EXHIBIT 1.1
[Common Stock]
OLD KENT FINANCIAL CORPORATION
UNDERWRITING AGREEMENT
New York, New York
____________, 199_
To the Representatives
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Dear Sirs:
Old Kent Financial Corporation, a Michigan corporation (the
"Company"), proposes to issue and sell to the underwriters named in
Schedule II hereto (the "Underwriters"), for whom you are acting as
representatives (the "Representatives"), __________ shares (the "Initial
Shares") of the Company's common stock (the "Common Stock"). Such Initial
Shares are to be sold to each Underwriter, acting severally and not
jointly, in such amounts as are listed in Schedule II opposite the name of
each Underwriter.
The Company also grants to the Underwriters, severally and not
jointly, the option described in Section 2(c) to purchase up to _____
additional shares (the "Option Shares"; together with the Initial Shares,
the "Shares") of Common Stock to cover over-allotments. The Common Stock
is more fully described in the Final Prospectus, referred to below. If the
firm or firms listed in Schedule II include only the firm or firms listed
in Schedule I, then the terms "Underwriters" and "Representatives", as used
herein, each shall be deemed to refer to such firm or firms.
1. Representations and Warranties. The Company represents and
warrants to, and agrees with, each Underwriter, as of the date of this
Agreement and as of the date of the Pricing Agreement (such latter date
being hereinafter referred to as the "Representation Date") that:
(a) The Company meets the requirements for use of Form S-3
under the Securities Act of 1933, as amended (the "Act"), and has
filed with the Securities and Exchange Commission (the
"Commission") a registration statement on such Form S-3 (the file
number of which is set forth in Schedule I), which registration
statement has become effective, for the registration under the
Act of the Shares. Such registration statement, as amended at
the date of this Agreement, meets the requirements set forth in
Rule 415(a)(1) under the Act and complies in all other material
respects with Rule 415. The Company proposes to file with the
Commission pursuant to Rule 424 or Rule 434 under the Act a
supplement to the form of prospectus included in such
registration statement relating to the Shares and the plan of
distribution thereof and has previously advised you of all
further information (financial and other) with respect to the
Company to be set forth therein. Such registration statement,
including the exhibits thereto, as amended at the date of this
Agreement, is hereinafter called the "Registration Statement";
such prospectus in the form in which it appears in the
Registration Statement is hereinafter called the "Basic
Prospectus"; and such supplemented form of prospectus, in the
form in which it shall be filed with the Commission pursuant to
Rule 424 or Rule 434 (including the Basic Prospectus as so
supplemented) is hereinafter called the "Final Prospectus." Any
preliminary form of the Final Prospectus that has heretofore been
filed pursuant to Rule 424 hereinafter is called the "Preliminary
Final Prospectus." Any reference in this Agreement to the
Registration Statement, the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 that were filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
on or before the date of this Agreement, or the issue date of the
Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, as the case may be; and any reference in this
Agreement to the terms "amend", "amendment" or "supplement" with
respect to the Registration Statement, the Basic Prospectus, and
the Preliminary Final Prospectus or the Final Prospectus shall be
deemed to refer to and include the filing of any document under
the Exchange Act after the date of this Agreement, or the issue
date of the Basic Prospectus, any Preliminary Final Prospectus or
the Final Prospectus, as the case may be, and deemed to be
incorporated therein by reference.
(b) As of the date of this Agreement, when the Final
Prospectus is first filed pursuant to Rule 424 or Rule 434 under
the Act, when, prior to the Closing Date (as defined below), any
amendment to the Registration Statement becomes effective
(including the filing of any document incorporated by reference
in the Registration Statement), when any supplement to the Final
Prospectus is filed with the Commission and at the Closing Date
(as defined below), (i) the Registration Statement as amended as
of any such time, and the Final Prospectus, as amended or
supplemented as of any such time, will comply in all material
respects with the applicable requirements of the Act, and the
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Exchange Act and the respective rules thereunder, (ii) the
Registration Statement, as amended as of any such time, will not
contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary in
order to make the statements therein not misleading, and (iii)
the Final Prospectus, as amended or supplemented as of any such
time, will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading;
provided, however, that the Company makes no representations or
warranties as to the information contained in or omitted from the
Registration Statement or the Final Prospectus or any amendment
thereof or supplement thereto in reliance upon and in conformity
with information furnished in writing to the Company by or on
behalf of any Underwriter through the Representatives
specifically for use in connection with the preparation of the
Registration Statement and the Final Prospectus. It is agreed
that each Underwriter and you, as Representative, have furnished
to the Company in writing for such use the statements with
respect to Underwriters in response to Item E of Form S-1, any
statements relating to the terms of the offering by the
Underwriters on the cover page of the Final Prospectus, and all
statements under the caption "Underwriting" in the Final
Prospectus.
(c) The Company is a duly organized and validly existing
corporation in good standing under the laws of the state of
Michigan, has the corporate power and authority to own its
properties and conduct its business as described in the Final
Prospectus, and is duly registered as a bank holding company
under the Bank Holding Company Act of 1956, as amended. Old Kent
Bank (the "Principal Subsidiary Bank") is a banking organization
formed under the laws of the state of Michigan and authorized
thereunder to transact business.
(d) Neither the Company nor the Principal Subsidiary Bank
is required to be qualified or licensed to do business as a
foreign corporation in any jurisdiction where it is not so
qualified or licensed, except where the failure to be so
qualified would not reasonably be expected to have a material
adverse effect on the business or properties of the Company and
its subsidiaries on a consolidated basis.
(e) All the outstanding shares of capital stock of the
Company and the Principal Subsidiary Bank have been duly and
validly authorized and issued and are fully paid and (except as
provided in M.C.L. 450.1551 and the Michigan Banking
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Code of 1969, as amended) nonassessable. Except as otherwise set
forth in the Final Prospectus, all outstanding shares of capital
stock of the Principal Subsidiary Bank are owned, directly or
indirectly, by the Company, free and clear of any perfected
security interest and, subject to the provisions of and the
Michigan Banking Code of 1969, as amended, any other security
interests, claims, liens or encumbrances.
(f) the Shares conform in all material respects to the
description thereof contained in the Final Prospectus;
(g) There is no pending or, to the Company's knowledge,
threatened action, suit or proceeding before any court or
governmental agency, authority or body or any arbitrator
involving the Company or any of its subsidiaries, of a character
required to be disclosed in the Registration Statement that is
not adequately disclosed in the Final Prospectus. There is no
franchise, contract or other document of a character required to
be described in the Registration Statement or Final Prospectus,
or to be filed as an exhibit, that is not described or filed as
required.
(h) This Agreement has been duly authorized, executed and
delivered by the Company and constitutes a legal, valid and
binding agreement of the Company, enforceable against the Company
in accordance with its terms (subject, as to enforcement of
remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium, fraudulent conveyance or other similar laws affecting
the rights of creditors now or hereafter in effect, and to
equitable principles that may limit the right to specific
enforcement of remedies, and except insofar as the enforceability
of the indemnity and contribution provisions contained in this
Agreement may be limited by federal and state securities laws,
and further subject to bank regulatory powers and to the
application of principles of public policy).
(i) No consent, approval, authorization or order of any
court or governmental agency or body is required on behalf of the
Company for the consummation of the transactions contemplated,
except such as have been obtained under the Act and such as may
be required by the National Association of Securities Dealers,
Inc. ("NASD") or under the blue sky or insurance laws of any
jurisdiction in connection with the purchase and distribution of
the Shares by the Underwriters and such other approvals as have
been obtained.
(j) Neither the issue and sale of the Shares, nor the
consummation of any other of the transactions contemplated in
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this Agreement nor the fulfillment of the terms of this
Agreement, by the Company, will conflict with, result in a breach
of, or constitute a default under the Restated Articles of
Incorporation or Restated Bylaws of the Company or the terms of
any material indenture or other agreement to which the Company or
the Principal Subsidiary Bank is a party or bound, or any order
or regulation applicable to the Company or the Principal
Subsidiary Bank of any court, regulatory body, administrative
agency, governmental body or arbitrator having jurisdiction over
the Company or any of its affiliates.
(k) The financial statements (including the related notes
and supporting schedules) included in the Final Prospectus
present fairly in all material respects the financial condition
and results of operations of the entities purported to be shown
thereby, at the dates and for the periods indicated, and (except
as indicated therein) have been prepared in conformity with
generally accepted accounting principles applied in a consistent
basis throughout the periods involved.
2. Purchase and Sale. (a) Subject to the terms and conditions and
in reliance upon the representations and warranties herein set forth, the
Company agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Company the respective
number of Initial Shares set forth opposite such Underwriter's name in
Schedule II.
(b) The initial public offering price and the purchase price of
the Initial Shares shall be set forth in a separate written instrument (the
"Pricing Agreement") signed by the Representatives and the Company, the
form of which is attached to this Agreement as Schedule III. From and
after the execution and delivery of the Pricing Agreement, this Agreement
shall be deemed to include the Pricing Agreement. The purchase price per
share to be paid by the several Underwriters for the Initial Shares shall
be an amount equal to the initial public offering price, less an amount per
share to be determined by agreement among the Representatives and the
Company.
(c) In addition, on the basis of the representations and
warranties contained in this Agreement, and subject to the terms and
conditions set forth in this Agreement, the Company grants an option to the
Underwriters, severally and not jointly, to purchase up to an additional
_______ Option Shares at the same price per share determined as provided
above for the Initial Shares. The option hereby granted will expire 30
days after the date of the Pricing Agreement, and may be exercised, in
whole or in part (but not more than once), only for the purpose of covering
over-allotments upon notice by the Representatives to the Company setting
forth the number of Option Shares as to which the several Underwriters are
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exercising the option, and the time and date of payment and delivery
thereof. Such time and date of Delivery (the "Date of Delivery") shall be
determined by the Representatives but shall not be later than seven full
business days after the exercise of such option and not in any event prior
to the Closing Date (as defined below). If the option is exercised as to
all or any portion of the Option Shares, the Option Shares as to which the
option is exercised shall be purchased by the Underwriters severally and
not jointly, in proportion to, as nearly as practicable, their respective
Initial Shares underwriting obligations as set forth on Schedule II.
3. Delivery and Payment. Delivery of and payment for the Initial
Shares shall be made on the date and at the time specified in the Pricing
Agreement, which date and time may be postponed by agreement between the
Representatives and the Company or as provided in Section 9 hereof (such
date and time of delivery and payment for the Initial Shares being herein
called the "Closing Date"). Delivery of the Initial Shares shall be made
to the Representatives for the respective accounts of the several
Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof in the manner set forth in
Schedule I. Unless otherwise agreed, certificates for the Initial Shares
shall be in the form set forth in Schedule I, and such certificates may be
deposited with The Depository Trust Company ("DTC") or a custodian for DTC
and registered in the name of Cede & Co., as nominee for DTC.
In addition, in the event that any or all of the Option Shares are
purchased by the Underwriters, delivery and payment for the Option Shares
shall be made at the office specified for delivery of the Initial Shares in
the Pricing Agreement, or at such other place as the Company and the
Representatives shall determine, on the Date of Delivery as specified in
the notice from the Representatives to the Company. Delivery of the Option
Shares shall be made to the Representatives against payment by the
Underwriters through the Representatives of the purchase price thereof to
or upon the order of the Company in the manner set forth in Schedule I.
Unless otherwise agreed, certificates for the Option Shares shall be in the
form set forth in Schedule I, and such certificates shall be registered in
such names and in such denominations as the Representatives may request not
less than three full business days in advance of the Date of Delivery.
4. Agreements. The Company agrees with the several Underwriters
that:
(a) Prior to the termination of the offering of the Shares,
the Company will not file any amendment of the Registration
Statement or supplement (including the Final Prospectus) to the
Basic Prospectus unless the Company has furnished you a copy for
your review prior to filing and will not file any such proposed
amendment or supplement to which you reasonably object. Subject
to the foregoing sentence, the Company will cause the Final
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Prospectus to be filed with the Commission pursuant to Rule 424
or Rule 434 via the Electronic Data Gathering, Analysis and
Retrieval System. The Company will advise the Representatives
promptly (i) when the Final Prospectus shall have been filed with
the Commission pursuant to Rule 424 or Rule 434, (ii) when any
amendment to the Registration Statement relating to the Shares
shall have become effective, (iii) of any request by the
Commission for any amendment of the Registration Statement or
amendment of or supplement to the Final Prospectus or for any
additional information, (iv) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration
Statement or the institution or threatening of any proceeding for
that purpose and (v) of the receipt by the Company of any
notification with respect to the suspension of the qualification
of the Shares for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose. The Company will
use its best efforts to prevent the issuance of any such stop
order and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Shares is required to be delivered by an Underwriter or dealer
under the Act, any event occurs as a result of which, in the
judgment of the Company or in the opinion of counsel for the
Underwriters, the Final Prospectus as then amended or
supplemented would include any untrue statement of a material
fact or omit to state any material fact necessary to make the
statements therein in light of the circumstances under which they
were made not misleading, or if it shall be necessary to amend or
supplement the Final Prospectus to comply with the Act or the
Exchange Act or the respective rules thereunder, the Company
promptly will prepare and file with the Commission, subject to
the first sentence of paragraph (a) of this Section 4, an
amendment or supplement that will correct such statement or
omission or an amendment that will effect such compliance.
(c) The Company will make generally available to its
security holders and to the Representatives as soon as
practicable, but not later than 90 days after the close of the
period covered thereby, an earnings statement (in form complying
with the provisions of Rule 158 of the regulations under the Act)
covering a 12 month period beginning not later than the first day
of the Company's fiscal quarter next following the "effective
date" (as defined in said Rule 158) of the Registration
Statement.
(d) The Company will furnish to the Representatives and
counsel for the Underwriters, without charge, copies of the
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Registration Statement (including exhibits thereto) and each
amendment thereto that shall become effective on or prior to the
Closing Date and, so long as delivery of a prospectus by an
Underwriter or dealer may be required by the Act, as many copies
of any Preliminary Final Prospectus and the Final Prospectus and
any amendments thereof and supplements thereto as the
Representatives may reasonably request. Except as otherwise
provided herein, the Company will pay the expenses of printing
all documents relating to the offering.
(e) The Company will arrange for the qualification of the
Shares for sale under the laws of such jurisdictions as the
Representatives may reasonably designate, will use all reasonable
efforts to maintain such qualifications in effect so long as
required for the distribution of the Shares and will arrange for
the determination of the legality of the Shares for purchase by
institutional investors; provided, however, that the Company
shall not be required to qualify to do business in any
jurisdiction where it is not now so qualified or to take any
action that would subject it to general or unlimited service of
process of any jurisdiction where it is not now so subject.
(f) Until the business day following the Closing Date, the
Company will not, without the consent of the Representatives,
offer or sell, or announce the offering of, any securities
covered by the Registration Statement or by any other
registration statement filed under the Act; provided, however,
the Company may, at any time, offer or sell or announce the
offering of any securities (A) covered by a registration
statement on Form S-8, (B) covered by a registration statement on
Form S-3 and pursuant to which the Company issues securities for
its Dividend Reinvestment Plan, or (C) reserved for such
issuance, with such reservation referred to in the Final
Prospectus.
5. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Shares shall be subject to
the accuracy of the representations and warranties on the part of the
Company contained in this Agreement as of the date hereof, as of the date
of the effectiveness of any amendment to the Registration Statement filed
prior to the Closing Date (including the filing of any document
incorporated by reference therein) and as of the Closing Date, to the
accuracy of the statements of the Company made in any certificates pursuant
to the provisions hereof, to the performance by the Company of its
obligations hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall have
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been issued and no proceedings for that purpose shall have been
instituted or threatened; and the Final Prospectus shall have
been filed or mailed for filing with the Commission within the
time period prescribed by the Commission.
(b) The Company shall have furnished to the Representatives
the opinion of Xxxxxx Xxxxxxxx & Xxxx LLP, counsel for the
Company, dated the Closing Date, to the effect of paragraphs (i)
through (xi) below:
(i) the Company is a duly organized and validly
existing corporation in good standing under the laws of
the state of Michigan, has the corporate power and
authority to own its properties and conduct its
business as described in the Final Prospectus, and is
duly registered as a bank holding company under the
Bank Holding Company Act of 1956, as amended; the
Principal Subsidiary Bank is a banking organization
organized under the laws of the state of Michigan and
authorized thereunder to transact business;
(ii) except for those jurisdictions specifically
enumerated in such opinion, neither the Company nor the
Principal Subsidiary Bank is required to be qualified
or licensed to do business as a foreign corporation in
any jurisdiction where it is not so qualified or
licensed, except where the failure to be so qualified
or licensed would not reasonably be expected to have a
material adverse effect on the business or properties
of the Company and its subsidiaries on a consolidated
basis;
(iii) all the outstanding shares of capital
stock of the Company and the Principal Subsidiary Bank
have been duly and validly authorized and issued and
are fully paid and (except as provided in M.C.L.
450.1551 and the Michigan Banking Code of
1969, as amended) nonassessable, and, except as
otherwise set forth in the Final Prospectus, all
outstanding shares of capital stock of the Principal
Subsidiary Bank are owned, directly or indirectly, by
the Company free and clear of any perfected security
interest and, to the knowledge of such counsel, any
other security interests, claims, liens or
encumbrances;
(iv) the Securities conform as to legal matters in
all material respects to the description thereof
contained in the Final Prospectus;
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(v) if the Securities are to be listed on [the
New York Stock Exchange][The Nasdaq Stock Market],
authorization therefor has been given, subject to
official notice of issuance and evidence of
satisfactory distribution, or the Company has filed a
preliminary listing application and all required
supporting documents with respect to the Securities
with [the New York Stock Exchange][The Nasdaq Stock
Market] and such counsel has no reason to believe that
the Securities will not be authorized for listing,
subject to official notice of issuance and evidence of
satisfactory distribution;
(vi) to the knowledge of such counsel, there is no
pending or threatened action, suit or proceeding before
any court or governmental agency, authority or body or
any arbitrator involving the Company or any of its
subsidiaries, of a character required to be disclosed
in the Registration Statement that is not adequately
disclosed in the Final Prospectus, and there is no
franchise, contract or other document of a character
required to be described in the Registration Statement
or Final Prospectus, or to be filed as an exhibit, that
is not described or filed as required;
(vii) the Registration Statement has become
effective under the Act; to the knowledge of such
counsel, no stop order suspending the effectiveness of
the Registration Statement has been issued and no
proceedings for that purpose have been instituted or
threatened; the Registration Statement, the Final
Prospectus and each amendment thereof or supplement
thereto (other than the financial statements and other
financial and statistical information contained therein
or incorporated by reference therein, as to which such
counsel need express no opinion) comply as to form in
all material respects with the applicable requirements
of the Act and the Exchange Act and the respective
rules thereunder;
(viii) this Agreement has been duly authorized,
executed and delivered by the Company and is a valid
and binding agreement of the Company (subject, as to
enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium, fraudulent
conveyance or other similar laws affecting the rights
of creditors now or hereafter in effect, and to
equitable principles that may limit the right to
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specific enforcement of remedies, and except insofar as
the enforceability of the indemnity and contribution
provisions contained in this Agreement may be limited
by federal and state securities laws, and further
subject to bank regulatory powers and to the
application of principles of public policy);
(ix) no consent, approval, authorization or order
of any court or governmental agency or body is required
on behalf of the Company for the consummation of the
transactions contemplated in this Agreement, except
such as have been obtained under the Act and such as
may be required by the NASD or under the blue sky or
insurance laws of any jurisdiction in connection with
the purchase and distribution of the Securities by the
Underwriters and such other approvals (specified in
such opinion) as have been obtained;
(x) neither the issue and sale of the Securities,
nor the consummation of any other of the transactions
in this Agreement contemplated nor the fulfillment of
the terms of this Agreement will conflict with, result
in a breach of, or constitute a default under the
Restated Articles of Incorporation or Restated Bylaws
of the Company or, to the knowledge of such counsel,
the terms of any material indenture or other material
agreement or instrument known to such counsel and to
which the Company or the Principal Subsidiary Bank is a
party or bound, or any order or regulation known to
such counsel to be applicable to the Company or the
Principal Subsidiary Bank of any court, regulatory
body, administrative agency, governmental body or
arbitrator having jurisdiction over the Company or any
of its affiliates; and
(xi) to the knowledge of such counsel, each holder
of securities of the Company having rights to the
registration of such securities under the Registration
Statement has waived such rights or such rights have
expired by reason of lapse of time following
notification of the Company's intention to file the
Registration Statement.
In rendering such opinion, but without opining in connection
therewith, such counsel shall also state that, although it has
not independently verified, is not passing upon and assumes no
responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement, it has no
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reason to believe that the Registration Statement or any
amendment thereof at the time it became effective contained any
untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which
they were made, not misleading, or that the Final Prospectus, as
amended or supplemented, contains any untrue statement of a
material fact or omits to state a material fact necessary to make
the statements therein, in light of the circumstances under which
they were made, not misleading.
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction
other than the state of Michigan or the United States, to the
extent deemed proper by such counsel and specified in such
opinion, upon the opinion of other counsel of good standing
believed to be reliable and who are reasonably satisfactory to
counsel for the Underwriters; and (B) as to matters of fact, to
the extent deemed proper by such counsel, on certificates of
responsible officers of the Company and its subsidiaries and
public officials. In rendering such opinion with respect to the
matters covered in clause (ix), such counsel may state that its
opinion and belief are based upon the procedures specified in
such opinion, but are without independent check or verification.
(c) The Representatives shall have received from
___________, counsel for the Underwriters, such opinion or
opinions, dated the Closing Date, with respect to the matters
referred to in clauses (iv), (vii), (viii), and (ix) of Paragraph
5(b). In rendering such opinion, but without opining in
connection therewith, such counsel shall also state that,
although it has not independently verified, is not passing upon
and assumes no responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration
Statement, it has no reason to believe that the Registration
Statement or any amendment thereof at the time it became
effective contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein
or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, or that
the Final Prospectus, as amended or supplemented, contains any
untrue statement of a material fact or omits to state a material
fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may rely, as to matters
involving the application of laws of any jurisdiction other than
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the state of __________ or the United States, to the extent
deemed proper by such counsel and specified in such opinion, upon
the opinion of other counsel of good standing believed to be
reliable and who are reasonably satisfactory to counsel for the
Company.
(d) The Company shall have furnished to the Representatives
a certificate of the Company, signed by a Senior Vice President
and the principal financial or accounting officer of the Company,
dated the Closing Date, to the effect that the signers of such
certificate have carefully examined the Registration Statement,
the Final Prospectus and this Agreement and that to the best of
their knowledge:
(i) the representations and warranties of the Company
in this Agreement are true and correct in all material
respects on and as of the Closing Date with the same effect
as if made on the Closing Date and the Company has complied
with all the agreements and satisfied all the conditions on
its part to be performed or satisfied at or prior to the
Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement, as amended, has been issued and no
proceedings for that purpose have been instituted or, to the
best of the Company's knowledge, threatened; and
(iii) since the date of the most recent financial
statements included in the Final Prospectus, there has been
no material adverse change in the financial condition,
earnings, business or properties of the Company and its
subsidiaries, whether or not arising from transactions in
the ordinary course of business, except as set forth in or
contemplated in the Final Prospectus.
(e) At the Closing Date, Xxxxxx Xxxxxxxx LLP shall have
furnished to the Representatives (and also addressed to the
Company's Board of Directors) a letter or letters (which letter
may refer to letters previously delivered to one or more of the
Representatives), dated as of the Closing Date, in form and
substance satisfactory to the Representatives, confirming that
the response, if any, to Item 10 of the Registration Statement is
correct insofar as it relates to them and stating in effect that:
(i) They are independent accountants within the
meaning of the Act and the applicable published rules and
regulations thereunder.
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(ii) In their opinion, the consolidated financial
statements of the Company audited by them and included or
incorporated by reference in the Registration Statement and
Final Prospectus comply as to form in all material respects
with the applicable accounting requirements of the Act and
the related published rules and regulations thereunder.
(iii) They performed review procedures (but not an
audit in accordance with generally accepted auditing
standards) consisting of:
(A) With respect to the period from the date of
the most recent audited balance sheet included or
incorporated by reference in the Final Prospectus
through a specified date not more than five business
days prior to the date of delivery of such letter:
reading the minutes of the meetings of the
shareholders, the board of directors, executive
committee and audit committee of the Company and the
Principal Bank Subsidiary as set forth in the minute
books for such period,
(B) With respect to the three, six, or nine month
period, as the case may be, ended on the date of the
most recent unaudited condensed consolidated interim
balance sheet of the Company included or incorporated
by reference in the Registration Statement and Final
Prospectus, and with respect to the same three, six, or
nine month period of the previous year:
(I) Performing the procedures specified by
the American Institute of Certified Public
Accountants for a review of interim financial
information as described in SAS No. 71, Interim
Financial Information, on the unaudited condensed
consolidated interim financial statements of the
Company included or incorporated by reference in
the Registration Statement and Final Prospectus,
(II) Making inquiries of certain officials of the
Company who have responsibility for financial and
accounting matters whether such unaudited condensed
consolidated financial statements comply as to form in
all material respects with the applicable accounting
requirements of the Act and the related published rules
and regulations,
-14-
(C) With respect to the period from the date of
the most recent unaudited condensed consolidated
interim balance sheet of the Company included or
incorporated by reference in the Final Prospectus to
the date of the latest available interim financial
data:
(I) Reading the unaudited condensed consolidated
financial statements of the Company for such period, and
(II) Inquiring of certain officials of the Company
who have responsibility for financial and accounting
matters whether the unaudited condensed consolidated
financial statements referred to in (C)(I) immediately
above are stated on a basis substantially consistent with
that of the audited consolidated financial statements
included or incorporated by reference in the
Final Prospectus.
(iv) Based on the procedures described in (iii)
immediately above, nothing came to their attention as a
result of the foregoing procedures that caused them to
believe that:
(A) The unaudited condensed consolidated
financial statements, included or incorporated by
reference in the Registration Statement and Final
Prospectus, do not comply as to form in all material
respects with the applicable accounting requirements of the
Act and the related published rules and regulations thereunder,
(B) Any material modifications should be made to
the unaudited condensed consolidated financial
statements described in (C) immediately above, included or
incorporated by reference in Final Prospectus, for them to be
in conformity with generally accepted accounting principles,
and
(C) As of the date of the latest available interim
financial data and at the specified date not more than
five business days prior to the date of delivery of
such letter, there was any change in the capital stock,
increase in long-term debt, or decrease in consolidated
net assets or shareholders' equity of the
Company (on a consolidated basis) as compared with the
amounts shown in the unaudited condensed consolidated
financial statements included or incorporated
by reference in the Final Prospectus.
-15-
(v) The letter shall also state that Xxxxxx Xxxxxxxx
LLP has carried out certain other specified procedures, not
constituting an audit, with respect to certain amounts,
percentages and financial information that are included or
incorporated by reference in the Registration Statement and
Final Prospectus and that are specified by the
Representatives and agreed to by Xxxxxx Xxxxxxxx LLP, and
has found such amounts, percentages and financial
information to be in agreement with the relevant accounting,
financial and other records of the Company and its
subsidiaries identified in such letter.
In addition, at the time this Agreement is executed, Xxxxxx
Xxxxxxxx LLP shall have furnished to the Representatives a
letter or letters, dated the date of this Agreement, in form
and substance satisfactory to the Representatives, to the
effect set forth in this paragraph (e) and in Schedule I.
(f) Subsequent to the respective dates as of which
information is given in the Registration Statement and the Final
Prospectus, there shall not have been (i) any change or decrease
specified in the letter or letters referred to in paragraph (e)
of this Section 5, or (ii) any change, or any development
involving a prospective change, in or affecting the earnings,
business or properties of the Company and its subsidiaries the
effect of which, in any case referred to in clause (i) or (ii)
above, is, in the reasonable judgment of the Representatives, so
material and adverse as to make it impractical or inadvisable to
proceed with the offering or the delivery of the Securities as
contemplated by the Registration Statement and the Final
Prospectus.
(g) Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information,
certificates and documents as the Representatives may reasonably
request.
If any of the conditions specified in this Section 5 shall not have been
fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in
this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Representatives, this Agreement
and all obligations of the Underwriters hereunder may be canceled at, or at
any time prior to, the Closing Date by the Representatives.
6. Payment of Expenses. The Company will pay all expenses incident
to the performance of its obligations under this Agreement, including (i)
the printing and filing of the Registration Statement as originally filed
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and of each amendment thereto, (ii) the copying of this Agreement and the
Pricing Agreement, (iii) the preparation, issuance and delivery of the
certificates for the Shares to the Underwriters, including capital duties,
stamp duties and stock transfer taxes, if any, payable upon issuance of any
of the Shares, the sale of the Shares to the Underwriters and the fees and
expenses of the transfer agent for the Shares, (iv) the fees and
disbursements of the Company's counsel and accountants, (v) the
qualification of the Shares under state securities laws in accordance with
the provisions of Section 4(e), including filing fees and the reasonable
fees and disbursements of counsel for the Underwriters in connection
therewith and in connection with the preparation of the "Blue Sky Survey"
not to exceed $_____, (vi) the printing and delivery to the Underwriters of
copies of the Registration Statement as originally filed and of each
amendment thereto, of the preliminary prospectuses, and of the Prospectuses
and any amendments or supplements thereto, (vii) the printing and delivery
to the Underwriters of copies of the Blue Sky Survey, and (viii) the fee of
the National Association of Securities Dealers, Inc. and, if applicable,
[the New York Stock Exchange] [The Nasdaq Stock Market].
If the sale of the Shares provided for herein is not consummated
because any condition to the obligations of the Underwriters set forth in
Section 5 is not satisfied or because of any refusal, inability or failure
on the part of the Company to perform any agreement herein or comply with
any provision hereof other than by reason of a default by any of the
Underwriters, the Company will reimburse the Underwriters severally upon
demand for all out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by them in
connection with the proposed purchase and sale of the Shares.
7. Conditions to Purchase of Option Shares. In the event the
Underwriters exercise the option granted in Section 2(c) hereof to purchase
all or any portion of the Option Shares and the Date of Delivery determined
by the Representatives pursuant to Section 2 is later than the Closing
Date, the obligations of the several Underwriters to purchase and pay for
the Option Shares that they shall have respectively agreed to purchase
under this Agreement are subject to the accuracy of the representations and
warranties of the Company contained in this Agreement, to the performance
by the Company of its obligations under this Agreement and to the following
additional conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall have
been issued and no proceedings for that purpose shall have been
instituted or threatened; and any required filing of the Final
Prospectus pursuant to Rule 424(b) or Rule 434 under the Act
shall have been made within the proper time period.
-17-
(b) At the Date of Delivery, the Representatives shall have
received, each dated the Date of Delivery and relating to the
Option Shares:
(i) the favorable opinion of Xxxxxx Xxxxxxxx & Xxxx
LLP, counsel for the Company, in form and substance
reasonably satisfactory to counsel for the Underwriters, to
the same effect as the opinion required by Section 5(b);
(ii) the favorable opinion of _______, counsel for the
Underwriters, to the same effect as the opinion required by
Section 5(c);
(iii) a certificate, of a Senior Vice President of
the Company and of the principal financial or accounting
officer of the Company with respect to the matters set forth
in Section 5(d); and
(iv) a letter from Xxxxxx Xxxxxxxx LLP, in form and
substance reasonably satisfactory to the Underwriters,
substantially the same in scope and substance as the letter
furnished to the Underwriters pursuant to Section 5(e)
except that the "specified date" in the letter furnished
pursuant to this Section 7(b)(v) shall be a date not more
than five days prior to the Date of Delivery.
If any of the conditions specified in this Section 7 shall not have
been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects
reasonably satisfactory in form and substance to the Representatives, this
Agreement and all obligations of the Underwriters hereunder may be canceled
at, or at any time prior to, the Date of Delivery by the Representatives.
8. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Underwriter and each person who controls
any Underwriter within the meaning of either the Act or the Exchange Act
against any and all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject under the Act, the
Exchange Act or other Federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement as originally filed or in any
amendment thereof, or arise out of or are based upon omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or arise out of or
are based upon any untrue statement or alleged untrue statement of a
-18-
material fact contained in the Final Prospectus if used within the period
set forth in Section 4(d), or any amendment or supplement thereof, or arise
out of or are based upon any omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading, and agrees to reimburse each such indemnified party
for any legal or other expenses reasonably incurred by them in connection
with investigating or defending any such loss, claim, damage, liability or
action; provided, however, that (i) the Company will not be liable in any
such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and
in conformity with written information furnished to the Company by or on
behalf of any Underwriter through the Representatives specifically for use
in connection with the preparation thereof, and (ii) such indemnity with
respect to the Basic Prospectus or any Preliminary Final Prospectus shall
not inure to the benefit of any Underwriter (or any person controlling such
Underwriter) from whom the person asserting any such loss, claim, damage or
liability purchased the Shares that are the subject thereof if such person
did not receive a copy of the Final Prospectus (or the Final Prospectus as
amended or supplemented) excluding documents incorporated therein by
reference at or prior to the confirmation of the sale of such Shares to
such person in any case where such delivery is required by the Act and the
untrue statement or omission of a material fact contained in the Basic
Prospectus or any Preliminary Final Prospectus was corrected in the Final
Prospectus (or the Final Prospectus as amended or supplemented).
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers who signs
the Registration Statement, and each person who controls the Company within
the meaning of either the Act or the Exchange Act, to the same extent as
the foregoing indemnity from the Company to each Underwriter, but only with
reference to information relating to such Underwriter furnished to the
Company by or on behalf of such Underwriter through the Representatives
specifically for use in the preparation of the documents referred to in the
foregoing indemnity. The Company acknowledges that the statements set
forth in the language on the cover page required by Item 509 of Regulation
S-K and under the heading "Underwriting" or "Plan of Distribution" in any
Preliminary Final Prospectus or the Final Prospectus constitute the only
information furnished in writing by or on behalf of the several
Underwriters for inclusion in the documents referred to in the foregoing
indemnity, and you, as the Representatives, confirm that such statements
are correct.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party in
-19-
writing of the commencement thereof; but the omission so to notify the
indemnifying party will not relieve it from any liability that it may have
to any indemnified party otherwise than under this Section 8. In case any
such action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will
be entitled to participate therein, and, to the extent that it may elect by
written notice delivered to the indemnified party promptly after receiving
the aforesaid notice from such indemnified party, to assume the defense
thereof, with counsel satisfactory to such indemnified party; provided,
however, that if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party
shall have reasonably concluded that there may be legal defenses available
to it and/or other indemnified parties which are different from or
additional to those available to the indemnifying party, the indemnified
party or parties shall have the right to select separate counsel to assert
such legal defenses and to otherwise participate in the defense of such
action on behalf of such indemnified party or parties. Upon receipt of
notice from the indemnifying party to such indemnified party of its
election so to assume the defense of such action and approval by the
indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the
defense thereof unless (i) the indemnified party shall have employed
separate counsel in connection with the assertion of legal defenses in
accordance with the proviso to the next preceding sentence (it being
understood, however, that the indemnifying party shall not be liable for
the expenses of more than one separate counsel, approved by the
Representatives in the case of subparagraph (a), representing the
indemnified parties under subparagraph (a) who are parties to such action),
(ii) the indemnifying party shall not have employed counsel reasonably
satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of commencement of the action or
(iii) the indemnifying party has authorized the employment of counsel for
the indemnified party at the expense of the indemnifying party; and except
that if clause (i) or (iii) is applicable, such liability shall be only in
respect of the counsel referred to in such clause (i) or (iii).
(d) To provide for just and equitable contribution in
circumstances in which the indemnification provided for in paragraph (a) of
this Section 8 is due in accordance with its terms but is for any reason
held by a court to be unavailable from the Company on the grounds of policy
or otherwise, the Company and the Underwriters shall contribute to the
aggregate losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating or defending
same) to which the Company and one or more of the Underwriters may be
subject in such proportion so that the Underwriters are responsible for
that portion represented by the percentage that the underwriting discount
bears to the sum of such discount and the purchase price of the Shares
-20-
specified in Schedule I hereto and the Company is responsible for the
balance; provided, however, that (y) in no case shall any Underwriter
(except as may be provided in any agreement among underwriters relating to
the offering of the Shares) be responsible for any amount in excess of the
underwriting discount applicable to the Shares purchased by such
Underwriter hereunder and (z) no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 8, each person
who controls an Underwriter within the meaning of the Act shall have the
same rights to contribution as such Underwriter, and each person who
controls the Company within the meaning of either the Act or the Exchange
Act, each officer of the Company who shall have signed the Registration
Statement and each director of the Company shall have the same rights to
contribution as the Company, subject in each case to clause (y) of this
paragraph (d). Any party entitled to contribution will, promptly after
receipt of notice of commencement of any action, suit or proceeding against
such party in respect of which a claim for contribution may be made against
another party or parties under this paragraph (d), notify such party or
parties from whom contribution may be sought, but the omission to so notify
such party or parties shall not relieve the party or parties from whom
contribution may be sought from any other obligation it or they may have
hereunder or otherwise than under this paragraph (d).
9. Default by an Underwriter. If any one or more Underwriters shall
fail to purchase and pay for any of the Shares agreed to be purchased by
such Underwriter or Underwriters hereunder and such failure to purchase
shall constitute a default in the performance of its or their obligations
under this Agreement, the remaining Underwriters shall be obligated
severally to take up and pay for (in the respective proportions that the
amount of Shares set forth opposite their names in Schedule II bear to the
aggregate amount of Shares set forth opposite the names of all the
remaining Underwriters) the Shares that the defaulting Underwriter or
Underwriters agreed but failed to purchase; provided, however, that in the
event that the aggregate amount of Shares that the defaulting Underwriter
or Underwriters agreed but failed to purchase shall exceed 10% of the
aggregate amount of Shares set forth in Schedule II, the remaining
Underwriters shall have the right to purchase all, but shall not be under
any obligation to purchase any, of the Shares, and if such nondefaulting
Underwriters do not purchase all the Shares, this Agreement will terminate
without liability to any nondefaulting Underwriter or the Company. In the
event of a default by any Underwriter as set forth in this Section 9, the
Closing Date shall be postponed for such period, not exceeding seven days,
as the Representatives shall determine in order that the required changes
in the Registration Statement and the Final Prospectus or in any other
documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability, if
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any, to the Company and any nondefaulting Underwriter for damages
occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to termination in
the absolute discretion of the Representatives, by notice given to the
Company prior to delivery of and payment for the Shares, if prior to such
time (i) trading in securities generally on [the New York Stock
Exchange][The Nasdaq Stock Market] shall have been suspended or limited or
minimum prices shall have been established on such Exchange, (ii) a banking
moratorium shall have been declared either by Federal or Michigan banking
authorities or (iii) there shall have occurred any outbreak or material
escalation of hostilities or other calamity or crisis the effect of which
on the financial markets of the United States is such as to make it, in the
reasonable judgment of the Representatives, impracticable to market the
Shares.
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements
of the Company or its officers and of the Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless
of any investigation made by or on behalf of any Underwriter or the Company
or any of the officers, directors or controlling persons referred to in
Section 8 hereof, and will survive delivery of and payment for the Shares.
The provisions of Section 6 and 8 hereof and this Section 11 shall survive
the termination or cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be
mailed, delivered or telegraphed and confirmed to them, at the address
specified in Schedule I hereto, with a copy to: [______] or, if sent to the
Company, will be mailed, delivered or telegraphed and confirmed to it at
000 Xxxx Xxxxxx XX, Xxxxx Xxxxxx, Xxxxxxxx 00000, attention of the
Secretary, with a copy to each of: Xxxxxx Xxxxxxxx & Xxxx LLP, 000 Xxxx
Xxxxxx XX, Xxxxx 000, Xxxxx Xxxxxx, Xxxxxxxx 00000, attention: Xxxxxx X.
Xxxxx.
13. Successors. This Agreement will inure to the benefit of and be
binding upon the parties and their respective successors and the officers
and directors and controlling persons referred to in Section 8, and no
other person will have any right or obligation hereunder.
14. Applicable Law. This Agreement will be governed by and
construed in accordance with the internal laws of the State of New York,
without giving effect to principles of conflict of laws.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding
agreement among the Company and the several Underwriters.
Very truly yours,
OLD KENT FINANCIAL CORPORATION
By:
Its:
The foregoing Agreement is hereby confirmed and accepted as of the date
specified in Schedule I hereto.
By: [Name of Representatives]
By:__________________________
For themselves and the other several Underwriters, if any, named in
Schedule II to the foregoing Agreement.
-23-
SCHEDULE I
(Common Stock)
Underwriting Agreement dated ___________, 199_
Registration Statement No. 333-
Representatives:
Address of Representatives:
Title, Purchase Price and Description of Shares:
Title:
Purchase price (include type of funds, if applicable): ____________ in
federal (same day) funds or wire transfer to an account previously
designated to the Representatives by the Company, or if agreed to by
the Representatives and the Company, by certified or official bank
check or checks.
Other provisions:
Closing Date, Time and Location: ____________________
Additional items to be covered by the letter from Xxxxxx Xxxxxxxx LLP
delivered pursuant to Section 5(e) at the time this Agreement is
executed:
SCHEDULE II
(Common Stock)
Principal Amount of
Initial Shares to
Underwriters be Purchased
------------ ------------------
SCHEDULE III
_________ Shares
OLD KENT FINANCIAL CORPORATION
PRICING AGREEMENT
Common Stock
New York, New York
__________ __, 199_
______________________,
as Representative of the several Underwriters
Dear Sirs:
Reference is made to the Underwriting Agreement, dated
_______________, 199_ (the "Underwriting Agreement"), relating to the
purchase by the several Underwriters named in Schedule I thereto, for whom
you are acting as representatives (the "Representatives"), of the above
shares of Common Stock (the "Initial Shares"), of Old Kent Finacial
Corporation (the "Company").
We confirm that the Closing Time (as defined in Section 2 of the
Underwriting Agreement) shall be at 10:30 A.M., New York City time, on
__________ __, 199_ at the offices of __________.
Pursuant to Section 2 of the Underwriting Agreement, the Company
agrees with each Underwriter as follows:
1. The initial public offering price per share for the Initial
Shares, determined as provided in said Section 2, shall be $__.__.
2. The purchase price per share for the Initial Shares to be paid by
the several Underwriters shall be $__.__, being an amount equal to the
initial public offering price set forth above less $_.__ per share.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a
binding agreement between the Underwriters and the Company in accordance
with its terms.
Very truly yours,
OLD KENT FINANCIAL CORPORATION
By:_____________________________________
Its __________________________________
CONFIRMED AND ACCEPTED:
as of the date first above written:
By: ___________________________
By:____________________________
For themselves and as Representatives of the other Underwriters named in
Schedule A hereto.
SCHEDULE A
[Underwriters]
