EXHIBIT 1.2
[Preferred Stock]
OLD KENT FINANCIAL CORPORATION
UNDERWRITING AGREEMENT
New York, New York
____________, 199_
To the Representatives
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Dear Sirs:
Old Kent Financial Corporation, a Michigan corporation (the
"Company"), proposes to sell to the underwriters named in Schedule II
hereto (the "Underwriters"), for whom you are acting as representatives
(the "Representatives"), __________ shares (the "Initial Shares") of the
Company's preferred stock (the "Preferred Stock"). The Company also grants
to the Underwriters, severally and not jointly, the option described in
Section 2(c) to purchase up to _____ additional shares (the "Option
Shares") of Preferred Stock to cover over-allotments.
The Company may elect to offer fractional interests in shares of
Preferred Stock, in which event the Company will provide for the issuance
by a Depositary of receipts evidencing depositary shares that will
represent such fractional interests ("Depositary Shares"). The shares of
Preferred Stock involved in any such offering are hereinafter referred to
as the "Securities" and, where appropriate herein, reference to the
Securities includes the Depositary Shares. Such Securities are to be sold
to each Underwriter, acting severally and not jointly, in such amounts as
are listed in Schedule II opposite the name of each Underwriter. The
Securities are more fully described in the Final Prospectus, referred to
below. If the firm or firms listed in Schedule II include only the firm or
firms listed in Schedule I, then the terms "Underwriters" and
"Representatives", as used herein, each shall be deemed to refer to such
firm or firms.
1. Representations and Warranties. The Company represents and
warrants to, and agrees with, each Underwriter that as of the date of this
Agreement:
(a) The Company meets the requirements for use of Form S-3
under the Securities Act of 1933, as amended (the "Act"), and has
filed with the Securities and Exchange Commission (the
"Commission") a registration statement on such Form S-3 (the file
number of which is set forth in Schedule I), which registration
statement has become effective, for the registration under the
Act of the Securities. Such registration statement, as amended at
the date of this Agreement, meets the requirements set forth in
Rule 415(a)(1) under the Act and complies in all other material
respects with Rule 415. The Company proposes to file with the
Commission pursuant to Rule 424 or Rule 434 under the Act a
supplement to the form of prospectus included in such
registration statement relating to the Securities and the plan of
distribution thereof and has previously advised you of all
further information (financial and other) with respect to the
Company to be set forth therein. Such registration statement,
including the exhibits thereto, as amended at the date of this
Agreement, is hereinafter called the "Registration Statement";
such prospectus in the form in which it appears in the
Registration Statement is hereinafter called the "Basic
Prospectus"; and such supplemented form of prospectus, in the
form in which it shall be filed with the Commission pursuant to
Rule 424 or Rule 434 (including the Basic Prospectus as so
supplemented) is hereinafter called the "Final Prospectus." Any
preliminary form of the Final Prospectus that has heretofore been
filed pursuant to Rule 424 hereinafter is called the "Preliminary
Final Prospectus." Any reference in this Agreement to the
Registration Statement, the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 that were filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
on or before the date of this Agreement, or the issue date of the
Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, as the case may be; and any reference in this
Agreement to the terms "amend", "amendment" or "supplement" with
respect to the Registration Statement, the Basic Prospectus, and
the Preliminary Final Prospectus or the Final Prospectus shall be
deemed to refer to and include the filing of any document under
the Exchange Act after the date of this Agreement, or the issue
date of the Basic Prospectus, any Preliminary Final Prospectus or
the Final Prospectus, as the case may be, and deemed to be
incorporated therein by reference.
(b) As of the date of this Agreement, when the Final
Prospectus is first filed pursuant to Rule 424 or Rule 434 under
the Act, when, prior to the Closing Date (as hereinafter
defined), any amendment to the Registration Statement becomes
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effective (including the filing of any document incorporated by
reference in the Registration Statement), when any supplement to
the Final Prospectus is filed with the Commission and at the
Closing Date (as defined below), (i) the Registration Statement
as amended as of any such time, and the Final Prospectus, as
amended or supplemented as of any such time, will comply in all
material respects with the applicable requirements of the Act,
and the Exchange Act and the respective rules thereunder, (ii)
the Registration Statement, as amended as of any such time, will
not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading,
and (iii) the Final Prospectus, as amended or supplemented as of
any such time, will not contain any untrue statement of a
material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were
made, not misleading; provided, however, that the Company makes
no representations or warranties as to the information contained
in or omitted from the Registration Statement or the Final
Prospectus or any amendment thereof or supplement thereto in
reliance upon and in conformity with information furnished in
writing to the Company by or on behalf of any Underwriter through
the Representatives specifically for use in connection with the
preparation of the Registration Statement and the Final
Prospectus. It is agreed that each Underwriter and you, as
Representative, have furnished to the Company in writing for such
use the statements with respect to Underwriters in response to
Item E of Form S-1, any statements relating to the terms of the
offering by the Underwriters on the cover page of the Final
Prospectus, and all statements under the caption "Underwriting"
in the Final Prospectus.
(c) The Company is a duly organized and validly existing
corporation in good standing under the laws of the state of
Michigan, has the corporate power and authority to own its
properties and conduct its business as described in the Final
Prospectus, and is duly registered as a bank holding company
under the Bank Holding Company Act of 1956, as amended; Old Kent
Bank (the "Principal Subsidiary Bank") is a banking organization
formed under the laws of the state of Michigan and authorized
thereunder to transact business.
(d) Neither the Company nor the Principal Subsidiary Bank
is required to be qualified or licensed to do business as a
foreign corporation in any jurisdiction where it is not so
qualified or licensed, except where the failure to be so
qualified would not reasonably be expected to have a material
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adverse effect on the business or properties of the Company and
its subsidiaries on a consolidated basis.
(e) All the outstanding shares of capital stock of the
Company and the Principal Subsidiary Bank have been duly and
validly authorized and issued and are fully paid and (except as
provided in M.C.L. 450.1551 and the Michigan Banking
Code of 1969, as amended) nonassessable. Except as otherwise set
forth in the Final Prospectus, all outstanding shares of capital
stock of the Principal Subsidiary Bank are owned, directly or
indirectly, by the Company, free and clear of any perfected
security interest and, subject to the provisions of and the
Michigan Banking Code of 1969, as amended, any other security
interests, claims, liens or encumbrances.
(f) The Securities conform in all material respects to the
description thereof contained in the Final Prospectus;
(g) There is no pending or, to the Company's knowledge,
threatened action, suit or proceeding before any court or
governmental agency, authority or body or any arbitrator
involving the Company or any of its subsidiaries, of a character
required to be disclosed in the Registration Statement that is
not adequately disclosed in the Final Prospectus. There is no
franchise, contract or other document of a character required to
be described in the Registration Statement or Final Prospectus,
or to be filed as an exhibit, that is not described or filed as
required.
(h) This Agreement and the Depository Agreement have been
duly authorized, executed and delivered by the Company and each
constitutes a legal, valid and binding agreement of the Company
enforceable against the Company in accordance with its terms
(subject, as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium, fraudulent
conveyance or other similar laws affecting the rights of
creditors now or hereafter in effect, and to equitable principles
that may limit the right to specific enforcement of remedies, and
except insofar as the enforceability of the indemnity and
contribution provisions contained in this Agreement may be
limited by federal and state securities laws, and further subject
to bank regulatory powers and to the application of principles of
public policy).
(i) No consent, approval, authorization or order of any
court or governmental agency or body is required on behalf of the
Company for the consummation of the transactions contemplated
herein, except such as have been obtained under the Act and such
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as may be required by the National Association of Securities
Dealers, Inc. ("NASD") or under the blue sky or insurance laws of
any jurisdiction in connection with the purchase and distribution
of the Securities by the Underwriters and such other approvals as
have been obtained.
(j) Neither the issue and sale of the Securities, nor the
consummation of any other of the transactions herein contemplated
nor the fulfillment of the terms of this Agreement will conflict
with, result in a breach of, or constitute a default under the
Restated Articles of Incorporation or Restated Bylaws of the
Company or the terms of any material indenture or other agreement
to which the Company or the Principal Subsidiary Bank is a party
or bound, or any order or regulation applicable to the Company or
the Principal Subsidiary Bank of any court, regulatory body,
administrative agency, governmental body or arbitrator having
jurisdiction over the Company or any of its affiliates.
(k) The financial statements (including the related notes
and supporting schedules) included in the Final Prospectus
present fairly in all material respects the financial condition
and results of operations of the entities purported to be shown
thereby, at the dates and for the periods indicated, and (except
as indicated therein) have been prepared in conformity with
generally accepted accounting principles applied in a consistent
basis throughout the periods involved.
2. Purchase and Sale. (a) Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the
Company agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Company the respective
number of Initial Shares set forth opposite such Underwriter's name in
Schedule II.
(b) The initial public offering price and the purchase price of the
Initial Shares shall be set forth in a separate written instrument (the
"Pricing Agreement") signed by the Representatives and the Company, the
form of which is attached to this Agreement as Schedule III. From and
after the execution and delivery of the Pricing Agreement, this Agreement
shall be deemed to include the Pricing Agreement. The purchase price per
share to be paid by the several Underwriters for the Initial Shares shall
be an amount equal to the initial public offering price, less an amount per
share to be determined by agreement among the Representatives and the
Company.
(c) In addition, on the basis of the representations and warranties
contained herein, and subject to the terms and conditions set forth in this
Agreement, the Company grants an option to the Underwriters, severally and
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not jointly, to purchase up to an additional _______ Option Shares at the
same price per share determined as provided above for the Initial Shares.
The option hereby granted will expire 30 days after the date of the Pricing
Agreement, and may be exercised, in whole or in part (but not more than
once), only for the purpose of covering over-allotments upon notice by the
Representatives to the Company setting forth the number of Option Shares as
to which the several Underwriters are exercising the option, and the time
and date of payment and delivery thereof. Such time and date of Delivery
(the "Date of Delivery") shall be determined by the Representatives but
shall not be later than seven full business days after the exercise of such
option and not in any event prior to the Closing Date (as defined below).
If the option is exercised as to all or any portion of the Option Shares,
the Option Shares as to which the option is exercised shall be purchased by
the Underwriters severally and not jointly, in proportion to, as nearly as
practicable, their respective Initial Shares underwriting obligations as
set forth on Schedule II.
3. Delivery and Payment. Delivery of and payment for the
Underwriters' Securities shall be made on the date and at the time
specified in Schedule I hereto, which date and time may be postponed by
agreement between the Representatives and the Company or as provided in
Section 9 (such date and time of delivery and payment for the Securities
being herein called the "Closing Date"). Delivery of the Underwriters'
Securities shall be made to the Representatives for the respective accounts
of the several Underwriters against payment by the several Underwriters
through the Representatives of the purchase price thereof in the manner set
forth in Schedule I. Unless otherwise agreed, certificates for the
Underwriters' Securities shall be in the form set forth in Schedule I
hereto, and such certificates may be deposited with The Depository Trust
Company ("DTC") or custodian for DTC and registered in the name of Cede &
Co., as nominee for DTC.
In addition, in the event that any or all of the Option Shares are
purchased by the Underwriters, delivery and payment for the Option Shares
shall be made at the office specified for delivery of the Initial Shares in
the Pricing Agreement, or at such other place as the Company and the
Representatives shall determine, on the Date of Delivery as specified in
the notice from the Representatives to the Company. Delivery of the Option
Shares shall be made to the Representatives against payment by the
Underwriters through the Representatives of the purchase price thereof to
or upon the order of the Company in the manner set forth in Schedule I.
Unless otherwise agreed, certificates for the Option Shares shall be in the
form set forth in Schedule I, and such certificates shall be registered in
such names and in such denominations as the Representatives may request not
less than three full business days in advance of the Date of Delivery.
4. Agreements. The Company agrees with the several Underwriters
that:
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(a) Prior to the termination of the offering of the
Securities, the Company will not file any amendment of the
Registration Statement or supplement (including the Final
Prospectus) to the Basic Prospectus unless the Company has
furnished you a copy for your review prior to filing and will not
file any such proposed amendment or supplement to which you
reasonably object. Subject to the foregoing sentence, the Company
will cause the Final Prospectus to be filed with the Commission
pursuant to Rule 424 or Rule 434 via the Electronic Data
Gathering, Analysis and Retrieval System. The Company will advise
the Representatives promptly (i) when the Final Prospectus shall
have been filed with the Commission pursuant to Rule 424 or Rule
434, (ii) when any amendment to the Registration Statement
relating to the Securities shall have become effective, (iii) of
any request by the Commission for any amendment of the
Registration Statement or amendment of or supplement to the Final
Prospectus or for any additional information, (iv) of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose and (v) of the
receipt by the Company of any notification with respect to the
suspension of the qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding
for such purpose. The Company will use its best efforts to
prevent the issuance of any such stop order and, if issued, to
obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered by an Underwriter or
dealer under the Act, any event occurs as a result of which, in
the judgment of the Company or in the opinion of counsel for the
Underwriters, the Final Prospectus as then amended or
supplemented would include any untrue statement of a material
fact or omit to state any material fact necessary to make the
statements therein in light of the circumstances under which they
were made not misleading, or if it shall be necessary to amend or
supplement the Final Prospectus to comply with the Act or the
Exchange Act or the respective rules thereunder, the Company
promptly will prepare and file with the Commission, subject to
the first sentence of paragraph (a) of this Section 4, an
amendment or supplement that will correct such statement or
omission or an amendment that will effect such compliance.
(c) The Company will make generally available to its
security holders and to the Representatives as soon as
practicable, but not later than 90 days after the close of the
period covered thereby, an earnings statement (in form complying
with the provisions of Rule 158 of the regulations under the Act)
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covering a 12-month period beginning not later than the first day
of the Company's fiscal quarter next following the "effective
date" (as defined in said Rule 158) of the Registration
Statement.
(d) The Company will furnish to the Representatives and
counsel for the Underwriters, without charge, copies of the
Registration Statement (including exhibits thereto) and each
amendment thereto that shall become effective on or prior to the
Closing Date and, so long as delivery of a prospectus by an
Underwriter or dealer may be required by the Act, as many copies
of any Preliminary Final Prospectus and the Final Prospectus and
any amendments thereof and supplements thereto as the
Representatives may reasonably request. Except as otherwise
provided herein, the Company will pay the expenses of printing
all documents relating to the offering.
(e) The Company will arrange for the qualification of the
Securities for sale under the laws of such jurisdictions as the
Representatives may reasonably designate, will use all reasonable
efforts to maintain such qualifications in effect so long as
required for the distribution of the Securities and will arrange
for the determination of the legality of the Securities for
purchase by institutional investors; provided, however, that the
Company shall not be required to qualify to do business in any
jurisdiction where it is not now so qualified or to take any
action that would subject it to general or unlimited service of
process of any jurisdiction where it is not now so subject.
(f) Until the business day following the Closing Date, the
Company will not, without the consent of the Representatives,
offer or sell, or announce the offering of, any securities
covered by the Registration Statement or by any other
registration statement filed under the Act; provided, however,
the Company may, at any time, offer or sell or announce the
offering of any securities (A) covered by a registration
statement on Form S-8, (B) covered by a registration statement on
Form S-3 and pursuant to which the Company issues securities for
its Dividend Reinvestment Plan, or (C) reserved for such
issuance, with such reservation referred to in the Final
Prospectus.
5. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Securities shall be subject
to the accuracy of the representations and warranties on the part of the
Company contained in this Agreement as of the date hereof, as of the date
of the effectiveness of any amendment to the Registration Statement filed
prior to the Closing Date (including the filing of any document
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incorporated by reference therein) and as of the Closing Date, to the
accuracy of the statements of the Company made in any certificates pursuant
to the provisions hereof, to the performance by the Company of its
obligations hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall have
been issued and no proceedings for that purpose shall have been
instituted or threatened; and the Final Prospectus shall have
been filed or mailed for filing with the Commission within the
time period prescribed by the Commission.
(b) The Company shall have furnished to the Representatives
the opinion of Xxxxxx Xxxxxxxx & Xxxx LLP, counsel for the
Company, dated the Closing Date, to the effect of paragraphs (i)
through (xi) below:
(i) the Company is a duly organized and validly
existing corporation in good standing under the laws of
the state of Michigan, has the corporate power and
authority to own its properties and conduct its
business as described in the Final Prospectus, and is
duly registered as a bank holding company under the
Bank Holding Company Act of 1956, as amended; the
Principal Subsidiary Bank is a banking organization
organized under the laws of the state of Michigan and
authorized thereunder to transact business;
(ii) except for those jurisdictions specifically
enumerated in such opinion, neither the Company nor the
Principal Subsidiary Bank is required to be qualified
or licensed to do business as a foreign corporation in
any jurisdiction where it is not so qualified or
licensed, except where the failure to be so qualified
or licensed would not reasonably be expected to have a
material adverse effect on the business or properties
of the Company and its subsidiaries on a consolidated
basis;
(iii) all the outstanding shares of capital
stock of the Company and the Principal Subsidiary Bank
have been duly and validly authorized and issued and
are fully paid and (except as provided in M.C.L.
450.1551 and the Michigan Banking Code of
1969, as amended) nonassessable, and, except as
otherwise set forth in the Final Prospectus, all
outstanding shares of capital stock of the Principal
Subsidiary Bank are owned, directly or indirectly, by
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the Company free and clear of any perfected security
interest and, to the knowledge of such counsel, any
other security interests, claims, liens or
encumbrances;
(iv) the Securities conform as to legal matters in
all material respects to the description thereof
contained in the Final Prospectus;
(v) if the Securities are to be listed on [the
New York Stock Exchange][The Nasdaq Stock Market],
authorization therefor has been given, subject to
official notice of issuance and evidence of
satisfactory distribution, or the Company has filed a
preliminary listing application and all required
supporting documents with respect to the Securities
with [the New York Stock Exchange][The Nasdaq Stock
Market] and such counsel has no reason to believe that
the Securities will not be authorized for listing,
subject to official notice of issuance and evidence of
satisfactory distribution;
(vi) to the knowledge of such counsel, there is no
pending or threatened action, suit or proceeding before
any court or governmental agency, authority or body or
any arbitrator involving the Company or any of its
subsidiaries, of a character required to be disclosed
in the Registration Statement that is not adequately
disclosed in the Final Prospectus, and there is no
franchise, contract or other document of a character
required to be described in the Registration Statement
or Final Prospectus, or to be filed as an exhibit, that
is not described or filed as required;
(vii) the Registration Statement has become
effective under the Act; to the knowledge of such
counsel, no stop order suspending the effectiveness of
the Registration Statement has been issued and no
proceedings for that purpose have been instituted or
threatened; the Registration Statement, the Final
Prospectus and each amendment thereof or supplement
thereto (other than the financial statements and other
financial and statistical information contained therein
or incorporated by reference therein, as to which such
counsel need express no opinion) comply as to form in
all material respects with the applicable requirements
of the Act and the Exchange Act and the respective
rules thereunder;
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(viii) this Agreement has been duly authorized,
executed and delivered by the Company and is a valid
and binding agreement of the Company (subject, as to
enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium, fraudulent
conveyance or other similar laws affecting the rights
of creditors now or hereafter in effect, and to
equitable principles that may limit the right to
specific enforcement of remedies, and except insofar as
the enforceability of the indemnity and contribution
provisions contained in this Agreement may be limited
by federal and state securities laws, and further
subject to bank regulatory powers and to the
application of principles of public policy);
(ix) no consent, approval, authorization or order
of any court or governmental agency or body is required
on behalf of the Company for the consummation of the
transactions contemplated in this Agreement, except
such as have been obtained under the Act and such as
may be required by the NASD or under the blue sky or
insurance laws of any jurisdiction in connection with
the purchase and distribution of the Securities by the
Underwriters and such other approvals (specified in
such opinion) as have been obtained;
(x) neither the issue and sale of the Securities,
nor the consummation of any other of the transactions
in this Agreement contemplated nor the fulfillment of
the terms of this Agreement will conflict with, result
in a breach of, or constitute a default under the
Restated Articles of Incorporation or Restated Bylaws
of the Company or, to the knowledge of such counsel,
the terms of any material indenture or other material
agreement or instrument known to such counsel and to
which the Company or the Principal Subsidiary Bank is a
party or bound, or any order or regulation known to
such counsel to be applicable to the Company or the
Principal Subsidiary Bank of any court, regulatory
body, administrative agency, governmental body or
arbitrator having jurisdiction over the Company or any
of its affiliates; and
(xi) to the knowledge of such counsel, each holder
of securities of the Company having rights to the
registration of such securities under the Registration
Statement has waived such rights or such rights have
expired by reason of lapse of time following
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notification of the Company's intention to file the
Registration Statement.
In rendering such opinion, but without opining in connection
therewith, such counsel shall also state that, although it has
not independently verified, is not passing upon and assumes no
responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement, it has no
reason to believe that the Registration Statement or any
amendment thereof at the time it became effective contained any
untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which
they were made, not misleading, or that the Final Prospectus, as
amended or supplemented, contains any untrue statement of a
material fact or omits to state a material fact necessary to make
the statements therein, in light of the circumstances under which
they were made, not misleading.
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction
other than the state of Michigan or the United States, to the
extent deemed proper by such counsel and specified in such
opinion, upon the opinion of other counsel of good standing
believed to be reliable and who are reasonably satisfactory to
counsel for the Underwriters; and (B) as to matters of fact, to
the extent deemed proper by such counsel, on certificates of
responsible officers of the Company and its subsidiaries and
public officials. In rendering such opinion with respect to the
matters covered in clause (ix), such counsel may state that its
opinion and belief are based upon the procedures specified in
such opinion, but are without independent check or verification.
(c) The Representatives shall have received from
___________, counsel for the Underwriters, such opinion or
opinions, dated the Closing Date, with respect to the matters
referred to in clauses (iv), (vii), (viii), and (ix) of Paragraph
5(b). In rendering such opinion, but without opining in
connection therewith, such counsel shall also state that,
although it has not independently verified, is not passing upon
and assumes no responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration
Statement, it has no reason to believe that the Registration
Statement or any amendment thereof at the time it became
effective contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein
or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, or that
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the Final Prospectus, as amended or supplemented, contains any
untrue statement of a material fact or omits to state a material
fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may rely, as to matters
involving the application of laws of any jurisdiction other than
the state of __________ or the United States, to the extent
deemed proper by such counsel and specified in such opinion, upon
the opinion of other counsel of good standing believed to be
reliable and who are reasonably satisfactory to counsel for the
Company.
(d) The Company shall have furnished to the Representatives
a certificate of the Company, signed by a Senior Vice President
and the principal financial or accounting officer of the Company,
dated the Closing Date, to the effect that the signers of such
certificate have carefully examined the Registration Statement,
the Final Prospectus and this Agreement and that to the best of
their knowledge:
(i) the representations and warranties of the Company
in this Agreement are true and correct in all material
respects on and as of the Closing Date with the same effect
as if made on the Closing Date and the Company has complied
with all the agreements and satisfied all the conditions on
its part to be performed or satisfied at or prior to the
Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement, as amended, has been issued and no
proceedings for that purpose have been instituted or, to the
best of the Company's knowledge, threatened; and
(iii) since the date of the most recent financial
statements included in the Final Prospectus, there has been
no material adverse change in the financial condition,
earnings, business or properties of the Company and its
subsidiaries, whether or not arising from transactions in
the ordinary course of business, except as set forth in or
contemplated in the Final Prospectus.
(e) At the Closing Date, Xxxxxx Xxxxxxxx LLP shall have
furnished to the Representatives (and also addressed to the
Company's Board of Directors) a letter or letters (which letter
may refer to letters previously delivered to one or more of the
Representatives), dated as of the Closing Date, in form and
substance satisfactory to the Representatives, confirming that
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the response, if any, to Item 10 of the Registration Statement is
correct insofar as it relates to them and stating in effect that:
(i) They are independent accountants within the
meaning of the Act and the applicable published rules and
regulations thereunder.
(ii) In their opinion, the consolidated financial
statements of the Company audited by them and included or
incorporated by reference in the Registration Statement and
Final Prospectus comply as to form in all material respects
with the applicable accounting requirements of the Act and
the related published rules and regulations thereunder.
(iii) They performed review procedures (but not an
audit in accordance with generally accepted auditing
standards) consisting of:
(A) With respect to the period from the date of
the most recent audited balance sheet included or
incorporated by reference in the Final Prospectus
through a specified date not more than five business
days prior to the date of delivery of such letter:
reading the minutes of the meetings of the
shareholders, the board of directors, executive
committee and audit committee of the Company and the
Principal Bank Subsidiary as set forth in the minute
books for such period,
(B) With respect to the three, six, or nine month
period, as the case may be, ended on the date of the
most recent unaudited condensed consolidated interim
balance sheet of the Company included or incorporated
by reference in the Registration Statement and Final
Prospectus, and with respect to the same three, six, or
nine month period of the previous year:
(I) Performing the procedures specified by
the American Institute of Certified Public
Accountants for a review of interim financial
information as described in SAS No. 71, Interim
Financial Information, on the unaudited condensed
consolidated interim financial statements of the
Company included or incorporated by reference in
the Registration Statement and Final Prospectus,
(II) Making inquiries of certain officials of the
Company who have responsibility for financial and
-14-
accounting matters whether such unaudited condensed
consolidated financial statements comply as to form in
all material respects with the applicable accounting
requirements of the Act and the related published rules
and regulations,
(C) With respect to the period from the date of
the most recent unaudited condensed consolidated
interim balance sheet of the Company included or
incorporated by reference in the Final Prospectus to
the date of the latest available interim financial
data:
(I) Reading the unaudited condensed consolidated
financial statements of the Company for such period, and
(II) Inquiring of certain officials of the Company
who have responsibility for financial and accounting
matters whether the unaudited condensed consolidated
financial statements referred to in (C)(I) immediately
above are stated on a basis substantially consistent with
that of the audited consolidated financial statements
included or incorporated by reference in the
Final Prospectus.
(iv) Based on the procedures described in (iii)
immediately above, nothing came to their attention as a
result of the foregoing procedures that caused them to
believe that:
(A) The unaudited condensed consolidated
financial statements, included or incorporated by
reference in the Registration Statement and Final
Prospectus, do not comply as to form in all material
respects with the applicable accounting requirements of the
Act and the related published rules and regulations thereunder,
(B) Any material modifications should be made to
the unaudited condensed consolidated financial
statements described in (C) immediately above, included or
incorporated by reference in Final Prospectus, for them to be
in conformity with generally accepted accounting principles,
and
(C) As of the date of the latest available interim
financial data and at the specified date not more than
five business days prior to the date of delivery of
such letter, there was any change in the capital stock,
-15-
increase in long-term debt, or decrease in consolidated
net assets or shareholders' equity of the
Company (on a consolidated basis) as compared with the
amounts shown in the unaudited condensed consolidated
financial statements included or incorporated
by reference in the Final Prospectus.
(v) The letter shall also state that Xxxxxx Xxxxxxxx
LLP has carried out certain other specified procedures, not
constituting an audit, with respect to certain amounts,
percentages and financial information that are included or
incorporated by reference in the Registration Statement and
Final Prospectus and that are specified by the
Representatives and agreed to by Xxxxxx Xxxxxxxx LLP, and
has found such amounts, percentages and financial
information to be in agreement with the relevant accounting,
financial and other records of the Company and its
subsidiaries identified in such letter.
In addition, at the time this Agreement is executed, Xxxxxx
Xxxxxxxx LLP shall have furnished to the Representatives a
letter or letters, dated the date of this Agreement, in form
and substance satisfactory to the Representatives, to the
effect set forth in this paragraph (e) and in Schedule I.
(f) Subsequent to the respective dates as of which
information is given in the Registration Statement and the Final
Prospectus, there shall not have been (i) any change or decrease
specified in the letter or letters referred to in paragraph (e)
of this Section 5, or (ii) any change, or any development
involving a prospective change, in or affecting the earnings,
business or properties of the Company and its subsidiaries the
effect of which, in any case referred to in clause (i) or (ii)
above, is, in the reasonable judgment of the Representatives, so
material and adverse as to make it inadvisable to proceed with
the offering or the delivery of the Securities as contemplated by
the Registration Statement and the Final Prospectus.
(g) Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information,
certificates and documents as the Representatives may reasonably
request.
If any of the conditions specified in this Section 5 shall not have been
fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in
this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Representatives, this Agreement
-16-
and all obligations of the Underwriters hereunder may be canceled at, or at
any time prior to, the Closing Date by the Representatives.
6. Payment of Expenses. The Company will pay all expenses incident
to the performance of its obligations under this Agreement, including (i)
the printing and filing of the Registration Statement as originally filed
and of each amendment thereto, (ii) the copying of this Agreement and the
Pricing Agreement, (iii) the preparation, issuance and delivery of the
certificates for the Securities to the Underwriters, including capital
duties, stamp duties and stock transfer taxes, if any, payable upon
issuance of any of the Securities, the sale of the Securities to the
Underwriters and the fees and expenses of the transfer agent for the
Securities, (iv) the fees and disbursements of the Company's counsel and
accountants, (v) the qualification of the Securities under state securities
laws in accordance with the provisions of Section 4(e), including filing
fees and the reasonable fees and disbursements of counsel for the
Underwriters in connection therewith and in connection with the preparation
of the "Blue Sky Survey" not to exceed $____________, (vi) the printing and
delivery to the Underwriters of copies of the Registration Statement as
originally filed and of each amendment thereto, of the preliminary
prospectuses, and of the Prospectuses and any amendments or supplements
thereto, (vii) the printing and delivery to the Underwriters of copies of
the Blue Sky Survey, and (viii) the fee of the National Association of
Securities Dealers, Inc. and, if applicable, [the New York Stock Exchange]
[The Nasdaq Stock Market].
If the sale of the Securities provided for herein is not consummated
because any condition to the obligations of the Underwriters set forth in
Section 5 hereof is not satisfied or because of any refusal, inability or
failure on the part of the Company to perform any agreement herein or
comply with any provision hereof other than by reason of a default by any
of the Underwriters, the Company will reimburse the Underwriters severally
upon demand for all out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by them in
connection with the proposed purchase and sale of the Securities.
7. Conditions to Purchase of Option Shares. In the event the
Underwriters exercise the option granted in Section 2(c) hereof to purchase
all or any portion of the Option Shares and the Date of Delivery determined
by the Representatives pursuant to Section 2 is later than the Closing
Date, the obligations of the several Underwriters to purchase and pay for
the Option Shares that they shall have respectively agreed to purchase
hereunder are subject to the accuracy of the representations and warranties
of the Company contained herein, to the performance by the Company of its
obligations hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall have
-17-
been issued and no proceedings for that purpose shall have been
instituted or threatened; and any required filing of the Final
Prospectus pursuant to Rule 424(b) or Rule 434 under the Act
shall have been made within the proper time period.
(b) At the Date of Delivery, the Representatives shall have
received, each dated the Date of Delivery and relating to the
Option Shares:
(i) the favorable opinion of Xxxxxx Xxxxxxxx & Xxxx
LLP, counsel for the Company, in form and substance
reasonably satisfactory to counsel for the Underwriters, to
the same effect as the opinion required by Section 5(b);
(ii) the favorable opinion of
___________________________, counsel for the Underwriters,
to the same effect as the opinion required by Section 5(c);
(iii) a certificate of a Senior Vice President of
the Company and of the principal financial or accounting
officer of the Company with respect to the matters set forth
in Section 5(d); and
(iv) a letter from Xxxxxx Xxxxxxxx LLP, in form and
substance reasonably satisfactory to the Underwriters,
substantially the same in scope and substance as the letter
furnished to the Underwriters pursuant to Section 5(e)
except that the "specified date" in the letter furnished
pursuant to this Section 7(b)(v) shall be a date not more
than five days prior to the Date of Delivery.
If any of the conditions specified in this Section 7 shall not have
been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects
reasonably satisfactory in form and substance to the Representatives, this
Agreement and all obligations of the Underwriters hereunder may be canceled
at, or at any time prior to, the Date of Delivery by the Representatives.
8. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Underwriter and each person who controls
any Underwriter within the meaning of either the Act or the Exchange Act
against any and all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject under the Act, the
Exchange Act or other Federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact
-18-
contained in the Registration Statement as originally filed or in any
amendment thereof, or arise out of or are based upon omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or arise out of or
are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Final Prospectus if used within the period
set forth in Section 4(d), or any amendment or supplement thereof, or arise
out of or are based upon any omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading, and agrees to reimburse each such indemnified party
for any legal or other expenses reasonably incurred by them in connection
with investigating or defending any such loss, claim, damage, liability or
action; provided, however, that (i) the Company will not be liable in any
such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and
in conformity with written information furnished to the Company by or on
behalf of any Underwriter through the Representatives specifically for use
in connection with the preparation thereof, and (ii) such indemnity with
respect to the Basic Prospectus or any Preliminary Final Prospectus shall
not inure to the benefit of any Underwriter (or any person controlling such
Underwriter) from whom the person asserting any such loss, claim, damage or
liability purchased the Securities that are the subject thereof if such
person did not receive a copy of the Final Prospectus (or the Final
Prospectus as amended or supplemented) excluding documents incorporated
therein by reference at or prior to the confirmation of the sale of such
Securities to such person in any case where such delivery is required by
the Act and the untrue statement or omission of a material fact contained
in the Basic Prospectus or any Preliminary Final Prospectus was corrected
in the Final Prospectus (or the Final Prospectus as amended or
supplemented).
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, each of its directors, each of its officers who signs the
Registration Statement, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Company to each Underwriter, but only with
reference to information relating to such Underwriter furnished to the
Company by or on behalf of such Underwriter through the Representatives
specifically for use in the preparation of the documents referred to in the
foregoing indemnity. The Company acknowledges that the statements set
forth in the language on the cover page required by Item 509 of Regulation
S-K and under the heading "Underwriting" or "Plan of Distribution" in any
Preliminary Final Prospectus or the Final Prospectus constitute the only
information furnished in writing by or on behalf of the several
Underwriters for inclusion in the documents referred to in the foregoing
indemnity, and you, as the Representatives, confirm that such statements
are correct.
-19-
(c) Promptly after receipt by an indemnified party under this Section
8 of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party
will not relieve it from any liability that it may have to any indemnified
party otherwise than under this Section 8. In case any such action is
brought against any indemnified party, and it notifies the indemnifying
party of the commencement thereof, the indemnifying party will be entitled
to participate therein, and, to the extent that it may elect by written
notice delivered to the indemnified party promptly after receiving the
aforesaid notice from such indemnified party, to assume the defense
thereof, with counsel satisfactory to such indemnified party; provided,
however, that if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party
shall have reasonably concluded that there may be legal defenses available
to it and/or other indemnified parties which are different from or
additional to those available to the indemnifying party, the indemnified
party or parties shall have the right to select separate counsel to assert
such legal defenses and to otherwise participate in the defense of such
action on behalf of such indemnified party or parties. Upon receipt of
notice from the indemnifying party to such indemnified party of its
election so to assume the defense of such action and approval by the
indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the
defense thereof unless (i) the indemnified party shall have employed
separate counsel in connection with the assertion of legal defenses in
accordance with the proviso to the next preceding sentence (it being
understood, however, that the indemnifying party shall not be liable for
the expenses of more than one separate counsel, approved by the
Representatives in the case of subparagraph (a), representing the
indemnified parties under subparagraph (a) who are parties to such action),
(ii) the indemnifying party shall not have employed counsel reasonably
satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of commencement of the action or
(iii) the indemnifying party has authorized the employment of counsel for
the indemnified party at the expense of the indemnifying party; and except
that if clause (i) or (iii) is applicable, such liability shall be only in
respect of the counsel referred to in such clause (i) or (iii).
(d) To provide for just and equitable contribution in circumstances
in which the indemnification provided for in paragraph (a) of this Section
8 is due in accordance with its terms but is for any reason held by a court
to be unavailable from the Company on the grounds of policy or otherwise,
the Company and the Underwriters shall contribute to the aggregate losses,
claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or defending same) to
-20-
which the Company and one or more of the Underwriters may be subject in
such proportion so that the Underwriters are responsible for that portion
represented by the percentage that the underwriting discount bears to the
sum of such discount and the purchase price of the Securities specified in
Schedule I hereto and the Company is responsible for the balance; provided,
however, that (y) in no case shall any Underwriter (except as may be
provided in any agreement among underwriters relating to the offering of
the Securities) be responsible for any amount in excess of the underwriting
discount applicable to the Securities purchased by such Underwriter
hereunder and (z) no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 8, each person who controls an Underwriter
within the meaning of the Act shall have the same rights to contribution as
such Underwriter, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, each officer of the Company
who shall have signed the Registration Statement and each director of the
Company shall have the same rights to contribution as the Company, subject
in each case to clause (y) of this paragraph (d). Any party entitled to
contribution will, promptly after receipt of notice of commencement of any
action, suit or proceeding against such party in respect of which a claim
for contribution may be made against another party or parties under this
paragraph (d), notify such party or parties from whom contribution may be
sought, but the omission to so notify such party or parties shall not
relieve the party or parties from whom contribution may be sought from any
other obligation it or they may have hereunder or otherwise than under this
paragraph (d).
9. Default by an Underwriter. If any one or more Underwriters shall
fail to purchase and pay for any of the Securities agreed to be purchased
by such Underwriter or Underwriters hereunder and such failure to purchase
shall constitute a default in the performance of its or their obligations
under this Agreement, the remaining Underwriters shall be obligated
severally to take up and pay for (in the respective proportions which the
amount of Securities set forth opposite their names in Schedule II bear to
the aggregate amount of Securities set forth opposite the names of all the
remaining Underwriters) the Securities that the defaulting Underwriter or
Underwriters agreed but failed to purchase; provided, however, that in the
event that the aggregate amount of Securities that the defaulting
Underwriter or Underwriters agreed but failed to purchase shall exceed 10%
of the aggregate amount of Securities set forth in Schedule II, the
remaining Underwriters shall have the right to purchase all, but shall not
be under any obligation to purchase any, of the Securities, and if such
nondefaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without liability to any nondefaulting Underwriter
or the Company. In the event of a default by any Underwriter as set forth
in this Section 9, the Closing Date shall be postponed for such period, not
exceeding seven days, as the Representatives shall determine in order that
-21-
the required changes in the Registration Statement and the Final Prospectus
or in any other documents or arrangements may be effected. Nothing
contained in this Agreement shall relieve any defaulting Underwriter of its
liability, if any, to the Company and any nondefaulting Underwriter for
damages occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to termination in
the absolute discretion of the Representatives, by notice given to the
Company prior to delivery of and payment for the Securities, if prior to
such time (i) trading in securities generally on [the New York Stock
Exchange] [The Nasdaq Stock Market] shall have been suspended or limited or
minimum prices shall have been established on such Exchange, (ii) a banking
moratorium shall have been declared either by Federal or Michigan state
authorities or (iii) there shall have occurred any outbreak or material
escalation of hostilities or other calamity or crisis the effect of which
on the financial markets of the United States is such as to make it, in the
reasonable judgment of the Representatives, impracticable to market the
Securities.
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements
of the Company or its officers and of the Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless
of any investigation made by or on behalf of any Underwriter or the Company
or any of the officers, directors or controlling persons referred to in
Section 8, and will survive delivery of and payment for the Securities. The
provisions of Section 6 and 8 and this Section 11 shall survive the
termination or cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be
mailed, delivered or telegraphed and confirmed to them, at the address
specified in Schedule I, with a copy to: _________________
_________________________________________________________________; or, if
sent to the Company, will be mailed, delivered or telegraphed and confirmed
to it at 000 Xxxx Xxxxxx XX, Xxxxx Xxxxxx, Xxxxxxxx 00000, attention of the
Secretary, with a copy to: Xxxxxx Xxxxxxxx & Xxxx, 000 Xxxx Xxxxxx XX,
Xxxxx Xxxxxx, Xxxxxxxx 00000, Attention: Xxxxxx X. Xxxxx.
13. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 8,
and no other person will have any right or obligation hereunder.
14. Applicable Law. This Agreement will be governed by and construed
in accordance with the internal laws of the State of New York, without
giving effect to principles of conflict of laws.
-22-
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding
agreement among the Company and the several Underwriters.
Very truly yours,
OLD KENT FINANCIAL CORPORATION
By:
Its
The foregoing Agreement is hereby confirmed and accepted as of the date
specified in Schedule I hereto.
By: [Name of Representatives]
By:__________________________
For themselves and the other several Underwriters, if any, named in
Schedule II to the foregoing Agreement.
-23-
SCHEDULE I
(Preferred Stock)
Underwriting Agreement dated ___________, 199_
Registration Statement No. 333-
Representatives:
Address of Representatives:
Title, Purchase Price and Description of Securities:
Title:
Purchase price (include type of funds, if applicable): ____________ in
federal (same day) funds or wire transfer to an account previously
designated to the Representatives by the Company, or if agreed to by
the Representatives and the Company, by certified or official bank
check or checks.
Other provisions:
Closing Date, Time and Location: ____________________
Delayed Delivery Arrangements:
Fee: ___________________
Minimum amount of each contract: ________________
Maximum aggregate amount of all contracts: ________________
Additional items to be covered by the letter from Price Waterhouse
delivered pursuant to Section 5(e) at the time this Agreement is
executed: _____________________________
SCHEDULE II
(Preferred Stock)
Principal Amount
of Securities to
Underwriters be Purchased
------------ ---------------
SCHEDULE III
Preferred Stock
_________ Shares
OLD KENT FINANCIAL CORPORATION
PRICING AGREEMENT
New York, New York
____________, 199_
___________________________,
as Representative of the several Underwriters
Dear Sirs:
Reference is made to the Underwriting Agreement, dated
_______________, 199_ (the "Underwriting Agreement"), relating to the
purchase by the several Underwriters named in Schedule I thereto, for whom
you are acting as representatives (the "Representatives"), of the above
shares of Preferred Stock (the "Initial Shares"), of Old Kent Financial
Corporation (the "Company").
We confirm that the Closing Time (as defined in Section 2 of the
Underwriting Agreement) shall be at 9:30 A.M., New York City time, on
____________, 199_ at the offices of
_________________________________________________________________________.
Pursuant to Section 2 of the Underwriting Agreement, the Company
agrees with each Underwriter as follows:
1. The initial public offering price per share for the Initial
Shares, determined as provided in said Section 2, shall be $__.__.
2. The purchase price per share for the Initial Shares to be
paid by the several Underwriters shall be $__.__, being an amount equal to
the initial public offering price set forth above less $_.__ per share.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a
binding agreement between the Underwriters and the Company in accordance
with its terms.
Very truly yours,
OLD KENT FINANCIAL CORPORATION
By:
Its
CONFIRMED AND ACCEPTED:
as of the date first above written:
By:
By:________________________________
For themselves and as Representatives of the other Underwriters named in
Schedule A hereto.
-2-
