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EXHIBIT 1
825,000 SHARES
COMMUNITY CENTRAL BANK CORPORATION
COMMON STOCK
UNDERWRITING AGREEMENT
______________, 1996
Roney & Co.
As Representative of the several Underwriters
c/o Roney & Co.
One Griswold
Detroit, Michigan 48226
Dear Sirs:
Community Central Bank Corporation, a Michigan corporation
(the "COMPANY"), proposes to issue and sell 825,000 shares (the "FIRM
SHARES") of its authorized but unissued Common Stock (the "COMMON STOCK")
to the several underwriters named in Exhibit A attached to this Agreement
(the "UNDERWRITERS") for whom Roney & Co. L.L.C., a Delaware limited liability
company ("Roney & Co."), is acting as Representative. In addition, the Company
proposes to grant to the Underwriters an option to purchase up to an additional
123,750 shares (the "OPTIONAL SHARES") to cover over-allotments. The Firm
Shares and the Optional Shares are called, collectively, the "SHARES."
1. SALE AND PURCHASE OF THE SHARES.
(a) On the basis of the representations, warranties
and agreements of the Company contained in, and subject to the
terms and conditions of, this Agreement, the Company agrees to
issue and sell to the Underwriters, and the Underwriters agree
severally and not jointly, to purchase, the Firm Shares set forth
opposite their respective names on Exhibit A at a purchase price of
$9.20 per Share, except as set forth in Section 1(b) below.
(b) On the basis of the representations, warranties
and agreements of the Company contained in, and subject to the
terms and conditions of, this Agreement, and pursuant to directions
from the Company, the Underwriters will offer to sell to each of
the persons listed on Exhibit B (who may purchase alone or with
family members to the extent permitted by the Free-Riding and
Withholding Interpretation (the "INTERPRETATION") under the Rules
of Fair Practice of the National Association of Securities Dealers,
Inc. (the "NASD")) the number of Shares set forth opposite their
respective names on Exhibit B. To the extent such persons (alone
or with such family members) offer to buy such Shares, the
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Underwriters agree to purchase such Shares at a purchase price of
$10.00 per Share. The parties agree that the securities purchased
and sold under this subparagraph shall constitute "issuer directed
securities" sold to the issuer's employees or directors or other
persons under the Interpretation.
(c) On the basis of the representations, warranties
and agreements of the Company contained in, and subject to the
terms and conditions of, this Agreement, the Company grants to the
Underwriters an option to purchase all or any part of the Optional
Shares at a price per Share of $9.20. The over-allotment option
may be exercised only to cover over-allotments in the sale of the
Firm Shares by the Underwriters and may be exercised in whole or in
part at any time or times on or before 12:00 noon, Detroit time, on
the day before the Firm Shares Closing Date (as defined in Section
2 below), and only once at any time after that date and within 30
days after the Effective Date (as defined in Section 4 below), in
each case upon written or transmitted facsimile notice, or verbal
notice confirmed by transmitted facsimile, written or telegraphic
notice, by Roney & Co. to the Company no later than 12:00 noon,
Detroit time, on the day before the Firm Shares Closing Date or at
least three but not more than five full business days before the
Optional Shares Closing Date (as defined in Section 2 below), as
the case may be, setting forth the number of Optional Shares to be
purchased and the time and date (if other than the Firm Shares
Closing Date) of such purchase. The number of Optional Shares to
be purchased by each Underwriter shall be determined by multiplying
the number of Optional Shares to be sold by the Company pursuant to
such notice of exercise by a fraction, the numerator of which is
the number of Firm Shares to be purchased by such Underwriter as
set forth opposite its name on Exhibit A and the denominator of
which is 825,000 (subject to such adjustments to eliminate any
fractional share purchases as Roney & Co. in its discretion may
make).
(d) Roney & Co. represents and warrants to the Company
that each Underwriter has authorized Roney & Co. to accept delivery
of its Shares and to make payment and to receipt therefor. Roney &
Co., individually and not as the Representative of the
Underwriters, may (but shall not be obligated to) make payment for
any Shares to be purchased by any Underwriter whose funds shall not
have been received by Roney & Co. by the Firm Shares Closing Date
(as defined in Section 2 below) or the Optional Shares Closing Date
(as defined in Section 2 below), as the case may be, for the
account for such Underwriter, but any such payments shall not
relieve such Underwriter from any of its obligations under this
Agreement. Roney & Co. represents and warrants that it has been
authorized by each of the other Underwriters to enter into this
Agreement on its behalf and to act for it in the manner herein
provided.
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2. DELIVERY AND PAYMENT. Delivery by the Company of the Firm
Shares to Roney & Co., for the respective accounts of the Underwriters, and
payment of the purchase price by certified or official bank check payable
in Detroit Clearing House (next day) funds to the Company, shall take place
at the offices of Roney & Co., One Griswold, Detroit, Michigan 48226, at
10:00 a.m., Detroit time, at such time and date, not later than the third
(or, if the Firm Shares are priced, as contemplated by Rule 15c6-1(c) under
the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), after
4:30 p.m., Washington, D.C. time, the fourth) full business day following
the first date that any of the Shares are released by the Underwriters for
sale to the public, as Roney & Co. shall designate by at least 48 hours
prior notice to the Company (the "FIRM SHARES CLOSING DATE"); provided,
however, that if the Prospectus (as defined in Section 4 below) is at any
time prior to the Firm Shares Closing Date recirculated to the public, the
Firm Shares Closing Date shall occur upon the later of the third or fourth,
as the case the may be, full business day following the first date that any
of the Shares are released by the Underwriters for sale to the public or
the date that is 48 hours after the date that the Prospectus has been so
recirculated.
To the extent the option with respect to the Optional
Shares is exercised, delivery by the Company of the Optional Shares, and
payment of the purchase price by certified or official bank check payable
in Detroit Clearing House (next day) funds to the Company, shall take place
at the offices of Roney & Co. specified above at the time and on the date
(which may be the Firm Shares Closing Date) specified in the notice
referred to in Section l(c) (such time and date of delivery and payment are
called the "OPTIONAL SHARES CLOSING DATE"). The Firm Shares Closing Date
and the Optional Shares Closing Date are called, individually, a "CLOSING
DATE" and, collectively, the "CLOSING DATES."
Certificates representing the Firm Shares shall be
registered in such names and shall be in such denominations as Roney & Co.
shall request at least two full business days before the Firm Shares
Closing Date or, in the case of the Optional Shares, on the day of notice
of exercise of the option as described in Section l(c), and shall be made
available to Roney & Co. for checking and packaging, at such place as is
designated by Roney & Co., at least one full business day before the
Closing Date.
3. PUBLIC OFFERING. The Company understands that the
Underwriters propose to make a public offering of their respective portions
of the Shares, as set forth in and pursuant to the Prospectus, as soon
after the Effective Date as Roney & Co. deems advisable. The Company
hereby confirms that the Underwriters and dealers have been authorized to
distribute each preliminary prospectus and are authorized to distribute the
Prospectus (as from time to time amended or supplemented).
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4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to the Underwriters
and agrees with the Underwriters as follows:
(a) The Company has carefully prepared in conformity
with the requirements of the Securities Act of 1933, as amended
(the "SECURITIES ACT") and the rules and regulations adopted by the
Securities and Exchange Commission (the "COMMISSION") thereunder
(the "RULES"), a registration statement on Form SB-2 (No. 33-4113),
including a preliminary prospectus, and has filed with the
Commission the registration statement and such amendments thereof
as may have been required to the date of this Agreement. Copies of
such registration statement (including all amendments thereof) and
of the related preliminary prospectus have heretofore been
delivered by the Company to you. The term "PRELIMINARY PROSPECTUS"
means any preliminary prospectus (as defined in Rule 430 of the
Rules) included at any time as a part of the registration
statement. The registration statement as amended (including any
supplemental registration statement under Rule 462(b) or any
amendment under Rule 462(c) of the Rules) at the time and on the
date it becomes effective (the "EFFECTIVE DATE"), including the
prospectus, financial statements, schedules, exhibits, and all
other documents incorporated by reference therein or filed as a
part thereof, is called the "REGISTRATION STATEMENT;" provided,
however, that "REGISTRATION STATEMENT" shall also include all Rule
430A Information (as defined below) deemed to be included in such
Registration Statement at the time such Registration Statement
becomes effective as provided by Rule 430A of the Rules. The term
"PROSPECTUS" means the Prospectus as filed with the Commission
pursuant to Rule 424(b) of the Rules or, if no filing pursuant to
Rule 424(b) of the Rules is required, means the form of final
prospectus included in the Registration Statement at the time such
Registration Statement becomes effective. The term "RULE 430A
INFORMATION" means information with respect to the Shares and the
offering thereof permitted to be omitted from the Registration
Statement when it becomes effective pursuant to Rule 430A of the
Rules. Reference made herein to any preliminary prospectus or to
the Prospectus shall be deemed to refer to and include any document
attached as an exhibit thereto or incorporated by reference
therein, as of the date of such preliminary prospectus or the
Prospectus, as the case may be. The Company will not file any
amendment of the Registration Statement or supplement to the
Prospectus to which Roney & Co. shall reasonably object in writing
after being furnished with a copy thereof.
(b) Each preliminary prospectus, at the time of filing
thereof, contained all material statements which were required to
be stated therein in accordance with the Securities Act and the
Rules, and conformed in all material
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respects with the requirements of the Securities Act and the Rules,
and did not include any untrue statement of a material fact or omit
to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. The
Commission has not issued any order suspending or preventing the
use of any preliminary prospectus. When the Registration Statement
shall become effective, when the Prospectus is first filed pursuant
to Rule 424(b) of the Rules, when any post-effective amendment of
the Registration Statement shall become effective, when any
supplement to or pre-effective amendment of the Prospectus is filed
with the Commission and at each Closing Date, the Registration
Statement and the Prospectus (and any amendment thereof or
supplement thereto) will comply with the applicable provisions of
the Securities Act and the Exchange Act and the respective rules
and regulations of the Commission thereunder, and neither the
Registration Statement nor the Prospectus, nor any amendment
thereof or supplement thereto, will contain any untrue statement of
a material fact or will omit to state any material fact required to
be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made,
not misleading; provided, however, that the Company makes no
representation or warranty as to the information contained in the
Registration Statement or the Prospectus or any amendment thereof
or supplement thereto in reliance upon and in conformity with
information furnished in writing to the Company by any of the
Underwriters, specifically for use in connection with the
preparation thereof.
(c) All contracts and other documents required to be
filed as exhibits to the Registration Statement have been filed
with the Commission as exhibits to the Registration Statement.
(d) Plante & Moran, LLP, whose report is filed with
the Commission as part of the Registration Statement, are, and
during the periods covered by their report were, independent public
accountants as required by the Securities Act and the Rules.
(e) The Company and its subsidiary, Community Central
Bank, a Michigan banking corporation (the "BANK"), have been duly
organized and are validly existing as a corporation or banking
corporation, as applicable, in good standing under the laws of the
State of Michigan. Neither the Company nor the Bank have any
properties or conduct any business outside of the State of Michigan
which would require either of them to be qualified as a foreign
corporation or bank, as the case may be, in any jurisdiction
outside of Michigan. Neither the Company nor the Bank has any
directly or indirectly held subsidiary other than the Bank. The
Company has all power, authority, authorizations,
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approvals, consents, orders, licenses, certificates and permits
needed to enter into, deliver and perform this Agreement and to
issue and sell the Shares.
(f) The application for permission to organize the Bank (the
"FIB APPLICATION") was approved by the Commissioner of the
Financial Institutions Bureau for the State of Michigan (the
"COMMISSIONER") on May 9, 1996, pursuant to Order No.
BT-0612-96-02, subject to certain conditions specified in the
Order and supplemental correspondence from the Commissioner dated
the same date. The Order and supplemental correspondence from
the Commissioner are collectively referred to in this Agreement as
the "FIB ORDER." All conditions contained in the FIB Order have
been satisfied except those conditions relating to paid-in capital
of the Bank, approval of the Company as a bank holding company,
maintenance of capital ratios and valuation reserves, the
Certificate of Paid-In Capital and Surplus, and completion of the
Commissioner's preopening investigation. The application to the
Federal Deposit Insurance Corporation (the "FDIC") to become an
insured depository institution under the provisions of the Federal
Deposit Insurance Act (the "FDIC APPLICATION") was approved by
order of the FDIC dated August 6, 1996 (the "FDIC ORDER"),
subject to certain conditions specified in the Order required to
be satisfied before the date of this Agreement. All conditions
contained in the FDIC Order have been satisfied. The Company's
application to become a bank holding company and acquire all
issued capital stock of the Bank (the "BANK HOLDING COMPANY
APPLICATION") under the Bank Holding Company Act of 1956, as
amended, was approved on or before the Effective Date (the
"FEDERAL RESERVE BOARD APPROVAL"), subject to certain conditions
specified in the Federal Reserve Board Approval. All conditions
in the Federal Reserve Board Approval required to be satisfied
before the date of this Agreement have been satisfied. Each of
the FIB Application, FDIC Application, and Bank Holding Company
Application, at the time of their respective filings, contained
all required information and such information was complete and
accurate in all material respects. Other than the remaining
conditions to be fulfilled under the FIB Order, FDIC Order and the
Federal Reserve Board Approval specified above, no authorization,
approval, consent, order, license, certificate or permit of and
from any federal, state, or local governmental or regulatory
official, body, or tribunal, is required for the Company or the
Bank to commence and conduct their respective businesses and own
their respective properties as described in the Prospectus, except
such authorizations, approvals, consents, orders, licenses,
certificates, or permits as are not material to the commencement
or conduct of their respective businesses or to the ownership of
their respective properties.
(g) The financial statements of the Company and any related
notes thereto, included in the Registration Statement and the
Prospectus, present fairly
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the financial position of the Company as of the date of such
financial statements and for the period covered thereby. Such
statements and any related notes have been prepared in accordance
with generally accepted accounting principals applied on a
consistent basis and certified by the independent accountants named
in subsection 4(d) above. No other financial statements are
required to be included in the Prospectus or the Registration
Statement.
(h) The Company owns adequate and enforceable rights
to use any patents, patent applications, trademarks, trademark
applications, service marks, copyrights, copyright applications and
other similar rights (collectively, "INTANGIBLES") necessary for
the conduct of the material aspects of its business as described in
the Prospectus and the Company has not infringed, is infringing, or
has received any notice of infringement of, any Intangible of any
other person.
(i) The Company has a valid and enforceable leasehold
interest in the real property located at 100 North Main Street,
Mount Clemens, Michigan, which is as described in the Prospectus,
and is free and clear of all liens, encumbrances, claims, security
interests and defects.
(j) There are no litigation or governmental or other
proceedings or investigations pending before any court or before or
by any public body or board or threatened against the Company or
the Bank and to the best of the Company's knowledge, there is no
reasonable basis for any such litigation, proceedings or
investigations, which would have a material adverse effect on
commencement or conduct of the respective businesses of the Company
or the Bank or the ownership of their respective properties.
(k) The Company and Bank have filed all federal,
state, and local tax returns required to be filed by them and paid
all taxes shown due on such returns as well as all other material
taxes, assessments and governmental charges which have become due;
no material deficiency with respect to any such return has been
assessed or proposed.
(l) Subsequent to the respective dates as of which
information is given in the Registration Statement and the
Prospectus, there has not been any material adverse change in the
condition (financial or other), business, properties or prospects
of the Company.
(m) No default exists, and no event has occurred which
with notice or lapse of time, or both, would constitute a default,
in the due performance and observance of any material term,
covenant or condition, by the Company, the Bank or, to the best of
the Company's knowledge, any other party, of any lease,
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indenture, mortgage, note or any other agreement or instrument to
which the Company or the Bank is a party or by which either of them
or either of their businesses may be bound or affected, except such
defaults or events as are not material to the commencement or
conduct of their respective businesses or ownership of their
respective properties.
(n) Neither the Company nor the Bank is in violation
of any term or provision of the articles of incorporation or bylaws
of the Company or the Bank. Neither the Company nor the Bank is in
violation of, nor is either of them required to take any action to
avoid any material violation of, any franchise, license, permit,
judgment, decree, order, statute, rule or regulation.
(o) Neither the execution, delivery or performance of
this Agreement by the Company nor the consummation of the
transactions contemplated hereby (including, without limitation,
the issuance and sale by the Company of the Shares) will give rise
to a right to terminate or accelerate the due date of any payment
due under, or conflict with or result in the breach of any term or
provision of, or constitute a default (or an event which with
notice or lapse of time, or both, would constitute a default)
under, or require any consent under, or result in the execution or
imposition of any lien, charge or encumbrance upon any properties
or assets of the Company or the Bank pursuant to the terms of, any
lease, indenture, mortgage, note or other agreement or instrument
to which the Company or the Bank is a party or by which either of
them or either of their businesses may be bound or affected, or any
franchise, license, permit, judgment, decree, order, statute, rule
or regulation or violate any provision of the articles of
incorporation or bylaws of the Company or the Bank, except those
which are immaterial in amount or effect.
(p) The Company has authorized capital stock as set
forth in the Prospectus. One share of Common Stock of the Company
is issued and outstanding, which will be redeemed at or promptly
following the Closing if permitted by applicable law. No shares of
preferred stock are issued and outstanding. The issuance, sale and
delivery of the Shares have been duly authorized by all necessary
corporate action by the Company and, when issued, sold and
delivered against payment therefor pursuant to this Agreement, will
be duly and validly issued, fully paid and nonassessable and none
of them will have been issued in violation of any preemptive or
other right. Upon issuance, sale, and delivery thereof against
payment therefor pursuant to the subscription agreement, all of the
capital stock of the Bank will be duly authorized and validly
issued, fully paid and nonassessable and will be owned by the
Company, free and clear of all liens, encumbrances and security
interests (subject to the provisions of the Michigan Banking Code
of 1969 (the "BANKING CODE"), including, without
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limitation, Sections 77 and 201 of the Banking Code). There is no
outstanding option, warrant or other right calling for the issuance
of, and no commitment, plan or arrangement to issue, any share of
stock of the Company or the Bank or any security convertible into
or exchangeable for stock of the Company or the Bank, except for
stock options described in the Registration Statement (the "STOCK
OPTIONS") under the 1996 Employee Stock Option Plan and the 1996
Stock Option Plan for Nonemployee Directors (collectively, the
"STOCK OPTION PLANS"). The Common Stock, the Shares and the Stock
Options conform to all statements in relation thereto contained in
the Registration Statement and the Prospectus.
(q) Subsequent to the respective dates as of which
information is given in the Registration Statement and the
Prospectus, neither the Company nor the Bank has (1) issued any
securities or incurred any material liability or obligation, direct
or contingent, (2) entered into any material transaction, or (3)
declared or paid any dividend or made any distribution on any of
their stock, except liabilities, obligations, and transactions
reasonably expected based on the disclosures in the Prospectus, and
redemption of one share of Common Stock for $10 at or promptly
following the Closing if permitted by applicable law.
(r) This Agreement has been duly and validly
authorized, executed and delivered by the Company and is the legal,
valid and binding agreement and obligation of the Company.
(s) The Commission has not issued any order preventing
or suspending the use of any preliminary prospectus.
(t) Neither the Company, nor the Bank, nor, to the
Company's knowledge any director, officer, agent, employee or other
person associated with the Company or the Bank, acting on behalf of
the Company or the Bank, has used any corporate funds for any
unlawful contribution, gift, entertainment or other unlawful
expense relating to political activity; made any direct or indirect
unlawful payment to any foreign or domestic government official or
employee from corporate funds; violated or is in violation of any
provision of the Foreign Corrupt Practices Act of 1977; or made any
bribe, rebate, payoff, influence payment, kickback or other
unlawful payment.
(u) Neither the Company nor the Bank nor any affiliate
of either of them has taken, and they will not take, directly or
indirectly, any action designed to cause or result in, or which has
constituted or which might reasonably be expected to constitute,
the stabilization or manipulation of the price of the shares of the
Common Stock in order to facilitate the sale or resale of any of
the Shares.
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(v) No transaction has occurred between or among the
Company or the Bank and any of their officers, directors,
organizers or the Company's shareholder or any affiliate or
affiliates of any such officer, director, organizer, or
shareholder, that is required to be described in and is not
described in the Prospectus.
(w) The Company is not and will not after the offering
be an "investment company", or a company "controlled" by an
"investment company", within the meaning of the Investment Company
Act of 1940, as amended.
(x) The Company has obtained from all of its executive
officers and directors their written agreement that (i) for a
period of 180 days from the date of the Effective Date, they will
not offer to sell, sell, transfer, contract to sell, or grant any
option for the sale of or otherwise dispose of, directly or
indirectly, any shares of Common Stock of the Company (or any
securities convertible into or exercisable for such shares of
Common Stock), except for (1) the exercise of Stock Options under
the Stock Option Plans or (2) gifts of Common Stock (or other
securities) to a donee or donees who agree in writing to be bound
by this clause, and (ii) for a period of three months from the date
of the Effective Date, they will not sell, transfer, assign,
pledge, or hypothecate any shares of Common Stock acquired under
Paragraph 1(b), above, except with respect to Harold Allmacher who
may resell one share of Common Stock to the Company.
5. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS. The
obligation of the Underwriters to purchase the Shares shall be subject to
the accuracy of the representations and warranties of the Company in this
Agreement as of the date of this Agreement and as of the Firm Shares
Closing Date or Optional Shares Closing Date, as the case may be, to the
accuracy of the statements of Company officers made pursuant to the
provisions of this Agreement, to the performance by the Company of its
obligations under this Agreement, and to the following additional terms and
conditions:
(a) The Registration Statement shall have become
effective not later than 5:00 P.M., Detroit time, on the date of
this Agreement or on such later date and time as shall be consented
to in writing by Roney & Co.; if the filing of the Prospectus, or
any supplement thereto, is required pursuant to Rule 424(b) of the
Rules, the Prospectus shall have been filed in the manner and
within the time period required by Rule 424(b) of the Rules; at
each Closing Date, if any, no stop order shall have been issued or
proceedings therefor initiated or threatened by the Commission; and
any request of the Commission for inclusion of additional
information in the Registration Statement, or otherwise, shall have
been complied with to the reasonable satisfaction of Roney & Co.
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(b) At each Closing Date, Roney & Co., as
Representative of the Underwriters, shall have received the
favorable opinion of Dickinson, Wright, Moon, Van Dusen & Freeman,
counsel for the Company, dated the Firm Shares Closing Date or the
Optional Shares Closing Date, as the case may be, addressed to the
Underwriters and in form and scope reasonably satisfactory to
counsel for Roney & Co. to the effect that:
(i) Each of the Company and the Bank (A) is a
corporation or banking corporation, as applicable,
existing and in good standing under the laws of the State
of Michigan and (B) is not required to be qualified to do
business in any jurisdiction outside Michigan.
(ii) Each of the Company and the Bank has full
corporate power and authority and all material
authorizations, approvals, orders, licenses, certificates
and permits of and from all governmental bank regulatory
officials and bodies necessary to own its properties and
to commence and conduct its business as described in the
Registration Statement and Prospectus, including, without
limitation, the FIB Order, the FDIC Order and the Federal
Reserve Board Approval, subject to the fulfillment of the
conditions with respect to the FIB Order, the FDIC Order
and the Federal Reserve Board Approval all as described in
Section 4(f) above, except for such authorizations,
approvals, orders, licenses, certificates and permits as
are not material to the ownership of their properties or
commencement or conduct of their businesses;
(iii) The Company has authorized capital stock
as set forth in the Prospectus and, prior to the Closing,
had one share of Common Stock issued and outstanding; the
Shares have been duly and validly authorized and issued
and upon receipt by the Company of payment therefor in
accordance with the terms of this Agreement will be fully
paid and nonassessable and are not and will not be subject
to preemptive rights; the Shares and the other capital
stock and Stock Options of the Company conform in all
material respects to the descriptions thereof contained in
the Registration Statement and the Prospectus;
(iv) To such counsel's knowledge, after due
inquiry, the Company has no directly or indirectly held
subsidiary other than the Bank;
(v) When issued, sold, and delivered against
payment therefor in accordance with the terms of the
subscription agreement, the Company will be the registered
holder of all of the outstanding capital stock of the
Bank, and all such shares of stock so held will be validly
issued and
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outstanding, fully paid and nonassessable and will be
owned free and clear of any liens, encumbrances or other
claims or restrictions whatsoever, subject to the
provisions of the Banking Code, including, without
limitation, Sections 77 and 201 of the Banking Code;
(vi) the certificates evidencing the Shares
are in the form approved by the Board of Directors of the
Company, comply with the bylaws and the articles of
incorporation of the Company, comply as to form and in all
other material respects with applicable legal
requirements;
(vii) this Agreement has been duly and validly
authorized, executed and delivered by the Company, and is
the legal, valid and binding agreement and obligation of
the Company enforceable in accordance with its terms,
except (a) as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or
other laws relating to or affecting enforcement of
creditors' rights or by general equity principles
(including requirements of reasonableness and good faith
in the exercise of rights and remedies), whether applied
by a court of equity or a court of law in an action at law
or in equity, or by the discretionary mature of specific
performance, injuncture relief, and other equitable
remedies, including the appointment of a receiver, and
(b), with respect to provisions relating to
indemnification and contribution, to the extent they are
held by a court of competent jurisdiction to be void or
unenforceable as against public policy or limited by
applicable laws or the policies embodied in them;
(viii) the Company is conveying to the
respective Underwriters good and valid title to the Shares
that are issued in their names, free and clear of any
adverse claims, except to the extent any respective
Underwriter has notice of any adverse claim;
(ix) to the best of such counsel's knowledge,
after due inquiry, there are (A) no contracts or other
documents which are required to be filed as exhibits to
the Registration Statement other than those filed as
exhibits thereto, (B) no legal or governmental proceedings
pending or threatened against the Company or the Bank, and
(C) no statutes or regulations applicable to the Company
or the Bank, or certificates, permits, grants or other
consents, approvals, orders, licenses or authorizations
from regulatory officials or bodies, which are required to
be obtained or maintained by the Company or the Bank and
which are of a character required to be disclosed in the
Registration Statement and Prospectus which have not been
so disclosed;
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(x) the statements in the Registration
Statement and the Prospectus, insofar as they are
descriptions of corporate documents, stock option plans,
contracts, or agreements or descriptions of laws,
regulations, or regulatory requirements, or refer to
compliance with law or to statements of law or legal
conclusions, are correct in all material respects;
(xi) to the best of such counsel's knowledge,
after due inquiry, the execution, delivery and performance
of this Agreement, the consummation of the transactions
herein contemplated and the compliance with the terms and
provisions hereof by the Company will not give rise to a
right to terminate or accelerate the due date of any
payment due under, or conflict with or result in a breach
of any of the terms or provisions of, or constitute a
default (or an event which, with notice or lapse of time,
or both, would constitute a default) under, or require any
consent under, or result in the execution or imposition of
any lien, charge or encumbrance upon any properties or
assets of the Company or the Bank pursuant to the terms
of, any lease, indenture, mortgage, note or other
agreement or instrument to which the Company or the Bank
is a party or by which either of them or either of their
properties or businesses is or may be bound or affected,
nor will such action result in any violation of the
provisions of the articles of incorporation or bylaws of
the Company or the Bank or any statute or any order, rule,
or regulation applicable to the Company or the Bank of any
court or any federal, state, local or other regulatory
authority or other governmental body, the effect of which,
in any such case, would be expected to be materially
adverse to the Company or the Bank;
(xii) to the best of such counsel's knowledge,
after due inquiry, no consent, approval, authorization or
order of any court or governmental agency or body,
domestic or foreign, is required to be obtained by the
Company in connection with the execution and delivery of
this Agreement or the sale of the Shares to the
Underwriters as contemplated by this Agreement, except
those which have been obtained;
(xiii) to the best of such counsel's knowledge,
after due inquiry, (A) neither the Company nor the Bank is
in breach of, or in default (and no event has occurred
which, with notice or lapse of time, or both, would
constitute a default) under, any lease, indenture,
mortgage, note, or other agreement or instrument to which
the Company or the Bank, as the case may be, is a party;
or (B) neither the Company nor the Bank is in violation of
any term or provision of either of their articles of
incorporation or bylaws, or of any franchise, license,
grant, permit,
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judgment, decree, order, statute, rule or regulation; and
(C) neither the Company nor the Bank has received any
notice of conflict with the asserted rights of others in
respect of Intangibles necessary for the commencement or
conduct of its business, the effect of which, in any such
case, would be expected to be materially adverse to the
Company or the Bank;
(xiv) the Registration Statement and the
Prospectus and any amendments or supplements thereto
(other than the financial statements as to which no
opinion need be rendered) comply as to form with the
requirements of the Securities Act and the Rules in all
material respects; and
(xv) the Registration Statement is effective
under the Securities Act, and, to the best of such
counsel's knowledge, after due inquiry, no proceedings for
a stop order are pending or threatened under the
Securities Act.
In rendering the foregoing opinion, such counsel may rely
upon certificates of public officials (as to matters of fact and
law) and officers of the Company (as to matters of fact), and
include qualifications in its opinion as are reasonably acceptable
to Roney & Co. Copies of all such certificates shall be furnished
to counsel to Roney & Co. on the Closing Date.
In addition, such counsel shall state that they have
participated in conferences with officers of the Company and a
representative of the Underwriters at which the contents of the
Registration Statement and Prospectus and related matters were
discussed and although such counsel did not independently verify
the accuracy or completeness of the statements made in the
Registration Statement and Prospectus and does not assume any
responsibility for the accuracy or completeness of the statements
in the Registration Statement and Prospectus, on the basis of the
foregoing, nothing has come to the attention of such counsel that
would lead them to believe that the Registration Statement or
Prospectus, as amended or supplemented, if amended or supplemented,
contains any untrue statement of a material fact or omits a
material fact required to be stated therein or necessary to make
the statements therein not misleading; except that such statement
may exclude financial statements, financial data, and statistical
information included in the Registration Statement and Prospectus.
(c) On or prior to each Closing Date, Roney & Co., as
Representative of the Underwriters, shall have been furnished such
documents, certificates and opinions as they may reasonably require
for the purpose of enabling them to
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review the matters referred to in subsection (b) of this Section 5,
and in order to evidence the accuracy, completeness or satisfaction
of the representations, warranties or conditions herein contained.
(d) Prior to each Closing Date, (i) there shall have
been no material adverse change in the condition or prospects,
financial or otherwise, of the Company or the Bank; (ii) there
shall have been no material transaction, not in the ordinary course
of business, entered into by the Company or the Bank except as set
forth in the Registration Statement and Prospectus, other than
transactions referred to or contemplated therein or to which Roney
& Co. has given its written consent; (iii) neither the Company nor
the Bank shall be in default (nor shall an event have occurred
which, with notice or lapse of time, or both, would constitute a
default) under any provision of any material agreement,
understanding or instrument relating to any outstanding
indebtedness that is material in amount; (iv) no action, suit or
proceeding, at law or in equity, shall be pending or threatened
against the Company or the Bank before or by any court or Federal,
state or other commission, board or other administrative agency
having jurisdiction over the Company or the Bank, as the case may
be, which is expected to have a material adverse effect on the
Company or the Bank; and (v) no stop order shall have been issued
under the Securities Act and no proceedings therefor shall have
been initiated or be threatened by the Commission.
(e) At each Closing Date, Roney & Co., as
Representative of the Underwriters, shall have received a
certificate signed by the Chairman of the Board and the President
of the Company dated the Firm Shares Closing Date or Optional
Shares Closing Date, as the case may be, to the effect that the
conditions set forth in subsection (d) above have been satisfied
and as to the accuracy, as of the Firm Shares Closing Date or the
Optional Shares Closing Date, as the case may be, of the
representations and warranties of the Company set forth in Section
4 hereof.
(f) At or prior to each Closing Date, Roney & Co., as
Representative of the Underwriters, shall have received a "blue
sky" memorandum of Dickinson, Wright, Moon, Van Dusen & Freeman,
counsel for the Company, addressed to Roney & Co., as
Representative of the Underwriters and in form and scope reasonably
satisfactory to Roney & Co. concerning compliance with the blue sky
or securities laws of the states listed in Exhibit C attached to
this Agreement.
(g) All proceedings taken in connection with the sale
of the Shares as herein contemplated shall be reasonably
satisfactory in form and substance to Roney & Co. and to counsel
for Roney & Co., and Roney & Co. shall have received from counsel
for Roney & Co. a favorable opinion, dated as of each
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Closing Date, with respect to such of the matters set forth under
Subsections (b) (i), (iii), (vi), (vii), and (xv) of this Section
5, and with respect to such other related matters as Roney & Co.
may reasonably require, if the failure to receive a favorable
opinion with respect to such other related matters would cause
Roney & Co. to deem it inadvisable to proceed with the sale of the
Shares.
(h) There shall have been duly tendered to Roney &
Co., as Representative of the Underwriters, certificates
representing all the Shares agreed to be sold by the Company on the
Firm Shares Closing Date or the Optional Shares Closing Date, as
the case may be.
(i) No order suspending the sale of the Shares prior
to each Closing Date, in any jurisdiction listed in Exhibit C,
shall have been issued on the Firm Shares Closing Date or the
Optional Shares Closing Date, as the case may be, and no
proceedings for that purpose shall have been instituted or, to
Roney & Co.'s knowledge or that of the Company, shall be
contemplated.
(j) The NASD, upon review of the terms of the public
offering of the Shares, shall not have objected to the
Underwriters' participation in the same.
If any condition to the Underwriters' obligations
hereunder to be fulfilled prior to or at the Firm Shares Closing Date or
the Optional Shares Closing Date, as the case may be, is not so fulfilled,
Roney & Co., as Representative of the Underwriters, may terminate this
Agreement pursuant to Section 9(c) hereof or, if Roney & Co., as
Representative of the Underwriters, so elects, waive any such conditions
which have not been fulfilled or extend the time of their fulfillment.
6. COVENANTS.
The Company covenants and agrees that it will:
(a) Use its best efforts to cause the Registration
Statement to become effective and will notify Roney & Co.
immediately, and confirm the notice in writing, (i) when the
Registration Statement and any post-effective amendment thereto
becomes effective, (ii) of the issuance by the Commission of any
stop order or of the initiation, or the threatening, of any
proceedings for that purpose and (iii) of the receipt of any
comments from the Commission. The Company will make every
reasonable effort to prevent the issuance of a stop order, and, if
the Commission shall enter a stop order at any time, the Company
will make every reasonable effort to obtain the lifting of such
order at the earliest possible moment.
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(b) During the time when a prospectus is required to
be delivered under the Securities Act, comply so far as it is able
with all requirements imposed upon it by the Securities Act, as now
and hereafter amended, and by the Rules, as from time to time in
force, so far as necessary to permit the continuance of sales of or
dealings in the Shares. If at any time when a prospectus relating
to the Shares is required to be delivered under the Securities Act
any event shall have occurred as a result of which, in the
reasonable opinion of counsel for the Company or counsel for Roney
& Co., the Registration Statement or Prospectus as then amended or
supplemented includes an untrue statement of a material fact or
omits to state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it
is necessary at any time to amend or supplement the Registration
Statement or Prospectus to comply with the Securities Act, the
Company will notify Roney & Co. promptly and prepare and file with
the Commission an appropriate amendment or supplement in form
satisfactory to Roney & Co. The cost of preparing, filing and
delivering copies of such amendment or supplement shall be paid by
the Company.
(c) Deliver to the Underwriters such number of copies
of each preliminary prospectus as may reasonably be requested by
Roney & Co., as Representative of the Underwriters, and, as soon as
the Registration Statement, or any amendment or supplement thereto,
becomes effective, deliver to each Underwriter three signed copies
of the Registration Statement, including exhibits, and all
post-effective amendments thereto and deliver to the Underwriters
such number of copies of the Prospectus, the Registration Statement
and supplements and amendments thereto, if any, without exhibits,
as Roney & Co., as Representative of the Underwriters, may
reasonably request.
(d) Endeavor in good faith, in cooperation with Roney
& Co. and its counsel, at or prior to the time the Registration
Statement becomes effective, to qualify the Shares for offering and
sale under the securities laws relating to the offering or sale of
the Shares of the states listed in Exhibit C. In each jurisdiction
where such qualification shall be effected, the Company will,
unless Roney & Co. agrees that such action is not at the time
necessary or advisable, file and make such statements or reports at
such times as are or may reasonably be required by the laws of such
jurisdiction. The Company will advise Roney & Co. promptly of the
suspension of the qualification of the Shares for offering, sale or
trading in any jurisdiction, or any initiation or threat of any
proceeding for such purpose, and in the event of the issuance of
any order suspending such qualification, the Company, with the
cooperation of Roney & Co., will use all reasonable efforts to
obtain the withdrawal thereof.
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(e) Furnish its security holders as soon as
practicable an earnings statement (which need not be certified by
independent certified public accountants unless required by the
Securities Act or the Rules) covering a period of at least twelve
months beginning after the effective date of the Registration
Statement, which shall satisfy the provisions of Section 11(a) of
the Securities Act and the Rules thereunder.
(f) For a period of five years from the Effective
Date, furnish to its shareholders annual audited and quarterly
unaudited consolidated financial statements with respect to the
Company including balance sheets and income statements.
(g) For a period of five years from the Effective
Date, furnish to Roney & Co. and, upon request of Roney & Co., to
each of the other Underwriters, the following:
(i) at the time they have been sent to
shareholders of the Company or filed with the Commission
three copies of each annual, quarterly, interim, or
current financial and other report or communication sent
by the Company to its shareholders or filed with the
Commission;
(ii) as soon as practicable, three copies of
every press release and every material news item and
article in respect of the Company or the affairs of the
Company which was released by the Company;
(iii) all other information reasonably
requested by Roney & Co. with respect to the Company to
comply with Rule 15c2-11 of the Rules and Section 4 of
Schedule H of the NASD By-Laws; and
(iv) such additional documents and information
with respect to the Company and its affairs as Roney & Co.
may from time to time reasonably request.
(h) Acquire all of the Bank's outstanding capital
stock, free and clear of all liens, encumbrances, or other claims
or restrictions whatsoever, for not less than $7,500,000 from the
proceeds of the offering and, in all other material respects, apply
the net proceeds from the offering in the manner set forth under
"Use of Proceeds" in the Prospectus.
(i) Not file any amendment or supplement to the
Registration Statement or Prospectus after the effective date of
the Registration Statement to
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which Roney & Co. shall reasonably object in writing after being
furnished a copy thereof.
(j) Timely file with the Commission reports on Form SR
(if applicable) containing the information required by that Form in
accordance with the provisions of Rule 463 of the Regulation under
the Act.
(k) Comply with all registration, filing and reporting
requirements of the Securities Act or the Exchange Act, which may
from time to time be applicable to the Company.
(l) Cause the proper submission of the Certificate of
Paid In Capital and Surplus, give advance written notice to the
Commissioner of the Bank's projected opening date, and in all other
respects use reasonable efforts to comply with the requirements of,
and satisfy the conditions of, the FIB Order, the FDIC Order and
the Federal Reserve Board Approval, which are required to be
complied with prior to the Bank commencing the business of banking;
provided, however, that it shall not be a breach of this Section
6(l) for the Company or the Bank to fail to maintain any specified
level of capital, surplus, capital ratio, valuation reserve or
financial or operating performance after the Bank has commenced the
business of banking or to fail to satisfy any such requirement or
condition if such failure is waived or performance of such
requirement or condition is accepted as sufficient by the FIB, the
FDIC, and/or the Federal Reserve Board, as applicable.
(m) Pay, or reimburse if paid by the Underwriters,
whether or not the transactions contemplated hereby are consummated
or this Agreement is terminated, all costs and expenses incident to
the performance of the obligations of the Company under this
Agreement, including those relating to (1) the preparation,
printing, filing and delivery of the Registration Statement,
including all exhibits thereto, each preliminary prospectus, the
Prospectus, all amendments of and supplements to the Registration
Statement and the Prospectus, and the printing of the Underwriting
Agreement and related agreements including, without limitation, the
Dealer Agreement and Agreement Among Underwriters, (2) the issuance
of the Shares and the preparation and delivery of certificates for
the Shares to the Underwriters, (3) the registration or
qualification of the Shares for offer and sale under the securities
or "blue sky" laws of the various jurisdictions referred to in
Exhibit C, including the fees and disbursements of counsel in
connection with such registration and qualification and the
preparation and printing of preliminary, supplemental, and final
blue sky memoranda, (4) the furnishing (including costs of shipping
and mailing) to the Underwriters of copies of each preliminary
prospectus, the Prospectus and all amendments of or
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supplements to the Prospectus, and of the several documents
required by this Section to be so furnished, (5) the filing
requirements and fees of the NASD in connection with its review of
the terms of the public offering and the underwriting, (6) the
furnishing (including costs of shipping and mailing) of copies of
all reports and information required by Section 6(g), (7) all
transfer taxes, if any, with respect to the sale and delivery of
the Shares by the Company to the Underwriters, (8) the inclusion of
the Shares on the OTC Bulletin Board; and (9) the Underwriters'
out-of-pocket expenses, including without limitation, road show
expenses and legal fees of counsel to Roney & Co. (such
out-of-pocket expenses and legal fees payable by the Company shall
not exceed $20,000). Upon a successful completion of the offering,
the Underwriters will credit the out-of-pocket and legal fee
reimbursement described in Section 6(m)(9) against the underwriting
discount.
(n) Not, without the prior written consent of Roney &
Co., sell, contract to sell or grant any option for the sale of or
otherwise dispose of, directly or indirectly, or register with the
Commission, any shares of Common Stock of the Company (or any
securities convertible into or exercisable for such shares of
Common Stock) within 180 days after the date of the Prospectus,
except as provided in this Agreement and except for grants and
exercises of Stock Options under the Stock Option Plans as
described in the Prospectus.
(o) For not less than 3 fiscal years after the
Effective Date, unless Roney & Co. shall otherwise consent in
writing, (i) timely file with the Commission all reports required
by Section 15(d) of the Exchange Act and not seek suspension of the
duty to file such reports; and (ii) not less frequently than
annually prepare a proxy statement and annual report which conform
substantially to the requirements of Commission Regulation 14A and
distribute such proxy statement and annual report to record and
beneficial owners substantially in the manner which would be
required by Commission Regulation 14A if applicable.
(p) Use its best efforts to cause itself and the Bank
to commence their businesses as described in the Prospectus not
later than December 31, 1996.
7. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless
each Underwriter and each person, if any, who controls each
Underwriter within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act against any and all losses,
claims, damages and liabilities, joint or several (including any
reasonable investigation, legal and other expenses incurred in
connection with, and any amount paid in settlement of, any action,
suit or
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proceeding or any claim asserted), to which they may become subject
under the Securities Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities arise out of
or are based upon any untrue statement or alleged untrue statement
of a material fact contained in any preliminary prospectus, the
Registration Statement or the Prospectus or any amendment thereof
or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that such indemnity
shall not inure to the benefit of the Underwriters (or any person
controlling the Underwriters) on account of any losses, claims,
damages or liabilities arising from the sale of the Shares in the
public offering to any person by the Underwriters if such untrue
statement or omission or alleged untrue statement or omission was
made in such preliminary prospectus, the Registration Statement or
the Prospectus, or such amendment or supplement, in reliance upon
and in conformity with information furnished in writing to the
Company by or on behalf of the Underwriters specifically for use
therein. The Company shall not be liable hereunder to an
Underwriter (or any controlling person thereof) to the extent that
any loss, claim, damage or other liability incurred by the
Underwriter arises from the Underwriter's fraudulent act or
omission.
(b) Each Underwriter severally agrees to indemnify and
hold harmless the Company, each person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act, each director of the Company and
each officer of the Company who signs the Registration Statement,
to the same extent as the foregoing indemnity from the Company to
the Underwriters, but only insofar as such losses, claims, damages
or liabilities arise out of or are based upon any untrue statement
or omission or alleged untrue statement or omission which was made
in any preliminary prospectus, the Registration Statement or the
Prospectus, or any amendment thereof or supplement thereto, in
reliance upon and in conformity with information furnished in
writing to the Company by any of the Underwriters specifically for
use therein; provided, however, that the obligation of each
Underwriter to indemnify the Company (including any controlling
person, director or officer thereof) hereunder shall be limited to
the total price at which the Shares purchased by that Underwriter
hereunder were offered to the public. The Underwriters shall not
be liable hereunder to the Company (including any controlling
person, director or officer thereof) to the extent that any loss,
claim, damage or other liability incurred by the Company arises
from a fraudulent act or omission by the Company.
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(c) Any party that proposes to assert the right to be
indemnified under this Section will, promptly after receipt of
notice of commencement of any action, suit or proceeding against
such party in respect of which a claim is to be made against an
indemnifying party or parties under this Section, notify each such
indemnifying party of the commencement of such action, suit or
proceeding, enclosing a copy of all papers served, but the omission
so to notify such indemnifying party of any such action, suit or
proceeding shall not relieve it from any liability that it may have
to any indemnified party otherwise than under this Section. In
case any such action, suit or proceeding shall be brought against
any indemnified party and it shall notify the indemnifying party of
the commencement thereof, the indemnifying party shall be entitled
to participate in, and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel reasonably satisfactory to such
indemnified party, and after notice from the indemnifying party to
such indemnified party of its election so to assume the defense
thereof and the approval by the indemnified party of such counsel,
the indemnifying party shall not be liable to such indemnified
party for any legal or other expenses, except as provided below and
except for the reasonable costs of investigation subsequently
incurred by such indemnified party in connection with the defense
thereof. The indemnified party shall have the right to employ its
counsel in any such action, but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless
(1) the employment of counsel by such indemnified party has been
authorized in writing by the indemnifying parties, (2) the
indemnified party shall have reasonably concluded that, because of
the existence of different or additional defenses available to the
indemnified party or of other reasons, there may be a conflict of
interest between the indemnifying parties and the indemnified party
in the conduct of the defense of such action (in which case the
indemnifying parties shall not have the right to direct the defense
of such action on behalf of the indemnified party) or that, under
the circumstances, it is otherwise appropriate, or (3) the
indemnifying parties shall not have employed counsel to assume the
defense of such action within a reasonable time after notice of the
commencement thereof, in each of which cases the fees and expenses
of counsel shall be at the expense of the indemnifying parties. An
indemnifying party shall not be liable for any settlement of any
action, suit, proceeding or claims effected without its written
consent.
8. CONTRIBUTION. In order to provide for just and equitable
contribution in circumstances in which the indemnification provided for in
Section 7(a) or 7(b) is due in accordance with its terms but for any reason
is held to be unavailable, the Company and the Underwriters shall
contribute to the aggregate losses, claims, damages and liabilities
(including any investigation, legal and other expenses reasonably incurred
in connection with, and any amount paid in settlement of, any action, suit
or proceeding or any claims asserted, but after
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deducting any contribution received from other persons), to which the
Company and the Underwriters may be subject, in such proportion so that the
Underwriters are responsible for that portion represented by the percentage
that the underwriting discount appearing on the front cover page of the
Prospectus bears to the public offering price appearing thereon and the
Company is responsible for the balance; provided, however, that (a) in no
case shall the Underwriters be responsible for any amount in excess of the
underwriting discount applicable to the Shares purchased by the
Underwriters hereunder and (b) no person found guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. For purposes of this Section, each
person, if any, who controls the Underwriters within the meaning of the
Securities Act or the Exchange Act shall have the same rights to
contribution as the Underwriters, and each person, if any, who controls the
Company within the meaning of the Securities Act or the Exchange Act, each
officer of the Company who shall have signed the Registration Statement and
each director of the Company shall have the same rights to contribution as
the Company, subject in each case to clauses (a) and (b) of this Section.
Any party entitled to contribution will, promptly after receipt of notice
of commencement of any action, suit or proceeding against such party in
respect of which a claim for contribution may be made against another party
or parties under this Section, notify such party or parties from whom
contribution may be sought, but the omission so to notify such party or
parties from whom contribution may be sought shall not relieve the party or
parties from whom contribution may be sought from any other obligation it
or they may have hereunder or otherwise than under this Section. No party
shall be liable for contribution with respect to any action, suit,
proceeding or claim settled without its written consent.
In any proceeding relating to the Registration Statement,
any preliminary prospectus, the Prospectus or any supplement thereto or
amendment thereof, each party against whom contribution may be sought under
this Section 8 hereby consents to the jurisdiction of any court in
Michigan, agrees that process issuing from such court may be served upon
him or it by any other contributing party and consents to the service of
such process and agrees that any other contributing party may join him or
it as an additional defendant in any such proceeding in which such other
contributing party is a party.
9. TERMINATION. This Agreement may be terminated by Roney &
Co. by notifying the Company at any time:
(a) before the earliest of (1) 11:00 a.m., Detroit
time, on the business day following the Effective Date, (2) the
time of release by Roney & Co. for publication of the first
newspaper advertisement with respect to the Shares and (3) the time
when the Shares are first generally offered by the Underwriters to
dealers by letter or telegram;
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(b) at or before any Closing Date if, in the judgment
of Roney & Co., payment for and delivery of the Shares is rendered
impracticable or inadvisable because (1) additional material
governmental restrictions, not known to be in force and effect when
this Agreement is signed, shall have been imposed upon trading in
securities generally or minimum or maximum prices shall have been
generally established on the New York Stock Exchange, on the
American Stock Exchange or on the over-the-counter market, or
trading in securities generally shall have been suspended on either
such Exchange or on the over-the-counter market or a general
banking moratorium shall have been established by federal, New York
or Michigan authorities, (2) a war or other calamity shall have
occurred or shall have accelerated to such an extent as to affect
adversely the marketability of the Shares, (3) the Company or the
Bank shall have sustained a material loss by fire, flood, accident,
hurricane, earthquake, theft, sabotage or other calamity or
malicious act, which, whether or not said loss shall have been
insured, will in Roney & Co.'s opinion, make it inadvisable to
proceed with the offering of the Shares, (4) the FIB Order, the
FDIC Order, or the Federal Reserve Board Approval shall have been
withdrawn or materially altered, or notice shall have been received
to the effect that any of such approvals will not be received, or,
if received, will be subject to conditions that the Company would
not be able to fulfill in a reasonable time in Roney & Co.'s
reasonable opinion, (5) in Roney & Co.'s reasonable opinion it is
not probable that the Company and Bank will be able to commence
business before December 31, 1996, for any reason, or (6) there
shall have been such material change in the condition, business
operations or prospects of the Company or the market for the Shares
or similar securities as in Roney & Co.'s judgment would make it
inadvisable to proceed with the offering of the Shares; or
(c) at or before any Closing Date, if any of the
conditions specified in Section 5 or any other agreements,
representations or warranties of the Company in this Agreement
shall not have been fulfilled when and as required by this
Agreement.
If this Agreement is terminated pursuant to any of its provisions, except
as otherwise provided in this Agreement, the Company shall not be under any
liability to the Underwriters (other than for obligations assumed in
Section 6 hereof), and the Underwriters shall not be under any liability to
the Company; provided, however, that if this Agreement is terminated by
Roney & Co. because of any failure, refusal or inability on the part of the
Company to comply with the terms or to fulfill any of the conditions of
this Agreement, or for any reasons provided in subparagraphs (b) (other
than (b)(6) and (c) above, the Company will reimburse the Underwriters for
all accountable out-of-pocket expenses (including, without limitation, road
show expenses and fees and disbursements of counsel to Roney & Co.) up to a
maximum of $35,000 (including the $15,000 advance described below) incurred
by them in connection with the
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proposed purchase and sale of the Shares or in contemplation of performing
their obligations hereunder. The Underwriters acknowledge receipt of a
$15,000 advance from the Company. If this Agreement is terminated for any
reason, the Underwriters shall be entitled to retain such advance as
reimbursement for their accountable out-of-pocket expenses; provided,
however, in the event that the accountable out-of-pocket expenses to be
reimbursed under this paragraph are less than $15,000, the Underwriters
shall pay such difference to the Company. If this Agreement is not
terminated, the $15,000 shall be credited at closing against the
underwriting discount.
10. REPRESENTATIONS AND AGREEMENTS TO SURVIVE DELIVERY. All
representations, warranties and agreements contained in this Agreement
shall be deemed to be representations, warranties and agreements at the
Closing Dates, and such representations, warranties and agreements of the
Company, including, without limitation, the payment and reimbursement
agreements contained in Section 6 hereof and the indemnity and contribution
agreements contained in Sections 7 and 8 hereof, shall remain operative and
in full force and effect regardless of any investigation made by or on
behalf of the Underwriters or any controlling person and shall survive
termination of this Agreement and/or delivery of the Shares to and payment
for the Shares by the Underwriters pursuant to this Agreement. In
addition, the covenants contained in Section 6 hereof, the agreements
contained in this Section 10 and in Sections 7, 8 and 9 shall survive
termination of this Agreement and/or delivery of the Shares to and payment
for the Shares by the Underwriters pursuant to this Agreement.
11. MISCELLANEOUS. This Agreement has been and is made for
the benefit of the Underwriters, the Company and their respective
successors and assigns, and, to the extent expressed herein, for the
benefit of persons controlling the Underwriters or the Company, and
directors and certain officers of the Company, and their respective
successors and assigns, and no other person, partnership, association or
corporation shall acquire or have any right under or by virtue of this
Agreement. The term "SUCCESSORS AND ASSIGNS" shall not include any
purchaser of Shares from the Underwriters merely because of such purchase.
If any action or proceeding shall be brought by any
Underwriter or the Company in order to enforce any right or remedy under
this Agreement, the Underwriters and the Company hereby consent to, and
agree that they will submit to, the jurisdiction of the courts of the State
of Michigan and of any Federal court sitting in the State of Michigan.
All notices and communications hereunder shall be in
writing and mailed or delivered or by telephone or telegraph if
subsequently confirmed in writing, to the Underwriters, c/o Roney & Co., at
One Griswold, Detroit, Michigan 48226 (facsimile No. (313) 963-2303) (with
a copy to Gordon R. Lewis, Warner Norcross & Judd LLP, 900 Old Kent
Building, 111 Lyon Street, N.W., Grand Rapids, Michigan 49503 (facsimile
No. (616) 752-2500)); and to the Company at 100 North Main Street, Mount
Clemens, Michigan 48043, Attention: Harold W. Allmacher, Chairman of the
Board and Chief Executive Officer (facsimile No. (810) 465-9501)
25
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(with a copy to Jerome M. Schwartz, Dickinson, Wright, Moon, Van Dusen &
Freeman, 500 Woodward Avenue, Suite 4000, Detroit, Michigan 48226
(facsimile No. (313) 223-3598)).
This Agreement shall be construed in accordance with the
laws of the State of Michigan, without giving effect to principles of
conflicts of laws.
Please confirm that the foregoing correctly sets forth the
agreement between us.
Very truly yours,
COMMUNITY CENTRAL BANK CORPORATION
By:
-----------------------------------
Harold W. Allmacher
Its: Chairman of the Board and
Chief Executive Officer
Confirmed by Roney & Co.,
as Representative for, and on
behalf of, the Underwriters
named on Exhibit A:
RONEY & CO. L.L.C.
By:
---------------------------------
John C. Donnelly
Director, Corporate Finance
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EXHIBIT A
Number of Firm Shares
Name of Underwriter to be Purchased
- ------------------- ---------------
Roney & Co. ..........................................
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EXHIBIT B
Number Relationship
of of Person
Name Shares to the Company
---- ------ --------------
Harold W. Allmacher 25,000 Chairman, CEO & Director
Gebran S. Anton 25,000 Director
Joseph Catenacci 25,000 Director
Raymond Contesti 15,000 Director
Salvatore Cottone 25,000 Director
Celestina Giles 3,000 Corporate Secretary & Director
Joseph F. Jeannette 25,000 Director
Philip E. Greco 5,000 Director
Bobby L. Hill 10,000 Director
Richard J. Miller 10,000 President, Treasurer & Director
Dean S. Petitpren 25,000 Director
Carole L. Schwartz 25,000 Director
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EXHIBIT C
States
Michigan
Florida
Illinois
Indiana
New Jersey
New York
Ohio