Exhibit 1
1,600,000 Preferred Securities
Republic Capital Trust I
_______% Cumulative Trust Preferred Securities
(Liquidation Amount of $25 per Preferred Security)
UNDERWRITING AGREEMENT
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____________ ___ , 2001
XXXXXX, XXXXXXXX & COMPANY, INCORPORATED
One Financial Plaza
000 Xxxxx Xxxxxxxx, 0xx Xxxxx
Xx. Xxxxx, Xxxxxxxx 00000
XXXX XXXXXXXX XXXXXXX, a division of
XXXX XXXXXXXX INCORPORATED
00 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
X.X. XXXXXXX & SONS, INC.
Xxx Xxxxxx Xxxxx, 00xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
As Representatives of the several Underwriters
named in Schedule I hereto
Dear Sirs:
Republic Bancorp Inc., a Michigan corporation (the "Company"), and its
financing subsidiary, Republic Capital Trust I, a Delaware business trust (the
"Trust," and hereinafter together with the Company, the "Offerors"), propose
that the Trust issue and sell to the several underwriters listed on Schedule I
hereto (the "Underwriters"), pursuant to the terms of this Agreement, 1,600,000
of the Trust's ____ % Cumulative Trust Preferred Securities, with a liquidation
amount of $25.00 per preferred security (the "Preferred Securities"), to be
issued under the Trust Agreement (as hereinafter defined), the terms of which
are more fully described in the Prospectus (as hereinafter defined). The
aforementioned 1,600,000 Preferred Securities to be sold to the Underwriters are
herein called the "Firm Preferred Securities". Solely for the purpose of
covering over-allotments in the sale of the Firm Preferred Securities, the
Offerors further propose that the Trust issue and sell to the Underwriters, at
their option, up to an additional 240,000 Preferred Securities (the "Option
Preferred Securities") upon exercise of the over-allotment option granted in
Section 1 hereof. The Firm Preferred Securities and any Option Preferred
Securities are herein collectively referred to as the "Designated Preferred
Securities". Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxx Xxxxxxxx Xxxxxxx, a
division of Xxxx Xxxxxxxx Incorporated, and X.X. Xxxxxxx & Sons, Inc. are acting
jointly as representatives of the Underwriters and in such capacity are
sometimes herein referred to as the "Representatives."
The Offerors hereby confirm as follows their agreement with each of the
Underwriters in connection with the proposed purchase of the Designated
Preferred Securities.
1. Sale, Purchase and Delivery of Designated Preferred Securities;
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Description of Designated Preferred Securities.
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(a) On the basis of the representations, warranties and agreements
herein contained, and subject to the terms and conditions herein set forth, the
Offerors hereby agree that the Trust shall issue and sell to each of the
Underwriters and each of the Underwriters agrees, severally and not jointly, to
purchase from the Trust, at a purchase price of $25.00 per security (the
"Purchase Price"), the respective number of Firm Preferred Securities set forth
opposite the name of such Underwriter in Schedule I hereto. Because the proceeds
from the sale of the Firm Preferred Securities will be used to purchase from the
Company its Debentures (as hereinafter defined and as described in the
Prospectus), the Company shall pay to each Underwriter a commission of $ ___ per
Firm Preferred Security purchased (the "Firm Preferred Securities Commission").
The Representatives may by notice to the Company amend Schedule I to add,
eliminate or substitute names set forth therein (other than to eliminate the
names of the Representatives) and to amend the number of Firm Preferred
Securities to be purchased by any firm or corporation listed thereon, provided
that the total number of Firm Preferred Securities listed on Schedule I shall
equal 1,600,000.
In addition, on the basis of the representations, warranties and
agreements herein contained and subject to the terms and conditions herein set
forth, the Trust hereby grants to the Underwriters, severally and not jointly,
an option to purchase all or any portion of the 240,000 Option Preferred
Securities, and upon the exercise of such option in accordance with this Section
1, the Offerors hereby agree that the Trust shall issue and sell to the
Underwriters, severally and not jointly, all or any portion of the Option
Preferred Securities at the same Purchase Price per security paid for the Firm
Preferred Securities. If any Option Preferred Securities are to be purchased,
each Underwriter, severally and not jointly, agrees to purchase from the Trust
that proportion (subject to adjustment as the Representatives may determine to
avoid fractional shares) of the number of Option Preferred Securities to be
purchased that the number of Firm Preferred Securities set forth opposite the
name of such Underwriter in Schedule I hereto (or such number increased as set
forth in Section 9 hereof) bears to 1,600,000. Because the proceeds from the
sale of the Option Preferred Securities will be used to purchase from the
Company its Debentures, the Company shall pay to the Underwriters a commission
of $ ___ per Option Preferred Security for each Option Preferred Security
purchased (the "Option Preferred Securities Commission"). The option hereby
granted (the "Option") shall expire thirty (30) days after the Effective Date
(as defined herein) and may be exercised only for the purpose of covering
over-allotments which may be made in connection with the offering and
distribution of the Firm Preferred Securities. The Option may be exercised in
whole or in part at any time (but not more than once) by you giving notice
(confirmed in writing) to the Company and the Trust setting forth the number of
Option Preferred Securities as to which the Underwriters are exercising the
Option and the time, date
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and place for payment and delivery of certificates for such Option Preferred
Securities. Such time and date of payment and delivery for the Option Preferred
Securities (the "Option Closing Date") shall be determined by you, but shall not
be earlier than two nor later than five full business days after the exercise of
such Option, nor in any event prior to the Closing Date (as hereinafter
defined). The Option Closing Date may be the same as the Closing Date.
Payment of the Purchase Price and the Firm Preferred Securities
Commission and delivery of certificates for the Firm Preferred Securities shall
be made at the offices of Xxxxxx, Xxxxxxxx & Company, Incorporated, One
Financial Plaza, 000 Xxxxx Xxxxxxxx, Xxxxx Xxxxx, Xx. Xxxxx, Xxxxxxxx 00000, or
such other place as shall be agreed to by you and the Offerors, at 10:00 a.m.,
St. Louis time, on the third (or, if permitted by Rule 15c6-1(c) of the
Securities Exchange Act of 1934, as amended (the "1934 Act"), not later than
12:00 p.m. on the fourth) full business day following the date of this Agreement
(the "Closing Date"), or unless postponed in accordance with the provisions of
Section 9. If the Underwriters exercise the Option to purchase any or all of the
Option Preferred Securities, payment of the Purchase Price and Option Preferred
Securities Commission and delivery of certificates for such Option Preferred
Securities shall be made on the Option Closing Date at the offices of Xxxxxx,
Xxxxxxxx & Company, Incorporated, One Financial Plaza, 000 Xxxxx Xxxxxxxx, Xxxxx
Xxxxx, Xx. Xxxxx, Xxxxxxxx 00000, or at such other place as the Offerors and you
shall determine. Such payments shall be made to an account designated by the
Trust by wire transfer of same-day funds, in the amount of the Purchase Price
therefor, against delivery by or on behalf of the Trust to you for the
respective accounts of the several Underwriters of certificates for the
Designated Preferred Securities to be purchased by the Underwriters. Delivery of
the Designated Preferred Securities may be made by credit through full FAST
transfer to the accounts at The Depository Trust Company ("DTC") designated by
the Representatives. The Designated Preferred Securities shall be represented in
the form of one or more fully registered global securities in book-entry form
registered in the name of the nominee of DTC.
Time shall be of the essence, and delivery of the certificates for the
Designated Preferred Securities at the time and place specified pursuant to this
Agreement is a further condition of the obligations of each Underwriter
hereunder.
(b) The Offerors propose that the Trust issue the Designated Preferred
Securities pursuant to an Amended and Restated Trust Agreement among Wilmington
Trust Company, as Property Trustee and Delaware Trustee, the Administrative
Trustees named therein, (collectively, the "Trustees"), and the Company, in
substantially the form heretofore delivered to the Underwriters, said Agreement
being hereinafter referred to as the "Trust Agreement". In connection with the
issuance of the Designated Preferred Securities, the Company proposes (i) to
issue its ____% Subordinated Debentures due 2031 (the "Debentures") pursuant to
an Indenture, to be dated as of _______ ___, 2001, between the Company and
Wilmington Trust Company, as indenture trustee (the "Indenture") and (ii) to
guarantee certain payments on the Designated Preferred Securities pursuant to a
Guarantee Agreement, to be dated as of _____ ___, 2001, between the Company and
Wilmington Trust Company, as guarantee trustee (the "Guarantee"), to the extent
described therein.
2. Representations and Warranties. The Offerors jointly and severally
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represent and warrant to, and agree with, each of the Underwriters that:
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(a) The reports filed with the Securities and Exchange Commission (the
"Commission") by the Company under the 1934 Act, and the rules and regulations
thereunder (the "1934 Act Regulations") at the time they were filed with the
Commission, complied as to form in all material respects with the requirements
of the 1934 Act and the 1934 Act Regulations and did not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(b) The Offerors have prepared and filed with the Commission a
registration statement on Form S-3 (File Numbers 333-_________ and 333-_______
-01) for the registration of the Designated Preferred Securities, the Guarantee
and $47,422,700 aggregate principal amount of Debentures under the Securities
Act of 1933, as amended (the "1933 Act"), including the related prospectus
subject to completion, and one or more amendments to such registration statement
may have been so filed, in each case in conformity in all material respects with
the requirements of the 1933 Act, the rules and regulations promulgated
thereunder (the "1933 Act Regulations") and the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), and the rules and regulations thereunder.
Copies of such registration statement, including any amendments thereto and any
documents incorporated by reference therein, each Preliminary Prospectus (as
defined herein) contained therein and the exhibits, financial statements and
schedules to such registration statement, as finally amended and revised, have
heretofore been delivered by the Offerors to the Representatives. After the
execution of this Agreement, the Offerors will file with the Commission (A) if
such registration statement, as it may have been amended, has been declared by
the Commission to be effective under the 1933 Act, a prospectus in the form most
recently included in an amendment to such registration statement (or, if no such
amendment shall have been filed, in such registration statement), with such
changes or insertions as are required by Rule 430A of the 1933 Act Regulations
("Rule 430A") or permitted by Rule 424(b) of the 1933 Act Regulations ("Rule
424(b)") and as have been provided to and not objected to by the Representatives
prior to (or as are agreed to by the Representatives subsequent to) the
execution of this Agreement, or (B) if such registration statement, as it may
have been amended, has not been declared by the Commission to be effective under
the 1933 Act, an amendment to such registration statement, including a form of
final prospectus, necessary to permit such registration statement to become
effective, a copy of which amendment has been furnished to and not objected to
by the Representatives prior to (or is agreed to by the Representatives
subsequent to) the execution of this Agreement. As used in this Agreement, the
term "Registration Statement" means such registration statement, as amended at
the time when it was or is declared effective under the 1933 Act, including (1)
all financial statement and related schedules and exhibits thereto, (2) all
documents (or portions thereof) incorporated by reference therein filed under
the 1934 Act, and (3) any information omitted therefrom pursuant to Rule 430A
and included in the Prospectus (as hereinafter defined); the term "Preliminary
Prospectus" means each prospectus subject to completion filed with such
registration statement or any amendment thereto including all documents (or
portions thereof) incorporated by reference therein under the 1934 Act
(including the prospectus subject to completion, if any, included in the
Registration Statement and each prospectus filed pursuant to Rule 424(a) under
the 0000 Xxx); and the term "Prospectus" means the prospectus first filed with
the Commission pursuant to Rule 424(b)(1) or (4) or, if no prospectus is
required to be filed pursuant to Rule 424(b)(1) or (4), the prospectus included
in the
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Registration Statement, in each case including the financial statement and
related schedules and all documents (or portions thereof) incorporated by
reference therein under the 1934 Act. The date on which the Registration
Statement becomes effective is hereinafter referred to as the "Effective Date."
(c) The documents incorporated by reference in the Preliminary
Prospectus or Prospectus or from which information is so incorporated by
reference, when they became effective or were filed with the Commission, as the
case may be, complied in all material respects with the requirements of the 1934
Act and the 1934 Act Regulations, and when read together and with the other
information in the Preliminary Prospectus or Prospectus, as the case may be, at
the time the Registration Statement became or becomes effective and at the
Closing Date and any Option Closing Date, did not or will not, as the case may
be, contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. As of the date that each Preliminary Prospectus was filed with the
Commission or as of the date that the Prospectus and any amendment or supplement
thereto was filed with the Commission (or, if not filed, on the date provided by
the Offerors to the Underwriters in connection with the offering and sale of the
Preferred Securities), as the case may be, no event has or will have occurred
which should have been set forth in an amendment or supplement to any of the
documents incorporated by reference in the Preliminary Prospectus or Prospectus
which has not then been set forth in such an amendment or supplement.
(d) No order preventing or suspending the use of any Prospectus (or, if
the Prospectus is not in existence, the most recent Preliminary Prospectus) has
been issued by the Commission, nor has the Commission, to the knowledge of the
Offerors, threatened to issue such an order or instituted proceedings for that
purpose. Each Preliminary Prospectus, at the time of filing thereof, (A)
complied in all material respects with the requirements of the 1933 Act and the
1933 Act Regulations and (B) did not contain an untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however,
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that this representation and warranty does not apply to statements or omissions
made in reliance upon and in conformity with information furnished in writing to
the Offerors by any of the Underwriters expressly for inclusion in the
Prospectus (which includes only the information appearing beneath the heading
"Underwriting" and the paragraph immediately following the price table on the
cover page of the Prospectus (such information referred to herein as the
"Underwriters' Information")). As of the date that each Preliminary Prospectus
was filed with the Commission or as of the date that the Prospectus and any
amendment or supplement thereto was filed with the Commission (or, if not filed,
on the date provided by the Offerors to the Underwriters in connection with the
offering and sale of the Preferred Securities), as the case may be, no event has
or will have occurred which should have been set forth in an amendment or
supplement to the Preliminary Prospectus or Prospectus which has not then been
set forth in the Preliminary Prospectus, Prospectus or such an amendment or
supplement. Each Preliminary Prospectus and the Prospectus will be identical to
the electronically transmitted copies thereof filed with the Commission pursuant
to its Electronic Data Gathering, Analysis and Retrieval ("XXXXX") system,
except to the extent permitted by Regulation S-T.
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(e) The Registration Statement has been declared effective
under the 1933 Act, and no post-effective amendment to the Registration
Statement has been filed with the Commission as of the date of this Agreement.
No stop order suspending the effectiveness of the Registration Statement has
been issued and no proceeding for that purpose has been instituted or, to the
Company's knowledge, threatened by the Commission. At the Effective Date and at
all times subsequent thereto, up to and including the Closing Date and, if
applicable, the Option Closing Date, the Registration Statement and any
post-effective amendment thereto (A) complied and will comply in all material
respects with the requirements of the 1933 Act, the 1933 Act Regulations and the
Trust Indenture Act (and the rules and regulations thereunder) and (B) did not
and will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading. At the Effective Date and at all times when the
Prospectus is required to be delivered in connection with offers and sales of
Designated Preferred Securities, including, without limitation, the Closing Date
and, if applicable, the Option Closing Date, the Prospectus, as amended or
supplemented, (A) complied and will comply in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations and the Trust
Indenture Act (and the rules and regulations thereunder) and (B) did not contain
and will not contain an untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that this representation and warranty
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does not apply to Underwriters' Information. As of the date that the
Registration Statement was filed with the Commission, no event has or will have
occurred which should have been set forth in an amendment or supplement to the
Registration Statement which has not then been set forth in the Registration
Statement or such an amendment or supplement. The Registration Statement will be
identical to the electronically transmitted copy thereof filed with the
Commission pursuant to its XXXXX system, except to the extent permitted by
Regulation S-T.
(f) (i) The Company is duly organized, validly existing and
in good standing under the laws of the State of Michigan, with full
corporate and other power and authority to own, lease and operate its
properties and conduct its business as described in and contemplated by
the Registration Statement and the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus) and as
currently being conducted and is duly registered as a bank holding
company under the Bank Holding Company Act of 1956, as amended (the "BHC
Act").
(ii) The Trust has been duly created and is validly
existing as a statutory business trust in good standing under the
Delaware Business Trust Act with the power and authority (trust and
other) to own its property and conduct its business as described in the
Registration Statement and Prospectus, to issue and sell its common
securities (the "Common Securities") to the Company pursuant to the
Trust Agreement, to issue and sell the Designated Preferred Securities,
to enter into and perform its obligations under this Agreement and to
consummate the transactions herein contemplated; the Trust has no
subsidiaries and is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or
the ownership of its property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would
not have a material adverse effect on
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the Trust; the Trust has conducted and will conduct no business other
than the transactions contemplated by this Agreement, the Trust
Agreement and described in the Prospectus; the Trust is not a party to
or bound by any agreement or instrument other than this Agreement, the
Trust Agreement and the agreements and instruments contemplated by the
Trust Agreement and described in the Prospectus; the Trust has no
liabilities or obligations other than those arising out of the
transactions contemplated by this Agreement and the Trust Agreement
and described in the Prospectus; the Trust is not a party to or
subject to any action, suit or proceeding of any nature; the Trust is,
and at the Closing Date or any Option Closing Date will be, classified
as a grantor trust for United States federal income tax purposes; the
Trust is not, and at the Closing Date or any Option Closing Date will
not be, to the knowledge of the Offerors, classified as an association
taxable as a corporation for United States federal income tax
purposes; and the Trust is, and as of the Closing Date or any Option
Closing Date will be, treated as a consolidated subsidiary of the
Company pursuant to generally accepted accounting principles.
(g) The Company has three (3) direct or indirect subsidiaries.
They are listed on Exhibit A attached hereto and incorporated herein (the
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"Subsidiaries"). Except for its benefical ownership of approximately 5.6% of the
outstanding voting stock of NetBank, Inc., a Georgia corporation the Company
does not own or control, directly or indirectly, more than 5% of any class of
equity security of any corporation, association or other entity that conducts
material ongoing operations other than the Subsidiaries. Each Subsidiary is a
state bank, trust company, limited liability company or corporation duly
organized or incorporated (as applicable), validly existing and in active status
or good standing, as applicable, with all applicable Regulators (as defined
below) and under the laws of its respective jurisdiction of organization or
incorporation. Each such Subsidiary has full corporate and other power and
authority to own, lease and operate its properties and to conduct its business
as described in and contemplated by the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) and as currently being conducted. The deposit accounts
of Republic Bank (the "Bank") are insured by the Bank Insurance Fund
administered by the Federal Deposit Insurance Corporation (the "FDIC") up to the
maximum amount provided by law; and no proceedings for the modification,
termination or revocation of any such insurance are pending or, to the knowledge
of the Offerors, threatened.
(h) The Company and each of the Subsidiaries is duly qualified or
authorized to transact business as a foreign corporation or limited liability
company, as applicable, and is in active status or good standing, as applicable,
in each other jurisdiction in which it owns or leases property or conducts its
business so as to require such qualification or authorization and in which the
failure to be so qualified or authorized would, individually or in the
aggregate, have a material adverse effect on the condition (financial or
otherwise), earnings, business, affairs, prospects or results of operations of
the Company and the Subsidiaries on a consolidated basis. All of the issued and
outstanding shares of capital stock or member interests, as applicable, of the
Subsidiaries (A) have been duly authorized and are validly issued, (B) are fully
paid and nonassessable except to the extent such shares may be deemed assessable
under 12 U.S.C. Section 1831o or under applicable state banking law, and (C)
except as disclosed in the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus), are directly or indirectly
owned by the Company free and clear of any security interest,
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mortgage, pledge, lien, encumbrance, restriction upon voting or transfer,
preemptive rights, claim, equity or other defect.
(i) The capital stock of the Company and the equity securities
of the Trust conform to the description thereof contained in the Registration
Statement and Prospectus (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus). The outstanding shares of capital stock and
equity securities of each Offeror have been duly authorized and validly issued
and are fully paid and nonassessable, and no such shares were issued in
violation of the preemptive or similar rights of any security holder of an
Offeror; no person has any preemptive or similar right to purchase any shares of
capital stock or equity securities of the Offerors. Except as disclosed in the
Registration Statement and Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus), there are no outstanding
rights, options or warrants to acquire any securities of the Offerors or the
Subsidiaries, and there are no outstanding securities convertible into or
exchangeable for any securities of the Offerors or the Subsidiaries and no
restrictions upon the voting or transfer of any capital stock of the Company or
equity securities of the Trust pursuant to the Company's corporate charter or
bylaws, the Trust Agreement or any agreement or other instrument to which an
Offeror is a party or by which an Offeror is bound. As of the date set forth
therein, the Company has an authorized and outstanding capitalization as set
forth in the Registration Statement and the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus).
(j) (i) The Trust has all requisite power and authority to
issue, sell and deliver the Designated Preferred Securities in
accordance with and upon the terms and conditions set forth in this
Agreement, the Trust Agreement, the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus). All corporate and trust action required to be
taken by the Offerors for the authorization, issuance, sale and
delivery of the Designated Preferred Securities in accordance with such
terms and conditions has been validly and sufficiently taken. The
Designated Preferred Securities, when delivered and paid for in
accordance with this Agreement, will be duly and validly issued and
outstanding, will be fully paid and nonassessable undivided beneficial
interests in the assets of the Trust, will be entitled to the benefits
of the Trust Agreement, will not be issued in violation of or subject
to any preemptive or similar rights, and will conform to the
description thereof contained in the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) and the Trust Agreement. None of the Designated
Preferred Securities, immediately prior to delivery, will be subject to
any security interest, lien, mortgage, pledge, encumbrance, restriction
upon voting or transfer, preemptive rights, claim, equity or other
defect.
(ii) The Debentures have been duly and validly
authorized, and, when duly and validly executed, authenticated and
issued as provided in the Indenture and delivered against payment
therefor to the Trust pursuant to the Trust Agreement, will constitute
valid and legally binding obligations of the Company, enforceable
against the Company in accordance with their terms, except to the
extent that enforcement thereof may be limited by bankruptcy,
insolvency, reorganization or similar laws affecting the rights of
creditors generally
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and subject to general principles of equity, and except as any
indemnification or contribution provisions thereof may be limited under
applicable securities laws, will be in the form contemplated by, and
entitled to the benefits of, the Indenture, will conform to the
description thereof contained in the Prospectus and will be owned by
the Trust free and clear of any security interest, mortgage, pledge,
lien, encumbrance, restriction upon transfer, preemptive rights, claim,
equity or other defect.
(iii) The Guarantee has been duly and validly
authorized, and, when duly and validly executed and delivered to the
guarantee trustee for the benefit of the holders of the Designated
Preferred Securities, will constitute a valid and legally binding
obligation of the Company, enforceable against the Company in
accordance with its terms, except to the extent that enforcement
thereof may be limited by bankruptcy, insolvency, reorganization or
similar laws affecting the rights of creditors generally and subject to
general principles of equity, and will conform to the description
thereof contained in the Prospectus.
(iv) The Agreement as to Expenses and Liabilities
between the Company and the Trust (the "Expense Agreement") has been
duly and validly authorized, and, when duly and validly executed and
delivered by the Company, will constitute a valid and legally binding
obligation of the Company, enforceable against the Company in
accordance with its terms, except to the extent that enforcement
thereof may be limited by bankruptcy, insolvency, reorganization or
similar laws affecting the rights of creditors generally and subject to
general principles of equity, and will conform to the description
thereof contained in the Prospectus.
(k) The Offerors and the Subsidiaries have complied with all
foreign, federal, state and local statutes, regulations, ordinances and rules
applicable to the ownership and operation of their properties or the conduct of
their businesses as described in or contemplated by the Registration Statement
and the Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) and as currently being conducted, except where the
failure to be in compliance would not have a material adverse effect upon the
condition (financial or otherwise), earnings, business, affairs, prospects or
results of operations of the Offerors and the Subsidiaries on a consolidated
basis.
(l) The Offerors and the Subsidiaries have all permits,
easements, consents, licenses, franchises and other governmental and regulatory
authorizations from all appropriate federal, state, local or other public
authorities ("Permits") as are necessary to own and lease their properties and
conduct their businesses in the manner described in and contemplated by the
Registration Statement and the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus), except where the failure to
have such Permits would not have a material adverse effect upon the condition
(financial or otherwise), earnings, business, affairs, prospects or results of
operations of the Offerors and the Subsidiaries on a consolidated basis. All
material Permits are in full force and effect and each of the Offerors and the
Subsidiaries are in all material respects complying therewith, and no event has
occurred that allows, or after notice or lapse of time would allow, revocation
or termination thereof or will result in any other material impairment of the
rights of the holder of any material Permit, subject in each case to such
qualification as may be adequately disclosed in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus). No
material Permit contains any restriction
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that would materially impair the ability of the Company or the Subsidiaries to
conduct their businesses in the manner consistent with their past practices.
Neither the Offerors nor any of the Subsidiaries has received notice or
otherwise has knowledge of any proceeding or action relating to the revocation
or modification of any material Permit.
(m) Neither of the Offerors nor any of the Subsidiaries is in
breach or violation of its corporate charter, by-laws, operating agreement or
other governing documents (including without limitation, the Trust Agreement) in
any material respect. Neither of the Offerors nor any of the Subsidiaries is,
and to the knowledge of the Offerors, no other party is, in violation, breach or
default (with or without notice or lapse of time or both) in the performance or
observance of any term, covenant, agreement, obligation, representation,
warranty or condition contained in (A) any contract, indenture, mortgage, deed
of trust, loan or credit agreement, note, lease, franchise, license, material
Permit or any other agreement or instrument to which it is a party or by which
it or any of its properties may be bound, which breach, violation or default
could have a material adverse effect on the condition (financial or otherwise),
earnings, business, affairs, prospects or results of operations of the Offerors
and the Subsidiaries on a consolidated basis, and to the knowledge of the
Offerors, no other party has asserted that the Offerors or any of the
Subsidiaries is in such violation, breach or default (provided that the
foregoing shall not apply to defaults by borrowers from the Bank), or (B) except
as disclosed in the Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus), any order, decree, judgment, rule or
regulation of any court, arbitrator, government, or governmental agency or
instrumentality, domestic or foreign, having jurisdiction over the Offerors or
the Subsidiaries or any of their respective properties the breach, violation or
default of which could have a material adverse effect on the condition
(financial or otherwise), earnings, business, affairs, prospects or results of
operations of the Offerors and the Subsidiaries on a consolidated basis.
(n) The execution, delivery and performance of this Agreement and
the consummation of the transactions contemplated by this Agreement, the Trust
Agreement, the Registration Statement and the Prospectus (or, if the Prospectus
is not in existence, the most recent Preliminary Prospectus) do not and will not
conflict with, result in the creation or imposition of any material lien, claim,
charge, encumbrance or restriction upon any property or assets of the Offerors
or the Subsidiaries or the Designated Preferred Securities pursuant to,
constitute a breach or violation of, or constitute a default under, with or
without notice or lapse of time or both, any of the terms, provisions or
conditions of the charter or by-laws or operating agreement of the Company or
the Subsidiaries, the Trust Agreement, the Guarantee, the Indenture, any
indenture, mortgage, deed of trust, loan or credit agreement or note, or any
material contract, lease, franchise, license, Permit or any other agreement or
instrument to which the Offerors or the Subsidiaries is a party or by which any
of them or any of their respective properties may be bound or any order, decree,
judgment, rule or regulation of any court, arbitrator, government, or
governmental agency or instrumentality, domestic or foreign, having jurisdiction
over the Offerors or the Subsidiaries or any of their respective properties
which conflict, creation, imposition, breach, violation or default would have
either singly or in the aggregate a material adverse effect on the condition
(financial or otherwise), earnings, business, affairs, prospects or results of
operations of the Offerors and the Subsidiaries on a consolidated basis. No
authorization, approval, consent or order of or filing, registration or
qualification with, any person (including, without limitation,
10
any court, governmental body or authority) is required in connection with the
transactions contemplated by this Agreement, the Trust Agreement, the Indenture,
the Guarantee, the Registration Statement and the Prospectus, except such as
have been obtained under the 1933 Act, the Trust Indenture Act and from the
Nasdaq National Market. relating to the inclusion of the Designated Preferred
Securities, and such as may be required under state securities laws or
Interpretations or Rules of the National Association of Securities Dealers, Inc.
("NASD") in connection with the purchase and distribution of the Designated
Preferred Securities by the Underwriters.
(o) The Offerors have all requisite power and authority to enter into
this Agreement, and this Agreement has been duly and validly authorized,
executed and delivered by the Offerors and constitutes the legal, valid and
binding agreement of the Offerors, enforceable against the Offerors in
accordance with its terms, except as the enforcement thereof may be limited by
general principles of equity and by bankruptcy or other laws relating to or
affecting creditors' rights generally and except as any indemnification or
contribution provisions thereof may be limited under applicable securities laws.
Each of the Indenture, the Trust Agreement, the Guarantee and the Expense
Agreement has been duly authorized by the Company, and, when executed and
delivered by the Company on the Closing Date, each of said agreements will
constitute a valid and legally binding obligation of the Company and will be
enforceable against the Company in accordance with its terms, except to the
extent that enforcement thereof may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting the rights of creditors generally and
subject to general principles of equity and except as any indemnification or
contribution provisions thereof may be limited under applicable securities laws.
Each of the Indenture, the Trust Agreement and the Guarantee has been duly
qualified under the Trust Indenture Act.
(p) The Company and the Subsidiaries have good and marketable title
in fee simple to all real property and good title to all personal property owned
by them and material to their business, in each case free and clear of all
security interests, liens, mortgages, pledges, encumbrances, restrictions,
claims, equities and other defects except such as are referred to in the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) or such as do not materially affect the value of such
property in the aggregate and do not materially interfere with the use made or
proposed to be made of such property; and all of the leases under which the
Company or the Subsidiaries hold real or personal property are valid, existing
and enforceable leases and in full force and effect with such exceptions as are
not material and do not materially interfere with the use made or proposed to be
made of such real or personal property, and neither the Company nor any of the
Subsidiaries is in default in any material respect of any of the terms or
provisions of any real property or material personal property leases. To the
best knowledge of the Company, no hazardous substances, hazardous wastes,
pollutants or contaminants have been deposited or disposed of in, on or under
the properties of the Company or any of the Subsidiaries (including properties
owned, managed or controlled by a Subsidiary in connection with its lending
activities) during the period in which the Company or the Subsidiary has owned,
occupied, managed, controlled or operated such properties, in violation of any
environmental, safety, health or similar laws or regulations, orders, decrees or
permits relating to the protection of human health and safety, the environment
or hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Regulations"), or any order, judgment, decree or permit which
would require remedial action under any Environmental Regulation, excluding any
violation or remedial action
11
which would not have, in the aggregate, a material adverse effect on the
condition (financial or otherwise), earnings, business, affairs, prospects or
results of operations of Company and the Subsidiaries on a consolidated basis.
(q) Ernst & Young, LLP, who have certified the consolidated financial
statements of the Company and its subsidiaries, including the notes thereto,
included or incorporated by reference in the Registration Statement and
Prospectus, are independent public accountants with respect to the Company and
its subsidiaries, as required by the 1933 Act and the 1933 Act Regulations.
(r) The consolidated financial statements including the notes
thereto, included or incorporated by reference in the Registration Statement and
the Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) with respect to the Company and its subsidiaries comply
in all material respects with the 1933 Act and the 1933 Act Regulations and
present fairly the consolidated financial position of the Company and its
subsidiaries as of the dates indicated and the consolidated balance sheets,
statements of income, cash flows and shareholders' equity of the Company and its
subsidiaries for the periods specified and have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis, except
that the interim financial statements are subject to normal year-end adjustments
and do not include all footnotes required by generally accepted accounting
principles for audited financial statements. The selected consolidated financial
data concerning the Company included in the Registration Statement and the
Prospectus (or such Preliminary Prospectus) comply in all material respects with
the 1933 Act and the 1933 Act Regulations, have been derived from the financial
statements or operating records of the Company, present fairly the information
set forth therein, and have been compiled on a basis consistent with that of the
consolidated financial statements of the Company in the Registration Statement
and the Prospectus (or such Preliminary Prospectus). The other financial,
statistical and numerical information included in the Registration Statement and
the Prospectus (or such Preliminary Prospectus) complies in all material
respects with the 1933 Act and the 1933 Act Regulations, has been derived from
the financial statements or operating records of the Company, presents fairly
the information shown therein, and to the extent applicable has been compiled on
a basis consistent with the consolidated financial statements of the Company
included in the Registration Statement and the Prospectus (or such Preliminary
Prospectus).
(s) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus), except as otherwise stated
therein:
(i) neither of the Offerors nor any of the Subsidiaries has
sustained any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree which is material to the condition (financial or
otherwise), earnings, business, affairs, prospects or results of
operations of the Offerors and the Subsidiaries on a consolidated
basis;
(ii) there has not been any material adverse change in, or any
development which is reasonably likely to have a material adverse
effect on, the condition (financial or
12
otherwise), earnings, business, affairs, prospects or results of
operations of the Offerors and the Subsidiaries on a consolidated
basis, whether or not arising in the ordinary course of business;
(iii) neither of the Offerors nor any of the Subsidiaries has
incurred any liabilities or obligations, direct or contingent, or
entered into any material transactions, other than in the ordinary
course of business, which are material to the condition (financial or
otherwise), earnings, business, affairs, prospects or results of
operations of the Offerors and the Subsidiaries on a consolidated
basis;
(iv) neither of the Offerors has declared or paid any dividend
and neither of the Offerors nor any of the Subsidiaries has become
delinquent in the payment of principal or interest on any outstanding
borrowings;
(v) there has not been any change in the capital stock,
long-term debt, obligations under capital leases or, other than in the
ordinary course of business, short-term borrowings of the Offerors or
the Subsidiaries; and
(vi) there has not occurred any other event and there has
arisen no set of circumstances required to be disclosed pursuant to
the 1933 Act or the 1933 Act Regulations which has not been so set
forth in the Registration Statement or such Prospectus as fairly and
accurately summarized therein.
(t) Except as set forth in the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus), no charge, investigation, action, suit or proceeding is
pending or, to the knowledge of the Offerors, threatened, against or affecting
the Offerors or the Subsidiaries or any of their respective properties before or
by any court or any regulatory, administrative or governmental official,
commission, board, agency or other authority or body, or any arbitrator, wherein
an unfavorable decision, ruling or finding would have a material adverse effect
on the consummation of this Agreement or the transactions contemplated herein or
the condition (financial or otherwise), earnings, business, affairs, prospects
or results of operations of the Offerors and the Subsidiaries on a consolidated
basis or which is required to be disclosed in the Registration Statement or the
Prospectus (or such Preliminary Prospectus) and is not so disclosed.
(u) There are no contracts or other documents required to be filed as
exhibits to the Registration Statement by the 1933 Act or the 1933 Act
Regulations or the Trust Indenture Act (or any rules or regulations thereunder)
which have not been filed as exhibits to or incorporated by reference into the
Registration Statement, or that are required to be summarized in the Prospectus
(or, if the Prospectus is not in existence, the most recent Preliminary
Prospectus) that are not so summarized.
(v) Neither of the Offerors has taken, directly or indirectly,
any action causing or resulting in or which has constituted or which might
reasonably be expected to cause or result in stabilization or manipulation of
any security of the Offerors in connection with the sale or resale of the
Designated Preferred Securities in violation of the Commission's rules and
regulations, including, but not
13
limited to, Regulation M, nor is either Offeror aware of any such action having
been taken or to be taken by any affiliate of the Offerors.
(w) The Offerors and the Subsidiaries own, or possess adequate rights
to use, all patents, copyrights, trademarks, service marks, trade names and
other rights necessary to conduct the businesses now conducted by them in all
material respects or as described in the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus), and neither of the
Offerors nor the Subsidiaries has received any notice of infringement or
conflict with asserted rights of others with respect to any patents, copyrights,
trademarks, service marks, trade names or other rights which, individually or in
the aggregate, if the subject of an unfavorable decision, ruling or finding,
would have a material adverse effect on the condition (financial or otherwise),
earnings, business, affairs, prospects or results of operations of the Offerors
and the Subsidiaries on a consolidated basis, and the Offerors do not know of
any basis for any such infringement or conflict.
(x) Except as adequately disclosed in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus), no
labor dispute involving the Company or the Subsidiaries exists or, to the
knowledge of the Offerors, is imminent which might be expected to have a
material adverse effect on the condition (financial or otherwise), earnings,
business, affairs, prospects or results of operations of the Offerors and the
Subsidiaries on a consolidated basis or which is required to be disclosed in the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus). Neither the Company nor any of the Subsidiaries has
received notice of any existing or threatened labor dispute by the employees of
any of its principal suppliers, customers or contractors which might be expected
to have a material adverse effect on the condition (financial or otherwise),
earnings, business, affairs, prospects or results of operations of the Company
and the Subsidiaries on a consolidated basis.
(y) The Offerors and the Subsidiaries have timely and properly
prepared and filed, or have timely and properly filed extensions for, all
necessary federal, state, local and foreign tax returns which are required to be
filed and have paid all taxes shown as due thereon and have paid all other taxes
and assessments to the extent that the same shall have become due, except such
as are being contested in good faith or where the failure to so timely and
properly prepare and file would not have a material adverse effect on the
condition (financial or otherwise), earnings, business, affairs, prospects or
results of operations of the Offerors and the Subsidiaries on a consolidated
basis. The Offerors have no knowledge of any tax deficiency which has been or
might be assessed against the Offerors or the Subsidiaries which, if the subject
of an unfavorable decision, ruling or finding, would have a material adverse
effect on the condition (financial or otherwise), earnings, business, affairs,
prospects or results of operations of the Offerors and the Subsidiaries on a
consolidated basis.
(z) Each of the contracts, agreements and instruments described or
referred to in the Registration Statement or the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus) and each
contract, agreement and instrument filed as an exhibit to the Registration
Statement is in full force and effect and is the legal, valid and binding
agreement of the Offerors or the Subsidiaries, enforceable in accordance with
its terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization or similar laws affecting the rights of
14
creditors generally and subject to general principles of equity. Except as
disclosed in the Prospectus (or such Preliminary Prospectus), to the knowledge
of the Offerors, no other party to any such agreement is (with or without notice
or lapse of time or both) in breach or default in any material respect
thereunder.
(aa) No relationship, direct or indirect, exists between or among the
Offerors or the Subsidiaries, on the one hand, and the directors, officers,
trustees, shareholders, customers or suppliers of the Offerors or the
Subsidiaries, on the other hand, which is required to be described in the
Registration Statement and the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus) which is not adequately
described therein.
(bb) No person has the right to request or require the Offerors or the
Subsidiaries to register any securities for offering and sale under the 1933 Act
by reason of the filing of the Registration Statement with the Commission or the
issuance and sale of the Designated Preferred Securities except as adequately
disclosed in the Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus).
(cc) The Designated Preferred Securities have been approved for
inclusion in the Nasdaq National Market, subject to official notice of issuance.
(dd) Except as described in the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus), there are no
contractual encumbrances or restrictions or material legal restrictions required
to be described therein, on the ability of any of the Subsidiaries (A) to pay
dividends or make any other distributions on its capital stock or to pay any
indebtedness owed to the Company, (B) to make any loans or advances to, or
investments in, the Offerors or (C) to transfer any of its property or assets to
the Offerors.
(ee) Neither of the Offerors nor any Subsidiary is an "investment
company", a company "controlled" by an "investment company" or an "investment
adviser" within the meaning of the Investment Company Act of 1940, as amended
(the "Investment Company Act") or the Investment Advisers Act of 1940, as
amended (the "Advisers Act").
(ff) The Offerors have not distributed and will not distribute prior
to the Closing Date any prospectus in connection with the Offering, other than a
Preliminary Prospectus, the Prospectus, the Registration Statement and the other
materials permitted by the 1933 Act and the 1933 Act Regulations and reviewed by
the Representatives.
(gg) The activities of the Company and the Subsidiaries are permitted
under applicable federal and state banking laws and regulations. The Company has
all necessary approvals, including the approval of the Michigan Office of
Financial and Insurance Services (the "MOFIS") and the Board of Governors of the
Federal Reserve System ("FRB"), as applicable, to own the capital stock of the
Subsidiaries. Neither the Company nor any of the Subsidiaries is a party or
subject to any agreement or memorandum with, or directive or other order issued
by, the FRB, the MOFIS, the FDIC or other regulatory authority having
jurisdiction over it (each, a "Regulator," and collectively, the "Regulators"),
which imposes any restrictions or requirements not generally applicable to
entities of the
15
same type as the Company and the Subsidiaries. Neither the Company nor any
Subsidiary is subject to any directive from any Regulator to make any material
change in the method of conducting their respective businesses, and no such
directive is pending or threatened by such Regulators.
(hh) The Bank has properly administered all accounts for which it acts
as a fiduciary, including but not limited to accounts for which it serves as a
trustee, agent, custodian, personal representative, guardian, conservator or
investment advisor, in accordance with the terms of the governing documents and
applicable state and federal law and regulation and common law, except where the
failure to be in compliance would not have a material adverse effect upon the
condition (financial or otherwise), earnings, business, affairs, prospects or
results of operations of the Offerors and the Subsidiaries taken as a whole.
Neither the Bank nor any of its directors, officers or employees, has committed
any material breach of trust with respect to any such fiduciary account, and the
accountings for each such fiduciary account are true and correct in all material
respects and accurately reflect the assets of such fiduciary account in all
material respects.
(ii) The conditions for use of Form S-3, as set forth in the General
Instructions thereto, have been satisfied.
(jj) The Offerors and the Subsidiaries are in material compliance with
all provisions of Section 517.075, Florida Statutes, relating to doing business
with the Government of Cuba or with any person or affiliate located in Cuba.
(kk) Each of the Company and the Subsidiaries maintains 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 U.S. 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 existing assets
at reasonable intervals and appropriate action is taken with respect to any
differences. The books, records and accounts and systems of internal accounting
controls of the Company and each of the Subsidiaries comply in all material
respects with the requirements of Section 13(b)(2) of the 1934 Act.
(ll) Other than as contemplated by this Agreement and as disclosed in
the Registration Statement, the Company has not incurred any liability for any
finder's or broker's fee or agent's commission in connection with the execution
and delivery of this Agreement or the consummation of the transactions
contemplated hereby.
(mm) No report or application filed by the Company or any of its
Subsidiaries with the FRB, the MOFIS, the FDIC or any other state or federal
regulatory authority, as of the date it was filed or amended, contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
when made or failed to comply in all material respects with the applicable
requirements of the FRB, the MOFIS, the FDIC or any other state or federal
regulatory authority, as the case may be.
16
(nn) Based upon current guidelines of the FRB, the Debentures will
constitute "Tier 1" capital (as defined in 12 C.F.R. Part 225), subject to
applicable regulatory restrictions on the amount thereof that can be included in
Tier 1 capital.
(oo) None of the Offerors, the Subsidiaries or any other person
associated with or acting on behalf of the Offerors or any of the Subsidiaries,
including, without limitation, any director, officer, agent, or employee of any
of the Subsidiaries or the Company has, directly or indirectly, while acting on
behalf of such Offeror or Subsidiary (i) used any corporate funds for unlawful
contributions, gifts, entertainment, or other unlawful expenses relating to
political activity; (ii) made any unlawful contribution to any candidate for
foreign or domestic office, or to any foreign or domestic government officials
or employees or other person charged with similar public or quasi-public duties,
other than payments required or permitted by the laws of the United States or
any jurisdiction thereof or to foreign or domestic political parties or
campaigns from corporate funds, or failed to disclose fully any contribution in
violation of law; (iii) violated any provision of the Foreign Corrupt Practices
Act of 1977, as amended; or (iv) made any other payment of funds of either or
both of the Offerors or a Subsidiary or retained any funds which constitute a
violation of any law, rule or regulation or which was or is required to be
disclosed in the Registration Statement or the Prospectus pursuant to the
requirements of the 1933 Act or the 1933 Act Regulations.
(pp) The employee benefit plans, including employee welfare benefit
plans, of the Company and each of the Subsidiaries (the "Employee Plans") have
been operated in material compliance with the applicable provisions of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), the
Internal Revenue Code of 1986, as amended (the "Code"), all regulations, rulings
and announcements promulgated or issued thereunder and all other applicable
governmental laws and regulations (except to the extent such noncompliance would
not, in the aggregate, have a material adverse effect upon the condition
(financial or otherwise), earnings, business, affairs, prospects or results of
operations of the Offerors or the Subsidiaries on a consolidated basis).
(qq) D&N Capital Corporation has been organized in conformity with the
requirements for qualification as a "real estate investment trust" (a "REIT")
under Sections 856 and 857 of the Code, and it has operated and intends to
continue to operate in such a manner as to enable it to meet the requirements
for taxation as a REIT under the Code.
(rr) Neither of the Offerors nor any of the Subsidiaries is required to
register, become licensed or qualify as a broker-dealer with the Commission
under the 1934 Act or under the laws requiring any such registration, licensing
or qualification in any state in which it or its subsidiaries conduct business.
Neither of the Offerors nor any of the Subsidiaries has been convicted of any
crime or is engaged in any conduct that would be a basis for denial, suspension
or revocation of registration of a broker-dealer under Section 15 of the 1934
Act, and to the best knowledge of the Company, there is no basis for, or
proceeding or investigation that is reasonably likely to become the basis for,
any such disqualification, denial, suspension or revocation.
17
3. Offering by the Underwriters. After the Registration Statement
----------------------------
becomes effective or, if the Registration Statement is already effective, after
this Agreement becomes effective, the Underwriters propose to offer the Firm
Preferred Securities for sale to the public upon the terms and conditions set
forth in the Prospectus. The Underwriters may from time to time thereafter
reduce the public offering price and change the other selling terms, provided
the proceeds to the Trust shall not be reduced as a result of such reduction or
change. Because the NASD may view the Preferred Securities as interests in a
direct participation program, the offering of the Preferred Securities is being
made in compliance with the applicable provisions of Rule 2810 of the NASD's
Conduct Rules.
The Underwriters may reserve and sell such of the Designated
Preferred Securities purchased by the Underwriters as the Underwriters may elect
to dealers chosen by it (the "Selected Dealers") at the public offering price
set forth in the Prospectus less the applicable Selected Dealers' concessions
set forth therein, for re-offering by Selected Dealers to the public at the
public offering price. The Underwriters may allow, and Selected Dealers may
re-allow, a concession set forth in the Prospectus to certain other brokers and
dealers.
4. Certain Covenants of the Offerors. The Offerors jointly and
---------------------------------
severally covenant with the Underwriters as follows:
(a) The Offerors shall use their best efforts to cause the
Registration Statement and any amendments thereto, if not effective at the time
of execution of this Agreement, to become effective as promptly as possible. If
the Registration Statement has become or becomes effective pursuant to Rule 430A
and information has been omitted therefrom in reliance on Rule 430A, then, the
Offerors will prepare and file in accordance with Rule 430A and Rule 424(b), the
Prospectus or, if required by Rule 430A, a post-effective amendment to the
Registration Statement (including the Prospectus) containing all information so
omitted and will provide evidence satisfactory to the Representatives of such
timely filing.
(b) The Offerors shall notify you immediately, and, if requested by
you, shall promptly confirm such notice in writing:
(i) when the Registration Statement, or any post-effective
amendment to the Registration Statement, has become effective, or when
the Prospectus or any supplement to the Prospectus or any amended
Prospectus has been filed;
(ii) of the receipt of any comments or requests from the
Commission relating to the Registration Statement or the Prospectus;
18
(iii) of any request of the Commission to amend or supplement the
Registration Statement, any Preliminary Prospectus or the Prospectus or
for additional information; and
(iv) of the issuance by the Commission or any state or other
regulatory body of any stop order or other order suspending the
effectiveness of the Registration Statement, preventing or suspending
the use of any Preliminary Prospectus or the Prospectus, or suspending
the qualification of any of the Designated Preferred Securities for
offering or sale in any jurisdiction or the institution or threat of
institution of any proceedings for any of such purposes. The Offerors
shall use their best efforts to prevent the issuance of any such stop
order or of any other such order and if any such order is issued, to
cause such order to be withdrawn or lifted as soon as possible.
(c) The Offerors shall furnish to the Underwriters, from time to time
without charge, as soon as available, as many copies as the Underwriters may
reasonably request of (i) the registration statement as originally filed and of
all amendments thereto, in executed form, including exhibits, whether filed
before or after the Effective Date, (ii) all exhibits and documents incorporated
therein or filed therewith, (iii) all consents and certificates of experts in
executed form, (iv) each Preliminary Prospectus and all amendments and
supplements thereto, and (v) the Prospectus, and all amendments and supplements
thereto.
(d) During the time when a prospectus is required to be delivered under
the 1933 Act, the Offerors shall comply to the best of their ability with the
1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act
Regulations so as to permit the completion of the distribution of the Designated
Preferred Securities as contemplated herein and in the Trust Agreement and the
Prospectus. The Offerors shall not file any amendment to the registration
statement as originally filed or to the Registration Statement and shall not
file any amendment thereto or make any amendment or supplement to any
Preliminary Prospectus or to the Prospectus unless you shall previously have
been advised in writing and provided a copy a reasonable time prior to the
proposed filings thereof and to which you or counsel for the Underwriters shall
not have objected. If it is necessary, in the Company's reasonable opinion or in
the reasonable opinion of the Company's counsel to amend or supplement the
Registration Statement or the Prospectus in connection with the distribution of
the Designated Preferred Securities, the Offerors shall forthwith amend or
supplement the Registration Statement or the Prospectus, as the case may be, by
preparing and filing with the Commission (provided the Underwriters or counsel
for the Underwriters do not reasonably object) and furnishing to you such number
of copies as you may reasonably request of an amendment or amendments of, or a
supplement or supplements to, the Registration Statement or the Prospectus, as
the case may be (in form and substance satisfactory to you and counsel for the
Underwriters). If any event shall occur as a result of which it is necessary to
amend or supplement the Prospectus to correct an untrue statement of a material
fact or to include a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading, or if
for any reason it is necessary at any time to amend or supplement the Prospectus
to comply with the 1933 Act and the 1933 Act Regulations, the Offerors shall,
subject to the second sentence of this subsection (d), forthwith amend or
19
supplement the Prospectus by preparing and filing with the Commission, and
furnishing to you, such number of copies as you may reasonably request of an
amendment or amendments of, or a supplement or supplements to, the Prospectus
(in form and substance reasonably satisfactory to you and counsel for the
Underwriters) so that, as so amended or supplemented, the Prospectus shall not
contain an untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(e) The Offerors shall use their best efforts to permit the Designated
Preferred Securities to be eligible for clearance and settlement through the
facilities of DTC.
(f) The Offerors shall make generally available to their security
holders in the manner contemplated by Rule 158 of the 1933 Act Regulations and
furnish to you as soon as practicable, but in any event not later than sixteen
(16) months after the Effective Date, a consolidated earnings statement of the
Offerors in reasonable detail, covering a period of at least twelve (12)
consecutive months beginning after the Effective Date, conforming with the
requirements of Section 11(a) of the 1933 Act and Rule 158.
(g) The Offerors shall use the proceeds from the sale of the Designated
Preferred Securities to be sold by the Trust hereunder in the manner specified
in the Prospectus under the caption "Use of Proceeds."
(h) For five years from the Effective Date, the Offerors shall furnish
to the Representatives copies of all reports and communications (financial or
otherwise) furnished by the Offerors to the holders of the Designated Preferred
Securities as a class, copies of all reports and financial statements filed with
or furnished to the Commission (other than portions for which confidential
treatment has been obtained from the Commission) or the Nasdaq National Market,
any national securities exchange, or other self-regulatory organization, and
such other documents, reports and information concerning the business and
financial conditions of the Offerors as the Representatives may reasonably
request, other than such documents, reports and information for which the
Offerors have the legal obligation not to reveal to the Representatives.
(i) Until the earlier of the Option Closing Date or the expiration of
the Option, the Offerors shall not, directly or indirectly, offer for sale, sell
or agree to sell or otherwise dispose of any Designated Preferred Securities
other than pursuant to this Agreement, any other beneficial interests in the
assets of the Trust or any securities of the Trust or the Company that are
substantially similar to the Designated Preferred Securities or the Debentures,
including any guarantee of such beneficial interests or substantially similar
securities, or securities convertible into or exchangeable for or that represent
the right to receive any such beneficial interest or substantially similar
securities, without the prior written consent of the Representatives.
(j) The Offerors shall use their best efforts to cause the Designated
Preferred Securities to become included in the Nasdaq National Market or in lieu
thereof to be listed or quoted on a national securities exchange and to remain
so listed, quoted or included for at least five (5) years from the Effective
Date or for such shorter period as may be specified in a written consent of the
20
Representatives, provided this shall not prevent the Company from redeeming the
Designated Preferred Securities pursuant to the terms of the Trust Agreement. If
the Designated Preferred Securities are then listed and are exchanged for
Debentures, the Company will use its best efforts to have the Debentures
promptly included in the Nasdaq National Market or a national stock exchange or
to be listed, quoted or included on a national securities exchange or other
organization in or on which the Designated Preferred Securities are then listed,
quoted or included, and to have the Debentures promptly registered under the
Exchange Act.
(k) Subsequent to the date of this Agreement and through the date
which is the later of (i) the day following the date on which the Option to
purchase the Option Preferred Securities shall expire or (ii) the day following
the Option Closing Date with respect to any Option Preferred Securities that the
Underwriters shall elect to purchase, except as described in or contemplated by
the Prospectus, neither the Offerors nor any of the Subsidiaries shall take any
action (or refrain from taking any action) which will result in the Offerors or
the Subsidiaries incurring any material liability or obligation, direct or
contingent, or enter into any material transaction, except in the ordinary
course of business, and there will not be any material change in the financial
position, capital stock, or any material increase in long-term debt, obligations
under capital leases or, other than in the ordinary course of business,
short-term borrowings of the Offerors and the Subsidiaries on a consolidated
basis.
(l) Except as contemplated by the Prospectus and pursuant to a
publicly announced stock repurchase program to purchase shares of Company common
stock, the Offerors shall not, for a period of 180 days after the date hereof,
without the prior written consent of the Representatives, purchase, redeem or
call for redemption, or prepay or give notice of prepayment (or announce any
redemption or call for redemption, or any repayment or notice of prepayment) any
of the Offerors' securities.
(m) The Offerors shall not take, directly or indirectly, any action
designed to result in or which has constituted or which might reasonably be
expected to cause or result in stabilization or manipulation of the price of any
security of the Offerors in connection with the sale or resale of the Designated
Preferred Securities in violation of the Commission's rules and regulations,
including, but not limited to, Regulation M, and the Offerors are not aware of
any such action taken or to be taken by any affiliate of the Offerors.
(n) Prior to the Closing Date (and, if applicable, the Option Closing
Date), the Offerors will not issue any press release or other communication
directly or indirectly or hold any press conference with respect to the
Offerors, the Subsidiaries or the offering of the Designated Preferred
Securities (the "Offering") without your prior consent.
(o) The Offerors shall inform the Florida Department of Banking and
Finance at any time prior to the consummation of the distribution of the
Securities by the Underwriters if either of the Offerors or any of the
Subsidiaries commences engaging in business with the government of Cuba or with
a person or affiliate located in Cuba, with such information to be provided
within ninety (90) days after the commencement thereof or after a change occurs
with respect to previously reported information.
21
5. Payment of Expenses. Whether or not this Agreement is terminated or
-------------------
the sale of the Designated Preferred Securities to the Underwriters is
consummated, the Company covenants and agrees that it will pay or cause to be
paid (directly or by reimbursement) all costs and expenses incident to the
performance of the obligations of the Offerors under this Agreement, including:
(a) the preparation, printing, filing, delivery and shipping of the
initial registration statement, the Preliminary Prospectus or Prospectuses, the
Registration Statement and the Prospectus and any amendments or supplements
thereto, and the printing, delivery and shipping of this Agreement and any other
underwriting documents (including, without limitation, selected dealers
agreements), the certificates for the Designated Preferred Securities and the
Preliminary and Final Blue Sky Memoranda and any legal investment surveys and
any supplements thereto;
(b) all fees, expenses and disbursements of the Offerors' counsel and
accountants;
(c) all fees and disbursements of counsel for the Underwriters in
connection with the preparation of the Preliminary and Final Blue Sky Memoranda
and any legal investment surveys and any supplements thereto;
(d) all filing fees and expenses incurred in connection with filings
made with the NASD;
(e) any applicable fees and other expenses incurred in connection
with the inclusion of the Designated Preferred Securities and, if applicable,
the Guarantee and the Debentures in the Nasdaq National Market;
(f) the cost of furnishing to you copies of the initial registration
statements, any Preliminary Prospectus, the Registration Statement and the
Prospectus and all amendments or supplements thereto;
(g) the costs and charges of any transfer agent or registrar and the
fees and disbursements of counsel for any transfer agent or registrar;
(h) all costs and expenses (including stock transfer taxes) incurred
in connection with the printing, issuance and delivery of the Designated
Preferred Securities to the Underwriters;
(i) all expenses incident to the preparation, execution and delivery
of the Trust Agreement, the Indenture and the Guarantee; and
(j) all other costs and expenses incident to the performance of the
obligations of the Company hereunder and under the Trust Agreement that are not
otherwise specifically provided for in this Section 5.
If the sale of Designated Preferred Securities contemplated by this
Agreement is not completed due to the termination pursuant to the terms hereof
(other than pursuant to Section 9 hereof), the Company will pay you your
out-of-pocket expenses in connection herewith or in contemplation of
22
the performance of your obligations hereunder, including without limitation
travel expenses, fees, expenses and disbursements of counsel or other
out-of-pocket expenses incurred by you in connection with any discussion of the
Offering or the contents of the Registration Statement, any investigation of the
Offerors and the Subsidiaries, or any preparation for the marketing, purchase,
sale or delivery of the Designated Preferred Securities, in each case following
presentation of reasonably detailed invoices therefor.
If the sale of Designated Preferred Securities contemplated by this
Agreement is completed, the Company shall not be responsible for payment of fees
or disbursements of counsel for the Underwriters other than in accordance with
paragraph (c) above, or for the reimbursement of any expenses of the
Underwriters.
6. Conditions of the Underwriters' Obligations. The obligations of the
-------------------------------------------
Underwriters to purchase and pay for the Firm Preferred Securities and,
following exercise of the Option, the Option Preferred Securities, are subject
to the accuracy of the representations and warranties and to compliance with the
agreements of the Offerors herein as of the date hereof and as of the Closing
Date (or in the case of the Option Preferred Securities, if any, as of the
Option Closing Date), to the accuracy of the written statements of the Offerors
made pursuant to the provisions hereof, to the performance by the Offerors of
their covenants and obligations hereunder and to the following additional
conditions:
(a) If the Registration Statement or any amendment thereto filed
prior to the Closing Date has not been declared effective prior to the time of
execution hereof, the Registration Statement shall become effective not later
than 10:00 a.m., St. Louis time, on the first business day following the time of
execution of this Agreement, or at such later time and date as you may agree to
in writing. If required, the Prospectus and any amendment or supplement thereto
shall have been timely filed in accordance with Rule 424(b) and Rule 430A under
the 1933 Act and Section 4(a) hereof. No stop order suspending the effectiveness
of the Registration Statement or any amendment or supplement thereto shall have
been issued under the 1933 Act or any applicable state securities laws and no
proceedings for that purpose shall have been instituted or shall be pending, or,
to the knowledge of the Offerors or the Representatives, shall be contemplated
by the Commission or any state authority. Any request on the part of the
Commission or any state authority for additional information (to be included in
the Registration Statement or Prospectus or otherwise) shall have been disclosed
to you and complied with to your satisfaction and to the satisfaction of counsel
for the Underwriters.
(b) Neither the Registration Statement or any post-effective
amendment thereto, nor the Prospectus or any amendment or supplement thereto,
shall contain an untrue statement of a fact which, in your opinion, is material
or omits to state a fact which, in your opinion, is material and is required to
be stated therein or is necessary to make statements therein (in the case of the
Prospectus or any amendment or supplement thereto, in the light of the
circumstances under which they were made) not misleading.
(c) All corporate proceedings and other legal matters incident to the
authorization, form and validity of this Agreement, the Trust Agreement, and the
Designated Preferred Securities, and the authorization and form of the
Registration Statement and Prospectus, other than financial statements
23
and other financial data, and all other legal matters relating to this Agreement
and the transactions contemplated hereby or by the Trust Agreement shall be
satisfactory in all material respects to counsel for the Underwriters, and the
Offerors and the Subsidiaries shall have furnished to such counsel all documents
and information relating thereto that they may reasonably request to enable them
to pass upon such matters.
(d) Miller, Canfield, Paddock and Stone, P.L.C. ("Xxxxxx Xxxxxxxx"),
counsel for the Offerors, shall have furnished to you their signed opinion,
dated the Closing Date or the Option Closing Date, as the case may be, in form
and substance satisfactory to counsel for the Underwriters, to the effect that:
(i) The Company has been duly incorporated, is validly existing
and in good standing under the laws of the State of Michigan, and is duly
registered as a bank holding company under the BHC Act. Each of the
Subsidiaries is validly existing and in active status or good standing
under the laws of its jurisdiction of incorporation or organization, as the
case may be. Each of the Company and the Subsidiaries has full corporate or
other power and authority to own or lease its properties and to conduct its
business as such business is described in the Prospectus;
(ii) The capital stock, Debentures and Guarantee of the Company
and the equity securities of the Trust conform to the description thereof
contained in the Prospectus in all material respects. The capital stock of
the Company authorized as of June 30, 2001 is as set forth under the
caption "Capitalization" in the Prospectus, and the shares issued and
outstanding as indicated in this opinion have been duly authorized and
validly issued and are fully paid and nonassessable, except to the extent
that such shares may be deemed assessable under 12 U.S.C. Section 1831o. To
the best of such counsel's knowledge, and except as described in the
Registration Statement or the Prospectus (or if the Prospectus is not yet
in existence, the most recent Preliminary Prospectus), there are no
outstanding rights, options or warrants to purchase, no other outstanding
securities convertible into or exchangeable for, and no commitments, plans
or arrangements to issue, any shares of capital stock of the Company or
equity securities of the Trust;
(iii) The issuance, sale and delivery of the Designated Preferred
Securities and Debentures in accordance with the terms and conditions of
this Agreement and the Indenture have been duly authorized by all necessary
corporate and trust actions of the Offerors.
(iv) The Designated Preferred Securities have been duly
authorized by the Trust Agreement and, when issued and sold in accordance
with the Trust Agreement will be duly and validly issued, fully paid and
nonassessable beneficial interests in the assets of the Trust and entitled
to the benefits of the Trust Agreement, and will conform in all material
respects to the description thereof in the Registration Statement and the
Prospectus. The Designated Preferred Securities have been approved for
inclusion in the Nasdaq National Market, subject to official notice of
issuance.
24
(v) There are no preemptive or other rights to subscribe for
or to purchase, and other than as disclosed in the Prospectus, no
restrictions upon the voting or transfer of any shares of capital stock or
equity securities of the Offerors pursuant to the corporate charter,
by-laws or other governing documents (including without limitation, the
Trust Agreement) of the Offerors or any of the Subsidiaries, or, to the
best of such counsel's knowledge, any agreement or other instrument to
which either Offeror or any of the Subsidiaries is a party or by which
either Offeror or any of the Subsidiaries may be bound. The issuance of the
Designated Preferred Securities is not subject to preemptive rights
(vi) The Offerors have all requisite corporate and trust power
to enter into and perform their obligations under this Agreement, and this
Agreement has been duly and validly authorized, executed and delivered by
the Offerors and constitutes the legal, valid and binding obligations of
the Offerors enforceable against the Offerors in accordance with its terms,
except as the enforcement thereof may be limited by general principles of
equity and by bankruptcy or other laws relating to or affecting creditors'
rights generally, and except as the indemnification and contribution
provisions hereof may be limited under applicable laws and certain remedies
may not be available in the case of a non-material breach;
(vii) Each of the Indenture, the Trust Agreement and the
Guarantee has been duly qualified under the Trust Indenture Act, has been
duly authorized, executed and delivered by the Company, and is a valid and
legally binding obligation of the Company enforceable against the Company
in accordance with its terms, subject to the effect of bankruptcy,
insolvency, reorganization, receivership, moratorium and other laws
affecting the rights and remedies of creditors generally and of general
principles of equity;
(viii) The Debentures have been duly authorized, executed,
authenticated and delivered by the Company, are entitled to the benefits of
the Indenture and are legal, valid and binding obligations of the Company
enforceable against the Company in accordance with their terms, subject to
the effect of bankruptcy, insolvency, reorganization, receivership,
moratorium and other laws affecting the rights and remedies of creditors
generally and of general principles of equity;
(ix) The Expense Agreement has been duly authorized, executed
and delivered by the Company, and is a valid and legally binding obligation
of the Company enforceable against the Company in accordance with its
terms, subject to the effect of bankruptcy, insolvency, reorganization,
receivership, moratorium and other laws affecting the rights and remedies
of creditors generally and of general principles of equity;
(x) To the best of such counsel's knowledge, neither of the
Offerors nor any of the Subsidiaries is in breach or violation of, or
default under, with or without notice or lapse of time or both, its
corporate charter, by-laws or governing document (including without
limitation, the Trust Agreement). The execution, delivery and performance
of this Agreement and the consummation of the transactions contemplated by
this Agreement and the Trust Agreement do not and will not conflict with,
result in the creation or imposition of any material
25
lien, claim, charge, encumbrance or restriction upon any property or assets
of the Offerors or the Subsidiaries or the Designated Preferred Securities
pursuant to, or constitute a material breach or violation of, or constitute
a material default under, with or without notice or lapse of time or both,
any of the terms, provisions or conditions of the charter, by-laws,
operating agreement or governing document (including without limitation,
the Trust Agreement) of the Offerors or the Subsidiaries, or to the best of
such counsel's knowledge, any indenture, mortgage, deed of trust, loan or
credit agreement, note, material contract, lease, franchise, license or any
other material agreement or instrument to which either Offeror or the
Subsidiaries is a party or by which any of them or any of their respective
properties may be bound or any order, decree, judgment, franchise, license,
material Permit, or rule or regulation of any court, arbitrator,
government, or governmental agency or instrumentality, domestic or foreign,
known to such counsel having jurisdiction over the Offerors or the
Subsidiaries or any of their respective properties. No authorization,
approval, consent or order of, or filing, registration or qualification
with, any person (including, without limitation, any court, governmental
body or authority) is required under Michigan law in connection with the
transactions contemplated by this Agreement in connection with the purchase
and distribution of the Designated Preferred Securities by the
Underwriters;
(xi) To the best of such counsel's knowledge, holders of
securities of the Offerors either do not have any right that, if exercised,
would require the Offerors to cause such securities to be included in the
Registration Statement or have waived such right. To the best of such
counsel's knowledge, neither the Offerors nor any of the Subsidiaries is a
party to any agreement or other instrument which grants rights for or
relating to the registration of any securities of the Offerors;
(xii) Except as set forth in the Registration Statement and the
Prospectus, to the best of such counsel's knowledge, (i) no action, suit or
proceeding at law or in equity is pending or threatened in writing to which
any of the Offerors or the Subsidiaries is or could reasonably be expected
to become a party, and (ii) no action, suit or proceeding is pending or
threatened in writing against or affecting the Offerors or the Subsidiaries
or any of their properties, before or by any court or governmental
official, commission, board or other administrative agency, authority or
body, or any arbitrator, wherein an unfavorable decision, ruling or finding
could reasonably be expected to have a material adverse effect on the
consummation of this Agreement or the issuance and sale of the Designated
Preferred Securities as contemplated herein or which is required to be
disclosed in the Registration Statement or the Prospectus and is not so
disclosed;
(xiii) No authorization, approval, consent or order of or filing,
registration or qualification with, any person (including, without
limitation, any court, governmental body or authority) is required in
connection with the transactions contemplated by this Agreement, the Trust
Agreement, the Registration Statement and the Prospectus, except such as
have been obtained under the 1933 Act and the Trust Indenture Act, and
except such as may be required under state securities laws or
Interpretations or Rules of the NASD in connection with the
26
purchase and distribution of the Designated Preferred Securities by the
Underwriters, as to which such counsel need express no opinion;
(xiv) The Registration Statement and the Prospectus and any
amendments or supplements thereto and any documents incorporated therein by
reference (other than the financial statements or other financial or
statistical data included therein or omitted therefrom and Underwriters'
Information, as to which such counsel need express no opinion) comply as to
form in all material respects with the requirements of the 1933 Act and the
1933 Act Regulations as of their respective dates of effectiveness;
(xv) To the best of such counsel's knowledge, there are no
contracts, agreements, leases or other documents of a character required to
be disclosed in the Registration Statement or Prospectus or to be filed as
exhibits to the Registration Statement that are not so disclosed or filed;
(xvi) The statements under the captions "Description of the
Trust," "Description of the Preferred Securities," "Description of the
Debentures," "Book-Entry Issuance," "Description of the Guarantee,"
"Relationship Among the Preferred Securities, the Debentures and the
Guarantee," "Federal Income Tax Consequences," and "ERISA Considerations"
in, and "Supervision and Regulation," and "Item 3. Legal Proceedings" in
the Company's Annual Report on Form 10-K for the year ended December 31,
2000, incorporated by reference into the Prospectus, insofar as such
statements constitute a summary of legal and regulatory matters, documents
or instruments referred to therein, are accurate descriptions of the
matters summarized therein in all material respects and fairly present the
information called for with respect to such legal and regulatory matters,
documents and instruments, other than financial and statistical data as to
which said counsel shall not be required to express any opinion or belief;
(xvii) Such counsel has been advised by the staff of the
Commission that the Registration Statement has become effective under the
1933 Act; any required filing of the Prospectus pursuant to Rule 424(b) and
Rule 430A has been made within the time period required by Rule 424(b) and
Rule 430A; to the best of such counsel's knowledge, no stop order
suspending the effectiveness of the Registration Statement has been issued
and no proceedings for a stop order are pending or threatened by the
Commission; and
(xviii) Except as described in the Prospectus, to the best of
such counsel's knowledge, there are no contractual encumbrances or
restrictions, or material legal restrictions required to be described
therein on the ability of any of the Subsidiaries (A) to pay dividends or
make any other distributions on its capital stock or to pay indebtedness
owed to the Offerors, (B) to make any loans or advances to, or investments
in, the Offerors or (C) to transfer any of its property or assets to the
Offerors.
In giving the above opinion, such counsel may state that, insofar as
such opinion involves factual matters, they have relied upon certificates of
officers of the Offerors including, without limitation,
27
certificates as to the identity of any and all indentures, mortgages, deeds of
trust, loan or credit agreements, notes, material contracts, leases, franchises,
licenses or other agreements or instruments, and all material Permits,
easements, consents, licenses, franchises and government regulatory
authorizations, for purposes of paragraphs (x), (xi), (xv) and (xviii) hereof
and certificates of public officials. In giving such opinion, such counsel may
rely as to matters of Delaware law upon the opinion of Xxxxxxxx, Xxxxxx &
Finger, P.A. described herein.
Such counsel shall also confirm that, in connection with the
preparation of the Registration Statement and Prospectus, such counsel has
participated in conferences with officers and representatives of the Offerors
and with their independent public accountants and with you and your counsel, at
which conferences such counsel made inquiries of such officers, representatives
and accountants and discussed in detail the contents of the Registration
Statement and Prospectus and the documents incorporated therein by reference
(without taking further action to verify independently the statements made in
the Registration Statement and the Prospectus, and without assuming
responsibility for the accuracy or completeness of such statements, except to
the extent expressly provided above) and such counsel has no reason to believe
(A) that the Registration Statement or any amendment thereto (except for the
financial statements and related schedules and statistical data and exhibits
included therein or omitted therefrom or Underwriters' Information, as to which
such counsel need express no opinion), at the time the Registration Statement or
any such amendment became effective, contained any untrue statement of a
material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading or (B) that
the Prospectus or any amendment or supplement thereto or the documents
incorporated therein by reference (except for the financial statements and
related schedules and statistical data and exhibits included therein or omitted
therefrom or Underwriters' Information, as to which such counsel need express no
opinion), at the Effective Date (or, if the term "Prospectus" refers to the
prospectus first filed pursuant to Rule 424(b) of the 1933 Act Regulations, at
the time the Prospectus was issued), at the time any such amended or
supplemented Prospectus was issued, at the Closing Date and, if applicable, the
Option Closing Date, contained or contains any untrue statement of a material
fact or omitted or omits to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading, or (C) that there is any amendment to the Registration
Statement required to be filed that has not already been filed.
(e) Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the
Offerors, shall have furnished to you their signed opinion, dated as of
Closing Date or the Option Closing Date, as the case may be, in form and
substance satisfactory to counsel for the Underwriters, to the effect that:
(i) The Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware Business Trust Act.
(ii) The Trust Agreement constitutes a valid and binding
obligation of the Company and the Trustees and is enforceable against the
Company and the Trustees in accordance with its terms.
28
(iii) Under the Delaware Business Trust Act and the Trust
Agreement, the Trust has the trust power and authority (i) to execute and
deliver, and to perform its obligations under this Agreement, (ii) to issue
and perform its obligations under the Trust Securities, and (iii) to
conduct its business as described in the Prospectus.
(v) Under the Delaware Business Trust Act and the Trust
Agreement, the execution and delivery by the Trust of this Agreement, and
the performance by the Trust of its obligations under this Agreement, have
been duly authorized by all necessary trust action on the part of the
Trust.
(vi) The Preferred Securities have been duly authorized by the
Trust Agreement and are validly issued and, subject to the qualification
expressed in paragraph (vi) below, fully paid and nonassessable beneficial
interests in the assets of the Trust and are entitled to the benefits of
the Trust Agreement. The form of Preferred Securities Certificate has been
duly authorized by the Trust and complies with all applicable requirements
of the Delaware Business Trust Act.
(vii) Holders of Preferred Securities, as beneficial owners of
the Trust, will be entitled to the same limitation of personal liability
extended to shareholders of private, for-profit corporations organized
under the General Corporation Law of the State of Delaware. Such opinion
may note that the holders of Designated Preferred Securities may be
obligated to make payments as set forth in the Trust Agreement.
(viii) Under the Delaware Business Trust Act and the Trust
Agreement, the issuance of the Preferred Securities is not subject to
preemptive rights.
(ix) The issuance and sale by the Trust of the Preferred
Securities and the Common Securities, the execution, delivery and
performance by the Trust of this Agreement, and the consummation by the
Trust of the transactions contemplated by this Agreement, do not violate
(a) any provisions of the Trust Agreement, or (b) any applicable Delaware
law, rule or regulation.
(x) Neither the execution, delivery and performance by the
Trust of this Agreement, nor the offering, issuance, sale or delivery of
the Preferred Securities, requires the consent or approval of, the
withholding of objection on the part of, the giving of notice to, the
filing, registration or qualification with, or the taking of any action in
respect of, any governmental authority or agency of the State of Delaware,
other than the filing of the Certificate of Trust with the Secretary of
State.
Such opinion may state that it is limited to the laws of the State of
Delaware and that the opinions expressed in paragraphs (ii) and (iii) above are
subject to the effect upon the Trust Agreement, the Debentures, the Indenture,
the Guarantee and the Expense Agreement of (i) bankruptcy, insolvency,
moratorium, receivership, reorganization, liquidation, fraudulent conveyance and
other similar laws relating to or affecting the rights and remedies of creditors
generally, (ii) principles of equity, including
29
applicable law relating to fiduciary duties (regardless of whether considered
and applied in a proceeding in equity or at law), and (iii) the effect of
applicable public policy on the enforceability of provisions relating to
indemnification or contribution.
(f) Xxxxx Xxxx LLP, counsel for the Underwriters, shall have
furnished you their signed opinion, dated the Closing Date or the Option Closing
Date, as the case may be, with respect to the sufficiency of all corporate
procedures and other legal matters relating to this Agreement, the validity of
the Designated Preferred Securities, the Registration Statement, the Prospectus
and such other related matters as you may reasonably request and there shall
have been furnished to such counsel such documents and other information as they
may reasonably request to enable them to pass on such matters. In giving such
opinion, Xxxxx Xxxx LLP may rely as to matters of fact upon statements and
certifications of officers of the Offerors and of other appropriate persons and
may rely as to matters of law, other than the laws of the United States and the
State of Missouri, upon the opinions of Xxxxxx Xxxxxxxx and Xxxxxxxx, Xxxxxx &
Finger, P.A. described herein.
(g) On the date of this Agreement and on the Closing Date (and, if
applicable, any Option Closing Date), the Representatives shall have received
from Ernst & Young, LLP a letter, dated the date of this Agreement and the
Closing Date (and, if applicable, the Option Closing Date), respectively, in
form and substance satisfactory to the Representatives, confirming that they are
independent public accountants with respect to Company (which shall be inclusive
of its subsidiaries for purposes of this Section 6(g)), within the meaning of
the 1933 Act and the 1933 Act Regulations, and stating in effect that:
(i) In their opinion, the consolidated financial statements of
the Company audited by them and included in the Registration Statement
comply as to form in all material respects with the applicable accounting
requirements of the 1933 Act, the 1933 Act Regulations, the 1934 Act and
the 1934 Act Regulations.
(ii) On the basis of the procedures specified by the American
Institute of Certified Public Accountants as described in SAS No. 71,
"Interim Financial Information," inquiries of officials of the Company
responsible for financial and accounting matters, and such other inquiries
and procedures as may be specified in such letter, which procedures do not
constitute an audit in accordance with U.S. generally accepted auditing
standards, nothing came to their attention that caused them to believe
that, if applicable, the unaudited interim consolidated financial
statements of the Company included in the Registration Statement do not
comply as to form in all material respects with the applicable accounting
requirements of the 1933 Act, 1933 Act Regulations, 1934 Act and 1934 Act
Regulations, including without limitation, Regulation S-K, or are not in
conformity with U.S. generally accepted accounting principles applied on a
basis substantially consistent, except as noted in the Registration
Statement, with the basis for the audited consolidated financial statements
of the Company included in the Registration Statement.
(iii) On the basis of limited procedures, not constituting an
audit in accordance with U.S. generally accepted auditing standards,
consisting of a reading of the
30
unaudited interim financial statements and other information referred to
below, a reading of the latest available unaudited condensed consolidated
financial statements of the Company, inspection of the minute books of the
Company since the date of the latest audited financial statements of the
Company included or incorporated by reference in the Registration
Statement, inquiries of officials of the Company responsible for financial
and accounting matters and such other inquiries and procedures as may be
specified in such letter, nothing came to their attention that caused them
to believe that:
(A) as of a specified date not more than five days prior to
the date of such letter, there have been any changes in the
consolidated capital stock of the Company, any increase in the
consolidated debt of the Company, any decreases in consolidated total
assets or stockholders' equity of the Company, or any changes,
decreases or increases in other items specified by the
Representatives, in each case as compared with amounts shown in the
latest unaudited interim consolidated statement of financial condition
of the Company included in the Registration Statement except in each
case for changes, increases or decreases which the Registration
Statement specifically discloses, have occurred or may occur or which
are described in such letter; and
(B) for the period from the date of the latest unaudited
interim consolidated financial statements of the Company included in
the Registration Statement to the specified date referred to in clause
(iii)(A), there were any decreases in the consolidated interest
income, net interest income, or net income of the Company or in the
per share amount of net income of the Company, or any changes,
decreases or increases in any other items specified by the
Representatives, in each case as compared with the comparable period
of the preceding year and with any other period of corresponding
length specified by the Representatives, except in each case for
increases or decreases which the Registration Statement discloses have
occurred or may occur, or which are described in such letter.
(iv) In addition to the audit referred to in their report
included in the Registration Statement and the limited procedures,
inspection of minute books, inquiries and other procedures referred to in
paragraphs (ii) and (iii) above, they have carried out certain specified
procedures, not constituting an audit in accordance with U.S. generally
accepted auditing standards, with respect to certain amounts, percentages
and financial information specified by the Representatives which are
derived from the general accounting records and consolidated financial
statements of the Company which appear in the Registration Statement, and
have compared such amounts, percentages and financial information with the
accounting records and the material derived from such records and
consolidated financial statements of the Company have found them to be in
agreement.
In the event that the letters to be delivered referred to above set
forth any such changes, decreases or increases as specified in clauses (iii)(A)
or (iii)(B) above, or any exceptions from such agreement specified in clause
(iv) above, it shall be a further condition to the obligations of the
Underwriters that the Representatives shall have determined, after discussions
with officers of the
31
Company responsible for financial and accounting matters, that such changes,
decreases, increases or exceptions as are set forth in such letters do not (x)
reflect a material adverse change in the items specified in clause (iii)(A)
above as compared with the amounts shown in the latest unaudited consolidated
statement of financial condition of the Company included in the Registration
Statement, (y) reflect a material adverse change in the items specified in
clause (iii)(B) above as compared with the corresponding periods of the prior
year or other period specified by the Representatives, or (z) reflect a material
change in items specified in clause (iv) above from the amounts shown in the
Preliminary Prospectus distributed by the Underwriters in connection with the
offering contemplated hereby or from the amounts shown in the Prospectus.
(h) [Reserved].
(i) At the Closing Date and, if applicable, the Option Closing Date,
you shall have received certificates of the President and Chief Executive
Officer or the Treasurer of the Company, which certificates shall be deemed to
be made on behalf of the Company dated as of the Closing Date and, if
applicable, the Option Closing Date, evidencing satisfaction of the conditions
of Section 6(a) and stating that (i) the representations and warranties of the
Company set forth in Section 2(a) hereof are accurate as of the Closing Date
and, if applicable, the Option Closing Date, and that each of the Offerors has
complied with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to such Closing Date; (ii) since the
respective dates as of which information is given in the Registration Statement
and the Prospectus, there has not been any material adverse change in the
condition (financial or otherwise), earnings, business, affairs, prospects or
results of operations of the Offerors and the Subsidiaries on a consolidated
basis; (iii) since such dates there has not been any material transaction
entered into by the Offerors or the Subsidiaries other than transactions in the
ordinary course of business; and (iv) they have carefully examined the
Registration Statement and the Prospectus as amended or supplemented and nothing
has come to their attention that would lead them to believe that either the
Registration Statement or the Prospectus, or any amendment or supplement thereto
as of their respective effective or issue dates, contained, and the Prospectus
as amended or supplemented at such Closing Date (and, if applicable, the Option
Closing Date), contains any untrue statement of a material fact, or omits to
state a material fact required to be stated therein or necessary, in the light
of the circumstances under which they were made, to make the statements therein,
not misleading; and (v) covering such other matters as you may reasonably
request. The officers' certificate of the Company shall further state that no
stop order affecting the Registration Statement is in effect or, to their
knowledge, threatened.
(j) At the Closing Date and, if applicable, the Option Closing Date,
you shall have received a certificate of an authorized representative of the
Trust to the effect that to the best of his or her knowledge based upon a
reasonable investigation, the representations and warranties of the Trust in
this Agreement are true and correct as though made on and as of the Closing Date
(and, if applicable, the Option Closing Date); the Trust has complied with all
the agreements and satisfied all the conditions required by this Agreement to be
performed or satisfied by the Trust on or prior to the Closing Date and since
the most recent date as of which information is given in the Prospectus, except
as described in the Prospectus, the Trust has not incurred any material
liabilities or obligations, direct or contingent, or
32
entered into any material transactions not in the ordinary course of business
and there has not been any material adverse change in the condition (financial
or otherwise) of the Trust.
(k) On the Closing Date, you shall have received duly executed
counterparts of the Trust Agreement, the Guarantee, the Indenture and the
Expense Agreement.
(l) The NASD, upon review of the terms of the public offering of the
Designated Preferred Securities, shall not have objected to the Underwriters'
participation in such offering.
(m) Prior to the Closing Date and, if applicable, the Option Closing
Date, the Offerors shall have furnished to you and counsel for the Underwriters
all such other documents, certificates and opinions as they have reasonably
requested.
All opinions, certificates, letters and other documents shall be in
compliance with the provisions hereof only if they are reasonably satisfactory
in form and substance to you. The Offerors shall furnish you with conformed
copies of such opinions, certificates, letters and other documents as you shall
reasonably request.
If any of the conditions referred to in this Section 6 shall not have
been fulfilled when and as required by this Agreement, this Agreement and all of
the Underwriters' obligations hereunder may be terminated by you on notice to
the Company at, or at any time before, the Closing Date or the Option Closing
Date, as applicable. Any such termination shall be without liability of the
Underwriters to the Offerors.
7. Indemnification and Contribution.
--------------------------------
(a) The Offerors jointly and severally agree to indemnify and hold
harmless each Underwriter, each of its directors, officers and agents, and each
person, if any, who controls any Underwriter within the meaning of the 1933 Act,
against any and all losses, claims, damages, liabilities and expenses (including
reasonable costs of investigation and attorneys' fees and expenses), joint or
several, arising out of or based upon: (i) any untrue statement or alleged
untrue statement of a material fact made by the Company or the Trust contained
in the registration statement as originally filed or the Registration Statement,
any Preliminary Prospectus or the Prospectus, or in any amendment or supplement
thereto; (ii) any omission or alleged omission to state a material fact in the
registration statement as originally filed or the Registration Statement, the
Preliminary Prospectus or the Prospectus, or in any amendment or supplement
thereto, required to be stated therein or necessary to make the statements
therein not misleading, and against any and all losses, claims, damages,
liabilities and expenses (including reasonable costs of investigation and
attorneys' fees), joint or several, arising out of or based upon any untrue
statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus or the Prospectus, or in any amendment 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, in the light of the circumstances under which they were
made, not misleading; or (iii) the enforcement of this indemnification provision
or the contribution provisions of Section 7(d); and shall reimburse each such
indemnified party for any legal or other
33
expenses as incurred, but in no event less frequently than 30 days after each
invoice is submitted, incurred by them in connection with investigating or
defending against or appearing as a third-party witness in connection with any
such loss, claim, damage, liability or action, notwithstanding the possibility
that payments for such expenses might later be held to be improper, in which
case such payments shall be promptly refunded; provided, however, that the
-------- -------
Offerors shall not be liable in any such case to the extent, but only to the
extent, that any such losses, claims, damages, liabilities and expenses arise
out of or are based upon any untrue statement or omission or allegation thereof
that has been made therein or omitted therefrom in reliance upon and in
conformity with the Underwriters' Information; provided, that the
--------
indemnification contained in this paragraph with respect to any Preliminary
Prospectus shall not inure to the benefit of any Underwriter (or of any person
controlling any Underwriter) to the extent any such losses, claims, damages,
liabilities or expenses directly results from the fact that such Underwriter
sold Designated Preferred Securities to a person to whom there was not sent or
given, at or prior to the written confirmation of such sale, a copy of the
Prospectus (as amended or supplemented if any amendments or supplements thereto
shall have been furnished to you in sufficient time to distribute same with or
prior to the written confirmation of the sale involved), if required by law, and
if such loss, claim, damage, liability or expense would not have arisen but for
the failure to give or send such person such document. The foregoing indemnity
agreement is in addition to any liability the Company or the Trust may otherwise
have to any such indemnified party.
(b) Each Underwriter, severally and not jointly, agrees to indemnify
and hold harmless each Offeror, each of its directors, each of its officers who
signed the Registration Statement, and each person, if any, who controls an
Offeror within the meaning of the 1933 Act, to the same extent as required by
the foregoing indemnity from the Company to each Underwriter, but only with
respect to the Underwriters' Information. The foregoing indemnity agreement is
in addition to any liability which any Underwriter may otherwise have to any
such indemnified party.
(c) If any action or claim shall be brought or asserted against any
indemnified party or any person controlling an indemnified party in respect of
which indemnity may be sought from the indemnifying party, such indemnified
party or controlling person shall promptly notify the indemnifying party in
writing, and the indemnifying party shall assume the defense thereof, including
the employment of counsel reasonably satisfactory to the indemnified party and
the payment of all expenses; provided, however, that the failure so to notify
-------- -------
the indemnifying party shall not relieve it from any liability which it may have
to an indemnified party otherwise than under such paragraph, and further, shall
only relieve it from liability under such paragraph to the extent prejudiced
thereby. Any indemnified party or any such controlling person shall have the
right to employ separate counsel in any such action and to participate in the
defense thereof, but the fees and expenses of such counsel shall be at the
expense of such indemnified party or such controlling person unless (i) the
employment thereof has been specifically authorized by the indemnifying party in
writing, (ii) the indemnifying party has failed to assume the defense or to
employ counsel reasonably satisfactory to the indemnified party or (iii) the
named parties to any such action (including any impleaded parties) include both
such indemnified party or such controlling person and the indemnifying party and
such indemnified party or such controlling person shall have been advised by
such counsel that there may be one or more legal defenses available to it that
are different from or in addition to those available to the indemnifying party
(in which case, if such
34
indemnified party or controlling person notifies the indemnifying party in
writing that it elects to employ separate counsel at the expense of the
indemnifying party, the indemnifying party shall not have the right to assume
the defense of such action on behalf of such indemnified party or such
controlling person) it being understood, however, that the indemnifying party
shall not, in connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the fees and expenses of
more than one separate firm of attorneys at any time and for all such
indemnified parties and controlling persons, which firm shall be designated in
writing by the indemnified party(ies) (and, if such indemnified parties are
Underwriters, by you, as Representatives). Each indemnified party and each
controlling person, as a condition of such indemnity, shall use reasonable
efforts to cooperate with the indemnifying party in the defense of any such
action or claim. The indemnifying party shall not be liable for any settlement
of any such action effected without its written consent, but if there be a final
judgment for the plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless any indemnified party and any such controlling
person from and against any loss, claim, damage, liability or expense by reason
of such settlement or judgment.
An indemnifying party shall not, without the prior written consent of
each indemnified party, settle, compromise or consent to the entry of any
judgment in any pending or threatened claim, action, suit or proceeding in
respect of which indemnity may be sought hereunder (whether or not such
indemnified party or any person who controls such indemnified party within the
meaning of the 1933 Act is a party to such claim, action, suit or proceeding),
unless such settlement, compromise or consent includes a release of each such
indemnified party reasonably satisfactory to each such indemnified party and
each such controlling person from all liability arising out of such claim,
action, suit or proceeding or unless the indemnifying party shall confirm in a
written agreement with each indemnified party, that notwithstanding any federal,
state or common law, such settlement, compromise or consent shall not alter the
right of any indemnified party or controlling person to indemnification or
contribution as provided in this Agreement.
(d) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under
paragraphs (a), (b) or (c) hereof in respect of any losses, claims, damages,
liabilities or expenses referred to therein, then each indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount paid
or payable by such indemnified party as a result of such losses, claims,
damages, liabilities or expenses (i) in such proportion as is appropriate to
reflect the relative benefits received by the Offerors on the one hand and the
Underwriters on the other from the offering of the Designated Preferred
Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Offerors on the one hand and the Underwriters on the other in
connection with the statements or omissions that resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Offerors on the
one hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Designated
Preferred Securities (before deducting expenses) received by the Offerors bear
to the total underwriting discounts, commissions and compensation received by
the
35
Underwriters, in each case as set forth in the table on the cover page of the
Prospectus. The relative fault of the Offerors on the one hand and of the
Underwriters on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Offerors or by the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The Offerors and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this paragraph
(d) were determined by pro rata allocation or by any other method of allocation
that does not take into account the equitable considerations referred to herein.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities and expenses referred to in the first sentence of
this paragraph (d) shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this paragraph (d), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Designated Preferred Securities underwritten by such
Underwriter and distributed to the public were offered to the public exceeds the
amount of any damages that such Underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this paragraph (d), each person who controls an
Underwriter within the meaning of the 1933 Act shall have the same rights to
contribution as such Underwriter, and each person who controls an Offeror within
the meaning of the 1933 Act, each officer and trustee of an Offeror who shall
have signed the Registration Statement and each director of an Offeror shall
have the same rights to contribution as the Offerors subject in each case to the
preceding sentence. The obligations of the Offerors under this paragraph (d)
shall be in addition to any liability which the Offerors may otherwise have, and
the obligations of the Underwriters under this paragraph (d) shall be in
addition to any liability that the Underwriters may otherwise have.
(e) The indemnity and contribution agreements contained in this
Section 7 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 an Underwriter) or by or on behalf of the Offerors, or such
directors, trustees or officers (or any person controlling an Offeror), (ii)
acceptance of any Designated Preferred Securities and payment therefor hereunder
and (iii) any termination of this Agreement. A successor of any Underwriter or
of an Offeror, such directors, trustees or officers (or of any person
controlling an Underwriter or an Offeror) shall be entitled to the benefits of
the indemnity, contribution and reimbursement agreements contained in this
Section 7.
(f) The Company agrees to indemnify the Trust against any and all
losses, claims, damages or liabilities that may become due from the Trust under
this Section 7.
8. Termination. You shall have the right to terminate this Agreement
-----------
at any time by written notice at or prior to the Closing Date or, with respect
to the Underwriters' obligation to purchase the
36
Option Preferred Securities, at any time at or prior to the Option Closing Date,
without liability on the part of the Underwriters to the Offerors, if:
(a) Either Offeror shall have failed, refused, or been unable to
perform any agreement on its part to be performed under this Agreement, or any
of the conditions referred to in Section 6 shall not have been fulfilled, when
and as required by this Agreement;
(b) The Offerors or any of the Subsidiaries shall have sustained any
material loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree, which in the judgment of the
Representatives materially impairs the investment quality of the Designated
Preferred Securities;
(c) There has been since the respective dates as of which information
is given in the Registration Statement or the Prospectus, any materially adverse
change in, or any development which is reasonably likely to have a material
adverse effect on, the condition (financial or otherwise), earnings, business,
affairs, prospects or results of operations of the Offerors and the Subsidiaries
on a consolidated basis, whether or not arising in the ordinary course of
business;
(d) There has occurred any outbreak of hostilities or other calamity
or crisis or material change in general economic, political or financial
conditions, or internal conditions, the effect of which on the financial markets
of the United States is such as to make it, in your reasonable judgment,
impracticable to market the Designated Preferred Securities or enforce contracts
for the sale of the Designated Preferred Securities;
(e) Trading generally on the New York Stock Exchange, the American
Stock Exchange or in the Nasdaq National Market shall have been suspended, or
minimum or maximum prices for trading shall have been fixed, or maximum ranges
for prices for securities shall have been required, by any of said exchanges or
market system or by the Commission or any other governmental authority;
(f) A banking moratorium shall have been declared by either federal
or Michigan authorities; or
(g) Any action shall have been taken by any government in respect of
its monetary affairs which, in your reasonable judgment, has a material adverse
effect on the United States securities markets.
If this Agreement shall be terminated pursuant to this Section 8, the
Offerors shall not then be under any liability to the Underwriters except as
provided in Sections 5 and 7 hereof.
9. Default of Underwriters. If any Underwriter or Underwriters shall
-----------------------
default in its or their obligations to purchase Designated Preferred Securities
hereunder, the other Underwriters shall be obligated severally, in proportion to
their respective commitments hereunder, to purchase the Designated Preferred
Securities which such defaulting Underwriter or Underwriters agreed but failed
to
37
purchase; provided, however, that the non-defaulting Underwriters shall be under
-------- -------
no obligation to purchase that portion of such Designated Preferred Securities
to the extent that the aggregate number of Designated Preferred Securities to be
purchased by such non-defaulting Underwriters shall exceed 110% of the aggregate
underwriting commitments with respect to such non-defaulting Underwriters as set
forth in Schedule I hereto, and provided further, that no non-defaulting
---------- -------- -------
Underwriter shall be obligated to purchase Designated Preferred Securities to
the extent that the number of such Designated Preferred Securities is more than
110% of such Underwriter's underwriting commitment set forth in Schedule I
----------
hereto.
In the event that the non-defaulting Underwriters are not obligated
under the above paragraph to purchase the Designated Preferred Securities which
the defaulting Underwriter or Underwriters agreed but failed to purchase, the
Representatives may in their discretion arrange for one or more of the
Underwriters or for another party or parties to purchase such Designated
Preferred Securities on the terms contained herein. If within one business day
after such default the Representatives do not arrange for the purchase of such
Designated Preferred Securities, then the Company shall be entitled to a further
period of one business day within which to procure another party or parties
satisfactory to the Representatives to purchase such Designated Preferred
Securities on such terms.
In the event that the Representatives or the Company do not arrange
for the purchase of any Designated Preferred Securities to which a default
relates as provided above, this Agreement shall be terminated.
If the remaining Underwriters or substituted underwriters are required
hereby or agree to take up all or a part of the Designated Preferred Securities
of a defaulting Underwriter or Underwriters as provided in this Section 9, (i)
you shall have the right to postpone the Closing Date for a period of not more
than five full business days, in order to effect any changes that, in the
opinion of counsel for the Underwriters or the Company, may thereby be made
necessary in the Registration Statement or the Prospectus, or in any other
documents or agreements, and the Company agrees promptly to file any amendments
to the Registration Statement or supplements to the Prospectus which, in its
opinion, may thereby be made necessary and (ii) the respective numbers of
Designated Preferred Securities to be purchased by the remaining Underwriters or
substituted underwriters shall be taken as the basis of their underwriting
obligation for all purposes of this Agreement. Nothing herein contained shall
relieve any defaulting Underwriter of any liability it may have for damages
occasioned by its default hereunder. Any termination of this Agreement pursuant
to this Section 9 shall be without liability on the part of any non-defaulting
Underwriter or the Company, except for expenses to be paid or reimbursed
pursuant to Section 5 and except for the provisions of Section 7.
10. Effective Date of Agreement. If the Registration Statement is not
---------------------------
effective at the time of execution of this Agreement, this Agreement shall
become effective on the Effective Date at the time the Commission declares the
Registration Statement effective. The Company shall immediately notify the
Underwriters when the Registration Statement becomes effective.
38
If the Registration Statement is effective at the time of execution of
this Agreement, this Agreement shall become effective at the earlier of 11:00
a.m. St. Louis time, on the first full business day following the day on which
this Agreement is executed, or at such earlier time as the Representatives shall
release the Designated Preferred Securities for initial public offering. The
Representatives shall notify the Offerors immediately after they have taken any
action which causes this Agreement to become effective.
Until such time as this Agreement shall have become effective, it may
be terminated by the Offerors, by notifying you or by you, as Representatives of
the several Underwriters, by notifying either Offeror, except that the
provisions of Sections 5 and 7 shall at all times be effective.
11. Representations, Warranties and Agreements to Survive Delivery.
--------------------------------------------------------------
The representations, warranties, indemnities, agreements and other statements of
the Offerors and their officers and trustees set forth in or made pursuant to
this Agreement and the agreements of the Underwriters contained in Section 7
hereof shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of the Offerors or controlling persons of
either Offeror, or by or on behalf of the Underwriters or controlling persons of
the Underwriters, and shall survive delivery of and payment for the Designated
Preferred Securities. The obligations of the Company pursuant to Section 5 shall
survive delivery of and payment for the Designated Preferred Securities and
shall survive any termination or cancellation of this Agreement.
12. Notices. Except as otherwise provided in this Agreement, all
-------
notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if delivered by hand, mailed by registered or
certified mail, return receipt requested, or transmitted by any standard form of
telecommunication and confirmed. Notices to either Offeror shall be sent to 0000
Xxxx Xxxx Xxxxxx, Xxxxxx, Xxxxxxxx 00000, Attention: Chief Financial Officer
(with a copy to Miller, Canfield, Paddock and Stone, P.L.C., 000 Xxxx Xxxx Xxxx
Xxxx, Xxxxx 000, Xxxx, Xxxxxxxx 00000, Attention: Xxxx X. Xxxxxxxx, Esq.; and
notices to the Underwriters shall be sent to Xxxxxx, Xxxxxxxx & Company,
Incorporated, One Financial Plaza, 000 Xxxxx Xxxxxxxx, 0xx Xxxxx, Xx. Xxxxx,
Xxxxxxxx 00000, Attention: Xxxx X. Xxxxxx; to Xxxx Xxxxxxxx Xxxxxxx, a division
of Xxxx Xxxxxxxx Incorporated, 00 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxxxxx,
Xxxxxxxxx 00000, Attention: Xxxx Xxxxxxx; and to X.X. Xxxxxxx & Sons, Inc., Xxx
Xxxxxx Xxxxx, 00xx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: Xxxxxxx X.
Xxxx, (with a copy to Xxxxx Xxxx LLP, 000 Xxxxx Xxxxxxxx, Xxxxx 0000, Xx. Xxxxx,
Xxxxxxxx 00000, Attention: J. Xxxx Xxxxxx, Esq.). In all dealings with the
Company under this Agreement, Xxxxxx, Xxxxxxxx & Company, Incorporated, Xxxx
Xxxxxxxx Xxxxxxx and X.X. Xxxxxxx & Sons, Inc., shall act jointly as
representatives of and on behalf of the several Underwriters, and the Company
shall be entitled to act and rely upon any statement, request, notice or
agreement on behalf of the Underwriters, made or given jointly by Xxxxxx,
Xxxxxxxx & Company, Incorporated, Xxxx Xxxxxxxx Xxxxxxx and X.X. Xxxxxxx & Sons,
Inc. on behalf of the Underwriters, as if the same shall have been made or given
in writing by the Underwriters. No statement, request, notice, agreement or
action issued or taken in connection with the Offering by either Xxxxxx,
Xxxxxxxx & Company, Incorporated, Xxxx Xxxxxxxx Xxxxxxx or X.X. Xxxxxxx & Sons,
Inc., acting alone, without the express written agreement of the other party,
shall be valid and binding against the other or the several Underwriters.
39
13. Parties. The Agreement herein set forth is made solely for the
-------
benefit of the Underwriters and the Offerors and, to the extent expressed,
directors, trustees and officers of the Offerors, any person controlling the
Offerors or the Underwriters, and their respective successors and assigns. No
other person shall acquire or have any right under or by virtue of this
Agreement. The term "successors and assigns" shall not include any purchaser, in
his status as such purchaser, from the Underwriters of the Designated Preferred
Securities.
14. Governing Law. This Agreement shall be governed by the laws of
-------------
the State of Missouri, without giving effect to the choice of law or conflicts
of law principles thereof.
15. Counterparts. This Agreement may be executed in one or more
------------
counterparts, and when a counterpart has been executed by each party hereto all
such counterparts taken together shall constitute one and the same Agreement.
40
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
shall become a binding agreement between the Company, the Trust and you in
accordance with its terms.
Very truly yours,
REPUBLIC BANCORP INC.
By:
_____________________________________________
Xxxx X. Xxxxxxx
President and Chief Executive Officer
REPUBLIC CAPITAL TRUST I
By:
---------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
--------------------------------------
Title: Administrative Trustee
--------------------------------------
CONFIRMED AND ACCEPTED,
as of __________, 2001
XXXXXX, XXXXXXXX & COMPANY, INCORPORATED
By:
______________________________________
Xxxx X. Xxxxxx
Senior Vice President
For itself and as Representative of the several
Underwriters named in Schedule I hereto.
XXXX XXXXXXXX XXXXXXX, a division of
XXXX XXXXXXXX INCORPORATED
By:
______________________________________
Xxxx Xxxxxxx
Principal
X.X. XXXXXXX & SONS, INC.
By:
______________________________________
Xxxxxxx X. Xxxx
Managing Director
For itself and as Representative of the several
Underwriters named in Schedule I hereto.
SCHEDULE I
----------
Underwriter Number of Firm Preferred Securities
----------- -----------------------------------
Xxxxxx, Xxxxxxxx & Company, Incorporated
Xxxx Xxxxxxxx Incorporated
X.X. Xxxxxxx & Sons, Inc.
Total 1,600,000
================
EXHIBIT A
LIST OF DIRECT AND INDIRECT SUBSIDIARIES
Republic Bank
Quincy Investment Services, Inc.*
D&N Capital Corporation*
CAS Properties, Inc.*
* Indicates direct wholly-owned subsidiary of Republic Bank
