EXHIBIT 1.3
[Warrants Units]
OLD KENT FINANCIAL CORPORATION
UNDERWRITING AGREEMENT
New York, New York
__________, 199_
To the Representatives
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Dear Sirs:
Old Kent Financial Corporation, a Michigan corporation (the
"COMPANY"), proposes to issue and sell to the underwriters named in
Schedule II hereto (the "UNDERWRITERS"), for whom you are acting as
representatives (the "REPRESENTATIVES"), warrants units (the "INITIAL
WARRANTS UNITS"). Such Initial Warrants Units are to be sold to each
Underwriter, acting severally and not jointly, in such amounts as are
listed in Schedule II opposite the name of each Underwriter. The Company
also grants to the Underwriters, severally and not jointly, the option
described in Section 2(c) to purchase up to ______ additional warrants
units (the "OPTION WARRANTS UNITS"; together with the Initial Warrants
Units, the "WARRANTS UNITS") to cover over-allotments. The Warrants Units
are more fully described in the Final Prospectus, referred to below. If
the firm or firms listed in Schedule II include only the firm or firms
listed in Schedule I, then the terms "Underwriters" and "Representatives",
as used in this Agreement, each shall be deemed to refer to such firm or
firms.
1. REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to, and agrees with, each Underwriter, as of the date of this
Agreement and as of the date of the Pricing Agreement that:
(a) The Company meets the requirements for use of Form S-3
under the Securities Act of 1933, as amended (the "ACT"), and has
filed with the Securities and Exchange Commission (the
"COMMISSION") a registration statement on such Form S-3 (the file
number of which is set forth in Schedule I), that has become
effective, for the registration under the Act of the Warrants
Units. Such registration statement, as amended at the date of
this Agreement, meets the requirements set forth in Rule
415(a)(1) under the Act and complies in all other material
respects with Rule 415. The Company proposes to file with the
Commission pursuant to Rule 424 or Rule 434 under the Act a
supplement to the form of prospectus included in such
registration statement relating to the Warrants Units and the
plan of distribution thereof and has previously advised you of
all further information (financial and other) with respect to the
Company to be set forth therein. Such registration statement,
including the exhibits thereto, as amended at the date of this
Agreement, is hereinafter called the "REGISTRATION STATEMENT";
such prospectus in the form in which it appears in the
Registration Statement is hereinafter called the "BASIC
PROSPECTUS"; and such supplemented form of prospectus, in the
form in which it shall be filed with the Commission pursuant to
Rule 424 or Rule 434 (including the Basic Prospectus as so
supplemented) is hereinafter called the "FINAL PROSPECTUS." Any
preliminary form of the Final Prospectus that has heretofore been
filed pursuant to Rule 424 hereinafter is called the "PRELIMINARY
FINAL PROSPECTUS." Any reference in this Agreement to the
Registration Statement, the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 that were filed under the
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"),
on or before the date of this Agreement, or the issue date of the
Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, as the case may be; and any reference in this
Agreement to the terms "amend", "amendment" or "supplement" with
respect to the Registration Statement, the Basic Prospectus, and
the Preliminary Final Prospectus or the Final Prospectus shall be
deemed to refer to and include the filing of any document under
the Exchange Act after the date of this Agreement, or the issue
date of the Basic Prospectus, any Preliminary Final Prospectus or
the Final Prospectus, as the case may be, and deemed to be
incorporated therein by reference.
(b) As of the date of this Agreement, when the Final
Prospectus is first filed pursuant to Rule 424 or Rule 434 under
the Act, when, prior to the Closing Date (as hereinafter
defined), any amendment to the Registration Statement becomes
effective (including the filing of any document incorporated by
reference in the Registration Statement), when any supplement to
the Final Prospectus is filed with the Commission and at the
Closing Date (as hereinafter defined), (i) the Registration
Statement as amended as of any such time, and the Final
Prospectus, as amended or supplemented as of any such time, will
comply in all material respects with the applicable requirements
of the Act, and the Exchange Act and the respective rules
thereunder, (ii) the Registration Statement, as amended as of any
such time, will not contain any untrue statement of a material
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fact or 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, and (iii) the Final Prospectus, as amended or
supplemented as of any such time, will not contain any untrue
statement of a material fact or 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 representations or warranties as to the
information contained in or omitted from the Registration
Statement or the Final Prospectus or any amendment thereof or
supplement thereto in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf
of any Underwriter through the Representatives specifically for
use in connection with the preparation of the Registration
Statement and the Final Prospectus.
(c) The Company is a duly organized and validly existing
corporation in good standing under the laws of the state of
Michigan, has the corporate power and authority to own its
properties and conduct its business as described in the Final
Prospectus, and is duly registered as a bank holding company
under the Bank Holding Company Act of 1956, as amended; Old Kent
Bank (the "Principal Subsidiary Bank") is a banking organization
formed under the laws of the state of Michigan and authorized
thereunder to transact business. It is agreed that each
Underwriter and you, as Representative, have furnished to the
Company in writing for such use the statements with respect to
Underwriters in response to Item E of Form S-1, any statements
relating to the terms of the offering by the Underwriters on the
cover page of the Final Prospectus, and all statements under the
caption "Underwriting" in the Final Prospectus.
(d) Neither the Company nor the Principal Subsidiary Bank
is required to be qualified or licensed to do business as a
foreign corporation in any jurisdiction where it is not so
qualified or licensed, except where the failure to be so
qualified would not reasonably be expected to have a material
adverse effect on the business or properties of the Company and
its subsidiaries on a consolidated basis.
(e) All the outstanding shares of capital stock of the
Company and the Principal Subsidiary Bank have been duly and
validly authorized and issued and are fully paid and (except as
provided in M.C.L. 450.1551 and the Michigan Banking
Code of 1969, as amended) nonassessable. Except as otherwise set
forth in the Final Prospectus, all outstanding shares of capital
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stock of the Principal Subsidiary Bank are owned, directly or
indirectly, by the Company, free and clear of any perfected
security interest and, subject to the provisions of and the
Michigan Banking Code of 1969, as amended, any other security
interests, claims, liens or encumbrances.
(f) the Securities conform in all material respects to the
description thereof contained in the Final Prospectus;
(g) There is no pending or, to the Company's knowledge,
threatened action, suit or proceeding before any court or
governmental agency, authority or body or any arbitrator
involving the Company or any of its subsidiaries, of a character
required to be disclosed in the Registration Statement that is
not adequately disclosed in the Final Prospectus. There is no
franchise, contract or other document of a character required to
be described in the Registration Statement or Final Prospectus,
or to be filed as an exhibit, that is not described or filed as
required.
(h) This Agreement and the Warrant Agreement have been duly
authorized, executed and delivered by the Company and each
constitutes a legal, valid and binding agreement of the Company
enforceable against the Company in accordance with its terms
(subject, as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium, fraudulent
conveyance or other similar laws affecting the rights of
creditors now or hereafter in effect, and to equitable principles
that may limit the right to specific enforcement of remedies, and
except insofar as the enforceability of the indemnity and
contribution provisions contained in this Agreement may be
limited by federal and state securities laws, and further subject
to bank regulatory powers and to the application of principles of
public policy).
(i) No consent, approval, authorization or order of any
court or governmental agency or body is required on behalf of the
Company for the consummation of the transactions contemplated
herein, except such as have been obtained under the Act and such
as may be required by the National Association of Securities
Dealers, Inc. ("NASD") or under the blue sky or insurance laws of
any jurisdiction in connection with the purchase and distribution
of the Securities by the Underwriters and such other approvals as
have been obtained.
(j) Neither the issue and sale of the Securities, nor the
consummation of any other of the transactions herein contemplated
nor the fulfillment of the terms of this Agreement will conflict
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with, result in a breach of, or constitute a default under the
Restated Articles of Incorporation or Restated Bylaws of the
Company or the terms of any material indenture or other agreement
to which the Company or the Principal Subsidiary Bank is a party
or bound, or any order or regulation applicable to the Company or
the Principal Subsidiary Bank of any court, regulatory body,
administrative agency, governmental body or arbitrator having
jurisdiction over the Company or any of its affiliates.
(k) The financial statements (including the related notes
and supporting schedules) included in the Final Prospectus
present fairly in all material respects the financial condition
and results of operations of the entities purported to be shown
thereby, at the dates and for the periods indicated, and (except
as indicated therein) have been prepared in conformity with
generally accepted accounting principles applied in a consistent
basis throughout the periods involved.
(1) The underlying securities, as set forth in the
applicable Final Prospectus, have been duly authorized and
reserved for issuance upon exercise of the Warrants Units.
2. PURCHASE AND SALE.
(a) Subject to the terms and conditions and in reliance
upon the representations and warranties set forth in this
Agreement, the Company agrees to sell to each Underwriter, and
each Underwriter agrees, severally and not jointly, to purchase
from the Company the respective number of Initial Warrants Units
set forth opposite such Underwriter's name in Schedule II.
(b) The initial public offering price and the purchase
price of the Initial Warrants Units shall be set forth in a
separate written instrument (the "PRICING AGREEMENT") signed by
the Representatives and the Company, the form of which is
attached as Schedule III. From and after the execution and
delivery of the Pricing Agreement, this Agreement shall be deemed
to include the Pricing Agreement. The purchase price per Warrant
Unit to be paid by the several Underwriters for the Initial
Warrants Units shall be an amount equal to the initial public
offering price, less an amount per Warrant Unit to be determined
by agreement among the Representatives and the Company.
(c) In addition, on the basis of the representations and
warranties contained in this Agreement, and subject to the terms
and conditions set forth in this Agreement, the Company grants an
option to the Underwriters, severally and not jointly, to
purchase up to an additional _____ Option Warrants Units at the
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same price per share determined as provided above for the Initial
Warrants Units. The option hereby granted will expire 30 days
after the date of the Pricing Agreement, and may be exercised, in
whole or in part (but not more than once), only for the purpose
of covering over-allotments upon notice by the Representatives to
the Company setting forth the number of Option Warrants Units as
to which the several Underwriters are exercising the option, and
the time and date of payment and delivery thereof. Such time and
date of Delivery (the "DATE OF DELIVERY") shall be determined by
the Representatives but shall not be later than seven full
business days after the exercise of such option and not in any
event prior to the Closing Date (as defined below). If the
option is exercised as to all or any portion of the Option
Warrants Units, the Option Warrants Units as to which the option
is exercised shall be purchased by the Underwriters severally and
not jointly, in proportion to, as nearly as practicable, their
respective Initial Warrants Units underwriting obligations as set
forth on Schedule II.
3. DELIVERY AND PAYMENT. Delivery of and payment for the Initial
Warrants Units shall be made on the date and at the time specified in the
Pricing Agreement, which date and time may be postponed by agreement
between the Representatives and the Company or as provided in Section 9
(such date and time of delivery and payment for the Initial Warrants Units
being in this Agreement called the "CLOSING DATE"). Delivery of the
Initial Warrants Units shall be made to the Representatives for the
respective accounts of the several Underwriters against payment by the
several Underwriters through the Representatives of the purchase price
thereof in the manner set forth in Schedule I. Unless otherwise agreed,
certificates for the Initial Warrants Units shall be in the form set forth
in Schedule I, and such certificates may be deposited with The Depository
Trust Company ("DTC") or a custodian for DTC and registered in the name of
Cede & Co., as nominee for DTC.
In addition, in the event that any or all of the Option Warrants
Units are purchased by the Underwriters, delivery and payment for the
Option Warrants Units shall be made at the office specified for delivery of
the Initial Warrants Units in the Pricing Agreement, or at such other place
as the Company and the Representatives shall determine, on the Date of
Delivery as specified in the notice from the Representatives to the
Company. Delivery of the Option Warrants Units shall be made to the
Representatives against payment by the Underwriters through the
Representatives of the purchase price thereof to or upon the order of the
Company in the manner set forth in Schedule I. Unless otherwise agreed,
certificates for the Option Warrants Units shall be in the form set forth
in Schedule I, and such certificates shall be registered in such names and
in such denominations as the Representatives may request not less than
three full business days in advance of the Date of Delivery.
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4. AGREEMENTS. The Company agrees with the several Underwriters
that:
(a) Prior to the termination of the offering of the
Warrants Units, the Company will not file any amendment to the
Registration Statement or supplement (including the Final
Prospectus) to the Basic Prospectus unless the Company has
furnished you a copy for your review prior to filing and will not
file any such proposed amendment or supplement to which you
reasonably object. Subject to the foregoing sentence, the
Company will cause the Final Prospectus to be filed with the
Commission pursuant to Rule 424 or Rule 434 via the Electronic
Data Gathering, Analysis and Retrieval System. The Company will
advise the Representatives promptly (i) when the Final Prospectus
shall have been filed with the Commission pursuant to Rule 424 or
Rule 434, (ii) when any amendment to the Registration Statement
relating to the Warrants Units shall have become effective, (iii)
of any request by the Commission for any amendment of the
Registration Statement or amendment of or supplement to the Final
Prospectus or for any additional information, (iv) of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose, and (v) of the
receipt by the Company of any notification with respect to the
suspension of the qualification of the Warrants Units for sale in
any jurisdiction or the initiation or threatening of any
proceeding for such purpose. The Company will use all reasonable
efforts to prevent the issuance of any such stop order and, if
issued, to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Warrants Units is required to be delivered by an Underwriter or
dealer under the Act, any event occurs as a result of which, in
the judgment of the Company or in the opinion of counsel for the
Underwriters, the Final Prospectus as then amended or
supplemented would include any untrue statement of a material
fact or omit to state any material fact necessary to make the
statements therein in light of the circumstances under which they
were made not misleading, or if it shall be necessary to amend or
supplement the Final Prospectus to comply with the Act or the
Exchange Act or the respective rules thereunder, the Company
promptly will prepare and file with the Commission, subject to
the first sentence of paragraph (a) of this Section 4, an
amendment or supplement that will correct such statement or
omission or an amendment that will effect such compliance.
(c) The Company will make generally available to its
security holders and to the Representatives as soon as
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practicable, but not later than 90 days after the close of the
period covered thereby, an earnings statement (in form complying
with the provisions of Rule 158 of the regulations under the Act)
covering a twelve month period beginning not later than the first
day of the Company's fiscal quarter next following the "effective
date" (as defined in said Rule 158) of the Registration
Statement.
(d) The Company will furnish to the Representatives and
counsel for the Underwriters, without charge, copies of the
Registration Statement (including exhibits thereto) and each
amendment thereto that shall become effective on or prior to the
Closing Date and, so long as delivery of a prospectus by an
Underwriter or dealer may be required by the Act, as many copies
of any Preliminary Final Prospectus and the Final Prospectus and
any amendments thereof and supplements thereto as the
Representatives may reasonably request. Except as otherwise
provided herein, the Company will pay the expenses of printing
all documents relating to the offering.
(e) The Company will arrange for the qualification of the
Warrants Units for sale under the laws of such jurisdictions as
the Representatives may reasonably designate, will use all
reasonable efforts to maintain such qualifications in effect so
long as required for the distribution of the Warrants Units and
will arrange for the determination of the legality of the
Warrants Units for purchase by institutional investors; provided,
however, that the Company shall not be required to qualify to do
business in any jurisdiction where it is not now so qualified or
to take any action that would subject it to general or unlimited
service of process of any jurisdiction where it is not now so
subject.
(f) Until the business day following the Closing Date, the
Company will not, without the consent of the Representatives,
offer or sell, or announce the offering of, any securities
covered by the Registration Statement or by any other
registration statement filed under the Act; provided, however,
the Company may, at any time, offer or sell or announce the
offering of any securities (A) covered by a registration
statement on Form S-8 or (B) covered by a registration statement
on Form S-3 and pursuant to which the Company issues securities
for its dividend reinvestment plan.
5. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The
obligations of the Underwriters to purchase the Warrant Units shall be
subject to the accuracy of the representations and warranties on the part
of the Company contained in this Agreement as of the date of this
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Agreement, as of the date of the effectiveness of any amendment to the
Registration Statement filed prior to the Closing Date (including the
filing of any document incorporated by reference therein), and as of the
Closing Date, to the accuracy of the statements of the Company made in any
certificates pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional
conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall have
been issued and no proceedings for that purpose shall have been
instituted or threatened; and the Final Prospectus shall have
been filed or mailed for filing with the Commission within the
time period prescribed by the Commission.
(b) The Company shall have furnished to the Representatives
the opinion of Xxxxxx Xxxxxxxx & Xxxx LLP, counsel for the
Company, dated the Closing Date, to the effect of paragraphs (i)
through (xii) below:
(i) the Company is a duly organized and validly
existing corporation in good standing under the laws of
the state of Michigan, has the corporate power and
authority to own its properties and conduct its
business as described in the Final Prospectus, and is
duly registered as a bank holding company under the
Bank Holding Company Act of 1956, as amended; the
Principal Subsidiary Bank is a banking organization
organized under the laws of the state of Michigan and
authorized thereunder to transact business;
(ii) except for those jurisdictions specifically
enumerated in such opinion, neither the Company nor the
Principal Subsidiary Bank is required to be qualified
or licensed to do business as a foreign corporation in
any jurisdiction where it is not so qualified or
licensed, except where the failure to be so qualified
or licensed would not reasonably be expected to have a
material adverse effect on the business or properties
of the Company and its subsidiaries on a consolidated
basis;
(iii) all the outstanding shares of capital
stock of the Company and the Principal Subsidiary Bank
have been duly and validly authorized and issued and
are fully paid and (except as provided in M.C.L.
450.1551 and the Michigan Banking Code of
1969, as amended) nonassessable, and, except as
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otherwise set forth in the Final Prospectus, all
outstanding shares of capital stock of the Principal
Subsidiary Bank are owned, directly or indirectly, by
the Company free and clear of any perfected security
interest and, to the knowledge of such counsel, any
other security interests, claims, liens or
encumbrances;
(iv) the Warrant Units conform as to legal matters
in all material respects to the description thereof
contained in the Final Prospectus;
(v) if the Warrant Units are to be listed on [the
New York Stock Exchange] [The Nasdaq Stock Market],
authorization therefor has been given, subject to
official notice of issuance and evidence of
satisfactory distribution, or the Company has filed a
preliminary listing application and all required
supporting documents with respect to the Initial
Warrant Units with [the New York Stock Exchange] [The
Nasdaq Stock Market] and such counsel has no reason to
believe that the Initial Warrant Units will not be
authorized for listing, subject to official notice of
issuance and evidence of satisfactory distribution;
(vii) to the knowledge of such counsel, there
is no pending or threatened action, suit or proceeding
before any court or governmental agency, authority or
body or any arbitrator involving the Company or any of
its subsidiaries, of a character required to be
disclosed in the Registration Statement that is not
adequately disclosed in the Final Prospectus, and there
is no franchise, contract or other document of a
character required to be described in the Registration
Statement or Final Prospectus, or to be filed as an
exhibit, that is not described or filed as required;
(viii) the Registration Statement has become
effective under the Act; to the knowledge of such
counsel, no stop order suspending the effectiveness of
the Registration Statement has been issued and no
proceedings for that purpose have been instituted or
threatened; the Registration Statement, the Final
Prospectus and each amendment thereof or supplement
thereto (other than the financial statements and other
financial and statistical information contained therein
or incorporated by reference therein, as to which such
counsel need express no opinion) comply as to form in
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all material respects with the applicable requirements
of the Act and the Exchange Act and the respective
rules thereunder;
(ix) this Agreement, the Warrant Unit Agreement,
and the Pricing Agreement have been duly authorized,
executed and delivered by the Company and each is a
valid and binding agreement of the Company (subject, as
to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium, fraudulent
conveyance or other similar laws affecting the rights
of creditors now or hereafter in effect, and to
equitable principles that may limit the right to
specific enforcement of remedies, and except insofar as
the enforceability of the indemnity and contribution
provisions contained in this Agreement may be limited
by federal and state securities laws, and further
subject to bank regulatory powers and to the
application of principles of public policy);
(x) no consent, approval, authorization or order
of any court or governmental agency or body is required
on behalf of the Company for the consummation of the
transactions contemplated by this Agreement, except
such as have been obtained under the Act and such as
may be required by the NASD or under the blue sky or
insurance laws of any jurisdiction in connection with
the purchase and distribution of the Warrant Units by
the Underwriters and such other approvals (specified in
such opinion) as have been obtained;
(xi) neither the issue and sale of the Warrant
Units, nor the consummation of any other of the
transactions contemplated by this Agreement, nor the
fulfillment of the terms of this Agreement, by the
Company, will conflict with, result in a breach of, or
constitute a default under the Restated Articles of
Incorporation or Restated Bylaws of the Company or, to
the knowledge of such counsel, the terms of any
material indenture or other material agreement or
instrument known to such counsel and to which the
Company or the Principal Subsidiary Bank is a party or
bound, or any order or regulation known to such counsel
to be applicable to the Company or the Principal
Subsidiary Bank of any court, regulatory body,
administrative agency, governmental body or arbitrator
having jurisdiction over the Company or any of its
affiliates; and
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(xii) the issuance and sale of the Warrants
Units have been duly authorized by the Company, and the
Warrants Units, when issued and paid for in accordance
with this Agreement and the Warrant Unit Agreement,
will (A) be duly and validly issued, (B) constitute
valid and legally binding obligations of the Company,
enforceable against the Company in accordance with
their terms and entitled to the benefit of the Warrant
Unit Agreement, and (C) be exercisable for such
underlying securities, currencies or commodities or, in
the case of underlying securities or commodities, the
cash value thereof, as set forth in the applicable
Final Prospectus in accordance with the terms of the
Warrants Units; the underlying securities, as set forth
in the applicable Final Prospectus, have been duly
authorized and reserved for issuance upon exercise of
the Warrants Units.
In rendering such opinion, but without opining in connection
therewith, such counsel shall also state that, although it has
not independently verified, is not passing upon and assumes no
responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement, it has no
reason to believe that the Registration Statement or any
amendment thereof at the time it 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, in light of the circumstances under which
they were made, not misleading, or that the Final Prospectus, as
amended or supplemented, 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.
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction
other than the state of Michigan or the United States, to the
extent deemed proper by such counsel and specified in such
opinion, upon the opinion of other counsel of good standing
believed to be reliable and who are reasonably satisfactory to
counsel for the Underwriters; and (B) as to matters of fact, to
the extent deemed proper by such counsel, on certificates of
responsible officers of the Company and its subsidiaries and
public officials. In rendering such opinion with respect to the
matters covered in clause (ix), such counsel may state that its
opinion and belief are based upon the procedures specified in
such opinion, but are without independent check or verification.
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(c) The Representatives shall have received from
___________, counsel for the Underwriters, such opinion or
opinions, dated the Closing Date, with respect to the matters
referred to in clauses (iv),(vii), (viii), (ix), (x), and (xii)
of Paragraph 5(b). In rendering such opinion, but without
opining in connection therewith, such counsel shall also state
that, although it has not independently verified, is not passing
upon and assumes no responsibility for the accuracy, completeness
or fairness of the statements contained in the Registration
Statement, it has no reason to believe that the Registration
Statement or any amendment thereof at the time it 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, in light of the
circumstances under which they were made, not misleading, or that
the Final Prospectus, as amended or supplemented, 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.
In rendering such opinion, such counsel may rely, as to matters
involving the application of laws of any jurisdiction other than
the state of __________ or the United States, to the extent
deemed proper by such counsel and specified in such opinion, upon
the opinion of other counsel of good standing believed to be
reliable and who are reasonably satisfactory to counsel for the
Company.
(d) The Company shall have furnished to the Representatives
a certificate of the Company, signed by a Senior Vice President
and the principal financial or accounting officer of the Company,
dated the Closing Date, to the effect that the signers of such
certificate have carefully examined the Registration Statement,
the Final Prospectus and this Agreement and that to the best of
their knowledge:
(i) the representations and warranties of the Company
in this Agreement are true and correct in all material
respects on and as of the Closing Date with the same effect
as if made on the Closing Date and the Company has complied
with all the agreements and satisfied all the conditions on
its part to be performed or satisfied at or prior to the
Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement, as amended, has been issued and no
proceedings for that purpose have been instituted or, to the
best of the Company's knowledge, threatened; and
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(iii) since the date of the most recent financial
statements included in the Final Prospectus, there has been
no material adverse change in the financial condition,
earnings, business or properties of the Company and its
subsidiaries, whether or not arising from transactions in
the ordinary course of business, except as set forth in or
contemplated in the Final Prospectus.
(e) At the Closing Date, Xxxxxx Xxxxxxxx LLP shall have
furnished to the Representatives (and also addressed to the
Company's Board of Directors) a letter or letters (which letter
may refer to letters previously delivered to one or more of the
Representatives), dated as of the Closing Date, in form and
substance satisfactory to the Representatives, confirming that
the response, if any, to Item 10 of the Registration Statement is
correct insofar as it relates to them and stating in effect that:
(i) They are independent accountants within the
meaning of the Act and the applicable published rules and
regulations thereunder.
(ii) In their opinion, the consolidated financial
statements of the Company audited by them and included or
incorporated by reference in the Registration Statement and
Final Prospectus comply as to form in all material respects
with the applicable accounting requirements of the Act and
the related published rules and regulations thereunder.
(iii) They performed review procedures (but not an
audit in accordance with generally accepted auditing
standards) consisting of:
(A) With respect to the period from the date of
the most recent audited balance sheet included or
incorporated by reference in the Final Prospectus
through a specified date not more than five business
days prior to the date of delivery of such letter:
reading the minutes of the meetings of the
shareholders, the board of directors, executive
committee and audit committee of the Company and the
Principal Bank Subsidiary as set forth in the minute
books for such period,
(B) With respect to the three, six, or nine month
period, as the case may be, ended on the date of the
most recent unaudited condensed consolidated interim
balance sheet of the Company included or incorporated
by reference in the Registration Statement and Final
-14-
Prospectus, and with respect to the same three, six, or
nine month period of the previous year:
(I) Performing the procedures specified by
the American Institute of Certified Public
Accountants for a review of interim financial
information as described in SAS No. 71, Interim
Financial Information, on the unaudited condensed
consolidated interim financial statements of the
Company included or incorporated by reference in
the Registration Statement and Final Prospectus,
(II) Making inquiries of certain officials of the
Company who have responsibility for financial and
accounting matters whether such unaudited condensed
consolidated financial statements comply as to form in
all material respects with the applicable accounting
requirements of the Act and the related published rules
and regulations,
(C) With respect to the period from the date of
the most recent unaudited condensed consolidated
interim balance sheet of the Company included or
incorporated by reference in the Final Prospectus to
the date of the latest available interim financial
data:
(I) Reading the unaudited condensed consolidated
financial statements of the Company for such period, and
(II) Inquiring of certain officials of the Company
who have responsibility for financial and accounting
matters whether the unaudited condensed consolidated
financial statements referred to in (C)(I) immediately
above are stated on a basis substantially consistent with
that of the audited consolidated financial statements
included or incorporated by reference in the
Final Prospectus.
(iv) Based on the procedures described in (iii)
immediately above, nothing came to their attention as a
result of the foregoing procedures that caused them to
believe that:
(A) The unaudited condensed consolidated
financial statements, included or incorporated by
reference in the Registration Statement and Final
Prospectus, do not comply as to form in all material
-15-
respects with the applicable accounting requirements of the
Act and the related published rules and regulations thereunder,
(B) Any material modifications should be made to
the unaudited condensed consolidated financial
statements described in (C) immediately above, included or
incorporated by reference in Final Prospectus, for them to be
in conformity with generally accepted accounting principles,
and
(C) As of the date of the latest available interim
financial data and at the specified date not more than
five business days prior to the date of delivery of
such letter, there was any change in the capital stock,
increase in long-term debt, or decrease in consolidated
net assets or shareholders' equity of the
Company (on a consolidated basis) as compared with the
amounts shown in the unaudited condensed consolidated
financial statements included or incorporated
by reference in the Final Prospectus.
(v) The letter shall also state that Xxxxxx Xxxxxxxx
LLP has carried out certain other specified procedures, not
constituting an audit, with respect to certain amounts,
percentages and financial information that are included or
incorporated by reference in the Registration Statement and
Final Prospectus and that are specified by the
Representatives and agreed to by Xxxxxx Xxxxxxxx LLP, and
has found such amounts, percentages and financial
information to be in agreement with the relevant accounting,
financial and other records of the Company and its
subsidiaries identified in such letter.
In addition, at the time this Agreement is executed, Xxxxxx
Xxxxxxxx LLP shall have furnished to the Representatives a
letter or letters, dated the date of this Agreement, in form
and substance satisfactory to the Representatives, to the
effect set forth in this paragraph (e) and in Schedule I.
(f) Subsequent to the respective dates as of which
information is given in the Registration Statement and the Final
Prospectus, there shall not have been (i) any change or decrease
specified in the letter or letters referred to in paragraph (e)
of this Section 5, or (ii) any change, or any development
involving a prospective change, in or affecting the earnings,
business or properties of the Company and its subsidiaries the
effect of which, in any case referred to in clause (i) or (ii)
above, is, in the reasonable judgment of the Representatives, so
-16-
material and adverse as to make it impractical or inadvisable to
proceed with the offering or the delivery of the Securities as
contemplated by the Registration Statement and the Final
Prospectus.
(g) Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information,
certificates and documents as the Representatives may reasonably
request.
If any of the conditions specified in this Section 5 shall not have been
fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in
this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Representatives, this Agreement
and all obligations of the Underwriters under this Agreement may be
canceled at, or at any time prior to, the Closing Date by the
Representatives.
6. PAYMENT OF EXPENSES. The Company will pay all expenses incident
to the performance of its obligations under this Agreement, including (i)
the printing and filing of the Registration Statement as originally filed
and of each amendment thereto, (ii) the copying of this Agreement and the
Pricing Agreement, (iii) the preparation, issuance and delivery of the
certificates for the Warrants Units to the Underwriters, including capital
duties, stamp duties and stock transfer taxes, if any, payable upon
issuance of any of the Warrants Units, the sale of the Warrants Units to
the Underwriters and the fees and expenses of the transfer agent for the
Warrants Units, (iv) the fees and disbursements of the Company's counsel
and accountants, (v) the qualification of the Warrants Units under state
securities laws in accordance with the provisions of Section 4(e),
including filing fees and the reasonable fees and disbursements of counsel
for the Underwriters in connection therewith and in connection with the
preparation of the "Blue Sky Survey," which fees shall not exceed $_____,
(vi) the printing and delivery to the Underwriters of copies of the
Registration Statement as originally filed and of each amendment thereto,
of the preliminary prospectuses, and of the Prospectuses and any amendments
or supplements thereto, (vii) the printing and delivery to the Underwriters
of copies of the Blue Sky Survey (not to exceed $_____), and (viii) the fee
of the NASD and, if applicable, [the New York Stock Exchange][The Nasdaq
Stock Market].
If the sale of the Warrants Units provided for in this Agreement
is not consummated because any condition to the obligations of the
Underwriters set forth in Section 5 is not satisfied or because of any
refusal, inability or failure on the part of the Company to perform any
agreement in this Agreement or comply with any provision hereof other than
by reason of a default by any of the Underwriters, the Company will
-17-
reimburse the Underwriters severally upon demand for all out-of-pocket
expenses (including reasonable fees and disbursements of counsel) that
shall have been incurred by them in connection with the proposed purchase
and sale of the Warrants Units.
7. CONDITIONS TO PURCHASE OF OPTION WARRANTS UNITS. In the event
the Underwriters exercise the option granted in Section 2(c) to purchase
all or any portion of the Option Warrants Units and the Date of Delivery
determined by the Representatives pursuant to Section 2 is later than the
Closing Date, the obligations of the several Underwriters to purchase and
pay for the Option Warrants Units that they shall have respectively agreed
to purchase hereunder are subject to the accuracy of the representations
and warranties of the Company contained in this Agreement, to the
performance by the Company of its obligations hereunder and to the
following additional conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall have
been issued and no proceedings for that purpose shall have been
instituted or threatened; and any required filing of the Final
Prospectus pursuant to Rule 424(b) or Rule 434 under the Act
shall have been made within the proper time period.
(b) At the Date of Delivery, the Representatives shall have
received, each dated the Date of Delivery and relating to the
Option Warrants Units:
(i) the favorable opinion of Xxxxxx Xxxxxxxx & Xxxx
LLP, counsel for the Company, in form and substance
satisfactory to counsel for the Underwriters, to the same
effect as the opinion required by Section 5(b);
(ii) the favorable opinion of ________, counsel for the
Underwriters, to the same effect as the opinion required by
Section 5(c);
(iii) a certificate, of a Senior Vice President of
the Company and of the principal financial or accounting
officer of the Company with respect to the matters set forth
in Section 5(d); and
(iv) a letter from Xxxxxx Xxxxxxxx LLP, in form and
substance satisfactory to the Underwriters, substantially
the same in scope and substance as the letter furnished to
the Underwriters pursuant to Section 5(e) except that the
"specified date" in the letter furnished pursuant to this
Section 7(b)(iv) shall be a date not more than five days
prior to the Date of Delivery.
-18-
If any of the conditions specified in this Section 7 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects
reasonably satisfactory in form and substance to the Representatives and
their counsel, this Agreement and all obligations of the Underwriters
hereunder may be canceled at, or at any time prior to, the Date of Delivery
by the Representatives.
8. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person who controls any Underwriter within
the meaning of either the Act or the Exchange Act against any and
all losses, claims, damages or liabilities, joint or several, to
which they or any of them may become subject under the 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 (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement as originally filed or in any amendment thereof, or
arise out of or are based upon omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or arise
out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Final Prospectus if
used within the period set forth in Section 4(d), or any
amendment or supplement thereof, or arise out of or are based
upon any omission or alleged omission to state therein a 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, and agrees to reimburse each such
indemnified party for any legal or other expenses reasonably
incurred by them in connection with investigating or defending
any such loss, claim, damage, liability or action; provided,
however, that (i) the Company will not be liable in any such case
to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or
alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any
Underwriter through the Representatives specifically for use in
connection with the preparation thereof, or arises out of or is
based upon statements in or omissions from that part of the
Registration Statement that shall constitute the Statement of
Eligibility and Qualification of the Trustee (Form T-1) under the
1939 Act of either of the Trustees, and (ii) such indemnity with
-19-
respect to the Basic Prospectus or any Preliminary Final
Prospectus shall not inure to the benefit of any Underwriter (or
any person controlling such Underwriter) from whom the person
asserting any such loss, claim, damage or liability purchased the
Securities that are the subject thereof if such person did not
receive a copy of the Final Prospectus (or the Final Prospectus
as amended or supplemented) excluding documents incorporated
therein by reference at or prior to the confirmation of the sale
of such Securities to such person in any case where such delivery
is required by the Act and the untrue statement or omission of a
material fact contained in the Basic Prospectus or any
Preliminary Final Prospectus was corrected in the Final
Prospectus (or the Final Prospectus as amended or supplemented).
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers
who signs the Registration Statement, and each person who
controls the Company within the meaning of either the Act or the
Exchange Act, to the same extent as the foregoing indemnity from
the Company to each Underwriter, but only with reference to
information relating to such Underwriter furnished to the Company
by or on behalf of such Underwriter through the Representatives
specifically for use in the preparation of the documents referred
to in the foregoing indemnity. The Company acknowledges that the
statements set forth in the language on the cover page required
by Item 509 of Regulation S-K and under the heading
"Underwriting" or "Plan of Distribution" in any Preliminary Final
Prospectus or the Final Prospectus constitute the only
information furnished in writing by or on behalf of the several
Underwriters for inclusion in the documents referred to in the
foregoing indemnity, and you, as the Representatives, confirm
that such statements are correct.
(c) Promptly after receipt by an indemnified party under
this Section 7 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be
made against the indemnifying party under this Section 7, notify
the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party will not
relieve it from any liability that it may have to any indemnified
party otherwise than under this Section 7. In case any such
action is brought against any indemnified party, and it notifies
the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and,
to the extent that it may elect by written notice delivered to
the indemnified party promptly after receiving the aforesaid
notice from such indemnified party, to assume the defense
thereof, with counsel satisfactory to such indemnified party;
-20-
provided, however, that if the defendants in any such action
include both the indemnified party and the indemnifying party and
the indemnified party shall have reasonably concluded that there
may be legal defenses available to it and/or other indemnified
parties that are different from or additional to those available
to the indemnifying party, the indemnified party or parties shall
have the right to select separate counsel to assert such legal
defenses and to otherwise participate in the defense of such
action on behalf of such indemnified party or parties. Upon
receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and
approval by the indemnified party of counsel, the indemnifying
party will not be liable to such indemnified party under this
Section 7 for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof
unless (i) the indemnified party shall have employed separate
counsel in connection with the assertion of legal defenses in
accordance with the proviso to the next preceding sentence (it
being understood, however, that the indemnifying party shall not
be liable for the expenses of more than one separate counsel,
approved by the Representatives in the case of subparagraph (a),
representing the indemnified parties under subparagraph (a) who
are parties to such action), (ii) the indemnifying party shall
not have employed counsel reasonably satisfactory to the
indemnified party to represent the indemnified party within a
reasonable time after notice of commencement of the action or
(iii) the indemnifying party has authorized the employment of
counsel for the indemnified party at the expense of the
indemnifying party; and except that if clause (i) or (iii) is
applicable, such liability shall be only in respect of the
counsel referred to in such clause (i) or (iii).
(d) To provide for just and equitable contribution in
circumstances in which the indemnification provided for in
paragraph (a) of this Section 7 is due in accordance with its
terms but is for any reason held by a court to be unavailable
from the Company on the grounds of policy or otherwise, the
Company and the Underwriters shall contribute to the aggregate
losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating or
defending same) to which the Company and one or more of 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 bears to the sum of
such discount and the purchase price of the Securities specified
in Schedule I and the Company is responsible for the balance;
provided, however, that (y) in no case shall any Underwriter
(except as may be provided in any agreement among underwriters
-21-
relating to the offering of the Securities) be responsible for
any amount in excess of the underwriting discount applicable to
the Securities purchased by such Underwriter hereunder and (z) no
person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 7, each person
who controls an Underwriter within the meaning of the Act shall
have the same rights to contribution as such Underwriter, and
each person who controls the Company within the meaning of either
the 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 clause (y) of this paragraph
(d). 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 paragraph (d), notify such party or parties from whom
contribution may be sought, but the omission to so notify such
party or parties 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 paragraph (d).
9. DEFAULT BY AN UNDERWRITER. If any one or more Underwriters shall
fail to purchase and pay for any of the Warrants Units agreed to be
purchased by such Underwriter or Underwriters hereunder and such failure to
purchase shall constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters shall be
obligated severally to take up and pay for (in the respective proportions
that the amount of Warrants Units set forth opposite their names in
Schedule II bear to the aggregate amount of Warrants Units set forth
opposite the names of all the remaining Underwriters) the Warrants Units
that the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate amount of
Warrants Units that the defaulting Underwriter or Underwriters agreed but
failed to purchase shall exceed 10% of the aggregate amount of Warrants
Units set forth in Schedule II, the remaining Underwriters shall have the
right to purchase all, but shall not be under any obligation to purchase
any, of the Warrants Units, and if such nondefaulting Underwriters do not
purchase all the Warrants Units, this Agreement will terminate without
liability to any nondefaulting Underwriter or the Company. In the event of
a default by any Underwriter as set forth in this Section 9, the Closing
Date shall be postponed for such period, not exceeding seven days, as the
Representatives shall determine in order that the required changes in the
Registration Statement and the Final Prospectus or in any other documents
or arrangements may be effected. Nothing contained in this Agreement shall
relieve any defaulting Underwriter of its liability, if any, to the Company
-22-
and any nondefaulting Underwriter for damages occasioned by its default
hereunder.
10. TERMINATION.This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Company
prior to delivery of and payment for the Securities, if prior to such time
(i) trading in securities generally on [the New York Stock Exchange] [The
Nasdaq Stock Market] shall have been suspended or limited or minimum prices
shall have been established on such [exchange][quotation service], (ii) a
banking moratorium shall have been declared either by Federal or Michigan
banking authorities or (iii) there shall have occurred any outbreak or
material escalation of hostilities or other calamity or crisis the effect
of which on the financial markets of the United States is such as to make
it, in the reasonable judgment of the Representatives, impracticable to
market the Warrant Units.
11. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective
agreements, representations, warranties, indemnities and other statements
of the Company or its officers and of the Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless
of any investigation made by or on behalf of any Underwriter or the Company
or any of the officers, directors or controlling persons referred to in
Section 8, and will survive delivery of and payment for the Securities.
The provisions of Section 6 and 8 and this Section 11 shall survive the
termination or cancellation of this Agreement.
12. NOTICES. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be
mailed, delivered or telegraphed and confirmed to them, at the address
specified in Schedule I, with a copy to: [____]; or, if sent to the
Company, will be mailed, delivered or telegraphed and confirmed to it at
000 Xxxx Xxxxxx XX, Xxxxx Xxxxxx, Xxxxxxxx 00000, attention of the
Secretary, with a copy to each of: Xxxxxx Xxxxxxxx & Xxxx LLP, 000 Xxxx
Xxxxxx XX, Xxxxx 000, Xxxxx Xxxxxx, Xxxxxxxx 00000, attention: Xxxxxx X.
Xxxxx.
13. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 8,
and no other person will have any right or obligation hereunder.
14. APPLICABLE LAW. This Agreement will be governed by and construed
in accordance with the internal laws of the State of New York, without
giving effect to principles of conflict of laws.
-23-
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding
agreement among the Company and the several Underwriters.
Very truly yours,
OLD KENT FINANCIAL CORPORATION
By:
Its:
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
By: Name of Representatives
By:
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
-24-
SCHEDULE I
Underwriting Agreement dated _______, 199_
Registration Statement No. 333-
Representatives:
Address of Representatives:
Title, Purchase Price and Description of Securities:
Title:
Purchase price (include type of funds, if applicable): in
federal (same day) funds or wire transfer to an account previously
designated to the Representatives by the Company, or if agreed to
by
the Representatives and the Company, by certified or official bank
check or checks.
Other provisions:
Closing Date, Time and Location:
Additional items to be covered by the letter from
Xxxxxx Xxxxxxxx LLP delivered pursuant to
Section 5(e) at the time this Agreement is executed:
SCHEDULE II
PRINCIPAL AMOUNT OF
INITIAL WARRANTS
UNDERWRITERS UNITS TO BE PURCHASED
SCHEDULE III
[Warrants Units]
OLD KENT FINANCIAL CORPORATION
PRICING AGREEMENT
New York, New York
_____________, 199_
____________,
as Representative of the several Underwriters
Dear Sirs:
Reference is made to the Underwriting Agreement, dated
________, 199_ (the "UNDERWRITING AGREEMENT"), relating to the purchase by
the several Underwriters named in Schedule I thereto, for whom you are
acting as representatives (the "REPRESENTATIVES"), of the above warrants
units issued by Old Kent Financial Corporation (the "COMPANY").
We confirm that the Closing Time (as defined in Section 2
of the Underwriting Agreement) shall be at 9:30 A.M., New York City time,
on _________, 199_ at the offices of ________.
Pursuant to Section 2 of the Underwriting Agreement, the
Company agrees with each Underwriter as follows:
1. The initial public offering price per warrant unit for the
Initial Warrants Units, determined as provided in said Section 2, shall be
$_________.
2. The purchase price per warrant unit for the Initial Warrants
Units to be paid by the several Underwriters shall be $_____, being an
amount equal to the initial public offering price set forth above less
$______ per share.
If the foregoing is in accordance with your understanding
of our agreement, please sign and return to the Company a counterpart
hereof, whereupon this instrument, along with all counterparts, will become
a binding agreement between the Underwriters and the Company in accordance
with its terms.
Very truly yours,
OLD KENT FINANCIAL CORPORATION
By:
Its:
CONFIRMED AND ACCEPTED:
as of the date first above written:
By:
By:
For themselves and as Representatives of the other Underwriters named in
Schedule A hereto.
SCHEDULE A
[Underwriters]
