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EXHIBIT 1
UNDERWRITING AGREEMENT
1,500,000 SHARES
BLUE RIVER BANCSHARES, INC.
COMMON STOCK
UNDERWRITING AGREEMENT
_____________________, 1998
▇▇▇▇▇ Capital Management
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
Blue River Bancshares, Inc., an Indiana corporation (the"COMPANY"),
proposes to issue and sell 1,500,000 shares (the "FIRM SHARES") of its
authorized but unissued Common Stock (the "COMMON STOCK") to ▇▇▇▇▇ Capital
Management, a division of First Chicago Capital Markets, Inc. ("▇▇▇▇▇" or
"UNDERWRITER"). In addition, the Company proposes to grant to the Underwriter an
option to purchase up to an additional 225,000 shares (the "OPTIONAL SHARES") to
cover over-allotments. The Firm Shares and the Optional Shares are called,
collectively, the "SHARES."
1. SALE AND PURCHASE OF THE SHARES.
(a) On the basis of the representations, warranties and agreements of the
Company contained in, and subject to the terms and conditions of, this
Agreement, the Company agrees to issue and sell to the Underwriter,
and the Underwriter agrees to purchase the Firm Shares at a purchase
price of $11.16 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
Underwriter will offer to sell to each of the persons named in a list
provided by the Company to the Underwriter (who may purchase alone or
with family members to the extent permitted by the Free-Riding and
Withholding Interpretation (the "INTERPRETATION") under the Rules of
Fair Practice of the National Association of Securities Dealers, Inc.
(the "NASD") the number of Shares set forth opposite their respective
names on the list. To the
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extent such persons (alone or with such members) buy such Shares, the
Underwriter agrees to purchase up to 183,333 of the Shares at a
purchase price of $11.52 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 Underwriter's 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 Underwriter an option to purchase
all or any part of the Optional Shares at a price per Share of
$________. The over-allotment option may be exercised only to cover
over-allotments in the sale of the Firm Shares by the Underwriter and
may be exercised in whole or in part at any time or times on or before
12:00 noon, Detroit time, on the day before the Firm Shares Closing
Date (as defined in Section 2 below), and only once at any time after
that date and within 30 days after the Effective Date (as defined in
Section 4 below), in each case upon written or transmitted facsimile
notice, or verbal notice confirmed by transmitted facsimile, written
or telegraphic notice, by ▇▇▇▇▇ to the Company no later than 12:00
noon, Detroit time, on the day before the Firm Shares Closing Date or
at least three but not more than five full business days before the
Optional Shares Closing Date (as defined in Section 2 below), as the
case may be, setting forth the number of Optional Shares to be
purchased and the time and date (if other than the Firm Shares Closing
Date) of such purchase.
2. DELIVERY AND PAYMENT. Delivery by the Company of the Firm Shares to
▇▇▇▇▇ and payment of the purchase price by certified or official bank check
payable in Detroit Clearing House (next day) funds to the Company, shall take
place at the offices of ▇▇▇▇▇ Capital Management, ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, at 10:00 a.m., Detroit 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 Underwriter for sale
to the public, as ▇▇▇▇▇ shall designate by at least 48 hours prior notice to the
Company (the "FIRM SHARES CLOSING DATE"); provided, however, that if the
Prospectus (as defined in Section 4 below) is at any time prior to the Firm
Shares Closing Date recirculated to the public, the Firm Shares Closing Date
shall occur upon the later of the third or fourth, as the case the may be, full
business day following the first date that any of the Shares are released by the
Underwriter for sale to the public or the date that is 48 hours after the date
that the Prospectus has been so recirculated. To the extent the option with
respect to the Optional Shares is exercised, delivery by the Company of the
Optional Shares, and payment of the purchase price by certified or official bank
check payable in Detroit Clearing House (next day) funds to the Company,
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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 ▇▇▇▇▇
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 ▇▇▇▇▇
for checking and packaging, at such place as is designated by ▇▇▇▇▇, at least
one full business day before the Closing Date.
3. PUBLIC OFFERING. The Company understands that the Underwriter proposes
to make a public offering of the Shares, as set forth in and pursuant to the
Prospectus, as soon after the Effective Date as ▇▇▇▇▇ ▇▇▇▇▇ advisable. The
Company hereby confirms that the Underwriter and dealers have been authorized to
distribute each preliminary prospectus and are authorized to distribute the
Prospectus (as from time to time amended or supplemented).
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents
and warrants to the Underwriter and agree with the Underwriter 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 (No. 333 - 48269), including a preliminary
prospectus, and has filed with the Commission the registration
statement and such amendments thereof as may have been required to the
date of this Agreement. Copies of such registration statement
(including all amendments thereof) and of the related preliminary
prospectus have heretofore been delivered by the Company to you. The
term "PRELIMINARY PROSPECTUS" means any preliminary prospectus (as
defined in Rule 430 of the Rules) included at any time as a part of
the registration statement. The registration statement as amended
(including any supplemental registration statement under Rule 462(b)
or any amendment under Rule 462(c) of the Rules) at the time and on
the date it becomes effective (the "EFFECTIVE DATE"), including the
prospectus, financial statements, schedules, exhibits, and all other
documents incorporated by reference therein or filed as a part
thereof, is called the "REGISTRATION STATEMENT"; provided, however,
that "REGISTRATION STATEMENT" shall also include all Rule 430A
Information (as defined below) deemed to be included in such
Registration Statement at the time such Registration Statement becomes
effective as provided by Rule 430A of the Rules. The term "PROSPECTUS"
means the Prospectus as filed with the Commission pursuant to Rule
424(b) of the Rules or, if no filing pursuant to Rule 424(b) of the
Rules is required, means the form of final
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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 ▇▇▇▇▇
shall reasonably object in writing after being furnished with a copy
thereof.
(b) Each preliminary prospectus, at the time of filing thereof, contained
all material statements which were required to be stated therein in
accordance with the Securities Act and the Rules, and conformed in all
material respects with the requirements of the Securities Act and the
Rules, and did not include any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. The
Commission has not issued any order suspending or preventing the use
of any preliminary prospectus. When the Registration Statement shall
become effective, when the Prospectus is first filed pursuant to Rule
424(b) of the Rules, when any post-effective amendment of the
Registration Statement shall become effective, when any supplement to
or pre-effective amendment of the Prospectus is filed with the
Commission and at each Closing Date, the Registration Statement and
the Prospectus (and any amendment thereof or supplement thereto) will
comply with the applicable provisions of the Securities Act and the
Exchange Act and the respective rules and regulations of the
Commission thereunder, and neither the Registration Statement nor the
Prospectus, nor any amendment thereof or supplement thereto, will
contain any untrue statement of a material fact or will omit to state
any material fact required to be stated therein or necessary in order
to make the statements therein, in light of the circumstances under
which they were made, not misleading; provided, however, that the
Company makes no representation or warranty as to the information
contained in the Registration Statement or the Prospectus or any
amendment thereof or supplement thereto in reliance upon and in
conformity with information furnished in writing to the Company by the
Underwriter, specifically for use in connection with the preparation
thereof.
(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.
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(d) Deloitte & Touche LLP, whose report is filed with the Commission as
part of the Registration Statement, is, and during the periods covered
by its report was, an independent public accountant as required by the
Securities Act and the Rules.
(e) The Company has been duly organized and is validly existing as a
corporation under the laws of the State of Indiana. The Company does
not have any properties or conduct any business outside of the State
of Indiana which would require it to be qualified as a foreign
corporation in any jurisdiction outside of Indiana. The Company does
not have any directly or indirectly held subsidiaries. The Company has
all power, authority, authorizations, approvals, consents, orders,
licenses, certificates and permits needed to enter into, deliver and
perform this Agreement and to issue and sell the Shares.
(f) The Company intends to use proceeds from the public offering to
acquire Shelby County Savings Bank, FSB, headquartered in
Shelbyville, Indiana (the "Bank") as described in the Prospectus. The
Company's H-(e)1 Application to the OTS as filed on March 20, 1998 to
become a unitary savings and loan holding company and acquire all
issued capital stock of the Bank (the "APPLICATION") was approved on
______________, 1998 (the "Approval"), subject to certain conditions
specified in the Approval. All conditions in the Approval required to
be satisfied before the date of this Agreement have been satisfied.
The Application, at the time of its filing, contained all required
information and such information was complete and accurate in all
material respects. Other than the remaining conditions to be
fulfilled under the the Approval specified above, 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 to conduct its
business and own its properties as described in the Prospectus,
except such authorizations, approvals, consents, orders, licenses,
certificates, or permits as are not material to the commencement or
conduct of business or to the ownership of its 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 owns adequate and enforceable rights to use any patents,
patent applications, trademarks, trademark applications, service
marks, copyrights, copyright applications and other similar rights
(collectively, "INTANGIBLES")
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necessary for the conduct of the material aspects of its business as
described in the Prospectus and the Company has not infringed, is not
infringing, and has not received any notice of infringement of, any
Intangibles of any other person.
(i) The Company does not own any real property.
(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 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 business
of the Company or its ownership of property.
(k) The Company has filed all federal, state, and local tax returns
required to be filed by it 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. A valid
election with respect to the taxation of the Company under Subchapter
S of the Internal Revenue code of 1986, as amended, as been
continuously in effect with respect to the Company from _____________,
19__, through ______________, 1998. The voluntary revocation of such
status [will be/has been] made by the Company and its shareholders
effective _____________, 1998, and the related election not to prorate
income and loss between the S and C corporation periods will be made
effective as of _______________, 1998.
(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.
(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, 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 is a party or by which it
or its businesses may be bound or affected, except such defaults or
events as are not material to the commencement or conduct of its
business or ownership of its properties.
(n) The Company is not in violation of any term or provision of the
articles of incorporation or bylaws of the Company. The Company is not
in violation of, nor is it required to take any action to avoid any
material violation of, any franchise, license, permit, judgment,
decree, order, statute, rule or regulation.
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(o) Neither the execution, delivery or performance of this Agreement by
the Company nor the consummation of the transactions contemplated
hereby (including, without limitation, the issuance and sale by the
Company of the Shares) will give rise to a right to terminate or
accelerate the due date of any payment due under, or conflict with or
result in the breach of any term or provision of, or 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 pursuant to
the terms of, any lease, indenture, mortgage, note or other agreement
or instrument to which the Company is a party or by which it or its
business 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,
except those which are immaterial in amount or effect.
(p) The Company has authorized capital stock as set forth in the
Prospectus. 90,000 shares of Common Stock of the Company are issued
and outstanding, which will be redeemed at or prior to the Closing if
permitted by applicable law. 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 them will have been issued in violation of
any preemptive or other right. There is no outstanding option, warrant
or other right calling for the issuance of, and no commitment, plan or
arrangement to issue, any share of stock of the Company or any
security convertible into or exchangeable for stock of the Company,
except for the stock options described in the Registration Statement
(the "STOCK OPTIONS") granted under the Company's 1997 Key Employee
Stock Option Plan and 1997 Directors' Stock Option Plan (collectively,
the "STOCK OPTION PLANS"). The Common Stock, the Shares and the Stock
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, the Company has not (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 its stock, except for the following: incurring
liabilities and obligations, and entering transactions reasonably
expected to be incurred or entered into based on the disclosures in
the Prospectus; the redemption of shares of Common Stock at or
promptly following the Closing as described in subparagraph (p) if
permitted by applicable law; and in connection with the revocation of
the S corporation election as contemplated by subparagraph (k) above.
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(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.
(t) Neither the Company, nor, to the Company's knowledge, any director,
officer, agent, employee or other person associated with the Company,
acting on behalf of the Company, 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 any affiliate of the Company 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 and any of
its 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 all of its executive officers and
directors their written agreement that (i) for a period of 180 days
from the date of the Effective Date, they will not offer to sell,
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
months from the date of the Effective Date, they will not sell,
transfer, assign, pledge, or hypothecate any shares of Common Stock
acquired under Section 1(b), above, except with respect to the 90,000
shares held by Messrs. ▇▇▇▇, ▇▇▇▇ and
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▇▇▇▇▇▇▇, which shares will be redeemed by the Company as described in
the Registration Statement.
5. CONDITIONS OF THE UNDERWRITER'S OBLIGATIONS. The obligation of the
Underwriter to purchase the Shares shall be subject to the accuracy of the
representations and warranties of the Company in this Agreement as of the date
of this Agreement and as of the Firm Shares Closing Date or Optional Shares
Closing Date, as the case may be, to the accuracy of the statements of Company
officers made pursuant to the provisions of this Agreement, to the performance
by the Company of its obligations under this Agreement, and to the following
additional terms and conditions:
(a) The Registration Statement shall have become effective not later than
5:00 P.M., Detroit time, on the date of this Agreement or on such
later date and time as shall be consented to in writing by ▇▇▇▇▇ ; 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 ▇▇▇▇▇
(b) At each Closing Date, ▇▇▇▇▇ shall have received the opinion of ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Company, dated the Firm
Shares Closing Date or the Optional Shares Closing Date, as the case
may be, addressed to the Underwriter and in form and scope reasonably
satisfactory to counsel for ▇▇▇▇▇ to the effect that:
(i) The Company (A) is a corporation 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;
(ii) The Company 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
its properties and conduct its business as described in the
Registration Statement and Prospectus;
(iii) The Company has authorized capital stock as set forth in the
Prospectus and, prior to the Closing, had 90,000 shares of
Common Stock issued and outstanding; the Shares have been
duly authorized and validly issued and, upon receipt by the
Company of payment therefor in accordance with the
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terms of this Agreement, will be fully paid and
nonassessable and are not subject to preemptive
rights; the Shares and the other capital stock and Stock
Options of the Company conform in all material respects to
the descriptions thereof contained in the Registration
Statement and the Prospectus;
(iv) To such counsel's knowledge, after due inquiry, the Company
has no directly or indirectly held subsidiaries;
(v) Upon the consummation of the Company's acquisition of the
Bank as described in the Registration Statement, the Company
will be the registered holder of all of the outstanding
capital stock of the Bank, and all such shares of stock so
held will be duly authorized and validly issued, fully paid
and nonassessable and will be owned free and clear of any
liens, encumbrances or other claims or restrictions
whatsoever, subject to the provisions of the Banking Code;
(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 Underwriter 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, and (C) no statutes or regulations
applicable to the Company or certificates, permits, grants
or other consents, approvals, orders, licenses or
authorizations
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from regulatory officials or bodies, which are required to
be obtained or maintained by the Company 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;
(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
pursuant to the terms of, any lease, indenture, mortgage,
note or other agreement or instrument to which the Company
is a party or by which it or its properties or business 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 any statute or any
order, rule, or regulation applicable to the Company 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 to the Company;
(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 Underwriter as contemplated by this
Agreement, except such as have been obtained;
(xiii) To the best of such counsel's knowledge, after due inquiry,
(A) the Company is not 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 is a party; or (B) the Company is not
in violation of any term or
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provision of its articles of incorporation or bylaws, or of
any franchise, license, grant, permit, judgment, decree,
order, statute, rule or regulation; and (C) the Company has
not 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;
(xiv) The Registration Statement and the Prospectus and any
amendments or supplements thereto (other than the financial
statements as to which no opinion need be rendered) 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 ▇▇▇▇▇ Copies of all
such certificates shall be furnished to counsel to ▇▇▇▇▇ 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 Underwriter 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
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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.
(c) On or prior to each Closing Date, ▇▇▇▇▇ 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; (ii) there shall have been no material transaction,
not in the ordinary course of business, entered into by the Company
except as set forth in the Registration Statement and Prospectus,
other than transactions referred to or contemplated therein or to
which ▇▇▇▇▇ has given its written consent; (iii) the Company shall not
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 before or by any court or
Federal, state or other commission, board or other administrative
agency having jurisdiction over the Company which is expected to have
a material adverse effect on the Company; 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, ▇▇▇▇▇ 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, ▇▇▇▇▇ shall have received a "blue
sky" memorandum (upon which ▇▇▇▇▇ may rely) of Leagre ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇, counsel for ▇▇▇▇▇ , addressed to ▇▇▇▇▇ and in form and scope
reasonably satisfactory to ▇▇▇▇▇ concerning compliance with the blue
sky or securities laws of the states listed in Exhibit A attached to
this Agreement.
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(g) All proceedings taken in connection with the sale of the Shares as
herein contemplated shall be reasonably satisfactory in form and
substance to ▇▇▇▇▇ and to counsel for ▇▇▇▇▇ , and ▇▇▇▇▇ shall have
received from counsel for ▇▇▇▇▇ 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 ▇▇▇▇▇ may require,
if the failure to receive a favorable opinion with respect to such
other related matters would cause ▇▇▇▇▇ to deem it inadvisable to
proceed with the sale of the Shares.
(h) There shall have been duly tendered to ▇▇▇▇▇ 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 Roney's knowledge or that of the Company, shall be
contemplated.
(j) The NASD, upon review of the terms of the public offering of the
Shares, shall not have objected to the Underwriter's participation in
the same. If any condition to the Underwriter's obligations hereunder
to be fulfilled prior to or at the Firm Shares Closing Date or the
Optional Shares Closing Date, as the case may be, is not so fulfilled,
▇▇▇▇▇ may terminate this Agreement pursuant to Section 9(c) hereof or,
if ▇▇▇▇▇ 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 ▇▇▇▇▇ 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
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15
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
▇▇▇▇▇ , 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
▇▇▇▇▇ promptly and prepare and file with the Commission an appropriate
amendment or supplement in form satisfactory to ▇▇▇▇▇ The cost of
preparing, filing and delivering copies of such amendment or
supplement shall be paid by the Company.
(c) Deliver to the Underwriter such number of copies of each preliminary
prospectus as may reasonably be requested by ▇▇▇▇▇ and, as soon as the
Registration Statement, or any amendment or supplement thereto,
becomes effective, deliver to the Underwriter three signed copies of
the Registration Statement, including exhibits, and all post-effective
amendments thereto and deliver to the Underwriter such number of
copies of the Prospectus, the Registration Statement and supplements
and amendments thereto, if any, without exhibits, as ▇▇▇▇▇ may
reasonably request.
(d) Endeavor in good faith, in cooperation with ▇▇▇▇▇ 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 ▇▇▇▇▇ 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 ▇▇▇▇▇ 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 , 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.
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16
(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 ▇▇▇▇▇
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;
(iii) all other information reasonably requested by ▇▇▇▇▇ 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; and
(iv) such additional documents and information with respect to
the Company and its affairs as may from time to time
reasonably request.
(h) Acquire all of the Bank's outstanding capital stock, free and clear of
all liens, encumbrances, or other claims or restrictions whatsoever,
with the proceeds of the offering as described in the Registration
Statement and, in all other 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 ▇▇▇▇▇ 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) Use reasonable efforts to comply with the requirements of, and satisfy
the conditions of, the Approval; provided, however, that it shall not
be a breach of this Section 6(l) for the Company or the Bank to fail
to maintain any specified level of capital, surplus, capital ratio,
valuation reserve or financial or operating performance after the Bank
has commenced the business of banking if such failure is waived or
performance of such requirement or condition is accepted as sufficient
by the appropriate regulatory agencies.
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17
(l) Pay, or reimburse if paid by the Underwriter, whether or not the
transactions contemplated hereby are consummated or this Agreement is
terminated, all costs and expenses incident to the performance of the
obligations of the Company under this Agreement, including those
relating to (1) the preparation, printing, filing and delivery of the
Registration Statement, including all exhibits thereto, each
preliminary prospectus, the Prospectus, all amendments of and
supplements to the Registration Statement and the Prospectus, and the
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 Underwriter; (3) the registration or qualification of
the Shares for offer and sale under the securities or "blue sky" laws
of the various jurisdictions referred to in Exhibit 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 Underwriter of copies
of each preliminary prospectus, the Prospectus and all amendments of
or supplements to the Prospectus, and of the several documents
required by this Section to be so furnished; (5) the filing
requirements and fees of the NASD in connection with its review of the
terms of the public offering and the underwriting; (6) the furnishing
(including costs of shipping and mailing) of copies of all reports and
information required by Section 6(g); (7) all transfer taxes, if any,
with respect to the sale and delivery of the Shares by the Company to
the Underwriter, and (8) the listing of the Shares for quotation on
the Nasdaq Smallcap Market.
(m) Promptly reimburse ▇▇▇▇▇ for its out-of-pocket expenses, including
without limitation, road show expenses and legal fees of counsel to
▇▇▇▇▇ (such reimbursement shall not exceed $50,000) if the public
offering is not commenced and completed for any reason unless the
offering is not completed because of the Underwriter's refusal (except
for bona fide reasons related to the Company or its officers,
directors, employees or agents or market conditions) or inability to
perform, including without limitation (i) the failure of the Company
to consummate the proposed acquisition of the Bank substantially on
the agreed terms and substantially on the agreed timetable, regardless
of fault, (ii) the discovery of information being discovered in the
course of the investigation by ▇▇▇▇▇ which is materially adverse when
compared with information provided as of the date hereof, and (iii)
market conditions. Upon a successful completion of the Offering, if
the Underwriter purchases all the Optional Shares, the Underwriter
will pay the Company the amount of $10,000 in partial reimbursement
for offering expenses incurred by the Company.
(n) Not, without the prior written consent of ▇▇▇▇▇ , 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
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18
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.
(o) For not less than 3 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.
(p) Use its best efforts to consummate the acquisition of the Bank as
described in the Prospectus and cause itself and the Bank to commence
their businesses as described in the Prospectus not later than
__________________________, 1998.
(q) Not, for one year after the Effective Date, issue any stock options to
purchase Common Stock under either of the Stock Option Plans, or any
other stock option plan of the Company, that have an exercise price of
less than $12.00 per share.
7. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless the Underwriter and
each person, if any, who controls the Underwriter within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act
against any and all losses, claims, damages and liabilities, joint or
several (including any reasonable investigation, legal and other
expenses incurred in connection with, and any amount paid in
settlement of, any action, suit or proceeding or any claim asserted),
to which they may become subject under the Securities Act, the
Exchange Act or other Federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, damages or
liabilities arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in any
preliminary prospectus, the Registration Statement or the Prospectus
or any amendment thereof or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that such
indemnity shall not inure to the benefit of the Underwriter (or any
person controlling the Underwriter) on account of any losses, claims,
damages or liabilities arising from the sale of the Shares in the
public offering to any person by the Underwriter if such untrue
statement or omission or alleged untrue statement or omission was made
in such preliminary prospectus, the Registration Statement or the
Prospectus, or such amendment or supplement, in reliance upon and in
conformity with information furnished in writing to the Company by or
on behalf of the Underwriter specifically for use therein. The Company
shall not be liable hereunder to the Underwriter (or any controlling
person thereof) to the extent that any loss, claim, damage or other
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19
liability incurred by the Underwriter arises from the Underwriter's
fraudulent act or omission.
(b) The Underwriter agrees to indemnify and hold harmless the Company,
each person, if any, who controls the Company within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act,
each director of the Company and each officer of the Company who signs
the Registration Statement, to the same extent as the foregoing
indemnity from the Company to the Underwriter, but only insofar as
such losses, claims, damages or liabilities arise out of or are based
upon any untrue statement or omission or alleged untrue statement or
omission which was made in any preliminary prospectus, the
Registration Statement or the Prospectus, or any amendment thereof or
supplement thereto, in reliance upon and in conformity with
information furnished in writing to the Company by the Underwriter
specifically for use therein; provided, however, that the obligation
of the Underwriter to indemnify the Company (including any controlling
person, director or officer thereof) hereunder shall be limited to the
total price at which the Shares purchased by the Underwriter hereunder
were offered to the public. The Underwriter shall not be liable
hereunder to the Company (including any controlling person, director
or officer thereof) to the extent that any loss, claim, damage or
other liability incurred by the Company arises from a fraudulent act
or omission by the Company.
(c) Any party that proposes to assert the right to be indemnified under
this Section will, promptly after receipt of notice of commencement of
any action, suit or proceeding against such party in respect of which
a claim is to be made against an indemnifying party or parties under
this Section, notify each such indemnifying party of the commencement
of such action, suit or proceeding, enclosing a copy of all papers
served, but the omission so to notify such indemnifying party of any
such action, suit or proceeding shall not relieve it from any
liability that it may have to any indemnified party otherwise than
under this Section. In case any such action, suit or proceeding shall
be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party
shall be entitled to participate in, and, to the extent that it shall
wish, jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel reasonably satisfactory to
such indemnified party, and after notice from the indemnifying party
to such indemnified party of its election so to assume the defense
thereof and the approval by the indemnified party of such counsel, the
indemnifying party shall not be liable to such indemnified party for
any legal or other expenses, except as provided below and except for
the reasonable costs of investigation subsequently incurred by such
indemnified party in connection with the defense thereof. The
indemnified party shall have the right to employ its counsel in any
such action, but the fees and expenses of such counsel shall be at the
expense of such indemnified party unless (1) the employment of counsel
by such indemnified party has been authorized in writing by the
indemnifying parties, (2) the indemnified party
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20
shall have reasonably concluded that, because of the existence of
different or additional defenses available to the indemnified party or
of other reasons, there may be a conflict of interest between the
indemnifying parties and the indemnified party in the conduct of the
defense of such action (in which case the indemnifying parties shall
not have the right to direct the defense of such action on behalf of
the indemnified party) or that, under the circumstances, it is
otherwise appropriate, 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 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 Underwriter shall contribute to the aggregate
losses, claims, damages and liabilities (including any investigation, legal
and other expenses reasonably incurred in connection with, and any amount paid
in settlement of, any action, suit or proceeding or any claims asserted, but
after deducting any contribution received from other persons), to which the
Company and the Underwriter may be subject, in such proportion so that the
Underwriter is 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
Underwriter be responsible for any amount in excess of the underwriting discount
applicable to the Shares purchased by the Underwriter 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 Underwriter within the meaning of
the Securities Act or the Exchange Act shall have the same rights to
contribution as the Underwriter, 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
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may be sought under this Section 8 hereby consents to the jurisdiction of any
court in Michigan, 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 ▇▇▇▇▇ by notifying
the Company at any time:
(a) before the earlier of (1) 11:00 a.m., Detroit time, on the business
day following the Effective Date, or (2) the time when the Shares are
first generally offered by the Underwriter to dealers by letter or
telegram;
(b) at or before any Closing Date if, in the judgment of ▇▇▇▇▇ , 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 ▇▇▇▇▇ 's opinion, make it inadvisable to proceed with
the offering of the Shares, (4) the Approval shall have been withdrawn
or materially altered, or notice shall have been received to the
effect that any of such approvals will not be received, or, if
received, will be subject to conditions that the Company would not be
able to fulfill in a reasonable time in Roney's reasonable opinion,
(5) in Roney's reasonable opinion it is not probable that the
Company's consummation of the acquisition of the Bank as described in
the Prospectus will occur so as to permit the Company and Bank to
commence business before ___________________________, 1998, for any
reason, or (6) 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 Roney's 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
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provided in this Agreement, the Company shall not be under any
liability to the Underwriter (other than for obligations assumed in
Section 6 hereof), and the Underwriter shall not be under any
liability to the Company; provided, however, that if this Agreement is
terminated by ▇▇▇▇▇ because of any failure, refusal or inability on
the part of the Company to comply with the terms or to fulfill any of
the conditions of this Agreement, or for any reasons provided in
subparagraphs (b) and (c) above, the Company will reimburse the
Underwriter for all accountable out-of- pocket expenses in accordance
with the terms of Section 6(m).
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 Underwriter or any
controlling person and shall survive termination of this Agreement and/or
delivery of the Shares to and payment for the Shares by the Underwriter
pursuant to this Agreement. In addition, the covenants contained in Section 6
hereof, the agreements contained in this Section 10 and in Sections 7, 8 and 9
shall survive termination of this Agreement and/or delivery of the Shares to
and payment for the Shares by the Underwriter pursuant to this Agreement.
11. MISCELLANEOUS. This Agreement has been and is made for the benefit of
the Underwriter, the Company and their respective successors and assigns, and,
to the extent expressed herein, for the benefit of persons controlling the
underwriter or the Company, and directors and certain officers of the Company
and their respective successors and assigns, and no other person, partnership,
association or corporation shall acquire or have any right under or by virtue
of this Agreement. The term "SUCCESSORS AND ASSIGNS" shall not include any
purchaser of Shares from the Underwriter merely because of such purchase.
If any action or proceeding shall be brought by the Underwriter or the
Company in order to enforce any right or remedy under this Agreement, the
underwriter and the Company hereby consent to, and agree that they will submit
to, the jurisdiction of the courts of the State of Michigan and of any Federal
court sitting in the State of Michigan.
All notices and communications hereunder shall be in writing and mailed or
delivered or by telephone or telegraph, if subsequently confirmed in writing, to
▇▇▇▇▇ Capital Management, at ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (facsimile
No. (▇▇▇) ▇▇▇-▇▇▇▇) (with a copy to ▇▇▇▇ ▇. ▇▇▇▇▇▇, Leagre ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ (facsimile number
(▇▇▇) ▇▇▇-▇▇▇▇)); and to the Company at ▇.▇. ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇, President (facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇) (with
a copy to ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, Suite 2800,
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ (facsimile number (317)
636-1507)).
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This Agreement shall be construed in accordance with the laws of the state
of Michigan, without giving effect to principles of conflicts of laws. Please
confirm that the foregoing correctly sets forth the agreement between us.
Very truly yours,
BLUE RIVER BANCSHARES, INC.
By:__________________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇, President and Director
And by:______________________________________
Confirmed by ▇▇▇▇▇ Capital Management
▇▇▇▇▇ Capital Management
By:___________________________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Director, Corporate Finance
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EXHIBIT A
BLUE SKY STATES
Florida
Illinois
Indiana
Kentucky
Michigan
Minnesota
Missouri
New Jersey
New York
Ohio
Pennsylvania
Wisconsin