EXHIBIT 1
OLD KENT FINANCIAL CORPORATION
Debt Securities
PURCHASE AGREEMENT
November 8, 1995
CS FIRST BOSTON CORPORATION
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
XXXXX, XXXXXXXX & XXXXX, INC.
c/o CS First Boston Corporation
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Old Kent Financial Corporation, a Michigan corporation
(the "Company"), proposes to issue and sell up to $150,000,000
aggregate principal amount of its senior debt securities (the
"Senior Debt Securities"), its subordinated debt securities (the
"Subordinated Debt Securities") and its convertible subordinated
debt securities (the "Convertible Subordinated Debt Securities,"
and together with the Senior Debt Securities and the Subordinated
Debt Securities, the "Securities") in one or more offerings on
terms determined at the time of sale. The Senior Debt Securities
will be issued under an indenture to be dated on or prior to the
issuance of any Senior Debt Securities thereunder (the "Senior
Indenture") between the Company and Bankers Trust Company, as
trustee. The Subordinated Debt Securities and the Convertible
Subordinated Debt Securities will be issued under an indenture
dated as of November 1, 1995 (the "Subordinated Indenture," and
together with the Senior Indenture, the "Indentures"), between
the Company and Bankers Trust Company, as trustee. Bankers Trust
Company, in its capacity as trustee under the Senior Indenture
and the Subordinated Indenture, is hereafter referred to as the
"Trustee." Each series of Securities may vary as to rank,
aggregate principal amount, issue date, maturity date, currency,
interest rate or formula and timing of payments thereof, any
redemption or repayment provisions, any sinking fund
requirements, any conversion provisions and any other variable
terms as the applicable Indenture contemplates may be set forth
in the Securities issued from time to time. As used herein,
"you" and "your," unless the context otherwise requires, shall
mean the party or parties, if any, to whom this Agreement is
addressed as are named in the applicable Terms Agreement and such
additional parties, if any, as may be specifically named in such
Terms Agreement as co-managers with respect to Securities being
sold pursuant to such Terms Agreement.
Offerings of Securities may be made through one or more
of you or through an underwriting syndicate managed by one or
more of you. If the Company determines to make an offering of
Securities through one or more of you or through an underwriting
syndicate managed by one or more of you, the Company will enter
into an agreement (the "Terms Agreement") providing for the sale
of such Securities to, and the purchase and offering thereof by,
one or more of you and such other underwriters, if any, selected
by you as have authorized you to enter into such Terms Agreement
on their behalf (the "Underwriters," which term shall include you
whether acting alone in the sale of such Securities or as members
of an underwriting syndicate). The Terms Agreement relating to
each offering of Securities shall specify the principal amount of
Securities to be initially issued (the "Initial Offered
Securities") and their terms not otherwise specified in the
applicable Indenture, the names of the Underwriters participating
in such offering (subject to substitution as provided in Section
10 hereof), the principal amount of Initial Offered Securities
which each such Underwriter severally agrees to purchase, the
names of such of you or such other Underwriters acting as
co-managers, if any, in connection with such offering, the price at
which the Initial Offered Securities are to be purchased by the
Underwriters from the Company, the initial public offering price
(if such Initial Offered Securities are to be offered on a fixed
price basis) and the form, time and place of delivery and
payment. In addition, each Terms Agreement shall specify whether
the Company has agreed to grant to the Underwriters an option to
purchase additional Securities to cover over-allotments, if any,
and the principal amount of Securities subject to such option
(the "Option Securities"). As used herein, the term "Offered
Securities" shall include the Initial Offered Securities and all
or any portion of the Option Securities, if any. The Terms
Agreement, which shall be substantially in the form of Exhibit A
hereto, may take the form of an exchange of any standard form of
written telecommunication between you and the Company. Each
offering of the Offered Securities through one or more of you or
through an underwriting syndicate managed by one or more of you
will be governed by this Agreement, as supplemented by the
applicable Terms Agreement, and this Agreement and such Terms
Agreement shall inure to the benefit of and be binding upon each
Underwriter participating in the offering of the Offered
Securities.
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3
(No. 33-46205) relating to the Securities and pre-effective
amendment no. 1 thereto, and the offering thereof from time to
time in accordance with Rule 415 under the Securities Act of
1933, as amended (the "1933 Act"), and has filed such amendments
thereto as may have been required to the date hereof. Such
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registration statement (as amended) has been declared effective
by the Commission, and the Indentures have been qualified under
the Trust Indenture Act of 1939, as amended (the "1939 Act").
Such registration statement, on the one hand, and the prospectus,
as supplemented by the prospectus supplement relating to the sale
of the Offered Securities (the "Prospectus Supplement"), on the
other hand, including all documents incorporated therein by
reference, as from time to time amended or supplemented pursuant
to the Securities Exchange Act of 1934, as amended (the "1934
Act"), the 1933 Act or otherwise, are hereinafter referred to as
the "Registration Statement" and the "Prospectus," respectively;
provided, however, that a Prospectus supplement shall be deemed
to have supplemented the Prospectus only with respect to the
offering of the Offered Securities to which it relates.
SECTION 1. REPRESENTATIONS AND WARRANTIES.
(a) The Company represents and warrants to each
of you as of the date hereof, and to each Underwriter
named in a Terms Agreement as of the date thereof (such
latter date, which shall pertain only to the Offered
Securities being sold pursuant to such Terms Agreement,
being hereinafter referred to as the "Representation
Date"), as follows:
(i) The Registration Statement and the
Prospectus, at the time the Registration Statement
became effective and as of the applicable
Representation Date, complied in all material
respects with the requirements of the 1933 Act and
the rules and regulations thereunder (the "1933
Act Regulations") and the 1939 Act; and the
Registration Statement, at the time it became
effective and as of the applicable Representation
Date, 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. The Prospectus, at the time the
Registration Statement became effective and as of
the applicable Representation Date, did not, and
will not, include an untrue statement of a
material fact or omit to state a material fact
necessary in order to make the statements therein,
in the light of the circumstances under which they
were made, not misleading; provided, however, that
the representations and warranties in this
subsection shall not apply to statements in or
omissions from the Registration Statement or the
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Prospectus made in reliance upon and in conformity
with information furnished to the Company in
writing by you expressly for use in the
Registration Statement or the Prospectus or to
that part of the Registration Statement which
shall constitute the Trustee's Statement of
Eligibility under the 1939 Act on Form T-1.
(ii) The documents incorporated by reference
in the Prospectus, at the time they were or
hereafter are filed with the Commission, complied,
and will comply, in all material respects with the
requirements of the 1934 Act and the rules and
regulations of the Commission under the 1934 Act
(the "1934 Act Regulations"), and, when read
together and with the other information in the
Prospectus, at the time the Registration Statement
and any amendments thereto become effective, will
not include 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.
(iii) The accountants who certified the
financial statements and supporting schedules
included in the Registration Statement are
independent public accountants as required by the
1933 Act and the 1933 Act Regulations.
(iv) The financial statements incorporated by
reference in the Registration Statement and the
Prospectus present fairly the consolidated
financial position of the Company and its
subsidiaries as at the dates indicated and the
consolidated results of their operations for the
periods specified; except as otherwise stated
therein or in the Registration Statement and the
Prospectus, said financial statements have been
prepared in conformity with generally accepted
accounting principles applied on a substantially
consistent basis; and the supporting schedules
included in the Registration Statement and the
Prospectus present fairly the information required
to be stated therein.
(v) Since the respective dates as of which
information is given in the Registration Statement
and the Prospectus, except as otherwise stated
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therein, (1) there has been no material adverse
change in the condition, financial or otherwise,
or in the earnings, business affairs or business
prospects of the Company and its subsidiaries
considered as one enterprise, whether or not
arising in the ordinary course of business, (2)
there have been no transactions entered into by
the Company or any of its subsidiaries, other than
those in the ordinary course of business, and (3)
except for regular dividends on the Company's
Common Stock, there has been no dividend or
distribution of any kind declared, paid or made by
the Company on any class of its capital stock.
(vi) The Company has been duly incorporated
and is validly existing as a corporation in good
standing under the laws of the State of Michigan
with corporate power and authority to own, lease
and operate its properties and to conduct its
business as described in the Registration
Statement and the Prospectus; the Company is duly
registered as a bank holding company under the
Bank Holding Company Act of 1956, as amended (the
"Bank Holding Company Act"); and the Company is
duly qualified as a foreign corporation to
transact business and is in good standing in each
jurisdiction in which such qualification is
required, whether by reason of the ownership or
leasing of property or the conduct of business,
except where the failure to so qualify or be in
good standing would not have a material adverse
effect on the condition, financial or otherwise,
or the earnings, business affairs or business
prospects of the Company and its subsidiaries
considered as one enterprise.
(vii) Each subsidiary of the Company (1)
in the case of banking subsidiaries, is duly
organized as either a national banking association
or a Michigan or Illinois banking corporation and
is validly existing and in good standing under the
laws of the United States, the State of Michigan
or the State of Illinois (although in some cases
under different names), as the case may be, and
(2) in the case of non-banking subsidiaries, has
been duly incorporated and is validly existing as
a corporation in good standing under the laws of
the jurisdiction of its incorporation, and each of
the Company's subsidiaries has full power and
authority to own, lease and operate its properties
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and to conduct its business as described in the
Registration Statement and the Prospectus and is
duly qualified as a foreign corporation to
transact business and is in good standing in each
jurisdiction in which such qualification is
required, whether by reason of the ownership or
leasing of property or the conduct of business,
except where the failure to so qualify or be in
good standing would not have a material adverse
effect on the condition, financial or otherwise,
or the earnings, business affairs or business
prospects of the Company and its subsidiaries
considered as one enterprise; all of the issued
and outstanding capital stock of each such
subsidiary has been duly authorized and validly
issued and is fully paid and non-assessable,
subject, in the case of the national banking
associations, to the provisions of Section 55 of
Title 12 of the United States Code, and, in the
case of the Michigan banking corporations, to the
provisions of Section 201 of the Michigan Banking
Code of 1969, and, in the case of the Illinois
banking corporations, to the provisions of the
Illinois Banking Act, as amended; and, except for
directors' qualifying shares, the capital stock of
each such subsidiary is owned by the Company,
directly or through subsidiaries, free and clear
of any pledge, lien, encumbrance, claim or equity.
(viii) If the Prospectus contains a
"Capitalization" section or if such information is
contained elsewhere in the Prospectus, the
authorized, issued and outstanding capital stock
of the Company is as set forth therein (except for
subsequent issuances, if any, pursuant to
reservations or agreements referred to in the
Prospectus or pursuant to any employee stock
option, stock ownership or dividend reinvestment
plan); and the shares of issued and outstanding
Common Stock of the Company have been duly
authorized and validly issued and are fully paid
and non-assessable, and conform to all statements
relating thereto contained in the Prospectus.
(ix) The Securities have been duly authorized
for issuance and sale pursuant to this Agreement
(or will have been so authorized for issuance and
sale prior to each issuance of Securities) and
when issued, authenticated and delivered pursuant
to the provisions of this Agreement, the
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applicable Terms Agreement and the applicable
Indenture against payment of the consideration
therefor specified in such Terms Agreement, the
Securities will be valid and legally binding
obligations of the Company enforceable in
accordance with their terms, except as enforcement
thereof may be limited by bankruptcy, insolvency
or other laws relating to or affecting enforcement
of creditors' rights or by general equity
principles, and will be entitled to the benefits
of the applicable Indenture; and the Securities
and the applicable Indenture conform in all
material respects to all statements relating
thereto contained in the Prospectus.
(x) If applicable, the shares of Common
Stock issuable upon conversion of any issue of
Convertible Subordinated Debt Securities will have
been, at each Representation Date, duly and
validly authorized and reserved for issuance upon
such conversion by all necessary corporate action
and such shares, when issued upon such conversion,
will be duly and validly issued and will be fully
paid and non-assessable, and the issuance of such
shares upon such conversion will not be subject to
preemptive rights.
(xi) Neither the Company nor any of its
subsidiaries is in violation of its charter or in
default in the performance or observance of any
obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage,
loan agreement, note, lease or other instrument
which is material to the Company and its
subsidiaries considered as one enterprise and to
which it is a party or by which it or any of them
may be bound, or to which any of the property or
assets of the Company or its subsidiaries is
subject; and the execution, delivery and
performance of this Agreement, each Terms
Agreement and the Indentures by the Company, and
the consummation by the Company of the
transactions contemplated herein and therein, have
been duly authorized by all necessary corporate
action and will not conflict with or constitute a
breach of, or default under, or result in the
creation or imposition of any lien, charge or
encumbrance upon any property or assets of the
Company or any of its subsidiaries pursuant to,
any material contract, indenture, mortgage, loan
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agreement, note, lease or other instrument to
which the Company or any of its subsidiaries is a
party or by which it or any of them may be bound,
or to which any of the property or assets of the
Company or any of its subsidiaries is subject, nor
will such action result in any violation of the
provisions of the Articles of Incorporation or
bylaws of the Company or, to the knowledge of the
Company, any applicable law, administrative
regulation or administrative or court decree.
(xii) There is no action, suit or
proceeding before or by any court or governmental
agency or body, domestic or foreign, now pending,
or, to the knowledge of the Company, threatened,
against or affecting the Company or any of its
subsidiaries, which is required to be disclosed in
the Registration Statement (other than as
disclosed therein), or which might result in any
material adverse change in the condition,
financial or otherwise, business or prospects of
the Company and its subsidiaries considered as one
enterprise, or which might materially and
adversely affect the properties or assets of the
Company and its subsidiaries considered as one
enterprise or which might materially and adversely
affect the consummation of this Agreement or any
Terms Agreement; all pending legal or governmental
proceedings to which the Company or any subsidiary
of the Company is a party or of which any of their
properties or assets is the subject which are not
described in the Registration Statement, including
ordinary routine litigation incidental to the
business of the Company or any such subsidiary,
are, considered in the aggregate, not material to
the Company and its subsidiaries considered as one
enterprise; and there are no material contracts or
documents of the Company or any of its
subsidiaries which are required to be filed or
incorporated by reference as exhibits to the
Registration Statement by the 1933 Act or by the
1933 Act Regulations which have not been so filed
or incorporated by reference.
(xiii) The Company and its subsidiaries
own or possess, or can acquire on reasonable
terms, adequate trademarks, service marks and
trade names necessary to conduct the business now
operated by them, and neither the Company nor any
of its subsidiaries has received any notice or is
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otherwise aware of any infringement of or conflict
with asserted rights of others with respect to any
trademarks, service marks or trade names which,
singly or in the aggregate, would result in any
material adverse change in the financial
condition, income, business or operations of the
Company and its subsidiaries considered as one
enterprise.
(xiv) No authorization, approval,
consent, order or decree of any court or
governmental authority or agency is required in
connection with the offering, issuance or sale of
the Securities hereunder, except such as may be
required under the 1933 Act, the 1933 Act
Regulations or the 1939 Act, which have been
obtained, or as may be required under state
securities laws.
(xv) The Company and its subsidiaries possess
all material governmental licenses, permits,
consents, orders, approvals and other
authorizations necessary to lease or own, as the
case may be, and to operate their properties and
to carry on their businesses as presently
conducted, and neither the Company nor any of its
subsidiaries has received any notice of
proceedings relating to the revocation or
modification of any such certificate, authority or
permit, which, singly or in the aggregate, would
materially and adversely affect the condition,
financial or otherwise, or the earnings, business
affairs or business prospects of the Company and
its subsidiaries considered as one enterprise.
(xvi) This Agreement has been, and, at
each Representation Date, the applicable Terms
Agreement will have been, duly executed and
delivered by the Company.
Any certificate signed by any officer of the
Company and delivered to you or to counsel for the
Underwriters in connection with an offering of the
Offered Securities shall be deemed a representation and
warranty by the Company to each Underwriter
participating in each offering as to the matters
covered thereby.
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SECTION 2. PURCHASE AND SALE.
(a) The several commitments of the Underwriters
to purchase Offered Securities pursuant to any Terms
Agreement shall be deemed to have been made on the
basis of the representations and warranties herein
contained and shall be subject to the terms and
conditions herein set forth.
(b) In addition, on the basis of the
representations and warranties herein contained and
subject to the terms and condition herein set forth,
the Company may grant, if so provided in the Terms
Agreement relating to any Offered Securities, an option
to the Underwriters, named in such Terms Agreement,
severally and not jointly, to purchase up to the
principal amount of Option Securities set forth therein
at the same price as is applicable to the Initial
Offered Securities. Such option, if granted, will
expire 30 days after the Representation Date relating
to the Offered Securities, and may be exercised in
whole or in part from time to time only for the purpose
of covering over-allotments which may be made in
connection with the offering and distribution of the
Offered Securities upon notice by you to the Company
setting forth the principal amount of Option Securities
as to which the several Underwriters are then
exercising the option and the time and date of payment
and delivery for such Option Securities. Any such time
and date of delivery (a "Date of Delivery") shall be
determined by you, but shall not be later than 7 full
business days and not earlier than 2 full business days
after the exercise of said option, nor in any event
prior to Closing Time (as hereinafter defined), unless
otherwise agreed upon by you and the Company. If the
option is exercised as to all or any portion of the
Option Securities, each of the Underwriters, acting
severally and not jointly, will purchase that
proportion of the aggregate principal amount of Option
Securities then being purchased which the principal
amount of the Initial Offered Securities each such
Underwriter has agreed to purchase as set forth in the
related Terms Agreement bears to the aggregate
principal amount of the Initial Offered Securities,
subject to such adjustments as you in your discretion
shall make to eliminate any sales or purchases of
fractional Securities.
(c) Payment of the purchase price for, and
delivery of, the Initial Offered Securities to be
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purchased by the Underwriters shall be made at the
offices of Xxxxx & Xxxx, Xxx Xxxxx Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, or at such other place as shall
be agreed upon by you and the Company, at 10:00 A.M.,
New York City time, on the fifth business day (unless
postponed in accordance with the provisions of Section
10) following the date of the applicable Terms
Agreement or at such other time and date as shall be
agreed upon by you and the Company (each such time and
date being hereinafter referred to as a "Closing
Time"). In addition, in the event that any or all of
the Option Securities are purchased by the
Underwriters, payment of the purchase price for, and
delivery of, such Option Securities shall be made at
the above-mentioned offices of Xxxxx & Wood, or at such
other place as shall be agreed upon by you and the
Company on each Date of Delivery as specified in the
notice from you to the Company. Unless otherwise
specified in the applicable Terms Agreement, payment
shall be made to the Company by certified or official
bank check or checks in New York Clearing House or
similar next day funds payable to the order of the
Company against delivery to you for the respective
accounts of the Underwriters of the Offered Securities
to be purchased by them. Such Offered Securities shall
be in such denominations and registered in such names
as you may request in writing at least 2 business days
prior to the applicable Closing Time or Date of
Delivery, as the case may be. Such Offered Securities,
which may be a temporary form, will be made available
for examination and packaging by you on or before the
first business day prior to Closing Time or Date of
Delivery, as the case may be.
SECTION 3. COVENANTS OF THE COMPANY. The Company covenants
with each of you, and with each Underwriter participating in any
applicable offering of Offered Securities, as follows:
(a) Immediately following the execution of each
Terms Agreement, the Company will prepare a Prospectus
Supplement setting forth the principal amount of
Initial Offered Securities covered thereby, the terms
of such Initial Offered Securities not otherwise
specified in the applicable Indenture, the names of the
Underwriters participating in the offering and the
principal amount of Initial Offered Securities which
each severally has agreed to purchase, the names of the
Underwriters acting as co-managers in connection with
the offering, the price at which the Initial Offered
Securities are to be purchased by the Underwriters from
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the Company, the initial public offering price (if such
Initial Offered Securities are to be offered on a fixed
price basis), the selling concession and reallowances,
if any, the existence and amount of any over-allotment
option, and such other information as you and the
Company deem appropriate in connection with the
offering of the Offered Securities. The Company will
promptly transmit copies of the Prospectus to the
Commission for filing pursuant to Rule 424 of the 1933
Act Regulations and will furnish to the Underwriters
named therein as many copies of the Prospectus as you
shall reasonably request.
(b) The Company will notify each of you
immediately and confirm the notice in writing, of (i)
the effectiveness of the Registration Statement and any
post-effective amendment thereto, (ii) the mailing or
the delivery to the Commission for filing of any
supplement to the Prospectus or any document to be
filed pursuant to the 1934 Act, (iii) the receipt of
any comments from the Commission, (iv) any request by
the Commission for any amendment to the Registration
Statement or any amendment or supplement to the
Prospectus or for additional information, and (v) the
issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose. The
Company will make every reasonable effort to prevent
the issuance of any stop order and, if any stop order
is issued, to obtain the lifting thereof at the
earliest possible moment.
(c) The Company will give you notice of its
intention to file or prepare any amendment to the
Registration Statement (including any post-effective
amendment) or any amendment or supplement to the
Prospectus, and will furnish you with copies of any
such amendment or supplement or other document a
reasonable amount of time prior to such proposed filing
or use and will not file any such amendment or
supplement or other document or use any such Prospectus
to which you or counsel to the Underwriters shall
object.
(d) The Company will deliver to you as many
signed copies of the Registration Statement as
originally filed and of each amendment thereto
(including exhibits filed therewith or incorporated by
reference therein) as you may reasonably request and
will also deliver to each of you a conformed copy of
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the Registration Statement and of each amendment
thereto for each of the Underwriters.
(e) If at any time when the Prospectus is
required by the 1933 Act to be delivered in connection
with sales of Securities any event shall occur or
condition exist as a result of which it is necessary,
in the opinion of your counsel or counsel to the
Company, to further amend or supplement the Prospectus
in order that the Prospectus will not include an untrue
statement of a material fact or omit to state a
material fact necessary to make the statements therein
not misleading in the light of circumstances existing
at the time it is delivered to a purchaser or if it
shall be necessary, in the opinion of either such
counsel, at any such time to amend or supplement the
Registration Statement or the Prospectus in order to
comply with the requirements of the 1933 Act or the
1933 Act Regulations, the Company will promptly prepare
and file with the Commission such amendment or
supplement, whether by filing documents pursuant to the
1934 Act or otherwise, as may be necessary to correct
such untrue statement or omission to make the
Registration Statement comply with such requirements.
(f) The Company will endeavor, in cooperation
with you, to qualify the Securities, and, if
applicable, the Common Stock into which the Convertible
Subordinated Debt Securities are convertible, for
offering and sale under the applicable securities laws
of such states and other jurisdictions of the United
States as you may designate; provided, however, that
the Company shall not be obligated to qualify as a
foreign corporation in any jurisdiction in which it is
not so qualified. In each jurisdiction in which the
Securities, and, if applicable, Common Stock, have been
so qualified, the Company will file such statements and
reports as may be required by the laws of such
jurisdiction to continue such qualification in effect
for as long as may be required for the distribution of
the Securities. The Company will promptly advise you
of the receipt by the Company of any notification with
respect to the suspension of the qualification of the
Securities or, if applicable, the related Common Stock,
for sale in any such state or jurisdiction or the
initiating or threatening of any proceeding for such
purpose.
(g) The Company will make generally available to
its security holders as soon as practicable, but not
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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 1933
Act Regulations) 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.
(h) The Company, during the period when the
Prospectus is required to be delivered under the 1933
Act, will file promptly all documents required to be
filed with the Commission pursuant to the 1934 Act.
(i) Between the time any Terms Agreement is
executed and the later of termination of any trading
restrictions or the Closing Time with respect to the
Securities covered thereby, the Company will not,
without the prior written consent of such of you as may
be named in such Terms Agreement, directly or
indirectly, sell, offer to sell, grant any option for
the sale of, or otherwise dispose of, any of its debt
securities (other than commercial paper or similar
instruments sold in the ordinary course of business)
or, if such Terms Agreement relates to Convertible
Subordinated Debt Securities that are convertible into
Common Stock, any Common Stock or any security
convertible into Common Stock (except for Common Stock
issued pursuant to reservations or agreements referred
to in the Prospectus or pursuant to any employee stock
option, stock ownership or dividend reinvestment plan).
SECTION 4. PAYMENT OF EXPENSES. The Company will pay all
expenses incident to the performance of its obligations under
this Agreement and each Terms Agreement, including (a) the filing
of the Registration Statement as originally filed and of each
amendment thereto, (b) the printing of this Agreement and each
Terms Agreement, (c) the preparation, issuance and delivery of
the Securities and the Indentures to the Underwriters, (d) the
fees and disbursements of the Company's counsel and accountants,
(e) the qualification of the Securities and, if applicable, the
related Common Stock, under state securities laws in accordance
with the provisions of Section 3(f) hereof, including filing fees
and the fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with the preparation of
the Blue Sky Survey and any Legal Investment Survey, (f) the
printing and delivery to the Underwriters of copies of the
Registration Statement as originally filed and all amendments
thereto, of each preliminary prospectus, and of the Prospectus
and any amendments or supplements thereto, (g) the reproduction
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and delivery to the Underwriters of copies of the Indentures and
the Blue Sky Survey and any Legal Investment Survey, (h) the fees
of nationally recognized securities rating agencies, (i) the fees
and expenses, if any, incurred with respect to any filing with
the National Association of Securities Dealers, Inc., (j) the
fees and expenses, if any, incurred in connection with any
listing of the Securities and the Common Stock issuable upon
conversion of any Convertible Subordinated Debt Securities and
(k) the fees and expenses of any depositary and the issuance of
the Securities in book-entry form, if applicable.
If a Terms Agreement is terminated by such of you as
are named therein in accordance with the provisions of Section 5
or Section 9(a) hereof, the Company shall reimburse the
Underwriters named in such Terms Agreement for all of their
out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for such Underwriters.
SECTION 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The
obligations of the Underwriters to purchase Offered Securities
pursuant to any Terms Agreement are subject to the accuracy of
the representations and warranties of the Company herein
contained, to the accuracy of the statements of the Company's
officers made in any certificate furnished pursuant to the
provisions hereof, to the performance by the Company of all of
its covenants and other obligations hereunder, and to the
following further conditions:
(a) At the applicable Closing Time, (i) no stop
order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the
Commission, (ii) the rating assigned by any nationally
recognized securities rating agency to any debt
securities or preferred stock of the Company as of the
date of the applicable Terms Agreement shall not have
been lowered since the execution of such Terms
Agreement nor shall any such rating agency have
publicly announced that it has under surveillance or
review, with possible negative implications, its rating
of any debt securities or preferred stock of the
Company and (iii) there shall not have come to the
attention of such of you as may be named in the
applicable Terms Agreement any facts that would
reasonably cause such of you to believe that the
Prospectus, at the time it was required to be delivered
to a purchaser of the Offered Securities, included an
untrue statement of a material fact or omitted to state
a material fact necessary in order to make the
-15-
statements therein, in light of the circumstances
existing at such time, not misleading.
(b) At the applicable Closing Time, you shall
have received:
(i) The favorable opinion, dated as of the
applicable Closing Time, of Xxxxxx Xxxxxxxx & Xxxx
LLP, counsel for the Company, in form and
substance satisfactory to such of you as may be
named in the applicable Terms Agreement to the
effect that:
(1) The Company has been duly
incorporated and is validly existing as a
corporation in good standing under the laws
of the State of Michigan.
(2) The Company is duly registered as a
bank holding company under the Bank Holding
Company Act and has corporate power and
authority to own, lease and operate its
properties and to conduct its business as
described in the Registration Statement and
the Prospectus.
(3) To the best of their knowledge and
information, the Company is duly qualified as
a foreign corporation to transact business
and is in good standing in each jurisdiction
in which such qualification is required,
except where the failure to so qualify or be
in good standing would not have a material
adverse effect on the condition, financial or
otherwise, or the earnings, business affairs
or business prospects of the Company and its
subsidiaries considered as one enterprise.
(4) Each of the Company's banking
subsidiaries is duly organized, validly
existing and in good standing either as a
national banking association under the laws
of the United States, as a Michigan banking
corporation under the Michigan Banking Code
of 1969, as amended, or as a Illinois banking
corporation under the Illinois Banking Act,
as amended, as the case may be, and has the
power and authority to own, lease and operate
its properties and to conduct its business as
described in the Registration Statement and
-16-
the Prospectus; all of the issued and
outstanding capital stock of Old Kent Bank, a
Michigan banking corporation and subsidiary
of the Company ("Old Kent Bank"), has been
duly authorized and validly issued and is
fully paid and non-assessable, subject to the
provisions of Section 201 of the Michigan
Banking Code of 1969; to the best of their
knowledge and information, all of the issued
and outstanding capital stock of each such
banking subsidiary other than Old Kent Bank
has been duly authorized and validly issued
and is fully paid and non-assessable,
subject, in the case of the national banking
associations, to the provisions of Section 55
of Title 12 of the United States Code, and,
in the case of the Michigan banking
corporations, to the provisions of Section
201 of the Michigan Banking Code of 1969,
and, in the case of the Illinois banking
corporation to the provisions of the Illinois
Banking Act, as amended; and, to the best of
their knowledge and information, all of the
capital stock of such banking subsidiaries is
owned by the Company free and clear of any
pledge, lien, encumbrance, claim or equity.
(5) If the Prospectus contains a
"Capitalization" section of if such
information is contained elsewhere in the
Prospectus, the authorized, issued and
outstanding capital stock of the Company is
as set forth therein (except for subsequent
issuances, if any, pursuant to reservations
or agreements referred to in the Prospectus
or pursuant to any employee stock option,
stock ownership or dividend reinvestment
plan); and, to the best of their knowledge
and information, shares of issued and
outstanding Common Stock of the Company have
been duly authorized and validly issued and
are fully paid and non-assessable, and
conform to all statements relating thereto
contained in the Prospectus.
(6) The applicable Indenture has been
duly and validly authorized, executed and
delivered by the Company and constitutes the
valid and binding agreement of the Company,
enforceable in accordance with its terms,
-17-
except as enforcement thereof may be limited
by bankruptcy, insolvency, reorganization,
moratorium or other laws relating to or
affecting enforcement of creditors' rights or
by general equity principles.
(7) The Offered Securities covered by
the applicable Terms Agreement are in the
form contemplated by the applicable Indenture
and have been duly and validly authorized by
all necessary corporate action and, when
executed and authenticated as specified in
the applicable Indenture and delivered
against payment of the consideration therefor
specified in such Terms Agreement, will be
valid and binding obligations of the Company,
enforceable in accordance with their terms,
except as enforcement thereof may be limited
by bankruptcy, insolvency, reorganization,
moratorium or other laws relating to or
affecting enforcement of creditors' rights or
by general equity principles, and will be
entitled to the benefits of the applicable
Indenture.
(8) The applicable Indenture and the
Offered Securities covered by the applicable
Terms Agreement conform in all material
respects to the descriptions thereof in the
Prospectus.
(9) The applicable Indenture is duly
qualified under the 1939 Act.
(10) With respect to Convertible
Subordinated Debt Securities, the shares of
Common Stock issuable upon conversion of the
Convertible Subordinated Debt Securities have
been duly authorized and reserved for
issuance upon such conversion by all
necessary corporate action and such shares,
when issued upon such conversion, will be
duly and validly issued and will be fully
paid and nonassessable, and the issuance of
such shares upon such conversion will not be
subject to preemptive rights.
(11) This Agreement and the applicable
Terms Agreement have been duly authorized,
executed and delivered by the Company.
-18-
(12) The Registration Statement is
effective under the 1933 Act and, to the best
of their knowledge and information, no stop
order suspending the effectiveness of the
Registration Statement has been issued under
the 1933 Act or proceedings therefor
initiated or threatened by the Commission.
(13) At the time the Registration
Statement became effective and as of the date
of the applicable Terms Agreement, the
Registration Statement (other than the
financial statements and other financial and
statistical data included or incorporated by
reference therein and the Trustee's Statement
of Eligibility on Form T-1, as to which no
opinion need be rendered) complied as to form
in all material respects with the
requirements of the 1933 Act, the 1939 Act
and the 1933 Act Regulations.
(14) Each document filed pursuant to the
1934 Act (other than the financial statements
and other financial and statistical data
included or incorporated by reference
therein, as to which no opinion need by
rendered) and incorporated by reference in
the Prospectus complied when so filed as to
form in all material respects with the 1934
Act and the 1934 Act Regulations.
(15) To the best of their knowledge and
information, there are no legal or
governmental proceedings pending or
threatened which are required to be disclosed
in the Registration Statement, other than
those disclosed therein, and all pending
legal or governmental proceedings to which
the Company or any subsidiary of the Company
is a party or to which any of their
properties or assets is subject which are not
described in the Registration Statement,
including ordinary routine litigation
incidental to the business of the Company or
any such subsidiary, are, considered in the
aggregate, not believed to represent a
substantial risk of a material adverse effect
on the condition, financial or otherwise, or
the earnings, business affairs or business
-19-
prospects of the Company and its subsidiaries
considered as one enterprise.
(16) To the best of their knowledge and
information, there are no contracts,
indentures, mortgages, loan agreements,
notes, leases or other instruments required
to be described or referred to in the
Registration Statement or to be filed as
exhibits thereto other than those described
or referred to therein or filed or
incorporated by reference as exhibits
thereto; the descriptions thereof or
references thereto are correct; and no
default exists in the due performance or
observance of any material obligation,
agreement, covenant or condition contained in
any contract, indenture, mortgage, loan
agreement, note, lease or other instrument so
described, referred to, or filed or
incorporated by reference.
(17) No consent, approval, authorization
or order of any court or governmental
authority or agency is required in connection
with the sale of the Offered Securities under
this Agreement and the applicable Terms
Agreement, except such as may be required
under the 1933 Act, the 1939 Act or the 1933
Act Regulations or state securities laws; and
to the best of their knowledge and
information, the execution and delivery of
this Agreement, the applicable Terms
Agreement and the applicable Indenture by the
Company and the consummation by the Company
of the transactions contemplated herein and
therein will not conflict with or constitute
a breach of, or default under, or result in
the creation or imposition of any lien,
charge or encumbrance upon any property or
assets of the Company or any of its
subsidiaries pursuant to, any contract,
indenture, mortgage, loan agreement, note,
lease or other instrument, material to the
business affairs or business prospects of the
Company or its subsidiaries considered as one
enterprise, to which the Company or any of
its subsidiaries is a party or by which it or
any of them may be bound, or to which any of
the properties or assets of the Company or
-20-
any of its subsidiaries is subject, nor will
such action result in any violation of the
provisions of the Articles of Incorporation
or bylaws of the Company or any applicable
law, administrative regulation or
administrative or court order or decree.
In rendering their opinion, such counsel
may rely (without independent verification) on
certificates of governmental officials and
officers of the Company and such other evidence
which counsel may reasonably deem necessary or
desirable in rendering their opinion and which is
of a character customarily relied upon in
rendering such an opinion. Any officers'
certificate shall be jointly addressed to Xxxxxx
Xxxxxxxx & Xxxx LLP, the Underwriters and counsel
to the Underwriters. The Underwriters shall have
the benefit of, and shall be entitled to rely
upon, such certificates as representations of the
Company. In addition, such counsel may rely, as
to all matters of New York law, upon the opinion
of Xxxxx & Wood referred to in subsection (b)(ii)
of this Section.
(ii) The favorable opinion, dated as of the
applicable Closing Time, of Xxxxx & Xxxx, counsel
for the Underwriters, with respect to the matters
set forth in (1) and (6) to (13), inclusive, of
subsection (b)(i) of this Section.
(iii) In giving their opinions required
by subsections (b)(i) and (b)(ii), respectively,
of this Section, Xxxxxx Xxxxxxxx & Xxxx LLP and
Xxxxx & Wood shall each additionally state that
nothing has come to their attention that would
lead them to believe that the Registration
Statement (except for financial statements and
other financial or statistical data included or
incorporated by reference therein and for the
Trustee's Statement of Eligibility on Form T-1, as
to which such counsel need make no statement), at
the time it became effective, or if an amendment
to the Registration Statement or an Annual Report
on Form 10-K has been filed by the Company with
the Commission subsequent to the effectiveness of
the Registration Statement, then at the time of
the most recent such filing, contained an untrue
statement of a material fact or omitted to state a
material fact required to be stated therein or
-21-
necessary to make the statements therein not
misleading or that the Prospectus, as amended or
supplemented at the date of the applicable Terms
Agreement or at Closing Time, included or includes
an untrue statement of a material fact or omitted
or omits to state a material fact necessary in
order to make the statements therein, in the light
of the circumstances under which they were made,
not misleading.
(c) At the applicable Closing Time, there shall
not have been, since the date of the applicable Terms
Agreement or since the respective dates as of which
information is given in the Prospectus, any material
adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in
the ordinary course of business, and you shall have
received a certificate of the Chairman of the Board of
Directors, the President or a Vice President of the
Company and of the chief financial officer or chief
accounting officer of the Company, dated as of such
Closing Time, to the effect that (i) there has been no
such material adverse change, (ii) the representations
and warranties of the Company contained in Section 1
hereof are true and correct with the same force and
effect as though expressly made at and as of such
Closing Time, (iii) the Company has complied with all
agreements and satisfied all conditions on its part to
be complied with or satisfied at or prior to such
Closing Time, and (iv) no stop order suspending the
effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been
initiated or threatened by the Commission.
(d) At the time of execution of the applicable
Terms Agreement and at the applicable Closing Time, you
shall have received from Xxxxxx Xxxxxxxx LLP, or such
other nationally recognized independent certified
public accountants as may be satisfactory to you, a
letter dated such date, in form and substance
satisfactory to you, to the effect that (i) they are
independent certified public accountants with respect
to the Company and its subsidiaries within the meaning
of the 1933 Act and the 1933 Act Regulations; (ii) in
their opinion the consolidated financial statements and
supporting schedules audited by them and included or
incorporated by reference in the Registration Statement
and Prospectus comply as to form in all material
-22-
respects with the applicable accounting requirements of
the 1933 Act, the 1933 Act Regulations, the 1934 Act
and the 1934 Act Regulations; (iii) based upon the
limited procedures set forth in detail in such letter,
nothing has come to their attention which causes them
to believe that (1) any material modifications should
be made to the unaudited consolidated financial
statements and supporting schedules of the Company and
its subsidiaries included or incorporated by reference
in the Registration Statement and Prospectus for them
to be in conformity with generally accepted accounting
principles, (2) the unaudited consolidated financial
statements and supporting schedules of the Company and
its subsidiaries included or incorporated by reference
in the Registration Statement and Prospectus do not
comply as to form in all material respects with the
applicable accounting requirements of the 1934 Act and
the 1934 Act Regulations, or (3) at a specified date
not more than 5 days prior to the date of such letter,
there has been any change in the capital stock (other
than by reason of shares issued pursuant to
reservations or agreements referred to in the
Prospectus or pursuant to any employee stock option,
stock ownership or dividend reinvestment plan), any
increase in the consolidated long term debt or any
decrease in the consolidated shareholders' equity of
the Company and its consolidated subsidiaries, in each
case as compared with the amounts shown in the most
recent balance sheet included or incorporated by
reference in the Registration Statement and Prospectus
or, during the period from a specified date not more
than 5 days prior to the date of such letter, there
were any decreases, as compared with the corresponding
period in the preceding year, in total revenues
(interest income and non-interest income), net income,
net interest income or net income per share of the
Company and its subsidiaries except in all instances
for changes, increases or decreases which the
Registration Statement and Prospectus disclose have
occurred or may occur; and (iv) in addition to the
examination referred to in their opinions and the
limited procedures referred to in clause (iii) above,
they have carried out certain specified procedures, not
constituting an audit, with respect to certain amounts,
percentages and financial information which are derived
from the general accounting records of the Company, are
included in the Registration Statement and Prospectus
and are specified by you and have found such amounts,
percentages and financial information to be in
-23-
agreement with the relevant accounting records of the
Company and its subsidiaries identified in such letter.
(e) At the applicable Closing Time, counsel for
the Underwriters shall have been furnished with such
documents and opinions as they may reasonably require
for the purpose of enabling them to pass upon the
issuance and sale of the Offered Securities as herein
contemplated and related proceedings, or in order to
evidence the accuracy and completeness of any of the
representations or warranties, or the fulfillment of
any of the conditions, herein contained; and all
proceedings taken by the Company in connection with the
issuance and sale of the Offered Securities as herein
contemplated shall be satisfactory in form and
substance to you and counsel for the Underwriters.
(f) In the event the Underwriters exercise the
option, if any, provided in a Terms Agreement as set
forth in Section 2(b) hereof to purchase all or any
portion of the Option Securities, the representations
and warranties of the Company contained herein and the
statements in any certificates furnished by the Company
hereunder shall be true and correct as of each Date of
Delivery, and you shall have received:
(i) A certificate, dated such Date of
Delivery, of the Chairman of the Board of
Directors, President and Chief Executive Officer
or a Vice President of the Company and of the
chief financial officer or chief accounting
officer of the Company, in their capacities as
such, confirming that the certificate delivered at
Closing Time pursuant to Section 5(c) hereof
remains true and correct as of such Date of
Delivery.
(ii) The favorable opinion of Xxxxxx Xxxxxxxx
& Xxxx LLP, counsel for the Company, in form and
substance satisfactory to counsel for the
Underwriters, dated such Date of Delivery,
relating to the Option Securities and otherwise
substantially to the same effect as the opinion
required by Section 5(b)(i) hereof.
(iii) The favorable opinion of Xxxxx &
Wood, counsel for the Underwriters, dated such
Date of Delivery, relating to the Option
Securities and otherwise substantially to the same
-24-
effect as the opinion required by Section 5(b)(ii)
hereof.
(iv) A letter from the independent certified
public accountants referred to in Section 5(d), in
form and substance satisfactory to you and dated
such Date of Delivery, substantially the same in
scope and substance as the letter furnished to you
pursuant to Section 5(d) hereof, except that the
"specified date" in the letter furnished pursuant
to this Section 5(f)(iv) shall be a date not more
than 5 days prior to such Date of Delivery.
If any condition specified in this Section shall not
have been fulfilled when and as required to be fulfilled, the
applicable Terms Agreement may be terminated by such of you as
may be named in such Terms Agreement by notice to the Company at
any time at or prior to the applicable Closing Time, and such
termination shall be without liability of any party to any other
party except as provided in Section 4 hereof.
SECTION 6. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold
harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of Section
15 of the 1933 Act as follows:
(i) against any and all loss, liability,
claim, damage and expense whatsoever, as incurred,
arising out of any untrue statement or alleged
untrue statement of a material fact contained in
the Registration Statement (or any amendment
thereto), or the omission or alleged omission
therefrom of a material fact required to be stated
therein or necessary to make the statements
therein not misleading or arising out of any
untrue statement or alleged untrue statement of a
material fact included in the Prospectus (or any
amendment or supplement thereto) or the omission
or alleged omission therefrom of a material fact
necessary in order to make the statements therein,
in the light of the circumstances under which they
were made, not misleading;
(ii) against any and all loss, liability,
claim, damage and expense whatsoever, as incurred,
to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation
-25-
or proceeding by any governmental agency or body,
commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or
omission, if such settlement is effected with the
written consent of the Company; and
(iii) against any and all expense
whatsoever, as incurred (including, the fees and
disbursements of counsel chosen by you),
reasonably incurred in investigating, preparing or
defending against any litigation, or any
investigation or proceeding by any governmental
agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue
statement or omission, to the extent that any such
expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall
not apply to any loss, liability, claim, damage, or
expense to the extent arising out of any untrue
statement or omission or such alleged untrue statement
or omission made in reliance upon and in conformity
with written information furnished to the Company by
such Underwriter through you expressly for use in the
Registration Statement (or any amendment thereto) or
the Prospectus (or any amendment or supplement
thereto).
(b) Each Underwriter severally agrees to
indemnify and hold harmless the Company, its directors,
each of its officers who signed the Registration
Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933
Act against any and all loss, liability, claim, damage
and expense described in the indemnity contained in
subsection (a) of this Section, as incurred, but only
with respect to untrue statements or omissions, or
alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto) or
the Prospectus (or any amendment or supplement thereto)
in reliance upon and in conformity with written
information furnished to the Company by such
Underwriter through you expressly for use in the
Registration Statement (or any amendment thereto) or
the Prospectus (or any amendment or supplement
thereto).
-26-
(c) Each indemnified party shall give notice as
promptly as reasonably practicable to each indemnifying
party of any action commenced against it in respect of
which indemnity may be sought hereunder, but failure to
so notify an indemnifying party shall not relieve such
indemnifying party from any liability which it may have
otherwise than on account of this indemnity agreement.
An indemnifying party may participate at its own
expense in the defense of any such action. In no event
shall the indemnifying parties be liable for fees and
expenses of more than one counsel (in addition to any
local counsel) separate from their own counsel for all
indemnified parties in connection with any one action
or separate but similar or related actions in the same
jurisdiction arising out of the same general
allegations or circumstances.
SECTION 7. CONTRIBUTION. In order to provide for just and
equitable contribution in circumstances in which the indemnity
agreement provided for in Section 6 hereof is for any reason held
to be unenforceable by the indemnified parties although
applicable in accordance with its terms, the Company and the
Underwriters of each offering of Offered Securities shall
contribute to the aggregate losses, liabilities, claims, damages
and expenses of the nature contemplated by said indemnity
agreement incurred by the Company and one or more of the
Underwriters in respect of such offering, as incurred, in such
proportions that the Underwriters are responsible for that
portion represented by the percentage that the underwriting
discount appearing on the cover page of the Prospectus in respect
of such offering bears to the initial public offering price
appearing thereon and the Company is responsible for the balance;
provided, however, that 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 Section, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act
shall have the same rights to contribution as such Underwriter,
and each director of the Company, each officer of the Company who
signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933
Act shall have the same rights to contribution as the Company.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO
SURVIVE DELIVERY. All representations, warranties and agreements
contained in this Agreement or any Terms Agreement or contained
in certificates of officers of the Company submitted pursuant
hereto or thereto, shall remain operative and in full force and
effect, regardless of any investigation made by or on behalf of
-27-
any Underwriter or controlling person, or by or on behalf of the
Company, and shall survive delivery of any Securities to the
Underwriters.
SECTION 9. TERMINATION OF AGREEMENT. This Agreement may be
terminated for any reason at any time by either the Company or
you upon the giving of 30 days' written notice of such
termination to the other parties hereto. Such of you as may be
named in any Terms Agreement may also terminate such Terms
Agreement, immediately upon notice to the Company, at any time at
or prior to the applicable Closing Time, if (a) there shall have
been, since the date of such Terms Agreement or since the
respective dates as of which information is given in the
Prospectus, any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered
as one enterprise, whether or not arising in the ordinary course
of business, or (b) there shall have occurred any material
adverse change in the financial markets in the United States or
any outbreak or escalation of hostilities or other national or
international calamity or crisis the effect of which is such as
to make it, in the reasonable judgment of such of you as are
named in such Terms Agreement, impracticable to market the
Offered Securities or to enforce contracts for the sale of the
Offered Securities, or (c) trading in the Common Stock of the
Company shall have been suspended by the Commission or a national
securities exchange or any over-the-counter market, or if trading
generally on either the American Stock Exchange or the New York
Stock Exchange 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 either of said
Exchanges or in such market or by order of the Commission or any
other governmental authority, or if a banking moratorium has been
declared by either Federal, New York or Michigan authorities, or
(d) the rating assigned by any nationally recognized securities
rating agency to any debt securities or preferred stock of the
Company as of the time any applicable Terms Agreement was entered
into shall have been lowered since that time or if any such
rating agency shall have publicly announced that it has under
surveillance or review with possible negative implications, its
rating of any debt securities or preferred stock of the Company.
In the event of any such termination, (x) the covenants set forth
in Section 3 with respect to any offering of Securities shall
remain in effect so long as any Underwriter owns any such
Securities purchased from the Company pursuant to the applicable
Terms Agreement and (y) the covenant set forth in Section 3(h),
the provisions of Section 4, the indemnity agreement set forth in
Section 6, the contribution provisions set forth in Section 7 and
the provisions of Sections 8 and 13 shall remain in effect.
-28-
SECTION 10. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If
one or more of the Underwriters participating in an offering of
Offered Securities shall fail at the applicable Closing Time to
purchase the Offered Securities which it or they are obligated to
purchase under the applicable Terms Agreement (the "Defaulted
Securities"), then such of you as are named therein shall have
the right, within 24 hours thereafter, to make arrangements for
one or more of the non-defaulting Underwriters, or any other
underwriters, to purchase all, but not less than all, of the
Defaulted Securities in such amounts as may be agreed upon and
upon the terms herein set forth; if, however, during such 24
hours you shall not have completed such arrangements for the
purchase of all of the Defaulted Securities, then:
(a) if the aggregate principal amount of
Defaulted Securities does not exceed 10% of the
aggregate principal amount of Offered Securities to be
purchased pursuant to such Terms Agreement, the
non-defaulting Underwriters named in such Terms Agreement
shall be obligated to purchase the full amount thereof
in the proportions that their respective underwriting
obligations bear to the underwriting obligations of all
non-defaulting Underwriters, or
(b) if the aggregate principal amount of
Defaulted Securities exceeds 10% of the aggregate
principal amount of Offered Securities to be purchased
pursuant to such Terms Agreement, the applicable Terms
Agreement shall terminate without liability on the part
of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve
any defaulting Underwriter from liability in respect of its
default under this Agreement and the applicable Terms Agreement.
In the event of any such default by any Underwriter or
Underwriters as set forth in this Section, either you or the
Company shall have the right to postpone the applicable Closing
Time for a period not exceeding 7 days in order to effect any
required changes in the Registration Statement or Prospectus or
in any other documents or arrangements.
SECTION 11. NOTICES. All notices and other communications
hereunder shall be in writing and shall be deemed to have been
duly given if mailed or transmitted by any standard form of
telecommunication. Notices to the Underwriters shall be directed
to you at the address set forth above or, in respect of any Terms
Agreement, to such other person and place, if any, as may be
specified therein; and notices to the Company shall be directed
to it at Xxx Xxxxxxxxxx Xxxxxx, Xxxxx Xxxxxx, Xxxxxxxx 00000,
-29-
attention of Xxxxxxx X. Xxxxxx, Executive Vice President and
Chief Financial Officer, with a copy to Xxxxxx Xxxxxxxx & Xxxx
LLP, 000 Xxxx Xxxxxx, X.X., 000 Xxx Xxxx Xxxxxxxx, Xxxxx Xxxxxx,
Xxxxxxxx 00000, attention of Xxxxxx X. Xxxxx, Esq.
SECTION 12. PARTIES. This Agreement shall inure to the
benefit of and be binding upon you and the Company and any
Underwriter who becomes a party to a Terms Agreement, and their
respective successors. Nothing expressed or mentioned in this
Agreement or a Terms Agreement is intended or shall be construed
to give any person, firm or corporation, other than the parties
hereto and thereto and their respective successors and the
controlling persons and officers and directors referred to in
Sections 6 and 7 and their heirs and legal representatives, any
legal or equitable right, remedy or claim under or in respect of
this Agreement or a Terms Agreement or any provision herein or
therein contained. This Agreement and any Terms Agreement and
all conditions and provisions hereof and thereof are intended to
be for the sole and exclusive benefit of the parties and their
respective successors and said controlling persons and officers
and directors and their heirs and legal representatives, and for
the benefit of no other person, firm or corporation. No
purchaser of Securities from any Underwriter shall be deemed to
be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW. This Agreement and each Terms
Agreement shall be governed by and construed in accordance with
the laws of the State of New York applicable to agreements made
and to be performed in said State.
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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
you and the Company in accordance with its terms.
Very truly yours,
OLD KENT FINANCIAL CORPORATION
By:_______________________________
Title:
CONFIRMED AND ACCEPTED
as of the date first above written:
CS FIRST BOSTON CORPORATION
By:______________________________________
XXXXXXXXX, XXXXXX & XXXXXXXX SECURITIES
CORPORATION
By:______________________________________
XXXXX, XXXXXXXX & XXXXX, INC.
By:______________________________________
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Exhibit A
OLD KENT FINANCIAL CORPORATION
[Title of Security]
TERMS AGREEMENT
Dated: , 19
To: Old Kent Financial Corporation
Xxx Xxxxxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxxxxxxx 00000
Re: Purchase Agreement dated November 8, 1995.
We understand that Old Kent Financial Corporation (the
"Company") proposes to issue and sell $__________ aggregate
principal amount of its [Title of Security] (the "[Initial]
Offered Securities"). The Underwriters named below, severally
and not jointly, offer to purchase, subject to the terms and
provisions of the above referenced Purchase Agreement, which is
incorporated herein in its entirety and made a part hereof, to
purchase the principal amount of [Initial] Offered Securities set
forth opposite its name[, and a proportionate share of Option
Securities, to the extent any are purchased].
Principal Amount of
[Senior] [Subordinated]
[Convertible Subordinated]
UNDERWRITER DEBT SECURITIES
_______________
Total.......... $
The [Initial] Offered Securities shall have the following
terms:
Title:
Rank: [Senior] [Subordinated]
Current ratings:
Interest rate or formula:
Interest Payment Dates:
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Regular Record Dates:
Stated Maturity Date:
Redemption/repayment provisions:
Sinking fund requirements:
Conversion provisions:
Additional co-managers:
[Public offering price: %, plus accrued interest or
amortized original issue discount,
if any, from ________, 19__]
Purchase price: %, plus accrued interest or amortized
original issue discount, if any, from
__________, 19__ (payable in [next]
[same] day funds)
Number of Option Securities:
Other terms and conditions:
Closing date and location:
Please accept this offer no later than _______[A.][P.]M.,
New York City time, on ____________ by signing a copy of this
Terms Agreement in the space set forth below and returning the
signed copy to us.
[Managing Underwriters]
By: [Lead Managing Underwriter]
By:____________________________________
Authorized Signatory
Acting on behalf of themselves and
the other named Underwriters
Accepted:
OLD KENT FINANCIAL CORPORATION
By:_______________________________
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