REPUBLIC BANCORP, INC.
2,140,000 SHARES
CLASS A COMMON STOCK
(NO PAR VALUE)
UNDERWRITING AGREEMENT
____________, 1998
▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, Inc.
J.J.B. ▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, Inc.
As Representatives of the Underwriters
▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear Sirs:
Republic Bancorp, Inc., a Kentucky corporation (the "Company"), and ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇ (the "Selling Stockholder") propose to sell to the several
underwriters named in Schedule I (collectively, the "Underwriters") an aggregate
of 2,140,000 shares of the Company's Class A common stock, no par value per
share (the "Class A Common Stock"), as set forth in Schedule I hereto (such
2,140,000 shares are herein referred to as the "Firm Shares"). The Firm Shares
are to be sold to each Underwriter, acting severally and not jointly, in such
amounts as are set forth in Schedule I opposite the name of such Underwriter.
Solely for the purpose of covering over-allotments in the sale of the Firm
Shares, the Company grants pro rata to the Underwriters the right to purchase up
to an additional 260,000 shares of Common Stock (the "Option Shares"). The Firm
Shares and Option Shares are herein sometimes referred to as the "Shares."
The Company operates one (1) active wholly owned subsidiary, Republic
Bank & Trust Company (the "Bank"), which is a Kentucky corporation (the
"Subsidiary"). The term "Republic" refers to Republic Bancorp, Inc. and the
Subsidiary unless the context clearly indicates otherwise.
Section 1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to and agrees with each of the Underwriters that:
(a) A registration statement on Form S-1 (File No. 333-56583) with respect
to the Shares, including a preliminary form of prospectus subject to completion,
has been prepared by the Company in conformity with the requirements of the
Securities Act of 1933, as amended (the "1933 Act"), and the applicable rules
and regulations (the "1933 Act Regulations") of the Securities and Exchange
Commission (the "Commission") and has been filed with the Commission; and such
amendments to such registration statement as may have been required, if any,
prior to the date hereof have been filed with the Commission, and such
amendments have been similarly prepared. Copies of such
registration statement and amendment or amendments and of each related
preliminary prospectus, and the exhibits, financial statements and schedules,
as finally amended and revised, have been delivered to you. The Company has
prepared in the same manner, and proposes so to file with the Commission, one
of the following: (i) prior to effectiveness of such registration statement,
a further amendment thereto, including the form of final prospectus, (ii) if
the Company does not rely on Rule 434 of the 1933 Act Regulations, a final
prospectus in accordance with Rules 430A and 424(b) of the 1933 Act
Regulations, or (iii) if the Company relies on Rule 434 of the 1933 Act
Regulations, a term sheet relating to the Shares that shall identify the
preliminary prospectus that it supplements containing such information as is
required or permitted by Rules 434, 430A and 424(b) of the 1933 Act
Regulations. The Company also may file a related registration statement with
the Commission pursuant to Rule 462(b) of the 1993 Act Regulations for the
purpose of registering certain additional shares of Common Stock, which
registration statement will be effective upon filing with the Commission. As
filed, such amendment, any registration statement filed pursuant to Rule
462(b) of the 1933 Act Regulations and any term sheet and form of final
prospectus, or such final prospectus, shall include all Rule 430A Information
(as defined below) and, except to the extent that you shall agree in writing
to a modification, shall be in all respects in the form furnished to you
prior to the date and time that this Agreement was executed and delivered by
the parties hereto, or, to the extent not completed at such date and time,
shall contain only such specific additional information and other changes
(beyond that contained in the latest preliminary prospectus) as the Company
shall have previously advised you in writing would be included or made
therein.
The term "Registration Statement" as used in this Agreement shall mean such
registration statement at the time such registration statement becomes effective
and, in the event any post-effective amendment thereto becomes effective prior
to the Closing Time (as hereinafter defined), shall also mean such registration
statement as so amended; provided, however, that such term shall also include
all Rule 430A Information contained in any Prospectus and any Term Sheet (as
hereinafter defined) and deemed to be included in such registration statement at
the time such registration statement becomes effective as provided by Rule 430A
of the 1933 Act Regulations. The term "Preliminary Prospectus" shall mean any
preliminary prospectus referred to in the preceding paragraph and any
preliminary prospectus included in the Registration Statement at the time it
becomes effective that omits Rule 430A Information. The term "Prospectus" as
used in this Agreement shall mean (a) if the Company relies on Rule 434 of the
1933 Act Regulations, the Term Sheet relating to the Shares that is first filed
pursuant to Rule 424(b)(7) of the 1933 Act Regulations, together with the
Preliminary Prospectus identified therein that such Term Sheet supplements, or
(b) if the Company does not rely on Rule 434 of the 1933 Act Regulations, the
prospectus relating to the Shares in the form in which it is first filed with
the Commission pursuant to Rule 424(b) of the 1933 Act Regulations or, if no
filing pursuant to Rule 424(b) of the 1933 Act Regulations is required, shall
mean the form of final prospectus included in the Registration Statement at the
time such Registration Statement becomes effective. The term "Rule 430A
Information" means information with respect to the Shares and the offering
thereof permitted pursuant to Rule 430A of the 1933 Act Regulations to be
omitted from the Registration Statement when it becomes effective. The term
"462(b) Registration Statement" means any registration statement filed with the
Commission pursuant to Rule 462(b) of the 1933 Act Regulations (including the
Registration Statement and any Preliminary Prospectus or Prospectus incorporated
therein at the time such registration statement becomes effective). The term
"Term Sheet" means any term sheet that satisfies the requirements of Rule 434 of
the 1933 Act Regulations. Any reference to the "date" of a Prospectus that
includes a Term Sheet shall mean the date of such Term Sheet.
(b) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission and no proceedings for that purpose
have been instituted or threatened by the Commission or the state securities
authority of any jurisdiction, and each Preliminary Prospectus, at the time of
filing thereof, conformed in all material respects to the requirements of the
1933 Act and the 1933 Act Regulations and did not contain any untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; PROVIDED, HOWEVER,
that this representation and warranty shall not apply to untrue statements or
omissions of material facts to the extent they are corrected in the Prospectus
first filed pursuant to Rule 424(b) under the 1933 Act Regulations, or to any
statements or omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter expressly for use in the
Registration Statement or any 462(b) Registration Statement.
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(c) When the Registration Statement and any 462(b) Registration Statement
shall become effective, or any Term Sheet that is part of the Prospectus is
filed with the Commission pursuant to Rule 434, when the Prospectus is first
filed pursuant to Rule 424(b) of the 1933 Act Regulations, when any amendment to
the Registration Statement or any 462(b) Registration Statement becomes
effective, and when any supplement to the Prospectus or Term Sheet is filed with
the Commission, and at each Date of Delivery (as defined in Section 3), (i) the
Registration Statement, the 462(b) Registration Statement, the Prospectus, the
Term Sheet and all amendments thereof and supplements thereto will conform in
all material respects with the applicable requirements of the 1933 Act and the
1933 Act Regulations and (ii) neither the Registration Statement, the 462(b)
Registration Statement, the Prospectus, any Term Sheet nor any amendment or
supplement thereto, will contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary in order to
make the statements therein not misleading; PROVIDED, HOWEVER, that this
representation and warranty shall not apply to any statement or omission made in
reliance upon and in conformity with information furnished in writing to the
Company by an Underwriter expressly for use in the Registration Statement or any
462(b) Registration Statement.
(d) The Company and the Subsidiary have been duly incorporated and each
is validly existing as a corporation in good standing under the laws of its
respective state of incorporation, with all requisite corporate power and
authority to own, lease and license its properties, and conduct its business
as described in the Prospectus. The Company and the Subsidiary have qualified
to do business and are in good standing as a foreign corporation in every
jurisdiction in which the ownership or leasing of its properties or the
nature or conduct of its business requires such qualification, except where
the failure to do so would have a material adverse effect on the assets,
properties, results of operations, financial condition or business prospects
of Republic taken as a whole. The Company does not own or control, directly
or indirectly, any corporation, association or other entity, other than the
Subsidiary, Republic Capital Trust, Republic Insurance Company and Republic
Funding Company. The Company has full corporate authority to enter into this
Agreement and perform the obligations hereunder.
(e) The Company has the full legal right, power and authority to enter
into this Agreement, and to issue sell and deliver the Shares as provided
herein. This Agreement has been duly authorized, executed and delivered by
the Company and constitutes the valid and binding agreement of the Company,
enforceable against it in accordance with its terms, except to the extent
that the indemnification provisions set forth in Section 9 of this Agreement,
may be limited by applicable law or equitable principles, and except as
enforceability may be limited by bankruptcy, reorganization, moratorium or
similar laws affecting the enforceability of creditors' rights generally and
rules of law governing specific performance, injunctive relief and other
equitable remedies.
(f) Each consent, approval, authorization, order, designation or filing
by or with any governmental agency or body necessary for the valid
authorization, issuance, sale and delivery of the Shares, the execution,
delivery and performance of this Agreement, and the consummation of the
transactions contemplated hereby has been made or obtained by the Company and
the Subsidiary and are in full force and effect, except as may be required
under applicable state securities laws. The issuance, sale and delivery of
the Shares, the execution, delivery and performance of this Agreement, and
the consummation of the transactions contemplated by this Agreement will not
result in a breach or violation of any of the terms and provisions of, or
constitute a default by the Company or the Subsidiary under their respective
Articles of Incorporation or Bylaws and will not result in a breach or
violation of any of the terms or provisions of, or constitute a default by
the Company or the Subsidiary under, any indenture, mortgage, deed of trust,
loan agreement, note, lease or other agreement or instrument to which the
Company and the Subsidiary are a party or to which it or its properties is
subject, or of any statute, judgment, decree, order, rule or regulation of
any court or governmental agency or body applicable to the Company, the
Subsidiary, or any of their respective properties.
(g) (i) The Company has common stock issued and outstanding as set forth
in the Registration Statement. The Company has no other issued and outstanding
capital stock. The Company has authorized, issued and outstanding
capitalization as set forth in the Prospectus under the caption "Capitalization"
as of the date therein. All the issued and outstanding shares of Class A
Common Stock of the Company, including the Shares to be sold by the Selling
Stockholder, have been duly authorized and validly issued, are fully paid and
nonassessable and conform to the description of the Class A Common
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Stock contained in the Prospectus and the rights set forth in the instruments
defining the same. All offers and sales of the Company's capital stock by the
Company prior to the date hereof were at all relevant times duly registered
under the 1933 Act or were exempt from the registration requirements of the
1933 Act by reason of Sections 3(a), 3(b), 4(2) or 4(6) thereof. The Shares
to be sold by the Company when issued and delivered by the Company and paid
for pursuant to this Agreement, will be validly issued, fully paid and
nonassessable and will conform in all material respects to the description
thereof contained in the Prospectus. No preemptive rights of stockholders
exist with respect to the Shares. No person or entity holds a right to
require or participate in the registration under the 1933 Act of the Shares
and no person holds a right to require registration under the 1933 Act of any
shares of Common Stock of the Company at any other time. No person or entity
has a right of participation or first refusal with respect to the sale of the
Shares by the Company. None of the issued shares of capital stock of the
Company has been issued in violation of any preemptive or similar rights. All
shares of common stock of the Company subject to outstanding options or
warrants have been duly authorized and reserved for issuance, and, when
issued in accordance with the terms of the applicable option or warrant, will
be validly issued, fully paid and nonassessable and will not be issued in
violation of any preemptive right (contractual or other). 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 capital stock of the
Company or any security convertible into or exchangeable for capital stock of
the Company, except as is disclosed in the Registration Statement and the
Prospectus.
(ii) All of the shares of issued and outstanding capital stock of the
Subsidiary have been duly authorized and validly issued, are fully paid and
nonassessable and are owned free and clear of all liens, security interests,
pledges, charges, or encumbrances. Other than the Subsidiary, the Company
does not own directly or indirectly, any capital stock or other equity
securities of any other corporation or any ownership interest in any
partnership, joint venture or other association except securities held by the
Bank in a fiduciary capacity or as collateral for extensions of credit and
except for the common securities of Republic Capital Trust and except for the
common stock of the following non-operating subsidiaries: Republic Insurance
Company and Republic Funding Company.
(h) The financial statements of the Company (including the related notes
and schedules) included in the Registration Statement and the Prospectus present
fairly the financial position of the Company as of the dates indicated and the
results of its operations and its cash flows for the periods specified, all in
conformity with generally accepted accounting principles applied on a consistent
basis throughout the periods involved and in conformity with Regulation S-X of
the Commission. The supporting schedules included in the Registration Statement
and the amounts in the Prospectus under the captions "Summary Consolidated
Financial Data," and "Consolidated Financial Statements" are accurately
computed, fairly present the information shown therein and have been determined
on a basis consistent with the financial statements included in the Registration
Statement and the Prospectus. No other financial statements or schedules are
required by Form S-1 or otherwise to be included in the Registration Statement,
the Prospectus or any Preliminary Prospectus.
The financial data statements and schedules (including the related notes)
of each of the Company and the Subsidiary included in the Registration
Statement, the Prospectus or any Preliminary Prospectus were prepared in
accordance with generally accepted accounting principals consistently applied
throughout the periods involved and fairly present the financial position and
result of operations of each of the Company and the Subsidiary at the dates
and periods presented.
(i) ▇▇▇▇▇ ▇▇▇▇▇▇ and Company LLP , which has examined and is reporting
upon the audited financial statements and schedules included in the Registration
Statement, are, and were during the periods covered by their reports included in
the Registration Statement and Prospectus, independent public accountants with
respect to the Company and the Subsidiary within the meaning of the 1933 Act
and the 1933 Act Regulations.
(j) The Company has obtained for the benefit of the Company and the
Underwriters from each of its directors, officers, the Selling Stockholder,
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, trustee for ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇'▇ grandchildren written agreement that for a period of 180 days from
the date of the Prospectus such director, officer or stockholder will not,
without your prior written consent, offer sell, contract to sell, pledge,
grant any option to purchase, or otherwise dispose of, directly or
indirectly, any shares of Class A Common Stock or
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other instrument which by its terms is convertible into, exercisable or
exchangeable for, any shares of Class A Common Stock of which the undersigned
is now, or may in the future become, the beneficial owner (within the meaning
of Rule 13d-3 of the Securities Exchange Act of 1934, as amended), other than
securities issued by Republic Capital Trust and other than an exercise of
stock options or sale of Common Stock pursuant to a "cashless exercise" of
stock options which are either (i) outstanding on the date of the Prospectus,
or (ii) issued under the Company's stock option plan, or a bona fide gift of
Common Stock, provided that the donee agrees to be bound by the terms hereof;
(k) Neither the Company nor the Subsidiary has sustained, since
December 31, 1997, any material loss or interference with its business from
fire, explosion, flood, hurricane, accident or other calamity, whether or not
covered by insurance, or from any labor dispute or arbitrators' or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus; and, since the respective dates as of which
information is given in the Registration Statement and the Prospectus, and
except as otherwise stated in the Registration Statement and Prospectus, there
has not been (i) any material change in the capital stock, long-term debt,
obligations under capital leases or short-term borrowings of the Company or the
Subsidiary; (ii) any material adverse change, or any development which could
reasonably be seen as involving a prospective material adverse change, in or
affecting the business, prospects, properties, assets, results of operations or
condition (financial or other) of Republic taken as a whole; (iii) any
liability or obligation, direct or contingent, incurred or undertaken by the
Company and the Subsidiary which is material to the business or condition
(financial or other) of Republic, except for liabilities or obligations
incurred in the ordinary course of business; (iv) any declaration or payment of
any dividend or distribution of any kind on or with respect to its capital
stock; or (v) any transaction that is material to Republic taken as a whole,
except transactions in the ordinary course of business.
(l) Neither the Company nor the Subsidiary is in violation of its
Articles of Incorporation or Bylaws and, as of the date hereof, no default
exists, and no event has occurred, nor state of facts exists, which, with notice
or after the lapse of time to cure or both, would constitute a default in the
due performance and observance of any obligation, agreement, covenant,
consideration or condition contained in any indenture, mortgage, deed of trust,
loan agreement, note, lease or other agreement or instrument to which the
Company or the Subsidiary is a party or by which it or any of its properties
is subject, and no violation exists of any law, order, rule, regulation, writ,
injunction or decree of any government, governmental instrumentality or court,
domestic or foreign, in any such case where the consequences of such violation
or default is likely to materially adversely affect the assets, properties,
results of operation, financial condition or business prospects of Republic
taken as a whole.
(m) Except as otherwise disclosed in the Prospectus, (i) neither the
Company nor the Subsidiary has authorized or conducted or has knowledge of
the generation, transportation, storage, presence, use, treatment, disposal,
release or handling of (in an amount or of a type that has been or must be
reported to any governmental agency, violates any Environmental Law, or has
required or could require remediation expenditures) any hazardous substance,
asbestos, radon, polychlorinated biphenyl ("PCBs"), petroleum product or
waste (including crude oil or any fraction thereof), natural gas, liquefied
gas, synthetic gas or other material defined, regulated, controlled or
potentially subject to any remediation requirement under any environmental
law (collectively, "Hazardous Materials"), on, in or under any real property
owned, leased or by any means controlled by the Company or the Subsidiary
(ii) the Company and the Subsidiary are in compliance with all federal,
state and local laws, ordinances, rules, regulations and other governmental
requirements relating to pollution, control of chemicals, management of
waste, discharges of materials into the environment, health, safety, natural
resources, and the environment (collectively, "Environmental Laws"), and
(iii) the Company and the Subsidiary have, and are in compliance with, all
licenses, permits, registrations and government authorizations necessary to
operate under all applicable Environmental Laws except for such matters as
would not have a material adverse effect on the assets, properties, results
of operations, financial condition or business prospects of Republic taken as
a whole. Except as otherwise disclosed in the Prospectus, neither the
Company nor the Subsidiary has received any written or oral notice from any
governmental entity or any other person and there is no pending or threatened
claim, litigation or any administrative agency proceeding that: (i) alleges a
violation of any Environmental Laws by the Company and the Subsidiary; (ii)
alleges the Company and the Subsidiary is a liable party or a potentially
responsible party under the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. Section 9601, ET SEQ., or any state
superfund law; has resulted in or could result in the attachment of an
environmental lien on any real property owned, leased or controlled by the
Company or the Subsidiary; or (iii) alleges the occurrence of contamination
of any of such real property,
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damage to natural resources, property damage, or personal injury based on
their activities or the activities of their predecessors or third parties
(whether at the real property or elsewhere) involving Hazardous Materials,
whether arising under the Environmental Laws, common law principles, or other
legal standards.
(n) The Company and the Subsidiary have good and marketable title to all
real property owned by them, free and clear of all liens, encumbrances, claims,
security interests, restrictions and defects except such as are reflected in the
Prospectus. Each parcel of real property owned, leased or controlled by the
Company and/or the Subsidiary, and each improvement thereon, complies with all
applicable codes, laws and regulations (including, without limitation, building
and zoning codes, laws and regulations and laws relating to access to facilities
located on such real property) except if and to the extent disclosed in the
Prospectus, and except for such failures to comply that would not individually
or in the aggregate have a material adverse impact on the assets, properties,
results of operation, financial condition or business prospects of Republic
taken as a whole. The Company has no knowledge of any pending or threatened
condemnation proceedings, zoning change, or other proceeding or action that will
in any manner affect the size of, use of, improvements on, construction on or
access to such real property and improvements, except such proceedings or
actions that would not have a material adverse effect on the assets, properties,
results of operation, financial condition or business prospects of Republic
taken as a whole.
(o) Any real property and buildings held under lease by the Company and/or
the Subsidiary is held by such entity under a valid, subsisting and
enforceable lease with such exceptions as are not material and do not interfere
in any material respect with the use made and proposed to be made of such
property and building by the Company and/or the Subsidiary; such leases
conform to the description thereof, if any, set forth in the Registration
Statement; and no notice has been given or material claim asserted by anyone
adverse to the rights of the Company and/or the Subsidiary under any of the
leases or affecting their rights to the continued possession of the leased
property.
(p) Except as described in the Prospectus, to the best of the Company's
knowledge, there is not pending nor threatened, any action, suit, proceeding,
inquiry or investigation, against the Company and/or the Subsidiary or of
their respective officers, directors or significant stockholders or to which the
properties, assets or rights of the Republic taken as a whole are subject,
before or brought by any court or governmental agency or body or board of
arbitrators, which could result in any material adverse change in the assets,
properties, results of operation, financial condition or business prospects of
Republic, taken as a whole, or which could adversely affect the consummation of
the transactions contemplated by this Agreement.
(q) There are no contracts or other documents required by the 1933 Act or
the 1933 Act Regulations to be described in or incorporated by reference into
the Registration Statement or Prospectus or to be filed as exhibits to the
Registration Statement which have not been accurately described in all material
respects in the Prospectus or incorporated or filed as required. The agreements
to which the Company and the Subsidiary are parties which are described in the
Registration Statement and the Prospectus, are valid and enforceable in all
material respects by the Company and the Subsidiary, as the case may be, and,
to the best of the Company's knowledge, no party or parties thereto are in
material breach or default under any of such agreements.
(r) The Company and the Subsidiary own, possess or have obtained all
material permits, licenses, franchises, certificates, consents, orders,
approvals and other authorizations of governmental or regulatory authorities as
are necessary to own or lease, as the case may be, and to operate their
properties and to carry on their businesses as presently conducted. Neither the
Company nor the Subsidiary has received any notice of proceedings relating to
revocation or modification of any such license, permit, certificate, consent,
order, approval or authorization which revocation or modification could
materially and adversely affect the assets, properties, results of operation,
financial condition or business prospects of Republic taken as a whole.
(s) The Company and/or the Subsidiary own or possess adequate licenses
or other rights to use all patents, trademarks, service marks, trade names,
copyrights, software and design licenses, trade secrets, manufacturing
processes, other intangible property rights and know-how (collectively
"Intangibles") necessary to entitle them to conduct their businesses now, and as
proposed to be conducted or operated as described in the Prospectus, and neither
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the Company nor the Subsidiary has received any notice of infringement of or
conflict with (and the Company knows of no such infringement of or conflict
with) asserted rights of others with respect to any Intangibles which could
materially and adversely affect the assets, properties, results of operation,
financial condition or business prospects of Republic taken as a whole.
(t) The systems of internal accounting controls utilized by the Company
and the Subsidiary are sufficient to meet the objectives of internal
accounting control insofar as those objectives pertain to the prevention or
detection of errors or irregularities in amounts that would be material in
relation to the their financial statements and the financial information
disclosed in the Registration Statement and Prospectus; and, neither the Company
nor the Subsidiary nor any of their employees, or agents have made any payment
or received or retained any funds from the accounts of Republic; and no funds
of the Company or the Subsidiary have been set aside to be used for any
payment in violation of any law, rule or regulation.
(u) The Company and the Subsidiary have filed on a timely basis all
federal, state, local and foreign income and franchise tax returns required to
be filed through the date hereof and have paid all taxes shown as due thereon;
and no tax deficiency, has been asserted against the Company and the
Subsidiary, nor does the Company know of any tax deficiency which is likely to
be asserted against any of Republic, which if determined adversely to any such
company, could materially adversely affect the assets, properties, results of
operation, financial condition or business prospects of Republic taken as a
whole. All tax liabilities are adequately provided for on the books of the
Company and the Subsidiary.
(v) Except as disclosed in the Prospectus, the Company and the
Subsidiary maintain insurance (issued by insurers of recognized financial
responsibility) of the types and in the amounts generally deemed adequate for
their businesses and, to the best of the Company's knowledge, consistent with
insurance coverage maintained by similar companies in similar businesses,
including, but not limited to, insurance covering real and personal property
owned or leased by Republic against theft, damage, destruction, acts of
vandalism and all other risks customarily insured against, and casualty and
liability insurance covering the Company's and the Subsidiary's operations, all
of which insurance is in full force and effect.
(w) Except as disclosed in the Prospectus, no labor problem exists among
the Company, the Subsidiary and their employees, or, to the best of the
Company's knowledge, is threatened or imminent that could materially adversely
affect Republic. The Company and the Subsidiary are not aware of any
existing, threatened or imminent labor disturbance by the employees of any of
its principal suppliers, contractors or customers that could be expected to
materially adversely affect the business, prospects, properties, assets, results
of operation or condition (financial or other) of Republic taken as a whole.
(x) Neither the Company, its officers, directors, stockholders, its
affiliates (as defined in Rule 144(a)(1) under the ▇▇▇▇ ▇▇▇) nor the Selling
Stockholder have taken, and such parties will not take, directly or
indirectly, any action designed to, or that might be reasonably expected to,
cause or result in or constitute, the stabilization or manipulation of the
price of the Shares to facilitate the sale or resale of the Shares.
(y) Upon effectiveness of the Registration Statement, the Class A
Common Stock has been registered pursuant to Section 12(g) of the 1934 Act
and the Shares have been approved for listing on The Nasdaq Stock Market's
National Market (the "NSM"), subject to official notice of issuance.
(z) The Company and the Subsidiary have participated in the preparation
of the Registration Statement and Prospectus and no facts have come to the
attention of the Company or the Subsidiary which leads any of them to believe
that the Registration Statement or the Prospectus, or any amendment thereto,
as of their respective effective or filing dates, contained any untrue
statement of a material fact or omitted to state a material fact required to
be stated therein or necessary to make the statements therein not misleading.
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(aa) Neither the Company nor the Subsidiary has incurred any liability
for a fee, commission or other compensation on account of the employment of a
broker or finder in connection with the transactions contemplated by this
Agreement other than as contemplated hereby.
(bb) Any certificate signed by any duly authorized officer of the
Company or the Subsidiary, respectively, and delivered to you or to counsel
for the Underwriters, shall be deemed a representation and warranty by the
Company to each Underwriter as to the matters covered thereby.
(cc) The Company is not, will not become as a result of the transactions
contemplated hereby, and does not intend to conduct its business in a manner
that would cause it to become an "investment company" or a company controlled by
an "investment company" within the meaning of the Investment Company Act of
1940.
(dd) To the best knowledge of Republic, neither the Bank nor any of the
employees of the Bank has made any payment of funds of the Bank as a loan for
the purchase of the Securities or made any other payment of funds prohibited
by law, except for such other prohibited payments of funds which would not
result in a material adverse effect in the consolidated financial condition,
results of operations or business of the Company and the Bank, and no funds
have been set aside to be used for any payment prohibited by law.
(ee) The Bank is in compliance in all material respects with the applicable
financial record keeping and reporting requirements of the Currency and Foreign
Transaction Reporting Act of 1970, as amended, and the rules and regulations
thereunder.
(ff) The Bank has been duly organized and is validly existing as a
Kentucky chartered bank with full corporate power and authority to own, lease
and operate its properties and to conduct its business as described in the
Prospectus; the Bank has obtained all licenses, permits and other
governmental authorizations currently required for the conduct of its
business, except where the failure to obtain such licenses, permits or other
governmental authorizations would not have a material adverse effect on the
assets, properties, results of operations, financial condition, or business
prospects of Republic taken as a whole; all such licenses, permits and other
governmental authorizations are in full force and effect and the Bank is in
all material respects in compliance therewith; the Bank has not received
notice of any proceeding or action relating to the revocation or modification
of any such license, permit or other governmental authorization which, singly
or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, might have a material adverse effect on the assets, properties,
results of operations, financial condition, or business prospects of Republic
taken as a whole; and the Bank is in good standing under the laws of the
State of Kentucky and is qualified to do business in any jurisdiction in
which the failure to so qualify would have a material adverse effect on the
assets, properties, results of operations, financial condition, or business
of Republic taken as a whole.
(gg) The deposit accounts of the Bank are insured by the Bank
Insurance Fund ("BIF") and the Savings Association Insurance Fund ("SAIF") of
the FDIC up to the applicable limits.
(hh) The Bank is not in violation of any directive from the FDIC or the
Kentucky Department of Financial Institutions ("Department") to make any
change in the method of conducting its business; the Bank has conducted and
is conducting its business so as to comply with all applicable statutes,
regulations and administrative and court decrees (including, without
limitation, all regulations, decisions, directives and orders of the FDIC and
the Department) except in such respects as would not have a material adverse
effect upon the Bank.
Section 2. REPRESENTATIONS AND WARRANTIES OF THE SELLING STOCKHOLDER.
The Selling Stockholder represents and warrants to each Underwriter and
agrees that:
(a) The Selling Stockholder has all right, power and authority necessary
to execute and deliver this Agreement, to sell and deliver the Shares to be sold
by him hereunder and to perform all other obligations under this Agreement; the
execution, delivery and performance of this Agreement by the Selling Stockholder
will not conflict with, result in the creation or imposition of any lien, charge
or encumbrance upon any of the Shares to be sold by the Selling
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Stockholder pursuant to the terms of, or constitute a default under, any
agreement or other instrument, or any order, rule or regulation of any court
or governmental agency having jurisdiction over the Selling Stockholder or
the Selling Stockholder's properties; and except as required by the 1933 Act
and applicable state securities laws, no consent, authorization or order of,
or filing or registration with, any court or governmental agency is required
(or, if required, has been obtained) for the execution, delivery and
performance of this Agreement by the Selling Stockholder. This Agreement has
been duly authorized, executed and delivered by the Selling Stockholder and
constitutes the valid and binding agreement of the Selling Stockholder,
enforceable against him in accordance with its terms, except to the extent
that the indemnification provisions set forth in Section 9 of this Agreement
may be limited by equitable principles, and except as enforceability may be
limited by bankruptcy, reorganization, moratorium or similar laws affecting
the enforceability of creditors' rights generally and rules of law governing
specific performance, injunctive relief and other equitable remedies.
(b) At the Closing Time, the Selling Stockholder will have good title to
the Shares being sold by him hereunder; such Shares are, and at the Closing Time
will be, validly authorized, duly issued and outstanding, fully paid and
nonassessable Class A Common Stock of the Company with no personal liability
attaching to the ownership thereof; and upon the delivery of and payment for
such Shares as contemplated herein, the Underwriters will receive good title to
the Shares purchased by them, respectively, from such Selling Stockholder, free
and clear of any and all liens, encumbrances, security interests and adverse
claims.
(c) Without the prior written consent of the Underwriters, the Selling
Stockholder and any affiliate controlled by him (other than the Company) will
not sell or offer or contract to sell, except to the Underwriters pursuant to
this Agreement, any securities of the Company which he beneficially owns within
180 days after the effective date of the Registration Statement. The Selling
Stockholder has not (i) taken, and agrees that he will not take, directly or
indirectly, any action which might reasonably be expected to cause or result in
stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Shares or (ii) since the filing of the
Registration Statement (A) sold, bid for, purchased, or paid anyone any
compensation for soliciting purchases of, the Shares, or (B) paid or agreed to
pay to any person any compensation for soliciting another to purchase any other
securities of the Company.
(d) Except as set forth in the Prospectus, the Selling Stockholder is
disposing of his Shares hereunder for his own account and is not selling such
Shares, directly or indirectly, for the benefit of the Company or the
Underwriters.
(e) When any Preliminary Prospectus was filed with the Commission: (i) it
contained all statements required to be stated therein regarding the Selling
Stockholder in accordance with, and complied in all material respects regarding
the Selling Stockholder with the requirements of, the 1933 Act and the rules and
regulations thereunder; and (ii) such statements in the Preliminary Prospectus
as are made in reliance upon and in conformity with written information
furnished to the Company by the Selling Stockholder for use therein did not
include any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. When the Registration
Statement or any amendment thereto or any 462(b) Registration Statement or any
amendment thereto was or is declared effective and at the Closing Time or any
Date of Delivery, as the case may be: (i) it contained or will contain all
statements required to be stated therein regarding the Selling Stockholder in
accordance with, and complied or will comply in all material respects regarding
the Selling Stockholder with the requirements of the 1933 Act and the rules and
regulations of the Commission thereunder; and (ii) such statements in the
Registration Statement, any 462(b) Registration Statement or any amendment
thereto as are made in reliance upon and in conformity with written information
furnished to the Company by the Selling Stockholder specifically for use therein
did not or will not include any untrue statement of
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a material fact or omit to state any material fact necessary to make the
statements therein not misleading. When the Prospectus, any Term Sheet, or
any amendment or supplement thereto is filed with the Commission pursuant to
Rule 424(b) (or, if any Prospectus or such amendment or supplement is not
required to be so filed, when the Registration Statement or the amendment
thereto containing such amendment or supplement to the Prospectus was or is
declared effective), and at the Closing Time or any Date of Delivery, as the
case may be: (i) the Prospectus, as amended or supplemented at any such time
(including by means of any Term Sheet), contained or will contain all
statements required to be contained or stated therein regarding the Selling
Stockholder in accordance with, and complied or will comply in all material
respects regarding the Selling Stockholder with the requirements of, the 1933
Act and the rules and regulations of the Commission thereunder; and (ii) such
statements in the Prospectus, as so amended or supplemented at any such time,
as are made in reliance upon and in conformity with written information
furnished to the Company by the Selling Stockholder specifically for use
therein did not or will not include any untrue statement of a material fact
or omit to state any material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
(f) The sale of the Shares by the Selling Stockholder pursuant to this
Agreement is not prompted by any material information concerning the Company
which is not set forth in the Prospectus.
Section 3. SALE AND DELIVERY OF SHARES TO THE UNDERWRITERS; CLOSING.
(a) On the basis of the representations and warranties herein contained,
and subject to the terms and conditions herein set forth, the Company and the
Selling Stockholder agree to sell to the Underwriters named in Schedule I
hereto, and each such Underwriter agrees, severally and not jointly, to purchase
from the Company and the Selling Stockholder, at a purchase price of $______ per
share, the aggregate number of Firm Shares set forth opposite the name of such
Underwriter in Schedule I hereto.
(b) On the basis of the representations and warranties herein
contained, and subject to the terms and conditions herein set forth, the
Company hereby grants an option to the Underwriters, severally and not
jointly, to purchase up to an additional 260,000 Option Shares on the same
terms and conditions as the Firm Shares. The option hereby granted will
expire if not exercised within the 30 day period after the first date on
which the Firm Shares are publicly traded on a when issued basis, by giving
written notice to the Company. The option granted hereby may be exercised,
in whole or in part (but not more than once), only for the purpose of
covering the over-allotments that may be made in connection with the offering
and distribution of the Firm Shares. The notice of exercise shall set forth
the number of Option Shares as to which the several Underwriters are
exercising the option, and the time and date of payment and delivery thereof.
Such time and date of delivery (the "Date of Delivery") shall be determined
by you but shall not be earlier than the second business day after the date
on which the notice of the exercise of the option shall have been given nor
later than seven full business days after the exercise of such option, nor in
any event prior to the Closing Time. If the option is exercised as to all or
any portion of the Option Shares, the Option Shares as to which the option is
exercised shall be purchased by the Underwriters, severally and not jointly,
in their respective underwriting obligation proportions.
(c) Payment of the purchase price for and delivery of the Firm Shares
shall be made at the offices of the Representative at ▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ or at such other place as shall be agreed upon by the
Company, the Selling Stockholder and you, at 10:00 A.M., either: (i) on the
third full business day after the effective date of the Registration Statement;
or (ii) at such other time not more than ten full business days thereafter as
you, the Selling Stockholder and the Company shall determine (unless, in either
case, postponed pursuant to Section 12) (such date and time of payment and
delivery being herein called the "Closing Time"). In addition, in the event
that any or all of the Option Shares are purchased by the Underwriters, payment
of the purchase price for and delivery of the Option Shares shall be made at the
offices of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, Inc. in the manner set forth above, or at
such other place as the Company, the Selling Stockholder and you shall
determine, on the Date of Delivery as specified in the notice from you to the
Company and the Selling Stockholder. Payment for the Firm Shares and the Option
Shares shall be made to the Company by certified or official bank check or
checks in New York Clearing House next day funds payable to the order of the
Company and the Selling Stockholder, respectively, against delivery to you for
the respective accounts of the Underwriters of the Shares to be purchased by
them.
(d) The Shares to be purchased by the Underwriters shall be in such
denominations and registered in such names as you may request in writing at
least two full business days before the Closing Time or the Date of Delivery, as
the case may be. The Shares will be made available at the offices of the
Representative at ▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ or at such
other place as ▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, Inc. may designate for examination and
packaging not later than 10:00 A.M. at least two full business days prior to the
Closing Time or the Date of Delivery, as the case may be.
(e) After the Registration Statement becomes effective, you intend to
offer the Shares to the public as set forth in the Prospectus, but after the
initial public offering of such Shares, you may from time to time increase or
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decrease your bid price for the Company's Class A Common Stock, in your sole
discretion, by reason of changes in general market conditions or otherwise.
Section 4. CERTAIN COVENANTS OF THE COMPANY. The Company covenants and
agrees with each Underwriter as follows:
(a) The Company will use its best efforts to cause the Registration
Statement to become effective (if not yet effective at the date and time that
this Agreement is executed and delivered by the parties hereto). If the Company
elects to rely upon Rule 430A of the 1933 Act Regulations or the filing of the
Prospectus is otherwise required under Rule 424(b) of the 1933 Act Regulations,
and subject to the provisions of Section 4(b) of this Agreement, the Company
will comply with the requirements of Rule 430A and will file the Prospectus,
properly completed, pursuant to the applicable provisions of Rule 424(b), or a
Term Sheet pursuant to and in accordance with Rule 434, within the time period
prescribed. If the Company elects to rely upon Rule 462(b), the Company shall
file a 462(b) Registration Statement with the Commission in compliance with Rule
462(b) by 10:00 p.m., Washington, D.C. time on the date of this Agreement, and
the Company shall at the time of filing either pay to the Commission the filing
fee for the Rule 462(b) Registration Statement or give irrevocable instructions
for the payment of such fee. The Company will notify you immediately and
confirm the notice in writing: (i) when the Registration Statement, 462(b)
Registration Statement or any post-effective amendment to the Registration
Statement, shall have become effective, or any supplement to the Prospectus or
any amended Prospectus shall have been filed; (ii) of the receipt of any
comments from the Commission; (iii) of any request by the Commission to amend
the Registration Statement or 462(b) Registration Statement or amend or
supplement the Prospectus or for additional information; and (iv) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or any 462(b) Registration Statement or of any order
preventing or suspending the use of any Preliminary Prospectus, or of the
suspension of the qualification of the Shares for offering or sale in any
jurisdiction, or of the institution or threatening of any proceedings for any of
such purposes. The Company will use every reasonable effort to prevent the
issuance of any such stop order or of any order preventing or suspending such
use and, if any such order is issued, to obtain the withdrawal thereof at the
earliest possible moment.
(b) The Company will not at any time file or make any amendment to the
Registration Statement or any amendment or supplement (i) to the Prospectus, if
the Company has not elected to rely upon Rule 430A; (ii) if the Company has
elected to rely upon Rule 430A, to either the Prospectus included in the
Registration Statement at the time it becomes effective or to the Prospectus
filed in accordance with Rule 424(b) or any Term Sheet filed in accordance with
Rule 434; or (iii) if the Company has elected to rely upon Rule 462(b), to any
462(b) Registration Statement, in either case if you shall not have previously
been advised and furnished a copy thereof a reasonable time prior to the
proposed filing, or if you or counsel for the Underwriters shall object to such
amendment or supplement.
(c) The Company has furnished or will furnish to you, at its expense, as
soon as available, as many signed copies of the Registration Statement as
originally filed and of all amendments thereto, whether filed before or after
the Registration Statement becomes effective, copies of all exhibits and
documents filed therewith and signed copies of all consents and certificates of
experts, as you may reasonably request, and has furnished or will furnish to
each Underwriter, one conformed copy of the Registration Statement as originally
filed and of each amendment thereto (but without exhibits).
(d) The Company will deliver to each Underwriter, at its expense, from
time to time, as many copies of each Preliminary Prospectus as such Underwriter
may reasonably request, and the Company hereby consents to the use of such
copies for purposes permitted by the 1933 Act. The Company will deliver to each
Underwriter, at its expense, as soon as the Registration Statement shall have
become effective, and thereafter from time to time as requested during the
period when the Prospectus is required to be delivered under the 1933 Act, such
number of copies of the Prospectus (as supplemented or amended) as each
Underwriter may reasonably request. The Company will comply to the best of its
ability with the 1933 Act and the 1933 Act Regulations so as to permit the
completion of the distribution of the Shares as contemplated in this Agreement
and in the Prospectus. In case you are required to deliver a prospectus within
nine months after the time of issue of the Prospectus or any Term Sheet in
connection with the offering or sale of the Shares and if at such time any event
shall have occurred as a result of which the Prospectus or any Term Sheet as
then
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amended or supplemented would include an untrue statement of a material fact
or omit to state any material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made when such
Prospectus or any Term Sheet is delivered, not misleading, or, if for any
reason it shall be necessary during such period to amend or supplement the
Prospectus or any Term Sheet in order to comply with the 1933 Act or the 1933
Act Regulations, the Company will notify you and upon your request prepare
promptly and furnish without charge to each Underwriter and to any dealer in
securities as many copies as you may from time to time reasonably request of
an amended Prospectus or any Term Sheet or a supplement to the Prospectus or
any Term Sheet which will correct such statement or omission or effect such
compliance. In case any Underwriter is required to deliver a prospectus in
connection with sales of any of the Shares at any time nine months or more
after the time of issue of the Prospectus or any Term Sheet, upon your
request but at the expense of such Underwriter, the Company will prepare and
deliver to such Underwriter as many copies as you may request of an amended
or supplemented Prospectus or any Term Sheet complying with the requirements
of Section 10(a)(3) of the 1933 Act.
(e) The Company will use its best efforts, in cooperation with you, to
qualify the Shares for offering and sale under the applicable securities laws of
such states and other jurisdictions as you may designate and to maintain such
qualifications in effect for as long as may be necessary to complete the
distribution of the Shares; PROVIDED, HOWEVER, that the Company shall not be
obligated to file any general consent to service of process or to qualify as a
foreign corporation in any jurisdiction in which it is not otherwise so subject.
The Company will file such statements and reports as may be required by the laws
of each jurisdiction in which the Shares have been qualified as above provided.
(f) The Company will use the net proceeds received by it from the sale of
the Shares in the manner specified in the Prospectus under the caption "Use of
Proceeds."
(g) The Company will make generally available to its security holders as
soon as practicable, but in any event not later than the end of the fiscal
quarter first occurring after the first anniversary of the "effective date of
the Registration Statement" (as defined in Rule 158(c) of the 1933 Act
Regulations), an earnings statement (in reasonable detail but which need not be
audited) complying with the provisions of Section 11(a) of the 1933 Act and Rule
158 thereunder and covering a period of at least 12 months beginning after the
effective date of the Registration Statement.
(h) During a period of five years from the date hereof, the Company will
furnish to its stockholders, as soon as practicable after the end of each
respective period, annual reports (including financial statements audited by
independent public accountants) and will furnish to you: (i) concurrently with
furnishing to its stockholders, a balance sheet of the Company as of the end of
such fiscal year, together with statements of operations, of cash flows and of
stockholders' equity of the Company for such fiscal year, accompanied by a copy
of the certificate or report thereon of independent public accountants; (ii) as
soon as they are available, copies of all reports (financial or otherwise)
mailed to stockholders; (iii) as soon as they are available, copies of all
reports and financial statements furnished to or filed with the Commission, any
securities exchange or the NASD; (iv) concurrently with its release, every
material press release in respect of the Company or its affairs which is
released or prepared by the Company; and (v) any additional information of a
public nature concerning the Company or its business that you may reasonably
request. During such five-year period, the foregoing financial statements shall
be on a consolidated basis to the extent that the accounts of the Company are
consolidated with any subsidiaries, and shall be accompanied by similar
financial statements for any significant Subsidiary that is not so consolidated.
(i) For a period of 180 days from the date hereof, the Company will
not, without your prior written consent, directly or indirectly, sell, offer
to sell, grant any option for the sale of, or otherwise dispose of, any Class
A Common Stock or securities convertible into Class A Common Stock, other
than to the Underwriters pursuant to this Agreement except for: (i)
contributions to employee benefit plans in existence on the date of the
execution of this Agreement or as contemplated by the Prospectus; (ii) the
grant of options pursuant to the Company's Stock Option Plan in effect at the
time of execution of this Agreement; or (iii) pursuant to an exercise of
stock options or sale of Common Stock pursuant to a "cashless exercise" of
stock options which are outstanding on the date of the Prospectus or upon
conversion of convertible securities.
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(j) For three years after the effective date of the Registration
Statement, the Company will maintain a transfer agent and, if necessary under
the jurisdiction of incorporation of the Company, a registrar (which may be
the same entity as the transfer agent) for its Class A Common Stock.
(k) For three years after the effective date of the Registration
Statement, the Company will use its best efforts to maintain the listing of
its shares of Class A Common Stock on NSM.
(l) The Company is familiar with the Investment Company Act of 1940, as
amended, and the rules and regulations thereunder, and has in the past conducted
its affairs, and will in the future conduct its affairs, in such a manner so as
to ensure that the Company was not and will not be an "investment company"
within the meaning of the Investment Company Act of 1940 and the rules and
regulations thereunder.
(m) The Company will not, and will use its best efforts to cause its
officers, directors and affiliates not to: (i) take, directly or indirectly
prior to the termination of the underwriting syndicate contemplated by this
Agreement, any action designed to stabilize or manipulate the price of any
security of the Company, or which may cause or result in, or which might in the
future reasonably be expected to cause or result in, the stabilization or
manipulation of the price of any security of the Company, to facilitate the sale
or resale of any of the Shares; (ii) sell, bid for, purchase or pay anyone any
compensation for soliciting purchases of the Shares; or (iii) pay or agree to
pay to any person any compensation for soliciting any order to purchase any
other securities of the Company.
(n) If at any time during the 30-day period after the Registration
Statement becomes effective, any rumor, publication or event relating to or
affecting the Company shall occur as a result of which in your reasonable
opinion the market price of the Common Stock has been or is likely to be
materially affected (regardless of whether such rumor, publication or event
necessitates a supplement or amendment of the Prospectus) and after written
notice from you advising the Company to the effect set forth above, the Company
agrees to forthwith prepare, consult with you concerning the substance of, and
disseminate a press release or other public statement, reasonably satisfactory
to you, responding to or commenting on such rumor, publication or event to
the extent it can do so consistent with its legal obligations.
(o) The Company will file timely and accurate information with the
Commission in accordance with Rule 463 of the 1933 Act Regulations or any
successor provision.
(p) The Company will supply the Underwriters with copies of all
correspondence to and from and all documents issued to and by the Commission or
the Commission staff in connection with the registration of the Shares under the
1933 Act.
Section 5. COVENANTS OF THE SELLING STOCKHOLDER. The Selling Stockholder
covenants:
(a) To pay all taxes, if any, on the transfer and sale of the Shares to be
sold by him hereunder;
(b) To use reasonable efforts to cause the Registration Statement to
become effective, to do and perform all things to be done and performed by the
Selling Stockholder hereunder prior to the Closing Time and to satisfy all
conditions precedent to the delivery of the Shares to be sold by the Selling
Stockholder; and
(c) To not: (i) take, directly or directly, prior to the termination of
the underwriting syndicate contemplated by this Agreement, any action designed
to stabilize or manipulate the price of any security of the Company, or which
may cause or result in, or which might in the future reasonably be expected to
cause or result in, the stabilization or manipulation of the price of any
security of the Company, to facilitate the sale or resale of any of the Shares;
(ii) sell, bid for, purchase or pay anyone any compensation for soliciting
purchases of the Shares; or (iii) pay or agree to pay to any person any
compensation for soliciting any order to purchase any other securities of the
Company.
Section 6. PAYMENT OF EXPENSES. (a) The Company will pay and bear all
costs, fees and expenses incident to the performance of its obligations under
this Agreement, including: (i) the preparation, printing and filing of the
Registration Statement (including financial statements and exhibits), as
originally filed and as amended, the Preliminary
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Prospectuses and the Prospectus and any amendments or supplements thereto,
and the cost of furnishing copies thereof to the Underwriters; (ii) the
preparation, printing and distribution of this Agreement, the Selected Dealer
Agreement, and any instruments relating to any of the foregoing; (iii) the
issuance and delivery of the Shares to the Underwriters, including any
transfer taxes payable upon the sale of the Shares to the Underwriters (other
than transfer taxes on resales by the Underwriters); (iv) the fees and
disbursements of the Company's counsel and accountants; (v) the qualification
of the Shares under the applicable securities laws in accordance with Section
1(f) hereof and any filing for review of the offering with the NASD,
including filing fees and fees and disbursements of counsel for the
Underwriters in connection therewith; (vi) the transfer agent's and
registrar's fees and all miscellaneous expenses referred to in Item 14 of the
Registration Statement; (vii) costs related to travel and lodging incurred by
the Company and its representatives relating to meetings with and
presentations to prospective purchasers of the Shares reasonably determined
by the Underwriters to be necessary or desirable to effect the sale of the
Shares to the public; and (iii) all other costs and expenses incident to the
performance of the Company's obligations hereunder (including costs incurred
in closing the purchase of the Option Shares, if any) that are not otherwise
specifically provided for in this section. The Company, upon your request,
will provide funds in advance for filing fees in connection with "blue sky"
qualifications and the NASD.
(b) The Selling Stockholder shall pay his proportionate share of all
Underwriters' commissions relating to Shares of the Company sold by such Selling
Stockholder.
(c) If the sale of Shares provided for herein is not consummated
because any condition to the obligations of the Underwriters set forth in
Section 7 hereof is not satisfied, because of any termination pursuant to
Section 11 hereof or because of any refusal, inability or failure on the part
of the Company or the Selling Stockholder to perform any agreement herein or
comply with any provision hereof other than by reason of a default by any of
the Underwriters, the Company and the Selling Stockholder will, based upon
their respective percentage of the Firm Shares, reimburse the Underwriters
severally on demand for all reasonable out-of-pocket expenses, including fees
and disbursements of Underwriters' counsel, reasonably incurred by the
Underwriters in reviewing the Registration Statement and the Prospectus, and
in investigating and making preparations for the marketing of the Shares.
Section 7. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations of
the Underwriters to purchase and pay for the Shares that they have severally
agreed to purchase pursuant to this Agreement (including any Option Shares as
to which the option granted in Section 3 has been exercised and the Date of
Delivery determined by you is the same as the Closing Time) are subject to
the accuracy in all material respects of the representations and warranties
of the Company and the Selling Stockholder contained herein or in
certificates of any officer of the Company delivered pursuant to the
provisions hereof, to the performance by the Company and the Selling
Stockholder in all material respects of their respective obligations
hereunder, and to the following further conditions:
(a) The Registration Statement shall have become effective not later
than 5:30 P.M., eastern time, on the date of this Agreement or, with your
consent, at a later time and date not later, however, than 5:30 P.M., eastern
time, on the first business day following the date hereof, or at such later
time or on such later date as you may agree to in writing; and at the Closing
Time no stop order suspending the effectiveness of the Registration Statement
shall have been issued under the 1933 Act and no proceedings for that purpose
shall have been instituted or shall be pending or, to your knowledge or the
knowledge of the Company shall be contemplated by the Commission, and any
request on the part of the Commission for additional information shall have
been complied with to the satisfaction of counsel for the Underwriters. If
the Company has elected to rely upon Rule 430A, a prospectus containing the
Rule 430A Information shall have been filed with the Commission in accordance
with Rule 424(b) (or a post-effective amendment providing such information
shall have been filed and declared effective in accordance with the
requirements of Rule 430A).
(b) At the Closing Time you shall have received the opinion of ▇▇▇▇▇,
▇▇▇▇▇▇▇ & ▇▇▇▇▇ counsel for the Company and the Selling Stockholder, together
with signed or reproduced copies of such opinion for each of the other
Underwriters, in form and substance satisfactory to Baker, Donelson, Bearman &
▇▇▇▇▇▇▇▇, counsel for the Underwriters, to the effect that:
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(i) The Company is validly existing as a corporation in good
standing under the laws of the State of Kentucky and has the requisite
corporate power and authority to conduct its business as described in the
Registration Statement and the Prospectus. The Company is duly qualified
and in good standing as a foreign corporation in each other jurisdiction
in which the ownership or leasing of its properties or the nature or
conduct of its business makes such qualification necessary, except where
the failure to be so qualified or in good standing would not have a
material adverse effect on the financial condition or the business of
Republic taken as a whole. To the knowledge of such counsel the Company
does not own a majority interest in or control, directly or indirectly,
any corporation, association or other entity, other than the Subsidiary,
Republic Insurance Company, Republic Funding Company and Republic Capital
Trust.
(ii) The Subsidiary has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the
State of Kentucky and has the requisite corporate power and authority to
conduct its business as described in the Registration Statement and the
Prospectus. The Subsidiary is duly qualified and in good standing
as a foreign corporation in each jurisdiction in which the ownership or
leasing of its properties or the nature or conduct of its business makes
such qualification necessary, except where the failure to be so qualified
or in good standing would not have a material adverse effect on the
financial condition or the business of Republic taken as a whole.
(iii) Each of the Company and the Subsidiary has the corporate
power and authority to own or lease its properties and conduct its business
as described in the Registration Statement and the Prospectus.
(iv) The Common Stock conforms in all material respects as to
legal matters to the description thereof contained in the Registration
Statement and the Prospectus under the caption "Description of Capital
Stock."
(v) The Shares have been duly authorized and, when issued and
delivered to the Underwriters pursuant to the Underwriting Agreement
against payment of the consideration therefor as provided therein, will be
validly issued, fully paid and nonassessable. To such counsel's knowledge,
no preemptive rights of stockholders exist with respect to any of the
Shares which have not been satisfied or waived. To such counsel's
knowledge, no person or entity holds a right to require or participate in
the registration under the 1933 Act of the Shares pursuant to the
Registration Statement which has not been satisfied or waived, and, except
as set forth in the Prospectus, no person holds a right to require
registration under the 1933 Act of any shares of Common Stock of the
Company at any other time which has not been satisfied or waived. The form
of certificates evidencing the Shares complies with all applicable
requirements of Kentucky law. To such counsel's knowledge, the Selling
Stockholder has, and immediately prior to the Closing Date will have,
good and valid title to the Shares to be sold by the Selling Stockholder
hereunder, free and clear of all liens, security interests, pledges,
charges, encumbrances, defects, stockholders' agreements, voting trusts,
equities or claims of any nature whatsoever; and, upon delivery of such
Shares against payment therefor as provided herein, good and valid title
to such Shares, free and clear of all liens, security interests, pledges,
charges, encumbrances, defects, stockholders' agreements, voting trusts,
equities or claims of any nature whatsoever, will pass to the several
Underwriters.
(vi) The Company has an authorized capitalization as set forth in
the Prospectus under the caption "Capitalization." All of the issued
shares of capital stock of the Company have been duly authorized and
validly issued, are fully paid and nonassessable. To such counsel's
knowledge, none of the issued shares of capital stock of the Company
has been issued or is owned or held in violation of any preemptive
rights of stockholders. To such counsel's knowledge, all offers and
sales of the Company's capital stock described in Part II of the
Registration Statement were at all relevant times duly registered
under the 1933 Act or were exempt from the registration requirements
of the 1933 Act by reason of Sections 3(a), 3(b), 4(2) or 4(6) thereof.
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(vii) Except as disclosed in the Prospectus, to the knowledge
of such counsel, there are no outstanding (i) securities or obligations
of the Company or its Subsidiary convertible into or exchangeable for
any capital stock of the Company or such Subsidiary, (ii) warrants,
rights or options to subscribe for or purchase from the Company or such
Subsidiary any such capital stock or such convertible or exchangeable
securities or obligations, or (iii) obligations of the Company or any such
Subsidiary to issue any shares of capital stock, any such convertible or
exchangeable securities or obligations, or any such warrants, rights or
options.
(viii) To the knowledge of such counsel, there is no litigation,
arbitration, claim, governmental or other proceeding (formal or informal),
or investigation pending or overtly threatened by written communication to
the Company in which any of the Company, the Subsidiary, or Selling
Stockholder is a party or of which any property of the Company, the
Subsidiaries, or Selling Stockholder is the subject except as described
in the Prospectus or which, if determined adversely, would not have a
material adverse effect on the financial condition or business of
Republic taken as a whole.
(ix) No authorization, approval or consent of any court or
governmental authority or agency is required to be obtained by the Company,
the Subsidiary, or Selling Stockholder in connection with the offering,
issuance or sale of the Shares by the Company, except such as may be
required under the 1933 Act or the 1933 Act Regulations, state securities
laws or by the NASD. Neither the execution nor delivery by the Company of
this Agreement, nor the performance by the Company or the Selling
Stockholder of their obligations hereunder will, (a) result in the
violation of any applicable law or administrative regulation, or, to the
knowledge of such counsel, any decree, applicable to Republic, of any
court or administrative agency having jurisdiction over such companies or
any of their properties, or (b) conflict with or result in a breach or
default or result in the creation or imposition of a lien, charge or
encumbrance upon any property of Republic under or pursuant to any of the
provisions of their respective Articles of Incorporation, Bylaws or, to the
knowledge of such counsel, any material contract, indenture, mortgage, loan
agreement, note, lease or other material instrument to which the Company,
the Subsidiary, or Selling Stockholder is a party or by which they are
bound, or to which any material amount of the property or assets of the
Company, the Subsidiary, or the Selling Stockholder is subject.
(x) To the knowledge of such counsel, there are no pending
or threatened condemnation proceedings, zoning change or other proceeding
or action that will in any manner affect the size of, use of, improvements
on, construction on or access to such real property and improvements except
such proceedings or actions that would not have a material adverse effect
on the financial condition or business of Republic taken as a whole.
(xi) Except as described in the Prospectus, such counsel does not
know of any past, pending or threatened action, suit, proceeding, inquiry
or investigation before any court or before or by any public, regulatory or
governmental body or board against or involving the properties or business
of the Company, the Selling Stockholder, or the Subsidiaries of a
character required to be disclosed in the Prospectus or, as to threatened
litigation, of a character which would be required to be disclosed if
filed, or in either case which, if successful, would have a material
adverse effect on the financial condition or business of Republic taken
as a whole.
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(xii) The Registration Statement and any 462(b) Registration
Statement has become effective under the 1933 Act and, to the knowledge of
such counsel, no stop order suspending the effectiveness of the
Registration Statement or any 462(b) Registration Statement has been issued
and no proceeding for that purpose has been instituted or is pending or
contemplated by the Commission.
(xiii) The descriptions in the Registration Statement and the
Prospectus of the contracts, leases and other legal documents therein
described present fairly the information required to be shown and there are
no contracts, leases or other documents known to such counsel of a
character required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement which
are not described or filed as required. There are no statutes or
regulations applicable to the Company or the Subsidiary or certificates,
permits or other authorizations from governmental regulatory officials or
bodies required to be obtained or maintained by the Company of a character
required to be disclosed in the Registration Statement or the Prospectus
which have not been so disclosed and described therein. [All agreements
between the Company or the Subsidiary and third parties expressly
referenced in the Prospectus are legal, valid and binding obligations of
the Company, enforceable in accordance with their respective terms, except
to the extent enforceability may be limited by bankruptcy, insolvency,
reorganization or other laws of general applicability relating to or
affecting creditors' rights and to general equitable principles.]
(xiv) The Company and the Selling Stockholder have all requisite
power and authority to execute, deliver and perform this Agreement and to
consummate the transactions contemplated hereby, including the issuance,
sale and delivery by them of the Shares hereunder. The opinions called for
by this clause (xv) may exclude from their scope any authorization,
approval, order, license, certificate or permit as may be required under
the "blue sky" laws of any jurisdiction in connection with the distribution
of the Shares contemplated by the Registration Statement.
(xv) This Agreement has been duly authorized, executed and
delivered by the Company and the Selling Stockholder, and, assuming the
due authorization, execution and delivery by the Underwriters, will be
valid and binding obligations of the Company and the Selling Stockholder
enforceable in accordance with its terms, except to the extent
enforceability may be limited by bankruptcy, insolvency, reorganization
or other laws of general applicability relating to or affecting creditor's
rights, to general equity
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principles, and except to the extent that the indemnification provisions
in Section 9 of the Agreement may be limited by federal or state
securities laws or the public policy underlying such laws.
(xvi) Neither the Company nor the Subsidiary is presently in
breach of or default under its Articles of Incorporation or Bylaws, and no
material default exists and, to the best knowledge of such counsel, no
event has occurred which with notice or after the lapse of time to cure or
both, would constitute a material default, in the due performance and
observance of any term, covenant or condition of any indenture, mortgage,
deed of trust, loan agreement, note, lease or other agreement or instrument
known to such counsel to which the Company and the Subsidiary is a party
or to which any of its properties is subject, in any such case where the
consequences of such violation or default is likely to have a material
adverse effect on the financial condition or business of Republic taken
as a whole.
(xvii) Neither the Company nor its Subsidiary is an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended, and the rules and regulations thereunder.
(xviii) To the knowledge of such counsel, all distributions by
the Company and the Subsidiary to their respective stockholders
over the past three years have been made in accordance with the laws
of the state of their incorporation and with all other laws and
regulations affecting such distributions.
(xix) We have participated in conferences with certain officers
of, and with the accountants and counsel for, the Company concerning the
preparation of the Registration Statement and the Prospectus. Although we
have made certain inquiries and investigations in connection with the
preparation of the Registration Statement and the Prospectus, the
limitations inherent in the role of outside counsel are such that we cannot
and do not assume responsibility for the accuracy or completeness of the
statements made in the Registration Statement and Prospectus, except
insofar as such statements relate to us. Subject to the foregoing, we
hereby advise you that our work in connection with this matter did not
disclose any information that gave us reason to believe that: (1) the
Registration Statement and the Prospectus (except the financial statements
or other accounting or financial data included therein, as to which we do
not express any view) were not, as of their respective effective or issue
dates, appropriately responsive in all material respects to the
requirements of the Securities Act and the applicable rules and regulations
of the Securities and Exchange Commission thereunder, and (ii) the
Registration Statement, at the time the Registration Statement became
effective, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading; or that the Prospectus, at the
date thereof, includes or included an untrue statement of a material
fact or omits or omitted to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading (in each case except for the financial
statements and other accounting or financial data included therein, as to
which we do not express any view).
In rendering the foregoing opinion, such counsel may rely on the following:
(A) as to matters involving the application of laws other than
the laws of the United States and jurisdictions in which they are
admitted, to the extent such counsel deem proper and to the extent
specified in such opinion, upon an opinion or opinions (in form and
substance reasonably satisfactory to Underwriters' counsel) of other
counsel familiar with applicable laws; and
(B) as to matters of fact, to the extent they deem proper, on
certificates of responsible officers of the Company and the Selling
Stockholder and certificates or other written statements of officers
or departments of various jurisdictions having custody of documents
respecting the corporate existence or good standing of the Company and
certificates of the Company's transfer agent, provided that copies of
all such opinions, statements or certificates shall be delivered to
Underwriters' counsel,
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and, if written confirmation of the Commission is not available at
the time such opinion is rendered, upon the current oral
representations of members of the Commission's staff with respect
to the Registration Statement or any amendment or supplement
thereto having become effective and the lack of issuance of a stop
order or institution of proceedings for that purpose. The opinion
of counsel for the Company shall state that the opinion of any
other counsel, or certificate or written statement, on which such
counsel is relying is in form satisfactory to such counsel and that
you and they are justified in relying thereon.
(c) At the Closing Time, you shall have received a favorable opinion from
Baker, Donelson, Bearman & ▇▇▇▇▇▇▇▇, counsel for the Underwriters, dated as of
the Closing Time, with respect to the Registration Statement, the Prospectus and
other related matters as the Underwriters may reasonably require, and the
Company shall have furnished to such counsel such documents as they reasonably
request for the purpose of enabling them to pass upon such matters.
(d) At the Closing Time:
(i) the Registration Statement, any 462(b) Registration
Statement, and the Prospectus, as they may then be amended or supplemented,
shall contain all statements that are required to be stated therein under
the 1933 Act and the 1933 Act Regulations and in all material respects
shall conform to the requirements of the 1933 Act and the 1933 Act
Regulations, the Company shall have complied in all material respects with
Rule 430A (if it shall have elected to rely thereon) and neither the
Registration Statement, any 462(b) Registration Statement nor the
Prospectus, as they may then be amended or supplemented, shall contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading;
(ii) there shall not have been, since the respective dates as of
which information is given in the Registration Statement, any material
adverse change in the business, prospects, properties, assets, results of
operation or condition (financial or otherwise) of the Company, whether or
not arising in the ordinary course of business;
(iii) no action, suit or proceeding at law or in equity shall be
pending or, to the best of the Company's knowledge, threatened against the
Company, the Subsidiary, and the Selling Stockholder that would be
required to be set forth in the Prospectus other than as set forth therein
and no proceedings shall be pending or, to the knowledge of the Company or
the Selling Stockholder, threatened against the Company before or by any
federal, state or other commission, board or administrative agency wherein
an unfavorable decision, ruling or finding could materially adversely
affect the business, prospects, properties, assets, results of operations
or condition (financial or otherwise) of the Company, other than as set
forth in the Prospectus;
(iv) the Company and the Selling Stockholder shall have complied
with all agreements and satisfied all conditions on their respective parts
to be performed or satisfied at or prior to the Closing Time; and
(v) the representations and warranties of the Company and the
Selling Stockholder set forth in Section 1 and the representations and
warranties of the Selling Stockholder set forth in Section 2 shall be
accurate in all material respects as though expressly made at and as
of the Closing Time. At the Closing Time, you shall have received
certificates executed by the Selling Stockholder, the President and
the Chief Financial Officer of the Company, dated as of the Closing
Time, to such effect and with respect to the following additional matters:
(A) the Registration Statement has become effective under the
1933 Act and no stop order suspending the effectiveness of the
Registration Statement or preventing or suspending the use of the
Prospectus has been issued, and no proceedings for that purpose have
been instituted or are pending or, to the best of their knowledge,
threatened under the 1933 Act; and
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(B) they have carefully reviewed the Registration Statement, any
462(b) Registration Statement and the Prospectus and when the
Registration Statement and any 462(b) Registration Statement became
effective and at all times subsequent thereto up to the delivery of
such certificate, the Registration Statement, any 462(b) Registration
Statement and the Prospectus and any amendments or supplements thereto
contained all statements and information required to be included
therein or necessary to make the statements therein not misleading and
neither the Registration Statement, any 462(b) Registration Statement
nor Prospectus and any amendment or supplement thereto included any
untrue statement of a material fact or omitted to state any material
fact required to be stated therein or necessary in order to make the
statements therein not misleading, and, since the effective date of
the Registration Statement, there has occurred no event required to be
set forth in an amended or supplemented Prospectus that has not been
so set forth, and
(C) all representations, warranties, covenants and statements
made herein by the Company and the Selling Stockholder, respectively,
are true and correct in all material respects at such Closing Time,
with the same effect as if made on and as of such Closing Time, and
all agreements herein to be performed by the Company and the Selling
Stockholder, respectively, on or prior to such Closing Time have
been duly performed.
(e) On the business day immediately preceding the date of this
Agreement you shall have received from ▇▇▇▇▇ ▇▇▇▇▇▇ and Company LLP, a letter
or letters, dated the date hereof and as of the Closing Time in form and
substance satisfactory to you, together with signed or reproduced copies of
such letter for each of the other Underwriters, confirming that they are
independent public accountants with respect to the Company within the meaning
of the 1933 Act and 1933 Act Regulations, stating in effect that:
(i) in their opinion, the financial statements and any
supplementary financial information and schedules included in the
Registration Statement and covered by their opinion therein comply as to
form in all material respects with the applicable accounting requirements
of the 1933 Act and the 1933 Act Regulations;
(ii) on the basis of limited procedures (set forth in detail in
such letter and made in accordance with such procedures as may be
reasonably specified by you) not constituting an audit in accordance with
generally accepted auditing standards, consisting of (but not limited to) a
reading of the latest available internal unaudited financial statements of
Republic, a reading of minute books of Republic, inquiries of officials of
the Company responsible for financial and accounting matters, and such
other inquiries and procedures, as may be specified in such letter, nothing
has come to their attention which caused them to believe that:
(A) the unaudited financial statements and supporting schedules
and other unaudited financial data of the Company included in the
Registration Statement do not comply as to form in all material
respects with the applicable accounting requirements of the 1933 Act
or the 1933 Regulations or are not presented in conformity with
generally accepted accounting principles applied on a basis
substantially consistent with that of the audited financial statements
included in the Registration Statement;
(B) the amounts of revenues, income before income taxes, net
income and net income per share for the five fiscal years ended
December 31, 1997 included in the Prospectus under the caption
"Consolidated Financial Statements" do not agree with the
corresponding amounts in the audited statements of earnings;
(C) at a specified date not more than five business days prior
to the date of delivery of such letter, there was any change in the
capital stock or long-term debt or obligations under capital leases of
the Company other than scheduled repayments or any decreases in total
assets, stockholders'
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equity or other items specified by the Underwriters from that set
forth in the Consolidated Balance Sheet at December 31, 1997,
included in the Prospectus, except as described in such letter;
(D) for the period from December 31, 1997, to a specified date
not more than five days prior to the date of delivery of such letter,
there were any decreases in revenues, gross profit, or the total or
per share amounts of income before extraordinary items or net income,
of the Company, in each case as compared with the corresponding period
of the preceding year, except in each case for decreases or increases
which the Prospectus discloses have occurred or may occur or which are
described in such letter; and
(iii) in addition to the procedures referred to in clause (ii)
above and the examination referred to in their opinions included in the
Registration Statement, they have carried out certain specific procedures,
not constituting an audit in accordance with generally accepted auditing
standards, with respect to certain amounts, percentages and financial
information specified by you which are derived from the general accounting
records of the Company, which appear in the Registration Statement or the
exhibits or schedules thereto and are specified by you, and have compared
such amounts, percentages and financial information with the accounting
records of the Company and with material derived from such records and have
found them to be in agreement.
(f) At the Closing Time, you shall have received from ▇▇▇▇▇ ▇▇▇▇▇▇ and
Company LLP a letter, in form and substance satisfactory to you and dated as of
the Closing Time, to the effect that they reaffirm the statements made in the
letter furnished pursuant to subsection (e) above, except that the specified
date referred to shall be a date not more than five business days prior to the
Closing Time.
(g) In the event that either of the letters to be delivered pursuant to
subsections (e) and (f) above sets forth any such changes, decreases or
increases, it shall be a further condition to your obligations that you shall
have determined, after discussions with officers of the Company responsible for
financial and accounting matters and with ▇▇▇▇▇ ▇▇▇▇▇▇ and Company LLP, that
such changes, decreases or increases as are set forth in such letters do not
reflect a material adverse change in the capital stock, long-term debt,
obligations under capital leases, total assets, or stockholders' equity of the
Company as compared with the amounts shown in the latest condensed consolidated
balance sheet of the Company, or a material adverse change in revenues or the
total or per share amounts of income before extraordinary items or net income,
of the Company, in each case as compared with the corresponding period of the
prior year.
(h) At the Closing Time, counsel for the Underwriters shall have been
furnished with all such documents, certificates and opinions as they may request
for the purpose of enabling them to pass upon the issuance and sale of the
Shares as contemplated in this Agreement and the matters referred to in Section
7(d) and in order to evidence the accuracy and completeness of any of the
representations and warranties or statements of the Company, the performance of
any of the covenants of the Company, or the fulfillment of any of the conditions
herein contained; and all proceedings taken by the Company at or prior to the
Closing Time in connection with the authorization, issuance and sale of the
Shares as contemplated in this Agreement shall be satisfactory in form and
substance to you and to counsel for the Underwriters. The Company will furnish
you with such number of conformed copies of such opinion, certificates, letters
and documents as you shall request.
(i) The NASD, upon review of the terms of the public offering of the
Shares, shall not have objected to such offering, such terms or the
Underwriters' participation in the same.
(j) The Firm Shares and the Option Shares, if any, shall have been
approved for listing on NSM upon official notice of the issuance, sale and
evidence of satisfactory distribution thereof pursuant to this underwritten
public offering.
(k) Each executive officer, director and stockholder of the Company
specified in Section 1(j) hereof shall have agreed in writing as to the matters
set forth in such section.
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If any of the conditions specified in this Section 7 shall not have been
fulfilled when and as required by this Agreement to be fulfilled, this Agreement
may be terminated by you on notice to the Company and the Selling Stockholder at
any time at or prior to the Closing Time, and such termination shall be without
liability of any party to any other party. Notwithstanding any such
termination, the provisions of Section 9 shall remain in effect and shall
survive the term of this Agreement.
Section 8. CONDITIONS TO PURCHASE OF OPTION SHARES. In the event that the
Underwriters exercise the option granted in Section 3 hereof to purchase all or
any part of the Option Shares and the Date of Delivery determined by you
pursuant to Section 3 hereof is later than the Closing Time, the obligations of
the several Underwriters to purchase and pay for the Option Shares that they
shall have severally agreed to purchase pursuant to this Agreement are subject
to the accuracy of the representations and warranties of the Company and Selling
Stockholder herein contained, to the performance by the Company and the Selling
Stockholder of their obligations hereunder and to the following further
conditions:
(a) The Registration Statement shall remain effective at the Date of
Delivery, and, at the Date of Delivery, no stop order suspending the
effectiveness of the Registration Statement shall have been issued under the
1933 Act and no proceedings for that purpose shall have been instituted or shall
be pending or, to your knowledge or the knowledge of the Company or the Selling
Stockholder, shall be contemplated by the Commission, and any request on the
part of the Commission for additional information shall have been complied with
to the satisfaction of counsel for the Underwriters.
(b) At the Date of Delivery, the provisions of Sections 7(d)(i) through
7(d)(v) shall have been complied with at and as of the Date of Delivery and, at
the Date of Delivery, you shall have received certificates executed by the
Selling Stockholder, the President and the Chief Financial Officer of the
Company, dated as of the Date of Delivery, to such effect and to the effect set
forth in clauses (A), (B) and (C) of Section 7(d)(v).
(c) At the Date of Delivery, you shall have received a favorable opinion
of ▇▇▇▇▇, Tarrant & ▇▇▇▇▇, counsel for the Company and the Selling Stockholder,
together with signed or reproduced copies of such opinion for each of the other
Underwriters, in form and substance satisfactory to counsel for the
Underwriters, dated as of the Date of Delivery, relating to the Option Shares
and otherwise to the same effect as the opinion required by Section 7(b).
(d) At the Date of Delivery, you shall have received a favorable opinion
of Baker, Donelson, Bearman & ▇▇▇▇▇▇▇▇, counsel for the Underwriters, dated as
of the Date of Delivery relating to the Option Shares and otherwise to the same
effect as the opinion required by Section 7(c).
(e) At the Date of Delivery, you shall have received a letter from ▇▇▇▇▇
▇▇▇▇▇▇ and Company LLP, in form and substance satisfactory to you and dated as
of the Date of Delivery, to the effect that they reaffirm the statements made in
the letter furnished pursuant to Section 7(e), except that the specified date
referred to shall be a date nor more than five business days prior to the Date
of Delivery.
(f) At the Date of Delivery, counsel for the Underwriters shall have been
furnished with all such documents, certificates and opinions as they may request
for the purpose of enabling them to pass upon the issuance and sale of the
Option Shares as contemplated in this Agreement and the matters referred to in
Section 8(a) and in order to evidence the accuracy and completeness of any of
the representations, warranties or statements of the Company and the Selling
Stockholder, the performance of any of the covenants of the Company and the
Selling Stockholder, or the fulfillment of any of the conditions herein
contained; and all proceedings taken by the Company and the Selling Stockholder,
at or prior to the Date of Delivery in connection with the authorization,
issuance and sale of the Option Shares as contemplated in this Agreement shall
be satisfactory in form and substance to you and to counsel for the
Underwriters.
Section 9. INDEMNIFICATION AND CONTRIBUTION. (a) The Company and the
Selling Stockholder jointly and severally will indemnify and hold harmless
each Underwriter against any losses, claims, damages or
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liabilities, joint or several, to which such Underwriter may become subject
under the 1933 Act, specifically including but not limited to losses, claims,
damages or liabilities related to negligence on the part of any Underwriter,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any breach of any warranty or covenant
of the Company herein contained or any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement, any
Preliminary Prospectus, the Prospectus, or any amendment or supplement thereto,
or in any "blue sky" application or other document executed by the Company or
based upon any information furnished in writing by the Company, filed in any
jurisdiction in order to qualify any or all of the Shares under the securities
laws thereof ("Blue Sky Application"), or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading; and
will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending any
such loss, claim, damage, liability or action; PROVIDED, HOWEVER, that the
Company and the Selling Stockholder shall not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in the Registration Statement, such Preliminary Prospectus or the
Prospectus, or such amendment or supplement, or any Blue Sky Application in
reliance upon and in conformity with written information furnished to the
Company by you or by any Underwriter through you expressly for use therein;
PROVIDED, FURTHER, that the Company and the Selling Stockholder will not be
liable for any such losses, claims, damages, or liabilities arising from the
sale of the Shares to any person if a copy of the Prospectus (as first filed
pursuant to Rule 424(b)) or the Prospectus as amended or supplemented by all
amendments or supplements thereto which has been furnished to the Underwriters
shall not have been sent, mailed or given to such person, at or prior to the
written confirmation of the sale of such Shares to such person, but only if and
to the extent that such Prospectus, if so sent or delivered, would have cured
the defect giving rise to such losses, claims, damages or liabilities. In
addition to their other obligations under this Section 9(a), the Company and the
Selling Stockholder agree that, as an interim measure during the pendency of any
such claim, action, investigation, inquiry or other proceeding arising out of or
based upon any statement or omission, or any alleged statement or omission,
described in this Section 9(a), they will reimburse the Underwriters on a
monthly basis for all reasonable legal and other expenses incurred in connection
with investigating or defending any such claim, action, investigation, inquiry
or other proceeding, notwithstanding the absence of a judicial determination as
to the propriety and enforceability of the Company's and the Selling
Stockholder's obligation to reimburse the Underwriters for such expense and the
possibility that such payments might later be held to have been improper by a
court of competent jurisdiction. Any such interim reimbursement payments that
are not made to an Underwriter within 30 days of a request for reimbursement
shall bear interest at the prime rate (or reference rate or other commercial
lending rate for borrowers of the highest credit standing) announced from time
to time by First Tennessee Bank National Association (the "Prime Rate") from the
date of such request. This indemnity agreement shall be in addition to any
liabilities that the Company may otherwise have. For purposes of this Section
9, the information set forth in the last paragraph on the front cover page
(insofar as such information related to the Underwriters) and under
"Underwriting" in any Preliminary Prospectus and in the Prospectus constitutes
the only information furnished by the Underwriters to the Company for inclusion
in any Preliminary Prospectus, the Prospectus or the Registration Statement.
Notwithstanding anything to the contrary herein, the indemnity by the Selling
Stockholder shall in no event exceed the net proceeds received by the Selling
Stockholder in this Offering.
(b) Each Underwriter, severally but not jointly, will indemnify and hold
harmless the Company and the Selling Stockholder against any losses, claims,
damages or liabilities to which the Company or the Selling Stockholder may
become subject, under the 1933 Act specifically including but not limited to
losses, claims, damages or liabilities related to negligence on the part of the
Company and the Selling Stockholder, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
breach of any warranty or covenant by you herein contained or any untrue
statement or alleged untrue statement of any material fact contained in the
Registration Statement, any Preliminary Prospectus, the Prospectus, or any
amendment or supplement thereto, or any Blue Sky Application or arise out of or
are based upon the omission or the alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission was
made in the Registration Statement, such Preliminary Prospectus or the
Prospectus, or such amendment or supplement, or any Blue Sky Application, in
reliance upon and in conformity with information furnished to the Company by
such Underwriter expressly for use therein; and will reimburse the Company and
the Selling Stockholder for any legal or other expenses reasonably incurred by
the Company or the Selling Stockholder in connection with investigating or
defending any such
-23-
loss, claim, damage, liability or action. In addition to their other
obligations under this Section 9(b), the Underwriters agree that, as an
interim measure during the pendency of any such claim, action, investigation,
inquiry or other proceeding arising out of or based upon any statement or
omission, or any alleged statement or omission, described in this Section
9(b), they will reimburse the Company and the Selling Stockholder on a
monthly basis for all reasonable legal and other expenses incurred in
connection with investigating or defending any such claim, action,
investigation, inquiry or other proceeding, notwithstanding the absence of a
judicial determination as to the propriety and enforceability of their
obligation to reimburse the Company or the Selling Stockholder for such
expense and the possibility that such payments might later be held to have
been improper by a court of competent jurisdiction. Any such interim
reimbursement payments that are not made to the Company or the Selling
Stockholder within 30 days of a request for reimbursement shall bear interest
at the Prime Rate from the date of such request. This indemnity agreement
shall be in addition to any liabilities which the Underwriters may otherwise
have.
The indemnity agreement in this Section 9(b) shall extend upon the same
terms and conditions to, and shall inure to the benefit of, each officer and
director of the Company and each person, if any, who controls the Company within
the meaning of the 1933 Act to the same extent as such agreement applies to the
Company.
(c) The Selling Stockholder shall indemnify and hold harmless the Company
and the Underwriters against any losses, claims, damages or liabilities to which
the Company or the Underwriters may become subject, under the 1933 Act
specifically including but not limited to losses, claims, damages or liabilities
related to negligence on the part of the Company or the Underwriters, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any breach of any warranty or covenant by the
Selling Stockholder herein contained or any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement, any
Preliminary Prospectus, the Prospectus, or any amendment or supplement thereto,
or any Blue Sky Application or arise out of or are based upon the omission or
the alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each case
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in the Registration
Statement, such Preliminary Prospectus or the Prospectus, or such amendment or
supplement, or any Blue Sky Application, in reliance upon and in conformity with
written information furnished to the Company by such Selling Stockholder
expressly for use therein; and will reimburse the Company and the Underwriters
for any legal or other expenses reasonably incurred by the Company or the
Underwriters in connection with investigating or defending any such loss, claim,
damage, liability or action. In addition to his other obligations under this
Section 9(c), the Selling Stockholder agree that, as an interim measure during
the pendency of any such claim, action, investigation, inquiry or other
proceeding arising out of or based upon any statement or omission, or any
alleged statement or omission, described in this Section 9(c), he will reimburse
the Company and the Underwriters on a monthly basis for all reasonable legal and
other expenses incurred in connection with investigating or defending any such
claim, action, investigation, inquiry or other proceeding, notwithstanding the
absence of a judicial determination as to the propriety and enforceability of
his obligation to reimburse the Company or the Underwriters for such expense and
the possibility that such payments might later be held to have been improper by
a court of competent jurisdiction. Any such interim reimbursement payments that
are not made to the Company or the Underwriters within 30 days of a request for
reimbursement shall bear interest at the Prime Rate from the date of such
request. This indemnity agreement shall be in addition to any liabilities which
the Selling Stockholder may otherwise have.
The indemnity agreement in this Section 9(c) shall extend upon the same
terms and conditions to, and shall inure to the benefit of, each officer and
director of the Company and each person, if any, who controls the Company within
the meaning of the 1933 Act to the same extent as such agreement applies to the
Company.
(d) Within ten days after receipt by an indemnified party under subsection
(a), (b) or (c) above of notice of commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; no indemnification provided in this Section
9(a), 9(b) or 9(c) shall be available to any party who shall fail to give notice
as provided in this Section 9(d) if the party to whom notice was not given was
unaware of the proceeding to which such notice would have related and was
prejudiced by the failure to give such notice, but the omission so to notify the
-24-
indemnifying party will not relieve the indemnifying party from any liability
that it may have to any indemnified party otherwise than under this Section 9.
In case any such action shall be brought against any indemnified party and it
shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate therein, and, to the extent
that it shall wish, jointly with any other indemnifying party, similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof the
indemnifying party shall not be liable to such indemnified party for any legal
or other expenses, other than 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 own counsel in any such
action, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the employment of counsel by such indemnified
party has been authorized by the indemnifying party, (ii) the indemnified party
shall have been advised by such counsel that there may be a conflict of interest
between the indemnifying party and the indemnified party in the conduct of the
defense of such action (in which case the indemnifying party shall not have the
right to direct the defense of such action on behalf of the indemnified party)
or (iii) the indemnifying party shall not in fact have employed counsel to
assume the defense of such action, in any of which events such fees and expenses
shall be borne by the indemnifying party. The indemnifying party shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
(e) It is agreed that any controversy arising out of the operation of the
interim reimbursement arrangements set forth in Section 9(a), 9(b) and 9(c)
hereof, including the amounts of any requested reimbursement payments, the
method of determining such amounts and the basis on which such amounts shall be
apportioned among the indemnifying parties, shall be settled by arbitration
conducted pursuant to the Code of Arbitration Procedure of the NASD. Any such
arbitration must be commenced by service of a written demand for arbitration or
a written notice of intention to arbitrate, therein electing the arbitration
tribunal. In the event the party demanding arbitration does not make such
designation of an arbitration tribunal in such demand or notice, then the party
responding to said demand or notice is authorized to do so. Any such
arbitration will be limited to the operation of the interim reimbursement
provisions contained in Sections 9(a), 9(b) and 9(c) hereof and will not resolve
the ultimate propriety or enforceability of the obligation to indemnify for
expenses that is created by the provisions of Sections 9(a), 9(b) and 9(c).
(f) In order to provide for just and equitable contribution in
circumstances under which the indemnity provided for in this Section 9 is for
any reason judicially determined (by the entry of a final judgment or decree by
a court of competent jurisdiction and the expiration of time to appeal or the
denial of the last right of appeal) to be unenforceable by the indemnified
parties although applicable in accordance with its terms, the Company, the
Selling Stockholder and the Underwriters shall contribute to the aggregate
losses, liabilities, claims, damages and expenses of the nature contemplated by
such indemnity incurred by the Company, the Selling Stockholder and one or more
of the Underwriters, as incurred, in such proportions that (i) the Underwriters
are responsible pro rata for that portion represented by the underwriting
discount appearing on the cover page of the Prospectus bears to the public
offering price (before deducting expenses) appearing thereon, and (ii) the
Company and the Selling Stockholder are responsible for the balance; PROVIDED,
HOWEVER, that no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation; PROVIDED,
FURTHER, that if the allocation provided above is not permitted by applicable
law, the Company, the Selling Stockholder and the Underwriters shall contribute
to the aggregate losses in such proportion as is appropriate to reflect not only
the relative benefits referred to above but also the relative fault of the
Company, the Selling Stockholder and the Underwriters in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. Relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company, by the Selling Stockholder or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The amount paid or payable by a party as a
result of the losses, claims, damages or liabilities referred to above shall be
deemed to include any legal or other fees or expenses reasonably incurred by
such party in connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this
-25-
subsection (f), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Shares
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. For purposes of this Section 9(f), each
person, if any, who controls an Underwriter within the meaning of Section 15
of the 1933 Act shall have the same rights to contribution as such
Underwriter, and each director of the Company, each officer of the Company
who signed the Registration Statement and each person, if any, who controls
the Company within the meaning of Section 15 of the 1933 Act shall have the
same rights to contribution as the Company.
(g) The parties to this Agreement acknowledge that they are sophisticated
business persons who were represented by counsel during the negotiations
regarding the provisions of this Agreement, including without limitation, the
provisions of this Section 9, and are fully informed regarding said provisions.
They further acknowledge that the provisions of this Section 9 fairly allocate
the risks in light of the ability of the parties to investigate the Company and
its business in order to assure that adequate disclosure is made in the
Registration Statement and Prospectus as required by the ▇▇▇▇ ▇▇▇. The parties
are advised that federal or state public policy, as interpreted by the courts in
certain jurisdictions, may be contrary to certain of the provisions of this
Section 9, and the parties hereto hereby expressly waive and relinquish any
right or ability to assert such public policy as a defense to a claim under this
Section 9 and further agree not to attempt to assert any such defense.
Section 10. REPRESENTATIONS AND AGREEMENTS TO SURVIVE DELIVERY. The
representations, warranties, indemnities, agreements and other statements of the
Selling Stockholder, the Company or its officers set forth in or made pursuant
to this Agreement will remain operative and in full force and effect regardless
of any investigation made by or on behalf of the Company, the Selling
Stockholder or any Underwriter or controlling person, with respect to an
Underwriter or the Company and will survive delivery of and payment for the
Shares or termination of this Agreement.
Section 11. EFFECTIVE DATE OF AGREEMENT AND TERMINATION. (a) This
Agreement shall become effective immediately as to Sections 6 and 9 and, as to
all other provisions, (i) if at the time of execution of this Agreement the
Registration Statement has not become effective, at 10:00 A.M. eastern time on
the first full business day following the effectiveness of the Registration
Statement, or (ii) if at the time of execution of this Agreement, the
Registration Statement has been declared effective, at 10:00 A.M. eastern time
on the first full business day following the date of execution of this
Agreement; but this Agreement shall nevertheless become effective at such
earlier time after the Registration Statement becomes effective as you may
determine on and by notice to the Company or by release of any of the Shares for
sale to the public. For the purposes of this Section 11, the Shares shall be
deemed to have been so released upon the release for publication of any
newspaper advertisement relating to the Shares or upon the release by you of
telegrams or facsimile messages (i) advising the Underwriters that the Shares
are released for public offering, or (ii) offering the Shares for sale to
securities dealers, whichever may occur first. By giving notice before the time
this Agreement becomes effective, you, as the Representative of the several
Underwriters, or the Company, may prevent this Agreement from becoming
effective, without liability of any party to any other party, except that the
Company shall remain obligated to pay costs and expenses to the extent provided
in Section 6 hereof.
(b) You may terminate this Agreement by notice to the Company and the
Selling Stockholder at any time at or prior to the Closing Time in accordance
with the last paragraph of Section 7 of this Agreement:
(i) if there has been, since the respective dates as of which
information is given in the Registration Statement, any material adverse
change, or any development which might reasonably be viewed as resulting in
a material adverse change in or affecting the assets, properties, results
of operation, financial condition or business prospects of the Company,
whether or not arising in the ordinary course of business;
(ii) if there has occurred or accelerated any outbreak of
hostilities or other national or international calamity or crisis or change
in economic or political conditions the effect of which on the financial
markets of the United States is such as to make it, in your judgment,
impracticable to market the Shares or enforce contracts for the sale of the
Shares;
-26-
(iii) if trading in any securities of the Company has been
suspended by the Commission or by the NASD or NSM, or if trading generally
on the New York Stock Exchange or in the over-the-counter market has been
suspended, or limitations on prices for trading (other than limitations on
hours or numbers of days of trading) have been fixed, or maximum ranges for
prices for securities have been required, by such exchange or the NASD or
by order of the Commission or any other governmental authority;
(iv) if a banking moratorium has been declared by federal or New
York or Kentucky authorities;
(v) any federal or state statute, regulation, rule or order of
any court or other governmental authority has been enacted, published,
decreed or otherwise promulgated which in your reasonable opinion
materially adversely affects or will materially adversely affect the
business or operations of the Company; or
(vi) any action has been taken by any federal, state or local
government or agency in respect of its monetary or fiscal affairs which in
your reasonable opinion has a material adverse effect on the securities
markets in the United States.
(c) If this Agreement is terminated pursuant to this Section 11, such
termination shall be without liability of any party to any other party, except
to the extent provided in Section 6. Notwithstanding any such termination, the
provisions of Section 9 shall remain in effect.
Section 12. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. (a) If any
Underwriter shall default in its obligation to purchase the Firm Shares which it
has agreed to purchase hereunder, you may in your discretion arrange for you or
another party or other parties to purchase such Firm Shares on the terms
contained herein. If within 36 hours after such default by any Underwriter you
do not arrange for the purchase of such Firm Shares, then the Company or the
Selling Stockholder shall be entitled to a further period of 36 hours within
which to procure another party or other parties satisfactory to you to purchase
such Firm Shares on such terms. In the event that, within the respective
prescribed periods, you notify the Company and the Selling Stockholder that you
have so arranged for the purchase of such Firm Shares, or the Company or the
Selling Stockholder notifies you that it has so arranged for the purchase of
such Firm Shares, you or the Company or the Selling Stockholder shall have the
right to postpone the Closing Time for a period of not more than seven days in
order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus, or in any other documents or
arrangements, and the Company agrees to file promptly any amendments to the
Registration Statement or the Prospectus which in your opinion may thereby be
made necessary. The term "Underwriter" as used in this Agreement shall include
any persons substituted under this Section 12 with like effect as if such person
had originally been a party to this Agreement with respect to such Firm Shares.
(b) If, after giving effect to any arrangements for the purchase of the
Firm Shares of a defaulting Underwriter or Underwriters made by you or the
Company or the Selling Stockholder as provided in subsection (a) above, the
aggregate number of Firm Shares which remains un-purchased does not exceed
100,000, then the Company shall have the right to require each non-defaulting
Underwriter to purchase the Firm Shares which such Underwriter agreed to
purchase hereunder and, in addition, to require each non-defaulting Underwriter
to purchase its pro rata share (based on the number of Firm Shares which such
Underwriter agreed to purchase hereunder) of the Firm Shares of such defaulting
Underwriter or Underwriters for which such arrangements have not been made; but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
(c) If, after giving effect to any arrangements for the purchase of the
Firm Shares of a defaulting Underwriter or Underwriters made by you or the
Company or the Selling Stockholder as provided in subsection (a) above, the
number of Firm Shares which remains un-purchased exceeds 100,000, or if the
Company shall not exercise the right described in subsection (b) above to
require non-defaulting Underwriters to purchase Firm Shares of a defaulting
Underwriter or Underwriters, then this Agreement shall thereupon terminate,
without liability on the part of any non-defaulting Underwriter or the Company
or the Selling Stockholder except for the expenses to be borne by the Company,
the Selling Stockholder and the Underwriters as provided in Section 6 hereof and
the indemnity and
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contribution agreements in Section 9 hereof; but nothing herein shall relieve
a defaulting Underwriter from liability for its default.
Section 13. DEFAULT BY THE COMPANY OR THE SELLING STOCKHOLDER. If the
Company or the Selling Stockholder shall fail at the Closing Time to sell and
deliver the respective aggregate number of Firm Shares that they are obligated
to sell, then this Agreement shall terminate without any liability on the part
of any non-defaulting party, except to the extent provided in Section 6 and
except that the provisions of Section 9 shall remain in effect. No action taken
pursuant to this Section shall relieve the Company or the Selling Stockholder
from liability, if any, in respect of its default.
Section 14. NOTICES. All notices and other communications under this
Agreement shall be in writing and shall be deemed to have been duly given if
mailed, delivered or transmitted by any standard form of telecommunication.
Notices to the Underwriters shall be directed c/o ▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, Inc.,
▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (with a copy sent in the same
manner to Baker, Donelson, Bearman & ▇▇▇▇▇▇▇▇, 2000 First Tennessee Building,
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention ▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.);
and notices to the Company and the Selling Stockholder shall be directed to
Republic Bancorp, Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇,
Attention ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (with a copy sent in the same manner to ▇▇▇▇▇,
Tarrant & ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Attention
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.). Each notice hereunder shall be effective upon receipt
by the party to which it is addressed.
Section 15. PARTIES. This Agreement is made solely for the benefit of the
Underwriters, the Selling Stockholder, and the Company and, to the extent so
provided, any person controlling the Company or any of the Underwriters, and the
directors of the Company, its officers who have signed the Registration
Statement, and their respective executors, administrators, successors and
assigns and, subject to the provisions of Section 12, no other person shall
acquire or have any right under or by virtue of this Agreement. The term
"successors and assigns" shall not include any purchaser, as such purchaser,
from any of the several Underwriters of the Shares.
Section 16. GOVERNING LAW AND TIME. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of Tennessee. Specified
time of the day refers to United States Central Time.
Section 17. COUNTERPARTS. This Agreement may be executed in one or more
counterparts and when a counterpart has been executed by each party, all such
counterparts taken together shall constitute one and the same agreement.
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us a counterpart hereof, whereupon this instrument
will become a binding agreement among the Company, the Selling Stockholder
and the several Underwriters in accordance with its terms on
this ____ day of ___________, ______.
Very truly yours,
REPUBLIC BANCORP, INC.
By:
------------------------------
SELLING STOCKHOLDER:
----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Confirmed and accepted in Memphis,
Tennessee, as of the date
first above written, as
Representatives of the
Underwriters named
in Schedule I hereto.
▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, Inc.
By:
-----------------------------
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SCHEDULE I
Number
of
Name Shares
▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, Inc.. . . . . . . . . . . . . . . . . . . . . . . . . . . .
J.J.B. ▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, Inc.. . . . . . . . . . . . . . . . . . . . . . . . . .
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Schedule I
