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EXHIBIT 1
UNDERWRITING AGREEMENT
750,000 SHARES
FIRST SHARES BANCORP, INC.
COMMON STOCK
UNDERWRITING AGREEMENT
_____________________, 2000
Xxxxx X. Xxxxx & Company,
as Representative of the Several Underwriters
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxx 00000
Dear Sirs:
First Shares Bancorp, Inc., an Indiana corporation (the "COMPANY"),
proposes to issue and sell 750,000 shares (the "FIRM SHARES") of its authorized
but unissued Common Stock (the "COMMON STOCK") to the several Underwriters named
in Schedule I hereto (the "UNDERWRITERS"). In addition, the Company proposes to
grant to the Underwriters an option to purchase up to an additional 112,500
shares (the "OPTIONAL SHARES") to cover over-allotments. The Firm Shares and the
Optional Shares are called, collectively, the "SHARES." (Xxxxx X. Xxxxx &
Company is hereinafter referred to as "you" or as "Xxxxx.") You represent and
warrant that you are acting as the representative of the Underwriters and that
you have been authorized by each of the other Underwriters to enter into this
Underwriting Agreement on its behalf and to act for it in the manner herein
provided.
1. SALE AND PURCHASE OF THE SHARES.
(a) On the basis of the representations, warranties and agreements of the
Company contained in, and subject to the terms and conditions of, this
Agreement, the Company agrees to issue and sell to the Underwriters,
and each of the Underwriters agrees, severally and not jointly, to
purchase the number of the Firm Shares set forth opposite such
Underwriter's name in Schedule I hereto at a purchase price of $_____
per Share, except as set forth in Section 1(b) below.
(b) On the basis of the representations, warranties and agreements of the
Company contained in, and subject to the terms and conditions of, this
Agreement, and pursuant to directions from the Company, the
Underwriters will offer to sell to each of the persons named in a list
provided by the Company to the Underwriters (who
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may purchase alone or with family members to the extent permitted by
the Free-Riding and Withholding Interpretation (the "INTERPRETATION")
under the Rules of Fair Practice of the National Association of
Securities Dealers, Inc. (the "NASD")) the number of Shares set forth
opposite their respective names on the list. To the extent such
persons (alone or with such members) buy such Shares, the Underwriters
agree to purchase up to 120,000 of the Shares at a purchase price of
$_____ per Share. The parties agree that the securities purchased and
sold under this subparagraph to the Company's employees and directors
shall constitute "issuer directed securities" under the
Interpretation. The provisions of this Section 1(b) shall not affect
the Underwriters' right, with respect to persons who are not employees
or directors of the Company, to withdraw, cancel or modify orders or
to reject orders in whole or in part.
(c) On the basis of the representations, warranties and agreements of the
Company contained in, and subject to the terms and conditions of, this
Agreement, the Company grants to the Underwriters an option to
purchase all or any part of the Optional Shares at a price per Share
of $________. Optional Shares shall be purchased from the Company,
severally and not jointly, for the accounts of the several
Underwriters in proportion to the number of Firm Shares set opposite
such Underwriter's name in Schedule I hereto, except that the
respective purchase obligations of each Underwriter shall be adjusted
by Xxxxx so that no Underwriter shall be obligated to purchase
fractional Optional Shares. The over-allotment option may be exercised
only to cover over-allotments in the sale of the Firm Shares by the
Underwriters and may be exercised in whole or in part at any time or
times on or before 12:00 noon, Indianapolis time, on the day before
the Firm Shares Closing Date (as defined in Section 2 below), and only
once at any time after that date and within 30 days after the
Effective Date (as defined in Section 4 below), in each case upon
written or transmitted facsimile notice, or verbal notice confirmed by
transmitted facsimile, written or telegraphic notice, by Xxxxx to the
Company no later than 12:00 noon, Indianapolis time, on the day before
the Firm Shares Closing Date or at least three but not more than five
full business days before the Optional Shares Closing Date (as defined
in Section 2 below), as the case may be, setting forth the number of
Optional Shares to be purchased and the time and date (if other than
the Firm Shares Closing Date) of such purchase.
2. DELIVERY AND PAYMENT. Delivery by the Company of the Firm Shares to be
purchased by the Underwriters and payment of the purchase price by certified or
official bank check payable in Indianapolis Clearing House (next day) funds to
the Company, shall take place at the offices of ____________
______________________________________________, at 10:00 a.m., Indianapolis
time, at such time and date, not later than the third (or, if the Firm Shares
are priced, as contemplated by Rule 15c6-1(c)under the Securities Exchange Act
of 1934, as amended (the "EXCHANGE ACT"), after 4:30 p.m., Washington, D.C.
time, the fourth) full business day following the first date that any of the
Shares are released by the Underwriters for sale to the public, as Xxxxx shall
designate by at least 48 hours prior notice to the Company (the "FIRM SHARES
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CLOSING DATE"); provided, however, that if the Prospectus (as defined in Section
4 below) is at any time prior to the Firm Shares Closing Date recirculated to
the public, the Firm Shares Closing Date shall occur upon the later of the third
or fourth, as the case the may be, full business day following the first date
that any of the Shares are released by the Underwriters for sale to the public
or the date that is 48 hours after the date that the Prospectus has been so
recirculated. To the extent the option with respect to the Optional Shares is
exercised, delivery by the Company of the Optional Shares, and payment of the
purchase price by certified or official bank check payable in Indianapolis
Clearing House (next day) funds to the Company, shall take place at the offices
of ________ specified above at the time and on the date (which may be the Firm
Shares Closing Date) specified in the notice referred to in Section l(c) (such
time and date of delivery and payment are called the "OPTIONAL SHARES CLOSING
DATE"). The Firm Shares Closing Date and the Optional Shares Closing Date are
called, individually, a "CLOSING DATE" and, collectively, the "CLOSING DATES."
Certificates representing the Firm Shares shall be registered in such names and
shall be in such denominations as Xxxxx shall request at least two full business
days before the Firm Shares Closing Date or, in the case of the Optional Shares,
on the day of notice of exercise of the option as described in Section l(c), and
shall be made available to Xxxxx for checking and packaging, at such place as is
designated by Xxxxx, at least one full business day before the Closing Date.
3. PUBLIC OFFERING. The Company understands that the Underwriters propose
to make a public offering of the Shares, as set forth in and pursuant to the
Prospectus, as soon after the Effective Date as Xxxxx deems advisable. The
Company hereby confirms that the Underwriters and dealers have been authorized
to distribute each preliminary prospectus and are authorized to distribute the
Prospectus (as from time to time amended or supplemented).
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents
and warrants to each of the Underwriters and agrees with each of the
Underwriters as follows:
(a) The Company has carefully prepared in conformity with the requirements
of the Securities Act of 1933, as amended (the "SECURITIES ACT") and
the rules and regulations adopted by the Securities and Exchange
Commission (the "COMMISSION") thereunder (the "RULES"), a registration
statement on Form SB-2 (Registration No. 333 - 31520), including a
preliminary prospectus, and has filed with the Commission the
registration statement and such amendments thereof as may have been
required to the date of this Agreement. Copies of such registration
statement (including all amendments thereof) and of the related
preliminary prospectus have heretofore been delivered by the Company
to you. The term "PRELIMINARY PROSPECTUS" means any preliminary
prospectus (as defined in Rule 430 of the Rules) included at any time
as a part of the registration statement. The registration statement as
amended (including any supplemental registration statement under Rule
462(b) or any amendment under Rule 462(c) of the Rules) at the time
and on the date it becomes effective (the "EFFECTIVE DATE"), including
the prospectus, financial statements, schedules, exhibits, and all
other documents incorporated by reference therein or filed as a part
thereof, is called the "REGISTRATION STATEMENT;" provided, however,
that "REGISTRATION
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STATEMENT" shall also include all Rule 430A Information (as defined
below) deemed to be included in such Registration Statement at the
time such Registration Statement becomes effective as provided by Rule
430A of the Rules. The term "PROSPECTUS" means the Prospectus as filed
with the Commission pursuant to Rule 424(b) of the Rules or, if no
filing pursuant to Rule 424(b) of the Rules is required, means the
form of final prospectus included in the Registration Statement at the
time such Registration Statement becomes effective. The term "RULE
430A INFORMATION" means information with respect to the Shares and the
offering thereof permitted to be omitted from the Registration
Statement when it becomes effective pursuant to Rule 430A of the
Rules. Reference made herein to any preliminary prospectus or to the
Prospectus shall be deemed to refer to and include any document
attached as an exhibit thereto or incorporated by reference therein,
as of the date of such preliminary prospectus or the Prospectus, as
the case may be. The Company will not file any amendment of the
Registration Statement or supplement to the Prospectus to which Xxxxx
shall reasonably object in writing after being furnished with a copy
thereof.
(b) Each preliminary prospectus, at the time of filing thereof, contained
all material statements which were required to be stated therein in
accordance with the Securities Act and the Rules, and conformed in all
material respects with the requirements of the Securities Act and the
Rules, and did not include any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. The
Commission has not issued any order suspending or preventing the use
of any preliminary prospectus. When the Registration Statement shall
become effective, when the Prospectus is first filed pursuant to Rule
424(b) of the Rules, when any post-effective amendment of the
Registration Statement shall become effective, when any supplement to
or pre-effective amendment of the Prospectus is filed with the
Commission and at each Closing Date, the Registration Statement and
the Prospectus (and any amendment thereof or supplement thereto) will
comply with the applicable provisions of the Securities Act and the
Exchange Act and the respective rules and regulations of the
Commission thereunder, and neither the Registration Statement nor the
Prospectus, nor any amendment thereof or supplement thereto, will
contain any untrue statement of a material fact or will omit to state
any material fact required to be stated therein or necessary in order
to make the statements therein, in light of the circumstances under
which they were made, not misleading; provided, however, that the
Company makes no representation or warranty as to the information
contained in the Registration Statement or the Prospectus or any
amendment thereof or supplement thereto in reliance upon and in
conformity with information furnished in writing to the Company by you
or any of the Underwriters, specifically for use in connection with
the preparation thereof.
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(c) All contracts and other documents required to be filed as exhibits to
the Registration Statement have been filed with the Commission as
exhibits to the Registration Statement.
(d) Xxxxx, Xxxxxx and Company LLP, on behalf of the Company and First
Bank, the Company's wholly-owned subsidiary (the "BANK"), whose report
is filed with the Commission as part of the Registration Statement,
are, and during the periods covered by its report were, independent
public accountants as required by the Securities Act and the Rules.
(e) Each of the Company and the Bank has been duly organized and is
validly existing as a corporation or banking corporation, as
applicable, under the laws of the State of Indiana. Neither the
Company nor the Bank has any properties or conducts any business
outside of the State of Indiana that would require either of them to
be qualified as a foreign corporation or bank, as the case may be, in
any jurisdiction outside of Indiana. Neither the Company nor the Bank
has any directly or indirectly held subsidiary other than the Bank.
The Company has all power, authority, authorizations, approvals,
consents, orders, licenses, certificates and permits needed to enter
into, deliver and perform this Agreement and to issue and sell the
Shares.
(f) No authorization, approval, consent, order, license, certificate or
permit of and from any federal, state, or local governmental or
regulatory official, body, or tribunal, is required for the Company or
the Bank to conduct their respective businesses and own their
respective properties as described in the Prospectus, except such
authorizations, approvals, consents, orders, licenses, certificates,
or permits as have been obtained by them or are not material to the
commencement or conduct of their respective businesses or to the
ownership of their respective properties.
(g) The financial statements of the Company and any related notes thereto,
included in the Registration Statement and the Prospectus, present
fairly the financial position of the Company as of the date of such
financial statements and for the period covered thereby. Such
statements and any related notes have been prepared in accordance with
generally accepted accounting principles applied on a consistent basis
and certified by the independent accountants named in subsection 4(d)
above. No other financial statements are required to be included in
the Prospectus or the Registration Statement.
(h) The Company and the Bank own adequate and enforceable rights to use
any patents, patent applications, trademarks, trademark applications,
service marks, copyrights, copyright applications and other similar
rights (collectively, "INTANGIBLES") necessary for the conduct of the
material aspects of their business as described in the Prospectus, and
neither the Company nor the Bank has infringed, is infringing, or has
received any notice of infringement of, any Intangible of any other
person.
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(i) The Company or the Bank owns its offices located in Morgantown and in
Trafalgar and has valid and enforceable leasehold interests in the
real property in which its branch facilities are located in Greenwood,
Bargersville, and Nashville, Indiana, which are as described in the
Prospectus and are, except as otherwise described in the Prospectus,
free and clear of all liens, encumbrances, claims, security interests
and defects except to the extent they would not have a material
adverse effect on commencement or conduct of the respective businesses
of the Company or the Bank or the ownership of their respective
properties.
(j) There are no litigation or governmental or other proceedings or
investigations pending before any court or before or by any public
body or board or threatened against the Company or the Bank, and to
the best of the Company's knowledge, there is no reasonable basis for
any such litigation, proceedings or investigations, which would have a
material adverse effect on commencement or conduct of the respective
businesses of the Company or the Bank or the ownership of their
respective properties.
(k) The Company and Bank have filed all federal, state, and local tax
returns required to be filed by them and paid all taxes shown due on
such returns as well as all other material taxes, assessments and
governmental charges which have become due; no material deficiency
with respect to any such return has been assessed or proposed.
(l) Subsequent to the respective dates as of which information is given in
the Registration Statement and the Prospectus, there has not been any
material adverse change in the condition (financial or other),
business, properties or prospects of the Company or the Bank.
(m) No default exists, and no event has occurred which with notice or
lapse of time, or both, would constitute a default, in the due
performance and observance of any material term, covenant or
condition, by the Company, the Bank or, to the best of the Company's
knowledge, any other party, of any lease, indenture, mortgage, note or
any other agreement or instrument to which the Company or the Bank is
a party or by which either of them or either of their businesses may
be bound or affected, except such defaults or events as are not
material to the commencement or conduct of their respective businesses
or ownership of their respective properties.
(n) Neither the Company nor the Bank is in violation of any term or
provision of the articles of incorporation, charter or bylaws of the
Company or the Bank. Neither the Company nor the Bank is in violation
of, nor is either of them required to take any action to avoid any
material violation of, any franchise, license, permit, judgment,
decree, order, statute, rule or regulation.
(o) Neither the execution, delivery or performance of this Agreement by
the Company nor the consummation of the transactions contemplated
hereby (including, without
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limitation, the issuance and sale by the Company of the Shares) will
give rise to a right to terminate or accelerate the due date of any
payment due under, or conflict with or result in the breach of any
term or provision of, or constitute a default (or an event which with
notice or lapse of time, or both, would constitute a default) under,
or require any consent under, or result in the execution or imposition
of any lien, charge or encumbrance upon any properties or assets of
the Company or the Bank pursuant to the terms of, any lease,
indenture, mortgage, note or other agreement or instrument to which
the Company or the Bank is a party or by which either of them or
either of their businesses may be bound or affected, or any franchise,
license, permit, judgment, decree, order, statute, rule or regulation
or violate any provision of the Articles of Incorporation or Bylaws of
the Company or the Bank, except those which are immaterial in amount
or effect.
(p) The Company has authorized capital stock as set forth in the
Prospectus. There are 664,512 shares of Common Stock of the Company
issued and outstanding. No shares of Preferred Stock are issued and
outstanding. The issuance, sale and delivery of the Shares have been
duly authorized by all necessary corporate action by the Company and,
when issued, sold and delivered against payment therefor pursuant to
this Agreement, will be duly and validly issued, fully paid and
nonassessable, and none of the Shares will have been issued in
violation of any preemptive or other right. There are no outstanding
options, warrants or other rights calling for the issuance of, and no
commitment, plan or arrangement to issue, any shares of stock of the
Company or the Bank or any security convertible into or exchangeable
for stock of the Company or the Bank, except for 108,000 shares of
Common Stock that will be issuable upon the exercise of outstanding
options granted under the Company's option plans. The Common Stock,
the Shares and the options conform to all statements in relation
thereto contained in the Registration Statement and the Prospectus.
(q) Subsequent to the respective dates as of which information is given in
the Registration Statement and the Prospectus, neither the Company nor
the Bank has (1) issued any securities or incurred any material
liability or obligation, direct or contingent, (2) entered into any
material transaction, or (3) declared or paid any dividend or made any
distribution on any of their stock, except for liabilities,
obligations, and transactions reasonably expected based on the
disclosures in the Prospectus.
(r) This Agreement has been duly and validly authorized, executed and
delivered by the Company and is the legal, valid and binding agreement
and obligation of the Company.
(s) The Commission has not issued any order preventing or suspending the
use of any preliminary prospectus.
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(t) Neither the Company, nor the Bank, nor, to the Company's knowledge,
any director, officer, agent, employee or other person associated with
the Company or the Bank, acting on behalf of the Company or the Bank,
has used any corporate funds for any unlawful contribution, gift,
entertainment or other unlawful expense relating to political
activity; made any direct or indirect unlawful payment to any foreign
or domestic government official or employee from corporate funds;
violated or is in violation of any provision of the Foreign Corrupt
Practices Act of 1977; or made any bribe, rebate, payoff, influence
payment, kickback or other unlawful payment.
(u) Neither the Company nor the Bank nor any affiliate of either of them
has taken, and they will not take, directly or indirectly, any action
designed to cause or result in, or which has constituted or which
might reasonably be expected to constitute, the stabilization or
manipulation of the price of the shares of the Common Stock in order
to facilitate the sale or resale of any of the Shares.
(v) No transaction has occurred between or among the Company or the Bank
and any of their officers, directors, organizers or the Company's
shareholder or any affiliate or affiliates of any such officer,
director, organizer, or shareholder, that is required to be described
in and is not described in the Prospectus.
(w) The Company is not and will not after the offering be an "investment
company," or a company "controlled" by an "investment company," within
the meaning of the Investment Company Act of 1940, as amended.
(x) The Company has obtained from each of its executive officers and
directors his or her written agreement that (i) for a period of 365
days from the date of the Effective Date, he or she will not offer to
sell, transfer, contract to sell, or grant any option for the sale of
or otherwise dispose of, directly or indirectly, any shares of Common
Stock of the Company (or any securities convertible into or
exercisable for such shares of Common Stock), except for (1) the
exercise of Stock Options under the Stock Option Plans or (2) gifts of
Common Stock (or other securities) to a donee or donees who agree in
writing to be bound by this clause, and (ii) for a period of three
years from the one-year anniversary of the Effective Date, he or she
will not sell, transfer, assign, pledge, or hypothecate in any one
twelve month period more than ten percent of the shares of Common
Stock owned by each such executive officer and director.
5. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS. The obligation of the
several Underwriters to purchase the Shares shall be subject to the accuracy of
the representations and warranties of the Company in this Agreement as of the
date of this Agreement and as of the Firm Shares Closing Date or Optional Shares
Closing Date, as the case may be, to the accuracy of the statements of Company
officers made pursuant to the provisions of this Agreement, to the performance
by the Company of its obligations under this Agreement, and to the following
additional terms and conditions:
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(a) The Registration Statement shall have become effective not later than
5:00 P.M., Indianapolis time, on the date of this Agreement or on such
later date and time as shall be consented to in writing by Xxxxx; if
the filing of the Prospectus, or any supplement thereto, is required
pursuant to Rule 424(b) of the Rules, the Prospectus shall have been
filed in the manner and within the time period required by Rule 424(b)
of the Rules; at each Closing Date, if any, no stop order shall have
been issued or proceedings therefor initiated or threatened by the
Commission; and any request of the Commission for inclusion of
additional information in the Registration Statement, or otherwise,
shall have been complied with to the reasonable satisfaction of Xxxxx.
(b) At each Closing Date, Xxxxx shall have received the opinion of Bose
XxXxxxxx & Xxxxx LLP, counsel for the Company, dated the Firm Shares
Closing Date or the Optional Shares Closing Date, as the case may be,
addressed to the Underwriters and in form and scope reasonably
satisfactory to counsel for Xxxxx to the effect that:
(i) Each of the Company and the Bank (A) is a corporation or
banking corporation, as applicable, duly organized and validly
existing under the laws of the State of Indiana, and (B) is not
required to be qualified to do business in any jurisdiction
outside Indiana, except where the failure to so qualify would
not have a material adverse effect on the Company or the Bank;
(ii) Each of the Company and the Bank has full corporate power and
authority and all material authorizations, approvals, orders,
licenses, certificates and permits of and from all governmental
regulatory officials and bodies necessary to own or lease their
respective properties and conduct their respective businesses
as described in the Registration Statement and Prospectus;
(iii) The Company has authorized capital stock as set forth in the
Prospectus; all shares of capital stock of the Company
(including the Shares) have been duly authorized and validly
issued; upon receipt by the Company of payment therefor in
accordance with the terms of this Agreement, the Shares and all
other shares of capital stock of the Company will be fully paid
and nonassessable and are not subject to preemptive rights; the
capital stock and Stock Options of the Company conform in all
material respects to the descriptions thereof contained in the
Registration Statement and the Prospectus;
(iv) The Company has no directly or indirectly held subsidiary other
than the Bank;
(v) The Company is the registered holder of all of the outstanding
capital stock of the Bank, and all such shares of stock so held
have been duly authorized
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and validly issued, fully paid and nonassessable and are owned
free and clear of any liens, encumbrances or other claims or
restrictions whatsoever, subject to the provisions of the
Indiana Financial Institutions Act;
(vi) The certificates evidencing the Shares are in the form approved
by the Board of Directors of the Company, comply with the
Bylaws and the Articles of Incorporation of the Company, and
comply as to form and in all other material respects with
applicable legal requirements;
(vii) This Agreement has been duly and validly authorized, executed
and delivered by the Company, and is the legal, valid and
binding agreement and obligation of the Company enforceable in
accordance with its terms, except (a) as enforcement thereof
may be limited by bankruptcy, insolvency, reorganization,
moratorium or other laws relating to or affecting enforcement
of creditors' rights or by general equity principles, whether
applied in an action at law or in equity, or by the
discretionary nature of specific performance, injunctive
relief, and other equitable remedies, including the appointment
of a receiver, and (b), with respect to provisions relating to
indemnification and contribution, to the extent they are held
by a court of competent jurisdiction to be void or
unenforceable as against public policy;
(viii) The Company is conveying to the Underwriters good and valid
title to the Shares, free and clear of any liens, encumbrances,
security interests, restrictions, and adverse claims;
(ix) To the best of such counsel's knowledge, after due inquiry,
there are (A) no contracts or other documents which are
required to be filed as exhibits to the Registration Statement
other than those filed as exhibits thereto, (B) no legal or
governmental proceedings pending or threatened against the
Company or the Bank, (C) no statutes or regulations applicable
to the Company or the Bank which are of a character required to
be disclosed in the Registration Statement and Prospectus which
have not been so disclosed and properly described therein, and
(D) no certificates, permits, grants or other consents,
approvals, orders, licenses or authorizations from regulatory
officials or bodies, which are required to be obtained or
maintained by the Company or the Bank and which are of a
character required to be disclosed in the Registration
Statement and Prospectus which have not been so disclosed and
properly described therein;
(x) The statements in the Registration Statement and the
Prospectus, insofar as they are descriptions of corporate
documents, stock option plans, contracts, agreements or other
documents specifically identified in the Registration Statement
or descriptions of laws, regulations, or regulatory
requirements, or refer to compliance with law or to statements
of law or legal conclusions, are correct in all material
respects;
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(xi) To the best of such counsel's knowledge, after due inquiry, the
execution, delivery and performance of this Agreement, the
consummation of the transactions herein contemplated and the
compliance with the terms and provisions hereof by the Company
will not give rise to a right to terminate or accelerate the
due date of any payment due under, or conflict with or result
in a breach of any of the terms or provisions of, or constitute
a default (or an event which, with notice or lapse of time, or
both, would constitute a default) under, or require any consent
under, or result in the execution or imposition of any lien,
charge or encumbrance upon any properties or assets of the
Company or the Bank pursuant to the terms of, any lease,
indenture, mortgage, note or other agreement or instrument to
which the Company or the Bank is a party or by which either of
them or either of their properties or businesses is or may be
bound or affected, nor will such action result in any violation
of the provisions of the articles of incorporation or bylaws of
the Company or the Bank or any statute or any order, rule, or
regulation applicable to the Company or the Bank of any court
or any federal, state, local or other regulatory authority or
other governmental body, the effect of which, in any such case,
would be expected to have a material adverse effect on the
Company or the Bank;
(xii) To the best of such counsel's knowledge, after due inquiry, no
consent, approval, authorization or order of any court or
governmental agency or body, domestic or foreign, is required
to be obtained by the Company in connection with the execution
and delivery of this Agreement or the sale of the Shares to the
Underwriters as contemplated by this Agreement, except such as
have been obtained;
(xiii) To the best of such counsel's knowledge, after due inquiry, (A)
neither the Company nor the Bank is in breach of, or in default
(and no event has occurred which, with notice or lapse of time,
or both, would constitute a default) under, any lease,
indenture, mortgage, note, or other agreement or instrument to
which the Company or the Bank is a party; or (B) neither the
Company nor the Bank is in violation of any term or provision
of either of their Articles of Incorporation or Bylaws, or of
any franchise, license, grant, permit, judgment, decree, order,
statute, rule or regulation; and (C) neither the Company nor
the Bank has received any notice of conflict with the asserted
rights of others in respect of Intangibles necessary for the
commencement or conduct of its business, the effect of which,
in any such case, would be expected to have a material adverse
effect on the Company or the Bank;
(xiv) The Registration Statement and the Prospectus and any
amendments or supplements thereto (other than financial
statement and notes, any related schedules or other financial
information contained in such Prospectus or
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amendment or supplement thereto, as to which such counsel need
express no opinion or belief) comply as to form in all material
respects with the requirements of the Securities Act and the
Rules; and
(xv) The Registration Statement is effective under the Securities
Act, and any required filing of the Prospectus pursuant to Rule
424(b) has been made in the manner and within the time period
required by Rule 424(b) and, to the best of such counsel's
knowledge, after due inquiry, no stop order suspending the
effectiveness of the Registration Statement or any
post-effective amendment to the Registration Statement and no
order directed at any document incorporated by reference in the
Registration Statement or the Prospectus or any amendment or
supplement thereto has been issued, and no proceedings for that
purpose have been instituted or threatened or are contemplated
by the Commission.
In rendering the foregoing opinion, such counsel may rely upon
certificates of public officials (as to matters of fact and law) and
officers of the Company (as to matters of fact), and include customary
qualifications in its opinion as are acceptable to Xxxxx Copies of all
such certificates shall be furnished to counsel to Xxxxx on the
Closing Date. In addition, such counsel shall state that they have
participated in conferences with officials of the Company and its
independent auditors, and representatives of the Underwriters and its
counsel at which the content of the Registration Statement and
Prospectus and related matters were discussed, and also had
discussions with such officials of the Company with a view toward a
clear understanding on their part of the requirements of the Act with
reference to the preparation of registration statements and
prospectuses. Such counsel did not independently verify the accuracy
or completeness of the statements made in the Registration Statement
and Prospectus; however, based on such counsel's examination of the
Registration Statement and the Prospectus and on its participation in
the above-mentioned conferences, nothing has come to the attention of
such counsel that gives them reason to believe that the Registration
Statement or Prospectus (other than financial statements and notes,
any related schedules or other financial information contained in such
Registration Statement or Prospectus as to which such counsel need
express no opinion or belief), at the time the Registration Statement
became effective, contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or that the
Prospectus (other than financial statement and notes, any related
schedules or other financial information contained in such Prospectus
or amendment or supplement thereto, as to which such counsel need
express no opinion or belief), as of the date of the opinion, contains
any untrue statement of a material fact or omits to state a material
fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
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(c) On or prior to each Closing Date, Xxxxx shall have been furnished such
documents, certificates and opinions as they may reasonably require
for the purpose of enabling them to review the matters referred to in
subsection (b) of this Section 5, and in order to evidence the
accuracy, completeness or satisfaction of the representations,
warranties or conditions herein contained.
(d) Prior to each Closing Date, (i) there shall have been no material
adverse change in the condition or prospects, financial or otherwise,
of the Company or the Bank; (ii) there shall have been no material
transaction, not in the ordinary course of business, entered into by
the Company or the Bank except as set forth in the Registration
Statement and Prospectus, other than transactions referred to or
contemplated therein or to which Xxxxx has given its written consent;
(iii) neither the Company nor the Bank shall be in default (nor shall
an event have occurred which, with notice or lapse of time, or both,
would constitute a default) under any provision of any material
agreement, understanding or instrument relating to any outstanding
indebtedness that is material in amount; (iv) no action, suit or
proceeding, at law or in equity, shall be pending or threatened
against the Company or the Bank before or by any court or Federal,
state or other commission, board or other administrative agency having
jurisdiction over the Company or the Bank, as the case may be, which
is expected to have a material adverse effect on the Company or the
Bank; and (v) no stop order shall have been issued under the
Securities Act and no proceedings therefor shall have been initiated
or be threatened by the Commission.
(e) At each Closing Date, Xxxxx shall have received a certificate signed
by the Chairman of the Board, the President, and the Treasurer of the
Company dated the Firm Shares Closing Date or Optional Shares Closing
Date, as the case may be, to the effect that the conditions set forth
in subsection (d) above have been satisfied and as to the accuracy, as
of the Firm Shares Closing Date or the Optional Shares Closing Date,
as the case may be, of the representations and warranties of the
Company set forth in Section 4 hereof.
(f) At or prior to each Closing Date, Xxxxx shall have received a "blue
sky" memorandum (upon which the Underwriters may rely) of Leagre
Xxxxxxxx & Xxxxxxx, counsel for Xxxxx, addressed to Xxxxx and in form
and scope reasonably satisfactory to Xxxxx concerning compliance with
the blue sky or securities laws of the states listed in Exhibit A
attached to this Agreement.
(g) All proceedings taken in connection with the sale of the Shares as
herein contemplated shall be reasonably satisfactory in form and
substance to Xxxxx and to counsel for Xxxxx, and Xxxxx shall have
received from counsel for Xxxxx a favorable opinion, dated as of each
Closing Date, with respect to such of the matters set forth under
Subsections (b) (i), (iii), (vi), (vii), and (xv) of this Section 5,
and with respect to such other related matters as Xxxxx may require,
if the failure to receive a favorable opinion with respect to such
other related matters would cause Xxxxx to deem it inadvisable to
proceed with the sale of the Shares.
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(h) There shall have been duly tendered to Xxxxx certificates representing
all the Shares agreed to be sold by the Company on the Firm Shares
Closing Date or the Optional Shares Closing Date, as the case may be.
(i) No order suspending the sale of the Shares prior to each Closing Date,
in any jurisdiction listed in Exhibit A, shall have been issued on the
Firm Shares Closing Date or the Optional Shares Closing Date, as the
case may be, and no proceedings for that purpose shall have been
instituted or, to Xxxxx'x knowledge or that of the Company, shall be
contemplated.
(j) The NASD, upon review of the terms of the public offering of the
Shares, shall not have objected to the Underwriters' participation in
the same. If any condition to the Underwriters' obligations hereunder
to be fulfilled prior to or at the Firm Shares Closing Date or the
Optional Shares Closing Date, as the case may be, is not so fulfilled,
Xxxxx may terminate this Agreement pursuant to Section 9(c) hereof or,
if Xxxxx so elects, waive any such conditions which have not been
fulfilled or extend the time of their fulfillment.
6. COVENANTS. The Company covenants and agrees that it will:
(a) Use its best efforts to cause the Registration Statement to become
effective and will notify Xxxxx immediately, and confirm the notice in
writing, (i) when the Registration Statement and any post-effective
amendment thereto becomes effective, (ii) of the issuance by the
Commission of any stop order or of the initiation, or the threatening,
of any proceedings for that purpose and (iii) of the receipt of any
comments from the Commission. The Company will make every reasonable
effort to prevent the issuance of a stop order, and, if the Commission
shall enter a stop order at any time, the Company will make every
reasonable effort to obtain the lifting of such order at the earliest
possible moment.
(b) During the time when a prospectus is required to be delivered under
the Securities Act, comply so far as it is able with all requirements
imposed upon it by the Securities Act, as now and hereafter amended,
and by the Rules, as from time to time in force, so far as necessary
to permit the continuance of sales of or dealings in the Shares. If at
any time when a prospectus relating to the Shares is required to be
delivered under the Securities Act any event shall have occurred as a
result of which, in the reasonable opinion of counsel for the Company
or counsel for Xxxxx, the Registration Statement or Prospectus as then
amended or supplemented includes an untrue statement of a material
fact or omits to state any material fact required to be stated therein
or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend or supplement the Registration
Statement or Prospectus to comply with the Securities Act, the Company
will notify Xxxxx promptly and prepare and file with the Commission an
appropriate amendment or supplement in form
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satisfactory to Xxxxx The cost of preparing, filing and delivering
copies of such amendment or supplement shall be paid by the Company.
(c) Deliver to the Underwriters such number of copies of each preliminary
prospectus as may reasonably be requested by them and, as soon as the
Registration Statement, or any amendment or supplement thereto,
becomes effective, deliver to them three signed copies of the
Registration Statement, including exhibits, and all post-effective
amendments thereto and deliver to the Underwriters such number of
copies of the Prospectus, the Registration Statement and supplements
and amendments thereto, if any, without exhibits, as they may
reasonably request.
(d) Endeavor in good faith, in cooperation with Xxxxx and its counsel, at
or prior to the time the Registration Statement becomes effective, to
qualify the Shares for offering and sale under the securities laws
relating to the offering or sale of the Shares of the states listed in
Exhibit A. In each jurisdiction where such qualification shall be
effected, the Company will, unless Xxxxx agrees that such action is
not at the time necessary or advisable, file and make such statements
or reports at such times as are or may reasonably be required by the
laws of such jurisdiction. The Company will advise Xxxxx promptly of
the suspension of the qualification of the Shares for offering, sale
or trading in any jurisdiction, or any initiation or threat of any
proceeding for such purpose, and in the event of the issuance of any
order suspending such qualification, the Company, with the cooperation
of Xxxxx, will use all reasonable efforts to obtain the withdrawal
thereof.
(e) Furnish its security holders as soon as practicable an earnings
statement (which need not be certified by independent certified public
accountants unless required by the Securities Act or the Rules)
covering a period of at least twelve months beginning after the
effective date of the Registration Statement, which shall satisfy the
provisions of Section 11(a) of the Securities Act and the Rules
thereunder.
(f) For a period of five years from the Effective Date, furnish to its
shareholders annual audited and quarterly unaudited consolidated
financial statements with respect to the Company including balance
sheets and income statements.
(g) For a period of five years from the Effective Date, furnish to Xxxxx
the following:
(i) at the time they have been sent to shareholders of the Company
or filed with the Commission one copy of each annual,
quarterly, interim, or current financial and other report or
communication sent by the Company to its shareholders or filed
with the Commission;
(ii) as soon as practicable, one copy of every press release and
every material news item and article in respect of the Company
or the affairs of the Company which was released by the
Company; and
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(iii) all other information reasonably requested by Xxxxx with
respect to the Company to comply with Rule 15c2-11 of the Rules
and Section 4 of Schedule H of the NASD By-Laws.
(h) In all material respects apply the net proceeds from the offering in
the manner set forth under "Use of Proceeds" in the Prospectus.
(i) Not file any amendment or supplement to the Registration Statement or
Prospectus after the effective date of the Registration Statement to
which Xxxxx shall reasonably object in writing after being furnished a
copy thereof.
(j) Comply with all registration, filing and reporting requirements of the
Securities Act or the Exchange Act, which may from time to time be
applicable to the Company.
(k) Cause its Shares to be listed on the NASDAQ SmallCap Market System and
use commercially reasonable efforts to maintain such listing for not
fewer than five years.
(l) Pay, or reimburse if paid by the Underwriters, whether or not the
transactions contemplated hereby are consummated or this Agreement is
terminated, all costs and expenses incident to the performance of the
obligations of the Company under this Agreement, including those
relating to (1) the preparation, printing, filing and delivery of the
Registration Statement, including all exhibits thereto, each
preliminary prospectus, the Prospectus, all amendments of and
supplements to the Registration Statement and the Prospectus, and the
printing of the Underwriting Agreement and related agreements
including, without limitation, the Dealer Agreement; (2) the issuance
of the Shares and the preparation and delivery of certificates for the
Shares to the Underwriters; (3) the registration or qualification of
the Shares for offer and sale under the securities or "blue sky" laws
of the various jurisdictions referred to in Exhibit A, including the
fees and disbursements of counsel in connection with such registration
and qualification and the preparation and printing of preliminary,
supplemental, and final blue sky memoranda; (4) the furnishing
(including costs of shipping and mailing) to the Underwriters of
copies of each preliminary prospectus, the Prospectus and all
amendments of or supplements to the Prospectus, and of the several
documents required by this Section to be so furnished; (5) the filing
requirements and fees of the NASD in connection with its review of the
terms of the public offering and the underwriting; (6) the furnishing
(including costs of shipping and mailing) of copies of all reports and
information required by Section 6(g); (7) all transfer taxes, if any,
with respect to the sale and delivery of the Shares by the Company to
the Underwriters, (8) the inclusion of the Shares for listing, on the
NASDAQ SmallCap Market System; and (9) the Underwriters' out-of-pocket
expenses, including without limitation, road show expenses and legal
fees of counsel to Xxxxx.
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(m) Not, without the prior written consent of Xxxxx, sell, contract to
sell or grant any option for the sale of or otherwise dispose of,
directly or indirectly, or register with the Commission, any shares of
Common Stock of the Company (or any securities convertible into or
exercisable for such shares of Common Stock) within 150 days after the
date of the Prospectus, except as provided in this Agreement and
except for grants and exercises of Stock Options under the Stock
Option Plans as described in the Prospectus.
(n) For not less than three fiscal years after the Effective Date,
maintain the Exchange Act registration of the Common Stock, unless the
Company's shareholders direct the Company to deregister the Common
Stock.
7. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless each of the
Underwriters and each person, if any, who controls any of the
Underwriters within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act against any and all losses, claims,
damages and liabilities, joint or several (including any reasonable
investigation, legal and other expenses incurred in connection with,
and any amount paid in settlement of, any action, suit or proceeding
or any claim asserted), to which they may become subject under the
Securities Act, the Exchange Act or other Federal or state statutory
law or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact
contained in any preliminary prospectus, the Registration Statement or
the Prospectus or any amendment thereof or supplement thereto, or
arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided,
however, that such indemnity shall not inure to the benefit of the
Underwriters (or any person controlling the Underwriters) on account
of any losses, claims, damages or liabilities arising from the sale of
the Shares in the public offering to any person by the Underwriters if
such untrue statement or omission or alleged untrue statement or
omission was made in such preliminary prospectus, the Registration
Statement or the Prospectus, or such amendment or supplement, in
reliance upon and in conformity with information furnished in writing
to the Company by or on behalf of the Underwriters specifically for
use therein. The Company shall not be liable hereunder to the
Underwriters (or any controlling person thereof) to the extent that
any loss, claim, damage or other liability incurred by the
Underwriters arises from the Underwriters' fraudulent act or omission.
(b) Each of the Underwriters, severally, but not jointly, agrees to
indemnify and hold harmless the Company, each person, if any, who
controls the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, each director of the
Company and each officer of the Company who signs the Registration
Statement, to the same extent as the foregoing indemnity from the
Company to the
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Underwriters, but only insofar as such losses, claims, damages or
liabilities arise out of or are based upon any untrue statement or
omission or alleged untrue statement or omission which was made in any
preliminary prospectus, the Registration Statement or the Prospectus,
or any amendment thereof or supplement thereto, in reliance upon and
in conformity with information furnished in writing to the Company by
the Underwriters specifically for use therein; provided, however, that
the obligation of the Underwriters to indemnify the Company (including
any controlling person, director or officer thereof) hereunder shall
be limited to the total underwriting discount applicable to the Shares
purchased by the Underwriters hereunder. The Underwriters shall not be
liable hereunder to the Company (including any controlling person,
director or officer thereof) to the extent that any loss, claim,
damage or other liability incurred by the Company arises from a
fraudulent act or omission by the Company.
(c) Any party that proposes to assert the right to be indemnified under
this Section will, promptly after receipt of notice of commencement of
any action, suit or proceeding against such party in respect of which
a claim is to be made against an indemnifying party or parties under
this Section, notify each such indemnifying party of the commencement
of such action, suit or proceeding, enclosing a copy of all papers
served, but the omission so to notify such indemnifying party of any
such action, suit or proceeding shall not relieve it from any
liability that it may have to any indemnified party otherwise than
under this Section. In case any such action, suit or proceeding shall
be brought against any indemnified party and it shall notify the
indemnifying parties of the commencement thereof, the indemnifying
party shall be entitled to participate in, and, to the extent that it
shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party, and after notice from the
indemnifying party to such indemnified party of its election so to
assume the defense thereof and the approval by the indemnified party
of such counsel, the indemnifying party shall not be liable to such
indemnified party for any legal or other expenses, except as provided
below and except for the reasonable costs of investigation
subsequently incurred by such indemnified party in connection with the
defense thereof. The indemnified party shall have the right to employ
its counsel in any such action, but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless (1)
the employment of counsel by such indemnified party has been
authorized in writing by the indemnifying parties, (2) the indemnified
party shall have reasonably concluded that, because of the existence
of different or additional defenses available to the indemnified party
or of other reasons, there may be a conflict of interest between the
indemnifying parties and the indemnified party in the conduct of the
defense of such action (in which case the indemnifying parties shall
not have the right to direct the defense of such action on behalf of
the indemnified party), or (3) the indemnifying parties shall not have
employed counsel to assume the defense of such action within a
reasonable time after notice of the commencement thereof, in each of
which cases the fees and expenses of counsel shall be at the expense
of the indemnifying parties. An indemnifying party shall not
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be liable for any settlement of any action, suit, proceeding or claims
effected without its written consent.
8. CONTRIBUTION. In order to provide for just and equitable contribution
in circumstances in which the indemnification provided for in Section 7(a) or
7(b) is due in accordance with its terms but for any reason is held to be
unavailable, the Company and the several Underwriters shall contribute to the
aggregate losses, claims, damages and liabilities (including any investigation,
legal and other expenses reasonably incurred in connection with, and any amount
paid in settlement of, any action, suit or proceeding or any claims asserted,
but after deducting any contribution received from other persons), to which the
Company and the Underwriters may be subject, in such proportion so that the
Underwriters are responsible for that portion represented by the percentage that
the underwriting discount appearing on the front cover page of the Prospectus
bears to the public offering price appearing thereon and the Company is
responsible for the balance; provided, however, that (a) in no case shall the
Underwriters be responsible for any amount in excess of the underwriting
discount applicable to the Shares purchased by the Underwriters hereunder and
(b) no person found guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was guilty of such fraudulent misrepresentation. For purposes of
this Section, each person, if any, who controls the Underwriters within the
meaning of the Securities Act or the Exchange Act shall have the same rights to
contribution as the Underwriters, and each person, if any, who controls the
Company within the meaning of the Securities Act or the Exchange Act, each
officer of the Company who shall have signed the Registration Statement and each
director of the Company shall have the same rights to contribution as the
Company, subject in each case to clauses (a) and (b) of this Section. Any party
entitled to contribution will, promptly after receipt of notice of commencement
of any action, suit or proceeding against such party in respect of which a claim
for contribution may be made against another party or parties under this
Section, notify such party or parties from whom contribution may be sought, but
the omission so to notify such party or parties from whom contribution may be
sought shall not relieve the party or parties from whom contribution may be
sought from any other obligation it or they may have hereunder or otherwise than
under this Section. No party shall be liable for contribution with respect to
any action, suit, proceeding or claim settled without its written consent.
In any proceeding relating to the Registration Statement, any preliminary
prospectus, the Prospectus or any supplement thereto or amendment thereof, each
party against whom contribution may be sought under this Section 8 hereby
consents to the jurisdiction of any court in Indiana, agrees that process
issuing from such court may be served upon him or it by any other contributing
party and consents to the service of such process and agrees that any other
contributing party may join him or it as an additional defendant in any such
proceeding in which such other contributing party is a party.
9. TERMINATION. This Agreement may be terminated by Xxxxx by notifying
the Company at any time:
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(a) before the earlier of (1) 11:00 a.m., Indianapolis time, on the
business day following the Effective Date, or (2) the time when the
Shares are first generally offered by the Underwriters to dealers by
letter or telegram;
(b) at or before any Closing Date if, in the judgment of Xxxxx, payment
for and delivery of the Shares is rendered impracticable or
inadvisable because (1) additional material governmental restrictions,
not known to be in force and effect when this Agreement is signed,
shall have been imposed upon trading in securities generally or
minimum or maximum prices shall have been generally established on the
New York Stock Exchange, on the American Stock Exchange or on the
over-the-counter market, or trading in securities generally shall have
been suspended on either such Exchange or on the over-the-counter
market or a general banking moratorium shall have been established by
federal, New York or Indiana authorities, (2) a war or other calamity
shall have occurred or shall have accelerated to such an extent as to
affect adversely the marketability of the Shares, (3) the Company or
the Bank shall have sustained a material loss by fire, flood,
accident, hurricane, earthquake, theft, sabotage or other calamity or
malicious act, which, whether or not said loss shall have been
insured, will in Xxxxx'x opinion, make it inadvisable to proceed with
the offering of the Shares, (4) there shall have been such material
change in the condition, business operations or prospects of the
Company or the market for the Shares or similar securities as in
Xxxxx'x judgment would make it inadvisable to proceed with the
offering of the Shares; or
(c) at or before any Closing Date, if any of the conditions specified in
Section 5 or any other agreements, representations or warranties of
the Company in this Agreement shall not have been fulfilled when and
as required by this Agreement. If this Agreement is terminated
pursuant to any of its provisions, except as otherwise provided in
this Agreement, the Company shall not be under any liability to the
Underwriters (other than for obligations assumed in Section 6 hereof),
and the Underwriters shall not be under any liability to the Company;
provided, however, that if this Agreement is terminated by Xxxxx
because of any failure, refusal or inability on the part of the
Company to comply with the terms or to fulfill any of the conditions
of this Agreement, or for any reasons provided in subparagraphs (b)
and (c) of this Section 9, the Company will reimburse the Underwriters
for all accountable out-of-pocket expenses (including, without
limitation, road show expenses and fees and disbursements of counsel
to Xxxxx).
10. REPRESENTATIONS AND AGREEMENTS TO SURVIVE DELIVERY. All
representations, warranties and agreements contained in this Agreement shall be
deemed to be representations, warranties and agreements at the Closing Dates,
and such representations, warranties and agreements of the Company, including,
without limitation, the payment and reimbursement agreements contained in
Section 6 hereof and the indemnity and contribution agreements contained in
Sections 7 and 8 hereof, shall remain operative and in full force and effect
regardless of any investigation made by or on behalf of the Underwriters or any
controlling person
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and shall survive termination of this Agreement and/or delivery of the Shares to
and payment for the Shares by the Underwriters pursuant to this Agreement.
11. MISCELLANEOUS. This Agreement has been and is made for the benefit of
the several Underwriters, the Company and their respective successors and
assigns, and, to the extent expressed herein, for the benefit of persons
controlling the Underwriters or the Company, and directors and certain officers
of the Company and their respective successors and assigns, and no other person,
partnership, association or corporation shall acquire or have any right under or
by virtue of this Agreement. The term "SUCCESSORS AND ASSIGNS" shall not include
any purchaser of Shares from the Underwriters merely because of such purchase.
If any action or proceeding shall be brought by the Underwriters or the
Company in order to enforce any right or remedy under this Agreement, the
Underwriters and the Company hereby consent to, and agree that they will submit
to, the jurisdiction of the courts of the State of Indiana and of any Federal
court sitting in the State of Indiana.
All notices and communications hereunder shall be in writing and mailed or
delivered or by telephone or facsimile, if subsequently confirmed in writing, to
Xxxxx, at 000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxxxx, Xxxxxxx 00000,
Attention: Xxxx X. Xxxxx, Senior Vice President and Syndicate Manager (phone no.
(000-000-0000; facsimile no. (317-633-1739) (with a copy to Xxxx X. Xxxxxx,
Leagre Xxxxxxxx & Xxxxxxx LLP, 1400 First Indiana Plaza, 000 Xxxxx Xxxxxxxxxxxx
Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000 (facsimile number (317-808-3100)); and to
the Company at X.X. Xxx 000, Xxxxxxxxx, Xxxxxxx 00000, Attention: Xxxxx Xxxxx,
President (facsimile No. 317-882-5903) (with a copy to Xxxxx X. Xxxxxxx and Xxxx
X. Xxxxxx, Bose XxXxxxxx & Xxxxx LLP, 2700 First Indiana Plaza, 000 X.
Xxxxxxxxxxxx Xx., Xxxxxxxxxxxx, Xxxxxxx 00000 (facsimile number 317-684-5173).
This Agreement shall be construed in accordance with the laws of the state
of Indiana, without giving effect to principles of conflicts of laws. Please
confirm that the foregoing correctly sets forth the agreement between us.
Very truly yours,
FIRST SHARES BANCORP, INC.
By:_____________________________________
Xxxxx Xxxxx, President and Director
Confirmed by Xxxxx X. Xxxxx & Company
acting severally on behalf of itself and
the other several Underwriters named in
Schedule I hereto
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XXXXX X. XXXXX & COMPANY
By:_____________________________________
Xxxx X. Xxxx, Executive Vice President
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SCHEDULE I
UNDERWRITING AGREEMENT DATED _____________, 2000
NUMBER OF
FIRM SHARES
UNDERWRITER TO BE PURCHASED
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EXHIBIT A
BLUE SKY STATES
Florida Missouri
Illinois New Jersey
Indiana New York
Kentucky Ohio
Michigan Pennsylvania
Minnesota Wisconsin
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