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350,000 - 700,000 SHARES
FIRST SHARES BANCORP, INC.
COMMON STOCK
AGENCY AGREEMENT
June ___, 2000
David A. Noyes & Company
111 Monument Circle
Indianapolis, Indiana 46204
Attn: Mr. John Reed
Dear Sir:
First Shares Bancorp, Inc., an Indiana bank holding corporation (the
"Company"), proposes to issue and sell a minimum of 350,000 and a maximum of
700,000 shares of Common Stock, $0.01 par value per share (the "Common Stock")
of the Company (the "Shares").
The Company will be offering its Common Stock pursuant to an offering
registered with the Securities and Exchange Commission (the "Commission") on
Form SB-2 (the "Offering"). The Shares will be offered to the public by the
Company at a price of $8.50 per share. The purpose of this Agreement is to set
forth the understanding of the parties relating to the right of David A. Noyes &
Company (the "Agent") to participate in the sale of the Shares as agent
exercising its best efforts to sell the Shares.
1. REPRESENTATIONS AND WARRANTIES OF AGENT. Agent represents and
warrants that:
(a) Agent is a corporation duly organized, validly existing and in good
standing under the laws of the State of Illinois with all requisite
corporate power to carry on its business.
(b) Agent is licensed as a broker-dealer, authorized to conduct offerings
of the sort contemplated hereby by the Commission and the blue sky
authorities of each other state in which the Company and Agent have
agreed to offer the Shares and is a member in good standing of the
National Association of Securities Dealers, Inc. (the "NASD"), and, to
Agent's best knowledge, no proceedings are pending or threatened to
revoke or limit any such status.
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(c) This Agreement has been duly authorized, executed and delivered by
Agent and is a valid and binding agreement on the part of Agent,
enforceable in accordance with its terms, except as enforceability may
be limited by the application of bankruptcy, insolvency, moratorium or
similar laws affecting the rights of creditors generally and by
judicial limitations on the right of specific performance, and except
as the enforceability of the indemnification or contribution
provisions hereby may be affected by applicable federal or state
securities laws.
(d) Agent hereby represents and warrants to, and agrees with, the Company
that in connection with the Offering: (i) Agent has not distributed
and will not distribute any prospectus or any other offering material
in connection with the offering and sale of the Shares other than a
Preliminary Prospectus (as defined in Section 2(a)) relating to the
Offering and filed with the Commission or the Prospectus (as defined
in Section 2(a)) or other materials permitted by the Securities Act of
1933, as amended (the "Securities Act"), and the rules and regulations
promulgated by the Commission thereunder (the "Rules") to be
distributed by the Agent and consented to by the Company or its
counsel; (ii) neither Agent nor any officer or other person employed
by Agent will provide any information or make any representations to
purchasers of the Shares, other than such information and
representations as are either contained in a Preliminary Prospectus or
the Prospectus or are not inconsistent with the information set forth
in such Preliminary Prospectus or the Prospectus; and (iii) Agent will
endeavor to comply with Rule 2310, Conduct Rules, of the National
Association of Securities Dealers, Inc. Manual and similar applicable
state and federal securities laws regarding the suitability of the
Shares for its customers.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents
and warrants to the Agent and agrees with the Agent as follows:
(a) The Company has carefully prepared in conformity with the requirements
of the Securities Act and the Rules, a registration statement on Form
SB-2 (Registration No. 333-31520), including a Preliminary Prospectus,
and has filed with the Commission the registration statement and such
amendments thereof as may have been required to the date of this
Agreement. Copies of such registration statement (including all
amendments thereof) and of the related Preliminary Prospectus have
heretofore been delivered by the Company to the Agent. 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
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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 the Agent shall reasonably
object in writing after being furnished with a copy thereof.
(b) Each Preliminary Prospectus, at the time of filing thereof, contained
all material statements which were required to be stated therein in
accordance with the Securities Act and the Rules, and conformed in all
material respects with the requirements of the Securities Act and the
Rules, and did not include any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. The
Commission has not issued any order suspending or preventing the use
of any Preliminary Prospectus. When the Registration Statement shall
become effective, when the Prospectus is first filed pursuant to Rule
424(b) of the Rules, when any post-effective amendment of the
Registration Statement shall become effective, when any supplement to
or pre-effective amendment of the Prospectus is filed with the
Commission and at the Closing Date, the Registration Statement and the
Prospectus (and any amendment thereof or supplement thereto) will
comply, or if previously filed complied, 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, or if
previously filed contains, any untrue statement of a material fact or
will omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided,
however, that the Company makes no representation or warranty as to
the information contained in the Registration Statement or the
Prospectus or any amendment thereof or supplement thereto in reliance
upon and in conformity with information furnished in writing to the
Company by the Agent, 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) Crowe, Chizek and Company LLP, on behalf of the Company and First
Bank, the Company's wholly-owned subsidiary (the "Bank"), whose report
is filed with the
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Commission as part of the Registration Statement, are, and during the
periods covered by its report were, independent public accountants as
required by the Securities Act and the Rules.
(e) Each of the Company and the Bank has been duly organized and is
validly existing as a corporation or banking corporation, as
applicable, under the laws of the State of Indiana. Neither the
Company nor the Bank has any properties or conducts any business
outside of the State of Indiana that would require either of them to
be qualified as a foreign corporation or bank, as the case may be, in
any jurisdiction outside of Indiana. Neither the Company nor the Bank
has any directly or indirectly held subsidiary other than the Bank.
The Company has all power, authority, authorizations, approvals,
consents, orders, licenses, certificates and permits needed to enter
into, deliver and perform this Agreement and to issue and sell the
Shares.
(f) No authorization, approval, consent, order, license, certificate or
permit of or from any federal, state, or local governmental or
regulatory official, body, or tribunal, is required for the Company or
the Bank to conduct their respective businesses and own their
respective properties as described in the Prospectus, except such
authorizations, approvals, consents, orders, licenses, certificates,
or permits as have been obtained by them or are not material to the
commencement or conduct of their respective businesses or to the
ownership of their respective properties.
(g) The financial statements of the Company and any related notes thereto,
included in the Registration Statement and the Prospectus, present
fairly the financial position of the Company as of the date of such
financial statements and for the period covered thereby. Such
statements and any related notes have been prepared in accordance with
generally accepted accounting principles applied on a consistent basis
and certified by the independent accountants named in subsection 2(d)
above. No other financial statements are required to be included in
the Prospectus or the Registration Statement.
(h) The Company and the Bank own adequate and enforceable rights to use
any patents, patent applications, trademarks, trademark applications,
service marks, copyrights, copyright applications and other similar
rights (collectively, "Intangibles") necessary for the conduct of the
material aspects of their business as described in the Prospectus, and
neither the Company nor the Bank has infringed, is infringing, or has
received any notice of infringement of, any Intangible of any other
person.
(i) The Company or the Bank owns its offices located in Morgantown and in
Trafalgar and has valid and enforceable leasehold interests in the
real property in which its branch facilities are located in Greenwood,
Bargersville, and Nashville, Indiana, which are as described in the
Prospectus and are, except as otherwise described in the Prospectus,
free and clear of all liens, encumbrances, claims, security interests
and defects except to the extent they would not have a material
adverse effect on commencement or conduct of the respective businesses
of the Company or the Bank or the ownership of their respective
properties.
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(j) There are no litigation, 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, except as set forth in the
Prospectus, there is no reasonable basis for any such litigation,
proceedings or investigations, which would have a material adverse
effect on the commencement or conduct of the respective businesses of
the Company or the Bank or the ownership of their respective
properties.
(k) The Company and Bank have filed all federal, state, and local tax
returns required to be filed by them and paid all taxes shown due on
such returns as well as all other material taxes, assessments and
governmental charges which have become due; no material deficiency
with respect to any such return has been assessed or proposed.
(l) Subsequent to the respective dates as of which information is given in
the Registration Statement and the Prospectus, there has not been any
material adverse change in the condition (financial or other),
business, properties or prospects of the Company or the Bank.
(m) No default exists, and no event has occurred which with notice or
lapse of time, or both, would constitute a default, in the due
performance and observance of any material term, covenant or
condition, by the Company, the Bank or, to the best of the Company's
knowledge, any other party, of any lease, indenture, mortgage, note or
any other agreement or instrument to which the Company or the Bank is
a party or by which either of them or either of their businesses may
be bound or affected, except such defaults or events as are not
material to the commencement or conduct of their respective businesses
or ownership of their respective properties.
(n) Neither the Company nor the Bank is in violation of any term or
provision of the articles of incorporation, charter or bylaws of the
Company or the Bank. Neither the Company nor the Bank is in violation
of, nor is either of them required to take any action to avoid any
material violation of, any franchise, license, permit, judgment,
decree, order, statute, rule or regulation.
(o) Neither the execution, delivery or performance of this Agreement by
the Company nor the consummation of the transactions contemplated
hereby (including, without 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,
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permit, judgment, decree, order, statute, rule or regulation or
violate any provision of the articles of incorporation, charter or
bylaws of the Company or the Bank, except those which are immaterial
in amount or effect.
(p) The Company has authorized capital stock as set forth in the
Prospectus. There are 664,512 shares of Common Stock of the Company
issued and outstanding. No shares of Preferred Stock are issued and
outstanding. The issuance, sale and delivery of the Shares have been
duly authorized by all necessary corporate action by the Company and,
when issued, sold and delivered against payment therefor pursuant to
this Agreement, will be duly and validly issued, fully paid and
nonassessable, and none of the Shares will have been issued in
violation of any preemptive or other right. There are no outstanding
options, warrants or other rights calling for the issuance of, and no
commitment, plan or arrangement to issue, any shares of stock of the
Company or the Bank or any security convertible into or exchangeable
for stock of the Company or the Bank, except for 108,000 shares of
Common Stock that will be issuable upon the exercise of outstanding
options granted under the Company's option plans. The Common Stock,
the Shares and the options conform to all statements in relation
thereto contained in the Registration Statement and the Prospectus.
(q) Subsequent to the respective dates as of which information is given in
the Registration Statement and the Prospectus, neither the Company nor
the Bank has (i) issued any securities or incurred any material
liability or obligation, direct or contingent, (ii) entered into any
material transaction, or (iii) declared or paid any dividend or made
any distribution on any of their stock, except for liabilities,
obligations, and transactions reasonably expected based on the
disclosures in the Prospectus.
(r) This Agreement has been duly and validly authorized, executed and
delivered by the Company and is the legal, valid and binding agreement
and obligation of the Company.
(s) The Commission has not issued any order preventing or suspending the
use of any Preliminary Prospectus.
(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
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which has constituted or which might reasonably be expected to
constitute, the stabilization or manipulation of the price of the
shares of the Common Stock in order to facilitate the sale or resale
of any of the Shares.
(v) No transaction has occurred between or among the Company or the Bank
and any of their officers, directors, organizers or the Company's
shareholders or any affiliate or affiliates of any such officer,
director, organizer, or shareholder, that is required to be described
in and is not described in the Prospectus.
(w) The Company is not and will not after the offering be an "investment
company," or a company "controlled" by an "investment company," within
the meaning of the Investment Company Act of 1940, as amended.
(x) The Company has obtained from each of its executive officers and
directors his or her written agreement that (i) for a period of 365
days from the date of the Effective Date, he or she will not offer to
sell, transfer, contract to sell, or grant any option for the sale of
or otherwise dispose of, directly or indirectly, any shares of Common
Stock of the Company (or any securities convertible into or
exercisable for such shares of Common Stock), except for (A) the
exercise of stock options under the stock option plans or (B) gifts of
Common Stock (or other securities) to a donee or donees who agree in
writing to be bound by this clause, and (ii) for a period of three
years from the one year anniversary of the Effective Date, he or she
will not sell, transfer, assign, pledge, or hypothecate in any one
twelve month period more than ten percent of the shares of Common
Stock owned by each such executive officer and director.
3. CONDITIONS OF THE AGENT'S OBLIGATIONS. The obligations of the Agent
under this Agreement shall be subject to the accuracy of the representations and
warranties of the Company and the Bank in this Agreement as of the date of this
Agreement and as of the Closing Date (which for purposes of this Agreement, the
term "Closing Date" is the date on which the terms of the Escrow Agreement have
been satisfied and the funds held thereby are to be disbursed to the Company in
accordance therewith), and are further subject 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., Indianapolis time, on the date of this Agreement or on such
later date and time as shall be consented to in writing by the Agent;
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 the Closing Date, 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 the
Agent.
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(b) At the Closing Date, the Agent shall have received the opinion of Bose
McKinney & Evans LLP, counsel for the Company, dated the Closing Date,
addressed to the Agent and in a form and scope reasonably satisfactory
to counsel for the Agent to the effect that:
(i) Each of the Company and the Bank (A) is a corporation or
banking corporation, as applicable, duly organized and
validly existing under the laws of the State of Indiana, and
(B) is not required to be qualified to do business in any
jurisdiction outside Indiana, except where the failure to so
qualify would not have a material adverse effect on the
Company or the Bank;
(ii) Each of the Company and the Bank has full corporate power and
authority and all material authorizations, approvals, orders,
licenses, certificates and permits of and from all governmental
regulatory officials and bodies necessary to own or lease their
respective properties and conduct their respective businesses
as described in the Registration Statement and Prospectus;
(iii) The Company has authorized capital stock and outstanding
capital stock as set forth in the Prospectus; the Shares
have been duly authorized and validly issued; upon receipt
by the Company of payment therefor in accordance with the
terms of this Agreement, the Shares and all other shares of
capital stock of the Company will be fully paid and
nonassessable and are not subject to preemptive rights; the
capital stock and stock options of the Company conform in
all material respects to the descriptions thereof contained
in the Registration Statement and the Prospectus;
(iv) The Company has no directly or indirectly held subsidiary other
than the Bank;
(v) The Company is the registered holder of all of the outstanding
capital stock of the Bank, and all such shares of stock so held
have been duly authorized and validly issued, fully paid and
nonassessable and are owned free and clear of any liens,
encumbrances or other claims or restrictions whatsoever,
subject to the provisions of the Indiana Financial Institutions
Act;
(vi) The certificates evidencing the Shares are in the form approved
by the Board of Directors of the Company, comply with the
Bylaws and the Articles of Incorporation of the Company, and
comply as to form and in all other material respects with
applicable legal requirements;
(vii) This Agreement has been duly and validly authorized, executed
and delivered by the Company, and is the legal, valid and
binding agreement and obligation of the Company enforceable
in accordance with its terms, except (A) as enforcement
thereof may be limited by bankruptcy, insolvency,
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reorganization, moratorium or other laws relating to or
affecting enforcement of creditors' rights or by general
equity principles, whether applied in an action at law or in
equity, or by the discretionary nature of specific
performance, injunctive relief, and other equitable
remedies, including the appointment of a receiver, and (B),
with respect to provisions relating to indemnification and
contribution, to the extent they are held by a court of
competent jurisdiction to be void or unenforceable as
against public policy;
(viii) The Company is conveying to purchasers of the Shares good and
valid title to the Shares, free and clear of any liens,
encumbrances, security interests, restrictions, and adverse
claims;
(ix) To the best of such counsel's knowledge or as set forth in the
Prospectus, after due inquiry, there are (A) no contracts or
other documents which are required to be filed as exhibits
to the Registration Statement other than those filed as
exhibits thereto, (B) no legal or governmental proceedings
pending or threatened against the Company or the Bank, (C)
no statutes or regulations applicable to the Company or the
Bank which are of a character required to be disclosed in
the Registration Statement and Prospectus which have not
been so disclosed and properly described therein, and (D) no
certificates, permits, grants or other consents, approvals,
orders, licenses or authorizations from regulatory officials
or bodies, which are required to be obtained or maintained
by the Company or the Bank and which are of a character
required to be disclosed in the Registration Statement and
Prospectus which have not been so disclosed and properly
described therein;
(x) The statements in the Registration Statement and the
Prospectus, insofar as they are descriptions of corporate
documents, stock option plans, contracts, agreements or
other documents specifically identified in the Registration
Statement or descriptions of laws, regulations, or
regulatory requirements, or refer to compliance with law or
to statements of law or legal conclusions, are correct in
all material respects;
(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
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violation of the provisions of the articles of
incorporation, charter or bylaws of the Company or the Bank
or any statute or any order, rule, or regulation applicable
to the Company or the Bank of any court or any federal,
state, local or other regulatory authority or other
governmental body, the effect of which, in any such case,
would be expected to have a material adverse effect on the
Company or the Bank;
(xii) To the best of such counsel's knowledge, after due inquiry, no
consent, approval, authorization or order of any court or
governmental agency or body, domestic or foreign, is required
to be obtained by the Company or the Bank in connection with
the execution and delivery of this Agreement or the sale of
the Shares to the Agent as contemplated by this Agreement,
except such as have been obtained;
(xiii) To the best of such counsel's knowledge, after due inquiry,
(A) neither the Company nor the Bank is in breach of, or in
default (and no event has occurred which, with notice or
lapse of time, or both, would constitute a default) under,
any lease, indenture, mortgage, note, or other agreement or
instrument to which the Company or the Bank is a party; or
(B) neither the Company nor the Bank is in violation of any
term or provision of either of their articles of
incorporation, charter or bylaws, or of any franchise,
license, grant, permit, judgment, decree, order, statute,
rule or regulation; and (C) neither the Company nor the Bank
has received any notice of conflict with the asserted rights
of others in respect of Intangibles necessary for the
commencement or conduct of its business, the effect of
which, in any such case, would be expected to have a
material adverse effect on the Company or the Bank;
(xiv) The Registration Statement and the Prospectus and any
amendments or supplements thereto (other than financial
statement and notes, any related schedules or other
financial information contained in such Prospectus or
amendment or supplement thereto, as to which such counsel
need express no opinion or belief) comply as to form in all
material respects with the requirements of the Securities
Act and the Rules; and
(xv) The Registration Statement is effective under the Securities
Act, and any required filing of the Prospectus pursuant to
Rule 424(b) has been made in the manner and within the time
period required by Rule 424(b) and, to the best of such
counsel's knowledge, after due inquiry, no stop order
suspending the effectiveness of the Registration Statement
or any post-effective amendment to the Registration
Statement and no order directed at any document incorporated
by reference in the Registration Statement or the Prospectus
or any amendment or supplement thereto has been issued, and
no proceedings for that purpose have been instituted or
threatened or are contemplated by the Commission.
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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 and the Bank (as to matters of fact), and
include customary qualifications in its opinion as are acceptable to
the Agent and its counsel. Copies of all such certificates shall be
furnished to counsel to the Agent on the Closing Date. In addition,
such counsel shall state that they have participated in conferences
with officials of the Company and its independent auditors, and
representatives of the Agent and its counsel at which the content of
the Registration Statement and Prospectus and related matters were
discussed, and also had discussions with such officials of the Company
with a view toward a clear understanding on their part of the
requirements of the Act with reference to the preparation of
registration statements and prospectuses. Such counsel did not
independently verify the accuracy or completeness of the statements
made in the Registration Statement and Prospectus; however, based on
such counsel's examination of the Registration Statement and the
Prospectus and on its participation in the above-mentioned
conferences, nothing has come to the attention of such counsel that
gives them reason to believe that the Registration Statement or
Prospectus (other than financial statements and notes, any related
schedules or other financial information contained in such
Registration Statement or Prospectus as to which such counsel need
express no opinion or belief), at the time the Registration Statement
became effective, contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or that the
Prospectus (other than financial statement and notes, any related
schedules or other financial information contained in such Prospectus
or amendment or supplement thereto, as to which such counsel need
express no opinion or belief), as of the date of the opinion, contains
any untrue statement of a material fact or omits to state a material
fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(c) On or prior to the Closing Date, the Agent shall have been furnished
such documents, certificates and opinions as it may reasonably require
for the purpose of enabling it to review the matters referred to in
subsection (b) of this Section 3, and in order to evidence the
accuracy, completeness or satisfaction of the representations,
warranties or conditions herein contained.
(d) Prior to the 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 except as set forth in the Prospectus; (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 the Agent
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
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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 the Closing Date, the Agent shall have received a certificate
signed by the Chairman of the Board, the President, and the Treasurer
of the Company dated the Closing Date to the effect that the
conditions set forth in subsection (d) above have been satisfied and
as to the accuracy, as of the Closing Date, of the representations and
warranties of the Company set forth in Section 2 hereof.
(f) At or prior to the Closing Date, the Agent shall have received a "blue
sky" memorandum (upon which the Agent may rely) of Leagre Chandler &
Millard LLP, counsel for the Agent, addressed to the Agent and in form
and scope reasonably satisfactory to the Agent concerning compliance
with the blue sky or securities laws of the states listed in Exhibit A
attached to this Agreement.
(g) All proceedings taken in connection with the sale of the Shares as
herein contemplated shall be reasonably satisfactory in form and
substance to the Agent and to counsel for the Agent, and the Agent
shall have received from counsel for the Agent a favorable opinion,
dated as of the Closing Date, with respect to such of the matters set
forth under Subsections (b) (i), (vi), (vii), and (xv) of this Section
3, and with respect to such other related matters as the Agent may
require, if the failure to receive a favorable opinion with respect to
such other related matters would cause the Agent to deem it
inadvisable to proceed with the sale of the Shares.
(h) No order suspending the sale of the Shares prior to the Closing Date,
in any jurisdiction listed in Exhibit A, shall have been issued on the
Closing Date, and no proceedings for that purpose shall have been
instituted or, to the Agent's knowledge or that of the Company, shall
be contemplated.
(i) The NASD, upon review of the terms of the public offering of the
Shares, shall not have objected to the Agent's participation in the
same. If any condition to the Agent's obligations hereunder to be
fulfilled prior to or at the Closing Date is not so fulfilled, the
Agent may terminate this Agreement pursuant to Section 8(c) hereof or,
if the Agent so elects, waive any such conditions which have not been
fulfilled or extend the time of their fulfillment.
4. 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 the Agent 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
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threatening, of any proceedings for that purpose and (iii) of the
receipt of any comments from the Commission. The Company will make
every reasonable effort to prevent the issuance of a stop order, and,
if the Commission shall enter a stop order at any time, the Company
will make every reasonable effort to obtain the lifting of such order
at the earliest possible moment.
(b) During the time when a prospectus is required to be delivered under
the Securities Act, comply so far as it is able with all requirements
imposed upon it by the Securities Act, as now and hereafter amended,
and by the Rules, as from time to time in force, so far as necessary
to permit the continuance of sales of or dealings in the Shares. If at
any time when a prospectus relating to the Shares is required to be
delivered under the Securities Act any event shall have occurred as a
result of which, in the reasonable opinion of counsel for the Company
or counsel for the Agent, 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
or the Rules, the Company will notify the Agent promptly and prepare
and file with the Commission an appropriate amendment or supplement in
form satisfactory to the Agent. The cost of preparing, filing and
delivering copies of such amendment or supplement shall be paid by the
Company.
(c) Deliver to the Agent, from time to time as requested, such number of
copies of each Preliminary Prospectus as may reasonably be requested
by them and, as soon as the Registration Statement, or any amendment
or supplement thereto, becomes effective, deliver to the Agent three
signed copies of the Registration Statement, including exhibits, and
all post-effective amendments thereto and deliver to the Agent such
number of copies of the Prospectus, the Registration Statement and
supplements and amendments thereto, if any, without exhibits, as they
may reasonably request.
(d) Endeavor in good faith, in cooperation with the Agent and its counsel,
at or prior to the time the Registration Statement becomes effective,
to qualify the Shares for offering and sale under the securities laws
relating to the offering or sale of the Shares of the states listed in
Exhibit A. In each jurisdiction where such qualification shall be
effected, the Company will, unless the Agent 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 the
Agent 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 the Agent, will use all reasonable efforts to
obtain the withdrawal thereof.
(e) Furnish its security holders as soon as practicable an earnings
statement (which need not be certified by independent certified public
accountants unless required by the
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<PAGE> 14
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 the
Agent the following:
(i) at the time they have been sent to shareholders of the
Company or filed with the Commission, one copy of each
annual, quarterly, interim, or current financial and other
report or communication;
(ii) as soon as practicable, one copy of every press release and
every material news item and article in respect of the
Company or its affairs which was released by the Company;
and
(iii) all other information reasonably requested by the Agent with
respect to the Company to comply with Rule 15c2-11 of the
Rules and Section 4 of Schedule H of the NASD By-Laws.
(h) In all material respects, apply the net proceeds from the Offering in
the manner set forth under "Use of Proceeds" in the Prospectus.
(i) Not file any amendment or supplement to the Registration Statement or
Prospectus after the effective date of the Registration Statement to
which the Agent shall reasonably object in writing after being
furnished a copy thereof.
(j) Comply with all registration, filing and reporting requirements of the
Securities Act or the Exchange Act, which may from time to time be
applicable to the Company.
(k) Take no actions that reasonably could prevent its Shares from being
listed on the OTC Bulletin Board for not fewer than five years.
(l) Pay, or reimburse if paid by the Agent, 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 (i) 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 this Agreement and related agreements including, without
limitation, the Dealer Agreement; (ii) the issuance of the Shares and
the preparation and delivery of certificates for the Shares to the
Agent; (iii) the registration or qualification of the Shares for offer
and sale under the securities or "blue sky" laws of the various
jurisdictions referred to in Exhibit A, including the
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<PAGE> 15
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; (iv) the furnishing
(including costs of shipping and mailing) to the Agent of copies of
each Preliminary Prospectus, the Prospectus and all amendments of or
supplements to the Prospectus, and of the several documents required
by this Section to be so furnished; (v) the filing requirements and
fees of the NASD in connection with its review of the terms of the
public offering and the underwriting; (vi) the furnishing (including
costs of shipping and mailing) of copies of all reports and
information required by Section 4(g); (vii) all transfer taxes, if
any, with respect to the sale and delivery of the Shares by the
Company to the Agent, (viii) the inclusion of the Shares for listing
on the OTC Bulletin Board; and (ix) the Agent's out-of-pocket
expenses, including without limitation, road show expenses and legal
fees of counsel to the Agent.
(m) Not, without the prior written consent of the Agent, sell, contract to
sell or grant any option for the sale of or otherwise dispose of,
directly or indirectly, or register with the Commission, any shares of
Common Stock of the Company (or any securities convertible into or
exercisable for such shares of Common Stock) within 150 days after the
date of the Prospectus, except as provided in this Agreement and
except for grants and exercises of stock options under the stock
option plans as described in the Prospectus.
(n) For not less than three fiscal years after the Effective Date,
maintain the Exchange Act registration of the Common Stock, unless the
Company's shareholders direct the Company to deregister the Common
Stock.
SECTION 5. ENGAGEMENT AND COMPENSATION.
(a) (i) Subject to the terms and conditions of this Agreement, the
Company hereby engages Agent from the date hereof until
December 31, 2000, as the Company's exclusive agent in
connection with the sale, on a "best efforts" basis, of a
minimum of 350,000 Shares up to a maximum of 700,000 Shares.
Each of Agent and the Company agree to comply with the terms
of that certain Escrow Agreement (the "Escrow Agreement") by
and among the Company, Agent, and The Huntington National
Bank (the "Escrow Agent") dated June ____, 2000. (The Escrow
Agreement is attached hereto as Exhibit B and is
incorporated herein by this reference.) The minimum amount
of each sale shall be 100 Shares. The maximum amount of any
sale shall not exceed 50,000 Shares, except with the
Company's consent.
(ii) The price at which Agent shall sell the Shares, as agent for
the Company, shall be $8.50 per share, and the Company shall
pay to Agent a commission of (A) 5% of the offering price of
the Shares sold to officers, directors, and employees of the
Company (and their immediate family members) in the Offering
(subject to a limit of 120,000 shares), (B) 7% of the
offering price of the Shares sold to all other persons
including those Shares sold through
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<PAGE> 16
other brokers or dealers. All subscriptions shall be subject
to the Company's and Agent's acceptance, and Agent shall
have the right in its sole discretion to accept or reject
any subscription, and to allocate Shares among subscribers.
Agent may form a group of securities dealers (the "Selected
Dealers"), who are members in good standing of the NASD,
pursuant to a Dealer Agreement to find subscribers for the
Shares. However, failure to engage any Selected Dealers
shall not constitute a failure to discharge its duties under
this Agreement. The allocation of Shares among Agent and the
Selected Dealers shall be made by Agent.
(iii) The Company shall deliver certificates representing the Shares
to shareholders of the Company (or their designees) as soon as
practicable after the distribution of the escrowed funds in
accordance with the terms of the Escrow Agreement, and
thereafter, as soon as practicable after acceptance of any
subscription.
(iv) Agent shall use its best efforts to assist the Company in
making sales of the Shares pursuant to the Offering. Agent
makes no representations as to the amount of Shares it will
be able to sell. There is no firm commitment to sell any
certain amount of the Shares by Agent. In the event that the
minimum 350,000 Shares are not subscribed and paid for by
the "Expiration Date" (as such term is defined in the
Prospectus), this Agreement shall automatically be
terminated and the proceeds received from the subscriptions
distributed in accordance with the terms of the Escrow
Agreement.
(v) Agent will only offer and sell the Shares in those states
listed on Exhibit A to this Agreement.
(b) Agent shall offer the Shares pursuant to the Prospectus.
6. INDEMNIFICATION.
(a) The Company will indemnify and hold harmless the Agent (including its
officers, directors, employees, counsel for Agent, and Selected
Dealers or any affiliate of any of the foregoing) and each person, if
any, who controls Agent, and each Selected Dealer and their
affiliates, within the meaning of the Securities Act or the Exchange
Act against any and all losses, claims, damages and liabilities, joint
or several (including any reasonable investigation, legal and other
expenses incurred in connection with, and any amount paid in
settlement of, any action, suit or proceeding or any claim asserted),
to which they may become subject under the Securities Act, the
Exchange Act or other Federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, damages or
liabilities arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement or the Prospectus
or any amendment thereof or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a
material fact required
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<PAGE> 17
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 Agent (or any person controlling the Agent) 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 Agent
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 Agent specifically for use
therein. The Company shall not be liable hereunder to the Agent (or
any controlling person thereof) to the extent that any loss, claim,
damage or other liability incurred by the Agent arises from the
Agent's fraudulent act or omission.
(b) The Agent 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 Agent, but only insofar as such losses,
claims, damages or liabilities arise out of or are based upon any
untrue statement or omission or alleged untrue statement or omission
which was made in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or any amendment thereof or supplement
thereto, in reliance upon and in conformity with information furnished
in writing to the Company by the Agent specifically for use therein;
provided, however, that the obligation of the Agent to indemnify the
Company (including any controlling person, director or officer
thereof) hereunder shall be limited to the total commissions earned by
the Agent hereunder. The Agent shall not be liable hereunder to the
Company (including any controlling person, director or officer
thereof) to the extent that any loss, claim, damage or other liability
incurred by the Company arises from a fraudulent act or omission by
the Company.
(c) Any party that proposes to assert the right to be indemnified under
this Section will, promptly after receipt of notice of commencement of
any action, suit or proceeding against such party in respect of which
a claim is to be made against an indemnifying party or parties under
this Section, notify each such indemnifying party of the commencement
of such action, suit or proceeding, enclosing a copy of all papers
served, but the omission so to notify such indemnifying party of any
such action, suit or proceeding shall not relieve it from any
liability that it may have to any indemnified party otherwise than
under this Section. In case any such action, suit or proceeding shall
be brought against any indemnified party and it shall notify the
indemnifying parties of the commencement thereof, the indemnifying
party shall be entitled to participate in, and, to the extent that it
shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party, and after notice from the
indemnifying party to such indemnified party of its election so to
assume the defense thereof and the approval by the indemnified party
of such counsel, the indemnifying party shall not be liable to such
indemnified party for any legal or other expenses, except as provided
below and except for the reasonable costs of investigation
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<PAGE> 18
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 (i)
the employment of counsel by such indemnified party has been
authorized in writing by the indemnifying parties, (ii) 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 (iii) 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.
7. CONTRIBUTION. In order to provide for just and equitable contribution
in circumstances under which the indemnity provided for in Section 6 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 right of appeal) to be unenforceable by the indemnified parties
although applicable in accordance with its terms, the Company on the one hand,
and Agent, or the Selected Dealer seeking indemnification, on the other shall
contribute to the aggregate losses, liabilities, claims, damages and expenses of
the nature contemplated by such indemnity incurred by the Company and Agent, or
the Selected Dealer seeking indemnification, as incurred, in such proportions
that (a) Agent, or the Selected Dealer seeking indemnification, is responsible
pro rata for that portion represented by the commissions earned by it as a
percentage of the aggregate public offering price (before deducting expenses)
appearing on the cover page of the Prospectus, and (b) the Company is
responsible for the balance; provided, however, that no person guilty of
fraudulent misrepresentations (within the meaning of Section 12(f) of the
Securities Act) 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, on
the one hand and Agent, or the Selected Dealer seeking indemnification, on the
other 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 on the one hand, and Agent, or the Selected
Dealer seeking indemnification, on the other 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 to state a material fact
relates to information supplied by the Company on the one hand, or by Agent, or
the Selected Dealer seeking indemnification, on the other hand, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company and Agent agree that it would
not be just and equitable if contributions pursuant to this Section 7 were
determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to above in this
Section 7. The amount paid or payable by a party as a result of the losses,
claims, damages
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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 such action or claim.
8. TERMINATION. This Agreement may be terminated by the Agent by
notifying the Company at any time:
(a) before the earlier of (i) 11:00 a.m., Indianapolis time, on the
business day following the Effective Date, or (ii) the time when the
Shares are first generally offered by the Agent to dealers by letter
or telegram;
(b) at or before the Closing Date if, in the judgment of the Agent,
payment for and delivery of the Shares is rendered impracticable or
inadvisable because (i) additional material governmental restrictions,
not known to be in force and effect when this Agreement is signed,
shall have been imposed upon trading in securities generally or
minimum or maximum prices shall have been generally established on the
New York Stock Exchange, on the American Stock Exchange or on the
over-the-counter market, or trading in securities generally shall have
been suspended on either such Exchange or on the over-the-counter
market or a general banking moratorium shall have been established by
federal, New York or Indiana authorities, (ii) 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, (iii) 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 the Agent's opinion, make it inadvisable to proceed
with the offering of the Shares, (iv) 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
the Agent's judgment would make it inadvisable to proceed with the
offering of the Shares; or
(c) at or before the Closing Date, if any of the conditions specified in
Section 3 or any other agreements, representations or warranties of
the Company or the Bank 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 Agent (other than for obligations assumed in Section
4 hereof), and the Agent shall not be under any liability to the
Company; provided, however, that if this Agreement is terminated by
the Agent because of any failure, refusal or inability on the part of
the Company to comply with the terms or to fulfill any of the
conditions of this Agreement, or for any reasons provided in
subparagraphs (b) and (c) of this Section 8, the Company will
reimburse the Agent for all accountable out-of-pocket expenses
(including, without limitation, road show expenses and fees and
disbursements of counsel to the Agent).
9. REPRESENTATIONS AND AGREEMENTS TO SURVIVE DELIVERY. All
representations, warranties and agreements contained in this Agreement shall be
deemed to be
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<PAGE> 20
representations, warranties and agreements at the Closing Date, and
such representations, warranties and agreements of the Company and the Bank,
including, without limitation, the payment and reimbursement agreements
contained in Section 4 hereof and the indemnity and contribution agreements
contained in Sections 6 and 7 hereof, shall remain operative and in full force
and effect regardless of any investigation made by or on behalf of the Agent or
any controlling person and shall survive termination of this Agreement and/or
delivery of the Shares to and payment for the Shares by subscribers therefor.
10. MISCELLANEOUS. This Agreement has been and is made for the benefit of
the Agent, the Company and their respective successors and assigns, and, to the
extent expressed herein, for the benefit of persons controlling the Agent 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 Agent merely because of such purchase.
If any action or proceeding shall be brought by the Agent or the Company in
order to enforce any right or remedy under this Agreement, the Agent and the
Company hereby consent to, and agree that they will submit to, the jurisdiction
of the courts of the State of Indiana and of any Federal court sitting in the
State of Indiana.
All notices and communications hereunder shall be in writing and mailed or
delivered or by telephone or facsimile, if subsequently confirmed in writing, as
follows:
If to the Agent: David A. Noyes & Company
111 Monument Circle, Suite 300
Indianapolis, Indiana 46204
Attention: John C. Reed,
Executive Vice President
Telephone: 317-633-1743
Facsimile: 317-633-1739
With a copy to: John R. Zerkle
Leagre Chandler & Millard LLP
1400 First Indiana Plaza
135 North Pennsylvania Street
Indianapolis, Indiana 46204-2415
Telephone: 317-808-3000
Facsimile: 317-808-3100
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If to the Company: First Shares Bancorp, Inc.
P.O. Box 390
Greenwood, Indiana 46143
Attention: Mr. Jerry R. Engle, President
Telephone: 317-882-4790
Facsimile: 317-882-5903
With a copy to: David A. Butcher and Alan W. Becker
Bose McKinney & Evans LLP
2700 First Indiana Plaza
135 N. Pennsylvania Street
Indianapolis, Indiana 46204
Telephone: 317-684-5000
Facsimile: 317-684-5173
This Agreement shall be construed in accordance with the laws of the State
of Indiana, without giving effect to principles of conflicts of laws. Please
confirm that the foregoing correctly sets forth the agreement between us.
Very truly yours,
FIRST SHARES BANCORP, INC.
By:
--------------------------------------
Jerry Engle, President and Director
Confirmed by David A. Noyes & Company
DAVID A. NOYES & COMPANY
By:
--------------------------------------
John C. Reed, Executive Vice President
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<PAGE> 22
EXHIBIT A
BLUE SKY STATES
Florida Missouri
Illinois New Jersey
Indiana Ohio
Kentucky Pennsylvania
Michigan Wisconsin
Missouri
