EXHIBIT 10.1
PURCHASE AGREEMENT
among
Pinnacle Capital Trust I,
Issuer
Pinnacle Bancshares, Inc.,
Sponsor
and
BEAR, XXXXXXX & CO. INC.
Initial Purchaser
Dated as of December 16, 2003
PURCHASE AGREEMENT, dated as of December 16, 2003 (this "Agreement"),
among Pinnacle Capital Trust I, a statutory trust created under the laws of the
State of Delaware (the "Issuer"), Pinnacle Bancshares, Inc., a Delaware
corporation, as Sponsor under the Trust Agreement, as defined below (the
"Sponsor" and, together with the Issuer, the "Trust Parties"), and Bear, Xxxxxxx
& Co. Inc., as initial purchaser (the "Initial Purchaser").
WHEREAS, the Issuer proposes to issue U.S. $3,000,000 Trust Preferred
Securities Due January 7, 2034 (the "Securities');
WHEREAS, the Securities will be issued pursuant to an Amended and
Restated Declaration of Trust to be dated as of December 22, 2003 (the "Trust
Agreement"), among Pinnacle Bancshares, Inc., as Sponsor, Xxxxx Fargo Bank,
National Association, as Institutional Trustee, Xxxxx Fargo Delaware Trust
Company, as Delaware Trustee, and the Administrators named therein;
WHEREAS, the Issuer has agreed not later than December 22, 2003 (the
"Closing Date"), to provide the Initial Purchaser with a copy of the Trust
Agreement and any other documents required to be delivered pursuant to the terms
hereof or the Trust Agreement;
WHEREAS, the Issuer will use the proceeds from the sale of the
Securities to purchase Debentures (as defined in the Trust Agreement); and
WHEREAS, capitalized terms used herein but not otherwise defined herein
shall have the meaning ascribed thereto in the Trust Agreement.
NOW IT IS HEREBY AGREED as follows:
1. PURCHASE AND SALE.
(a) On the terms and subject to the conditions of this
Agreement and in reliance upon the representations and warranties herein set
forth, the Issuer agrees to sell to the Initial Purchaser, and the Initial
Purchaser agrees to purchase from the Issuer, on the Closing Date referred to
below, the Securities in the aggregate principal amount of $3,000,000 less the
applicable discount as set forth in the Flow of Funds Memorandum of even date
herewith.
(b) The Securities shall be issued and sold free from all
liens, charges and encumbrances, equities and other third party rights of any
nature whatsoever, together with all rights of any nature.
2. CLOSING. On the Closing Date, delivery of and payment for
the Securities shall be made at the offices of Bear, Xxxxxxx & Co. Inc., and or
such other location or locations as shall be mutually acceptable to the parties
hereto. Delivery of the Securities shall be made against payment of the purchase
price therefor to the order of the Issuer in same day funds by transfer to an
account designated by the Issuer or by such other means in same day funds as
shall be acceptable to the Initial Purchaser. Such payment shall be made upon
authorization from the Initial Purchaser (such authorization to be given if the
conditions to the Initial Purchaser's obligations set forth herein are either
satisfied or waived) against delivery of the
Securities. The Securities will be in the form requested by the Initial
Purchaser in accordance with the terms of the Trust Agreement.
3. PAYMENT OF EXPENSES. The Sponsor agrees to pay all costs
and expenses incident to the performance of the obligations of the Sponsor and
the Trust under this Purchase Agreement, whether or not the transactions
contemplated herein are consummated or this Purchase Agreement is terminated,
including all costs and expenses incident to (i) the authorization, issuance,
sale and delivery of the Securities and any taxes payable in connection
therewith; (ii) the fees and expenses of qualifying the Securities under the
securities laws of applicable jurisdictions, and (iii) the fees and expenses of
the counsel, the accountants and any other experts or advisors retained by the
Sponsor or the Trust.
Notwithstanding the foregoing, if the sale of the Securities
provided for in this Purchase Agreement is not consummated because any condition
set forth herein to be satisfied by either the Sponsor or the Trust is not
satisfied, because this Purchase Agreement is terminated pursuant to Section 9
or because of any failure, refusal or inability on the part of the Sponsor or
the Trust to perform all obligations and satisfy all conditions on its part to
be performed or satisfied hereunder other than by a reason of a default by the
Initial Purchaser, the Sponsor will reimburse the Initial Purchaser upon demand
for all reasonable out-of-pocket expenses (including the fees and all reasonable
expenses of Potter Xxxxxxxx & Xxxxxxx LLP, special Delaware counsel retained by
the Trust, which fees and expenses shall not exceed $4,000 and Xxxxxxxxx &
Xxxxxxxxx, L.L.P., special counsel retained by the Initial Purchaser, which fees
and expenses shall not exceed $10,000) that shall have been incurred by the
Initial Purchaser in connection with the proposed purchase and sale of the
Securities. The Sponsor shall not in any event be liable to the Purchaser for
the loss of anticipated profits from the transactions contemplated by this
Purchase Agreement.
4. REPRESENTATIONS AND WARRANTIES. Each Trust Party hereby
represents, warrants and agrees to and with the Initial Purchaser that, as of
the Closing Date, and as to itself only and not as to the other:
(a) with respect to the Issuer, it is duly formed and validly
existing under the laws of the State of Delaware and, with respect to the
Sponsor, and its significant subsidiaries (as defined in Rule 1-02 of Regulation
S-X) (the "Significant Subsidiaries"), each is duly organized, validly existing
and in good standing under the laws of the jurisdiction of its organization, in
each case, with all requisite power and authority to own or transfer, as
applicable, the Debentures, to conduct its business as required under the Trust
Agreement, this Agreement or any other documents relating to or otherwise in
connection with the issue and sale of the Securities (collectively, the
"Transaction Documents") and to perform its obligations hereunder and under each
Transaction Document, and is lawfully qualified to do business and is in good
standing in those jurisdictions in which it conducts business and where the
failure to be so qualified or in good standing would have a material adverse
effect on the business or financial condition of such Trust Party or would
otherwise be material in context of the issuance of the Securities;
(b) this Agreement has been duly authorized, executed and
delivered by such Trust Party and constitutes, and each of the Transaction
Documents to which such Trust Party is a party has been duly authorized by such
Trust Party and, when duly executed and delivered by
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the other parties thereto, on the Closing Date, will constitute, legal, valid
and binding obligations of such Trust Party, except as such obligations may be
limited by bankruptcy, insolvency, reorganization and other similar laws
affecting the rights of creditors generally and the application of general
equitable principles (regardless of whether the issue of enforceability is
considered in a proceeding in equity or at law);
(c) all outstanding shares of capital stock of the Significant
Subsidiaries have been duly authorized and validly issued and are fully paid and
nonassessable except to the extent such shares may be deemed assessable under 12
U.S.C. Section 1831o or 12 USC Section 55;
(d) neither the Issuer nor the Sponsor nor any of the
Significant Subsidiaries is in breach or violation of, or default under, with or
without notice or lapse of time or both, its corporate charter, bylaws or other
governing documents (including without limitation, the Trust Agreement);
(e) with respect to the Issuer, on the Closing Date, the
Securities have been duly authorized by the Issuer and, when duly executed,
authenticated, issued and delivered in accordance with the Trust Agreement
against payment therefor as contemplated herein, will be validly issued and
represent undivided beneficial interests in the assets of the Trust, entitled to
the benefits provided by the Trust Agreement;
(f) with respect to the Issuer, no consent, approval,
authorization, order, registration or qualification of or with any court or
governmental agency or body is required for the issue, sale or delivery of the
Securities, except for those which have been obtained and are in full force and
effect, and no consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body is required
for the consummation of the other transactions contemplated by the Transaction
Documents, except for those which have been obtained and are in full force and
effect, and except where the failure to obtain such consent, approval,
authorization, order, registration or qualification would not have a material
adverse effect on the business or financial condition of the Issuer and would
not be material in the context of the issuance of the Securities;
(g) the execution and delivery of the Transaction Documents,
the issue of the Securities and the consummation of the other transactions
contemplated by the Transaction Documents (and compliance with the terms
thereof) do not and will not conflict with or result in a breach of any of the
terms or provisions of, or constitute a default under the organizational
documents of such Trust Party; and the execution and delivery of the Transaction
Documents, the issue of the Securities and the consummation of the other
transactions contemplated by the Transaction Documents (and compliance with the
terms thereof) do not and will not conflict with or result in a breach of any
indenture, trust deed, mortgage or other agreement or instrument to which such
Trust Party is a party or by which it or any of its properties is bound, or
infringe any existing applicable law, rule, regulation, judgment, order or
decree of any government, governmental body or court, domestic or foreign,
having jurisdiction over such Trust Party or any of its properties, except for
such conflicts, breaches, defaults or infringements that would not have a
material adverse effect on the business or financial condition of such Trust
Party and would not be material in the context of the issuance of the
Securities;
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(h) there are no pending actions, suits or proceedings against
or affecting such Trust Party or any of its properties and, to the best of such
Trust Party's knowledge, no such suits or proceedings are threatened or
contemplated that individually or in aggregate could reasonably be expected to
have a material adverse effect on the Issuer's issuance of the Securities;
(i) no event has occurred which, had the applicable Purchased
Securities already been issued, would reasonably be expected to (whether or not
with the giving of notice and/or the passage of time and/or the fulfillment of
any other requirement) constitute an Event of Default;
(j) the Trust Agreement does not require qualification under
the U.S. Trust Indenture Act of 1939, as amended;
(k) neither the Issuer nor any affiliate of the Issuer nor any
person acting on behalf thereof has made offers or sales of the Securities under
circumstances that would require the registration of the Securities under the
U.S. Securities Act of 1933, as amended (the "Securities Act");
(l) the Issuer is not an "investment company" as defined in
the U.S. Investment Company Act of 1940, as amended;
(m) with respect to the Issuer, any taxes, fees and other
governmental charges in connection with the execution and delivery of this
Agreement and any Transaction Document or the execution, delivery and sale of
the Securities have been or will be paid on or prior to the Closing Date;
(n) there are no contracts, agreements or understandings
between any of the Trust Parties or any affiliate thereof and any person
granting such person the right to require the Issuer to file a registration
statement under the Securities Act, with respect to any Securities owned or to
be owned by such person; and
(o) the sale of the Securities pursuant to this Agreement is
exempt from the registration and prospectus delivery requirements of the
Securities Act. In the case of each offer or sale of Securities, no form of
general solicitation or general advertising was used by the Issuer or its
representatives, including, but not limited to, advertisements, articles,
notices or other communications published in any newspaper, magazine or similar
medium or broadcast over television or radio, or any seminar or meeting whose
attendees have been invited by any general solicitation or general advertising.
Neither the Issuer nor any person acting on its behalf (other than the Initial
Purchaser) has offered or sold, nor will the Issuer or any person acting on its
behalf (other than the Initial Purchaser) offer or sell directly or indirectly,
any Securities or any other security in any manner that, assuming the accuracy
of the representations and warranties and the performance of the covenants given
by the Initial Purchaser, would render the issuance and sale of any of the
Securities as contemplated hereby a violation of Section 5 of the Securities Act
or the registration or qualification requirements of any state securities laws,
nor has the Issuer authorized, nor will it authorize, any person to act in such
manner.
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5. UNDERTAKINGS BY THE ISSUER. The Issuer agrees with the
Initial Purchaser as follows:
(a) Neither the Issuer, nor any of its affiliates nor any
person authorized to act on its behalf, will engage in any directed selling
efforts with respect to the Securities to any U.S. Person except pursuant to an
exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act. Terms used in this paragraph have the
meanings given to them by Regulation S under the Securities Act.
(b) Neither the Issuer, nor any of its affiliates nor any
person authorized to act on its behalf, will make offers or sales of Securities
under circumstances that would require the registration of the Securities under
the Securities Act.
(c) For so long as any of the Securities are outstanding and
are "restricted securities" within the meaning of Rule 144A, the Issuer will
provide or cause to be provided to any holder of Securities and any prospective
purchaser of the Securities designated by such a holder, upon the request of
such holder or prospective purchaser, the information required to be provided to
such holder or prospective purchaser by Rule 144A(d)(4).
6. SELLING RESTRICTIONS. The Initial Purchaser represents and
warrants to the Issuer that:
(a) It understands that the Securities have not been and will
not be registered under the Securities Act and may not be offered or sold within
the United States except pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the Securities Act. It has not
offered or sold, and will not offer or sell, the Securities within the United
States except to persons whom it reasonably believes to be Qualified
Institutional Buyers (as defined in Rule 144A under the Securities Act),
institutional Accredited Investors (as defined in Rule 501(a)(1), (2), (3) or
(7) under the Securities Act) or to certain persons in transactions outside the
United States in accordance with Regulation S under the Securities Act. In
connection with any offer or sale in the United States or to or for the benefit
of a U.S. Person, it will take reasonable steps to ensure that the purchaser of
such Securities is aware that such offer or sale is being made in reliance on
Rule 144A or Regulation D in a manner that would not require registration of the
Securities under the Securities Act or any blue sky law of any State and that
future transfers of the Securities may not be made except in compliance with
applicable securities laws.
(b) Neither it nor any person acting on its behalf has engaged
or will engage in any form of general solicitation or general advertising (as
those terms are used in Rule 502(c) of Regulation D) in connection with any
offer or sale of the Securities in the United States.
(c) It will not offer or sell the Securities outside the
United States, except in accordance with the representations described herein
and the restrictions set forth below:
It has offered and sold the Securities, and will offer and sell the
Securities, during the applicable Distribution Compliance Period (as
defined in Rule 902 of Regulation S), only in accordance with Rule 903
or 904 of Regulation S under the Securities Act. Accordingly, it
represents and agrees that neither it, nor any of its
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affiliates nor any person acting on its or their behalf has engaged or
will engage in any directed selling efforts with respect to the
Securities, and that it and they have complied and will comply with the
offering restriction requirements of Regulation S. It agrees that, at
or prior to the confirmation of sale of Securities, it shall have sent
to each distributor, dealer or person receiving a selling concession,
fee or other remuneration that purchases the Securities through it
during the applicable Distribution Compliance Period a confirmation or
notice of substantially the following effect:
"The Securities offered hereby have not been registered under
the U.S. Securities Act of 1933 (the "Securities Act") and may
not be offered or sold within the United States or to, or for
the account or benefit of, U.S. Persons (i) as part of their
distribution at any time or (ii) until forty calendar days
after the later of the commencement of the offering of the
Securities or the Closing Date, to persons other than the
Initial Purchaser or other distributors in reliance on
Regulation S, except in either case in accordance with
Regulations S, Rule 144A, Regulation D or other exemptive
provisions under the Securities Act. Terms used above have the
meanings given to them by Regulation S."
(d) It acknowledges that no action has been or will be taken
by the Issuer or any other person that would permit the offer or sale of the
Securities in any jurisdiction where action to implement such offer or sale of
the Securities is required. The Initial Purchaser shall not offer or sell any
Securities in any jurisdiction except in compliance with applicable law, and the
Initial Purchaser agrees, at its own expense, to comply with all such laws. The
Initial Purchaser shall at its own expense obtain any consent, approval or
authorization required for it to offer or sell the Securities under the laws or
regulations of any jurisdiction where it proposes to make offers or sales of
Securities.
7. CONDITIONS PRECEDENT. The obligations of the Initial
Purchaser hereunder shall be subject to the accuracy of the representations and
warranties of each Trust Party contained herein as of the date hereof, and, as
of the Closing Date (as if made on the Closing Date), to the accuracy of the
statements of each Trust Party made in any certificates delivered pursuant
hereto on such date, to the performance by each Trust Party of its obligations
hereunder, and to the following additional conditions:
(a) The Issuer shall have obtained all governmental
authorizations required in connection with the issue and sale of the Securities
and the performance of its obligations hereunder and under the Transaction
Documents to which it is a party.
(b) Each Trust Party shall have furnished to the Initial
Purchaser a certificate of such Trust Party signed by, in the case of the Trust,
an Administrator and, in the case of the Sponsor, the principal executive,
financial or accounting officer, dated the Closing Date, to the effect that such
signatory has examined this Agreement and that the representations and
warranties of such party in this Agreement are true and correct in all material
respects on and as of the Closing Date with the same effect as if made on the
Closing Date, and such party has
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performed all its obligations and satisfied all the conditions on its part to be
satisfied at or prior to the Closing Date.
(c) The Trust Parties shall have furnished to the Initial
Purchaser the opinions of counsel for the Trust Parties, dated the Closing Date,
in substantially the form set out in Annex A and Annex B hereto, in a form
reasonably acceptable to the Initial Purchaser.
(d) The conditions precedent to the performance by the Issuer
of its obligations under the Trust Agreement shall have been satisfied or
waived.
(e) Prior to the Closing Date, the Issuer shall furnish to the
Initial Purchaser such further information, certificates and documents as the
Initial Purchaser may reasonably request.
If any of the conditions specified in this Section 7 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates referred to in or contemplated by
this Agreement shall not be in all material respects reasonably satisfactory in
form and substance to the Initial Purchaser and its counsel, this Agreement and
all obligations of the Initial Purchaser hereunder may be canceled by the
Initial Purchaser at, or at any time prior to, the Closing Date. Notice of such
cancellation shall be given to the Issuer in writing or by telephone or
facsimile confirmed in writing.
8. INDEMNIFICATION.
(a) Each Trust Party agrees, jointly and severally, to
indemnify and hold harmless the Initial Purchaser and each person, if any, who
controls the Initial Purchaser within the meaning of the Securities Act, or the
U.S. Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the
respective affiliates, officers, directors and employees of the Initial
Purchaser and each such person (and each and all referred to in Section 8(b) as
an "indemnified party"), against any losses, claims, damages or liabilities,
joint or several, to which the Initial Purchaser or such controlling person and
the respective affiliates, officers, directors and employees of the Initial
Purchaser and each such person may become subject, under the Securities Act, the
Exchange Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are connected with
the execution and delivery by such Trust Party, and the consummation by such
Trust Party of the transactions contemplated by, this Agreement or any other
Transaction Document. Each Trust Party agrees, jointly and severally, to
reimburse the Initial Purchaser and each such affiliate, officer, director,
employee or controlling person for any legal or other expenses reasonably
incurred by the Initial Purchaser and each such affiliate, officer, director,
employee or controlling person in connection with investigating or defending any
such loss, claim, damage, liability or action arising out of or being connected
with the execution and delivery by such Trust Party, and the consummation by
such Trust Party of the transactions contemplated by, this Agreement or the
other Transaction Documents. This indemnity agreement will be in addition to any
liability that any of the Trust Parties may otherwise have.
(b) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect
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thereof is to be made against the indemnifying party under this Section 8,
notify the indemnifying party of the commencement thereof; but the omission
and/or delay to so notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party unless such omission and/or
delay caused actual prejudice to the indemnifying party; in case any such action
is brought against any indemnified party, and it notified the indemnifying party
of the commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may elect by written notice, to
assume the defense thereof, with counsel satisfactory to such indemnified party,
and after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party will not be
liable to such indemnified party under this Section 8 for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation. Counsel provided
by the indemnifying party may represent the indemnifying party as well as all
indemnified parties hereunder subject to the following provisions.
Notwithstanding anything to the contrary contained herein, such indemnified
party may continue any such action on its own at its own expense. If the
defendants in any action include both the indemnified party and the indemnifying
party and the indemnified party shall have reasonably concluded that there may
be legal defenses available to it and/or other indemnified parties that are
different from or additional to or in conflict with those available to the
indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. The reasonable fees and expenses of such separate counsel for the
indemnified party shall be paid by the indemnifying party. The indemnifying
party may avoid its duty to indemnify under this Section 8 if the indemnified
party, without the prior written consent of the indemnifying party (which
consent shall not be unreasonably withheld), effects any settlement or
compromise of, or consents to the entry of any judgment in, any pending or
threatened action in respect of which any indemnifying party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party unless such settlement includes an unconditional release of such
indemnifying party from all liability on any claims that are the subject matter
of such action. The indemnifying party shall not be liable for any settlement of
any claim affected without its consent.
9. TERMINATION. This Purchase Agreement shall be subject to
termination in the absolute discretion of the Initial Purchaser, by notice given
to the Sponsor and the Trust prior to delivery of and payment for the
Securities, if prior to such time (i) a downgrading shall have occurred in the
rating accorded the Sponsor's debt securities or preferred stock by any
"nationally recognized statistical rating organization," as that term is used by
the Commission in Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act, or such
organization shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of the Sponsor's debt
securities or preferred stock, (ii) the Trust shall be unable to sell and
deliver to the Purchaser at least 3,000,000 stated liquidation value of
Securities, (iii) the Sponsor or any of its subsidiaries that is an insured
depository institution shall cease to be "adequately-capitalized" within the
meaning of 12 U.S.C. Section 1831 and applicable regulations adopted thereunder,
or any formal administrative or judicial action is taken by any appropriate
federal banking agency against the Sponsor or any such insured subsidiary for
unsafe and unsound banking practices, or violations of law, (iv) a suspension or
material limitation in trading in securities generally shall have occurred on
the New York Stock Exchange, (v) a suspension or material limitation in trading
in any of the Sponsor's securities shall have occurred
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on the exchange or quotation system upon which the Sponsor's securities are
traded, if any, (vi) a general moratorium on commercial banking activities shall
have been declared either by federal or Delaware authorities or (vii) there
shall have occurred any outbreak or escalation of hostilities, or declaration by
the United States of a national emergency or war or other calamity or crisis,
including acts of terrorism, the effect of which on financial markets is such as
to make it, in the Initial Purchaser's judgment, impracticable or inadvisable to
proceed with the offering or delivery of the Securities.
10. SURVIVAL OF REPRESENTATIONS AND OBLIGATIONS. The
representations, warranties, agreements and undertakings in this Agreement shall
continue in full force and effect despite completion of the arrangements for the
purchase and issue of the Securities or any investigation made by or on behalf
of the Initial Purchaser.
11. NOTICES.
(a) Any communication shall be given by letter or facsimile,
in the case of notices to the Issuer, to it at:
Pinnacle Capital Trust I
c/o Pinnacle Bancshares, Inc.
0000 0xx Xxxxxx
Xxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxx, Xx.
in the case of notices to the Sponsor, to it at:
Pinnacle Bancshares, Inc.
0000 0xx Xxxxxx
Xxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxx, Xx.
and in the case of notices to the Initial Purchaser, to it at:
Bear, Xxxxxxx & Co. Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: 000-000-0000
Attention: Asset Backed Securities
(b) Any such communication shall take effect, in the case of a
letter, at the time of delivery and in the case of telex, at the time of
dispatch.
(c) Any communication not by telex shall be confirmed by
letter but failure to send or receive the letter of confirmation shall not
invalidate the original communication.
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12. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York without reference
to its conflict of laws provisions.
13. JURISDICTION. Each of the parties hereto hereby
irrevocably submits to the non-exclusive jurisdiction of any New York State or
United States federal court sitting in The City and County of New York over any
suit, action or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby which is brought by the Initial Purchaser, the
Issuer or the Sponsor and irrevocably waives, to the fullest extent it may
effectively do so, any objection which it may now or hereafter have to the
laying of venue of any such proceeding.
14. NO BANKRUPTCY PETITION. The Initial Purchaser covenants
and agrees that, prior to the date which is one year and one day after the
payment in full of all Securities issued by the Issuer, it will not institute
against, or join any other Person in instituting against, the Issuer any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
or other proceedings under any Federal or state bankruptcy or similar law. The
provisions of this Section shall survive termination of this Agreement for any
reason whatsoever.
15. SUCCESSORS. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and
assigns, and no other person will have any right or obligations hereunder.
16. COUNTERPARTS. This Agreement may be executed 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 Agreement.
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IN WITNESS WHEREOF, this Agreement has been entered into as of the date
hereinabove set forth.
Pinnacle Bancshares, Inc.
By:____________________________________________
Name:__________________________________________
Title:_________________________________________
Pinnacle Capital Trust I
By: Pinnacle Bancshares, Inc., as Sponsor
By:____________________________________________
Name:__________________________________________
Title:_________________________________________
BEAR, XXXXXXX & CO. INC., as Initial
Purchaser
By:____________________________________________
Name:__________________________________________
Title:_________________________________________
(4) Austin\129277
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