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EXHIBIT 1.2
__________ Shares*
AMERICAN PHYSICIANS CAPITAL, INC.
(a Michigan corporation)
Common Stock
(no par value)
UNDERWRITING AGREEMENT
__________________, 2000
ABN AMRO INCORPORATED
[Name(s) of Co-Manager(s)]
As Representatives of the
several Underwriters named
in Schedule I hereto
c/o ABN AMRO Incorporated
1290 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
Pursuant to the terms of this Agreement, American Physicians Capital,
Inc., a Michigan corporation (the "Company") proposes, subject to the terms and
conditions set forth herein, to issue and sell an aggregate of _____________
shares of Common Stock, no par value per share (the "Common Stock"), of the
Company to the several underwriters named in Schedule I hereto (collectively,
the "Underwriters"). The Company has agreed to sell to the several Underwriters,
upon the terms and conditions set forth in Section 2 hereof, up to an additional
____________ shares of Common Stock. The aggregate of ___________ shares to be
sold by the Company are herein called the "Firm Shares" and the aggregate of
___________ additional shares to be sold by the Company are herein called the
"Additional Shares." The Firm Shares and the Additional Shares are hereinafter
collectively referred to as the "Shares." ABN AMRO Incorporated and
________________ are acting individually and as representatives of the several
Underwriters and in such capacity are hereinafter referred to as the
"Representatives."
The Company was formed in connection with a Plan of Conversion dated
June 28, 2000 (together with any amendments thereto, the "Plan of Conversion"),
pursuant to which Mutual Insurance Corporation of America, a Michigan mutual
insurance company ("MICOA"), is converting from a mutual insurance company to
stock company form (the "Conversion"). Upon consummation of the Conversion, the
Company will become the holding company for MICOA
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* Plus an option to purchase up to ________ Additional Shares to cover
over-allotments.
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and its subsidiaries. Contemporaneously with the offer and sale of the Shares,
the Company is offering shares of its Common Stock in (i) a subscription
offering (the "Subscription Offering") pursuant to nontransferable subscription
rights being granted to eligible policyholders of MICOA and to certain officers
and directors of the Company and MICOA, all on the terms and subject to the
conditions set forth in Article V of the Plan of Conversion, and (ii) a "best
efforts" underwritten offering (the "Best Efforts Offering," and together with
the Subscription Offering, the "Subscription and Best Efforts Offerings") which
is being made to certain members of the general public as described in Section
6.1 of the Plan of Conversion, all on the terms and subject to the conditions
set forth in the Plan of Conversion.
Prior to the purchase and public offering of the Shares by the several
Underwriters, the Company and the Representatives shall enter into an agreement
substantially in the form of Exhibit A hereto (the "Pricing Agreement"). The
Pricing Agreement may take the form of an exchange of any standard form of
written telecommunication between the Company and the Representatives and shall
specify such applicable information as is indicated in Exhibit A hereto. The
offering of the Shares will be governed by this Agreement, as supplemented by
the Pricing Agreement. From and after the date of the execution and delivery of
the Pricing Agreement, this Agreement shall be deemed to incorporate the Pricing
Agreement.
The Company is advised by the Representatives that the Underwriters
have agreed to make a public offering of their respective portions of the Shares
as soon after the Registration Statement has become effective and the Pricing
Agreement has been executed as in the judgment of the Representatives is
advisable and to first offer the Shares upon the terms set forth in the
Prospectus.
The Company, MICOA, the Representatives and the other Underwriters
hereby agree to the following matters with respect to the purchase and sale of
the Shares:
SECTION 1. REPRESENTATIONS AND WARRANTIES. (a) The Company and MICOA jointly and
severally represent and warrant to the Underwriters as set forth in this Section
1. Unless the context otherwise requires, references in this Agreement to
"Subsidiaries" refers to MICOA and each of its direct and indirect majority
owned corporations and limited liability companies which will be direct or
indirect subsidiaries of the Company immediately after the Effective Date.
(i) The Company has prepared and filed with the
Securities and Exchange Commission (the "Commission") in accordance
with the provisions of the Securities Act of 1933, as amended, and the
rules and regulations of the Commission thereunder (collectively, the
"Act"), a registration statement on Form S-1 (File No. 333-41136),
including a preliminary prospectus, relating to the Shares and certain
amendments thereto, which registration statement has been declared
effective. The Company will next file with the Commission one of the
following: (A) a post-effective amendment to such registration
statement containing the form of final prospectus, (B) a final
prospectus in accordance with Rules 430A and 424(b) under the Act, or
(C) a term sheet ("Term Sheet') as described in and in accordance with
Rules 434 and 424(b) under the Act. As filed, the final prospectus, if
one is used, or the Term Sheet and the latest Preliminary Prospectus,
if a final prospectus is not used, shall include all Rule 430A
Information (as defined below). There have been or will promptly be
delivered to you three signed
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copies of such registration statement and amendments, three copies of
each exhibit filed therewith, and conformed copies of such registration
statement and amendments (but without exhibits) and of the related
preliminary prospectus or prospectuses and final forms of prospectus or
Term Sheet, if a Term Sheet is used, for each of the Underwriters. The
term "Registration Statement" as used in this Agreement shall mean such
registration statement at the time such registration statement becomes
effective and, in the event any amendment thereto becomes effective
prior to the Closing Date (as hereinafter defined), shall also mean
such registration statement as so amended; provided, however, that such
term shall also include all Rule 430A Information deemed to be included
in such registration statement at the time such registration statement
becomes effective as provided by Rule 430A and, if a Term Sheet is
used, shall also include all information deemed to be included in such
registration statement at the time such registration statement becomes
effective as provided by Rule 434; provided, further, that if the
Company files a registration statement under the Act to register a
portion of the Shares and relies on Rule 462(b) for such registration
statement to become effective upon filing with the Commission (the
"Rule 462 Registration Statement"), then any reference to "Registration
Statement" herein shall be deemed to be to both the registration
statement referred to above (No. 333-41136) and the Rule 462
Registration Statement, as each such registration statement may be
amended pursuant to the Act. The term "Preliminary Prospectus" as used
in this Agreement shall mean any preliminary prospectus relating to the
Shares filed with the Commission under the Act and the rules and
regulations thereunder, including any preliminary prospectus included
in the Registration Statement at the time it becomes effective or at
any time thereafter that omits Rule 430A Information. The term
"Prospectus" as used in this Agreement shall mean: (X) the prospectus
relating to the Shares in the form in which it is first filed with the
Commission pursuant to Rule 424(b) under the Act; (Y) if a Term Sheet
is not used and no filing pursuant to Rule 424(b) under the Act is
required, the form of final prospectus included in the Registration
Statement at the time the Registration Statement becomes effective; or
(Z) if a Term Sheet is used in lieu of a prospectus, the Term Sheet in
the form in which it is first filed with the Commission pursuant to
Rule 424(b) under the Act, together with the latest Preliminary
Prospectus included in the Registration Statement at the time it
becomes effective (such Term Sheet and Preliminary Prospectus are
sometimes collectively referred to herein as the "Rule 434
Prospectus"). The term "Rule 430A Information" as used in this
Agreement shall mean information with respect to the Shares and the
offering thereof permitted to be omitted from the Registration
Statement when it becomes effective pursuant to Rule 430A under the
Act. The Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission thereunder are hereinafter collectively
referred to as the "Exchange Act."
(ii) Neither the Commission nor any other court or other
governmental agency or body has issued any order preventing or
suspending the use of the Preliminary Prospectus, and each Preliminary
Prospectus complied in all material respects when so filed with the
requirements of the Act (except to the extent that, in conformity with
the Act, such Preliminary Prospectus is subject to completion).
(iii) The Registration Statement in the form in which it
became effective and also in such form as it may be when the Pricing
Agreement is executed or any post-
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effective amendment to the Registration Statement shall become
effective, and the Prospectus when and in the form last filed with the
Commission as part of the Registration Statement prior to or after
effectiveness or, if applicable, first filed pursuant to Rule 424(b)
under the Act, and when any supplement or amendment thereto is filed
with the Commission, each will comply in all material respects with the
requirements of the Act, will not at any such time 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 under which they were made, not misleading.
This representation and warranty does not apply to statements in or
omissions from the Registration Statement or the Prospectus (or any
supplement or amendment thereto) made in reliance upon and in
conformity with information relating to any Underwriter furnished to
the Company in writing by or on behalf of such Underwriter through the
Representatives specifically for use in the Registration Statement.
(iv) There is no contract or other document of a
character required to be described in the Registration Statement or
Prospectus or to be filed as an exhibit to the Registration Statement
which is not described or filed as required.
(v) The accountants who have expressed their opinions
with respect to certain of the financial statements of the Company
included in the Registration Statement and the Prospectus, are
independent public accountants as required by the Act.
(vi) The consolidated financial statements, together
with the notes thereto, of the Company included in the Registration
Statement and the Prospectus comply in all material respects with the
Act and present fairly the consolidated financial position of the
Company as of the dates indicated, and the consolidated results of
operations, cash flows and changes in financial position of the Company
for the periods specified; and the supporting schedules included in the
Registration Statement present fairly the information required to be
stated therein. Such financial statements have been prepared in
conformity with generally accepted accounting principles applied on a
consistent basis throughout the entire period involved except to the
extent disclosed therein. The pro forma financial statements and other
pro forma information included in the Prospectus present fairly the
information shown therein, have been prepared in accordance with
generally accepted accounting principles and the Commission's rules and
guidelines with respect to pro forma financial statements and other pro
forma information, have been properly compiled on the pro forma basis
described therein, and, in the opinion of the Company, the assumptions
used in the preparation thereof are reasonable and the adjustments used
therein are appropriate under the circumstances.
(vii) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
the State of Michigan, with full corporate power and authority to own,
lease and operate its properties and conduct its business as described
in the Registration Statement and Prospectus. The Company is duly
qualified to do business as a foreign corporation and in good standing
in each jurisdiction in which the ownership or leasing of its
properties or the conduct of its business requires such qualification,
except in any such case in which the failure to so qualify or be in
good standing would not have a material adverse effect upon the
business of the Company and
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its Subsidiaries, taken as a whole; and no proceeding of which the
Company or MICOA has knowledge has been instituted in any such
jurisdiction, revoking, limiting or curtailing, or seeking to revoke,
limit or curtail, such power and authority or qualification.
(viii) MICOA has been duly organized and is validly
existing as a mutual insurance company in good standing under the laws
of the State of Michigan, with full corporate power and authority to
own, lease and operate its properties and conduct its business as
described in the Registration Statement and Prospectus. MICOA is duly
qualified to do business as a foreign insurer and in good standing in
each jurisdiction in which the ownership or leasing of its properties
or the conduct of its business requires such qualification, except in
any such case in which the failure to so qualify or be in good standing
would not have a material adverse effect upon the business of the
Company and its Subsidiaries, taken as a whole; and no proceeding of
which the Company or MICOA has knowledge has been instituted in any
such jurisdiction, revoking, limiting or curtailing, or seeking to
revoke, limit or curtail, such power and authority or qualification.
Immediately following the Effective Date (as hereinafter defined),
MICOA will be duly organized and validly existing as a stock insurance
company in good standing under the laws of the State of Michigan.
(ix) Except for SURF (Barbados) Ltd., which would
require governmental approval to commence operations, and except as
disclosed in the Registration Statement and Prospectus, each of the
Subsidiaries has been duly organized and is validly existing and in
good standing under the laws of its jurisdiction of organization, with
full power and authority to own, lease and operate its properties and
conduct its business as described in the Registration Statement and
Prospectus. Each of the Subsidiaries is duly qualified to do business
as a foreign corporation in good standing in each jurisdiction in which
the ownership or leasing of its properties or the conduct of its
business requires such qualification, except in any such case in which
the failure to so qualify or be in good standing would not have a
material adverse effect on the business of the Company and its
Subsidiaries, taken as a whole. Except for the capital stock of the
Subsidiaries and except as otherwise described in the Prospectus, the
Company does not own any capital stock of, or other securities
evidencing an equity interest in, any corporation, partnership or other
entity (other than minority interests in real property partnerships or
limited liability companies). All of the issued and outstanding shares
of capital stock of the Subsidiaries have been duly and validly
authorized and issued, are fully paid and non-assessable, and except as
described in the Prospectus, are directly or indirectly owned by MICOA
(other than preferred stock issued by MICOA Indemnity (Bermuda) Ltd. in
the ordinary course of its business), free and clear of any security
interest, claim, lien, encumbrance or adverse interest of any nature.
Except as described in the Prospectus, there are no outstanding
subscriptions, rights, warrants or options to acquire, or instruments
convertible into or exchangeable for, any shares of capital stock of
any of the Subsidiaries.
(x) The Company has an authorized and outstanding
capitalization as set forth in the Prospectus and the Shares conform to
the description thereof contained in the Prospectus. All of the issued
and outstanding shares of Common Stock have been duly
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authorized, validly issued and are fully paid and non-assessable and
free of preemptive or other similar rights and there are no options,
agreements, contracts or other rights in existence to acquire from the
Company any shares of Common Stock, except as set forth in the
Prospectus.
(xi) The Shares to be sold by the Company pursuant to
this Agreement and the Pricing Agreement have been duly authorized and,
when issued and paid for in accordance with this Agreement and the
Pricing Agreement, will be validly issued, fully paid and
non-assessable; the holders of the Shares will not be subject to
personal liability by reason of being such holders; there are no
holders of Shares of the Company having rights, contractual or
otherwise, to registration thereof or preemptive rights to purchase
Common Stock; except as disclosed in the Registration Statement and
Prospectus, all corporate actions required to be taken for the
authorization, issue and sale of the Shares have been validly and
sufficiently taken; and upon delivery of and payment for such Shares
hereunder, the Underwriters will acquire valid and marketable title
thereto, free and clear of any security interest, claim, lien,
encumbrance or adverse interest of any nature.
(xii) Since the respective dates as of which information
is given in the Registration Statement and the Prospectus, except as
otherwise stated or contemplated therein, there has not been (A) any
material adverse change in the condition (financial or otherwise),
earnings, affairs, business or prospects of the Company and its
Subsidiaries, taken as a whole, whether or not arising in the ordinary
course of business, (B) any material transaction entered into, or any
material liability or obligation incurred, by the Company or its
Subsidiaries other than in the ordinary course of business, (C) any
change in the capital stock, or material increase in the short-term
debt or long-term debt of the Company or its Subsidiaries, or (D) any
dividend or distribution of any kind declared, paid or made by the
Company or its Subsidiaries on its capital stock other than dividends
by MICOA to the Company.
(xiii) The Company and each of its Subsidiaries have
good and marketable title to all properties and assets reflected as
owned in the financial statements hereinabove described or described in
the Prospectus as owned by it or them, free and clear of all liens,
charges, encumbrances or restrictions of any kind, except such as are
referred to in such financial statements or the Prospectus or which are
not material to the business of the Company and its Subsidiaries, taken
as a whole; all of the leases and subleases material to the business of
the Company and its Subsidiaries, taken as a whole, or under which the
Company or its Subsidiaries holds properties are in full force and
effect; and neither the Company nor any of its Subsidiaries has
received any notice of any material claim of any sort which has been
asserted by anyone adverse to the rights of the Company or any
Subsidiary as owner or as lessee or sublessee under any of the leases
or subleases mentioned above, or affecting or questioning the rights of
the Company or such Subsidiary to the continued possession of the
leased or subleased premises under any such lease or sublease.
(xiv) Neither the Company nor any of its Subsidiaries is
in default in the observance of any provision of its Articles of
Incorporation or by-laws, or in the
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performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which it is a party or by
which it or any of its properties may be bound, the effect of which
could be materially adverse to the condition (financial or otherwise),
earnings, affairs, business or prospects of the Company and its
Subsidiaries, taken as a whole.
(xv) The execution and delivery of this Agreement and
the Pricing Agreement, the issuance and delivery of the Shares, the
consummation of the transactions contemplated herein and in the
Registration Statement and compliance with the terms of this Agreement
and the Pricing Agreement have been duly authorized by all necessary
corporate action and will not result in any violation of the Articles
of Incorporation or by-laws of the Company or any of its Subsidiaries,
and will not result in a breach of any of the terms or provisions of,
or constitute a default under, or result in the creation or imposition
of any lien, charge, encumbrance or restriction of any kind upon any
property or assets of the Company or any of its Subsidiaries under any
material contract, indenture, mortgage, loan agreement, note, lease or
other agreement or instrument to which the Company or any of its
Subsidiaries is a party or by which the Company or any of its
Subsidiaries, or any of their respective properties, is bound, or any
existing applicable law, rule, regulation, judgment, order or decree of
any government, governmental instrumentality or court, domestic or
foreign, having jurisdiction over the Company or any of its
Subsidiaries or any of their respective properties which breach or
default would have a material adverse effect upon the business of the
Company and its Subsidiaries, taken as a whole. Except for approval of
an exemption application filed with the Illinois Department of
Insurance, no approval, authorization or consent of any court,
regulatory body, administrative agency or other governmental body
having jurisdiction over the Company or any of its Subsidiaries is
required in connection with the sale of the Shares to the Underwriters,
except such as may be required under the Act, state Blue Sky laws or
from the clearance of the offering with the National Association of
Securities Dealers, Inc. (the "NASD").
(xvi) There is no action, suit or proceeding before or
by any court or governmental agency or body, domestic or foreign, or
any arbitrator or arbitration panel, now pending or, to the knowledge
of the Company or MICOA, threatened against or affecting the Company or
any of its Subsidiaries which could result in any material adverse
change to the condition (financial or otherwise), earnings, affairs,
business or prospects of the Company and its Subsidiaries, taken as
whole; and there is no decree, judgment or order of any kind in
existence against or restraining the Company or any of its
Subsidiaries, or any of its or their respective officers, employees or
directors, from taking any actions of any kind in connection with the
business of the Company or any such Subsidiary.
(xvii) The Company and each of its Subsidiaries own or
possess or have obtained all material governmental licenses, permits,
consents, orders, approvals and other authorizations necessary to lease
or own, as the case may be, and to operate their properties and to
carry on their businesses as presently conducted, except in any such
case in which the failure to have or obtain such governmental licenses,
permits, consents, orders, approvals and other authorizations would not
have a material adverse effect upon
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the business of the Company and its Subsidiaries, taken as a whole, and
neither the Company nor any such Subsidiary has received any notice of
proceedings related to revocation or modification of any such licenses,
permits, consents, orders, approvals or authorizations which singly or
in the aggregate, if the subject of an unfavorable ruling or finding,
would be materially adverse to the condition (financial or otherwise),
earnings, affairs, business or prospects of the Company and its
Subsidiaries, taken as a whole. Without limiting the generality of the
foregoing, each of MICOA and the other Subsidiaries that are insurance
companies (the "Insurance Company Subsidiaries") has all requisite
power and authority to carry on an insurance business pursuant to and
to the extent of the certificates of authority issued them under the
laws of the jurisdictions in which they conduct their insurance
business and each has all requisite power, authority and licenses to
carry on their respective businesses. Except as disclosed in the
Prospectus, the authority of each of the Insurance Company Subsidiaries
to write the classes and lines of insurance authorized by such
licenses, certificates, permits and other authorizations and described
in the Prospectus is unrestricted and none of the Insurance Company
Subsidiaries is a party to any agreement, formal or informal, with any
regulatory official or other person limiting the ability of any of them
from making full use of the licenses, certificates, permits and other
authorizations issued to them or requiring them to comply with
regulatory standards or procedures or requirements different from those
applicable to companies with comparable or similar licenses,
certificates, permits and other authorizations, except when such
restriction, limitation or requirement would not have a material
adverse effect on the financial condition, results of operations or
business affairs of the Company and its Subsidiaries, taken as a whole.
(xviii) Except with respect to matters described in
(xx), (xxvi) and (xxviii) of this Section 1 (which matters shall be
governed by such provisions), the conduct of the business of the
Company and each of its Subsidiaries is in compliance with all
applicable federal, state and local laws and regulations that regulate
the business of the Company or such Subsidiaries, where the effect of
the failure to comply would be materially adverse to the condition
(financial or otherwise), earnings, affairs, business or prospects of
the Company and its Subsidiaries, taken as a whole.
(xix) The Company together with its Subsidiaries, owns
or possesses, or can acquire on reasonable terms, all right, title and
interest in or to, or has duly licensed from third parties, all
patents, trademarks, service marks, copyrights, trade names, trade
secrets and other proprietary rights ("Trade Rights") necessary to
conduct the business now or proposed to be conducted by it, and neither
the Company nor any of its Subsidiaries has received any notice of, and
has no knowledge of, infringement of or conflict with asserted rights
of others with respect to any such Trade Rights which, singly or in the
aggregate, if the subject of any unfavorable decision, ruling or
finding, would be materially adverse to the condition (financial or
otherwise), earnings, affairs, business or prospects of the Company and
its Subsidiaries, taken as a whole.
(xx) The Company and its Subsidiaries have filed all tax
returns required to be filed and have paid all taxes which were payable
pursuant to said returns or any assessments with respect thereto, other
than any tax returns which the Company or any such Subsidiary is
contesting in good faith or which are not material to the Company and
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its Subsidiaries, taken as a whole, and there is no tax deficiency that
has been, or to the knowledge of the Company or MICOA might be,
asserted against the Company or any of its properties or assets that
would or could be expected to have a material adverse affect upon the
condition (financial or otherwise) or results of operations of the
Company and its Subsidiaries, taken as a whole.
(xxi) This Agreement has been duly executed and
delivered by each of the Company and MICOA.
(xxii) The Company has filed a registration statement
pursuant to Section 12(g) of the Exchange Act to register the Common
Stock thereunder, has filed an application to list the Shares on the
Nasdaq National Market System and has received notification that the
listing has been approved, subject to notice of issuance or sale of the
Shares, as the case may be.
(xxiii) None of the Company nor any of the Subsidiaries
is, and none intends to conduct its business in a manner in which it
would become, an "investment company" as defined in Section 3(a) of the
Investment Company Act of 1940, as amended (the "Investment Company
Act").
(xxiv) All offers and sales of the Company's capital
stock prior to the date hereof were at all relevant times exempt from
the registration requirements of the Act and were duly registered with,
or the subject of an available exemption from, the registration
requirements of the applicable state securities or Blue Sky laws.
(xxv) Except as disclosed in the Registration Statement
and the Prospectus, no transaction has occurred between or among the
Company or any of its Subsidiaries, on the one hand, and any of their
officers or directors or any affiliate or affiliates of any such
officer or director, on the other hand, that is required to be so
disclosed, including, but not limited to, any outstanding loans,
advances or guaranties of indebtedness by the Company or any such
Subsidiary to or for the benefit of any of their affiliates, or any of
the officers or directors of the Company or any such Subsidiary, or any
family member of any of them.
(xxvi) Neither the Company nor any Subsidiary has,
directly or indirectly, at any time (A) made any contributions to any
candidate for foreign political office, or if made, failed to disclose
fully any such contribution made in violation of law, or (B) made any
payment to any state, federal or foreign governmental officer or
official, or other person charged with similar public or quasi-public
duties, other than payments or contributions required or allowed by
applicable law. The Company's internal accounting controls and
procedures are sufficient to cause the Company to comply in all
material respects with the Foreign Corrupt Practices Act of 1977, as
amended.
(xxvii) RP Financial, LC, who is referred to and whose
Valuation Analysis Letter appears in the Prospectus, was, as of the
date of such Letter, and is, as of the date hereof, an independent
appraiser with respect to the Company and MICOA.
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(xxviii) The Company and each of its Subsidiaries (A)
are in compliance with any and all applicable foreign, federal, state
and local laws and regulations relating to the protection of human
health and safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants ("Environmental Laws"), (B) have
received all permits, licenses or other approvals required of them
under applicable Environmental Laws to conduct their respective
businesses and (C) are in compliance with all terms and conditions of
any such permit, license or approval, except where such noncompliance
with Environmental Laws, failure to receive required permits, licenses
or other approvals or failure to comply with the terms and conditions
of such permits, licenses or approvals would not, singly or in the
aggregate, have a material adverse effect on the Company and its
Subsidiaries, taken as a whole.
(xxix) The Company has not taken and will not take,
directly or indirectly, any action designed to cause or result in, or
that has constituted or might reasonably be expected to constitute, the
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares.
(xxx) The Company and each of its Subsidiaries maintain
a system of internal accounting controls sufficient to provide
reasonable assurance that (A) transactions are executed in accordance
with management's general or specific authorizations; (B) transactions
are recorded as necessary to permit preparation of financial statements
in conformity with generally accepted accounting principles and to
maintain asset accountability; (C) access to assets is permitted only
in accordance with management's general or specific authorization; and
(D) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
(xxxi) In connection with the Conversion, the Company
and MICOA have made all required filings under applicable insurance
holding company statutes required to have been made at or prior to the
Effective Date, and have received approvals of, or are exempt in
respect of, acquisition of control and/or affiliate transactions in
each jurisdiction in which such filings, approvals or exemptions are
required to have been received at or prior to the Effective Date,
except where the failure to have made such filings or receive such
approvals or exemptions in any such jurisdiction would not, singly or
in the aggregate, have a material adverse effect on the Company and its
Subsidiaries, taken as a whole; the Insurance Company Subsidiaries are
each in compliance with, and each conducts its businesses in conformity
with, all applicable insurance laws and regulations, except where the
failure to so comply or conform would not have a material adverse
effect on the Company and its Subsidiaries, taken as a whole.
(xxxii) The Plan of Conversion has been duly adopted by
the required vote of the Board of Directors of MICOA in compliance with
the applicable requirements of Chapter 59 of the Michigan Insurance
Code (the "Conversion Statute") and was submitted to the Commissioner
of the Office of Financial and Insurance Services of the State of
Michigan (the "Commissioner") in the manner, and accompanied by all
information, required by the Conversion Statute and conforms in all
material respects to the requirements of the laws of the State of
Michigan applicable to the reorganization of a
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mutual insurance company into a stock insurance company and any
applicable published rules, regulations or guidelines of the
Commissioner in respect thereof; on September 8, 2000 the Commissioner
issued an order approving the Plan of Conversion and on ___________,
2000 the Commissioner issued an order approving an amendment thereto;
MICOA will hold a special meeting of policyholders on _______________,
2000 in order to seek approval of the Plan of Conversion from Eligible
Policyholders (as defined in the Plan of Conversion) in accordance with
applicable provisions of the Michigan Insurance Code and the Articles
of Incorporation and Bylaws of MICOA; the approval of the Commissioner
has not been rescinded or otherwise withdrawn; no other approvals are
required to be obtained under applicable law for the effectiveness of
the Plan of Conversion (the date of such effectiveness, the "Effective
Date"); on the Effective Date, the Plan of Conversion will become
effective in accordance with its terms and all aspects of the
Conversion to have been completed on or prior to the Effective Date
will be completed in accordance with the Plan of Conversion and
Michigan law; and prior to or contemporaneously with the Closing Date
each of the actions required to occur and conditions required to be
satisfied on or prior to the Effective Date pursuant to the
Commissioner's order or the Plan of Conversion will have occurred or
have been satisfied.
(xxxiii) The proxy statement mailed to policyholders
(the "Proxy Statement"), as of its date and as of the date of the vote
of the Eligible Policyholders, did not and will not contain any 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 under which they were made, not misleading.
(b) Any certificate signed by any officer of the Company or
MICOA and delivered to the Underwriters or to counsel for the Underwriters shall
be deemed a representation and warranty by the Company or MICOA, as applicable,
to the Underwriters as to the matters covered thereby.
SECTION 2. AGREEMENT TO SELL AND PURCHASE.
(a) Subject to such adjustments to eliminate any fractional
share sales or purchases as the Representatives in their discretion may make,
(i) the Company hereby agrees to issue and sell to the Underwriters an aggregate
of ___________ Firm Shares, and (ii) on the basis of the representations,
warranties and agreements of the Company herein contained and subject to the
terms and conditions set forth herein, each Underwriter agrees, severally and
not jointly, to purchase from the Company, at the purchase price per Share set
forth in the Pricing Agreement (the "Purchase Price per Share"), the number of
Firm Shares set forth opposite the name of such Underwriter in Schedule I hereto
(or such number of Firm Shares as such Underwriter shall be obligated to
purchase pursuant to the provisions of Section 9 hereof).
(b) The Company agrees to sell to the Underwriters and, on the
basis of the representations, warranties and agreements of the Company set forth
herein and subject to the terms and conditions set forth herein, the
Underwriters shall have the right to purchase, severally and not jointly, from
the Company up to _________ Additional Shares, at the Purchase Price per Share
upon delivery to the Company of the notice hereinafter referred to. Such
Additional
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Shares may be purchased solely for the purpose of covering over-allotments made
in connection with the offering of the Firm Shares. If any Additional Shares are
to be purchased, each Underwriter, severally and not jointly, agrees to purchase
from the Company the number of Additional Shares (subject to such adjustments to
eliminate fractional Shares as the Representatives may determine) which bears
the same proportion to the total number of Additional Shares to be purchased
from the Company as the number of Firm Shares set forth opposite such
Underwriter's name in Schedule I (or such number of Firm Shares increased
pursuant to the terms set forth in Section 9 hereof) bears to the total number
of Firm Shares.
SECTION 3. DELIVERY OF THE SHARES AND PAYMENT THEREFOR.
(a) Delivery to the Underwriters of the Firm Shares shall be
made against payment therefor at 9:00 a.m., New York, New York time, on the
third full business day following the date of the Pricing Agreement (the
"Closing Date") at the offices of ____________________________. The place of the
closing and the Closing Date may be varied by agreement among the
Representatives and the Company.
(b) Delivery to the Underwriters of any Additional Shares to
be purchased by the several Underwriters shall be made in New York, New York
against payment therefor at the offices of _________________________ at such
time on such date (the "Option Closing Date"), which may be the same as the
Closing Date, but shall in no event be earlier than the Closing Date, nor
earlier than three nor later than ten business days after the giving of the
notice hereinafter referred to, as shall be specified in written notice from the
Representatives to the Company of the determination to purchase a number,
specified in said notice, of Additional Shares. Said notice may be given at any
time within 30 days after the date of the execution of the Pricing Agreement.
The place of the closing and the Option Closing Date may be varied by agreement
among the Representatives and the Company.
(c) The Purchase Price per Share to be paid by the several
Underwriters for the Shares shall be an amount equal to the initial public
offering price, less an amount to be determined by agreement between the
Representatives and the Company. The initial public offering price per Share of
the Shares shall be a fixed price to be determined by agreement between the
Representatives and the Company. The initial public offering price and the
Purchase Price per Share, when so determined, shall be set forth in the Pricing
Agreement. If such prices have not been agreed upon and the Pricing Agreement
has not been executed and delivered by all parties thereto by the close of
business on the fourth business day following the date of this Agreement, this
Agreement shall terminate forthwith, without liability of any party to any other
party, unless otherwise agreed to by the Company and the Representatives and
except as otherwise provided in Section 5 hereof.
(d) Certificates for the Firm Shares and for the Additional
Shares shall be registered in such names and in such denominations as the
Representatives shall request upon at least 48 hours prior notice to the Company
preceding the Closing Date or the Option Closing Date, as the case may be. Such
certificates shall be made available to the Representatives at the office of The
Depository Trust Company, New York, New York, for inspection and packaging not
later than the first business day prior to the Closing Date or the Option
Closing Date, as the case may be. The certificates evidencing the Firm Shares
and the Additional Shares shall be
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delivered to the Representatives on the Closing Date or the Option Closing Date,
as the case may be, with any transfer taxes thereon duly paid by the Company for
the respective accounts of the several Underwriters, against payment of the
purchase price therefor by wire or other immediately available funds. It is
understood by the Company that each of the Underwriters has authorized the
Representatives, for its account, to accept delivery of, receipt for and make
payment of the purchase price for, the Shares it has agreed to purchase.
SECTION 4. AGREEMENTS OF THE COMPANY AND MICOA. The Company and MICOA each
covenants and agrees with the several Underwriters that:
(a) The Company will endeavor to advise the Representatives
promptly and, if requested by the Representatives, will confirm such advice in
writing, (i) when the Registration Statement has become effective and when any
post-effective amendment to the Registration Statement becomes effective, and of
the filing of any final prospectus or supplement or amendment to the Prospectus,
(ii) of any request by the Commission for amendments or supplements to the
Registration Statement or Prospectus or any Preliminary Prospectus or for
additional information, (iii) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or of the
suspension of qualification of the Shares for offering or sale in any
jurisdiction, or the initiation or contemplation of any proceeding for such
purposes, (iv) within the period of time referred to in paragraph (f) below, of
the happening of any event which makes any statement made in the Registration
Statement or Prospectus (as then amended or supplemented) untrue in any material
respect or which requires the making of any additions to or changes in the
Registration Statement or Prospectus (as then amended or supplemented) in order
to make the statements therein not misleading or the necessity to amend or
supplement the Prospectus to comply with the Act or any other law, and (v) of
the receipt of any communication (whether written or oral) from the Commissioner
that affects the validity of the order approving the Plan of Conversion or that
is otherwise reasonably likely to affect the offer or sale of the Shares in any
manner (including any of the disclosures made in any Prospectus). If at any time
the Commission shall issue any stop order suspending the effectiveness of the
Registration Statement, or the Commissioner shall issue any order affecting the
validity of the order approving the Plan of Conversion, the Company and MICOA
will notify the Representatives and make every reasonable effort to obtain the
withdrawal of such order at the earliest possible moment. If the Company elects
to rely on Rule 434 of the Act, the Company will prepare a Term Sheet that
complies with the requirements of Rule 434 of the Act and will provide the
Representatives with copies of the form of Rule 434 Prospectus in such numbers
as you may reasonably request and file or transmit for filing with the
Commission the form of Prospectus complying with Rule 434(c)(2) of the Act in
accordance with Rule 424(b) of the Act by the close of business in New York on
the business day immediately succeeding the date hereof. If the Company elects
not to rely on Rule 434, the Company will provide you with copies of the form of
Prospectus in such numbers as you may reasonably request and file or transmit
for filing with the Commission such Prospectus in accordance with Rule 424(b) of
the Act, by the close of business in New York on the business day immediately
succeeding the date hereof.
(b) If at any time any information shall have been omitted
therefrom in reliance upon Rule 430A under the Act, then promptly following the
execution of the Pricing Agreement, the Company will prepare and file with the
Commission, in accordance with Rule 430A and Rule
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424(b) under the Act, copies of an amended Prospectus, or, if required by Rule
430A, a post-effective amendment to the Registration Statement (including an
amended Prospectus) containing all information so omitted.
(c) Neither the Company nor any of its Subsidiaries will,
prior to the earlier of the Closing Date or termination or expiration of this
Agreement, incur any liability or obligation, direct or contingent, or enter
into any material transaction, other than in the ordinary course of business,
except as contemplated in the Prospectus, it being understood that changes in
the investment portfolio of MICOA or the Insurance Subsidiaries shall not be
prohibited hereby.
(d) The Company will give the Representatives notice of its
intention to file or prepare any amendment to the Registration Statement or Plan
of Conversion or any amendment or supplement to the Prospectus, will furnish the
Representatives with copies of any such amendment or supplement a reasonable
time prior to such proposed filing or use, and will not file or use any such
amendment or supplement to the Prospectus of which the Representatives shall
promptly after being so advised reasonably object in writing.
(e) The Company has delivered or will deliver to each of the
Underwriters, without charge, copies of each form of Preliminary Prospectus in
such quantities as they have reasonably requested or may hereafter reasonably
request. The Company consents to the use, in accordance with the provisions of
the Act and with the securities or Blue Sky laws of the jurisdictions in which
the Shares are offered by the several Underwriters and by dealers, prior to the
effective date of the Registration Statement, of each Preliminary Prospectus so
furnished by the Company.
(f) From time to time after the date hereof and during such
period as in the opinion of counsel for the Underwriters a prospectus relating
to the Shares is required by law to be delivered in connection with offers or
sales of the Shares by an Underwriter or a dealer, the Company will deliver to
each Underwriter and dealer, without charge, as many copies of the Registration
Statement, the Prospectus and each Preliminary Prospectus (and of any amendment
or supplement to such documents) as they may reasonably request. During such
period, if any event occurs which in the judgment of the Company, or in the
written opinion of counsel for the Underwriters, should be set forth in the
Prospectus in order to ensure that no part of the Prospectus includes an untrue
statement of a material fact or omits to state a material fact necessary in
order to make the statements therein, in the light of the circumstances at the
time the Prospectus is delivered to a purchaser, not misleading, the Company
will forthwith prepare, submit to the Representatives, file with the Commission
and deliver, without charge to the several Underwriters and dealers (whose names
and addresses will be furnished by the Representatives of the Company) to whom
shares have been sold by the Underwriters or to other dealers any amendments or
supplements to the Prospectus so that the statements in the Prospectus, as so
amended or supplemented, will comply with the standards set forth in this
sentence. The Company consents to the use of such Prospectus (and of any
amendments or supplements thereto) in accordance with the provisions of the Act
and with the securities or Blue Sky laws of the jurisdictions described in the
preliminary Blue Sky memorandum in which the Shares are lawfully offered by the
several Underwriters and by all dealers to whom Shares may be sold, both in
connection with the offering or sale of the Shares and for such period of time
thereafter as the Prospectus is required by law to be delivered in connection
therewith. In case
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any Underwriter is required to deliver a Prospectus (and any amendment or
supplement thereto) more than nine months after the first date upon which the
Shares are offered to the public, the Company will, upon request, but at the
expense of such Underwriter, promptly prepare and furnish such Underwriter with
reasonable quantities of a Prospectus complying with Section 10(a)(3) of the
Act.
(g) The Company will cooperate with the Representatives and
counsel for the Underwriters in connection with the registration or
qualification of the Shares for offer and sale by the several Underwriters and
by dealers under the securities or Blue Sky laws of such jurisdictions as the
Representatives may designate, will continue such registrations or
qualifications in effect so long as reasonably required for the distribution of
the Shares and will file such consents to service of process or other documents
as may be necessary in order to effect such registration or qualification;
provided that in no event shall the Company be obligated (i) to qualify to do
business in any jurisdiction where it is not now so qualified, (ii) to file any
general consent to service of process, or (iii) take any action that would
subject it to income taxation in any jurisdiction where it is not so qualified.
(h) For a period of two years after the date hereof, the
Company will furnish to the Representatives (A) as soon as available, a copy of
each report of the Company of general interest mailed to any class of its
security holders (B) copies of all reports filed with the Commission on Forms
10-K, 10-Q and 8-K and any amendment thereto or such other similar forms as may
be designated by the Commission and (C) as soon as practicable following the
release thereof, a copy of each press release in respect of the Company.
(i) The Company will make generally available to its security
holders an earning statement of the Company, which need not be audited, covering
a twelve-month period commencing after the effective date of the Registration
Statement as soon as practicable after the end of such period, which earning
statement shall satisfy the provisions of Section 11(a) of the Act and the rules
and regulations of the Commission thereunder (including Rule 158).
(j) For a period of 180 days after the date of the final
Prospectus, the Company will not offer, sell, contract to sell or otherwise
dispose of any securities of the Company which are substantially similar to the
Shares, including but not limited to any securities which are convertible into
or exchangeable for, or that represent the right to receive such securities, in
each case without the prior written consent of the Representatives; provided,
however, that the Company may, without the prior written consent of the
Representatives, offer, sell, contract to sell or otherwise dispose of
securities of the Company (i) pursuant to the Stock Compensation Plan, or (ii)
to its 401(k) plan for the accounts of its employees as contemplated in the
Prospectus. The Company will also obtain similar agreements from each of its
officers and directors named in the Prospectus; provided, however, that such
persons shall be permitted to make gifts of shares of Common Stock to a donee
that agrees to be bound by such agreement.
(k) The Company will apply the net proceeds from the sale of
the shares to be sold by it under this Agreement and the Pricing Agreement for
the purposes set forth in the Prospectus under the caption "Use of Proceeds."
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(l) The Company will use its best efforts, subject to notice
of issuance, to cause the Shares to be approved for quotation on the NASDAQ
Stock Market.
(m) The Company and MICOA will conduct the Subscription and
Best Efforts Offerings in all material respects in accordance with the Plan of
Conversion, the Conversion Statute and all other applicable regulations,
decisions and orders, including all applicable terms, requirements and
conditions precedent to the offerings imposed upon the Company or MICOA by the
Commissioner.
(n) The Company and MICOA will take such actions and furnish
such information as are reasonably requested by the Underwriters in order for
the Underwriters to ensure compliance with the "Interpretation Relating to
Free-Riding and Withholding" of the National Association of Securities Dealers,
Inc. ("NASD")
SECTION 5. PAYMENT OF EXPENSES.
The Company and MICOA jointly and severally agree to pay, or reimburse
if paid by the Representatives, whether or not the transactions contemplated
hereby are consummated or this Agreement is terminated, all costs and expenses
incident to the performance by it of its obligations under this Agreement and
the Pricing Agreement, including, without limiting the generality of the
foregoing, (a) preparation, printing, filing and distribution (including
postage, air freight charges and charges for counting and packaging) of the
original registration statement, the Registration Statement, each Preliminary
Prospectus, the Prospectus (including any exhibits and financial statements and
any Term Sheet delivered by the Company pursuant to Rule 434 of the Act) each
amendment and/or supplement to any of the foregoing, and this Agreement, the
Pricing Agreement, the Agreement among Underwriters, Selected Dealers Agreement,
Powers of Attorney and Underwriter's Powers of Attorney and Questionnaires, (b)
furnishing to the several Underwriters and dealers copies of the foregoing
materials (provided, however, that any such copies furnished by the Company more
than nine months after the first date upon which the Shares are offered to the
public shall be at the expense of the several Underwriters or dealers so
requesting as provided in Section 4(f) above), (c) the registrations or
qualifications referred to in Section 4(g) above (including filing fees and fees
and disbursements of counsel in connection therewith) and expenses of printing
and delivering to the several Underwriters copies of the preliminary and final
Blue Sky memoranda, (d) the review of the terms of the public offering of the
Shares by the NASD (including the filing fees paid to the NASD in connection
therewith) and the reasonable fees and disbursements of counsel for the
Underwriters in connection therewith, (e) the performance by the Company of its
other obligations under this Agreement, including the fees of the Company's
counsel and accountants, (f) the issuance of the Shares and the preparation and
printing of the stock certificates representing the Shares, including any stock
issue, stamp or transfer taxes payable in connection with the original issuance
of the Shares, (g) furnishing to the several Underwriters copies of all reports
and information required by Section 4(h) above, including reasonable costs of
shipping and mailing, and (h) the designation of the Common Stock as a Nasdaq
National Market security.
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SECTION 6. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS.
The several obligations of the Underwriters to purchase the Firm Shares
hereunder are subject to the following conditions:
(a) That the Registration Statement shall have be effective as
of 1:00 p.m., New York time, on the first full business day after the date of
this Agreement and, if the Representatives and the Company have elected to rely
upon Rule 430A, the price of the Shares and any price-related or other
information previously omitted from the effective Registration Statement
pursuant to such Rule 430A shall have been transmitted to the Commission for
filing pursuant to Rule 424(b) within the prescribed time period, and, if the
Representatives and the Company have elected to rely upon a Term Sheet, such
Term Sheet shall have been transmitted to the Commission for filing pursuant to
Rule 434 and Rule 424(b) within the prescribed time period, and on or prior to
the Closing Date, the Company shall have provided evidence satisfactory to the
Representatives of such timely filing, or a post-effective amendment providing
such information shall have been promptly filed and declared effective in
accordance with the requirements of Rule 430A. No stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for the purpose shall have been instituted or shall be pending or,
to the knowledge of the Company or MICOA, shall be contemplated by the
Commission and there shall not have come to the attention of the Representatives
any facts that would cause them to believe that the Prospectus, at the time it
was required to be delivered to purchasers of the Shares, contained any untrue
statement of material fact or omitted to state any material fact necessary in
order to make the statements therein, in light of the circumstances under which
there were made, not misleading.
(b) That subsequent to the effective date of the Registration
Statement, (i) there shall not have occurred any change, or any development
involving a prospective change, in or affecting particularly the business or
properties of the Company or any of its Subsidiaries not contemplated by the
Prospectus, which, in the Representatives' opinion, as Representatives of the
several Underwriters, would materially adversely affect the market for the
Shares or make it impracticable or inadvisable to proceed with the offering or
the delivery of the Shares, as contemplated herein and in the Prospectus, or to
attempt to enforce contracts for the purchase of Shares, and (ii) the business
and operations of the Company and its Subsidiaries and shall not have been
adversely affected by strike, fire, flood, accident or other calamity (whether
or not insured).
(c) The representatives shall have received from Xxxxxx
Xxxxxxx PLLC, counsel for the Company and MICOA, a favorable opinion as to the
law of Michigan and the federal law of the United States, dated the Closing
Date, governed by and interpreted in accordance with the Legal Opinion Accord of
the American Bar Association Section of Business Law (1991) and reasonably
satisfactory to the Representatives and the Underwriters' counsel to the effect
that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
the State of Michigan, with full corporate power and authority to own,
lease and operate its properties and conduct its business as described
in the Registration Statement. Based solely upon certificates of
governmental
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authorities, the Company is duly qualified to do business as a foreign
corporation in the following states: __________, ___________
and ____________.
(ii) An opinion to the same general effect as clause (i)
of this subparagraph (c) in respect of each of MICOA and each of the
other Subsidiaries (except with respect to jurisdictions outside the
United States).
(iii) All of the issued and outstanding capital stock of
the Subsidiaries has been duly authorized and validly issued and, to
counsel's knowledge, is fully paid and non-assessable, and except as
disclosed in the Registration Statement or in the representations and
warranties in Section 1 hereof, MICOA owns directly or indirectly 100
percent of the outstanding capital stock of each Subsidiary and, to the
best knowledge of such counsel, such stock is owned free and clear of
any security interests, claims, liens, encumbrances or adverse
interests of any nature.
(iv) The issued and outstanding capital stock of the
Company has been duly authorized and validly issued and is fully paid
and non-assessable and free of preemptive rights.
(v) The authorized capitalization of the Company
consists entirely of ________ shares of Common Stock, of which, to such
counsel's knowledge, __________were issued and outstanding on the date
of the Prospectus and ________ shares of Preferred Stock, of which none
were issued and outstanding on the date of the Prospectus and all of
which conforms to the description thereof in the Registration Statement
and the Prospectus.
(vi) The certificates for the Shares to be delivered
hereunder are in due and proper form, and when duly countersigned by
the Company's transfer agent and delivered to the Representatives
against payment of the agreed consideration therefor in accordance with
the provisions of this Agreement and the Pricing Agreement, the Shares
represented thereby will be duly authorized and validly issued, fully
paid and nonassessable and free of preemptive rights and to the
knowledge of such counsel, will be free of any security interest,
claim, lien, encumbrance or adverse interest of any nature, or rights
of first refusal in favor of, stockholders with respect to any of the
Shares or the issuance or sale thereof, pursuant to the Articles of
Incorporation or by laws of the Company and, to such counsel's
knowledge, there are no contractual preemptive rights, rights of first
refusal, rights of co-sale or other similar rights which exist with
respect to any of the Shares or the issuance and sale thereof; and the
Shares to be sold hereunder have been duly and validly authorized and,
to such counsel's knowledge, qualified for inclusion on The Nasdaq
National Market, subject to notice of issuance.
(vii) This Agreement and the Pricing Agreement have been
duly and validly authorized, executed and delivered by the Company and
MICOA and are legal, valid and binding obligations of each of the
Company and MICOA, enforceable against them in accordance with their
terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights
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generally and by general principles of equity, and except as rights to
indemnity and contribution hereunder may be limited under applicable
law.
(viii) No further authorization, approval, order or
consent of any governmental authority or agency is required for the
valid issuance and sale of the Shares, except such as may be otherwise
stated in this Agreement or as required under the Act or state
securities laws as to which such counsel need express no opinion.
(ix) The execution, delivery and performance of this
Agreement and the Pricing Agreement by the Company and MICOA, the issue
and sale of the Shares, and the consummation of the transactions
contemplated hereby and thereby will not result in a breach of any of
the provisions of, or constitute a default under (A) their respective
Articles of Incorporation or by-laws or any material agreement,
franchise, license, indenture, mortgage, deed of trust or other
instrument or agreement known to such counsel and required to be filed
as an exhibit to the Registration Statement to which the Company, MICOA
or any of the Subsidiaries is a party or by which any of them is bound
or to which any of their respective properties is subject and which
breach or default would be material to the Company and the Subsidiaries
taken as a whole or (B) so far as known to such counsel, any statute,
order, rule or regulation applicable to the Company, MICOA or any of
the Subsidiaries of any court or other governmental authority or body
having jurisdiction over the Company, MICOA or any of the Subsidiaries
or any of their properties.
(x) The Registration Statement has become effective
under the Act, and, 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 are
pending or contemplated under the Act.
(xi) The Registration Statement (including the
information deemed to be part of the Registration Statement at the time
of effectiveness pursuant to Rule 430A(b), if applicable) as amended or
supplemented (except for the financial statements and notes thereto,
the financial statement schedules and other statistical or financial
data included therein as to which such counsel need express no opinion)
and the Prospectus and any supplements or amendments thereto (except
for the financial statements and notes thereto, the financial statement
schedules and other statistical or financial data included therein, as
to which such counsel need express no opinion) complied as to form in
all material respects with the requirements of the Act and the rules of
the Commission thereunder at the time it became effective, at the time
the Pricing Agreement was executed and at the Closing Date. Counsel
shall also make a statement to the following effect: (a) in passing on
the form of the Registration Statement (including the information
deemed to be part of the Registration Statement at the time of
effectiveness pursuant to Rule 430A(b), if applicable) and the
Prospectus, it has assumed the correctness and completeness of the
statements made or included therein by the Company since it did not
verify independently the accuracy or completeness of such statements,
(b) however, in the course of preparation of the Registration Statement
and the Prospectus, counsel had conferences with officials of the
Company and its independent auditors, and with representatives of the
Agent and its counsel, and also had discussions with such
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officials of the Company with a view toward a clear understanding on
their part of the requirements of the Act and the rules and regulations
with reference to the preparation of registration statements and
prospectuses, (c) counsel's examination of the Registration Statement
and the Prospectus and its discussions in the above-mentioned
conferences did not disclose to counsel any information which gives
counsel reason to believe that the Registration Statement as amended or
supplemented (except for the financial statements and notes thereto,
the financial statement schedules and other statistical or financial
data included therein as to which such counsel need express no opinion)
at the time it became effective, at the time the Pricing Agreement was
executed and at the Closing Date, contained 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 that, as of its date, the Prospectus or any amendment or
supplement thereto (except for the financial statements and notes
thereto, the financial statement schedules and other statistical or
financial data included therein as to which such counsel need express
no opinion) included or includes any untrue statement of a material
fact or omitted or omits to state any material fact necessary to make
the statements therein, in light of the circumstances in which they
were made, not misleading.
(xii) The statements in the Prospectus in the sections
captioned "The Conversion," "Description of Capital Stock,"
"Business--Insurance Regulatory Matters," and "Shares Eligible for
Future Sale," in each case to the extent that they constitute matters
of law or summaries of legal matters, documents or proceedings and
reflect a summary of the material legal matters referred to therein,
fairly and accurately present the information called for by the Act and
the applicable rules and regulations promulgated thereunder in all
material respects.
(xiii) To the knowledge of such counsel, there are no
statutes or regulations, provisions of the Michigan Business
Corporation Act or Michigan Insurance Code or any pending or threatened
litigation or governmental proceedings against the Company or its
Subsidiaries required to be described in the Prospectus which are not
so described, nor of any contracts or documents of a character required
to be described in or filed as a part of the Registration Statement
which are not described or filed as required.
(xiv) To such counsel's knowledge, except as disclosed
in the Prospectus, no person has the right, contractual or otherwise,
to cause the Company to register pursuant to the Act any shares of
capital stock of the Company, upon the issuance and sale of the Shares
to be sold by the Company to the Underwriters pursuant to this
Agreement.
(xv) Neither the Company nor any of the Subsidiaries is
an "investment company" or a person "controlled by" an "investment
company" within the meaning of the Investment Company Act.
(xvi) To such counsel's knowledge, all offers and sales
of the Company's capital stock prior to the date hereof were at all
relevant times exempt from the registration requirements of the Act and
were duly registered or the subject of an available exemption from the
registration requirements of the applicable state securities or blue
sky laws.
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(xvii) Each Insurance Company Subsidiary has all
requisite power and authority to carry on an insurance business
pursuant to and to the extent of its certificates of authority in the
manner contemplated by the Prospectus.
(xviii) The Plan of Conversion has been approved by
MICOA's Board of Directors and by the Commissioner, and no order
suspending the effectiveness of the Plan of Conversion has been issued
by the Commissioner nor, to the best of such counsel's knowledge, has
any proceeding therefor been initiated or threatened by the
Commissioner.
(xix) The Plan of Conversion complies with the
applicable requirements of the Conversion Statute, including all
documents required to be filed as exhibits thereto. The Plan of
Conversion and the Proxy Statement is, to the best of such counsel's
knowledge, truthful, accurate and complete. To the best of such
counsel's knowledge, the Company and MICOA have complied in all
material respects with the Conversion Statute and all regulations,
decisions and orders, including all terms, conditions, requirements and
provisions precedent to the Offerings imposed by the Commissioner or
any other regulatory authority upon the Company or MICOA, other than
those which the Commissioner or any such regulatory authority permits
to be completed after the Closing Time.
In rendering such opinion, such counsel may state that they are relying
upon the certificate of the officers of the Company and MICOA and the transfer
agent for the Common Stock, as to the number of shares of Common Stock at any
time or times outstanding, and that insofar as their opinion under clause (xi)
above relates to the accuracy and completeness of the Prospectus and
Registration Statement, it is based upon a general review with the Company's
representatives and independent accountants of the information contained
therein, without independent verification by such counsel of the accuracy or
completeness of such information. Such counsel may also rely upon the opinions
of other competent counsel and, as to factual matters, on the representations in
this Agreement and certificates of officers of the Company and MICOA and of
state officials, in which case their opinion is to state that they are so doing
and copies of such opinions or certificates are to be attached to the opinion
unless such opinions or certificates (or, in the case of certificates, the
information therein) have otherwise been furnished to the Representatives.
(d) That the Representatives shall have received on the
Closing Date a favorable opinion dated the Closing Date from Sidley & Austin,
counsel for the Underwriters, as to such matters as the Representatives may
reasonably require.
(e) That the Representatives shall have received letters
addressed to the Representatives and dated the date hereof and the Closing Date
from PricewaterhouseCoopers LLP, independent public accountants for the Company,
to the effect set forth in Schedule II. There shall not have been any change or
decrease specified in the letters referred to in this subparagraph which makes
it impractical or inadvisable in the judgment of the Representatives to proceed
with the public offering or purchase of the Shares as contemplated hereby.
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(f) That (i) no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been taken or, to the knowledge of the Company or MICOA,
shall be contemplated by the Commission at or prior to the Closing Date; (ii)
there shall not have been any change in the capital stock of the Company nor any
material increase in the short or long-term debt of the Company or MICOA from
that set forth or contemplated in the Registration Statement; (iii) there shall
not have been, since the respective dates as to which information is given in
the Registration Statement and the Prospectus, except as may otherwise be set
forth or contemplated in the Registration Statement and the Prospectus, any
material adverse change in the financial condition or results of operations of
the Company or MICOA; (iv) the Company and MICOA shall not have incurred any
material liabilities or obligations, direct or contingent (whether or not in the
ordinary course of business), other than those reflected in the Registration
Statement, (v) there shall not have occurred any downgrading, nor shall any
notice have been given of any intended or potential downgrading or of any review
for a possible change that does not indicate the direction of the possible
change, in the rating accorded any of the Insurance Company Subsidiaries'
financial strength or claims paying ability by A.M. Best Company, Inc., and (vi)
all of the representations and warranties of the Company and MICOA contained in
this Agreement shall be true and correct in all material respects on and as of
the date hereof and the Closing Date as if made on and as of each such date, and
the Representatives shall have received a certificate, dated the Closing Date
and signed by the chief executive officer and the principal financial officer
(or such other officers as are acceptable to the Representatives) to the effect
set forth in this Section 6(f) and in Section 6(g) hereof.
(g) That the Company and MICOA shall not have failed at or
prior to the Closing Date to have performed or complied in all material respects
with any of their respective agreements herein contained and required to be
performed or complied with by them at or prior to the Closing Date.
(h) The Shares shall have been qualified for sale or exempted
from such qualification under the securities laws of such jurisdictions as the
Representatives shall have designated prior to the time of execution of the
Pricing Agreement and such qualification or exemption shall continue in effect
to and including the Closing Date.
(i) In accordance with Michigan law, the Plan of Conversion
shall have been duly adopted by the required vote of the Board of Directors and
Eligible Policyholders of MICOA and all necessary approvals for the Plan of
Conversion to become effective will have been duly obtained from the
Commissioner and any other regulatory body, all such approvals shall be in full
force and effect and no other approvals shall be required to be obtained under
any applicable law for the effectiveness of the Plan of Conversion that are
required to be completed on or prior to the Effective Date.
(j) The Company and MICOA shall have completed in all material
respects the conditions precedent to the effectiveness of the Plan of Conversion
and the Offerings in accordance with the Plan of Conversion, the Conversion
Statute and any other applicable law.
The several obligations of the Underwriters to purchase
Additional Shares hereunder are subject to the satisfaction on and as of the
Option Closing Date of the conditions
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set forth in paragraphs (a) through (j); except that the opinions called for in
paragraphs (c) and (d) shall be revised to reflect the sale of Additional Shares
and shall be dated the Option Closing Date, if different from the Closing Date.
SECTION 7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company and MICOA, jointly and severally, agree to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of the Act or the Exchange Act from
and against any and all losses, claims, damages or liabilities, joint or
several, whatsoever (including any investigation, legal or other expenses
incurred in connection with, and any amount paid in settlement of, any action,
suit or proceeding or any claim asserted) to which such Underwriter, or such
controlling person may become subject, arising out of or based upon any untrue
statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus or the Registration Statement or the Prospectus or in any
amendment or 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 not misleading, and will reimburse
each Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such action or
claim as such expenses are incurred, except insofar as such losses, claims,
damages or liabilities arise out of or are based upon any such untrue statement
or omission or allegation thereof which has been made therein or omitted
therefrom in reliance upon and in conformity with information furnished in
writing to the Company by or on behalf of any Underwriter through the
Representatives or their counsel expressly for use therein.
(b) If any action or claim shall be brought against any
Underwriter or any person controlling such Underwriter, in respect of which
indemnity may be sought against the Company or MICOA, such Underwriter shall
promptly notify the Company and MICOA in writing, and the Company shall assume
the defense thereof, including the employment of counsel and payment of all fees
and expenses. Any Underwriter or any such person controlling such Underwriter
shall have the right to employ separate counsel in any such action and
participate in the defense thereof, but the fees and expenses of such counsel
shall be at the expense of such Underwriter or such controlling person and shall
be reimbursed as they are incurred unless (i) the Company or MICOA has agreed in
writing to pay such fees and expenses, (ii) the Company has failed to assume the
defense and employ counsel, or (iii) the named parties to any such action
(including any impleaded party) included such Underwriter or controlling person
and the Company or MICOA and such Underwriter or controlling person shall have
been advised in writing by such counsel that there may be one or more legal
defenses available to it which are different from or additional to those
available to the Company or MICOA and which may also result in a conflict of
interest (in which case if such Underwriter or controlling person notifies the
Company, the Company shall not have the right to assume the defense of such
action on behalf of such Underwriter or controlling person, it being understood,
however, that the Company and MICOA shall be permitted to participate in such
defense and 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 for all such
Underwriters and controlling persons, which firm shall be designated in writing
by the Representatives). The Company and MICOA shall not be liable for any
settlement or any such action effected without the written
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consent of the Company and MICOA, but if settled with the written consent of the
Company and MICOA, or if there shall be a final judgment for the plaintiff in
any such action and the time for filing all appeals has expired, each of the
Company and MICOA agrees to indemnify and hold harmless any Underwriter and any
such controlling person from and against any loss or liability by reason of such
settlement or judgment.
(c) Each Underwriter will severally indemnify and hold
harmless the Company and MICOA, and each of their respective directors, officers
who sign the Registration Statement and any person controlling the Company
within the meaning of the Act or the Exchange Act to the same extent as the
foregoing indemnity from the Company and MICOA to each Underwriter, but only
with respect to information relating to such Underwriter furnished in writing to
the Company or MICOA by or on behalf of such Underwriter through the
Representatives or their counsel expressly for use in the Registration
Statement, the Prospectus or any Preliminary Prospectus. If any action or claim
shall be brought or asserted against the Company or MICOA, or any of their
respective directors, such officers or any such controlling person based on the
Registration Statement, the Prospectus or any Preliminary Prospectus and in
respect of which indemnity may be sought against any Underwriter, such
Underwriter shall have the rights and duties given to the Company pursuant to
Section 7(b) hereof (except that if the Company or MICOA shall have assumed the
defense thereof, such Underwriter shall not be required to do so, but may employ
separate counsel therein and participate in the defense thereof but the fees and
expenses of such counsel shall be at the expense of such Underwriter), and the
Company and MICOA, and their respective directors, such officers, and any such
controlling person shall have the rights and duties given to the Underwriters by
Section 7(b) hereof.
(d) If the indemnification provided for in this Section 7 is
unavailable as a matter of law to any indemnified party under this Section 7 in
respect of any losses, claims, damages, liabilities or expenses referred to
therein, then the indemnifying party in lieu of indemnifying such indemnified
party thereunder, shall contribute to the amount paid or payable by damages,
liabilities or expenses (A) in such proportion as is appropriate to reflect the
relative benefits received by the Company, MICOA and the Underwriters from the
offering of the Shares or (B) if the allocation provided by clause (A) above is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (A) above but also the
relative fault of the Company, MICOA and the Underwriters in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The respective relative benefits received by the Company, MICOA and the
Underwriters shall be deemed to be in the same proportion in the case of the
Company and MICOA, as the total price paid to the Company for the Shares by the
Underwriters (net of underwriting discount but before deducting expenses), and
in the case of the Underwriters as the underwriting discount received by them
bears to the total of such amounts paid to the Company and MICOA and received by
the Underwriters as underwriting discount, in each case as contemplated by the
Prospectus. The relative fault of the Company, MICOA and the Underwriters 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, MICOA or by the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages, liabilities and expenses
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referred to in this Section shall be deemed to include, subject to the
limitations set forth in this Section, any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim.
(e) The Company, MICOA and the Underwriters agree that the
determination of contribution pursuant to this Section based on pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph
would not be just and equitable (even if the several Underwriters were treated
as one entity for such purpose). Notwithstanding the provisions of this Section,
no Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Shares underwritten by it and
distributed to the public exceeds the amount of any damages which 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 Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriter's obligations to contribute
pursuant to this Section are several in proportion to their respective
underwriting commitments and not joint.
(f) The indemnity and contribution agreements contained in
this Section and the representations and warranties of the Company and MICOA set
forth in this Agreement shall survive and shall remain operative and in full
force and effect, regardless of (i) any investigation made by or on behalf of
any Underwriter or any person controlling any Underwriter, the Company, MICOA or
any of their respective 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 or assign of an Underwriter, the
Company, MICOA or any of their respective directors or officers, and their legal
and personal representatives (or of any person controlling an Underwriter, the
Company or MICOA) shall be entitled to the benefits of the indemnity,
contribution and reimbursement agreements contained in this Section.
SECTION 8. EFFECTIVE DATE OF AGREEMENT.
This Agreement shall become effective immediately as to Sections 5, 7,
10 and 11 and as to all other provisions at 10:00 A.M., New York Time, on the
day following the date upon which the Pricing Agreement is executed and
delivered, unless such a day is a Saturday, Sunday or holiday (and in that event
this Agreement shall become effective at such hour on the business day next
succeeding such Saturday, Sunday or holiday); but this Agreement shall
nevertheless become effective at such earlier time after the Pricing Agreement
is executed and delivered as you may determine on and by notice to the Company
or by release of any Shares for sale to the public. For the purposes of this
Section, the Shares shall be deemed to have been so released upon the release
for publication of any newspaper advertisement relating to the Shares or upon
the release by you of telegrams (i) advising Underwriters that the Shares are
released for public offering, or (ii) offering the Shares for sale to securities
dealers, whichever may occur first.
SECTION 9. DEFAULT OF UNDERWRITERS.
If any one or more of the Underwriters shall fail or refuse to purchase
Firm Shares which it or they have agreed to purchase under this Agreement and
the Pricing Agreement and the
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aggregate number of Firm Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than one-tenth
of the aggregate number of Firm Shares, each non-defaulting Underwriter shall be
obligated, severally, in the proportion which the number of Firm Shares set
forth opposite its name in Schedule I bears to the aggregate number of Firm
Shares set forth opposite the names of all non-defaulting Underwriters or in
such other proportion as the Representatives may specify in accordance with the
Agreement Among Underwriters to purchase the Firm Shares which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase. If any
Underwriter or Underwriters shall fail or refuse to purchase Firm Shares and the
aggregate number of Firm Shares with respect to which such default occurs is
more than one-tenth of the aggregate number of Firm Shares and arrangements
satisfactory to the Representatives and the Company for the purchase of such
Firm Shares are not made within 36 hours after such default, this Agreement will
terminate without liability on the part of any non-defaulting Underwriter or the
Company. In any such case which does not result in termination of this
Agreement, either the Representatives or the Company shall have the right to
postpone the Closing Date, but in no event for longer than seven days, in order
that the required changes, if any, in the Registration Statement and the
Prospectus or any other documents or arrangements may be effected. Any action
taken under this paragraph shall not relieve any defaulting Underwriter from
liability in respect of any such default of any such Underwriter under this
Agreement.
SECTION 10. TERMINATION OF AGREEMENT.
This Agreement and the Pricing Agreement shall be subject to
termination by notice given by you to the Company and MICOA, if (a) after the
execution and delivery of this Agreement and the Pricing Agreement and prior to
the Closing Date (and with respect to the Additional Shares, the Option Closing
Date) (i) trading generally shall have been suspended or materially limited on
or by, as the case may be, any of the New York Stock Exchange, the American
Stock Exchange, the National Association of Securities Dealers, Inc., the
Chicago Board of Options Exchange, the Chicago Mercantile Exchange or the
Chicago Board of Trade, (ii) trading of any securities of the Company shall have
been suspended on any exchange or in any over-the-counter market, (iii) a
general moratorium on commercial banking activities in New York or in Chicago
shall have been declared by either Federal, New York or Illinois State
authorities or (iv) there shall have occurred any outbreak or escalation of
hostilities or any change in financial markets or any calamity or crisis that,
in your judgment, is material and adverse and (b) in the case of any of the
events specified in clauses (a)(i) through (iv), such event, singly or together
with any other such event, makes it, in your judgment, impracticable to market
the Shares on the terms and in the manner contemplated in the Prospectus. Notice
of such cancellation shall be given to the Company by telecopy or telephone but
shall be subsequently confirmed by letter.
SECTION 11. REIMBURSEMENT OF UNDERWRITER'S EXPENSES.
If the sale to the Underwriters of the Shares on the Closing Date is
not consummated (unless the sale of Shares is not consummated as a result of any
Underwriter's termination of this Agreement pursuant to Section 10 or as a
result of failure by any Underwriter to satisfy the conditions or to comply with
any provision hereof), the Company and MICOA jointly and severally agree to
reimburse you and the other Underwriters upon demand for all out-of-pocket
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expenses (including reasonable fees and disbursements of counsel) that shall
have been reasonably incurred by you and them in connection with the proposed
purchase and the sale of the Shares. Any such termination shall be without
liability of any party to any other party except that the provisions of this
Section 11, Section 5 and Section 7 shall at all times be effective and shall
apply.
SECTION 12. NOTICES.
Except as otherwise provided in Section 7 hereof, notice given pursuant
to any of the provisions of this Agreement shall be in writing and shall be
delivered (a) if to the Company or MICOA, at the office of MICOA at 0000 Xxxxx
Xxxxxxxx Xxxx, Xxxx Xxxxxxx, Xxxxxxxx 00000, Attention: President with a copy to
Xxxxxx Xxxxxxx PLLC, Attention: Xxxx Xxxx or (b) if to the Representatives, at
the offices of ABN AMRO Incorporated, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx
Xxxx 00000-0000, Attention: Corporate Finance Department, with a copy to Sidley
& Austin, Bank One Plaza, 00 Xxxxx Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000,
Attention: Xxxxxxx Xxxxxxx, or in any case to such other address as the person
to be notified may have requested in writing.
SECTION 13. SUCCESSORS.
The Agreement and the Pricing Agreement are made solely for the benefit
of the several Underwriters, the Company, MICOA, their respective directors and
officers and other controlling persons referred to in Section 7 hereof, and
their respective successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement or the Pricing Agreement.
The term "successors and assigns" as used in this Agreement shall not include a
purchaser from any of the several Underwriters of any of the Shares in his
status as such purchaser.
SECTION 14. REPRESENTATION OF UNDERWRITERS.
The Representatives will act for the several Underwriters in connection
with the purchase, offering and sale of the Shares, and any action taken by the
Representatives will be binding upon all the Underwriters.
SECTION 15. PARTIAL UNENFORCEABILITY.
If any section, paragraph or provision of this Agreement is for any
reason determined to be invalid or unenforceable, such determination shall not
affect the validity or enforceability of any other section, paragraph or
provision hereof.
SECTION 16. APPLICABLE LAW.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
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SECTION 17. COUNTERPARTS.
This Agreement may be signed in various counterparts which together
shall constitute one and the same instrument.
SECTION 18. ENTIRE AGREEMENT.
This Agreement represents the entire understanding of the parties
hereto with reference to the transactions contemplated hereby and supersedes any
and all other oral or written agreements heretofore made with respect to the
subject matter hereof, except for that certain letter agreement between ABN AMRO
Incorporated and the Company dated ___________, 2000 (the "Letter Agreement")
which shall not be superseded by this Agreement; provided, however, that the
indemnification provisions of this Agreement shall control as to any matter
resulting in a claim for which indemnification may be sought under both this
Agreement and the Letter Agreement. No waiver, amendment, modification or
assignment of this Agreement shall be effective unless in writing and signed by
the parties hereto.
* * * * *
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Please confirm that the foregoing correctly sets forth the agreement among the
Company and the Underwriters.
Very truly yours,
AMERICAN PHYSICIANS CAPITAL, INC.
By:
--------------------------------
Name:
Title:
MUTUAL INSURANCE CORPORATION OF
AMERICA
By:
--------------------------------
Name:
Title:
ACCEPTED AND DELIVERED AS OF
THE DATE FIRST WRITTEN ABOVE.
ABN AMRO INCORPORATED
[Name(s) of Co-Manager(s)]
Acting as Representatives of the Several
Underwriters named in Schedule I to
the Underwriting Agreement
By:
--------------------------------------
Name:
Title:
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SCHEDULE I
UNDERWRITERS
NUMBER OF
NAME FIRM SHARES
ABN AMRO Incorporated........................................
[Name(s) of Other Underwriter(s)]............................ ___________
TOTAL.........................................
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SCHEDULE II
Comfort Letter of PricewaterhouseCoopers LLP
(1) They are independent public accountants with respect to the Company
and its Subsidiaries within the meaning of the Act.
(2) In their opinion the consolidated financial statements and
schedules of the Company and its Subsidiaries included in the Registration
Statement and the consolidated financial statements of the Company from which
the information presented under the caption "Selected Historical Financial and
Operating Data" has been derived which are stated therein to have been examined
by them comply as to form in all material respects with the applicable
accounting requirements of the Act.
(3) On the basis of specified procedures (but not an examination in
accordance with generally accepted auditing standards), including inquiries of
certain officers of the Company, MICOA and each of the other Subsidiaries
responsible for financial and accounting matters as to transactions and events
subsequent to [December 31, 1999], a reading of minutes of meetings of the
stockholders and directors of the Company, the policyholders and directors of
MICOA, and the stockholders and directors of the Subsidiaries since [December
31, 1999], a reading of the latest available interim unaudited consolidated
financial statements of the Company and its Subsidiaries (with an indication of
the date thereof) and other procedures as specified in such letter, nothing came
to their attention which caused them to believe that (I) the unaudited
consolidated financial statements and the pro forma information included under
the caption "Pro Forma Data" of the Company and its Subsidiaries included in the
Registration Statement do not comply as to form in all material respects with
the applicable accounting requirements of the Act or that such unaudited
financial statements and pro forma information are not fairly presented in
accordance with generally accepted accounting principles applied on a basis
substantially consistent with that of the audited financial statements included
in the Registration Statement, and (ii) at a specified date not more than five
days prior to the date thereof in the case of the first letter and not more than
two business days prior to the date thereof in the case of the second letter,
there was any change in the capital stock or long-term debt or short-term debt
(other than normal payments) of the Company and its Subsidiaries on a
consolidated basis or any decrease in consolidated net current assets or
consolidated stockholders' equity as compared with amounts shown on the latest
unaudited balance sheet of the Company included in the Registration Statement or
for the period from the date of such balance sheet to a date not more than five
days prior to the day thereof in the case of the first letter and not more than
two business days prior to the date thereof in the case of the second letter,
there were any decreases, as compared with the corresponding period of the prior
year, in consolidated total revenues, consolidated income before income taxes or
in the total or per share amounts of consolidated net income except, in all
instances, for changes or decreases which the Prospectus discloses have occurred
or may occur or which are set forth in such letter.
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(4) They have carried out specified procedures, which have been agreed
to by the Representatives, with respect to certain information in the Prospectus
specified by the Representatives, and on the basis of such procedures, they have
found such information to be in agreement with the general accounting records of
the Company and each of its Subsidiaries.
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Exhibit A
_________ SHARES
AMERICAN PHYSICIANS CAPITAL, INC.
(a Michigan corporation)
Common Stock
(no par value)
PRICING AGREEMENT
__________, 2000
ABN AMRO Incorporated
[Name(s) of Co-Manager(s)]
Individually and as Representatives of the
Several Underwriters Named in Schedule I
to the Underwriting Agreement
c/o ABN AMRO Incorporated
1290 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
Reference is made to the Underwriting Agreement, dated _______ __,
2000 (the "Underwriting Agreement"), relating to the purchase by the several
Underwriters named in Schedule I thereto (collectively, the "Underwriters"), for
whom you are acting individually and as representatives (the "Representatives"),
of the above referenced Common Stock (the "Shares") of American Physicians
Capital, Inc. (the "Company").
Pursuant to Section 3 of the Underwriting Agreement, the Company
agrees with each of the Underwriters as follows:
1. The initial public offering price per share of the Shares
determined as provided in said Section 3 shall be $_______.
2. The purchase price per share of the 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,
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please sign and return to the Company a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement among
the Underwriters and the Company in accordance with its terms.
Very truly yours,
AMERICAN PHYSICIANS CAPITAL, INC.
By:
-----------------------------
Name:
Title:
MUTUAL INSURANCE CORPORATION OF AMERICA
By:
-----------------------------
Name:
Title:
Confirmed and Accepted, as of
the date first above written
for themselves and as
Representatives of the other
Underwriters named in the
Underwriting Agreement:
ABN AMRO INCORPORATED
[NAME(S) OF CO-MANAGER(S)]
Acting as Representatives of the
Several Underwriters named in
Schedule I to the Underwriting
Agreement
BY: ABN AMRO INCORPORATED
BY:
-----------------------------------------
2
