Shares CITIZENS FIRST CORPORATION Common Stock no par value per share Underwriting Agreement
Exhibit 1.1
______Shares
CITIZENS FIRST CORPORATION
Common Stock
no par value per share
no par value per share
____ __, 2006
Sandler X’Xxxxx & Partners, L.P.,
As representative of the several Underwriters
named in Schedule I hereto,
000 Xxxxx Xxxxxx, 0xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
As representative of the several Underwriters
named in Schedule I hereto,
000 Xxxxx Xxxxxx, 0xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
Ladies and Gentlemen:
Citizens First Corporation, a Kentucky corporation (the “Company”), proposes, subject to the
terms and conditions stated herein, to issue and sell to the Underwriters named in Schedule I
hereto (the “Underwriters”), for whom Sandler X’Xxxxx & Partners, L.P. is acting as representative
(the “Representative”), an aggregate of ___ shares (the “Firm Shares”) and, at the election of
the Underwriters, up to ___ additional shares (the “Optional Shares”) of the common stock, no
par value per share (“Stock”) of the Company (the Firm Shares and the Optional Shares that the
Underwriters elect to purchase pursuant to Section 2 hereof are herein collectively called the
“Shares”).
1. (a) The Company represents and warrants to, and agrees with, each of the Underwriters that:
(i) A registration statement on Form SB-2 (File No. 333-.___) (the “Initial Registration
Statement”) in respect of the Shares has been filed with the Securities and Exchange Commission
(the “Commission”); the Initial Registration Statement and any post-effective amendment thereto,
each in the form heretofore delivered to you, and, excluding exhibits thereto, for each of the
other Underwriters, have been declared effective by
the Commission in such form; other than a registration statement, if any, increasing the size
of the offering (a “Rule 462(b) Registration Statement”), filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended (the “Act”), which became effective upon filing, no other
document with respect to the Initial Registration Statement has heretofore been filed with the
Commission; the Company has complied to the Commission’s satisfaction with all requests of the
Commission for additional or supplemental information; and no stop order suspending the
effectiveness of the Initial Registration Statement, any post-effective amendment thereto or the
Rule 462(b) Registration Statement, if any, has been issued and no proceeding for that purpose has
been initiated or threatened by the Commission (any preliminary prospectus included in the Initial
Registration Statement or filed with the Commission pursuant to Rule 424(a) of the rules and
regulations of the Commission under the Act, is hereinafter called a “Preliminary Prospectus”); the
various parts of the Initial Registration Statement and the Rule 462(b) Registration Statement, if
any, including all exhibits thereto and including the information contained in the form of final
prospectus filed with the Commission pursuant to Rule 424(b) under the Act in accordance with
Section 5(a) hereof and deemed by virtue of Rule 430A under the Act to be part of the Initial
Registration Statement at the time it was declared effective, each as amended at the time such part
of the Initial Registration Statement became effective or such part of the Rule 462(b) Registration
Statement, if any, became or hereafter becomes effective, are hereinafter collectively called the
“Registration Statement”; and such final prospectus, in the form first filed pursuant to Rule
424(b) under the Act, is hereinafter called the “Prospectus”);
(ii) No order preventing or suspending the use of any Preliminary Prospectus has been issued
by the Commission, and each Preliminary Prospectus, at the time of filing thereof, conformed in all
material respects to the requirements of the Act and the rules and regulations of the Commission
thereunder, and did not contain an untrue statement of a material fact or omit to state a 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; provided, however, that this
representation and warranty shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Company by an Underwriter through
the Representative expressly for use therein;
(iii) The Registration Statement conforms, and the Prospectus and any further amendments or
supplements to the Registration Statement or the Prospectus will conform, in all material respects
to the requirements of the Act and the rules and regulations of the Commission thereunder; on the
effective date and at any Time of Delivery (as defined in Section 4 hereof), the Registration
Statement did not or will not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the statements therein
not misleading; and when filed and at any Time of Delivery, the Prospectus (together with any
supplement thereto) will not include any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by an Underwriter through the Representative
expressly for use therein. Each Preliminary Prospectus and the Prospectus when filed, if filed by
electronic transmission, pursuant to XXXXX (except as may be
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permitted by Regulation S-T under the Act), was identical to the copy thereof delivered to the
Underwriters for use in connection with the offer and sale of the Shares;
(iv) As of the Applicable Time, neither (i) any Issuer-Represented General Use Free Writing
Prospectuses issued at or prior to the Applicable Time and the Statutory Prospectus, all considered
together (collectively, the “General Disclosure Package”), nor (ii) any individual
Issuer-Represented Limited-Use Free Writing Prospectus issued at or prior to the Applicable Time,
when considered together with the General Disclosure Package, included any untrue statement of a
material fact or omitted to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading; provided,
however, that this representation and warranty shall not apply to any statements or omissions made
in reliance upon and in conformity with information furnished in writing to the Company by an
Underwriter through the Representative expressly for use therein. As used in this paragraph and
elsewhere in this Agreement:
“Applicable Time” means ___:00 [a/p]m (Eastern time) on the date of this Agreement.
“Statutory Prospectus” as of any time means the most recent Preliminary Prospectus
that is included in the Registration Statement immediately prior to the Applicable
Time.
“Issuer-Represented Free Writing Prospectus” means any “issuer free writing
prospectus,” as defined in Rule 433 under the Act, relating to the Shares in the
form filed or required to be filed with the Commission or, if not required to be
filed, in the form retained in the Company’s records pursuant to Rule 433(g) under
the Act.
“Issuer-Represented General Use Free Writing Prospectus” means any Issuer
Represented Free Writing Prospectus that is intended for general distribution to
prospective investors, as evidenced by its being specified in Schedule IV to this
Agreement.
“Issuer-Represented Limited-Use Free Writing Prospectus” means any Issuer
Represented Free Writing Prospectus that is not an Issuer Represented General Use
Free Writing Prospectus.
(v) Each Issuer-Represented Free Writing Prospectus, as of its issue date and at all
subsequent times through the completion of the public offer and sale of the Shares or until any
earlier date that the Company notified or notifies the Representative as described in Section 5(b),
did not, does not and will not include any information that conflicted, conflicts or will conflict
with the information contained in the Registration Statement; provided, however, that this
representation and warranty shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Company by an Underwriter through
the Representative expressly for use therein.
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(vi) Neither the Company nor any of its subsidiaries has sustained since the date of the
latest audited financial statements included in each of the General Disclosure Package and the
Prospectus any material loss or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or contemplated in each of the General
Disclosure Package and the Prospectus; and since the respective dates as of which information is
given in the Registration Statement, the General Disclosure Package and the Prospectus, except as
set forth or contemplated in each of the General Disclosure Package and the Prospectus, (A) there
has not been any material change in the capital stock or long-term debt of the Company or any of
its subsidiaries or any material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs, management, business prospects,
financial position, stockholders’ equity or results of operations of the Company and its
subsidiaries taken as a whole (a “Material Adverse Effect”), (B) there have been no transactions
entered into by the Company or any of its subsidiaries, other than those in the ordinary course of
business, which are material with respect to the Company and its subsidiaries, taken as a whole,
and (C) there has been no dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock, except for regular quarterly dividends paid on the
Company’s outstanding preferred stock;
(vii) The Company and its subsidiaries have good and marketable title in fee simple to all
real property and good and marketable title to all personal property owned by them, in each case
free and clear of all liens, encumbrances and defects except such as are described in each of the
General Disclosure Package and the Prospectus or such as do not materially affect the value of such
property and do not interfere with the use made and proposed to be made of such property by the
Company and its subsidiaries; and any real property and buildings held under lease by the Company
and its subsidiaries are held by them under valid, subsisting and enforceable leases with such
exceptions as are not material and do not interfere with the use made and proposed to be made of
such property and buildings by the Company and its subsidiaries;
(viii) The Company is a registered bank holding company under the Bank Holding Company Act of
1956, as amended and has been duly incorporated and is validly existing as a corporation in good
standing under the laws of the State of Kentucky, with power and authority (corporate and other) to
own its properties and conduct its business as described in each of the General Disclosure Package
and the Prospectus, and has been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other jurisdiction in which it owns or
leases properties or conducts any business so as to require such qualification, except where the
failure to so qualify or be in good standing does not have, and could not reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect;
(ix) Each subsidiary of the Company either has been duly incorporated and is validly existing
as a corporation or, with respect to the Company’s subsidiary Citizens First Bank, Inc. (the
“Bank”) has been duly chartered and is validly existing as a Kentucky state bank, in each case in
good standing under the laws of the jurisdiction of its
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organization, with power and authority (corporate and other) to own its properties and conduct
its business as described in each of the General Disclosure Package and the Prospectus, and has
been duly qualified as a foreign corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it owns or leases properties or
conducts any business so as to require such qualification, except where the failure to so qualify
or be in good standing does not have, and could not reasonably be expected to have, individually or
in the aggregate, a Material Adverse Effect; the activities of the subsidiaries of the Bank, are
permitted to subsidiaries of a Kentucky state bank under applicable law and the rules and
regulations of the Kentucky Office of Financial Institutions (the “XXXX”) and the deposit accounts
of the Bank are insured up to the applicable limits by the Federal Deposit Insurance Corporation
(the “FDIC”); all of the issued shares of capital stock of each subsidiary of the Company has been
duly authorized and validly issued and is fully paid and nonassessable and is owned, directly or
through other subsidiaries of the Company, by the Company, free and clear of any pledge, lien,
encumbrance, claim or equity; the Company does not own or control, directly or indirectly, any
corporation, association or other entity other than the subsidiaries listed in Exhibit 21.1 to the
Registration Statement;
(x) The Company has an authorized capitalization as set forth in each of the General
Disclosure Package and the Prospectus under the caption “Capitalization,” and all of the issued
shares of capital stock of the Company have been duly and validly authorized and issued, are fully
paid and nonassessable and have been issued in compliance with federal and state securities laws
and conform to the description of the Stock contained in each of the General Disclosure Package and
the Prospectus; and no such shares were issued in violation of the preemptive or similar rights of
any security holder of the Company; and no person has any preemptive or similar right to purchase
any shares of capital stock or equity securities of the Company;
(xi) The unissued Shares to be issued and sold by the Company to the Underwriters hereunder
have been duly and validly authorized and, when issued and delivered against payment therefor as
provided herein, will be duly and validly issued and fully paid and nonassessable and will conform
to the description of the Stock contained in each of the General Disclosure Package and the
Prospectus;
(xii) Except as described in each of the General Disclosure Package and the Prospectus, (A)
there are no outstanding rights (contractual or otherwise), warrants or options to acquire, or
instruments convertible into or exchangeable for, or agreements or understandings with respect to
the sale or issuance of, any shares of capital stock of or other equity interest in the Company and
(B) there are no contracts, agreements or understandings between the Company and any person
granting such person the right to require the Company to file a registration statement under the
Act or otherwise register any securities of the Company owned or to be owned by such person;
(xiii) The issue and sale of the Shares by the Company and the compliance by the Company and
the Bank with all of the provisions of this Agreement and the consummation of the transactions
herein contemplated will not conflict with or result in a breach
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or violation of any of the terms or provisions of, or constitute a default under, any
contract, indenture, mortgage, deed of trust, loan agreement, note, lease or other agreement or
instrument to which the Company or any of its subsidiaries is a party or by which the Company or
any of its subsidiaries is bound or to which any of the property or assets of the Company or any of
its subsidiaries is subject (collectively, the “Agreements and Instruments”), nor will any such
action (A) result in any violation of the provisions of the articles of incorporation or charter
(as applicable) or by-laws of the Company or any of its subsidiaries or any law, statute or any
order, rule or regulation of any federal, state, local or foreign court, arbitrator, regulatory
authority or governmental agency or body (each, a “Governmental Entity”) having jurisdiction over
the Company or any of its subsidiaries or any of their properties or (B) constitute a Repayment
Event (as defined below) under, or result in the creation or imposition of any lien, charge or
other encumbrance upon any assets or operations of the Company or any subsidiary pursuant to, any
of the Agreements and Instruments; and no consent, approval, authorization, order, registration or
qualification of or with any such Governmental Entity is required for the issue and sale of the
Shares or the consummation by the Company of the transactions contemplated by this Agreement,
except the registration under the Act and the Securities Exchange Act of 1934, as amended (the
“1934 Act”), of the Shares, as may be required under the rules and regulations of the National
Association of Securities Dealers, Inc. (“NASD”) and such consents, approvals, authorizations,
registrations or qualifications as may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the Shares by the Underwriters. As used herein, a
“Repayment Event” means any event or condition which gives the holder of any note, debenture or
other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require
the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or
any subsidiary;
(xiv) Neither the Company nor any of its subsidiaries is (A) in violation of its articles of
incorporation or charter, as applicable, or by-laws or (B) in default in the performance or
observance of any obligation, agreement, covenant or condition contained in any of the Agreements
and Instruments, except with respect to subsection (B) for such default that would not be
reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect;
(xv) The statements set forth in each of the General Disclosure Package and the Prospectus
under the caption “Description of Capital Stock,” insofar as they purport to constitute a summary
of the terms of the capital stock of the Company, and under the caption “Supervision and
Regulation,” insofar as they purport to constitute a summary of the provisions of the laws and
documents referred to therein, are accurate and complete;
(xvi) The consolidated financial statements of the Company included in each of the
Registration Statement, the General Disclosure Package and the Prospectus, together with the
supporting schedules, if any, and notes, present fairly the consolidated financial condition of the
Company and its subsidiaries at the dates indicated and the consolidated results of operations and
cash flows of the Company and its subsidiaries for the periods specified. Such financial
statements and supporting schedules, if any, have been prepared in conformity with generally
accepted accounting principles (“GAAP”) applied on a
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consistent basis throughout the periods involved. The selected financial data, the summary
financial information, and the pro forma financial statements included in each of the Registration
Statement, the General Disclosure Package and 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, the General Disclosure Package and the Prospectus;
(xvii) Each of the Company and its subsidiaries maintains a system of accounting controls
sufficient to provide reasonable assurances that (A) transactions are executed in accordance with
the 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 asset
accountability, (C) access to assets is permitted only in accordance with the management’s general
or specific authorization and (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;
(xviii) The Company has established and maintains disclosure controls and procedures (as such
term is defined in Rule 13a-15(e) and 15d-15(e) under the Securities Exchange Act of 1934, as
amended (the “1934 Act”). Such disclosure controls and procedures (A) are designed to ensure that
material information relating to the Company, including its consolidated subsidiaries, is made
known to the Company’s chief executive officer and its chief financial officer by others within
those entities to allow timely decisions regarding disclosures, (B) have been evaluated for
effectiveness as of the end of the most recent fiscal quarter and (C) are effective to perform the
functions for which they were established. The Company’s independent registered public accounting
firm and the Audit Committee of the Board of Directors of the Company have been advised of (1) any
significant deficiencies or material weaknesses in the design or operation of internal control over
financial reporting which are reasonably likely to adversely affect the Company’s ability to
record, process, summarize, and report financial data and (2) any fraud, whether or not material,
that involves management or other employees who have a role in the Company’s internal control over
financial reporting. Since the date of the most recent evaluation of such disclosure controls and
procedures, there have been no changes in internal control over financial reporting that have
materially affected, or are reasonably likely to materially affect the Company’s internal control
over financial reporting;
(xix) Neither the Company nor any of its subsidiaries is subject or is party to, or has
received any notice or advice that any of them may become subject or party to any investigation
with respect to, any corrective, suspension or cease-and-desist order, agreement, consent
agreement, memorandum of understanding or other regulatory enforcement action, proceeding or order
with or by, or is a party to any commitment letter or similar undertaking to, or is subject to any
directive by, or has been a recipient of any supervisory letter from, or has adopted any board
resolutions at the request of, any Regulatory Agency (as defined below) that currently relates to
or restricts in any material respect the conduct of their business or that in any manner relates to
their capital adequacy, credit policies or management (each, a “Regulatory Agreement”), nor has the
Company or any of its subsidiaries been advised by any Regulatory Agency that it is considering
issuing or requesting any such Regulatory Agreement.
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There is no unresolved violation, criticism or exception by any Regulatory Agency with respect
to any report or statement relating to any examinations of the Company or any of its subsidiaries
which, in the reasonable judgment of the Company, is expected to result in a Material Adverse
Effect. As used herein, the term “Regulatory Agency” means any Governmental Entity having
supervisory or regulatory authority with respect to the Company or any of its subsidiaries,
including, but not limited to, any federal or state agency charged with the supervision or
regulation of depositary institutions or holding companies of depositary institutions, or engaged
in the insurance of depositary institution deposits;
(xx) Except as disclosed in each of the General Disclosure Package and the Prospectus, the
Company and its subsidiaries are conducting their respective businesses in compliance with all
statutes, laws, rules, regulations, judgments, decisions, directives, orders and decrees of any
Governmental Entity (including, without limitation, all regulations and orders of, or agreements
with, the XXXX, the Board of the Federal Reserve system (the “FRB”) and the FDIC) applicable to
them, except where the failure to so comply would not reasonably be expected, individually or in
the aggregate, to have a Material Adverse Effect;
(xxi) Other than as set forth in each of the General Disclosure Package and the Prospectus,
there are no legal or governmental actions, suits, investigations or proceedings before or by any
Governmental Entity, now pending or, to the best of the Company’s knowledge, threatened or
contemplated by Governmental Entities or threatened by others, to which the Company or any of its
subsidiaries is a party or of which any property or asset of the Company or any of its subsidiaries
is the subject (A) that are required to be disclosed in the Registration Statement by the Act or by
the rules and regulations of the Commission thereunder and not disclosed therein or (B) which, if
determined adversely to the Company or any of its subsidiaries, would, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect; and there are no contracts or
documents of the Company or any of its subsidiaries that are required to be described in the
Registration Statement or to be filed as exhibits thereto by the Act or by the rules and
regulations of the Commission thereunder which have not been so described and filed;
(xxii) Each of the Company and its subsidiaries possess such permits, licenses, approvals,
consents and other authorizations (collectively, “Governmental Licenses”) issued by the appropriate
federal, state, local or foreign regulatory agencies or bodies necessary to conduct the business
now operated by the Company or its subsidiaries; the Company and its subsidiaries are in compliance
with the terms and conditions of all such Governmental Licenses, except where the failures so to
comply would not, singly or in the aggregate, reasonably be expected to have a Material Adverse
Effect; all of the Governmental Licenses are valid and in full force and effect, except where the
invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full
force and effect would not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect; and neither the Company nor any of its subsidiaries has received any
notice of proceedings relating to the revocation or modification of any such Governmental Licenses
which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding,
would reasonably be expected to result in a Material Adverse Effect;
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(xxiii) Each of the Company and its subsidiaries is in compliance with all applicable federal,
state and local environmental laws and regulations, including, without limitation, those applicable
to emissions to the environment, waste management, and waste disposal (each an “Environmental
Law”), except where such noncompliance would not reasonably be expected to have a Material Adverse
Effect, or except as disclosed in each of the General Disclosure Package and the Prospectus, and to
the knowledge of the Company, there are no circumstances that would prevent, interfere with or
materially increase the cost of such compliance in the future;
(xxiv) To the knowledge of the Company, under applicable law, there are no past or present
actions, activities, circumstances, events or incidents, including, without limitation, releases of
any material into the environment, that are reasonably likely to form the basis of any claim under
any Environmental Law, including common law, against the Company or its subsidiaries which would be
reasonably likely to have a Material Adverse Effect;
(xxv) The statistical and market related data contained in each of the General Disclosure
Package, the Prospectus or the Registration Statement are based on or derived from sources which
the Company believes are reliable and accurate;
(xxvi) This Agreement has been duly authorized, executed and delivered by the Company;
(xxvii) Neither the Company nor any affiliate of the Company nor any person acting on their
behalf has taken, nor will the Company or any affiliate or any person acting on their behalf take,
directly or indirectly, any action which is designed to or which has constituted or which would be
expected to cause or result in stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares;
(xxviii) The Company is not and, after giving effect to the offering and sale of the Shares,
and after receipt of payment for the Shares and the application of such proceeds as described in
each of the General Disclosure Package and the Prospectus, will not be an “investment company” or
an entity “controlled” by an “investment company”, as such terms are defined in the Investment
Company Act of 1940, as amended (the “Investment Company Act”);
(xxix) Neither the Company nor any of its affiliates does business with the government of Cuba
or with any person or affiliate located in Cuba within the meaning of Section 517.075, Florida
Statutes;
(xxx) BKD, LLP and the Company’s current independent auditor, Xxxxx Xxxxxx and Company LLC,
who have certified the financial statements and supporting schedules of the Company and its
subsidiaries included in the Registration Statement, the General Disclosure Package and the
Prospectus, are independent public accountants as required by the Act and the rules and regulations
of the Commission thereunder and such accountants are not in violation of the auditor independence
requirements of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”);
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(xxxi) No labor problem or dispute with the employees of the Company or any of its
subsidiaries exists or, to the Company’s knowledge, is threatened or imminent, and the Company is
not aware of any existing or imminent labor disturbance by the employees of any of its or its
subsidiaries’ principal suppliers, contractors or customers, that could have a Material Adverse
Effect, whether or not arising from transactions in the ordinary course of business, except as set
forth in each of the General Disclosure Package and the Prospectus;
(xxxii) The Company and each of its subsidiaries are insured by insurers of recognized
financial responsibility against such losses and risks and in such amounts as are prudent and
customary in the business in which they are engaged; all policies of insurance insuring the Company
or any of its subsidiaries are in full force and effect; the Company and its subsidiaries are in
compliance with the terms of such policies and instruments in all material respects; and there are
no claims by the Company or any of its subsidiaries under any such policy or instrument as to which
any insurance company is denying liability or defending under a reservation of rights clause;
neither the Company nor any such subsidiary has been refused any insurance coverage sought or
applied for; and neither the Company nor any such subsidiary has any reason to believe that it will
not be able to renew its existing insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue its business at a cost that
would not have a Material Adverse Effect, except as set forth or contemplated in each of the
General Disclosure Package and the Prospectus;
(xxxiii) The Company has filed all foreign, federal, state and local tax returns that are
required to be filed or is eligible for, and has requested, extensions thereof, except as set forth
or contemplated in each of the General Disclosure Package and the Prospectus 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 would not have a Material Adverse
Effect, except as set forth or contemplated in each of the General Disclosure Package and the
Prospectus;
(xxxiv) No subsidiary of the Company is currently prohibited, directly or indirectly, from
paying any dividends to the Company, from making any other distribution on such subsidiary’s
capital stock, from repaying to the Company any loans or advances to such subsidiary from the
Company or from transferring any of such subsidiary’s property or assets to the Company or any
other subsidiary of the Company, except as set forth or contemplated in each of the General
Disclosure Package and the Prospectus;
(xxxv) Any “employee benefit plan” (as defined under the Employee Retirement Income Security
Act of 1974, as amended, and the regulations and published interpretations thereunder
(collectively, “ERISA”)) established or maintained by the Company, any of the subsidiaries or their
“ERISA Affiliates” (as defined below) are in compliance in all material respects with ERISA; “ERISA
Affiliate” means, with respect to the Company or any subsidiary, any member of any group of
organizations described in Section 414(b), (c), (m) or (o) of the Internal Revenue Code of 1986, as
amended, and the regulations and published
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interpretations thereunder (the “Code”) of which the Company or such subsidiary is a member;
no “reportable event” (as defined under ERISA) has occurred or is reasonably expected to occur with
respect to any “employee benefit plan” established or maintained by the Company, any of the
subsidiaries or any of their ERISA Affiliates; no “employee benefit plan” established or maintained
by the Company, any of the subsidiaries or any of their ERISA Affiliates, if such “employee benefit
plan” were terminated, would have any “amount of unfunded benefit liabilities” (as defined under
ERISA); none of the Company, its subsidiaries nor any of their ERISA Affiliates has incurred or
reasonably expects to incur any liability under (A) Title IV of ERISA with respect to termination
of, or withdrawal from, any “employee benefit plan” or (B) Sections 412, 4971, 4975 or 4980B of the
Code; each “employee benefit plan” established or maintained by the Company, any of the
subsidiaries or any of their ERISA Affiliates that is intended to be qualified under Section 401(a)
of the Code is so qualified and nothing has occurred whether by action or failure to act, which
would cause the loss of such qualification;
(xxxvi) The Company and its subsidiaries own, or have valid, binding enforceable and
sufficient licenses or other rights to use the patents and patent applications, copyrights,
trademarks, service marks, trade names, technology, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary rights) and other intellectual property necessary or
used in any material respect to conduct their business in the manner in which it is being conducted
and in the manner in which it is contemplated as set forth in each of the General Disclosure
Package and the Prospectus or otherwise necessary or used in connection with the commercialization
of the existing products of the Company and its subsidiaries and the products described in each of
the General Disclosure Package and the Prospectus as being under development (collectively, the
“Company Intellectual Property”); except as would not reasonably be expected to have a Material
Adverse Effect, the Company Intellectual Property is valid, subsisting and enforceable, and none of
the patents owned or licensed by the Company or any of its subsidiaries is unenforceable or
invalid, and none of the patent applications owned or licensed by the Company or any of its
subsidiaries would be unenforceable or invalid if issued as patents; the Company and its
subsidiaries, and to the Company’s knowledge, their licensors, have complied with the duty of
candor and disclosure of the U.S. Patent and Trademark Office and any similar foreign intellectual
property office (collectively, the “Patent Offices”); neither the Company nor its subsidiaries have
infringed or otherwise violated any intellectual property rights of any third person or have
breached any contract in connection with which any Company Intellectual Property is provided to the
Company and its subsidiaries; neither the Company nor any of its subsidiaries is obligated to pay a
royalty, grant a license, or provide other consideration to any third party in connection with the
Company Intellectual Property other than as disclosed in each of the General Disclosure Package and
the Prospectus; no person has asserted or threatened to assert any claim against, or notified, the
Company (or any of its subsidiaries) that (A) the Company or any of its subsidiaries has infringed
or otherwise violated any intellectual property rights of any third person, (B) the Company or any
of its subsidiaries is in breach or default of any contract under which any Company Intellectual
Property is provided, (C) such person will terminate a contract described in clause (B) or
adversely alter the scope of the rights provided thereunder or (D) otherwise concerns the
ownership, enforceability, validity, scope, registerability, interference, use or the right to use,
any Company Intellectual Property (other than a patent office review of pending applications in the
ordinary course); to the knowledge of
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the Company no third party is infringing or otherwise violating any of the Company
Intellectual Property owned by the Company or any of its subsidiaries, except as would not
reasonably be expected to have a Material Adverse Effect;
(xxxvii) Neither the Company nor any of its subsidiaries nor, to the knowledge of the Company,
any director, officer, agent, employee or other person associated with or acting on behalf of the
Company or any of its subsidiaries has (A) used any corporate funds for any unlawful contribution,
gift, entertainment or other unlawful expenses relating to political activity; (B) made any direct
or indirect unlawful payment to any foreign or domestic government official or employee; (C)
violated or is in violation of any provision of the Foreign Corrupt Practices Act of 1977; (D) made
any bribe, rebate, payoff, influence payment, kickback or other unlawful payment; or (E) made any
payment of funds to the Company or any of its subsidiaries or received or retained funds in
violation of any law, rule or regulation, which payment, receipt or retention of funds is of a
character required to be disclosed in each of the General Disclosure Package and the Prospectus,
that is not described in each of the General Disclosure Package and the Prospectus as required;
(xxxviii) The operations of the Company and its subsidiaries are and have been conducted at
all times in compliance with applicable financial recordkeeping and reporting requirements of the
Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes
of all jurisdictions, the rules and regulations thereunder and any related or similar rules,
regulations or guidelines, issued, administered or enforced by any governmental agency
(collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before any
court or governmental agency, authority or body or any arbitrator involving the Company or any of
its subsidiaries with respect to the Money Laundering Laws is pending or, to the best knowledge of
the Company, threatened;
(xxxix) No relationship, direct or indirect, exists between or among the Company or any of its
subsidiaries, on the one hand, and the directors, officers, stockholders, customers or suppliers of
the Company or any of its subsidiaries, on the other, that is required by the Act to be described
in each of the General Disclosure Package and the Prospectus and that is not so described;
(xl) Except as described in each of the General Disclosure Package and the Prospectus, there
are no material off-balance sheet transactions, arrangements, obligations (including contingent
obligations), or any other relationships with unconsolidated entities or other persons, that may
have a material current or future effect on the Company’s financial condition, changes in financial
condition, results of operations, liquidity, capital expenditures, capital resources, or
significant components of revenues or expenses; and
(xli) The Company is in compliance in all material respects with the provisions of the
Xxxxxxxx-Xxxxx Act and the rules and regulations of the Commission thereunder applicable to it and
will comply in all material respects with those provisions of the Xxxxxxxx-Xxxxx Act that will
become effective in the future upon their effectiveness; and the
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Company is in compliance in all material respects with the applicable rules and regulations of
the NASDAQ Global Market;
(b) The Bank represents and warrants to, and agrees with, each of the Underwriters that:
(i) The Bank has been duly chartered and is validly existing as a state bank in good standing
under the laws of the state of Kentucky, with power and authority (corporate and other) to own its
properties and conduct its business as described in each of the General Disclosure Package and the
Prospectus, and has been duly qualified as a foreign corporation for the transaction of business
and is in good standing under the laws of each other jurisdiction in which it owns or leases
properties or conducts any business so as to require such qualification, or is subject to no
material liability or disability by reason of the failure to be so qualified in any such
jurisdiction;
(ii) Neither the Bank nor any of its subsidiaries is in violation of its charter, by-laws or
other charter documents or in default in the performance or observance of any material obligation,
agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust,
loan agreement, note, lease or other agreement or instrument to which the Bank or any of its
subsidiaries is a party or by which it or any of them may be bound, or to which any of the property
of the Bank or any of its subsidiaries is subject; and
(iii) The execution, delivery and performance of this Agreement by the Bank and the compliance
by the Bank with all of the provisions of this Agreement and the consummation of the transactions
herein contemplated will not conflict with or result in a breach or violation of any of the terms
or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Bank or any of its subsidiaries is a party
or by which the Bank or any of its subsidiaries is bound or to which any of the property or assets
of the Bank or any of its subsidiaries is subject, nor will such action result in any violation of
the provisions of the charter of the Bank or any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the Bank or any of its subsidiaries
or any of their properties.
2. Subject to the terms and conditions herein set forth, (a) the Company agrees to issue and
sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly,
to purchase from the Company (i) ___ shares of the Firm Shares from the Company, at a
purchase price per share of $___, as set forth opposite the name of such Underwriter in
Schedule I hereto and (ii) ___ shares of the Firm Shares (such shares being reserved for
sale to directors, officers and employees of the Company) from the Company, at a purchase price per
share of $___, as set forth opposite the name of such Underwriter in Schedule I hereto (b) in
the event and to the extent that the Underwriters shall exercise the election to purchase Optional
Shares as provided below, the Company agrees to issue and sell to each of the Underwriters, and
each of the Underwriters agrees, severally and not jointly, to purchase from the Company, at the
purchase price per share set forth in clause (a) of this Section 2, that portion of the number of
Optional Shares as to which such election shall have
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been exercised (to be adjusted by you so as to eliminate fractional shares) determined by
multiplying such number of Optional Shares by a fraction, the numerator of which is the maximum
number of Optional Shares which such Underwriter is entitled to purchase as set forth opposite the
name of such Underwriter in Schedule I hereto and the denominator of which is the maximum number of
Optional Shares that all of the Underwriters are entitled to purchase hereunder.
The Company hereby grants to the Underwriters the right to purchase at their election up to
___Optional Shares, at the purchase price per share set forth in paragraph (a)(i) above, for
the sole purpose of covering overallotments in the sale of the Firm Shares. Any such election to
purchase Optional Shares may be exercised only by written notice from you to the Company, given
within a period of 30 calendar days after the date of this Agreement, setting forth the aggregate
number of Optional Shares to be purchased and the date on which such Optional Shares are to be
delivered, as determined by you but in no event earlier than the First Time of Delivery (as defined
in Section 4 hereof) or, unless you and the Company otherwise agree in writing, earlier than two or
later than ten business days after the date of such notice.
It is understood that each Underwriter has authorized the Representative for such
Underwriter’s account, to accept delivery of, receipt for, and make payment of the purchase price
for, the Firm Shares and the Optional Shares, if any, which such Underwriter has agreed to
purchase. Sandler X’Xxxxx & Partners, L.P., individually and not as representative of the
Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Firm
Shares or the Optional Shares, if any, to be purchased by any Underwriter whose funds have not been
received by Sandler X’Xxxxx & Partners, L.P. by the relevant Time of Delivery but such payment
shall not relieve such Underwriter from its obligations hereunder.
3. Upon the authorization by you of the release of the Firm Shares, the several Underwriters
propose to offer the Firm Shares for sale upon the terms and conditions set forth in the
Prospectus.
4. (a) The Shares to be purchased by each Underwriter hereunder, in definitive form, and in
such authorized denominations and registered in such names as the Representative. may request upon
at least forty-eight hours prior notice to the Company shall be delivered by or on behalf of the
Company to the Representative, through the facilities of the Depository Trust Company (“DTC”), for
the account of such Underwriter, against payment by or on behalf of such Underwriter of the
purchase price therefor by wire transfer of Federal (same day) funds to the account specified by
the Company, to the Representative at least forty-eight hours in advance. The Company will cause
the certificates representing the Shares to be made available for checking and packaging at least
twenty-four hours prior to the Time of Delivery (as defined below) with respect thereto at the
office of DTC or its designated custodian (the “Designated Office”). The time and date of such
delivery and payment shall be, with respect to the Firm Shares, 9:30 a.m., Eastern Time, on
___, 200___ or such other time and date as the Representative and the Company may agree upon in
writing, and, with respect to the Optional Shares, 9:30 a.m., New York time, on the date specified
by the Representative in the written notice given by the Representative of the Underwriters’
election to purchase such Optional
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Shares, or such other time and date as the Representative and the Company may agree upon in
writing. Such time and date for delivery of the Firm Shares is herein called the “First Time of
Delivery,” such time and date for delivery of the Optional Shares, if not the First Time of
Delivery, is herein called the “Second Time of Delivery,” and each such time and date for delivery
is herein called a “Time of Delivery.”
(a) The documents to be delivered at each Time of Delivery by or on behalf of the parties
hereto pursuant to Section 7 hereof, including the cross receipt for the Shares and any additional
documents requested by the Underwriters pursuant to Section 7(k) hereof, will be delivered at the
offices of Sandler X’Xxxxx & Partners, L.P., 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000 (the “Closing
Location”), and the Shares will be delivered at the Designated Office, all at such Time of
Delivery. A meeting will be held at the Closing Location at ___p.m., Eastern Time, on the New
York Business Day next preceding such Time of Delivery, at which meeting the final drafts of the
documents to be delivered pursuant to the preceding sentence will be available for review by the
parties hereto. For the purposes of this Section 4, “New York Business Day” shall mean each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in
New York are generally authorized or obligated by law or executive order to close.
5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by you and to file such Prospectus pursuant
to Rule 424(b) under the Act not later than the Commission’s close of business on the second
business day following the execution and delivery of this Agreement, or, if applicable, such
earlier time as may be required by Rule 430A(a)(3) under the Act; to make no further amendment or
any supplement to the Registration Statement or Prospectus which shall be disapproved by you
promptly after reasonable notice thereof; to advise you, promptly after it receives notice thereof,
of the time when any amendment to the Registration Statement has been filed or becomes effective or
any supplement to the Prospectus or any amended Prospectus has been filed and to furnish you with
copies thereof; to advise you, promptly after it receives notice thereof, of the issuance by the
Commission of any stop order or of any order preventing or suspending the use of any Preliminary
Prospectus, Issuer-Represented Free Writing Prospectus or Prospectus, of the suspension of the
qualification of the Shares for offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, or of any request by the Commission for the
amending or supplementing of the Registration Statement, any Preliminary Prospectus, any
Issuer-Represented Free Writing Prospectus or Prospectus or for additional information; and, in the
event of the issuance of any stop order or of any order preventing or suspending the use of any
Preliminary Prospectus, Issuer-Represented Free Writing Prospectus or Prospectus or suspending any
such qualification, promptly to use its best efforts to obtain the withdrawal of such order;
(b) If at any time following issuance of an Issuer-Represented Free Writing Prospectus there
occurred or occurs an event or development as a result of which such Issuer-Represented Free
Writing Prospectus conflicted or would conflict with the information contained in the Registration
Statement or included or would include an untrue statement of a
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material fact or omitted or would omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances prevailing at that subsequent time, not
misleading, the Company has notified or will notify promptly the Representative so that any use of
such Issuer-Represented Free-Writing Prospectus may cease until it is amended or supplemented and
the Company has promptly amended or will promptly amend or supplement such Issuer-Represented Free
Writing Prospectus to eliminate or correct such conflict, untrue statement or omission; provided,
however, that this covenant shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Company by an Underwriter through
the Representative expressly for use therein.
(c) The Company represents and agrees that, unless it obtains the prior written consent of the
Representative, and each Underwriter represents and agrees that, unless it obtains the prior
written consent of each of the Company and the Representative, it has not made and will not make
any offer relating to the Shares that would constitute an “issuer free writing prospectus,” as
defined in Rule 433 under the Act, or that would otherwise constitute a “free writing prospectus,”
as defined in Rule 405 under the Act, required to be filed with the Commission. Any such free
writing prospectus consented to by the Company and the Representative is hereinafter referred to as
a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that
it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as
defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable
to any Permitted Free Writing Prospectus, including timely filing with the Commission where
required, legending and record keeping. The Company represents that it has satisfied the
conditions in Rule 433 to avoid a requirement to file with the Commission any electronic road show.
(d) Promptly from time to time to take such action as you may reasonably request to qualify
the Shares for offering and sale under the securities laws of such jurisdictions as you may request
and to comply with such laws so as to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the distribution of the Shares, provided
that in connection therewith the Company shall not be required to qualify as a foreign corporation
or to file a general consent to service of process in any jurisdiction;
(e) Prior to 10:00 a.m., Eastern Time, on the New York Business Day next succeeding the date
of this Agreement and from time to time, to furnish the Underwriters with copies of the Prospectus
in New York City in such quantities as you may from time to time reasonably request, and, if the
delivery of a prospectus is required at any time prior to the expiration of nine months after the
time of issue of the Prospectus in connection with the offering or sale of the Shares and if at
such time any event shall have occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the circumstances under
which they were made when such Prospectus is delivered, not misleading, or, if for any other reason
it shall be necessary during such period to amend or supplement the Prospectus in order to comply
with the Act, to notify you and upon your request to prepare and furnish without charge to each
Underwriter and to any dealer in securities as many
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copies as you may from time to time reasonably request of an amended Prospectus or a
supplement to the Prospectus which will correct such statement or omission or effect such
compliance, and in case any Underwriter is required to deliver a prospectus in connection with
sales of any of the Shares at any time nine months or more after the time of issue of the
Prospectus, upon your request but at the expense of such Underwriter, to prepare and deliver to
such Underwriter as many copies as you may request of an amended or supplemented Prospectus
complying with Section 10(a)(3) of the Act;
(f) To make generally available to its securityholders as soon as practicable, but in any
event not later than eighteen months after the effective date of the Registration Statement (as
defined in Rule 158(c) under the Act), an earning statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act and the rules and regulations
thereunder (including, at the option of the Company, Rule 158);
(g) During the period beginning from the date hereof and continuing to and including the date
180 days after the date of the Prospectus, not to, and to use its reasonable best efforts not to
allow any of its directors or executive officers to, offer, sell, agree to sell, contract to sell
hypothecate, pledge, grant any option to purchase, make any short sale, or otherwise dispose of or
hedge, directly or indirectly, except as provided hereunder any securities of the Company that are
substantially similar to the Shares, including but not limited to any securities that are
convertible into or exchangeable for, or that represent the right to receive, Stock or any such
substantially similar securities (other than pursuant to employee stock option plans existing on,
or upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the
date of this Agreement) or publicly announce an intention to effect any such transaction, without
your prior written consent; provided, however, that if: (1) during the last 17 days of such
180-day period the Company issues an earnings release or material news or a material event relating
to the Company occurs; or (2) prior to the expiration of such 180-day period, the Company announces
that it will release earnings results during the 16-day-period beginning on the last day of such
180-day period, the restrictions imposed by this Section 5(g) shall continue to apply until the
expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence
of the material news or material event;
(h) To furnish to its stockholders, as soon as practicable after the end of each fiscal year,
an annual report (including a balance sheet and statements of income, stockholders’ equity and cash
flows of the Company and its consolidated subsidiaries certified by an independent registered
public accounting firm) and, as soon as practicable after the end of each of the first three
quarters of each fiscal year (beginning with the fiscal quarter ending after the effective date of
the Registration Statement), to make available to its stockholders consolidated summary financial
information of the Company and its subsidiaries for such quarter in reasonable detail; for purposes
of this paragraph, filing via XXXXX shall be considered delivery to the stockholders;
(i) During a period of five years from the effective date of the Registration Statement, to
furnish to you copies of all reports or other communications (financial
-17-
or other) furnished to stockholders, and to deliver to you (i) as soon as they are available,
copies of any reports and financial statements furnished to or filed with the Commission or any
national securities exchange on which any class of securities of the Company is listed; and (ii)
such additional information concerning the business and financial condition of the Company as you
may from time to time reasonably request (such financial statements to be on a consolidated basis
to the extent the accounts of the Company and its subsidiaries are consolidated in reports
furnished to its stockholders generally or to the Commission);
(j) To use the net proceeds received by it from the sale of the Shares pursuant to this
Agreement in the manner specified in each of the General Disclosure Package and the Prospectus
under the caption “Use of Proceeds”;
(k) If the Company elects to rely on Rule 462(b), the Company shall file a Rule 462(b)
Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 p.m.,
Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing
either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give
irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Act;
(l) To use its best efforts to list for quotation the Shares on the NASDAQ Global Market
(“NASDAQ”);
(m) During the period beginning on the date hereof and ending on the later of the fifth
anniversary of the First Time of Delivery or the date on which the Underwriters receive full
payment in satisfaction of any claim for indemnification or contribution to which they may be
entitled pursuant to Section 8 of this Agreement, neither the Company nor the Bank shall, without
the prior written consent of the Representative, take or permit to be taken any action that could
result in the Bank’s common stock becoming subject to any security interest, mortgage, pledge, lien
or encumbrance; provided, however, that this covenant shall be null and void if the FRB, the XXXX,
the FDIC, or any other federal agency having jurisdiction over the Bank, by regulation, policy
statement or interpretive release or by written order or written advice addressed to the Bank and
specifically addressing the provisions of Section 8 hereof, permits indemnification of the
Underwriters by the Bank as contemplated by such provisions;
(n) To file with the Commission such information on Form 10-K or Form 10-Q as may be required
by Rule 463 under the Act; and
(o) To comply, and to use its reasonable best efforts to cause the Company’s directors and
officers, in their capacities as such, to comply, in all material respects, with all effective
applicable provisions of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations thereunder.
6. The Company covenants and agrees with the several Underwriters that the Company will pay or
cause to be paid the following: (i) the reasonable out-of-pocket expenses incurred by the
Underwriters in connection with the transactions contemplated hereby (regardless of whether the
sale of the Shares is consummated), including, without limitation,
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disbursements, fees and expenses of the Underwriters’ counsel and marketing, syndication and
travel expenses; (ii) the fees, disbursements and expenses of the Company’s counsel and accountants
in connection with the registration of the Shares under the Act and all other expenses in
connection with the preparation, printing and filing of the Registration Statement, any Preliminary
Prospectus, any Permitted Free Writing Prospectus and the Prospectus and amendments and supplements
thereto and the mailing and delivering of copies thereof to the Underwriters and dealers; (iii) the
cost of printing or producing any agreement among Underwriters, this Agreement, the Blue Sky
Memorandum, closing documents (including any compilations thereof) and any other documents in
connection with the offering, purchase, sale and delivery of the Shares; (iv) all expenses in
connection with the qualification of the Shares for offering and sale under state securities laws
as provided in Section 5(b) hereof, including the fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with the Blue Sky survey; (v)
all fees and expenses in connection with listing the Shares on NASDAQ; (vi) the filing fees
incident to, and the fees and disbursements of counsel for the Underwriters in connection with,
securing any required review by the National Association of Securities Dealers, Inc. of the terms
of the sale of the Shares; (vii) the cost of preparing stock certificates; (viii) the cost and
charges of any transfer agent or registrar; and (ix) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise specifically provided for in this
Section.
7. The obligations of the Underwriters hereunder, as to the Shares to be delivered at each
Time of Delivery, shall be subject, in their discretion, to the condition that all representations
and warranties and other statements of the Company herein are, at and as of such Time of Delivery,
true and correct, the condition that the Company shall have performed all of its obligations
hereunder theretofore to be performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) within
the applicable time period prescribed for such filing by the rules and regulations under the Act
and in accordance with Section 5(a) hereof (or a post-effective amendment shall have been filed and
declared effective in accordance with the requirements of Rule 430A); if the Company has elected to
rely upon Rule 462(b), the Rule 462(b) Registration Statement shall have become effective by 10:00
p.m., Eastern Time, on the date of this Agreement; no stop order suspending the effectiveness of
the Registration Statement or any part thereof shall have been issued and no proceeding for that
purpose shall have been initiated or threatened by the Commission; and all requests for additional
information on the part of the Commission shall have been complied with to your reasonable
satisfaction; and the NASD shall have raised no objection to the fairness and reasonableness of the
underwriting terms and arrangements;
(b) Xxxxxx Xxxxxxx Xxxxx & Xxxxxxxxxxx LLP, counsel for the Underwriters, shall have furnished
to you such written opinion or opinions, dated such Time of Delivery, with respect to the
incorporation of the Company, the validity of the Shares, the Registration Statement, the
Prospectus as amended or supplemented and other related matters as you may reasonably request, and
such counsel shall have received such papers and information as they may reasonably request to
enable them to pass upon such matters;
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(c) Xxxxx, Tarrant & Xxxxx, LLP, counsel for the Company, shall have furnished to you their
written opinion (a draft of such opinion is attached as Annex II hereto), dated such Time of
Delivery, in form and substance satisfactory to you, to the effect set forth in Annex II hereto and
to such further effect as counsel to the Underwriters may reasonably request;
(d) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30
a.m., Eastern Time, on the effective date of any post-effective amendment to the Registration
Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, Xxxxx
Xxxxxx and Company LLC shall have furnished to you letters, dated the respective dates of delivery
thereof, in form and substance satisfactory to you, to the effect set forth in Annex I hereto. In
addition, on the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30
a.m., Eastern Time, on the effective date of any post-effective amendment to the Registration
Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, BKD,
LLP shall have furnished to you “comfort” letters, dated the respective dates of delivery thereof,
in form and substance satisfactory to the you with respect to the financial statements of the
Company and certain financial information contained in the Prospectus for all periods to January 1,
2005;
(e) (i) Neither the Company nor any of its subsidiaries shall have sustained since the date of
the latest audited financial statements included in each of the General Disclosure Package and the
Prospectus any loss or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or contemplated in the Prospectus, and (ii)
since the respective dates as of which information is given in each of the General Disclosure
Package and the Prospectus there shall not have been any change in the capital stock or long-term
debt of the Company or any of its subsidiaries or any change, or any development involving a
prospective change, in or affecting the general affairs, management, financial position,
stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than
as set forth or contemplated in each of the General Disclosure Package and the Prospectus, the
effect of which, in any such case described in Clause (i) or (ii), is in the judgment of the
Representative so material and adverse as to make it impracticable or inadvisable to proceed with
the public offering or the delivery of the Shares being delivered at such Time of Delivery on the
terms and in the manner contemplated in each of the General Disclosure Package and the Prospectus;
(f) On or after the date hereof (i) no downgrading shall have occurred in the rating accorded
the Company’s debt securities by any “nationally recognized statistical rating organization”, as
that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no
such organization shall have publicly announced that it has under surveillance or review, with
possible negative implications, its rating of any of the Company’s debt securities;
(g) On or after the date hereof there shall not have occurred any of the following: (i) a
suspension or material limitation in trading in securities generally on the New
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York Stock Exchange or on NASDAQ; (ii) a suspension or material limitation in trading in the
Company’s securities on NASDAQ; (iii) a general moratorium on commercial banking activities
declared by either Federal, or New York or Kentucky state authorities; or (iv) the outbreak or
escalation of hostilities involving the United States or the declaration by the United States of a
national emergency or war or a material adverse change in general economic, political or financial
conditions, including without limitation as a result of terrorist activities after the date hereof
(or the effect of international conditions on the financial markets in the United States shall be
such), or any other calamity or crisis, if the effect of any such event specified in this Clause
(iv) in the judgment of the Representative makes it impracticable or inadvisable to proceed with
the public offering or the delivery of the Shares being delivered at such Time of Delivery on the
terms and in the manner contemplated in the Prospectus;
(h) The Shares to be sold at such Time of Delivery shall have been duly listed for quotation
on NASDAQ;
(i) The Company has obtained and delivered to the Underwriters executed copies of an agreement
from the directors and executive officers listed on Schedule II hereto, substantially to the effect
set forth in Subsection 5(e) hereof in form and substance satisfactory to you;
(j) The Company shall have complied with the provisions of Section 5(c) hereof with respect to
the furnishing of prospectuses on the New York Business Day next succeeding the date of this
Agreement; and
(k) The Company shall have furnished or caused to be furnished to you at such Time of Delivery
certificates of officers of the Company satisfactory to you as to the accuracy of the
representations and warranties of the Company herein at and as of such Time of Delivery, as to the
performance by the Company of all of its obligations hereunder to be performed at or prior to such
Time of Delivery, as to the matters set forth in subsections (a) and (e) of this Section and as to
such other matters as you may reasonably request.
8. (a) (i) The Company and the Bank, jointly and severally, shall indemnify and hold harmless
each Underwriter against any losses, claims, damages or liabilities, joint or several, to which
they or any of them may become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus,
the Registration Statement, the General Disclosure Package, the Prospectus or any individual
Issuer-Represented Limited-Use Free Writing Prospectus, when considered together with the General
Disclosure Package, or any amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse each such indemnified
party for any legal or other expenses reasonably incurred by them in connection with investigating
or defending any such action or claim as such expenses are incurred; provided, however, that
neither the Company nor the Bank shall be liable in any such case to the extent that any such loss,
claim, damage or liability arises
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out of or is based upon an untrue statement or alleged untrue statement or omission or alleged
omission made in any Preliminary Prospectus, the Registration Statement, the General Disclosure
Package, the Prospectus or any individual Issuer-Represented Limited-Use Free Writing Prospectus,
when considered together with the General Disclosure Package, or any such amendment or supplement
in reliance upon and in conformity with written information furnished to the Company by any
Underwriter through the Representative expressly for use therein (provided that the Company and the
Underwriters hereby acknowledge and agree that the only information that the Underwriters have
furnished to the Company specifically for inclusion in any Preliminary Prospectus, the Registration
Statement, the General Disclosure Package, the Prospectus or any individual Issuer-Represented
Limited-Use Free Writing Prospectus, when considered together with the General Disclosure Package,
or any amendment or supplement thereto, are (i) the concession and reallowance figures appearing in
the Prospectus in the section entitled “Underwriting,” (ii) the second sentence of the seventh
paragraph under the section entitled “Underwriting” relating to the Underwriters’ reservation of
the right to withdraw, cancel or modify the offer contemplated by this Agreement and to reject
orders in whole or in part, (iii) the twelfth paragraph under the section entitled “Underwriting”
relating to stabilization transactions, over-allotment transactions, syndicate covering
transactions and penalty bids in which the Underwriters may engage and (iv) the first sentence of
the thirteenth paragraph relating to the effecting of stabilization transactions, syndicate
covering transactions and penalty bids (collectively, the “Underwriters’ Information”).
Notwithstanding the foregoing, the indemnification provided for in this paragraph (a) shall not
apply to the Bank to the extent that such indemnification by the Bank is found in a final judgment
by a court of competent jurisdiction to constitute a covered transaction under Section 23A of the
Federal Reserve Act.
(b) Each Underwriter shall indemnify and hold harmless the Company against any losses, claims,
damages or liabilities to which the Company may become subject, under the Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement, the General Disclosure Package, the Prospectus,
or any individual Issuer-Represented Limited-Use Free Writing Prospectus, when considered together
with the General Disclosure Package, or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each case to the extent, but
only to the extent, that such untrue statement or alleged untrue statement or omission or alleged
omission was made in any Preliminary Prospectus, the Registration Statement, the General Disclosure
Package, the Prospectus or any individual Issuer-Represented Limited-Use Free Writing Prospectus,
when considered together with the General Disclosure Package, or any such amendment or supplement,
in reliance upon and in conformity with written information furnished to the Company by such
Underwriter through the Representative expressly for use therein; and will reimburse the Company
for any legal or other expenses reasonably incurred by the Company in connection with investigating
or defending any such action or claim as such expenses are incurred.
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(c) Promptly after receipt by an indemnified party under subsection (a) or (b) 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 the indemnifying party in
writing of the commencement thereof; but the omission so to notify the indemnifying party shall not
relieve it from any liability which it may have to any indemnified party otherwise than under such
subsection. In case any such action 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 therein and, to the extent that it shall wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified party, be counsel to
the indemnifying party), and, after notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof, the indemnifying party shall not be liable to such
indemnified party under such subsection for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party, in connection with the
defense thereof other than reasonable costs of investigation. No indemnifying party shall, without
the written consent of the indemnified party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or claim in respect of
which indemnification or contribution may be sought hereunder (whether or not the indemnified party
is an actual or potential party to such action or claim) unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all liability arising
out of such action or claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 is unavailable to or insufficient to
hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses,
claims, damages or liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriters on the other from the offering of the Shares. If, however, the
allocation provided by the immediately preceding sentence is not permitted by applicable law or if
the indemnified party failed to give the notice required under subsection (c) above, then each
indemnifying party shall contribute to such amount paid or payable by such indemnified party in
such proportion as is appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or liabilities (or actions
in respect thereof), as well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters on the other shall be deemed to be in
the same proportion as the total net proceeds from the offering (before deducting expenses)
received by the Company bear to the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover page of the Prospectus. The
relative fault 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 on the
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one hand or the Underwriters on the other and the parties’ relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission. The Company and
the Underwriters agree that it would not be just and equitable if contributions pursuant to this
subsection (d) 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 in this subsection (d). The amount paid or payable by
an indemnified party as a result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to above in this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of this subsection (d), 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 which 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 Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
The Underwriters’ obligations in this subsection (d) to contribute are several in proportion to
their respective underwriting obligations and not joint.
(e) The obligations of the Company and the Bank under this Section 8 shall be in addition to
any liability which the Company and the Bank may otherwise have and shall extend, upon the same
terms and conditions, to each person, if any, who controls (within the meaning of the Act) any
Underwriter, or any of the respective partners, directors, officers and employees of any
Underwriter or any such controlling person; and the obligations of the Underwriters under this
Section 8 shall be in addition to any liability which the respective Underwriters may otherwise
have and shall extend, upon the same terms and conditions, to each director of the Company
(including any person who, with his or her consent, is named in the Registration Statement as about
to become a director of the Company), each officer of the Company who signs the Registration
Statement and to each person, if any, who controls the Company or the Bank, as the case may be,
within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase the Shares which it has
agreed to purchase hereunder at a Time of Delivery, you may in your discretion arrange for you or
another party or other parties to purchase such Shares on the terms contained herein. If within
thirty-six hours after such default by any Underwriter you do not arrange for the purchase of such
Shares, then the Company shall be entitled to a further period of thirty-six hours within which to
procure another party or other parties satisfactory to you to purchase such Shares on such terms.
In the event that, within the respective prescribed periods, you notify the Company that you have
so arranged for the purchase of such Shares, or the Company notifies you that it has so arranged
for the purchase of such Shares, you or the Company shall have the right to postpone such Time of
Delivery for a period of not more than seven days, in order to effect whatever changes may thereby
be made necessary in the Registration Statement or the Prospectus, or in any other documents or
arrangements, and the Company agrees to file promptly any amendments to the Registration Statement
or the Prospectus which in your opinion may thereby be made necessary. The term “Underwriter” as
used in this Agreement shall include any
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person substituted under this Section with like effect as if such person had originally been a
party to this Agreement with respect to such Shares.
(b) If, after giving effect to any arrangements for the purchase of the Shares of a defaulting
Underwriter or Underwriters by you and the Company as provided in subsection (a) above, the
aggregate number of such Shares which remains unpurchased does not exceed one-tenth of the
aggregate number of all the Shares to be purchased at such Time of Delivery, then the Company shall
have the right to require each non-defaulting Underwriter to purchase the number of shares which
such Underwriter agreed to purchase hereunder at such Time of Delivery and, in addition, to require
each non-defaulting Underwriter to purchase its pro rata share (based on the number of Shares which
such Underwriter agreed to purchase hereunder) of the Shares of such defaulting Underwriter or
Underwriters for which such arrangements have not been made; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the Shares of a defaulting
Underwriter or Underwriters by you and the Company as provided in Section 9(a) hereof, the
aggregate number of such Shares which remains unpurchased exceeds one-tenth of the aggregate number
of all the Shares to be purchased at such Time of Delivery, or if the Company shall not exercise
the right described in Section 9(b) hereof to require non-defaulting Underwriters to purchase
Shares of a defaulting Underwriter or Underwriters, then this Agreement (or, with respect to the
Second Time of Delivery, the obligations of the Underwriters to purchase and of the Company to sell
the Optional Shares) shall thereupon terminate, without liability on the part of any non-defaulting
Underwriter or the Company, except for the expenses to be borne by the Company as provided in
Section 6 hereof and the indemnity and contribution agreements in Section 8 hereof; but nothing
herein shall relieve a defaulting Underwriter from liability for its default.
10. The Company acknowledges and agrees that:
(a) in connection with the sale of the Shares, the Underwriters have been retained solely to
act as underwriters, and no fiduciary, advisory or agency relationship between the Company and the
Underwriters has been created in respect of any of the transactions contemplated by this Agreement;
(b) the price of the Shares set forth in this Agreement was established following discussions
and arms-length negotiations between the Company and the Underwriters, and the Company is capable
of evaluating and understanding and understands and accepts the terms, risks and conditions of the
transactions contemplated by this Agreement;
(c) it has been advised that the Underwriters and their affiliates are engaged in a broad
range of transactions which may involve interests that differ from those of the Company and that
the Underwriters have no obligation to disclose such interests and transactions to the Company by
virtue of any fiduciary, advisory or agency relationship; and
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(d) it waives, to the fullest extent permitted by law, any claims it may have against the
Underwriters for breach of fiduciary duty or alleged breach of fiduciary duty and agrees that the
Underwriters shall have no liability (whether direct or indirect) to the Company in respect of such
a fiduciary duty claim or to any person asserting a fiduciary duty claim on behalf of or in right
of the Company, including stockholders, employees or creditors of the Company.
11. The respective indemnities, agreements, representations, warranties and other statements
of the Company and the several Underwriters, as set forth in this Agreement or made by or on behalf
of them, respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company, or any officer or
director or controlling person of the Company, and shall survive delivery of and payment for the
Shares.
12. If this Agreement is terminated pursuant to Section 9 hereof, neither the Company nor the
Bank shall then be under any liability to any Underwriter except as provided in Sections 5 (in the
case of the Company) and 8 (in the case of the Company and the Bank) hereof; but, if for any other
reason, any Shares are not delivered by or on behalf of the Company as provided herein, the Company
will reimburse the Underwriters through you for all out-of-pocket expenses, including fees and
disbursements of counsel, incurred by the Underwriters in connection with the transactions
contemplated hereby, including, without limitation, marketing, syndication and travel expenses
incurred by the Underwriters in making preparations for the purchase, sale and delivery of the
Shares not so delivered, but the Company shall then be under no further liability to any
Underwriter except as provided in Sections 5 and 8 hereof.
13. In all dealings hereunder, you shall act on behalf of each of the Underwriters, and the
parties hereto shall be entitled to act and rely upon any statement, request, notice or agreement
on behalf of any Underwriter made or given by you.
All statements, requests, notices and agreements hereunder shall be in writing, and if to the
Underwriters shall be delivered or sent by mail, telex or facsimile transmission to you as the
Representative at 000 Xxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, XX 00000, Attention: General
Counsel; and if to the Company or to the Bank shall be delivered or sent by mail to the address of
the Company set forth in the Registration Statement, Attention: Xxxx X. Xxxxx; provided, however,
that any notice to an Underwriter pursuant to Section 8(c) hereof shall be delivered or sent by
mail or facsimile transmission to such Underwriter at its address or facsimile number set forth in
its Underwriters’ Questionnaire, which address or facsimile number will be supplied to the Company
by you upon request. Any such statements, requests, notices or agreements shall take effect upon
receipt thereof.
14. This Agreement shall be binding upon, and inure solely to the benefit of, the
Underwriters, the Company, the Bank and, to the extent provided in Sections 8 and 10 hereof, the
officers and directors of the Company and of the Bank and each person who controls the Company, the
Bank or any Underwriter, and their respective heirs, executors, administrators,
-26-
successors and assigns, and no other person shall acquire or have any right under or by virtue
of this Agreement. No purchaser of any of the Shares from any Underwriter shall be deemed a
successor or assign by reason merely of such purchase.
15. Time shall be of the essence of this Agreement. As used herein, the term “business day”
shall mean any day when the Commission’s office in Washington, D.C. is open for business.
16. This Agreement shall be governed by and construed in accordance with the laws of the State
of New York.
17. This Agreement may be executed by any one or more of the parties hereto in any number of
counterparts, each of which shall be deemed to be an original, but all such counterparts shall
together constitute one and the same instrument.
If the foregoing is in accordance with your understanding, please sign and return to us four
counterparts hereof, and upon the acceptance hereof by you, on behalf of each of the Underwriters,
this letter and such acceptance hereof shall constitute a binding agreement between each of the
Underwriters, the Company and the Bank. It is understood that your acceptance of this letter on
behalf of each of the Underwriters is pursuant to the authority set forth in a form of Agreement
among Underwriters, the form of which shall be submitted to the Company for examination upon
request, but without warranty on your part as to the authority of the signers thereof.
| Very truly yours, Citizens First Corporation |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| Citizens First Bank, Inc. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
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Accepted as of the date hereof:
Sandler X’Xxxxx & Partners, L.P.
As representative of the several Underwriters
As representative of the several Underwriters
| By: | Sandler X'Xxxxx & Partners Corp. | |||
| the sole general partner | ||||
| By: | ||||
| Name: | ||||
| Title: | Vice President | |||
-28-
