1
EXHIBIT 1
600,000 Depositary Shares
INDEPENDENT BANK CORPORATION
Depositary Shares Each Representing a 1/4 Interest in a Share of
___% Cumulative, Convertible Preferred Stock, Series A
(Liquidation Preference of $25 per Depositary Share)
UNDERWRITING AGREEMENT
November __, 1996
XXXXXX, XXXXXXXX & COMPANY, INCORPORATED
000 Xxxxx Xxxxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Dear Sirs:
Independent Bank Corporation, a Michigan corporation (the
"Company"), proposes to issue and sell to Xxxxxx, Xxxxxxxx & Company,
Incorporated (the "Underwriter"), pursuant to the terms of this Agreement,
600,000 depositary shares with a liquidation preference of $25.00 per
depositary share, each representing a 1/4 interest (the "Depositary Shares") in
a share of the Company's ____% Cumulative, Convertible Preferred Stock, Series
A, no par value (the "Preferred Stock") to be issued under a Certificate of
Designations (the "Certificate of Designations"), the terms of which are more
fully described in the Prospectus (as hereinafter defined). The 600,000
Depositary Shares to be sold by the Company are herein called the "Firm
Shares." Solely for the purpose of covering over-allotments in the sale of the
Firm Shares, the Company further proposes to issue and sell to the Underwriter,
at their option, up to an additional 90,000 Depositary Shares (the "Option
Shares") upon exercise of the over-allotment option granted in Section 1
hereof. The Firm Shares and any Option Shares are herein collectively referred
to as the "Shares."
The Company hereby confirms as follows its agreement with the
Underwriter in connection with the proposed purchase of the Shares.
1. SALE, PURCHASE AND DELIVERY OF SHARES. On the
basis of the representations, warranties and agreements herein contained, and
subject to the terms and conditions herein set forth, the Company hereby agrees
to sell to the Underwriter and the Underwriter agrees to purchase from the
Company, at a purchase price per share of $____ (the "Purchase Price") the Firm
Shares.
In addition, on the basis of the representations, warranties and
2
agreements herein contained and subject to the terms and conditions herein set
forth, the Company hereby grants to the Underwriter, an option to purchase all
or any portion of the 90,000 Option Shares, and upon the exercise of such
option in accordance with this Section 1, the Company hereby agrees to sell to
the Underwriter, and the Underwriter agrees to purchase from the Company, all
or any portion of the Option Shares at the same Purchase Price per share paid
for the Firm Shares. The option hereby granted (the "Option") shall expire 30
days after the date upon which the Registration Statement (as hereinafter
defined) becomes effective and may be exercised only for the purpose of
covering over-allotments which may be made in connection with the offering and
distribution of the Firm Shares. The Option may be exercised in whole or in
part at any time (but not more than once) by you giving notice (confirmed in
writing) to the Company setting forth the number of Option Shares as to which
the Underwriter is exercising the Option and the time, date and place for
payment and delivery of certificates for such Option Shares. Such time and
date of payment and delivery for the Option Shares (the "Option Closing Date")
shall be determined by you, but shall not be earlier than two nor later than
five full business days after the exercise of such Option, nor in any event
prior to the Closing Date (as hereinafter defined). The Option Closing Date
may be the same as the Closing Date.
Payment of the Purchase Price and delivery of certificates for
the Firm Shares shall be made at the offices of the Underwriter, 000 Xxxxx
Xxxxxxxx, Xx. Xxxxx, Xxxxxxxx 00000, or such other place as shall be agreed to
by you and the Company, at 10:00 a.m., St. Louis time, on _____ __, 1996, or at
such other time not more than five full business days thereafter as the Company
and you shall determine (the "Closing Date"). If the Underwriter exercises the
option to purchase any or all of the Option Shares, payment of the Purchase
Price and delivery of certificates for such Option Shares shall be made on the
Option Closing Date at the offices of the Underwriter, or at such other place
as the Company and you shall determine. Such payments shall be made to the
Company or its order by wire transfer or certified or bank cashier's check, in
clearing house or similar immediately available funds, in the amount of the
Purchase Price therefor, against delivery by or on behalf of the Company to you
for the Underwriter of certificates for the Shares to be purchased by the
Underwriter.
The Agreement contained herein with respect to the timing of
the Closing Date and Option Closing Date is intended to, and does, constitute
an express agreement, as described in Rule 15c6-1(c) and (d) promulgated under
the 1934 Act (as defined herein), for a settlement date other than four
business days after the date of the contract.
Certificates for Shares to be purchased by the Underwriter
shall be delivered in fully registered form in such authorized denominations
and registered in such names as you shall request not later than 12:00 noon,
St. Louis time, two
2
3
business days prior to the Closing Date and, if applicable, the Option Closing
Date. Certificates for Shares to be purchased by the Underwriter shall be made
available to you for inspection, checking and packaging at such office as you
may designate not later than 1:00 p.m., St. Louis time, on the last business
day prior to the Closing Date and, if applicable, on the last business day
prior to the Option Closing Date.
Time shall be of the essence, and delivery of the certificates
for the Shares at the time and place specified pursuant to this Agreement is a
further condition of the obligations of the Underwriter hereunder.
2. REPRESENTATIONS AND WARRANTIES.
(a) The Company represents and warrants to, and agrees
with, the Underwriter that:
(i) The reports filed with the Securities and
Exchange Commission (the "Commission") by the Company under the
Securities Exchange Act of 1934, as amended (the "1934 Act") and the
rules and regulations thereunder (the "1934 Act Regulations") at the
time they were filed with the Commission, complied as to form in all
material respects with the requirements of the 1934 Act and the 1934
Act Regulations and did not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading.
(ii) The Company has prepared and filed with the
Commission a registration statement on Form S-2 (File No. 33-_______)
for the registration of the Shares under the Securities Act of 1933,
as amended (the "1933 Act"), including the related prospectus subject
to completion, and one or more amendments to such registration
statement may have been so filed, in each case in conformity in all
material respects with the requirements of the 1933 Act and the rules
and regulations promulgated thereunder (the "1933 Act Regulations").
Copies of such registration statement, including any amendments
thereto, each Preliminary Prospectus (as defined herein) contained
therein and the exhibits, financial statements and schedules to such
registration statement, as finally amended and revised, have
heretofore been delivered by the Company to the Underwriter. After
the execution of this Agreement, the Company will file with the
Commission (A) if such registration statement, as it may have been
amended, has been declared by the Commission to be effective under the
1933 Act, a prospectus in the form most recently included in an
amendment to such registration statement (or, if no such amendment
shall have been
3
4
filed, in such registration statement), with such changes or
insertions as are required by Rule 430A of the 1933 Act Regulations
("Rule 430A") or permitted by Rule 424(b) of the 1933 Act Regulations
("Rule 424(b)") and as have been provided to and not objected to by
the Underwriter prior to (or as are agreed to by the Underwriter
subsequent to) the execution of this Agreement, or (B) if such
registration statement, as it may have been amended, has not been
declared by the Commission to be effective under the 1933 Act, an
amendment to such registration statement, including a form of final
prospectus, necessary to permit such registration statement to become
effective, a copy of which amendment has been furnished to and not
objected to by the Underwriter prior to (or is agreed to by the
Underwriter subsequent to) the execution of this Agreement. The
Company will not file any amendment to the registration statement or
any amended Preliminary Prospectus or any amendment thereto, of which
you have not been previously furnished a copy or to which you or your
counsel shall reasonably object. As used in this Agreement, the term
"Registration Statement" means such registration statement, as amended
at the time when it was or is declared effective under the 1933 Act,
including (1) all financial schedules and exhibits thereto (2) all
documents (or portions thereof) incorporated by reference therein
filed under the 1934 Act, and (3) any information omitted therefrom
pursuant to Rule 430A and included in the Prospectus (as hereinafter
defined); the term "Preliminary Prospectus" means each prospectus
subject to completion filed with such registration statement or any
amendment thereto including all documents (or portions thereof)
incorporated by reference therein under the 1934 Act (including the
prospectus subject to completion, if any, included in the Registration
Statement and each prospectus filed pursuant to Rule 424(a) under the
0000 Xxx); and the term "Prospectus" means the prospectus first filed
with the Commission pursuant to Rule 424(b)(1) or (4) or, if no
prospectus is required to be filed pursuant to Rule 424(b)(1) or (4),
the prospectus included in the Registration Statement, in each case
including the financial schedules and all documents (or portions
thereof) incorporated by reference therein under the 1934 Act. The
date on which the Registration Statement becomes effective is
hereinafter referred to as the "Effective Date."
(iii) The documents incorporated by reference in
the Preliminary Prospectus or Prospectus or from which information is
so incorporated by reference, when they become effective or were filed
with the Commission, as the case may be, complied in all material
respects with the requirements of the 1934 Act and the 1934 Act
Regulations, and when read together and with the other information in
the Preliminary Prospectus or Prospectus, as the case may be, at the
time the Registration Statement became or becomes effective and at the
Closing Date and any Option Closing Date, did not or will not, as the
case may be, contain an untrue
4
5
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in
light of the circumstances in which they were made, not misleading.
(iv) No order preventing or suspending the use of
any Prospectus (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus) has been issued by the Commission, nor
has the Commission, to the knowledge of the Company, threatened to
issue such an order or instituted proceedings for that purpose. Each
Preliminary Prospectus, at the time of filing thereof, (A) complied in
all material respects with the requirements of the 1933 Act and the
1933 Act Regulations and (B) did not contain an 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; provided,
however, that this representation and warranty does not apply to
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by you expressly for
inclusion in the Prospectus beneath the heading "Underwriting" (such
information referred to herein as the "Underwriter's Information").
(v) At the Effective Date and at all times
subsequent thereto, up to and including the Closing Date and, if
applicable, the Option Closing Date, the Registration Statement and
any post-effective amendment thereto (A) complied and will comply in
all material respects with the requirements of the 1933 Act and the
1933 Act Regulations and (B) did not and will not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, not
misleading. At the Effective Date and at all times when the
Prospectus is required to be delivered in connection with offers and
sales of Shares, including, without limitation, the Closing Date and,
if applicable, the Option Closing Date, the Prospectus, as amended or
supplemented, (A) complied and will comply in all material respects
with the requirements of the 1933 Act and the 1933 Act Regulations and
(B) did not contain and will not contain an 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; provided,
however, that this representation and warranty does not apply to
Underwriter's Information.
(vi) The Company is duly organized, validly
existing and in good standing under the laws of the State of Michigan,
with full corporate and other power and authority to own, lease and
operate its properties and conduct its business as described in and
contemplated by the Registration
5
6
Statement and the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus) and as currently
being conducted and is duly registered as a bank holding company under
the Bank Holding Company Act of 1956, as amended (the "BHC Act").
(vii) The Company has four subsidiaries. They are
Independent Bank, Independent Bank West Michigan, Independent Bank
South Michigan and Independent Bank East Michigan (the "Banks"). The
Company does not own or control, directly or indirectly, more than 5%
of any class of equity security of any corporation, association or
other entity other than the Banks, Independent Title Services, Inc.
and IBC Financial Services, Inc. Each of the Banks is a Michigan
State Bank duly incorporated, validly existing and in good standing
under the laws of Michigan. Each Bank has full corporate and other
power and authority to own, lease and operate its properties and to
conduct its business as described in and contemplated by the
Registration Statement and the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus) and as
currently being conducted. Each Bank is a member of the Federal
Reserve System, and no proceedings for the termination or revocation
of such membership are pending or, to the knowledge of the Company,
threatened. The deposit accounts of each Bank are insured by the Bank
Insurance Fund administered by the Federal Deposit Insurance
Corporation (the "FDIC") up to the maximum amount provided by law,
except to the extent the Prospectus discloses such deposit accounts
are insured by the Savings Association Insurance Fund administered by
the FDIC ("SAIF") and to such extent the deposit accounts are so
insured up to the maximum amount provided by law; and no proceedings
for the modification, termination or revocation of any such insurance
are pending or, to the knowledge of the Company, threatened.
(viii) Each of the Company and the Banks is duly
qualified to transact business as a foreign corporation and is in good
standing in each other jurisdiction in which it owns or leases
property or conducts its business so as to require such qualification
and in which the failure to so qualify would, individually or in the
aggregate, have a material adverse effect on the condition (financial
or otherwise), earnings, business, prospects or results of operations
of the Company and the Banks on a consolidated basis. All of the
issued and outstanding shares of capital stock of the Banks (A) have
been duly authorized and are validly issued, (B) are fully paid and
nonassessable except to the extent such shares may be deemed
assessable under 12 U.S.C. Section 55 or 12 U.S.C. Section 1831o, and
(C) except as disclosed in the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus), are
directly owned by the Company free and clear of any security interest,
mortgage, pledge, lien, encumbrance,
6
7
restriction upon voting or transfer, preemptive rights, claim or
equity. Except as disclosed in the Prospectus, there are no
outstanding rights, warrants or options to acquire or instruments
convertible into or exchangeable for any capital stock of the Company
and the Banks.
(ix) The capital stock of the Company conforms to
the description thereof contained in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary
Prospectus). The outstanding shares of capital stock of the Company
have been duly authorized and validly issued and are fully paid and
nonassessable, and no such shares were issued in violation of the
preemptive or similar rights of any security holder of the Company; no
person has any preemptive or similar right to purchase any shares of
capital stock of the Company. Except as disclosed in the Prospectus
(or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus), there are no outstanding rights, options or
warrants to acquire any securities of the Company other than options
issued under the Company's Incentive Share Grant Plan and Employee
Stock Option Plan, and there are no outstanding securities convertible
into or exchangeable for any such securities, and no restrictions upon
the voting or transfer of any capital stock of the Company pursuant to
the Company's corporate charter or by-laws or any agreement or other
instrument to which the Company is a party or by which it is bound.
(x) The Company has all requisite corporate power
and authority to issue, sell and deliver the Shares in accordance with
and upon the terms and conditions set forth in this Agreement, the
Certificate of Designations, the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus). All corporate action required to be taken by
the Company for the authorization, issuance, sale and delivery of the
Shares in accordance with such terms and conditions has been validly
and sufficiently taken. The Shares, when delivered in accordance with
this Agreement, will be duly and validly issued and outstanding, fully
paid and nonassessable, will not be issued in violation of or subject
to any preemptive or similar rights, and will conform to the
description thereof in the Registration Statement and the Prospectus
(or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) and the Certificate of Designations. None of
the Shares, immediately prior to delivery, will be subject to any
security interest, lien, mortgage, pledge, encumbrance, restriction
upon voting or transfer, preemptive rights, claim, equity or other
defect.
(xi) The Company and the Banks have complied in
all material respects with all federal, state and local statutes,
regulations, ordinances and rules applicable to the ownership and
operation of their properties or the
7
8
conduct of their businesses as described in and contemplated by the
Registration Statement and the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus) and as
currently being conducted.
(xii) The Company and the Banks have all material
permits, easements, consents, licenses, franchises and other
governmental and regulatory authorizations from all appropriate
federal, state, local or other public authorities ("Permits") as are
necessary to own and lease their properties and conduct their
businesses in the manner described in and contemplated by the
Registration Statement and the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus) and as
currently being conducted in all material respects. All such Permits
are in full force and effect and each of the Company and the Banks are
in all material respects complying therewith, and no event has
occurred that allows, or after notice or lapse of time would allow,
revocation or termination thereof or will result in any other material
impairment of the rights of the holder of any such Permit, subject in
each case to such qualification as may be adequately disclosed in the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus). Such Permits contain no restrictions that
would materially impair the ability of the Company or the Banks to
conduct their businesses in the manner consistent with their past
practices. Neither the Company nor the Banks have received notice or
otherwise has knowledge of any proceeding or action relating to the
revocation or modification of any such Permit.
(xiii) Neither the Company nor any of the Banks is
in breach or violation of their corporate charter (including without
limitation, the Certificate of Designations), by-laws or other
governing documents. Neither the Company nor the Banks are, and to
the knowledge of the Company no other party is, in violation, breach
or default (with or without notice or lapse of time or both) in the
performance or observance of any term, covenant, agreement,
obligation, representation, warranty or condition contained in (A) any
contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease, franchise, license, Permit or any other
agreement or instrument to which it is a party or by which it or any
of its properties may be bound, which such breach, violation or
default could have material adverse consequences to the Company and
the Banks on a consolidated basis, and to its knowledge, no other
party has asserted that the Company or any of the Banks is in such
violation, breach or default (provided that the foregoing shall not
apply to defaults by borrowers from the Banks), or (B) except as
disclosed in the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus), any order, decree,
judgment, rule or regulation of any court, arbitrator, government, or
8
9
governmental agency or instrumentality, domestic or foreign, having
jurisdiction over the Company or the Banks or any of their respective
properties the breach, violation or default of which could have a
material adverse effect on the condition, financial or otherwise,
earnings, affairs, business, prospects, or results of operations of
the Company and the Banks on a consolidated basis.
(xiv) The execution, delivery and performance of
this Agreement and the consummation of the transactions contemplated
by this Agreement, the Certificate of Designations, the Registration
Statement and the Prospectus (or, if the Prospectus in not in
existence, the most recent Preliminary Prospectus) do not and will not
conflict with, result in the creation or imposition of any material
lien, claim, charge, encumbrance or restriction upon any property or
assets of the Company or the Banks or the Shares pursuant to,
constitute a breach or violation of, or constitute a default under,
with or without notice or lapse of time or both, any of the terms,
provisions or conditions of the charter (including without limitation,
the Certificate of Designations) or by-laws of the Company or the
Banks, any contract, indenture, mortgage, deed of trust, loan or
credit agreement, note, lease, franchise, license, Permit or any other
agreement or instrument to which the Company or the Banks is a party
or by which either of them or any of their respective properties may
be bound or any order, decree, judgment, rule or regulation of any
court, arbitrator, government, or governmental agency or
instrumentality, domestic or foreign, having jurisdiction over the
Company or the Bank or any of their respective properties which
conflict, creation, imposition, breach, violation or default would
have either singly or in the aggregate a material adverse effect on
the condition, financial or otherwise, earnings, affairs, business,
prospects or results of operations of the Company and the Banks on a
consolidated basis. No authorization, approval, consent or order of,
or filing, registration or qualification with, any person (including,
without limitation, any court, governmental body or authority) is
required in connection with the transactions contemplated by this
Agreement, the Certificate of Designations, the Registration Statement
and the Prospectus (or such Preliminary Prospectus), except such as
may be required under the 1933 Act, and such as may be required under
state securities laws in connection with the purchase and distribution
of the Shares by the Underwriter. No authorization, approval, consent
or order of or filing, registration or qualification with, any person
(including, without limitation, any court, governmental body or
authority) is required in connection with the transactions
contemplated by this Agreement, the Certificate of Designations, the
Registration Statement and the Prospectus, except such as have been
obtained under the 1933 Act, and such as may be required under state
securities laws or Interpretations or Rules of the National
9
10
Association of Securities Dealers, Inc. ("NASD") in connection with
the purchase and distribution of the Shares by the Underwriter.
(xv) The Company has all requisite corporate power
and authority to enter into this Agreement and this Agreement has been
duly and validly authorized, executed and delivered by the Company and
constitutes the legal, valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, except
as the enforcement thereof may be limited by general principles of
equity and by bankruptcy or other laws relating to or affecting
creditors' rights generally and except as any indemnification or
contribution provisions thereof may be limited under applicable
securities laws.
(xvi) The Company and the Banks have good and
marketable title in fee simple to all real property and good title to
all personal property owned by them and material to their business, in
each case free and clear of all security interests, liens, mortgages,
pledges, encumbrances, restrictions, claims, equities and other
defects except such as are referred to in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary
Prospectus) or such as do not materially affect the value of such
property in the aggregate and do not materially interfere with the use
made or proposed to be made of such property; and all of the leases
under which the Company or the Banks hold real or personal property
are valid, existing and enforceable leases and in full force and
effect with such exceptions as are not material and do not materially
interfere with the use made or proposed to be made of such real or
personal property, and neither the Company nor the Banks is in default
in any material respect of any of the terms or provisions of any
leases.
(xvii) KPMG Peat Marwick LLP, who have certified
certain of the consolidated financial statements of the Company and
the Banks including the notes thereto, included in the Registration
Statement and Prospectus, are independent public accountants with
respect to the Company and the Banks, as required by the 1933 Act and
the 1933 Act Regulations.
(xviii) The consolidated financial statements
including the notes thereto, included in the Registration Statement
and the Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus) with respect to the Company and
the Banks comply in all material respects with the 1933 Act and the
1933 Act Regulations and present fairly the consolidated financial
position of the Company and the Banks as of the dates indicated and
the consolidated results of operations, cash flows and stockholders'
equity of the Company and the Banks for the periods specified
10
11
and have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis. The selected and
summary consolidated financial data concerning the Company and the
Banks included in the Registration Statement and the Prospectus (or
such Preliminary Prospectus) comply in all material respects with the
1933 Act and the 1933 Act Regulations, present fairly the information
set forth therein, and have been compiled on a basis consistent with
that of the consolidated financial statements of the Company and the
Banks in the Registration Statement and the Prospectus (or such
Preliminary Prospectus). The other financial, statistical and
numerical information included in the Registration Statement and the
Prospectus (or such Preliminary Prospectus) comply in all material
respects with the 1933 Act and the 1933 Act Regulations, present
fairly the information shown therein, and to the extent applicable
have been compiled on a basis consistent with the consolidated
financial statements of the Company and the Banks included in the
Registration Statement and the Prospectus (or such Preliminary
Prospectus).
(xix) Since the respective dates as of which
information is given in the Registration Statement and the Prospectus
(or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus), except as otherwise stated therein:
(A) neither the Company nor any of the Banks have
sustained any loss or interference with its business from
fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or
governmental action, order or decree which is material to the
condition (financial or otherwise), earnings, business,
prospects or results of operations of the Company and the
Banks on a consolidated basis;
(B) there has not been any material adverse
change in, or any development which is reasonably likely to
have a material adverse effect on, the condition (financial or
otherwise), earnings, business, prospects or results of
operations of the Company and the Banks on a consolidated
basis, whether or not arising in the ordinary course of
business;
(C) neither the Company nor any of the Banks have
incurred any liabilities or obligations, direct or contingent,
or entered into any material transactions, other than in the
ordinary course of business which is material to the condition
(financial or otherwise), earnings, business, prospects or
results of operations of the Company and the Banks on a
consolidated basis;
11
12
(D) the Company has not declared or paid any
dividend, and neither the Company nor any of the Banks have
become delinquent in the payment of principal or interest on
any outstanding borrowings; and
(E) there has not been any change in the capital
stock (except for the exercise of employee stock options
issued under the Company's Incentive Share Grant Plan and
Employee Stock Option Plan, and disclosed as outstanding),
long-term debt, obligations under capital leases or, other
than in the ordinary course of business, short-term borrowings
of the Company or the Banks.
(xx) Except as set forth in the Registration
Statement and the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus), no charge,
investigation, action, suit or proceeding is pending or, to the
knowledge of the Company, threatened, against or affecting the Company
or the Banks or any of their respective properties before or by any
court or any regulatory, administrative or governmental official,
commission, board, agency or other authority or body, or any
arbitrator, wherein an unfavorable decision, ruling or finding could
have a material adverse effect on the consummation of this Agreement
or the transactions contemplated herein or the condition (financial or
otherwise), earnings, affairs, business, prospects or results of
operations of the Company and the Banks on a consolidated basis or
which is required to be disclosed in the Registration Statement or the
Prospectus (or such Preliminary Prospectus) and is not so disclosed.
(xxi) There are no contracts or other documents
required to be filed as exhibits to the Registration Statement by the
1933 Act or the 1933 Act Regulations which have not been filed as
exhibits to the Registration Statement, or that are required to be
summarized in the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus) that are not so
summarized.
(xxii) The Company has not taken, directly or
indirectly, any action designed to result in or which has constituted
or which might reasonably be expected to cause or result in
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares, and the
Company is not aware of any such action taken or to be taken by any
affiliate of the Company.
(xxiii) The Company and the Banks own, or possess
adequate rights to use, all patents, copyrights, trademarks, service
marks, trade names and other rights necessary to conduct the
businesses now conducted
12
13
by them in all material respects or as described in the Prospectus
(or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) and neither the Company nor the Banks have
received any notice of infringement or conflict with asserted rights
of others with respect to any patents, copyrights, trademarks, service
marks, trade names or other rights which, individually or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would have a material adverse effect on the condition
(financial or otherwise), earnings, affairs, business, prospects or
results of operations of the Company and the Banks on a consolidated
basis, and the Company does not know of any basis for any such
infringement or conflict.
(xxiv) Except as adequately disclosed in the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus), no labor dispute involving the Company or the
Banks exists or, to the knowledge of the Company, is imminent which
might be expected to have a material adverse effect on the condition
(financial or otherwise), earnings, affairs, business, prospects or
results of operations of the Company and the Banks on a consolidated
basis or which is required to be disclosed in the Prospectus (or, if
the Prospectus is not in existence, the most recent Preliminary
Prospectus). Neither the Company nor the Banks have received notice
of any existing or threatened labor dispute by the employees of any of
its principal suppliers, customers or contractors which might be
expected to have a material adverse effect on the condition (financial
or otherwise), earnings, affairs, business, prospects or results of
operations of the Company and the Banks on a consolidated basis.
(xxv) The Company and the Banks have timely and
properly prepared and filed all necessary federal, state, local and
foreign tax returns which are required to be filed and have paid all
taxes shown as due thereon and have paid all other taxes and
assessments to the extent that the same shall have become due, except
such as are being contested in good faith or where the failure to so
timely and properly prepare and file would not have a material adverse
effect on the condition (financial or otherwise), earnings, affairs,
business, prospects or results of operations of the Company and the
Banks on a consolidated basis. The Company has no knowledge of any
tax deficiency which has been or might be assessed against the Company
or the Banks which, if the subject of an unfavorable decision, ruling
or finding, would have a material adverse effect on the condition
(financial or otherwise), earnings, affairs, business, prospects or
results of operations of the Company and the Banks on a consolidated
basis.
(xxvi) Each of the material contracts, agreements
and instruments described or referred to in the Registration Statement
or the Prospectus (or, if the Prospectus is not in existence, the most
recent
13
14
Preliminary Prospectus) and each contract, agreement and instrument
filed as an exhibit to the Registration Statement is in full force and
effect and is the legal, valid and binding agreement of the Company or
the Banks, enforceable in accordance with its terms, except as the
enforcement thereof may be limited by general principles of equity and
by bankruptcy or other laws relating to or affecting creditors' rights
generally. Except as disclosed in the Prospectus (or such Preliminary
Prospectus), to the knowledge of the Company, no other party to any
such agreement is (with or without notice or lapse of time or both) in
breach or default in any material respect thereunder.
(xxvii) No relationship, direct or indirect, exists
between or among the Company or the Banks, on the one hand, and the
directors, officers, stockholders, customers or suppliers of the
Company or the Banks, on the other hand, which is required to be
described in the Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary
Prospectus) which is not adequately described therein.
(xxviii) No person has the right to request or require
the Company or the Banks to register any securities for offering and
sale under the 1933 Act by reason of the filing of the Registration
Statement with the Commission or the issuance and sale of the Shares
except as adequately disclosed in the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus).
(xxix) The Depositary Shares have been approved for
quotation on the Nasdaq National Market subject to official notice of
issuance.
(xxx) Except as described in the Prospectus (or, if
the Prospectus is not in existence, the most recent Preliminary
Prospectus), there are no contractual encumbrances or restrictions or
material legal restrictions, on the ability of the Banks (A) to pay
dividends or make any other distributions on its capital stock or to
pay any indebtedness owed to the Company, (B) to make any loans or
advances to, or investments in, the Company or (C) to transfer any of
its property or assets to the Company.
(xxxi) The Company is not an "investment company"
within the meaning of the Investment Company Act of 1940, as amended.
(xxxii) The Company has not distributed and will not
distribute prior to the Closing Date any prospectus in connection with
the Offering, other than a Preliminary Prospectus, the Prospectus, the
Registration Statement and the other materials permitted by the 1933
Act and the 1933
14
15
Act Regulations and reviewed by the Underwriter.
3. OFFERING BY THE UNDERWRITER. After the Registration
Statement becomes effective or, if the Registration Statement is already
effective, after this Agreement becomes effective, the Underwriter proposes to
offer the Firm Shares for sale to the public upon the terms and conditions set
forth in the Prospectus. The Underwriter may from time to time thereafter
reduce the public offering price and change the other selling terms, provided
the proceeds to the Company shall not be reduced as a result of such reduction
or change.
The Underwriter may reserve and sell such of the Shares
purchased by the Underwriter as the Underwriter may elect to dealers chosen by
it (the "Selected Dealers") at the public offering price set forth in the
Prospectus less the applicable Selected Dealers' concessions set forth therein,
for re-offering by Selected Dealers to the public at the public offering price.
The Underwriter may allow, and Selected Dealers may re-allow, a concession set
forth in the Prospectus to certain other brokers and dealers.
4. CERTAIN COVENANTS OF THE COMPANY. The Company
covenants with the Underwriter as follows:
(a) The Company shall use its best efforts to cause the
Registration Statement and any amendments thereto, if not effective at the time
of execution of this Agreement, to become effective as promptly as possible.
If the Registration Statement has become or becomes effective pursuant to Rule
430A and information has been omitted therefrom in reliance on Rule 430A, then,
the Company will prepare and file in accordance with Rule 430A and Rule 424(b)
copies of the Prospectus or, if required by Rule 430A, a post-effective
amendment to the Registration Statement (including the Prospectus) containing
all information so omitted and will provide evidence satisfactory to the
Underwriter of such timely filing.
(b) The Company shall notify you immediately, and confirm
such notice in writing:
(i) when the Registration Statement, or any
post-effective amendment to the Registration Statement, has become
effective, or when the Prospectus or any supplement to the Prospectus
or any amended Prospectus has been filed;
(ii) of the receipt of any comments or requests
from the Commission;
(iii) of any request of the Commission to amend or
15
16
supplement the Registration Statement, any Preliminary Prospectus or
the Prospectus or for additional information; and
(iv) of the issuance by the Commission or any
state or other regulatory body of any stop order or other order
suspending the effectiveness of the Registration Statement, preventing
or suspending the use of any Preliminary Prospectus or the Prospectus,
or suspending the qualification of any of the Shares for offering or
sale in any jurisdiction or the institution or threat of institution
of any proceedings for any of such purposes. The Company shall use
its best efforts to prevent the issuance of any such stop order or of
any other such order and if any such order is issued, to cause such
order to be withdrawn or lifted as soon as possible.
(c) The Company shall furnish to you, from time to time
without charge, as soon as available, as many copies as you may reasonably
request of (i) the registration statement as originally filed and of all
amendments thereto, in executed form, including exhibits, whether filed before
or after the Registration Statement becomes effective, (ii) all exhibits and
documents incorporated therein or filed therewith, (iii) all consents and
certificates of experts in executed form, (iv) each Preliminary Prospectus and
all amendments and supplements thereto, and (v) the Prospectus, and all
amendments and supplements thereto.
(d) During the time when a prospectus is required to be
delivered under the 1933 Act, the Company shall comply to the best of its
ability with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the
1934 Act Regulations so as to permit the completion of the distribution of the
Shares as contemplated herein and in the Prospectus. The Company shall not
file any amendment to the registration statement as originally filed or to the
Registration Statement and shall not file any amendment thereto or make any
amendment or supplement to any Preliminary Prospectus or to the Prospectus of
which you shall not previously have been advised in writing and provided a copy
a reasonable time prior to the proposed filings thereof or to which you shall
reasonably object. If it is necessary, in your reasonable opinion or in the
reasonable opinion of your counsel to amend or supplement the Registration
Statement or the Prospectus in connection with the distribution of the Shares,
the Company shall forthwith amend or supplement the Registration Statement or
the Prospectus, as the case may be, by preparing and filing with the
Commission, and furnishing to you, such number of copies as you may reasonably
request of an amendment or amendments of, or a supplement or supplements to,
the Registration Statement or the Prospectus, as the case may be (in form and
substance reasonably satisfactory to you and your counsel. If any event shall
occur as a result of which it is necessary to amend or supplement the
Prospectus to correct an untrue statement of a material fact or to include a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, or if for any reason
it
16
17
is necessary at any time to amend or supplement the Prospectus to comply with
the 1933 Act and the 1933 Act Regulations, the Company shall, subject to the
second sentence of this subsection (d), forthwith amend or supplement the
Prospectus by preparing and filing with the Commission, and furnishing to you,
such number of copies as you may reasonably request of an amendment or
amendments of, or a supplement or supplements to, the Prospectus (in form and
substance satisfactory to you and your counsel so that, as so amended or
supplemented, the Prospectus shall not contain an untrue statement of a
material fact or omit to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
(e) The Company shall cooperate with you and your counsel
in order to qualify the Shares for offering and sale under the securities or
blue sky laws of such jurisdictions as you may reasonably request and shall
continue such qualifications in effect so long as may be advisable for
distribution of the Shares; provided, however, that the Company shall not be
required to qualify to do business as a foreign corporation or file a general
consent to service of process in any jurisdiction in connection with the
foregoing. The Company shall file such statements and reports as may be
required by the laws of each jurisdiction in which the Shares have been
qualified as above. The Company will notify you immediately of, and confirm in
writing, the suspension of qualification of the Shares or threat thereof in any
jurisdiction.
(f) The Company shall make generally available to its
security holders in the manner contemplated by Rule 158 of the 1933 Act
Regulations and furnish to you as soon as practicable, but in any event not
later than 16 months after the Effective Date, a consolidated earnings
statement of the Company conforming with the requirements of Section 11(a) of
the 1933 Act and Rule 158.
(g) The Company shall use the net proceeds from the sale
of the Shares to be sold by the Company hereunder in the manner specified in
the Prospectus under the caption "Use of Proceeds."
(h) For five years from the Effective Date, the Company
shall furnish to the Underwriter copies of all reports and communications
(financial or otherwise) furnished by the Company to the holders of the
Depositary Shares as a class, copies of all reports and financial statements
filed with or furnished to the Commission (other than portions for which
confidential treatment has been obtained from the Commission) or with any
national securities exchange or the Nasdaq National Market and such other
documents, reports and information concerning the business and financial
condition of the Company as the Underwriter may reasonably request, other than
such documents, reports and information for which the Company has the legal
obligation not to reveal to the Underwriter.
17
18
(i) For a period of 180 days from the date hereof, the
Company shall not, directly or indirectly, offer for sale, sell or agree to
sell or otherwise dispose of any shares of the common stock securities
convertible into, exercisable or exchangeable for, or that are the economic or
voting equivalent of, any such shares of common stock, or announce the offering
of, or register with the Commission, any shares of common stock or such other
securities, without your prior written consent.
(j) The Company shall use its best efforts to cause the
Depositary Shares to become quoted on the Nasdaq National Market, or in lieu
thereof a national securities exchange, and to remain so quoted for at least
five years from the Effective Date or for such shorter period as may be
specified in a written consent of the Underwriter, provided this shall not
prevent the Company from redeeming the Depositary Shares pursuant to the terms
of the Certificate of Designations.
(k) Subsequent to the date of this Agreement and through
the date which is the later of (i) the day following the date on which the
Underwriter's option to purchase the Option Shares shall expire or (ii) the day
following the Option Closing Date with respect to any Option Shares that the
Underwriter shall elect to purchase, except as described in or contemplated by
the Prospectus, neither the Company nor the Banks shall take any action (or
refrain from taking any action) which will result in the Company or the Banks
incurring any material liability or obligation, direct or contingent, or enter
into any material transaction, except in the ordinary course of business, and
there will not be any material change in the financial position, capital stock,
or any material increase in long-term debt, obligations under capital leases or
short-term borrowings of the Company and the Banks on a consolidated basis.
(l) The Company shall not, for a period of 180 days after
the date hereof, without the prior written consent of the Underwriter,
purchase, redeem or call for redemption, or prepay or give notice of prepayment
(or announce any redemption or call for redemption, or any repayment or notice
of prepayment) of any of the Company's securities, provided that the foregoing
shall not prevent an employee from delivering the Company's securities in
payment of the exercise price of options issued under the Company's Incentive
Share Grant Plan and Employee Stock Option Plan.
(m) The Company shall not take, directly or indirectly,
any action designed to result in or which has constituted or which might
reasonably be expected to cause or result in stabilization or manipulation of
the price of any security of the Company to facilitate the sale or resale of
the Shares and the Company is not aware of any such action taken or to be taken
by any affiliate of the Company.
18
19
(n) Prior to the Closing Date (and, if applicable, the
Option Closing Date), the Company will not issue any press release or other
communication directly or indirectly or hold any press conference with respect
to the Company, the Banks or the offering of the Shares (the "Offering")
without your prior written consent which will not be unreasonably withheld.
5. PAYMENT OF EXPENSES. Whether or not this Agreement
is terminated or the sale of the Shares to the Underwriter is consummated, the
Company covenants and agrees that it will pay or cause to be paid (directly or
by reimbursement) all costs and expenses incident to the performance of the
obligations of the Company under this Agreement, including:
(a) the preparation, printing, filing, delivery and
shipping of the initial registration statement, the Preliminary Prospectus or
Prospectuses, the Registration Statement and the Prospectus and any amendments
or supplements thereto, and the printing, delivery and shipping of this
Agreement and any other underwriting documents (including, without limitation,
selected dealers agreements), the certificates for the Shares and the
Preliminary and Final Blue Sky Memoranda and any legal investment surveys and
any supplements thereto;
(b) all fees, expenses and disbursements of the Company's
counsel and accountants;
(c) all fees and expenses incurred in connection with the
qualification of the Shares under the securities or blue sky laws of such
jurisdictions as you may request, including all filing fees and fees and
disbursements of counsel for the Underwriter in connection therewith,
including, without limitation, in connection with the preparation of the
Preliminary and Final Blue Sky Memoranda and any legal investment surveys and
any supplements thereto;
(d) all fees and expenses incurred in connection with
filings made with the NASD;
(e) any applicable fees and other expenses incurred in
connection with the listing of the Shares on the Nasdaq National Market;
(f) the cost of furnishing to you copies of the initial
registration statements, any Preliminary Prospectus, the Registration Statement
and the Prospectus and all amendments or supplements thereto;
(g) the costs and charges of any transfer agent or
registrar and the fees and disbursements of counsel for any transfer agent or
registrar;
19
20
(h) all costs and expenses (including stock transfer
taxes) incurred in connection with the printing, issuance and delivery of the
Shares to the Underwriter; and
(i) all other costs and expenses incident to the
performance of the obligations of the Company hereunder and under the
Certificate of Designations that are not otherwise specifically provided for in
this Section 5.
If the sale of Shares contemplated by this Agreement is not
completed for any reason whatsoever, including without limitation if this
Agreement is terminated by the Company or by you for any reason whatsoever,
whether or not such termination is allowable hereunder, the Company will pay
you your accountable out-of-pocket expenses in connection herewith or in
contemplation of the performance of your obligations hereunder, including
without limitation travel expenses, reasonable fees, expenses and disbursements
of counsel or other out-of-pocket expenses incurred by you in connection with
any discussion of the Offering or the contents of the Registration Statement,
any investigation of the Company and the Banks, or any preparation for the
marketing, purchase, sale or delivery of the Shares, in each case following
presentation of reasonably detailed invoices therefor.
If the sale of Shares contemplated by this Agreement is
completed, the Company shall not be responsible for payment of fees or
disbursements of counsel for the Underwriter other than in accordance with
paragraph (c) above, or for the reimbursement of any expenses of the
Underwriter.
6. CONDITIONS OF THE UNDERWRITER' OBLIGATIONS. The
obligations of the Underwriter to purchase and pay for the Firm Shares and,
following exercise of the option granted by the Company in Section 1 of this
Agreement, the Option Shares, are subject, in your sole discretion, to the
accuracy of and compliance with the representations and warranties and
agreements of the Company herein as of the date hereof and as of the Closing
Date (or in the case of the Option Shares, if any, as of the Option Closing
Date), to the accuracy of the written statements of the Company made pursuant
to the provisions hereof, to the performance by the Company of its covenants
and obligations hereunder and to the following additional conditions:
(a) If the Registration Statement or any amendment
thereto filed prior to the Closing Date has not been declared effective prior
to the time of execution hereof, the Registration Statement shall become
effective not later than 10:00 a.m., St. Louis time, on the first business day
following the time of execution of this Agreement, or at such later time and
date as you may agree to in writing. If required, the Prospectus and any
amendment or supplement thereto shall have been timely filed in accordance with
Rule 424(b) and Rule 430A under
20
21
the 1933 Act and Section 4(a) hereof. No stop order suspending the
effectiveness of the Registration Statement or any amendment or supplement
thereto shall have been issued under the 1933 Act or any applicable state
securities laws and no proceedings for that purpose shall have been instituted
or shall be pending, or, to the knowledge of the Company or the Underwriter,
shall be contemplated by the Commission or any state authority. Any request on
the part of the Commission or any state authority for additional information
(to be included in the Registration Statement or Prospectus or otherwise) shall
have been disclosed to you and complied with to your satisfaction and to the
satisfaction of your counsel.
(b) The Underwriter shall not have advised the Company at
or before the Closing Date (and, if applicable, the Option Closing Date) that
the Registration Statement or any post-effective amendment thereto, or the
Prospectus or any amendment or supplement thereto, contains an untrue statement
of a fact which, in your opinion, is material or omits to state a fact which,
in your opinion, is material and is required to be stated therein or is
necessary to make statements therein (in the case of the Prospectus or any
amendment or supplement thereto, in light of the circumstances under which they
were made) not misleading.
(c) All corporate proceedings and other legal matters
incident to the authorization, form and validity of this Agreement, the
Certificate of Designations, the Depositary Shares, the Preferred Stock and the
Shares, and the authorization and form of the Registration Statement and
Prospectus, other than financial statements and other financial data, and all
other legal matters relating to this Agreement and the transactions
contemplated hereby or by the Certificate of Designations shall be satisfactory
in all respects to your counsel, and the Company and the Banks shall have
furnished to such counsel all documents and information relating thereto that
they may reasonably request to enable them to pass upon such matters.
(d) Xxxxxx, Xxxxxxxxx Xxxxxxx & Xxxxxxx LLP, counsel for
the Company, shall have furnished to you their signed opinion, dated the
Closing Date or the Option Closing Date, as the case may be, in form and
substance satisfactory to your counsel, to the effect that:
(i) The Company has been duly incorporated and is
validly existing and in good standing under the laws of the State of
Michigan, and is duly registered as a bank holding company under the
BHC Act. Each of the Banks is a state banking corporation duly
incorporated, validly existing and in good standing under the laws of
Michigan. Each of the Banks is a member of the Federal Reserve
System, and to the knowledge of such counsel no proceedings for the
termination or revocation of such membership are pending or
threatened. The deposit accounts of the Banks are insured by the FDIC
up to the maximum amount provided by law, except
21
22
to the extent the Prospectus discloses such deposit accounts are
insured by SAIF and to such extent the deposit accounts are so insured
up to the maximum amount provided by law; and to the knowledge of such
counsel no proceedings for the termination or revocation of any such
insurance or such membership are pending or threatened. Each of the
Company and the Banks has full corporate power and authority to own or
lease its properties and to conduct its business as such business is
described in the Prospectus and is currently conducted in all material
respects. All outstanding shares of capital stock of the Banks have
been duly authorized and validly issued and are fully paid and
nonassessable except to the extent such shares may be deemed
assessable under 12 U.S.C. Section 55 or 12 U.S.C. Section 1831o and,
to the best of such counsel's knowledge, except as disclosed in the
Prospectus, there are no outstanding rights, options or warrants to
purchase any such shares or securities convertible into or
exchangeable for any such shares.
(ii) The capital stock of the Company conforms to
the description thereof contained in the Prospectus in all material
respects. The capital stock of the Company authorized to be issued as
of September 30, 1996 is as set forth under the caption
"Capitalization" in the Prospectus, has been duly authorized and
validly issued, is fully paid and nonassessable. The form of
certificates to evidence the Depositary Shares and Preferred Stock
have been approved by the Board of Directors and is in due and proper
form and complies with all applicable requirements. To the best of
such counsel's knowledge there are no outstanding rights, options or
warrants to purchase, no other outstanding securities convertible into
or exchangeable for, and no commitments, plans or arrangements to
issue, any shares of capital stock of the Company, except as described
in the Prospectus.
(iii) The Company has all requisite corporate power
and authority to issue, sell and deliver the Shares in accordance with
and upon the terms and conditions set forth in this Agreement, the
Certificate of Designations, and in the Registration Statement and the
Prospectus. All corporate action required to be taken by the Company
for the authorization, issuance, sale and delivery of the Shares in
accordance with such terms and conditions has been validly and
sufficiently taken. All of the Shares have been duly and validly
authorized and, when delivered in accordance with this Agreement will
be duly and validly issued, fully paid and nonassessable, and will
conform to the description thereof in the Registration Statement, the
Prospectus and the Certificate of Designations. The Depositary Shares
have been approved for quotation on the Nasdaq National Market subject
to official notice of issuance. There are no preemptive or other
rights to subscribe for or to purchase, and other than as disclosed in
the Prospectus
22
23
no restrictions upon the voting or transfer of, any shares of capital
stock of the Company or the Banks pursuant to the corporate charter
(including without limitation, the Certificate of Designations),
by-laws or other governing documents of the Company or the Banks, or,
to the best of such counsel's knowledge any agreement or other
instrument to which the Company or the Banks is a party or by which
the Company or the Banks may be bound.
(iv) The Company has all requisite corporate power
to enter into and perform its obligations under this Agreement and the
Certificate of Designations, and this Agreement and the Certificate of
Designations have been duly and validly authorized, executed and
delivered by the Company and constitutes the legal, valid and binding
obligation of the Company enforceable in accordance with their terms,
except as the enforcement hereof or thereof may be limited by general
principles of equity and by bankruptcy or other laws relating to or
affecting creditors' rights generally, and except as the
indemnification and contribution provisions hereof may be limited
under applicable laws and certain remedies may not be available in the
case of a non-material breach.
(v) To the best knowledge of such counsel's
knowledge neither the Company nor any of the Banks is in breach or
violation of, or default under, with or without notice or lapse of
time or both, its corporate charter (including without limitation, the
Certificate of Designations) or by-laws. The execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated by this Agreement, and the Certificate of Designations do
not and will not conflict with, result in the creation or imposition
of any material lien, claim, charge, encumbrance or restriction upon
any property or assets of the Company or the Banks or the Depositary
Shares or Shares pursuant to, or constitute a material breach or
violation of, or constitute a material default under, with or without
notice or lapse of time or both, any of the terms, provisions or
conditions of the charter (including without limitation, the
Certificate of Designations) or by-laws of the Company or the Banks,
or to the best of such counsel's knowledge, any material contract,
indenture, mortgage, deed of trust, loan or credit agreement, note,
lease, franchise, license or any other agreement or instrument to
which the Company the Banks is a party or by which either of them or
any of their respective properties may be bound or any order, decree,
judgment, franchise, license, Permit, rule or regulation of any court,
arbitrator, government, or governmental agency or instrumentality,
domestic or foreign, known to such counsel having jurisdiction over
the Company or the Banks or any of their respective properties which,
in each case, is material to the Company and its subsidiaries on a
consolidated basis. No authorization, approval, consent or order of,
or filing, registration or
23
24
qualification with, any person (including, without limitation, any
court, governmental body or authority) is required under Michigan law
in connection with the transactions contemplated by this Agreement
except as may be required under Oklahoma securities laws in connection
with the purchase and distribution of the Shares by the Underwriters.
(vi) To the best of such counsel's knowledge
holders of securities of the Company either do not have any right
that, if exercised, would require the Company to cause such securities
to be included in the Registration Statement or have waived such
right. To the best of such counsel's knowledge neither the Company
nor any of the Banks is a party to any agreement or other instrument
which grants rights for or relating to the registration of any
securities of the Company.
(vii) Except as set forth in the Registration
Statement and the Prospectus, to the best of such counsel's knowledge
no action, suit or proceeding at law or in equity is pending or
threatened in writing to which the Company or the Banks is or may be a
party, and no action, suit or proceeding is pending or threatened in
writing against or affecting the Company or the Banks or any of their
properties before or by any court or governmental official,
commission, board or other administrative agency, authority or body,
or any arbitrator, wherein an unfavorable decision, ruling or finding
could have a material adverse effect on the consummation of this
Agreement or the issuance and sale of the Shares as contemplated
herein or the condition (financial or otherwise), earnings, affairs,
business, or results of operations of the Company and the Banks on a
consolidated basis or which is required to be disclosed in the
Registration Statement or the Prospectus and is not so disclosed.
(viii) No authorization, approval, consent or order
of or filing, registration or qualification with, any person
(including, without limitation, any court, governmental body or
authority) is required in connection with the transactions
contemplated by this Agreement, the Certificate of Designations, the
Registration Statement and the Prospectus, except such as have been
obtained under the 1933 Act, and such as may be required under state
securities laws or Interpretations or Rules of the NASD in connection
with the purchase and distribution of the Shares by the Underwriter.
(ix) The Registration Statement and the Prospectus
and any amendments or supplements thereto (other than the financial
statements or other financial data included therein or omitted
therefrom and Underwriter's Information, as to which such counsel need
express no opinion) comply as to form in all material respects with
the requirements of the 1933 Act and
24
25
the 1933 Act Regulations as of their respective dates of
effectiveness.
(x) To the best of such counsel's knowledge,
there are no contracts, agreements, leases or other documents of a
character required to be disclosed in the Registration Statement or
Prospectus or to be filed as exhibits to the Registration Statement
that are not so disclosed or filed.
(xi) The statements under the captions
"Description of Capital Stock" and "Supervision and Regulation" in the
Prospectus and in Item 14 of Part II of the Registration Statement,
insofar as such statements constitute a summary of legal and
regulatory matters, documents or proceedings referred to therein are
accurate in all material respects and fairly present the information
called for with respect to such legal matters, documents and
proceedings.
(xii) Such counsel has been advised by the staff of
the Commission that the Registration Statement has become effective
under the 1933 Act; any required filing of the Prospectus pursuant to
Rule 424(b) has been made within the time period required by Rule
424(b); to the best of such counsel's knowledge no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceedings for a stop order are pending or threatened
by the Commission.
(xiii) Except as set forth in the Prospectus, to the
best of such counsel's knowledge there are no contractual encumbrances
or restrictions, or material legal restrictions on the ability of the
Banks (A) to pay dividends or make any other distributions on its
capital stock or to pay indebtedness owed to the Company, (B) to make
any loans or advances to, or investments in, the Company or (C) to
transfer any of its property or assets to the Company.
(xiv) To the best of such counsel's knowledge (A)
the business and operations of the Company and the Banks comply in all
material respects with all statutes, ordinances, laws, rules and
regulations applicable thereto and which are material to the Company
and the Banks on a consolidated basis, except in those instances where
non-compliance would not materially impair the ability of the Company
and the Banks to conduct their business; and (B) the Company and the
Banks possess and are operating in all material respects in compliance
with the terms, provisions and conditions of all permits, consents,
licenses, franchises and governmental and regulatory authorizations
("Permits") and required to conduct their businesses as described in
the Prospectus and which are material to the Company and the Banks on
a consolidated basis, except in those instances where the loss thereof
or non-compliance therewith would
25
26
not have a material adverse effect on the condition (financial or
otherwise), earnings, affairs, business, prospects or results of
operations of the Company and the Banks on a consolidated basis; to
the best of such counsel's knowledge all such Permits are valid and in
full force and effect, and to the best of such counsel's knowledge no
action, suit or proceeding is pending or threatened which may lead to
the revocation, termination, suspension or non-renewal of any such
Permit, except in those instances where the loss thereof or
non-compliance therewith would not materially impair the ability of
the Company or the Banks to conduct their businesses.
In giving the above opinion, such counsel may state that,
insofar as such opinion involves factual matters, they have relied upon
certificates of officers of the Company including, without limitation,
certificates as to the identity of any and all material contracts, indentures,
mortgages, deeds of trust, loans or credit agreements, notes, leases,
franchises, licenses or other agreements or instruments, and all material
permits, easements, consents, licenses, franchises and government regulatory
authorizations, for purposes of paragraphs (v), (x) and (xiv) hereof and
certificates of public officials.
Such counsel shall also confirm that, in connection with the
preparation of the Registration Statement and Prospectus, such counsel has
participated in conferences with officers and representatives of the Company
and with its independent public accountants and with you and your counsel, at
which conferences such counsel made inquiries of such officers, representatives
and accountants and discussed in detail the contents of the Registration
Statement and Prospectus and such counsel has no reason to believe (A) that the
Registration Statement or any amendment thereto (except for the financial
statements included therein or omitted therefrom Underwriter's Information, as
to which such counsel need express no opinion), at the time the Registration
Statement or any such amendment 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 the light of
the circumstances in which they were made, not misleading or (B) that the
Prospectus or any amendment or supplement thereto (except for the financial
statements included therein or omitted therefrom Underwriter's Information, as
to which such counsel need express no opinion), at the time the Registration
Statement became effective (or, if the term "Prospectus" refers to the
prospectus first filed pursuant to Rule 424(b) of the 1933 Act Regulations, at
the time the Prospectus was issued), at the time any such amended or
supplemented Prospectus was issued, at the Closing Date and, if applicable, the
Option Closing Date, contained or contains any untrue statement of a material
fact or omitted or omits to state any material fact required to be stated
therein or necessary to make the statements therein, not misleading or (C) that
there is any amendment to the Registration Statement required to be filed that
has not already been filed.
26
27
(f) Xxxxx Xxxx LLP, counsel for the Underwriter, shall have
furnished you their signed opinion, dated the Closing Date or the Option
Closing Date, as the case may be, with respect to the incorporation of the
Company, the validity of the Shares, the Registration Statement, the Prospectus
and such other related matters as you may reasonably request and there shall
have been furnished to such counsel such documents and other information as
they may request to enable them to pass on such matters. In giving such
opinion, Xxxxx Xxxx LLP may rely as to matters of fact upon statements and
certifications of officers of the Company and of other appropriate persons and
may rely as to matters of law, other than law of the United States and the
State of Missouri, and upon the opinion of Xxxxxx, Xxxxxxxxx Xxxxxxx & Xxxxxxx
LLP described herein.
(g) On the date of this Agreement and on the Closing Date
(and, if applicable, any Option Closing Date), the Underwriter shall have
received from KPMG Peat Marwick LLP a letter, dated the date of this Agreement
and the Closing Date (and, if applicable, the Option Closing Date),
respectively, in form and substance satisfactory to the Underwriter, confirming
that they are independent public accountants with respect to the Company and
the Banks, within the meaning of the 1933 Act and the 1933 Act Regulations, and
stating in effect that:
(i) In their opinion, the consolidated financial
statements of the Company and the Banks audited by them and included
in the Registration Statement comply as to form in all material
respects with the applicable accounting requirements of the 1933 Act
and the 1933 Act Regulations.
(ii) On the basis of the procedures specified by
the American Institute of Certified Public Accountants as described in
SAS No. 71, "Interim Financial Information", inquiries of officials of
the Company and the Banks responsible for financial and accounting
matters, and such other inquiries and procedures as may be specified
in such letter, which procedures do not constitute an audit in
accordance with U.S. generally accepted auditing standards, nothing
came to their attention that caused them to believe that, if
applicable, the unaudited interim consolidated financial statements of
the Company and the Banks included in the Registration Statement do
not comply as to form in all material respects with the applicable
accounting requirements of the 1933 Act and 1933 Act Regulations or
are not in conformity with U.S. generally accepted accounting
principles applied on a basis substantially consistent with the basis
for the audited consolidated financial statements of the Company and
the Banks included in the Registration Statement.
(iii) On the basis of limited procedures, not
constituting an
27
28
audit in accordance with U.S. generally accepted auditing standards,
consisting of a reading of the unaudited interim financial statements
and other information referred to below, a reading of the latest
available unaudited condensed consolidated financial statements of the
Company and the Banks, inspection of the minute books of the Company
and the Banks since the date of the latest audited financial
statements of the Company and the Banks included in the Registration
Statement, inquiries of officials of the Company and the Banks
responsible for financial and accounting matters and such other
inquiries and procedures as may be specified in such letter, nothing
came to their attention that caused them to believe that:
(A) as of a specified date not more than five
days prior to the date of such letter, there have been any
changes in the consolidated capital stock, allowance for loan
losses, or net loans receivable of the Company and the Banks,
any increase in the consolidated long-term debt, short-term
borrowings, obligations under capital leases or real estate
owned by the Company and the Banks, any decreases in
consolidated total assets or shareholders equity of the
Company and the Banks, or any changes, decreases or increases
in other items specified by the Underwriter, in each case as
compared with amounts shown in the latest unaudited interim
consolidated statement of financial condition of the Company
and the Banks included in the Registration Statement except in
each case for changes, increases or decreases which the
Registration Statement specifically discloses, have occurred
or may occur or which are described in such letter; and
(B) for the period from the date of the latest
unaudited interim consolidated financial statements included
in the Registration Statement to the specified date referred
to in Clause (iii)(A), there were any decreases in the
consolidated interest income, net interest income, other
operating income or net income of the Company and the Banks or
in the per share amount of net income of the Company and the
Banks any increase in consolidated other operating expense of
the Company and the Banks, or any changes, decreases or
increases in any other items specified by the Underwriter, in
each case as compared with the comparable period of the
preceding year and with any other period of corresponding
length specified by the Underwriter, except in each case for
increases or decreases which the Registration Statement
discloses have occurred or may occur, or which are described
in such letter.
(iv) In addition to the audit referred to in their
report included in the Registration Statement and the limited
procedures, inspection of minute books, inquiries and other procedures
referred to in paragraphs (ii)
28
29
and (iii) above, they have carried out certain specified procedures,
not constituting an audit in accordance with U.S. generally accepted
auditing standards, with respect to certain amounts, percentages and
financial information specified by the Underwriter which are derived
from the general accounting records and consolidated financial
statements of the Company and the Banks which appear in the
Registration Statement specified by the Underwriter in the
Registration Statement, and have compared such amounts, percentages
and financial information with the accounting records and the material
derived from such records and consolidated financial statements of the
Company and the Banks have found them to be in agreement.
In the event that the letters to be delivered referred to
above set forth any such changes, decreases or increases as specified in
Clauses (iii)(A) or (iii)(B) above, or any exceptions from such agreement
specified in Clause (iv) above, it shall be a further condition to the
obligations of the Underwriter that the Underwriter shall have determined,
after discussions with officers of the Company responsible for financial and
accounting matters, that such changes, decreases, increases or exceptions as
are set forth in such letters do not (x) reflect a material adverse change in
the items specified in Clause (iii)(A) above as compared with the amounts shown
in the latest unaudited consolidated statement of financial condition of the
Company and the Banks included in the Registration Statement, (y) reflect a
material adverse change in the items specified in Clause (iii)(B) above as
compared with the corresponding periods of the prior year or other period
specified by the Underwriter, or (z) reflect a material change in items
specified in Clause (iv) above from the amounts shown in the Preliminary
Prospectus distributed by the Underwriter in connection with the offering
contemplated hereby or from the amounts shown in the Prospectus.
(h) At the Closing Date and, if applicable, the Option
Closing Date, you shall have received certificates of the chief executive
officer and the chief financial and accounting officer of the Company, which
certificates shall be deemed to be made on behalf of the Company dated as of
the Closing Date and, if applicable, the Option Closing Date, evidencing
satisfaction of the conditions of Section 6(a) and stating that (i) the
representations and warranties of the Company set forth in Section 2(a) hereof
are accurate as of the Closing Date and, if applicable, the Option Closing
Date, and that the Company has complied with all agreements and satisfied all
conditions on their part to be performed or satisfied at or prior to such
Closing Date; (ii) since 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 otherwise), earnings,
affairs, business, prospects or results of operations of the Company and the
Banks on a consolidated basis; (iii) since such dates there has not been any
material transaction entered into by the Company or the Banks other than
29
30
transactions in the ordinary course of business; and (iv) they have carefully
examined the Registration Statement and the Prospectus as amended or
supplemented and nothing has come to their attention that would lead them to
believe that either the Registration Statement or the Prospectus, or any
amendment or supplement thereto as of their respective effective or issue
dates, contained, and the Prospectus as amended or supplemented at such Closing
Date (and, if applicable, the Option Closing Date), contains any untrue
statement of a material fact, or omits to state a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; and (v)
covering such other matters as you may reasonably request. The officer's
certificate of the Company shall further state that no stop order affecting the
Registration Statement is in effect or, to their knowledge, threatened.
(i) The NASD, upon review of the terms of the public
offering of the Shares, shall not have objected to the Underwriter's
participation in such offering.
(j) Prior to the Closing Date and, if applicable, the
Option Closing Date, the Company shall have furnished to you and your counsel
all such other documents, certificates and opinions as they have reasonably
requested.
All opinions, certificates, letters and other documents shall
be in compliance with the provisions hereof only if they are reasonably
satisfactory in form and substance to you. The Company shall furnish you with
conformed copies of such opinions, certificates, letters and other documents as
you shall reasonably request.
If any of the conditions referred to in this Section 6 shall
not have been fulfilled when and as required by this Agreement, this Agreement
and all of your obligations hereunder may be terminated by you on notice to the
Company at, or at any time before, the Closing Date or the Option Closing Date,
as applicable. Any such termination shall be without liability of the
Underwriter to the Company.
7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless the
Underwriter, each of its directors, officers and agents, and each person, if
any, who controls the Underwriter within the meaning of the 1933 Act, against
any and all losses, claims, damages, liabilities and expenses (including
reasonable costs of investigation and reasonable attorney fees and expenses),
joint or several, arising out of or based (i) upon any untrue statement or
alleged untrue statement of a material fact made by the Company contained in
Section 2(a) of this Agreement (or any certificate delivered by the Company
pursuant hereto Section 6(i) hereto) or
30
31
the registration statement as originally filed or the Registration Statement,
any Preliminary Prospectus or the Prospectus, or in any amendment or supplement
thereto, (ii) upon any blue sky application or other document executed by the
Company specifically for that purpose or based upon written information
furnished by the Company filed in any state or other jurisdiction in order to
qualify any of the Shares under the securities laws thereof (any such
application, document or information being hereinafter referred to as a "Blue
Sky Application"), (iii) any omission or alleged omission to state a material
fact in the registration statement as originally filed or the Registration
Statement, any Preliminary Prospectus or the Prospectus, or in any amendment or
supplement thereto, or in any Blue Sky Application) required to be stated
therein or necessary to make the statements therein not misleading, and against
any and all losses, claims, damages, liabilities and expenses (including
reasonable costs of investigation and attorney fees), joint or several, arising
out of or based upon any untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus or the Prospectus, or in
any amendment of supplement thereto, or arising out of or 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 the light of the
circumstances under which they were made, not misleading or (iv) the
enforcement of this indemnification provision or the contribution provisions of
Section 7(e); and shall reimburse each such indemnified party for any
reasonable legal or other expenses as incurred, but in no event less frequently
than 30 days after each invoice is submitted, incurred by them in connection
with investigating or defending against or appearing as a third-party witness
in connection with any such loss, claim, damage, liability or action,
notwithstanding the possibility that payments for such expenses might later be
held to be improper, in which case such payments shall be promptly refunded;
provided, however, that the Company shall not be liable in any such case to the
extent, but only to the extent, that any such losses, claims, damages,
liabilities and expenses arise out of or are based upon any untrue statement or
omission or allegation thereof that has been made therein or omitted therefrom
in reliance upon and in conformity with information furnished in writing to the
Company through you by expressly for use therein beneath the heading
"Underwriting;" provided, that the indemnification contained in this paragraph
with respect to any Preliminary Prospectus shall not inure to the benefit of
the Underwriter (or of any person controlling the Underwriter) to the extent
any such losses, claims, damages, liabilities or expenses directly results from
the fact that such Underwriter sold Shares to a person to whom there was not
sent or given, at or prior to the written confirmation of such sale, a copy of
the Prospectus (as amended or supplemented if any amendments or supplements
thereto shall have been furnished to the Underwriter in sufficient time to
distribute same with or prior to the written confirmation of the sale
involved), if required by law, and if such loss, claim, damage, liability or
expense would not have arisen but for the failure to give or send such person
such document. The foregoing indemnity agreement is in addition to any
liability the Company may otherwise
31
32
have to any such indemnified party.
(b) The Underwriter, agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers who signed
the Registration Statement and each person, if any, who controls the Company
within the meaning of the 1933 Act, to the same extent as required by the
foregoing indemnity from the Company to the Underwriter, but only with respect
to information relating to such Underwriter furnished in writing to the Company
through you by or on behalf of it expressly for use in connection with the
registration statement as originally filed, the Registration Statement, any
Preliminary Prospectus, the Prospectus or any amendment or supplement thereto,
beneath the heading "Underwriting" or in a Blue Sky Application. The foregoing
indemnity agreement is in addition to any liability which the Underwriter may
otherwise have to any such indemnified party.
(c) If any action or claim shall be brought or asserted
against any indemnified party or any person controlling an indemnified party in
respect of which indemnity may be sought from the indemnifying party, such
indemnified party or controlling person shall promptly notify the indemnifying
party in writing, and the indemnifying party shall assume the defense thereof,
including the employment of counsel reasonably satisfactory to the indemnified
party and the payment of all expenses; provided, however, that the failure so
to notify the indemnifying party shall not relieve it from any liability which
it may have to an indemnified party otherwise than under such paragraph, and
further, shall only relieve it from liability under such paragraph to the
extent prejudiced thereby. Any indemnified party or any such controlling
person shall have the right to employ separate counsel in any such action and
to participate in the defense thereof, but the fees and expenses of such
counsel shall be at the expense of such indemnified party or such controlling
person unless (i) the employment thereof has been specifically authorized by
the indemnifying party in writing, (ii) the indemnifying party has failed to
assume the defense or to employ counsel reasonably satisfactory to the
indemnified party or (iii) the named parties to any such action (including any
impleaded parties) include both such indemnified party or such controlling
person and the indemnifying party and such indemnified party or such
controlling person shall have been advised by such counsel that there may be
one or more legal defenses available to it that are different from or in
addition to those available to the indemnifying party (in which case, if such
indemnified party or controlling person notifies the indemnifying party in
writing that it elects to employ separate counsel at the expense of the
indemnifying party, the indemnifying party shall not have the right to assume
the defense of such action on behalf of such indemnified party or such
controlling person) it being understood, however, that the indemnifying party
shall not, in connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys at any time and for
32
33
all such indemnified party and controlling persons, which firm shall be
designated in writing by the indemnified party. Each indemnified party and
each controlling person, as a condition of such indemnity, shall use reasonable
efforts to cooperate with the indemnifying party in the defense of any such
action or claim. The indemnifying party shall not be liable for any settlement
of any such action effected without its written consent, but if there be a
final judgment for the plaintiff in any such action, the indemnifying party
agrees to indemnify and hold harmless any indemnified party and any such
controlling person from and against any loss, claim, damage, liability or
expense by reason of such settlement or judgment.
An indemnifying party shall not, without the prior written
consent of each indemnified party, settle, compromise or consent to the entry
of any judgment in any pending or threatened claim, action, suit or proceeding
in respect of which indemnity may be sought hereunder (whether or not such
indemnified party or any person who controls such indemnified party within the
meaning of the 1933 Act is a party to such claim, action, suit or proceeding),
unless such settlement, compromise or consent includes a release of each such
indemnified party reasonably satisfactory to each such indemnified party and
each such controlling person from all liability arising out of such claim,
action, suit or proceeding or unless the indemnifying party shall confirm in a
written agreement with each indemnified party, that notwithstanding any
federal, state or common law, such settlement, compromise or consent shall not
alter the right of any indemnified party or controlling person to
indemnification or contribution as provided in this Agreement.
(d) If the indemnification provided for in this Section 7
is unavailable or insufficient to hold harmless an indemnified party under
paragraphs (a), (b) or (c) hereof in respect of any losses, claims, damages,
liabilities or expenses referred to therein, then each indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages, liabilities or expenses (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and the
Underwriter on the other from the offering of the Shares or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and the Underwriter on the other in connection with the statements
or omissions that resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and the Underwriter on the
other shall be deemed to be in the same proportion as the total net proceeds
from the offering of the Shares (before deducting expenses) received by the
Company bear to the total underwriting discounts and commissions received by
the
33
34
Underwriter, in each case as set forth in the table on the cover page of the
Prospectus. The relative fault of the Company on the one hand and of the
Underwriter on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Underwriter and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The Company and the Underwriter
agrees that it would not be just and equitable if contribution pursuant to this
paragraph (d) were determined by pro rata allocation or by any other method of
allocation that does not take into account the equitable considerations
referred to herein. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, liabilities and expenses referred to in
the first sentence of this paragraph (d) shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of this
paragraph (d), the Underwriter shall not be required to contribute any amount
in excess of the amount by which the total price at which the Shares
underwritten by such Underwriter and distributed to the public were offered to
the public exceeds the amount of any damages that such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 0000 Xxx) shall
be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
For purposes of this paragraph (d), each person who controls
the Underwriter within the meaning of the 1933 Act shall have the same rights
to contribution as such Underwriter, and each person who controls the Company
within the meaning of the 1933 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 the
preceding sentence. The obligations of the Company under this paragraph (d)
shall be in addition to any liability which the Company may otherwise have and
the obligations of the Underwriter under this paragraph (d) shall be in
addition to any liability that the Underwriter may otherwise have.
(e) The indemnity and contribution agreements contained
in this Section 7 and the representations and warranties of the Company set
forth in this Agreement shall remain operative and in full force and effect,
regardless of (i) any investigation made by or on behalf of the Underwriter or
any person controlling the Underwriter or by or on behalf of the Company, or
such directors or officers (or any person controlling the Company), (ii)
acceptance of any Shares and payment therefor hereunder and (iii) any
termination of this Agreement. A successor of the Underwriter or of the
Company, such directors or officers (or of any person
34
35
controlling the Underwriter or the Company) shall be entitled to the benefits
of the indemnity, contribution and reimbursement agreements contained in this
Section 7.
8. TERMINATION. You shall have the right to terminate
this Agreement on behalf of the Underwriter at any time at or prior to the
Closing Date or, with respect to the Underwriter's obligation to purchase the
Option Shares, at any time at or prior to the Option Closing Date, without
liability on the part of the Underwriter to the Company, if:
(a) The Company shall have failed, refused, or been unable to
perform any agreement on its part to be performed under this Agreement, or any
of the conditions referred to in Section 6 shall not have been fulfilled, when
and as required by this Agreement;
(b) The Company or the Banks shall have sustained any
material loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree which in the judgment of the
Underwriter materially impairs the investment quality of the Shares;
(c) There has been since the respective dates as of which
information is given in the Registration Statement or the Prospectus, any
materially adverse change in, or any development which is reasonably likely to
have a material adverse effect on, the condition (financial or otherwise),
earnings, affairs, business, prospects or results of operations of the Company
and the Banks on a consolidated basis, whether or not arising in the ordinary
course of business;
(d) There has occurred any outbreak of hostilities or
other calamity or crisis or material change in general economic, political or
financial conditions, or internal conditions, the effect of which on the
financial markets of the United States is such as to make it, in your
reasonable judgment, impracticable to market the Shares or enforce contracts
for the sale of the Shares;
(e) Trading generally on the New York Stock Exchange, the
American Stock Exchange or the Nasdaq National Market shall have been
suspended, or minimum or maximum prices for trading shall have been fixed, or
maximum ranges for prices for securities shall have been required, by any of
said exchanges or market system or by the Commission or any other governmental
authority;
(f) A banking moratorium shall have been declared by
either federal or Michigan authorities; or
35
36
(g) Any action shall have been taken by any government in
respect of its monetary affairs which, in your reasonable judgment, has a
material adverse effect on the United States securities markets.
If this Agreement shall be terminated pursuant to this Section
8, the Company shall not then be under any liability to the Underwriter except
as provided in Sections 5 and 7 hereof.
10. EFFECTIVE DATE OF AGREEMENT. If the Registration
Statement is not effective at the time of execution of this Agreement, this
Agreement shall become effective on the Effective Date at the time the
Commission declares the Registration Statement effective. The Company shall
immediately notify the Underwriter when the Registration Statement becomes
effective.
If the Registration Statement is effective at the time of
execution of this Agreement, this Agreement shall become effective at the
earlier of 11:00 a.m. St. Louis time, on the first full business day following
the day on which this Agreement is executed, or at such earlier time as the
Underwriter shall release the Shares for initial public offering. The
Underwriter shall notify the Company immediately after it has taken any action
which causes this Agreement to become effective.
Until such time as this Agreement shall have become effective,
it may be terminated by the Company, by notifying you, or by you by notifying
the Company, except that the provisions of Sections 5 and 7 shall at all times
be effective.
11. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY. The representations, warranties, indemnities, agreements and other
statements of the Company and its officers set forth in or made pursuant to
this Agreement and the agreements of the Underwriter contained in Section 7
hereof shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of the Company or controlling persons of the
Company, or by or on behalf of the Underwriter or controlling persons of the
Underwriter or any termination or cancellation of this Agreement and shall
survive delivery of and payment for the Shares.
12. NOTICES. Except as otherwise provided in this
Agreement, all notices and other communications hereunder shall be in writing
and shall be deemed to have been duly given if delivered by hand, mailed by
registered or certified mail, return receipt requested, or transmitted by any
standard form of telecommunication and confirmed. Notices to the Company shall
be sent to 000 Xxxx Xxxx Xxxxxx, X.X. Xxx 000, Xxxxx, Xxxxxxxx 00000,
Attention: Xxxxxxx X. Xxxxx (with a copy to Varnum, Riddering, Xxxxxxx &
Xxxxxxx LLP, 330 Bridge
36
37
Street, N.W., X.X. Xxx 000, Xxxxx Xxxxxx, Xxxxxxxx 00000-0000, Attention:
Xxxxxxx X. Xxxxxxxxxx, Esq.); and notices to the Underwriter shall be sent to
Xxxxxx, Xxxxxxxx & Company, Incorporated, 000 Xxxxx Xxxxxxxx, Xxxxx 0000, Xx.
Xxxxx, Xxxxxxxx 00000, Attention: Xxxx X. Xxxxxx (with a copy to Xxxxx Xxxx
LLP, 000 Xxxxx Xxxxxxxx, Xxxxx 0000, Xx. Xxxxx, Xxxxxxxx 00000, Attention:
Xxxxx X. Xxxxx, Xx., Esq.).
13. PARTIES. The Agreement herein set forth is made
solely for the benefit of the Underwriter and the Company and, to the extent
expressed, directors and officers of the Company, any person controlling the
Company or the Underwriter, and their respective successors and assigns. No
other person shall acquire or have any right under or by virtue of this
Agreement. The term "successors and assigns" shall not include any purchaser,
in his status as such purchaser, from the Underwriter of the Shares.
14. GOVERNING LAW. This Agreement shall be governed by
the laws of the State of Missouri, without giving effect to the choice of law
or conflicts of law principles thereof.
15. COUNTERPARTS. This Agreement may be executed in one
or more counterparts, and when a counterpart has been executed by each party
hereto all such counterparts taken together shall constitute one and the same
Agreement.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us a counterpart hereof, whereupon
this shall become a binding agreement between the Company and you in accordance
with its terms.
37
38
Very truly yours,
INDEPENDENT BANK CORPORATION
By:____________________________
Name:
Title:
CONFIRMED AND ACCEPTED,
as of November __, 1996.
XXXXXX, XXXXXXXX & COMPANY, INCORPORATED
By: ______________________________
Name:
Title:
38
