provision of the Foreign
Corrupt Practices Act of 1977; or made any bribe, rebate, payoff,
influence payment, kickback or other unlawful payment.
(v) Neither the Company nor the Bank nor any affiliate of
either of them has taken, and they will not take, directly or
indirectly, any action designed to cause or result in, or which has
constituted or which might reasonably be expected to constitute, the
stabilization or manipulation of the price of the shares of the Common
Stock in order to facilitate the sale or resale of any of the Shares.
(w) No transaction has occurred between or among the Company
or the Bank and any of their officers, directors, organizers or the
Company's shareholders or any affiliate or affiliates of any such
officer, director, organizer, or shareholder, that is required to be
described in and is not described in the Prospectus.
(x) The Company is not and will not after the offering be an
"investment company," or a company "controlled" by an "investment
company," within the meaning of the Investment Company Act of 1940, as
amended.
(y) The Company has obtained from all of its executive
officers and directors their written agreement that, for a period of
180 days from the date of this Agreement, they will not sell, offer to
sell, transfer, contract to sell, or grant any option for the sale of
or otherwise dispose of, directly or indirectly, any shares of Common
Stock of the Company (or any securities convertible into or exercisable
for such shares of Common Stock) owned by them.
(z) The Company and the Bank maintain a system of internal
accounting controls sufficient to provide reasonable assurances that
(A) transactions are executed in accordance with management's general
or specific authorization, (B) transactions are recorded as necessary
to permit preparation of financial statements in conformity with GAAP
and to maintain accountability for assets, (C) access to assets is
permitted only in accordance with management's general or specific
authorization, (D) the recorded accountability for assets is compared
with the existing assets at reasonable intervals and appropriate action
is taken with respect to any differences, and (E) the tax accounting
method used by the Company and the Bank to report income is the proper
method of accounting for United States federal income tax purposes.
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5. CONDITIONS OF THE UNDERWRITER'S OBLIGATIONS. The obligation of
the Underwriter to purchase the Shares shall be subject to the accuracy of the
representations and warranties of the Company in this Agreement as of the date
of this Agreement and as of the Firm Shares Closing Date or Optional Shares
Closing Date, as the case may be, to the accuracy of the written statements of
Company officers made pursuant to the provisions of this Agreement, to the
performance by the Company of its obligations under this Agreement, and to the
following additional terms and conditions:
(a) The Registration Statement shall have become effective not
later than 5:00 P.M., Detroit time, on the date of this Agreement or on
such later date and time as shall be consented to in writing by Xxxxx &
Co.; if the filing of the Prospectus, or any supplement thereto, is
required pursuant to Rule 424(b) of the Rules, the Prospectus shall
have been filed in the manner and within the time period required by
Rule 424(b) of the Rules; at each Closing Date, if any, no stop order
shall have been issued or proceedings therefor initiated or threatened
by the Commission; and any request of the Commission for inclusion of
additional information in the Registration Statement, or otherwise,
shall have been complied with to the reasonable satisfaction of Xxxxx &
Co.
(b) At each Closing Date, Xxxxx & Co. shall have received the
favorable opinion of Xxxxx & Associates, counsel for the Company, dated
the Firm Shares Closing Date or the Optional Shares Closing Date, as
the case may be, addressed to the Underwriter and in form and scope
reasonably satisfactory to counsel for Xxxxx & Co. to the effect that:
(i) The Company (A) is a corporation existing and in
good standing under the laws of the State of Ohio, and (B) to
the best of such counsel's knowledge, is duly qualified to do
business as a foreign corporation under the corporation law
of, and is in good standing as such in, every jurisdiction
where such qualification is required, except where the failure
so to qualify would not have a material adverse effect upon
the condition (financial or otherwise) or results of
operations of the Company. The Bank (X) is duly organized and
in good standing as an Ohio-chartered bank, and (Y) to the
best of such counsel's knowledge, is duly qualified to do
business as a foreign corporation under the corporation law
and banking law of, and is in good standing as such in, every
jurisdiction where such qualification is required, except
where the failure so to qualify would not have a material
adverse effect upon the condition (financial or otherwise) or
results of operations of the Bank.
(ii) Each of the Company and the Bank has full
corporate power and authority and all material authorizations,
approvals, orders, licenses, certificates and permits of and
from all governmental bank regulatory officials and bodies
necessary to own its properties and to commence and conduct
its business as described in the Registration Statement and
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Prospectus, except for such authorizations, approvals, orders,
licenses, certificates and permits as are not material to the
ownership of their properties or commencement or conduct of
their businesses;
(iii) The Company has authorized, issued and
outstanding capital stock as set forth in the Prospectus, and
all such outstanding capital stock was duly and validly
authorized and issued; the Shares have been duly and validly
authorized and issued and, upon receipt by the Company of
payment therefor in accordance with the terms of this
Agreement, will be fully paid and nonassessable and are not
and will not be subject to, preemptive rights; the Shares and
the other capital stock and Stock Options of the Company
conform in all material respects to the descriptions thereof
contained in the Registration Statement and the Prospectus;
(iv) To the knowledge of such counsel, there are no
holders of securities of the Company who, by reason of the
filing of the Registration Statement under the Securities Act,
have the right to request the Company to register such
securities under the Securities Act;
(v) The Company owns all the outstanding capital
stock of the Bank;
(vi) The certificates evidencing the Shares are in
the form approved by the Board of Directors of the Company,
comply with the code of regulations and the articles of
incorporation of the Company, comply as to form and in all
other material respects with applicable legal requirements;
(vii) This Agreement has been duly authorized,
executed and delivered by the Company, and is the legal, valid
and binding agreement and obligation of the Company
enforceable in accordance with its terms, except (a) as
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws relating to or
affecting enforcement of creditors' rights or by general
equity principles (including requirements of reasonableness
and good faith in the exercise of rights and remedies),
whether applied by a court of equity or a court of law in an
action at law or in equity, or by the discretionary nature of
specific performance, injunctive relief, and other equitable
remedies, including the appointment of a receiver, and (b),
with respect to provisions relating to indemnification and
contribution, to the extent they are held by a court of
competent jurisdiction to be void or unenforceable as against
public policy or limited by applicable laws or the policies
embodied in them;
(viii) To the best of such counsel's knowledge, there
are (A) no contracts or other documents which are required to
be filed as exhibits to the Registration Statement other than
those filed as exhibits thereto, (B) no legal
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or governmental proceedings pending or threatened against the
Company or the Bank other than those described in the
Prospectus, and (C) no statutes or regulations applicable to
the Company or the Bank, or certificates, permits, grants or
other consents, approvals, orders, licenses or authorizations
from regulatory officials or bodies, which are required to be
obtained or maintained by the Company or the Bank and which
are of a character required to be disclosed in the
Registration Statement and Prospectus which have not been so
disclosed;
(ix) The statements in the Registration Statement and
the Prospectus under the caption "Description of Capital
Stock," insofar as they are descriptions of corporate
documents or agreements, or descriptions of laws, regulations,
or regulatory requirements, or refer to compliance with law or
to statements of law or legal conclusions, are correct in all
material respects;
(x) To the best of such counsel's knowledge, the
execution, delivery and performance of this Agreement, the
consummation of the transactions herein contemplated and the
compliance with the terms and provisions hereof by the Company
will not give rise to a right to terminate or accelerate the
due date of any payment due under, or conflict with or result
in a breach of any of the terms or provisions of, or
constitute a default (or an event which, with notice or lapse
of time, or both, would constitute a default) under, or
require any consent under, or result in the execution or
imposition of any lien, charge or encumbrance upon any
properties or assets of the Company or the Bank pursuant to
the terms of, any lease, indenture, mortgage, note or other
agreement or instrument to which the Company or the Bank is a
party or by which either of them or either of their properties
or businesses is or may be bound or affected, nor will such
action result in any violation of the provisions of the
articles of incorporation or code of regulations of the
Company or the Bank or any statute or any order, rule, or
regulation applicable to the Company or the Bank of any court
or any federal, state, local or other regulatory authority or
other governmental body, the effect of which, in any such
case, would be expected to be materially adverse to the
Company or the Bank;
(xi) To the best of such counsel's knowledge, no
consent, approval, authorization or order of any court or
governmental agency or body, domestic or foreign, is required
to be obtained by the Company in connection with the execution
and delivery of this Agreement or the sale of the Shares to
the Underwriter as contemplated by this Agreement (other than
as may be required by the NASD or as required by state
securities or Blue Sky laws, as to which such counsel need
express no opinion), except those which have been obtained;
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(xii) To the best of such counsel's knowledge, (A)
neither the Company nor the Bank is in breach of, or in
default (and no event has occurred which, with notice or lapse
of time, or both, would constitute a default) under, any
lease, indenture, mortgage, note, or other agreement or
instrument to which the Company or the Bank, as the case may
be, is a party; (B) neither the Company nor the Bank is in
violation of any term or provision of either of their articles
of incorporation or code of regulations, or of any franchise,
license, grant, permit, judgment, decree, order, statute, rule
or regulation; and (C) neither the Company nor the Bank has
received any notice of conflict with the asserted rights of
others in respect of Intangibles necessary for the
commencement or conduct of its business, the effect of which,
in any such case, would be expected to be materially adverse
to the Company or the Bank;
(xiii) The Registration Statement and the Prospectus
and any amendments or supplements thereto (other than the
financial statements and other statistical or financial data
included therein, as to which such counsel need express no
opinion) comply as to form with the requirements of the
Securities Act and the Rules in all material respects; and
(xiv) The Registration Statement is effective under
the Securities Act, and, to the best of such counsel's
knowledge, no proceedings for a stop order are pending or
threatened under the Securities Act.
In rendering the foregoing opinion, such counsel may rely upon
certificates of public officials (as to matters of fact and law) and
officers of the Company (as to matters of fact), and include
qualifications in its opinion as are reasonably acceptable to Xxxxx &
Co. Copies of all such certificates shall be furnished to counsel to
Xxxxx & Co. on the Closing Date.
In addition, such counsel shall state that they have
participated in conferences with officers of the Company and
representatives of the Underwriter at which the contents of the
Registration Statement and Prospectus and related matters were
discussed and although such counsel did not independently verify the
accuracy or completeness of the statements made in the Registration
Statement and Prospectus and does not assume any responsibility for the
accuracy or completeness of the statements in the Registration
Statement and Prospectus, on the basis of the foregoing, nothing has
come to the attention of such counsel that would lead them to believe
that the Registration Statement or Prospectus, as amended or
supplemented, if amended or supplemented, contains any untrue statement
of a material fact or omits a material fact required to be stated
therein or necessary to make the statements therein not misleading;
except that such statement may exclude financial statements, financial
data, statistical information and all statements under the caption
"Underwriting" included in the Registration Statement and Prospectus.
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(c) On or prior to each Closing Date, Xxxxx & Co. shall have
been furnished such documents, certificates and opinions as they may
reasonably require for the purpose of enabling them to review the
matters referred to in subsection (b) of this Section 5, and in order
to evidence the accuracy, completeness or satisfaction of the
representations, warranties or conditions herein contained.
(d) Prior to each Closing Date, (i) there shall have been no
material adverse change in the condition or prospects, financial or
otherwise, of the Company or the Bank; (ii) there shall have been no
material transaction, not in the ordinary course of business, entered
into by the Company or the Bank except as set forth in the Registration
Statement and Prospectus, other than transactions referred to or
contemplated therein or to which Xxxxx & Co. has given its written
consent; (iii) neither the Company nor the Bank shall be in default
(nor shall an event have occurred which, with notice or lapse of time,
or both, would constitute a default) under any provision of any
material agreement, understanding or instrument relating to any
outstanding indebtedness that is material in amount; (iv) no action,
suit or proceeding, at law or in equity, shall be pending or threatened
against the Company or the Bank before or by any court or federal,
state or other commission, board or other administrative agency having
jurisdiction over the Company or the Bank, as the case may be, which is
expected to have a material adverse effect on the Company or the Bank;
and (v) no stop order shall have been issued under the Securities Act
and no proceedings therefor shall have been initiated or be threatened
by the Commission.
(e) At each Closing Date, Xxxxx & Co. shall have received a
certificate signed by the Chairman of the Board, and the President or
Secretary of the Company dated the Firm Shares Closing Date or Optional
Shares Closing Date, as the case may be, to the effect that the
conditions set forth in subsection (d) above have been satisfied and as
to the accuracy, as of the Firm Shares Closing Date or the Optional
Shares Closing Date, as the case may be, of the representations and
warranties of the Company set forth in Section 4 hereof.
(f) At or prior to each Closing Date, Xxxxx & Co. shall have
received a "blue sky" memorandum of Benesch, Friedlander, Xxxxxx &
Xxxxxxx LLP, addressed to Xxxxx & Co. and in form and scope reasonably
satisfactory to Xxxxx & Co., concerning compliance with the blue sky or
securities laws of the states listed in EXHIBIT B attached to this
Agreement.
(g) All proceedings taken in connection with the sale of the
Shares as herein contemplated shall be reasonably satisfactory in form
and substance to Xxxxx & Co. and to counsel for Xxxxx & Co., and Xxxxx
& Co. shall have received from counsel for Xxxxx & Co. a favorable
opinion, dated as of each Closing Date, with respect to such of the
matters set forth under subsections (b) (i), (iii), (vi), (vii), and
(xiii) of this Section 5, and with respect to such other related
matters as Xxxxx & Co. may reasonably require, if the failure to
receive a favorable opinion with respect to
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such other related matters would cause Xxxxx & Co. to deem it
inadvisable to proceed with the sale of the Shares.
(h) There shall have been duly tendered to Xxxxx & Co.
certificates representing all the Shares agreed to be sold by the
Company on the Firm Shares Closing Date or the Optional Shares Closing
Date, as the case may be.
(i) No order suspending the sale of the Shares prior to each
Closing Date, in any jurisdiction listed in EXHIBIT B, shall have been
issued on the Firm Shares Closing Date or the Optional Shares Closing
Date, as the case may be, and no proceedings for that purpose shall
have been instituted or, to Xxxxx & Co.'s knowledge or that of the
Company, shall be contemplated.
(j) The NASD, upon review of the terms of the public offering
of the Shares, shall not have objected to the Underwriter's
participation in the same.
(k) At the time of the execution of this Agreement, the
Underwriter shall have received from KPMG Peat Marwick LLP a letter
dated such date, in form and substance satisfactory to the Underwriter,
containing statements and information of the type ordinarily included
in accountants' "comfort letters" to underwriters with respect to
financial statements and certain financial information contained in the
Registration Statement and the Prospectus.
(l) On each Closing Date, the Underwriter shall have received
from KPMG Peat Marwick LLP a letter, dated as of such date, to the
effect that they reaffirm the statements made in the letter furnished
pursuant to subsection (k) of this Section.
(m) On the Firm Shares Closing Date, the Common Stock shall
have been approved for inclusion in the Nasdaq SmallCap Market, subject
only to official notice of issuance.
(n) At the time of the execution of this Agreement, the
Underwriter shall have received written certification from Xxxxxxx X.
Xxxxxxx that all shares of Common Stock owned by him are owned free and
clear of any lien or encumbrance, and that no such shares are pledged
or hypothecated to any other party.
If any condition to the Underwriter's obligations hereunder to
be fulfilled prior to or at the Firm Shares Closing Date or the Optional Shares
Closing Date, as the case may be, is not so fulfilled, Xxxxx & Co. may terminate
this Agreement pursuant to Section 9(c) hereof or, if Xxxxx & Co. so elects,
waive any such conditions which have not been fulfilled or extend the time of
their fulfillment.
6. COVENANTS.
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The Company covenants and agrees that it will:
(a) Use its best efforts to cause the Registration Statement
to become effective and will notify Xxxxx & Co. immediately, and
confirm the notice in writing, (i) when the Registration Statement and
any post-effective amendment thereto becomes effective, (ii) of the
issuance by the Commission of any stop order or of the initiation, or
the threatening, of any proceedings for that purpose and (iii) of the
receipt of any comments from the Commission. The Company will make
every reasonable effort to prevent the issuance of a stop order, and,
if the Commission shall enter a stop order at any time, the Company
will make every reasonable effort to obtain the lifting of such order
at the earliest possible moment.
(b) During the time when a prospectus is required to be
delivered under the Securities Act, comply so far as it is able with
all requirements imposed upon it by the Securities Act, as now and
hereafter amended, and by the Rules, as from time to time in force, so
far as necessary to permit the continuance of sales of or dealings in
the Shares. If at any time when a prospectus relating to the Shares is
required to be delivered under the Securities Act any event shall have
occurred as a result of which, in the reasonable opinion of counsel for
the Company or counsel for Xxxxx & Co., the Registration Statement or
Prospectus as then amended or supplemented includes an untrue statement
of a material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading,
or if it is necessary at any time to amend or supplement the
Registration Statement or Prospectus to comply with the Securities Act,
the Company will notify Xxxxx & Co. promptly and prepare and file with
the Commission an appropriate amendment or supplement in form
satisfactory to Xxxxx & Co. The cost of preparing, filing and
delivering copies of such amendment or supplement shall be paid by the
Company.
(c) Deliver to the Underwriter such number of copies of each
preliminary prospectus as may reasonably be requested by Xxxxx & Co.
and, as soon as the Registration Statement, or any amendment or
supplement thereto, becomes effective, deliver to the Underwriter three
signed copies of the Registration Statement, including exhibits, and
all post-effective amendments thereto and deliver to the Underwriter
such number of copies of the Prospectus, the Registration Statement and
supplements and amendments thereto, if any, without exhibits, as Xxxxx
& Co. may reasonably request.
(d) Endeavor in good faith, in cooperation with Xxxxx & Co.
and its counsel, at or prior to the time the Registration Statement
becomes effective, to qualify the Shares for offering and sale under
the securities laws relating to the offering or sale of the Shares of
the states listed in EXHIBIT B. In each jurisdiction where such
qualification shall be effected, the Company will, unless Xxxxx & Co.
agrees that such action is not at the time necessary or advisable, file
and make such statements or reports at such times as are or may
reasonably be required by the laws
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of such jurisdiction. The Company will advise Xxxxx & Co. promptly of
the suspension of the qualification of the Shares for offering, sale or
trading in any jurisdiction, or any initiation or threat of any
proceeding for such purpose, and in the event of the issuance of any
order suspending such qualification, the Company, with the cooperation
of Xxxxx & Co., will use all reasonable efforts to obtain the
withdrawal thereof. Anything herein to the contrary notwithstanding,
the Company shall not be required to register or qualify as a foreign
corporation or as a dealer in securities nor, except as to matters and
transactions relating to the offer and sale of the Shares, consent to
service of process in any jurisdiction.
(e) Furnish its security holders as soon as practicable an
earnings statement (which need not be certified by independent
certified public accountants unless required by the Securities Act or
the Rules) covering a period of at least twelve months beginning after
the effective date of the Registration Statement, which shall satisfy
the provisions of Section 11(a) of the Securities Act and the Rules
thereunder.
(f) For a period of five years from the Effective Date,
furnish to Xxxxx & Co. the following:
(i) at the time they have been sent to shareholders
of the Company or filed with the Commission three copies of
each annual, quarterly, interim, or current financial and
other report or communication sent by the Company to its
shareholders or filed with the Commission;
(ii) as soon as practicable, three copies of every
press release and every material news item and article in
respect of the Company or the affairs of the Company which was
released by the Company;
(iii) all other information reasonably requested by
Xxxxx & Co. with respect to the Company to comply with Rule
15c2-11 of the Rules (if applicable) and Section 4 of Schedule
H of the NASD By-Laws; and
(iv) such additional documents and information with
respect to the Company and its affairs as Xxxxx & Co. may from
time to time reasonably request and that may properly be
disclosed to Xxxxx & Co.
(g) Not file any amendment or supplement to the Registration
Statement or Prospectus after the effective date of the Registration
Statement to which Xxxxx & Co. shall reasonably object in writing after
being furnished a copy thereof.
(h) Use the net proceeds received from the sale of the Shares
being sold in the manner specified in the Prospectus, and it will
report the application of the proceeds therefrom as may be required in
accordance with Rule 463 under the Securities Act.
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(i) Comply with all registration, filing and reporting
requirements of the Securities Act or the Exchange Act, which may from
time to time be applicable to the Company.
(j) Pay, or reimburse if paid by the Underwriter, whether or
not the transactions contemplated hereby are consummated or this
Agreement is terminated, all costs and expenses incident to the
performance of the obligations of the Company under this Agreement,
including those relating to (1) the preparation, printing, filing and
delivery of the Registration Statement, including all exhibits thereto,
each preliminary prospectus, the Prospectus, all amendments of and
supplements to the Registration Statement and the Prospectus, and the
photocopying of the Underwriting Agreement and related agreements
including, without limitation, the Dealer Agreement; (2) the issuance
of the Shares and the preparation and delivery of certificates for the
Shares to the Underwriter; (3) the registration or qualification of the
Shares for offer and sale under the securities or "blue sky" laws of
the various jurisdictions referred to in EXHIBIT B, including the fees
and disbursements of counsel in connection with such registration and
qualification and the preparation and printing of preliminary,
supplemental, and final blue sky memoranda; (4) the furnishing
(including costs of shipping and mailing) to the Underwriter of copies
of each preliminary prospectus, the Prospectus and all amendments of or
supplements to the Prospectus, and of the several documents required by
this Section to be so furnished; (5) the filing requirements and fees
of the NASD in connection with its review of the terms of the public
offering and the underwriting; (6) the furnishing (including costs of
shipping and mailing) of copies of all reports and information required
by Section 6(g); (7) all transfer taxes, if any, with respect to the
sale and delivery of the Shares by the Company to the Underwriter; (8)
the inclusion of the Shares on the Nasdaq Small Cap Market; and (9) the
Underwriter's out-of-pocket expenses, including without limitation,
road show expenses and legal fees of counsel to Xxxxx & Co. (such
out-of-pocket expenses and legal fees payable by the Company shall not
exceed $50,000). Upon a successful completion of the offering, the
Underwriter will credit the out-of-pocket and legal fee reimbursement
described in Section 6(j)(9) against the underwriting discount.
(k) Not, without the prior written consent of Xxxxx & Co.,
sell, offer to sell, transfer, contract to sell or grant any option for
the sale of or otherwise dispose of, directly or indirectly, or
register with the Commission, any shares of Common Stock of the Company
(or any securities convertible into or exercisable for such shares of
Common Stock) within 180 days after the date of the Prospectus, except
as provided in this Agreement and except for grants and exercises of
Stock Options under the Stock Option Plan as described in the
Prospectus.
(l) For not less than 3 fiscal years after the Effective Date,
unless Xxxxx & Co. shall otherwise consent in writing, (i) timely file
with the Commission all reports required by Section 15(d) of the
Exchange Act and not seek suspension of the duty to file such reports,
and (ii) not less frequently than annually prepare a proxy
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statement and annual report which conform substantially to the
requirements of Commission Regulation 14A and distribute such proxy
statement and annual report to record and beneficial owners
substantially in the manner which would be required by Commission
Regulation 14A if applicable.
7. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless the
Underwriter and each person, if any, who controls the Underwriter
within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act against any and all losses, claims, damages and
liabilities, joint or several (including any reasonable investigation,
legal and other expenses incurred in connection with, and any amount
paid in settlement of, any action, suit or proceeding or any claim
asserted), to which they may become subject under the Securities Act,
the Exchange Act or other Federal or state statutory law or regulation,
at common law or otherwise, insofar as such losses, claims, damages or
liabilities arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in any
preliminary prospectus, the Registration Statement or the Prospectus or
any amendment thereof or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that such indemnity shall
not inure to the benefit of the Underwriter (or any person controlling
the Underwriter) on account of any losses, claims, damages or
liabilities arising from the sale of the Shares in the public offering
to any person by the Underwriter if such untrue statement or omission
or alleged untrue statement or omission was made in such preliminary
prospectus, the Registration Statement or the Prospectus, or such
amendment or supplement, in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf of the
Underwriter specifically for use therein; and provided, further,
however, that the indemnification contained in this Section 7(a) with
respect to any preliminary prospectus shall not inure to the benefit of
the Underwriter (or to the benefit of any person controlling the
Underwriter) on account of any such loss, claim, damage, liability or
judgment arising from the sale of the Shares by the Underwriter to any
person if a copy of the Prospectus shall not have been delivered or
sent to such person within the time required by the Act, and the untrue
statement or alleged untrue statement or omission or alleged omission
of a material fact contained in such preliminary prospectus was
corrected in the Prospectus, provided that the Company has delivered
the Prospectus to the Underwriter in requisite quantity on a timely
basis to permit such delivery or sending. The Company shall not be
liable hereunder to the Underwriter (or any controlling person thereof)
to the extent that any loss, claim, damage or other liability incurred
by the Underwriter arises from the Underwriter's fraudulent act or
omission.
(b) The Underwriter agrees to indemnify and hold harmless the
Company, each person, if any, who controls the Company within the
meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, each director of the Company
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and each officer of the Company who signs the Registration Statement,
to the same extent as the foregoing indemnity from the Company to the
Underwriter, but only insofar as such losses, claims, damages or
liabilities arise out of or are based upon any untrue statement or
omission or alleged untrue statement or omission which was made in any
preliminary prospectus, the Registration Statement or the Prospectus,
or any amendment thereof or supplement thereto, in reliance upon and in
conformity with information furnished in writing to the Company by the
Underwriter specifically for use therein; provided, however, that the
obligation of the Underwriter to indemnify the Company (including any
controlling person, director or officer thereof) hereunder shall be
limited to the total price at which the Shares purchased by the
Underwriter hereunder were offered to the public. The Underwriter shall
not be liable hereunder to the Company (including any controlling
person, director or officer thereof) to the extent that any loss,
claim, damage or other liability incurred by the Company arises from a
fraudulent act or omission by the Company.
(c) Any party that proposes to assert the right to be
indemnified under this Section will, promptly after receipt of notice
of commencement of any action, suit or proceeding against such party in
respect of which a claim is to be made against an indemnifying party or
parties under this Section, notify each such indemnifying party of the
commencement of such action, suit or proceeding, enclosing a copy of
all papers served, but the omission so to notify such indemnifying
party of any such action, suit or proceeding shall not relieve it from
any liability that it may have to any indemnified party otherwise than
under this Section. In case any such action, suit or proceeding shall
be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party
shall be entitled to participate in, and, to the extent that it shall
wish, jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel reasonably satisfactory to
such indemnified party, and after notice from the indemnifying party to
such indemnified party of its election so to assume the defense thereof
and the approval by the indemnified party of such counsel, the
indemnifying party shall not be liable to such indemnified party for
any legal or other expenses, except as provided below and except for
the reasonable costs of investigation subsequently incurred by such
indemnified party in connection with the defense thereof. The
indemnified party shall have the right to employ its counsel in any
such action, but the fees and expenses of such counsel shall be at the
expense of such indemnified party unless (1) the employment of counsel
by such indemnified party has been authorized in writing by the
indemnifying parties, (2) the indemnified party shall have reasonably
concluded that, because of the existence of different or additional
defenses available to the indemnified party or of other reasons, there
may be a conflict of interest between the indemnifying parties and the
indemnified party in the conduct of the defense of such action (in
which case the indemnifying parties shall not have the right to direct
the defense of such action on behalf of the indemnified party) or that,
under the circumstances, it is otherwise appropriate, it being
understood, however, that the indemnifying party shall not be liable
for the expense of more than one separate counsel, or (3) the
indemnifying parties shall not
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have employed counsel to assume the defense of such action within a
reasonable time after notice of the commencement thereof, in each of
which cases the fees and expenses of counsel shall be at the expense of
the indemnifying parties. An indemnifying party shall not be liable for
any settlement of any action, suit, proceeding or claims effected
without its written consent.
In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in Section 7(a) or 7(b)
is due in accordance with its terms but for any reason is held to be unavailable
or is insufficient to hold harmless a party indemnified hereunder, the Company
and the Underwriter shall contribute to the aggregate losses, claims, damages
and liabilities (including any investigation, legal and other expenses
reasonably incurred in connection with, and any amount paid in settlement of,
any action, suit or proceeding or any claims asserted, but after deducting any
contribution received from other persons), (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Underwriter from the offering of the Shares or (ii) if the allocation provided
by clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company and the Underwriter in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The respective relative benefits received by the Company and the
Underwriter shall be deemed to be in the same proportion in the case of the
Company as the total price paid to the Company for the Shares by the Underwriter
(net of underwriting discount but before deducting expenses), and in the case of
the Underwriter as the underwriting discount received by it bears to the total
of such amounts paid to the Company and received by the Underwriter as
underwriting discount, in each case as contemplated by the Prospectus. The
relative fault of the Company and the Underwriter 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 or by the Underwriter and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The amount paid or payable by a
party as a result of the losses, claims, damages and liabilities referred to
above shall be deemed to include any legal or other fees or expenses reasonably
incurred by such party in connection with investigating or defending any action
or claim.
The Company and the Underwriter agrees that it would not be
just and equitable if contribution pursuant to this Section were determined by
pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to in the immediately preceding
paragraph. Notwithstanding the provisions of this Section, the Underwriter shall
not 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 such Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act of
1933) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The provisions of Section 7 and 8 shall
survive any termination of this Agreement.
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In any proceeding relating to the Registration Statement, any
preliminary prospectus, the Prospectus or any supplement thereto or amendment
thereof, each party against whom contribution may be sought under this Section 8
hereby consents to the jurisdiction of the courts specified in Section 11
hereof, agrees that process issuing from such court may be served upon him or it
by any other contributing party and consents to the service of such process and
agrees that any other contributing party may join him or it as an additional
defendant in any such proceeding in which such other contributing party is a
party.
9. TERMINATION. This Agreement may be terminated by Xxxxx & Co.
by notifying the Company at any time:
(a) before the earliest of (1) 11:00 a.m., Detroit time, on
the business day following the Effective Date, (2) the time of release
by Xxxxx & Co. for publication of the first newspaper advertisement
with respect to the Shares and (3) the time when the Shares are first
generally offered by the Underwriter to dealers by letter or telegram;
(b) at or before any Closing Date if, in the judgment of Xxxxx
& Co., payment for and delivery of the Shares is rendered impracticable
or inadvisable because (1) additional material governmental
restrictions, not known to be in force and effect when this Agreement
is signed, shall have been imposed upon trading in securities generally
or minimum or maximum prices shall have been generally established on
the New York Stock Exchange, on the American Stock Exchange or on the
over-the-counter market, or trading in securities generally shall have
been suspended on either such Exchange or on the over-the-counter
market or a general banking moratorium shall have been established by
federal, New York or Ohio authorities, (2) a war or other calamity
shall have occurred or shall have accelerated to such an extent as to
affect adversely the marketability of the Shares, (3) the Company or
the Bank shall have sustained a material loss by fire, flood, accident,
hurricane, earthquake, theft, sabotage or other calamity or malicious
act, which, whether or not said loss shall have been insured, will in
Xxxxx & Co.'s opinion, make it inadvisable to proceed with the offering
of the Shares, (4) any of the State Orders, the FDIC Order, or the FRB
Approval shall have been withdrawn or materially altered, or (5) since
the respective dates as of which information is given in the
Registration Statement, there shall have been such material adverse
change in the condition (financial or otherwise), business, properties,
prospects or results of operations of the Company and the Bank, taken
as a whole, or the market for the Shares or similar securities as in
Xxxxx & Co.'s judgment would make it impracticable to proceed with the
offering of the Shares; or
(c) at or before any Closing Date, if any of the conditions
specified in Section 5 or any other agreements, representations or
warranties of the Company in this Agreement shall not have been
fulfilled when and as required by this Agreement.
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If this Agreement is terminated pursuant to any of its provisions, except as
otherwise provided in this Agreement, the Company shall not be under any
liability to the Underwriter (other than for obligations assumed in Section 6
hereof), and the Underwriter shall not be under any liability to the Company;
provided, however, that if this Agreement is terminated by Xxxxx & Co. because
of any failure, refusal or inability on the part of the Company to comply with
the terms or to fulfill any of the conditions of this Agreement, or for any
reasons provided in subparagraphs (b) and (c) above, the Company will reimburse
the Underwriter for all accountable out-of-pocket expenses (including, without
limitation, road show expenses and fees and disbursements of counsel to Xxxxx &
Co.) up to a maximum of $50,000 (including the $20,000 advance below) incurred
by it in connection with the proposed purchase and sale of the Shares or in
contemplation of performing its obligations hereunder. The Underwriter
acknowledges receipt of a $20,000 advance from the Company. If this Agreement is
terminated for any reason, the Underwriter shall be entitled to retain such
advance as reimbursement for its accountable out-of-pocket expenses; provided,
however, in the event that the accountable out-of-pocket expenses to be
reimbursed under this paragraph are less than $20,000, the Underwriter shall pay
such difference to the Company. If this Agreement is not terminated, the $20,000
shall be credited at closing against the underwriting discount.
10. REPRESENTATIONS AND AGREEMENTS TO SURVIVE DELIVERY. All
representations, warranties and agreements contained in this Agreement shall be
deemed to be representations, warranties and agreements at the Closing Dates,
and such representations, warranties and agreements of the Company, including,
without limitation, the payment and reimbursement agreements contained in
Section 6 hereof and the indemnity and contribution agreements contained in
Sections 7 and 8 hereof, shall survive termination of this Agreement and/or
delivery of the Shares to and payment for the Shares by the Underwriter pursuant
to this Agreement regardless of any investigation made by or on behalf of the
Underwriter or any controlling person. In addition, the covenants contained in
Section 6(j) hereof, the agreements contained in this Section 10 and in Sections
7, 8 and 9 shall survive termination of this Agreement and/or delivery of the
Shares to and payment for the Shares by the Underwriter pursuant to this
Agreement.
11. MISCELLANEOUS. This Agreement has been and is made for the
benefit of the Underwriter, the Company and their respective successors and
assigns, and, to the extent expressed herein, for the benefit of persons
controlling the Underwriter or the Company, and directors and certain officers
of the Company, and their respective successors and assigns, and no other
person, partnership, association or corporation shall acquire or have any right
under or by virtue of this Agreement. The term "successors and assigns" shall
not include any purchaser of Shares from the Underwriter merely because of such
purchase.
All notices and communications hereunder shall be in writing and
mailed or delivered or by telephone or telecopy, if subsequently confirmed in
writing, to the Underwriter, Xxxxx & Co., at Xxx Xxxxxxxx, Xxxxxxx, Xxxxxxxx
00000, Attention: Xxxx X. Xxxxxxxx (facsimile no. (313) 963- 2303) (with a copy
to Xxxxxxx X. XxXxxxxx, Benesch, Friedlander, Xxxxxx & Aronoff LLP, 0000 XX
Xxxxx, Xxxxxxxxx, Xxxx 00000 (facsimile no. (000) 000-0000)); and to the Company
at 0000 Xxxxxx Xxxxxx, Xxxxxx, Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxx, Xx.,
President (facsimile no. (000) 000-0000) (with a copy to Xxxxxxx X. Xxxxx, Xxxxx
& Associates, 00000 Xxxxxx Xxxxx Xxxx, Xxxxx 000, Xxxxx Xxxxx, Xxxx 00000
(facsimile no. (000) 000-0000)).
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The laws of the State of Ohio shall govern this Agreement, its
construction, and the determination of any rights, duties or remedies of the
parties arising out of or relating to this Agreement. The parties acknowledge
that the United States District Court for the Northern District of Ohio or the
Court of Common Pleas of Lake County, Ohio shall have exclusive jurisdiction
over any case or controversy arising out of or relating to this Agreement and
that all litigation arising out of or relating to this Agreement shall be
commenced in the United States District Court for the Northern District of Ohio
or in the Court of Common Pleas of Lake County, Ohio. If any action or
proceeding shall be brought by the Underwriter or the Company in order to
enforce any right or remedy under this Agreement, the Underwriter and the
Company hereby consent to, and agree that they will submit to, the jurisdiction
of such courts.
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Please confirm that the foregoing correctly sets forth the agreement
between us.
Very truly yours,
GLB BANCORP, INC.
By:
-------------------------------------
Xxxxxxx X. Xxxxxxx, Xx.
President
Confirmed by Xxxxx & Co.,
XXXXX & CO., L.L.C.
By:
--------------------------------
Xxxx X. Xxxxxxxx
Director of Corporate Finance
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EXHIBIT A
---------
Number Relationship
of of Person to
Name Shares To The Company
---- ------ --------------
27
EXHIBIT B
---------
STATES
------
California
Florida
Illinois
Indiana
Kentucky
Michigan
Minnesota
Missouri
New Jersey
New York
Ohio
Pennsylvania
Wisconsin
