1
EXHIBIT 1
600,000 Preferred Securities
IBC Capital Finance
___% Cumulative Trust Preferred Securities
(Liquidation Preference of $25 per Preferred Security)
UNDERWRITING AGREEMENT
November __, 1996
XXXXXX, XXXXXXXX & COMPANY, INCORPORATED
000 Xxxxx Xxxxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Dear Sirs:
Independent Bank Corporation, a Michigan corporation (the "Company") and its
financing subsidiary, IBC Capital Finance ("IBC Capital"), a Delaware business
trust (the "Trust", and hereinafter together with the Company, the "Offerors"),
propose that the Trust issue and sell severally to Xxxxxx, Xxxxxxxx & Company,
Incorporated (the "Underwriter"), pursuant to the terms of this Agreement, the
Trust's ____% Cumulative Trust Preferred Securities, with a liquidation
preference of $25.00 per preferred security (the "Preferred Securities"), to be
issued under a Certificate of Designations (the "Certificate of Designations"),
the terms of which are more fully described in the Prospectus (as hereinafter
defined). The aforementioned 600,000 Preferred Securities to be sold to the
Underwriter are herein called the "Firm Shares". Solely for the purpose of
covering over-allotments in the sale of the Firm Shares, the Offerors further
propose that the Trust issue and severally sell to the Underwriter, at its
option, up to an additional 90,000 Preferred Securities (the "Option Shares")
upon exercise of the over-allotment option granted in Section 1 hereof. The
Firm Shares and any Option Shares are herein collectively referred to as the
"Shares".
The Offerors hereby confirm as follows their agreement with the Underwriter
in connection with the proposed purchase of the Shares.
2
1. SALE, PURCHASE AND DELIVERY OF SHARES; DESCRIPTION OF SHARES.
(a) On the basis of the representations, warranties and agreements herein
contained, and subject to the terms and conditions herein set forth, the
Offerors hereby agree that the Trust shall issue and severally sell to the
Underwriter and the Underwriter agrees to purchase from the Trust, at a
purchase price per share of $25.00 (the "Purchase Price") the Firm Shares, and
the Company shall pay to the Underwriter a commission in the amount set forth
in Schedule 1 hereto.
In addition, on the basis of the representations, warranties and agreements
herein contained and subject to the terms and conditions herein set forth, the
Offerors hereby grant to the Underwriter, an option to purchase all or any
portion of the 90,000 Option Shares, and upon the exercise of such option in
accordance with this Section 1, the Offerors hereby agree that the Trust shall
sell to the Underwriter, and the Underwriter agrees to purchase from the Trust,
all or any portion of the Option Shares at the same Purchase Price per share
paid for the Firm Shares. The option hereby granted (the "Option") shall
expire 30 days after the date upon which the Registration Statement (as
hereinafter defined) becomes effective and may be exercised only for the
purpose of covering over-allotments which may be made in connection with the
offering and distribution of the Firm Shares. The Option may be exercised in
whole or in part at any time (but not more than once) by you giving notice
(confirmed in writing) to the Company setting forth the number of Option Shares
as to which the Underwriter is exercising the Option and the time, date and
place for payment and delivery of certificates for such Option Shares. Such
time and date of payment and delivery for the Option Shares (the "Option
Closing Date") shall be determined by you, but shall not be earlier than two
nor later than five full business days after the exercise of such Option, nor
in any event prior to the Closing Date (as hereinafter defined). The Option
Closing Date may be the same as the Closing Date.
Payment of the Purchase Price and delivery of certificates for the Firm
Shares shall be made at the offices of the Underwriter, 000 Xxxxx Xxxxxxxx, Xx.
Xxxxx, Xxxxxxxx 00000, or such other place as shall be agreed to by you and the
Company, at 10:00 a.m., St. Louis time, on _____ __, 1996, or at such other
time not more than five full business days thereafter as the Company and you
shall determine (the "Closing Date"). If the Underwriter exercises the option
to purchase any or all of the Option Shares, payment of the Purchase Price and
delivery of certificates for such Option Shares shall be made on the Option
Closing Date at the offices of the Underwriter, or at such other place as the
Company and you shall determine. Such payments shall be made to the Company or
its order by wire transfer or certified or bank cashier's check, in clearing
house or similar immediately available funds, in the amount of the Purchase
Price therefor, against
2
3
delivery by or on behalf of the Company to you for the Underwriter of
certificates for the Shares to be purchased by the Underwriter.
The Agreement contained herein with respect to the timing of the Closing
Date and Option Closing Date is intended to, and does, constitute an express
agreement, as described in Rule 15c6-1(c) and (d) promulgated under the 1934
Act (as defined herein), for a settlement date other than four business days
after the date of the contract.
Certificates for Shares to be purchased by the Underwriter shall be
delivered in fully registered form in such authorized denominations and
registered in such names as you shall request not later than 12:00 noon, St.
Louis time, two business days prior to the Closing Date and, if applicable, the
Option Closing Date. Certificates for Shares to be purchased by the
Underwriter shall be made available to you for inspection, checking and
packaging at such office as you may designate not later than 1:00 p.m., St.
Louis time, on the last business day prior to the Closing Date and, if
applicable, on the last business day prior to the Option Closing Date.
Time shall be of the essence, and delivery of the certificates for the
Shares at the time and place specified pursuant to this Agreement is a further
condition of the obligations of the Underwriter hereunder.
(b) The Offerors propose that the Trust issue the Shares pursuant to an
Amended and Restated Trust Agreement among State Street Bank and Trust Company,
as Property Trustee, Wilmington Trust Company, as Delaware Trustee, the
Administrative Trustees named therein, and the Company in substantially the
form heretofore delivered to you, said Agreement being hereinafter referred to
as the "Trust Agreement". In connection with the issuance of the Shares, the
Company proposes (i) to issue its Junior Subordinated Deferrable Interest
Debentures ( the "Debentures") pursuant to an Indenture, dated as of
_____________, 1996, between the Company and ________________________ as
Trustee (the "Indenture") and (ii) to guarantee the Shares pursuant to a
Guarantee Agreement between the Company and State Street Bank and Trust
Company, as guarantee trustee (the "Guarantee"), to the extent described
therein.
2. REPRESENTATIONS AND WARRANTIES.
(a) The Offerors jointly and severally represent and warrant to, and agree
with, the Underwriter that:
(i) The reports filed with the Securities and
Exchange Commission (the "Commission") by the Company under the
Securities
3
4
Exchange Act of 1934, as amended (the "1934 Act") and the rules and
regulations thereunder (the "1934 Act Regulations") at the time they
were filed with the Commission, complied as to form in all material
respects with the requirements of the 1934 Act and the 1934 Act
Regulations and did not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading.
(ii) The Offerors have prepared and filed with the
Commission a registration statement on Form S-2 (File No. 33-_______)
for the registration of the Shares, the Guarantee and $_______ million
aggregate principal amount of Debentures under the Securities Act of
1933, as amended (the "1933 Act"), including the related prospectus
subject to completion, and one or more amendments to such registration
statement may have been so filed, in each case in conformity in all
material respects with the requirements of the 1933 Act, the rules and
regulations promulgated thereunder (the "1933 Act Regulations") and
the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act") and the rules and regulations thereunder. Copies of such
registration statement, including any amendments thereto, each
Preliminary Prospectus (as defined herein) contained therein and the
exhibits, financial statements and schedules to such registration
statement, as finally amended and revised, have heretofore been
delivered by the Company to the Underwriter. After the execution of
this Agreement, the Offerors will file with the Commission (A) if such
registration statement, as it may have been amended, has been declared
by the Commission to be effective under the 1933 Act, a prospectus in
the form most recently included in an amendment to such registration
statement (or, if no such amendment shall have been filed, in such
registration statement), with such changes or insertions as are
required by Rule 430A of the 1933 Act Regulations ("Rule 430A") or
permitted by Rule 424(b) of the 1933 Act Regulations ("Rule 424(b)")
and as have been provided to and not objected to by the Underwriter
prior to (or as are agreed to by the Underwriter subsequent to) the
execution of this Agreement, or (B) if such registration statement, as
it may have been amended, has not been declared by the Commission to
be effective under the 1933 Act, an amendment to such registration
statement, including a form of final prospectus, necessary to permit
such registration statement to become effective, a copy of which
amendment has been furnished to and not objected to by the Underwriter
prior to (or is agreed to by the Underwriter subsequent to) the
execution of this Agreement. The Offerors will not file any amendment
to the registration statement or any amended Preliminary Prospectus or
any amendment thereto, of which you have not been previously furnished
a copy or to which you or your counsel shall reasonably object. As
used in this Agreement, the
4
5
term "Registration Statement" means such registration statement, as
amended at the time when it was or is declared effective under the
1933 Act, including (1) all financial schedules and exhibits thereto
(2) all documents (or portions thereof) incorporated by reference
therein filed under the 1934 Act, and (3) any information omitted
therefrom pursuant to Rule 430A and included in the Prospectus (as
hereinafter defined); the term "Preliminary Prospectus" means each
prospectus subject to completion filed with such registration
statement or any amendment thereto including all documents (or
portions thereof) incorporated by reference therein under the 1934 Act
(including the prospectus subject to completion, if any, included in
the Registration Statement and each prospectus filed pursuant to Rule
424(a) under the 0000 Xxx); and the term "Prospectus" means the
prospectus first filed with the Commission pursuant to Rule 424(b)(1)
or (4) or, if no prospectus is required to be filed pursuant to Rule
424(b)(1) or (4), the prospectus included in the Registration
Statement, in each case including the financial schedules and all
documents (or portions thereof) incorporated by reference therein
under the 1934 Act. The date on which the Registration Statement
becomes effective is hereinafter referred to as the "Effective Date."
(iii) The documents incorporated by reference in
the Preliminary Prospectus or Prospectus or from which information is
so incorporated by reference, when they become effective or were filed
with the Commission, as the case may be, complied in all material
respects with the requirements of the 1934 Act and the 1934 Act
Regulations, and when read together and with the other information in
the Preliminary Prospectus or Prospectus, as the case may be, at the
time the Registration Statement became or becomes effective and at the
Closing Date and any Option Closing Date, did not or will not, as the
case may be, contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances in which
they were made, not misleading.
(iv) No order preventing or suspending the use of
any Prospectus (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus) has been issued by the Commission, nor
has the Commission, to the knowledge of the Offerors, threatened to
issue such an order or instituted proceedings for that purpose. Each
Preliminary Prospectus, at the time of filing thereof, (A) complied in
all material respects with the requirements of the 1933 Act and the
1933 Act Regulations and (B) did not contain an untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were
5
6
made, not misleading; provided, however, that this representation and
warranty does not apply to statements or omissions made in reliance
upon and in conformity with information furnished in writing to the
Offerors by you expressly for inclusion in the Prospectus beneath the
heading "Underwriting" (such information referred to herein as the
"Underwriter's Information").
(v) At the Effective Date and at all times
subsequent thereto, up to and including the Closing Date and, if
applicable, the Option Closing Date, the Registration Statement and
any post-effective amendment thereto (A) complied and will comply in
all material respects with the requirements of the 1933 Act, the 1933
Act Regulations and the Trust Indenture Act (and the rules and
regulations thereunder) and (B) did not and will not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, not
misleading. At the Effective Date and at all times when the
Prospectus is required to be delivered in connection with offers and
sales of Shares, including, without limitation, the Closing Date and,
if applicable, the Option Closing Date, the Prospectus, as amended or
supplemented, (A) complied and will comply in all material respects
with the requirements of the 1933 Act and the 1933 Act Regulations and
the Trust Indenture Act (and the rules and regulations thereunder) and
(B) did not contain and will not contain an untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided,
however, that this representation and warranty does not apply to
Underwriter's Information.
(vi) The Company is duly organized, validly
existing and in good standing under the laws of the State of Michigan,
with full corporate and other power and authority to own, lease and
operate its properties and conduct its business as described in and
contemplated by the Registration Statement and the Prospectus (or, if
the Prospectus is not in existence, the most recent Preliminary
Prospectus) and as currently being conducted and is duly registered as
a bank holding company under the Bank Holding Company Act of 1956, as
amended (the "BHC Act").
The Trust has been duly created and is
validly existing as a statutory business trust in good standing under
the Delaware Business Trust Act with the power and authority (trust
and other) to own its property and conduct its business as described
in the Registration Statement and Prospectus, to issue and sell the
Shares and to enter into and perform its
6
7
obligations under this Agreement and to consummate the transactions
herein contemplated; the Trust has no subsidiaries and is duly
qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or the ownership of
its property requires such qualification, except to the extent that
the failure to be so qualified or be in good standing would not have a
material adverse effect on the Trust; the Trust has conducted and will
conduct no business other than the transactions contemplated by this
Agreement and described in the Prospectus; the Trust is not a party to
or bound by any agreement or instrument other than this Agreement, the
Trust Agreement and the agreements and instruments contemplated by the
Trust Agreement and described in the Prospectus; the Trust has no
liabilities or obligations other than those arising out of the
transactions contemplated by this Agreement and the Trust Agreement
and described in the Prospectus; the Trust is not a part to or subject
to any action, suit or proceeding of any nature; the Trust is not, and
at the Closing Date or any Option Closing Date will not be, classified
as an association taxable as a corporation for United States federal
income tax purposes; and the Trust is, and as of the Closing Date or
any Option Closing Date will be, treated as a consolidated subsidiary
of the Company pursuant to generally accepted accounting principles.
(vii) The Company has five subsidiaries. They are
Independent Bank, Independent Bank West Michigan, Independent Bank
South Michigan, Independent Bank East Michigan (the "Banks") and the
Trust. The Company does not own or control, directly or indirectly,
more than 5% of any class of equity security of any corporation,
association or other entity other than the Banks, Independent Title
Services, Inc., IBC Financial Services, Inc. and the Trust. Each of
the Banks is a Michigan State Bank duly incorporated, validly existing
and in good standing under the laws of Michigan. Each Bank has full
corporate and other power and authority to own, lease and operate its
properties and to conduct its business as described in and
contemplated by the Registration Statement and the Prospectus (or, if
the Prospectus is not in existence, the most recent Preliminary
Prospectus) and as currently being conducted. Each Bank is a member
of the Federal Reserve System, and no proceedings for the termination
or revocation of such membership are pending or, to the knowledge of
the Company, threatened. The deposit accounts of each Bank are
insured by the Bank Insurance Fund administered by the Federal Deposit
Insurance Corporation (the "FDIC") up to the maximum amount provided
by law, except to the extent the Prospectus discloses such deposit
accounts are insured by the Savings Association Insurance Fund
administered by the FDIC ("SAIF") and to such extent the deposit
accounts are so insured up to the maximum amount provided by law; and
no proceedings for the modification,
7
8
termination or revocation of any such insurance are pending or, to the
knowledge of the Company, threatened.
(viii) Each of the Company and the Banks is duly
qualified to transact business as a foreign corporation and is in good
standing in each other jurisdiction in which it owns or leases
property or conducts its business so as to require such qualification
and in which the failure to so qualify would, individually or in the
aggregate, have a material adverse effect on the condition (financial
or otherwise), earnings, business, prospects or results of operations
of the Company and the Banks on a consolidated basis. All of the
issued and outstanding shares of capital stock of the Banks (A) have
been duly authorized and are validly issued, (B) are fully paid and
nonassessable except to the extent such shares may be deemed
assessable under 12 U.S.C. Section 55 or 12 U.S.C. Section 1831o, and
(C) except as disclosed in the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus), are
directly owned by the Company free and clear of any security interest,
mortgage, pledge, lien, encumbrance, restriction upon voting or
transfer, preemptive rights, claim or equity. Except as disclosed in
the Prospectus, there are no outstanding rights, warrants or options
to acquire or instruments convertible into or exchangeable for any
capital stock of the Company and the Banks.
(ix) The capital stock of the Offerors conforms to
the description thereof contained in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary
Prospectus). The outstanding shares of capital stock of the Offerors
have been duly authorized and validly issued and are fully paid and
nonassessable, and no such shares were issued in violation of the
preemptive or similar rights of any security holder of the Company; no
person has any preemptive or similar right to purchase any shares of
capital stock of the Offerors. Except as disclosed in the Prospectus
(or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus), there are no outstanding rights, options or
warrants to acquire any securities of the Offerors other than options
issued under the Company's Incentive Share Grant Plan and Employee
Stock Option Plan, and there are no outstanding securities convertible
into or exchangeable for any such securities, and no restrictions upon
the voting or transfer of any capital stock of the Company pursuant to
the Company's corporate charter or by-laws or any agreement or other
instrument to which the Company is a party or by which it is bound.
(x) The Trust has all requisite power and
authority to issue, sell and deliver the Shares in accordance with and
upon the terms and conditions set forth in this Agreement, the
Certificate of Designations, the
8
9
Registration Statement and the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus). All
corporate action required to be taken by the Offerors for the
authorization, issuance, sale and delivery of the Shares in accordance
with such terms and conditions has been validly and sufficiently
taken. The Shares, when delivered in accordance with this Agreement,
will be duly and validly issued and outstanding, will be fully paid
and nonassessable undivided beneficial interests in the assets of the
Trust, will be entitled to the benefits of the Trust Agreement, will
not be issued in violation of or subject to any preemptive or similar
rights, and will conform to the description thereof in the
Registration Statement and the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus) and the
Certificate of Designations. Holders of the Shares will be entitled
to the same limitation of personal liability extended to stockholders
of private for profit corporations organized under the General
Corporation Law of the State of Delaware. None of the Shares,
immediately prior to delivery, will be subject to any security
interest, lien, mortgage, pledge, encumbrance, restriction upon voting
or transfer, preemptive rights, claim, equity or other defect.
The Debentures have been duly and validly
authorized, and, when duly and validly executed, authenticated and
issued as provided in the Indenture and delivered pursuant to this
Agreement, will constitute valid and legally binding obligations of
the Company entitled to the benefits of the Indenture and will conform
to the description thereof contained in the Prospectus.
(xi) The Offerors and the Banks have complied in
all material respects with all federal, state and local statutes,
regulations, ordinances and rules applicable to the ownership and
operation of their properties or the conduct of their businesses as
described in and contemplated by the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) and as currently being conducted.
(xii) The Offerors and the Banks have all material
permits, easements, consents, licenses, franchises and other
governmental and regulatory authorizations from all appropriate
federal, state, local or other public authorities ("Permits") as are
necessary to own and lease their properties and conduct their
businesses in the manner described in and contemplated by the
Registration Statement and the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus) and as
currently being conducted in all material respects. All such Permits
are in full force and effect and each of the Company and the Banks are
in all
9
10
material respects complying therewith, and no event has occurred that
allows, or after notice or lapse of time would allow, revocation or
termination thereof or will result in any other material impairment of
the rights of the holder of any such Permit, subject in each case to
such qualification as may be adequately disclosed in the Prospectus
(or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus). Such Permits contain no restrictions that
would materially impair the ability of the Company or the Banks to
conduct their businesses in the manner consistent with their past
practices. Neither the Offerors nor the Banks have received notice or
otherwise has knowledge of any proceeding or action relating to the
revocation or modification of any such Permit.
(xiii) Neither the Offerors nor any of the Banks is
in breach or violation of their corporate charter (including without
limitation, the Certificate of Designations), by-laws or other
governing documents. Neither the Offerors nor the Banks are, and to
the knowledge of the Offerors no other party is, in violation, breach
or default (with or without notice or lapse of time or both) in the
performance or observance of any term, covenant, agreement,
obligation, representation, warranty or condition contained in (A) any
contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease, franchise, license, Permit or any other
agreement or instrument to which it is a party or by which it or any
of its properties may be bound, which such breach, violation or
default could have material adverse consequences to the Offerors and
the Banks on a consolidated basis, and to its knowledge, no other
party has asserted that the Offerors or any of the Banks is in such
violation, breach or default (provided that the foregoing shall not
apply to defaults by borrowers from the Banks), or (B) except as
disclosed in the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus), any order, decree,
judgment, rule or regulation of any court, arbitrator, government, or
governmental agency or instrumentality, domestic or foreign, having
jurisdiction over the Offerors or the Banks or any of their respective
properties the breach, violation or default of which could have a
material adverse effect on the condition, financial or otherwise,
earnings, affairs, business, prospects, or results of operations of
the Offerors and the Banks on a consolidated basis.
(xiv) The execution, delivery and performance of
this Agreement and the consummation of the transactions contemplated
by this Agreement, the Certificate of Designations, the Registration
Statement and the Prospectus (or, if the Prospectus in not in
existence, the most recent Preliminary Prospectus) do not and will not
conflict with, result in the creation or imposition of any material
lien, claim, charge, encumbrance or
10
11
restriction upon any property or assets of the Offerors or the Banks
or the Shares pursuant to, constitute a breach or violation of, or
constitute a default under, with or without notice or lapse of time or
both, any of the terms, provisions or conditions of the charter
(including without limitation, the Certificate of Designations) or
by-laws of the Company or the Banks, the Trust Agreement, any
contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease, franchise, license, Permit or any other
agreement or instrument to which the Offerors or the Banks is a party
or by which either of them or any of their respective properties may
be bound or any order, decree, judgment, rule or regulation of any
court, arbitrator, government, or governmental agency or
instrumentality, domestic or foreign, having jurisdiction over the
Offerors or the Bank or any of their respective properties which
conflict, creation, imposition, breach, violation or default would
have either singly or in the aggregate a material adverse effect on
the condition, financial or otherwise, earnings, affairs, business,
prospects or results of operations of the Offerors and the Banks on a
consolidated basis. No authorization, approval, consent or order of,
or filing, registration or qualification with, any person (including,
without limitation, any court, governmental body or authority) is
required in connection with the transactions contemplated by this
Agreement, the Certificate of Designations, the Registration Statement
and the Prospectus (or such Preliminary Prospectus), except such as
may be required under the 1933 Act, and such as may be required under
state securities laws in connection with the purchase and distribution
of the Shares by the Underwriter. No authorization, approval, consent
or order of or filing, registration or qualification with, any person
(including, without limitation, any court, governmental body or
authority) is required in connection with the transactions
contemplated by this Agreement, the Certificate of Designations, the
Registration Statement and the Prospectus, except such as have been
obtained under the 1933 Act, and such as may be required under state
securities laws or Interpretations or Rules of the National
Association of Securities Dealers, Inc. ("NASD") in connection with
the purchase and distribution of the Shares by the Underwriter.
(xv) The Offerors have all requisite corporate
power and authority to enter into this Agreement and this Agreement
has been duly and validly authorized, executed and delivered by the
Offerors and constitutes the legal, valid and binding agreement of the
Offerors, enforceable against Offerors in accordance with its terms,
except as the enforcement thereof may be limited by general principles
of equity and by bankruptcy or other laws relating to or affecting
creditors' rights generally and except as any indemnification or
contribution provisions thereof may be limited under applicable
securities laws. Each of the Indenture, the Trust Agreement, the
11
12
Guarantee and the Agreement as to Expenses and Liabilities (the
"Expense Agreement") has been duly authorized by the Offerors, and,
when executed and delivered by the Company on the Closing Date, each
of said agreements will constitute a valid and legally binding
obligation of the Offerors and will be enforceable against the
Offerors in accordance with its terms, except as the enforcement
thereof may be limited by general principles of equity and by
bankruptcy or other laws relating to or affecting creditors' rights
generally and except as any indemnification or contribution provisions
thereof may be limited under applicable securities laws. Each of the
Indenture, the Trust Agreement and the Guarantee has been duly
qualified under the Trust Indenture Act and will conform to the
description thereof contained in the Prospectus.
(xvi) The Company and the Banks have good and
marketable title in fee simple to all real property and good title to
all personal property owned by them and material to their business, in
each case free and clear of all security interests, liens, mortgages,
pledges, encumbrances, restrictions, claims, equities and other
defects except such as are referred to in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary
Prospectus) or such as do not materially affect the value of such
property in the aggregate and do not materially interfere with the use
made or proposed to be made of such property; and all of the leases
under which the Company or the Banks hold real or personal property
are valid, existing and enforceable leases and in full force and
effect with such exceptions as are not material and do not materially
interfere with the use made or proposed to be made of such real or
personal property, and neither the Company nor the Banks is in default
in any material respect of any of the terms or provisions of any
leases.
(xvii) KPMG Peat Marwick LLP, who have certified
certain of the consolidated financial statements of the Company and
the Banks including the notes thereto, included in the Registration
Statement and Prospectus, are independent public accountants with
respect to the Company and the Banks, as required by the 1933 Act and
the 1933 Act Regulations.
(xviii) The consolidated financial statements
including the notes thereto, included in the Registration Statement
and the Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus) with respect to the Company and
the Banks comply in all material respects with the 1933 Act and the
1933 Act Regulations and present fairly the consolidated financial
position of the Company and the Banks as of the dates indicated and
the consolidated results of operations, cash flows and
12
13
stockholders' equity of the Company and the Banks for the periods
specified and have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis. The selected and
summary consolidated financial data concerning the Company and the
Banks included in the Registration Statement and the Prospectus (or
such Preliminary Prospectus) comply in all material respects with the
1933 Act and the 1933 Act Regulations, present fairly the information
set forth therein, and have been compiled on a basis consistent with
that of the consolidated financial statements of the Company and the
Banks in the Registration Statement and the Prospectus (or such
Preliminary Prospectus). The other financial, statistical and
numerical information included in the Registration Statement and the
Prospectus (or such Preliminary Prospectus) comply in all material
respects with the 1933 Act and the 1933 Act Regulations, present
fairly the information shown therein, and to the extent applicable
have been compiled on a basis consistent with the consolidated
financial statements of the Company and the Banks included in the
Registration Statement and the Prospectus (or such Preliminary
Prospectus).
(xix) Since the respective dates as of which
information is given in the Registration Statement and the Prospectus
(or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus), except as otherwise stated therein:
(A) neither the Offerors nor any of the Banks
have sustained any loss or interference with its business from
fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or
governmental action, order or decree which is material to the
condition (financial or otherwise), earnings, business,
prospects or results of operations of the Offerors and the
Banks on a consolidated basis;
(B) there has not been any material adverse
change in, or any development which is reasonably likely to
have a material adverse effect on, the condition (financial or
otherwise), earnings, business, prospects or results of
operations of the Offerors and the Banks on a consolidated
basis, whether or not arising in the ordinary course of
business;
(C) neither the Offerors nor any of the Banks
have incurred any liabilities or obligations, direct or
contingent, or entered into any material transactions, other
than in the ordinary course of business which is material to
the condition (financial or otherwise), earnings,
13
14
business, prospects or results of operations of the Offerors
and the Banks on a consolidated basis;
(D) the Offerors have not declared or paid any
dividend, and neither the Offerors nor any of the Banks have
become delinquent in the payment of principal or interest on
any outstanding borrowings; and
(E) there has not been any change in the capital
stock (except for the exercise of employee stock options
issued under the Company's Incentive Share Grant Plan and
Employee Stock Option Plan, and disclosed as outstanding),
long-term debt, obligations under capital leases or, other
than in the ordinary course of business, short-term borrowings
of the Offerors or the Banks.
(xx) Except as set forth in the Registration
Statement and the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus), no charge,
investigation, action, suit or proceeding is pending or, to the
knowledge of the Company, threatened, against or affecting the
Offerors or the Banks or any of their respective properties before or
by any court or any regulatory, administrative or governmental
official, commission, board, agency or other authority or body, or any
arbitrator, wherein an unfavorable decision, ruling or finding could
have a material adverse effect on the consummation of this Agreement
or the transactions contemplated herein or the condition (financial or
otherwise), earnings, affairs, business, prospects or results of
operations of the Offerors and the Banks on a consolidated basis or
which is required to be disclosed in the Registration Statement or the
Prospectus (or such Preliminary Prospectus) and is not so disclosed.
(xxi) There are no contracts or other documents
required to be filed as exhibits to the Registration Statement by the
1933 Act or the 1933 Act Regulations or the Trust Indenture Act (or
any rules or regulations thereunder) which have not been filed as
exhibits to the Registration Statement, or that are required to be
summarized in the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus) that are not so
summarized.
(xxii) The Offerors have not taken, directly or
indirectly, any action designed to result in or which has constituted
or which might reasonably be expected to cause or result in
stabilization or manipulation of the price of any security of the
Offerors to facilitate the sale or resale of the
14
15
Shares, and the Offerors are not aware of any such action taken or to
be taken by any affiliate of the Offerors.
(xxiii) The Offerors and the Banks own, or possess
adequate rights to use, all patents, copyrights, trademarks, service
marks, trade names and other rights necessary to conduct the
businesses now conducted by them in all material respects or as
described in the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus) and neither the
Offerors nor the Banks have received any notice of infringement or
conflict with asserted rights of others with respect to any patents,
copyrights, trademarks, service marks, trade names or other rights
which, individually or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would have a material adverse
effect on the condition (financial or otherwise), earnings, affairs,
business, prospects or results of operations of the Offerors and the
Banks on a consolidated basis, and the Company does not know of any
basis for any such infringement or conflict.
(xxiv) Except as adequately disclosed in the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus), no labor dispute involving the Company or the
Banks exists or, to the knowledge of the Company, is imminent which
might be expected to have a material adverse effect on the condition
(financial or otherwise), earnings, affairs, business, prospects or
results of operations of the Offerors and the Banks on a consolidated
basis or which is required to be disclosed in the Prospectus (or, if
the Prospectus is not in existence, the most recent Preliminary
Prospectus). Neither the Company nor the Banks have received notice
of any existing or threatened labor dispute by the employees of any of
its principal suppliers, customers or contractors which might be
expected to have a material adverse effect on the condition (financial
or otherwise), earnings, affairs, business, prospects or results of
operations of the Company and the Banks on a consolidated basis.
15
16
(xxv) The Offerors and the Banks have timely and
properly prepared and filed all necessary federal, state, local and
foreign tax returns which are required to be filed and have paid all
taxes shown as due thereon and have paid all other taxes and
assessments to the extent that the same shall have become due, except
such as are being contested in good faith or where the failure to so
timely and properly prepare and file would not have a material adverse
effect on the condition (financial or otherwise), earnings, affairs,
business, prospects or results of operations of the Offerors and the
Banks on a consolidated basis. The Company has no knowledge of any
tax deficiency which has been or might be assessed against the
Offerors or the Banks which, if the subject of an unfavorable
decision, ruling or finding, would have a material adverse effect on
the condition (financial or otherwise), earnings, affairs, business,
prospects or results of operations of the Offerors and the Banks on a
consolidated basis.
(xxvi) Each of the material contracts, agreements
and instruments described or referred to in the Registration Statement
or the Prospectus (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus) and each contract, agreement and
instrument filed as an exhibit to the Registration Statement is in
full force and effect and is the legal, valid and binding agreement of
the Offerors or the Banks, enforceable in accordance with its terms,
except as the enforcement thereof may be limited by general principles
of equity and by bankruptcy or other laws relating to or affecting
creditors' rights generally. Except as disclosed in the Prospectus
(or such Preliminary Prospectus), to the knowledge of the Company, no
other party to any such agreement is (with or without notice or lapse
of time or both) in breach or default in any material respect
thereunder.
(xxvii) No relationship, direct or indirect, exists
between or among the Offerors or the Banks, on the one hand, and the
directors, officers, stockholders, customers or suppliers of the
Offerors or the Banks, on the other hand, which is required to be
described in the Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary
Prospectus) which is not adequately described therein.
(xxviii) No person has the right to request or require
the Offerors or the Banks to register any securities for offering and
sale under the 1933 Act by reason of the filing of the Registration
Statement with the Commission or the issuance and sale of the Shares
except as adequately disclosed in the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus).
16
17
(xxix) The Shares have been approved for quotation
on the Nasdaq National Market subject to official notice of issuance.
(xxx) Except as described in the Prospectus (or, if
the Prospectus is not in existence, the most recent Preliminary
Prospectus), there are no contractual encumbrances or restrictions or
material legal restrictions, on the ability of the Banks or the Trust
(A) to pay dividends or make any other distributions on its capital
stock or to pay any indebtedness owed to the Company, (B) to make any
loans or advances to, or investments in, the Company or (C) to
transfer any of its property or assets to the Company.
(xxxi) Neither of the Offerors is an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended.
(xxxii) The Company has not distributed and will not
distribute prior to the Closing Date any prospectus in connection with
the Offering, other than a Preliminary Prospectus, the Prospectus, the
Registration Statement and the other materials permitted by the 1933
Act and the 1933 Act Regulations and reviewed by the Underwriter.
3. OFFERING BY THE UNDERWRITER. After the Registration
Statement becomes effective or, if the Registration Statement is already
effective, after this Agreement becomes effective, the Underwriter proposes to
offer the Firm Shares for sale to the public upon the terms and conditions set
forth in the Prospectus. The Underwriter may from time to time thereafter
reduce the public offering price and change the other selling terms, provided
the proceeds to the Trust shall not be reduced as a result of such reduction or
change.
The Underwriter may reserve and sell such of the Shares
purchased by the Underwriter as the Underwriter may elect to dealers chosen by
it (the "Selected Dealers") at the public offering price set forth in the
Prospectus less the applicable Selected Dealers' concessions set forth therein,
for re-offering by Selected Dealers to the public at the public offering price.
The Underwriter may allow, and Selected Dealers may re-allow, a concession set
forth in the Prospectus to certain other brokers and dealers.
17
18
4. CERTAIN COVENANTS OF THE OFFERORS. The Offerors
jointly and severally covenant with the Underwriter as follows:
(a) The Offerors shall use their best efforts to cause
the Registration Statement and any amendments thereto, if not effective at the
time of execution of this Agreement, to become effective as promptly as
possible. If the Registration Statement has become or becomes effective
pursuant to Rule 430A and information has been omitted therefrom in reliance on
Rule 430A, then, the Offerors will prepare and file in accordance with Rule
430A and Rule 424(b) copies of the Prospectus or, if required by Rule 430A, a
post-effective amendment to the Registration Statement (including the
Prospectus) containing all information so omitted and will provide evidence
satisfactory to the Underwriter of such timely filing.
(b) The Offerors shall notify you immediately, and confirm
such notice in writing:
(i) when the Registration Statement, or any
post-effective amendment to the Registration Statement, has become
effective, or when the Prospectus or any supplement to the Prospectus
or any amended Prospectus has been filed;
(ii) of the receipt of any comments or requests
from the Commission;
(iii) of any request of the Commission to amend or
supplement the Registration Statement, any Preliminary Prospectus or
the Prospectus or for additional information; and
(iv) of the issuance by the Commission or any
state or other regulatory body of any stop order or other order
suspending the effectiveness of the Registration Statement, preventing
or suspending the use of any Preliminary Prospectus or the Prospectus,
or suspending the qualification of any of the Shares for offering or
sale in any jurisdiction or the institution or threat of institution
of any proceedings for any of such purposes. The Offerors shall use
their best efforts to prevent the issuance of any such stop order or
of any other such order and if any such order is issued, to cause such
order to be withdrawn or lifted as soon as possible.
18
19
(c) The Company shall furnish to you, from time to time
without charge, as soon as available, as many copies as you may reasonably
request of (i) the registration statement as originally filed and of all
amendments thereto, in executed form, including exhibits, whether filed before
or after the Registration Statement becomes effective, (ii) all exhibits and
documents incorporated therein or filed therewith, (iii) all consents and
certificates of experts in executed form, (iv) each Preliminary Prospectus and
all amendments and supplements thereto, and (v) the Prospectus, and all
amendments and supplements thereto.
(d) During the time when a prospectus is required to be
delivered under the 1933 Act, the Offerors shall comply to the best of their
ability with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the
1934 Act Regulations so as to permit the completion of the distribution of the
Shares as contemplated herein and in the Prospectus. The Offerors shall not
file any amendment to the registration statement as originally filed or to the
Registration Statement and shall not file any amendment thereto or make any
amendment or supplement to any Preliminary Prospectus or to the Prospectus of
which you shall not previously have been advised in writing and provided a copy
a reasonable time prior to the proposed filings thereof or to which you shall
reasonably object. If it is necessary, in your reasonable opinion or in the
reasonable opinion of your counsel to amend or supplement the Registration
Statement or the Prospectus in connection with the distribution of the Shares,
the Offerors shall forthwith amend or supplement the Registration Statement or
the Prospectus, as the case may be, by preparing and filing with the
Commission, and furnishing to you, such number of copies as you may reasonably
request of an amendment or amendments of, or a supplement or supplements to,
the Registration Statement or the Prospectus, as the case may be (in form and
substance reasonably satisfactory to you and your counsel. If any event shall
occur as a result of which it is necessary to amend or supplement the
Prospectus to correct an untrue statement of a material fact or to include a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, or if for any reason
it is necessary at any time to amend or supplement the Prospectus to comply
with the 1933 Act and the 1933 Act Regulations, the Offerors shall, subject to
the second sentence of this subsection (d), forthwith amend or supplement the
Prospectus by preparing and filing with the Commission, and furnishing to you,
such number of copies as you may reasonably request of an amendment or
amendments of, or a supplement or supplements to, the Prospectus (in form and
substance satisfactory to you and your counsel so that, as so amended or
supplemented, the Prospectus shall not contain an untrue statement of a
material fact or omit to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
19
20
(e) The Offerors shall cooperate with you and your
counsel in order to qualify the Shares for offering and sale under the
securities or blue sky laws of such jurisdictions as you may reasonably request
and shall continue such qualifications in effect so long as may be advisable
for distribution of the Shares; provided, however, that the Offerors shall not
be required to qualify to do business as a foreign corporation or file a
general consent to service of process in any jurisdiction in connection with
the foregoing. The Offerors shall file such statements and reports as may be
required by the laws of each jurisdiction in which the Shares have been
qualified as above. The Offerors will notify you immediately of, and confirm
in writing, the suspension of qualification of the Shares or threat thereof in
any jurisdiction.
(f) The Company shall make generally available to its
security holders in the manner contemplated by Rule 158 of the 1933 Act
Regulations and furnish to you as soon as practicable, but in any event not
later than 16 months after the Effective Date, a consolidated earnings
statement of the Company conforming with the requirements of Section 11(a) of
the 1933 Act and Rule 158.
(g) The Offerors shall use the net proceeds from the sale
of the Shares to be sold by the Trust hereunder in the manner specified in the
Prospectus under the caption "Use of Proceeds."
(h) For five years from the Effective Date, the Company
shall furnish to the Underwriter copies of all reports and communications
(financial or otherwise) furnished by the Company to the holders of the Shares
as a class, copies of all reports and financial statements filed with or
furnished to the Commission (other than portions for which confidential
treatment has been obtained from the Commission) or with any national
securities exchange or the Nasdaq National Market and such other documents,
reports and information concerning the business and financial condition of the
Company as the Underwriter may reasonably request, other than such documents,
reports and information for which the Company has the legal obligation not to
reveal to the Underwriter.
(i) For a period of 180 days from the date hereof, the
Company shall not, directly or indirectly, offer for sale, sell or agree to
sell or otherwise dispose of any shares of the common stock securities
convertible into, exercisable or exchangeable for, or that are the economic or
voting equivalent of, any such shares of common stock, or announce the offering
of, or register with the Commission, any shares of common stock or such other
securities, without your prior written consent.
20
21
(j) For a period of 180 days from the date hereof, the
Offerors shall not, directly or indirectly, offer for sale, sell or agree to
sell or otherwise dispose of any shares of Shares, any other beneficial
interests in the assets of the Trust or any securities of the Trust or the
Company that are substantially similar to the Shares, including any guarantee
of any such beneficial interests or substantially similar securities, or
securities convertible into or exchangeable for or that represent the right to
receive any such beneficial interest or substantially similar securities,
without your prior written consent.
(k) The Offerors shall use their best efforts to cause
the Shares to become quoted on the Nasdaq National Market, or in lieu thereof a
national securities exchange, and to remain so quoted for at least five years
from the Effective Date or for such shorter period as may be specified in a
written consent of the Underwriter, provided this shall not prevent the Company
from redeeming the Shares pursuant to the terms of the Certificate of
Designations. If the Shares are exchanged for Debentures, the Company will use
its best efforts to have the Debentures listed on the exchange or other
organization on which the Preferred securities are then listed, and to have the
Debentures registered under the Exchange Act.
(l) Subsequent to the date of this Agreement and through
the date which is the later of (i) the day following the date on which the
Underwriter's option to purchase the Option Shares shall expire or (ii) the day
following the Option Closing Date with respect to any Option Shares that the
Underwriter shall elect to purchase, except as described in or contemplated by
the Prospectus, neither the Offerors nor the Banks shall take any action (or
refrain from taking any action) which will result in the Offerors or the Banks
incurring any material liability or obligation, direct or contingent, or enter
into any material transaction, except in the ordinary course of business, and
there will not be any material change in the financial position, capital stock,
or any material increase in long-term debt, obligations under capital leases or
short-term borrowings of the Offerors and the Banks on a consolidated basis.
(m) The Company shall not, for a period of 180 days after
the date hereof, without the prior written consent of the Underwriter,
purchase, redeem or call for redemption, or prepay or give notice of prepayment
(or announce any redemption or call for redemption, or any repayment or notice
of prepayment) of any of the Company's securities, provided that the foregoing
shall not prevent an employee from delivering the Company's securities in
payment of the exercise price of options issued under the Company's Incentive
Share Grant Plan and Employee Stock Option Plan.
21
22
(n) The Offerors shall not take, directly or indirectly,
any action designed to result in or which has constituted or which might
reasonably be expected to cause or result in stabilization or manipulation of
the price of any security of the Company to facilitate the sale or resale of
the Shares and the Company is not aware of any such action taken or to be taken
by any affiliate of the Company.
(o) Prior to the Closing Date (and, if applicable, the
Option Closing Date), the Offerors will not issue any press release or other
communication directly or indirectly or hold any press conference with respect
to the Company, the Banks or the offering of the Shares (the "Offering")
without your prior written consent which will not be unreasonably withheld.
5. PAYMENT OF EXPENSES. Whether or not this Agreement
is terminated or the sale of the Shares to the Underwriter is consummated, the
Company covenants and agrees that it will pay or cause to be paid (directly or
by reimbursement) all costs and expenses incident to the performance of the
obligations of the Offerors under this Agreement, including:
(a) the preparation, printing, filing, delivery and
shipping of the initial registration statement, the Preliminary Prospectus or
Prospectuses, the Registration Statement and the Prospectus and any amendments
or supplements thereto, and the printing, delivery and shipping of this
Agreement and any other underwriting documents (including, without limitation,
selected dealers agreements), the certificates for the Shares and the
Preliminary and Final Blue Sky Memoranda and any legal investment surveys and
any supplements thereto;
(b) all fees, expenses and disbursements of the Offeror's
counsel and accountants;
(c) all fees and expenses incurred in connection with the
qualification of the Shares under the securities or blue sky laws of such
jurisdictions as you may request, including all filing fees and fees and
disbursements of counsel for the Underwriter in connection therewith,
including, without limitation, in connection with the preparation of the
Preliminary and Final Blue Sky Memoranda and any legal investment surveys and
any supplements thereto;
(d) all fees and expenses incurred in connection with
filings made with the NASD;
22
23
(e) any applicable fees and other expenses incurred in
connection with the listing of the Shares and, if applicable, the Debentures on
the Nasdaq National Market;
(f) the cost of furnishing to you copies of the initial
registration statements, any Preliminary Prospectus, the Registration Statement
and the Prospectus and all amendments or supplements thereto;
(g) the costs and charges of any transfer agent or
registrar and the fees and disbursements of counsel for any transfer agent or
registrar;
(h) all costs and expenses (including stock transfer
taxes) incurred in connection with the printing, issuance and delivery of the
Shares to the Underwriter;
(i) all expenses incident to the preparation, execution
and delivery of the trust agreements with respect to the Trust, the Indenture
and the Guarantee; and
(j) all other costs and expenses incident to the
performance of the obligations of the Company hereunder and under the
Certificate of Designations that are not otherwise specifically provided for in
this Section 5.
If the sale of Shares contemplated by this Agreement is not
completed for any reason whatsoever, including without limitation if this
Agreement is terminated by the Offerors or by you for any reason whatsoever,
whether or not such termination is allowable hereunder, the Company will pay
you your accountable out-of-pocket expenses in connection herewith or in
contemplation of the performance of your obligations hereunder, including
without limitation travel expenses, reasonable fees, expenses and disbursements
of counsel or other out-of- pocket expenses incurred by you in connection with
any discussion of the Offering or the contents of the Registration Statement,
any investigation of the Offerors and the Banks, or any preparation for the
marketing, purchase, sale or delivery of the Shares, in each case following
presentation of reasonably detailed invoices therefor.
If the sale of Shares contemplated by this Agreement is
completed, the Company shall not be responsible for payment of fees or
disbursements of counsel for the Underwriter other than in accordance with
paragraph (c) above, or for the reimbursement of any expenses of the
Underwriter.
6. CONDITIONS OF THE UNDERWRITER' OBLIGATIONS. The
obligations of the Underwriter to purchase and pay for the Firm Shares and,
following exercise of
23
24
the option granted by the Offerors in Section 1 of this Agreement, the Option
Shares, are subject, in your sole discretion, to the accuracy of and compliance
with the representations and warranties and agreements of the Offerors herein
as of the date hereof and as of the Closing Date (or in the case of the Option
Shares, if any, as of the Option Closing Date), to the accuracy of the written
statements of the Offerors made pursuant to the provisions hereof, to the
performance by the Offerors of their covenants and obligations hereunder and to
the following additional conditions:
(a) If the Registration Statement or any amendment
thereto filed prior to the Closing Date has not been declared effective prior
to the time of execution hereof, the Registration Statement shall become
effective not later than 10:00 a.m., St. Louis time, on the first business day
following the time of execution of this Agreement, or at such later time and
date as you may agree to in writing. If required, the Prospectus and any
amendment or supplement thereto shall have been timely filed in accordance with
Rule 424(b) and Rule 430A under the 1933 Act and Section 4(a) hereof. No stop
order suspending the effectiveness of the Registration Statement or any
amendment or supplement thereto shall have been issued under the 1933 Act or
any applicable state securities laws and no proceedings for that purpose shall
have been instituted or shall be pending, or, to the knowledge of the Offenders
the Underwriter, shall be contemplated by the Commission or any state
authority. Any request on the part of the Commission or any state authority
for additional information (to be included in the Registration Statement or
Prospectus or otherwise) shall have been disclosed to you and complied with to
your satisfaction and to the satisfaction of your counsel.
(b) The Underwriter shall not have advised the Company at
or before the Closing Date (and, if applicable, the Option Closing Date) that
the Registration Statement or any post-effective amendment thereto, or the
Prospectus or any amendment or supplement thereto, contains an untrue statement
of a fact which, in your opinion, is material or omits to state a fact which,
in your opinion, is material and is required to be stated therein or is
necessary to make statements therein (in the case of the Prospectus or any
amendment or supplement thereto, in light of the circumstances under which they
were made) not misleading.
24
25
(c) All corporate proceedings and other legal matters
incident to the authorization, form and validity of this Agreement, the
Certificate of Designations, the Trust Agreement, the Shares and the Shares,
and the authorization and form of the Registration Statement and Prospectus,
other than financial statements and other financial data, and all other legal
matters relating to this Agreement and the transactions contemplated hereby or
by the Certificate of Designations shall be satisfactory in all respects to
your counsel, and the Offerors and the Banks shall have furnished to such
counsel all documents and information relating thereto that they may reasonably
request to enable them to pass upon such matters.
(d) Xxxxxx, Xxxxxxxxx Xxxxxxx & Xxxxxxx LLP, counsel for
the Company, shall have furnished to you their signed opinion, dated the
Closing Date or the Option Closing Date, as the case may be, in form and
substance satisfactory to your counsel, to the effect that:
(i) The Company has been duly incorporated and is
validly existing and in good standing under the laws of the State of
Michigan, and is duly registered as a bank holding company under the
BHC Act. Each of the Banks is a state banking corporation duly
incorporated, validly existing and in good standing under the laws of
Michigan. Each of the Banks is a member of the Federal Reserve
System, and to the knowledge of such counsel no proceedings for the
termination or revocation of such membership are pending or
threatened. The deposit accounts of the Banks are insured by the FDIC
up to the maximum amount provided by law, except to the extent the
Prospectus discloses such deposit accounts are insured by SAIF and to
such extent the deposit accounts are so insured up to the maximum
amount provided by law; and to the knowledge of such counsel no
proceedings for the termination or revocation of any such insurance or
such membership are pending or threatened. Each of the Company and
the Banks has full corporate power and authority to own or lease its
properties and to conduct its business as such business is described
in the Prospectus and is currently conducted in all material respects.
All outstanding shares of capital stock of the Banks have been duly
authorized and validly issued and are fully paid and nonassessable
except to the extent such shares may be deemed assessable under 12
U.S.C. Section 55 or 12 U.S.C. Section 1831o and, to the best of such
counsel's knowledge, except as disclosed in the Prospectus, there are
no outstanding rights, options or warrants to purchase any such shares
or securities convertible into or exchangeable for any such shares.
(ii) The capital stock of the Company conforms to
the description thereof contained in the Prospectus in all material
respects. The capital stock of the Company authorized to be issued as
of September 30, 1996 is as set forth under the caption
"Capitalization" in the Prospectus, has
25
26
been duly authorized and validly issued, is fully paid and
nonassessable. The form of certificates to evidence the Shares has
been approved by the Board of Directors and is in due and proper form
and complies with all applicable requirements. To the best of such
counsel's knowledge there are no outstanding rights, options or
warrants to purchase, no other outstanding securities convertible into
or exchangeable for, and no commitments, plans or arrangements to
issue, any shares of capital stock of the Company, except as described
in the Prospectus.
(iii) All corporate action required to be taken by
the Company for the authorization, issuance, sale and delivery of the
Shares in accordance with such terms and conditions has been validly
and sufficiently taken. All of the Shares have been duly and validly
authorized and, when delivered in accordance with this Agreement will
be duly and validly issued, fully paid and nonassessable, and will
conform to the description thereof in the Registration Statement, the
Prospectus and the Certificate of Designations. The Shares have been
approved for quotation on the Nasdaq National Market subject to
official notice of issuance. There are no preemptive or other rights
to subscribe for or to purchase, and other than as disclosed in the
Prospectus no restrictions upon the voting or transfer of, any shares
of capital stock of the Company or the Banks pursuant to the corporate
charter (including without limitation, the Certificate of
Designations), by-laws or other governing documents of the Company or
the Banks, or, to the best of such counsel's knowledge any agreement
or other instrument to which the Company or the Banks is a party or by
which the Company or the Banks may be bound.
(iv) The Company has all requisite corporate power
to enter into and perform its obligations under this Agreement and the
Certificate of Designations, and this Agreement and the Certificate of
Designations have been duly and validly authorized, executed and
delivered by the Company and constitutes the legal, valid and binding
obligation of the Company enforceable in accordance with their terms,
except as the enforcement hereof or thereof may be limited by general
principles of equity and by bankruptcy or other laws relating to or
affecting creditors' rights generally, and except as the
indemnification and contribution provisions hereof may be limited
under applicable laws and certain remedies may not be available in the
case of a non-material breach.
(v) Each of the Indenture, the Trust Agreement and
the Guarantee has been duly qualified under the Trust Indenture Act,
has been duly authorized, executed and delivered by the Company, and
is a valid and legally binding obligation of the Company enforceable
in accordance with its
26
27
terms, subject to the effect of bankruptcy, insolvency,
reorganization, receivership, moratorium and other laws affecting the
rights and remedies of creditors generally and of general principles
of equity;
(vi) The Debentures have been duly authorized,
executed and delivered by the Company, are entitled to the benefits of
the Indenture and are legal, valid and binding obligations of the
Company enforceable against the Company in accordance with their
terms, subject to the effect of bankruptcy, insolvency,
reorganization, receivership, moratorium and other laws affecting the
rights and remedies of creditors generally and of general principles
of equity;
(vii) The Expense Agreement has been duly
authorized, executed and delivered by the Company, and is a valid and
legally binding obligation of the Company enforceable in accordance
with its terms, subject to the effect of bankruptcy, insolvency,
reorganization, receivership, moratorium and other laws affecting the
rights and remedies of creditors generally and of general principles
of equity;
(viii) To the best knowledge of such counsel's
knowledge neither the Company nor any of the Banks is in breach or
violation of, or default under, with or without notice or lapse of
time or both, its corporate charter (including without limitation, the
Certificate of Designations) or by-laws. The execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated by this Agreement, and the Certificate of Designations do
not and will not conflict with, result in the creation or imposition
of any material lien, claim, charge, encumbrance or restriction upon
any property or assets of the Company or the Banks or the Shares
pursuant to, or constitute a material breach or violation of, or
constitute a material default under, with or without notice or lapse
of time or both, any of the terms, provisions or conditions of the
charter (including without limitation, the Certificate of
Designations) or by-laws of the Company or the Banks, or to the best
of such counsel's knowledge, any material contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease,
franchise, license or any other agreement or instrument to which the
Company the Banks is a party or by which either of them or any of
their respective properties may be bound or any order, decree,
judgment, franchise, license, Permit, rule or regulation of any court,
arbitrator, government, or governmental agency or instrumentality,
domestic or foreign, known to such counsel having jurisdiction over
the Company or the Banks or any of their respective properties which,
in each case, is material to the Company and its subsidiaries on a
consolidated basis. No authorization, approval, consent or order of,
or filing, registration or
27
28
qualification with, any person (including, without limitation, any
court, governmental body or authority) is required under Michigan law
in connection with the transactions contemplated by this Agreement
except as may be required under Oklahoma securities laws in connection
with the purchase and distribution of the Shares by the Underwriters.
(ix) To the best of such counsel's knowledge
holders of securities of the Company either do not have any right
that, if exercised, would require the Company to cause such securities
to be included in the Registration Statement or have waived such
right. To the best of such counsel's knowledge neither the Company
nor any of the Banks is a party to any agreement or other instrument
which grants rights for or relating to the registration of any
securities of the Company.
(x) Except as set forth in the Registration
Statement and the Prospectus, to the best of such counsel's knowledge
no action, suit or proceeding at law or in equity is pending or
threatened in writing to which the Company or the Banks is or may be a
party, and no action, suit or proceeding is pending or threatened in
writing against or affecting the Company or the Banks or any of their
properties before or by any court or governmental official,
commission, board or other administrative agency, authority or body,
or any arbitrator, wherein an unfavorable decision, ruling or finding
could have a material adverse effect on the consummation of this
Agreement or the issuance and sale of the Shares as contemplated
herein or the condition (financial or otherwise), earnings, affairs,
business, or results of operations of the Company and the Banks on a
consolidated basis or which is required to be disclosed in the
Registration Statement or the Prospectus and is not so disclosed.
(xi) No authorization, approval, consent or order
of or filing, registration or qualification with, any person
(including, without limitation, any court, governmental body or
authority) is required in connection with the transactions
contemplated by this Agreement, the Certificate of Designations, the
Registration Statement and the Prospectus, except such as have been
obtained under the 1933 Act, and such as may be required under state
securities laws or Interpretations or Rules of the NASD in connection
with the purchase and distribution of the Shares by the Underwriter.
(xii) The Registration Statement and the Prospectus
and any amendments or supplements thereto (other than the financial
statements or other financial data included therein or omitted
therefrom and Underwriter's Information, as to which such counsel need
express no opinion) comply as
28
29
to form in all material respects with the requirements of the 1933 Act
and the 1933 Act Regulations as of their respective dates of
effectiveness.
(xiii) To the best of such counsel's knowledge,
there are no contracts, agreements, leases or other documents of a
character required to be disclosed in the Registration Statement or
Prospectus or to be filed as exhibits to the Registration Statement
that are not so disclosed or filed.
(xiv) The statements under the captions
"Description of Capital Stock", "Supervision and Regulation",
"Description of the Preferred Securities", "Description of the
Subordinated Debentures" and Description of the Guarantee" in the
Prospectus, insofar as such statements constitute a summary of legal
and regulatory matters, documents or proceedings referred to therein
are accurate in all material respects and fairly present the
information called for with respect to such legal matters, documents
and proceedings.
(xv) Such counsel has been advised by the staff of
the Commission that the Registration Statement has become effective
under the 1933 Act; any required filing of the Prospectus pursuant to
Rule 424(b) has been made within the time period required by Rule
424(b); to the best of such counsel's knowledge no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceedings for a stop order are pending or threatened
by the Commission.
(xvi) Except as set forth in the Prospectus, to the
best of such counsel's knowledge there are no contractual encumbrances
or restrictions, or material legal restrictions on the ability of the
Banks (A) to pay dividends or make any other distributions on its
capital stock or to pay indebtedness owed to the Company, (B) to make
any loans or advances to, or investments in, the Company or (C) to
transfer any of its property or assets to the Company.
29
30
(xvii) To the best of such counsel's knowledge (A)
the business and operations of the Company and the Banks comply in all
material respects with all statutes, ordinances, laws, rules and
regulations applicable thereto and which are material to the Company
and the Banks on a consolidated basis, except in those instances where
non-compliance would not materially impair the ability of the Company
and the Banks to conduct their business; and (B) the Company and the
Banks possess and are operating in all material respects in compliance
with the terms, provisions and conditions of all permits, consents,
licenses, franchises and governmental and regulatory authorizations
("Permits") and required to conduct their businesses as described in
the Prospectus and which are material to the Company and the Banks on
a consolidated basis, except in those instances where the loss thereof
or non-compliance therewith would not have a material adverse effect
on the condition (financial or otherwise), earnings, affairs,
business, prospects or results of operations of the Company and the
Banks on a consolidated basis; to the best of such counsel's knowledge
all such Permits are valid and in full force and effect, and to the
best of such counsel's knowledge no action, suit or proceeding is
pending or threatened which may lead to the revocation, termination,
suspension or non-renewal of any such Permit, except in those
instances where the loss thereof or non-compliance therewith would not
materially impair the ability of the Company or the Banks to conduct
their businesses.
In giving the above opinion, such counsel may state that,
insofar as such opinion involves factual matters, they have relied upon
certificates of officers of the Company including, without limitation,
certificates as to the identity of any and all material contracts, indentures,
mortgages, deeds of trust, loans or credit agreements, notes, leases,
franchises, licenses or other agreements or instruments, and all material
permits, easements, consents, licenses, franchises and government regulatory
authorizations, for purposes of paragraphs (vii), (xii) and (xvi) hereof and
certificates of public officials.
Such counsel shall also confirm that, in connection with the
preparation of the Registration Statement and Prospectus, such counsel has
participated in conferences with officers and representatives of the Company
and with its independent public accountants and with you and your counsel, at
which conferences such counsel made inquiries of such officers, representatives
and accountants and discussed in detail the contents of the Registration
Statement and Prospectus and such counsel has no reason to believe (A) that the
Registration Statement or any amendment thereto (except for the financial
statements included therein or omitted therefrom Underwriter's Information, as
to which such counsel need express no opinion), at the time the Registration
Statement or any such amendment became effective, contained any untrue
statement of a material fact or
30
31
omitted to state any material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances in which they
were made, not misleading or (B) that the Prospectus or any amendment or
supplement thereto (except for the financial statements included therein or
omitted therefrom Underwriter's Information, as to which such counsel need
express no opinion), at the time the Registration Statement became effective
(or, if the term "Prospectus" refers to the prospectus first filed pursuant to
Rule 424(b) of the 1933 Act Regulations, at the time the Prospectus was
issued), at the time any such amended or supplemented Prospectus was issued, at
the Closing Date and, if applicable, the Option Closing Date, contained or
contains any untrue statement of a material fact or omitted or omits to state
any material fact required to be stated therein or necessary to make the
statements therein, not misleading or (C) that there is any amendment to the
Registration Statement required to be filed that has not already been filed.
(f) On the Date of Delivery, you shall have received the
opinion of Xxxxxxxx, Xxxxxx and Finger, special Delaware counsel to the
Offerors, dated as of such date, to the effect that:
(i) The Trust has been duly created and is validly
existing in good standing as a business trust under the
Delaware Business Trust Act and, under the Trust Agreement and
the Delaware Business Trust Act, has the trust power and
authority to conduct its business as described in the
Prospectus.
(ii) The Trust Agreement is a legal, valid and binding
agreement of the Company and the Trustees, and is enforceable
against the Company and the Trustees, in accordance with its
terms.
(iii) Under the Trust Agreement and the Delaware Business
Trust Act, the execution and delivery of the Underwriting
Agreement by the Trust, and the performance by the Trust of
its obligations thereunder, have been authorized by all
requisite trust action on the part of the Trust.
(iv) The Shares have been duly authorized by the Trust
Agreement, and when issued and sold in accordance with the
Trust Agreement, the Shares will be, subject to the
qualifications set forth in paragraph (v) below, fully paid
and nonassessable beneficial interest in the assets of the
Trust and entitled to the benefits of the Trust Agreement.
(v) The Preferred Security holders, as beneficial owners
of the Trust, will be entitled to the same limitation of
personal liability
31
32
extended to stockholders of private for profit corporations
organized under the General Corporation Law of the State of
Delaware. Such opinion may not that the Preferred Security
Holders may be obligated to make payments as set forth in the
Trust Agreement.
(vi) Under the Delaware Business Trust Act and the Trust
Agreement, the issuance of the Shares is not subject to
preemptive rights.
(vii) The issuance and sale by the Trust of the Shares, the
execution, delivery and performance by the Trust of this
Agreement, and the consummation of the transactions
contemplated by this Agreement, do not violate (a) the Trust
Agreement, or (b) any applicable Delaware law, rule or
regulation.
Such opinion may state that it is limited to the laws of the State of
Delaware and that the opinion expressed in paragraph (ii) above is subject to
the effect upon the Trust Agreement of (i) bankruptcy, insolvency, moratorium,
receivership, reorganization, liquidation, fraudulent conveyance and other
similar laws relating to or affecting the rights and remedies of creditors
generally, (ii) principles of equity, including applicable law relating to
fiduciary duties (regardless of whether considered and applied in a proceeding
in equity or at law), and (iii) the effect of applicable public policy on the
enforceability of provisions relating to indemnification or contribution.
(g) Xxxxx Xxxx LLP, counsel for the Underwriter, shall
have furnished you their signed opinion, dated the Closing Date or the Option
Closing Date, as the case may be, with respect to the incorporation of the
Company, the validity of the Shares, the Registration Statement, the Prospectus
and such other related matters as you may reasonably request and there shall
have been furnished to such counsel such documents and other information as
they may request to enable them to pass on such matters. In giving such
opinion, Xxxxx Xxxx LLP may rely as to matters of fact upon statements and
certifications of officers of the Company and of other appropriate persons and
may rely as to matters of law, other than law of the United States and the
State of Missouri, and upon the opinion of Xxxxxx, Xxxxxxxxx Xxxxxxx & Xxxxxxx
LLP described herein.
(h) On the date of this Agreement and on the Closing Date
(and, if applicable, any Option Closing Date), the Underwriter shall have
received from KPMG Peat Marwick LLP a letter, dated the date of this Agreement
and the Closing Date (and, if applicable, the Option Closing Date),
respectively, in form and substance satisfactory to the Underwriter, confirming
that they are independent
32
33
public accountants with respect to the Company and the Banks, within the
meaning of the 1933 Act and the 1933 Act Regulations, and stating in effect
that:
(i) In their opinion, the consolidated financial
statements of the Company and the Banks audited by them and included
in the Registration Statement comply as to form in all material
respects with the applicable accounting requirements of the 1933 Act
and the 1933 Act Regulations.
(ii) On the basis of the procedures specified by
the American Institute of Certified Public Accountants as described in
SAS No. 71, "Interim Financial Information", inquiries of officials of
the Company and the Banks responsible for financial and accounting
matters, and such other inquiries and procedures as may be specified
in such letter, which procedures do not constitute an audit in
accordance with U.S. generally accepted auditing standards, nothing
came to their attention that caused them to believe that, if
applicable, the unaudited interim consolidated financial statements of
the Company and the Banks included in the Registration Statement do
not comply as to form in all material respects with the applicable
accounting requirements of the 1933 Act and 1933 Act Regulations or
are not in conformity with U.S. generally accepted accounting
principles applied on a basis substantially consistent with the basis
for the audited consolidated financial statements of the Company and
the Banks included in the Registration Statement.
(iii) On the basis of limited procedures, not
constituting an audit in accordance with U.S. generally accepted
auditing standards, consisting of a reading of the unaudited interim
financial statements and other information referred to below, a
reading of the latest available unaudited condensed consolidated
financial statements of the Company and the Banks, inspection of the
minute books of the Company and the Banks since the date of the latest
audited financial statements of the Company and the Banks included in
the Registration Statement, inquiries of officials of the Company and
the Banks responsible for financial and accounting matters and such
other inquiries and procedures as may be specified in such letter,
nothing came to their attention that caused them to believe that:
(A) as of a specified date not more than five
days prior to the date of such letter, there have been any
changes in the consolidated capital stock, allowance for loan
losses, or net loans receivable of the Company and the Banks,
any increase in the consolidated long-term debt, short-term
borrowings, obligations under capital leases or real estate
owned by the Company and the Banks, any decreases in
consolidated total assets or shareholders equity of the
Company and
33
34
the Banks, or any changes, decreases or increases in other
items specified by the Underwriter, in each case as compared
with amounts shown in the latest unaudited interim
consolidated statement of financial condition of the Company
and the Banks included in the Registration Statement except
in each case for changes, increases or decreases which the
Registration Statement specifically discloses, have occurred
or may occur or which are described in such letter; and
(B) for the period from the date of the latest
unaudited interim consolidated financial statements included
in the Registration Statement to the specified date referred
to in Clause (iii)(A), there were any decreases in the
consolidated interest income, net interest income, other
operating income or net income of the Company and the Banks or
in the per share amount of net income of the Company and the
Banks any increase in consolidated other operating expense of
the Company and the Banks, or any changes, decreases or
increases in any other items specified by the Underwriter, in
each case as compared with the comparable period of the
preceding year and with any other period of corresponding
length specified by the Underwriter, except in each case for
increases or decreases which the Registration Statement
discloses have occurred or may occur, or which are described
in such letter.
(iv) In addition to the audit referred to in their
report included in the Registration Statement and the limited
procedures, inspection of minute books, inquiries and other procedures
referred to in paragraphs (ii) and (iii) above, they have carried out
certain specified procedures, not constituting an audit in accordance
with U.S. generally accepted auditing standards, with respect to
certain amounts, percentages and financial information specified by
the Underwriter which are derived from the general accounting records
and consolidated financial statements of the Company and the Banks
which appear in the Registration Statement specified by the
Underwriter in the Registration Statement, and have compared such
amounts, percentages and financial information with the accounting
records and the material derived from such records and consolidated
financial statements of the Company and the Banks have found them to
be in agreement.
In the event that the letters to be delivered referred to
above set forth any such changes, decreases or increases as specified in
Clauses (iii)(A) or (iii)(B) above, or any exceptions from such agreement
specified in Clause (iv) above, it shall be a further condition to the
obligations of the Underwriter that the Underwriter shall have determined,
after discussions with officers of the Company
34
35
responsible for financial and accounting matters, that such changes, decreases,
increases or exceptions as are set forth in such letters do not (x) reflect a
material adverse change in the items specified in Clause (iii)(A) above as
compared with the amounts shown in the latest unaudited consolidated statement
of financial condition of the Company and the Banks included in the
Registration Statement, (y) reflect a material adverse change in the items
specified in Clause (iii)(B) above as compared with the corresponding periods
of the prior year or other period specified by the Underwriter, or (z) reflect
a material change in items specified in Clause (iv) above from the amounts
shown in the Preliminary Prospectus distributed by the Underwriter in
connection with the offering contemplated hereby or from the amounts shown in
the Prospectus.
(i) At the Closing Date and, if applicable, the Option
Closing Date, you shall have received certificates of the chief executive
officer and the chief financial and accounting officer of the Company, which
certificates shall be deemed to be made on behalf of the Company dated as of
the Closing Date and, if applicable, the Option Closing Date, evidencing
satisfaction of the conditions of Section 6(a) and stating that (i) the
representations and warranties of the Company set forth in Section 2(a) hereof
are accurate as of the Closing Date and, if applicable, the Option Closing
Date, and that the Offerors have complied with all agreements and satisfied all
conditions on their part to be performed or satisfied at or prior to such
Closing Date; (ii) since the respective dates as of which information is given
in the Registration Statement and the Prospectus, there has not been any
material adverse change in the condition (financial or otherwise), earnings,
affairs, business, prospects or results of operations of the Offerors and the
Banks on a consolidated basis; (iii) since such dates there has not been any
material transaction entered into by the Offerors or the Banks other than
transactions in the ordinary course of business; and (iv) they have carefully
examined the Registration Statement and the Prospectus as amended or
supplemented and nothing has come to their attention that would lead them to
believe that either the Registration Statement or the Prospectus, or any
amendment or supplement thereto as of their respective effective or issue
dates, contained, and the Prospectus as amended or supplemented at such Closing
Date (and, if applicable, the Option Closing Date), contains any untrue
statement of a material fact, or omits to state a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; and (v)
covering such other matters as you may reasonably request. The officer's
certificate of the Company shall further state that no stop order affecting the
Registration Statement is in effect or, to their knowledge, threatened.
(j) You shall have received a certificate, dated the
Closing Date, of an authorized representative of the Trust to the effect that
to the best of his or her knowledge based upon a reasonable investigation, the
representations and
35
36
warranties of the Trust in this Agreement are true and correct as though made
on and as of the Closing Date; the Trust has complied with all the agreements
and satisfied all the conditions required by this Agreement to be performed or
satisfied by the Trust on or prior to the Closing Date and since the most
recent date as of which information is given in the Prospectus, except as
contemplated by the Prospectus, the Trust has not incurred any material
liabilities or obligations, direct or contingent, or entered into any material
transactions not in the ordinary course of business and there has not been any
material adverse change in the condition (financial or otherwise) of the Trust.
(k) On the Closing Date, you shall have received duly
executed counterparts of the Trust Agreement, the Guarantee, the Indenture and
the Expense Agreement.
(l) The NASD, upon review of the terms of the public
offering of the Shares, shall not have objected to the Underwriter's
participation in such offering. The Federal Reserve, upon review of the terms
of the public offering of the shares, shall not have objected to the
Underwriter's participation in such offering.
(m) Prior to the Closing Date and, if applicable, the
Option Closing Date, the Company shall have furnished to you and your counsel
all such other documents, certificates and opinions as they have reasonably
requested.
All opinions, certificates, letters and other documents shall
be in compliance with the provisions hereof only if they are reasonably
satisfactory in form and substance to you. The Offerors shall furnish you with
conformed copies of such opinions, certificates, letters and other documents as
you shall reasonably request.
If any of the conditions referred to in this Section 6 shall
not have been fulfilled when and as required by this Agreement, this Agreement
and all of your obligations hereunder may be terminated by you on notice to the
Company at, or at any time before, the Closing Date or the Option Closing Date,
as applicable. Any such termination shall be without liability of the
Underwriter to the Company.
36
37
7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Offerors agree to jointly and severally indemnify
and hold harmless the Underwriter, each of its directors, officers and agents,
and each person, if any, who controls the Underwriter within the meaning of the
1933 Act, against any and all losses, claims, damages, liabilities and expenses
(including reasonable costs of investigation and reasonable attorney fees and
expenses), joint or several, arising out of or based (i) upon any untrue
statement or alleged untrue statement of a material fact made by the Company or
the Trust contained in Section 2(a) of this Agreement (or any certificate
delivered by the Company or the Trust pursuant hereto Section 6(l) hereto) or
the registration statement as originally filed or the Registration Statement,
any Preliminary Prospectus or the Prospectus, or in any amendment or supplement
thereto, (ii) upon any blue sky application or other document executed by the
Company or the Trust specifically for that purpose or based upon written
information furnished by the Company or the Trust filed in any state or other
jurisdiction in order to qualify any of the Shares under the securities laws
thereof (any such application, document or information being hereinafter
referred to as a "Blue Sky Application"), (iii) any omission or alleged
omission to state a material fact in the registration statement as originally
filed or the Registration Statement, any Preliminary Prospectus or the
Prospectus, or in any amendment or supplement thereto, or in any Blue Sky
Application) required to be stated therein or necessary to make the statements
therein not misleading, and against any and all losses, claims, damages,
liabilities and expenses (including reasonable costs of investigation and
attorney fees), joint or several, arising out of or based upon any untrue
statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus or the Prospectus, or in any amendment of supplement
thereto, or arising out of or based upon any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading or (iv) the enforcement of this indemnification
provision or the contribution provisions of Section 7(e); and shall reimburse
each such indemnified party for any reasonable legal or other expenses as
incurred, but in no event less frequently than 30 days after each invoice is
submitted, incurred by them in connection with investigating or defending
against or appearing as a third-party witness in connection with any such loss,
claim, damage, liability or action, notwithstanding the possibility that
payments for such expenses might later be held to be improper, in which case
such payments shall be promptly refunded; provided, however, that the Offerors
shall not be liable in any such case to the extent, but only to the extent,
that any such losses, claims, damages, liabilities and expenses arise out of or
are based upon any untrue statement or omission or allegation thereof that has
been made therein or omitted therefrom in reliance upon and in conformity with
information furnished in writing to the Offerors through you by expressly for
use therein beneath the heading "Underwriting;" provided, that the
37
38
indemnification contained in this paragraph with respect to any Preliminary
Prospectus shall not inure to the benefit of the Underwriter (or of any person
controlling the Underwriter) to the extent any such losses, claims, damages,
liabilities or expenses directly results from the fact that such Underwriter
sold Shares to a person to whom there was not sent or given, at or prior to the
written confirmation of such sale, a copy of the Prospectus (as amended or
supplemented if any amendments or supplements thereto shall have been furnished
to the Underwriter in sufficient time to distribute same with or prior to the
written confirmation of the sale involved), if required by law, and if such
loss, claim, damage, liability or expense would not have arisen but for the
failure to give or send such person such document. The foregoing indemnity
agreement is in addition to any liability the Company or the Trust may
otherwise have to any such indemnified party.
(b) The Underwriter, agrees to indemnify and hold
harmless each Offeror, each of its directors, each of its officers who signed
the Registration Statement and each person, if any, who controls an Offeror
within the meaning of the 1933 Act, to the same extent as required by the
foregoing indemnity from the Company to the Underwriter, but only with respect
to information relating to such Underwriter furnished in writing to an Offeror
through you by or on behalf of it expressly for use in connection with the
registration statement as originally filed, the Registration Statement, any
Preliminary Prospectus, the Prospectus or any amendment or supplement thereto,
beneath the heading "Underwriting" or in a Blue Sky Application. The foregoing
indemnity agreement is in addition to any liability which the Underwriter may
otherwise have to any such indemnified party.
38
39
(c) If any action or claim shall be brought or asserted
against any indemnified party or any person controlling an indemnified party in
respect of which indemnity may be sought from the indemnifying party, such
indemnified party or controlling person shall promptly notify the indemnifying
party in writing, and the indemnifying party shall assume the defense thereof,
including the employment of counsel reasonably satisfactory to the indemnified
party and the payment of all expenses; provided, however, that the failure so
to notify the indemnifying party shall not relieve it from any liability which
it may have to an indemnified party otherwise than under such paragraph, and
further, shall only relieve it from liability under such paragraph to the
extent prejudiced thereby. Any indemnified party or any such controlling
person shall have the right to employ separate counsel in any such action and
to participate in the defense thereof, but the fees and expenses of such
counsel shall be at the expense of such indemnified party or such controlling
person unless (i) the employment thereof has been specifically authorized by
the indemnifying party in writing, (ii) the indemnifying party has failed to
assume the defense or to employ counsel reasonably satisfactory to the
indemnified party or (iii) the named parties to any such action (including any
impleaded parties) include both such indemnified party or such controlling
person and the indemnifying party and such indemnified party or such
controlling person shall have been advised by such counsel that there may be
one or more legal defenses available to it that are different from or in
addition to those available to the indemnifying party (in which case, if such
indemnified party or controlling person notifies the indemnifying party in
writing that it elects to employ separate counsel at the expense of the
indemnifying party, the indemnifying party shall not have the right to assume
the defense of such action on behalf of such indemnified party or such
controlling person) it being understood, however, that the indemnifying party
shall not, in connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys at any time and for all
such indemnified party and controlling persons, which firm shall be designated
in writing by the indemnified party. Each indemnified party and each
controlling person, as a condition of such indemnity, shall use reasonable
efforts to cooperate with the indemnifying party in the defense of any such
action or claim. The indemnifying party shall not be liable for any settlement
of any such action effected without its written consent, but if there be a
final judgment for the plaintiff in any such action, the indemnifying party
agrees to indemnify and hold harmless any indemnified party and any such
controlling person from and against any loss, claim, damage, liability or
expense by reason of such settlement or judgment.
39
40
An indemnifying party shall not, without the prior written
consent of each indemnified party, settle, compromise or consent to the entry
of any judgment in any pending or threatened claim, action, suit or proceeding
in respect of which indemnity may be sought hereunder (whether or not such
indemnified party or any person who controls such indemnified party within the
meaning of the 1933 Act is a party to such claim, action, suit or proceeding),
unless such settlement, compromise or consent includes a release of each such
indemnified party reasonably satisfactory to each such indemnified party and
each such controlling person from all liability arising out of such claim,
action, suit or proceeding or unless the indemnifying party shall confirm in a
written agreement with each indemnified party, that notwithstanding any
federal, state or common law, such settlement, compromise or consent shall not
alter the right of any indemnified party or controlling person to
indemnification or contribution as provided in this Agreement.
40
41
(d) If the indemnification provided for in this Section 7
is unavailable or insufficient to hold harmless an indemnified party under
paragraphs (a), (b) or (c) hereof in respect of any losses, claims, damages,
liabilities or expenses referred to therein, then each indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages, liabilities or expenses (i) in such proportion as is appropriate to
reflect the relative benefits received by the Offerors on the one hand and the
Underwriter on the other from the offering of the Shares or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Offerors on
the one hand and the Underwriter on the other in connection with the statements
or omissions that resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The relative
benefits received by the Offerors on the one hand and the Underwriter on the
other shall be deemed to be in the same proportion as the total net proceeds
from the offering of the Shares (before deducting expenses) received by the
Offerors bear to the total underwriting discounts and commissions received by
the Underwriter, in each case as set forth in the table on the cover page of
the Prospectus. The relative fault of the Offerors on the one hand and of the
Underwriter on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to
information supplied by the Offerors or by the Underwriter and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. Each Offeror and the Underwriter
agrees that it would not be just and equitable if contribution pursuant to this
paragraph (d) were determined by pro rata allocation or by any other method of
allocation that does not take into account the equitable considerations
referred to herein. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, liabilities and expenses referred to in
the first sentence of this paragraph (d) shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of this
paragraph (d), the Underwriter shall not be required to contribute any amount
in excess of the amount by which the total price at which the Shares
underwritten by such Underwriter and distributed to the public were offered to
the public exceeds the amount of any damages that such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 0000 Xxx) shall
be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
41
42
For purposes of this paragraph (d), each person who controls
the Underwriter within the meaning of the 1933 Act shall have the same rights
to contribution as such Underwriter, and each person who controls an Offeror
within the meaning of the 1933 Act, each officer of an Offeror who shall have
signed the Registration Statement and each director of an Offeror shall have
the same rights to contribution as the Offerors subject in each case to the
preceding sentence. The obligations of the Offerors under this paragraph (d)
shall be in addition to any liability which the Offerors may otherwise have and
the obligations of the Underwriter under this paragraph (d) shall be in
addition to any liability that the Underwriter may otherwise have.
(e) The indemnity and contribution agreements contained
in this Section 7 and the representations and warranties of the Offerors set
forth in this Agreement shall remain operative and in full force and effect,
regardless of (i) any investigation made by or on behalf of the Underwriter or
any person controlling the Underwriter or by or on behalf of the Company, or
such directors or officers (or any person controlling and Offeror, (ii)
acceptance of any Shares and payment therefor hereunder and (iii) any
termination of this Agreement. A successor of the Underwriter or of and
Offeror, such directors or officers (or of any person controlling the
Underwriter or an Offeror) shall be entitled to the benefits of the indemnity,
contribution and reimbursement agreements contained in this Section 7.
(f) The Company agrees to indemnify the Trust against any
and all losses, claims, damages or liabilities that may become due from the
Trust under this Section 7.
8. TERMINATION. You shall have the right to terminate
this Agreement at any time at or prior to the Closing Date or, with respect to
your obligation to purchase the Option Shares, at any time at or prior to the
Option Closing Date, without liability on the part of the Underwriter to the
Offerors, if:
(a) Either Offeror shall have failed, refused, or been unable
to perform any agreement on its part to be performed under this Agreement, or
any of the conditions referred to in Section 6 shall not have been fulfilled,
when and as required by this Agreement;
(b) The Offerors or the Banks shall have sustained any
material loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree which in the judgment of the
Underwriter materially impairs the investment quality of the Shares;
42
43
(c) There has been since the respective dates as of which
information is given in the Registration Statement or the Prospectus, any
materially adverse change in, or any development which is reasonably likely to
have a material adverse effect on, the condition (financial or otherwise),
earnings, affairs, business, prospects or results of operations of the Company
and the Banks on a consolidated basis, whether or not arising in the ordinary
course of business;
(d) There has occurred any outbreak of hostilities or
other calamity or crisis or material change in general economic, political or
financial conditions, or internal conditions, the effect of which on the
financial markets of the United States is such as to make it, in your
reasonable judgment, impracticable to market the Shares or enforce contracts
for the sale of the Shares;
(e) Trading generally on the New York Stock Exchange, the
American Stock Exchange or the Nasdaq National Market shall have been
suspended, or minimum or maximum prices for trading shall have been fixed, or
maximum ranges for prices for securities shall have been required, by any of
said exchanges or market system or by the Commission or any other governmental
authority;
(f) A banking moratorium shall have been declared by
either federal or Michigan authorities; or
(g) Any action shall have been taken by any government in
respect of its monetary affairs which, in your reasonable judgment, has a
material adverse effect on the United States securities markets.
If this Agreement shall be terminated pursuant to this Section
8, the Offerors shall not then be under any liability to the Underwriter except
as provided in Sections 5 and 7 hereof.
10. EFFECTIVE DATE OF AGREEMENT. If the Registration
Statement is not effective at the time of execution of this Agreement, this
Agreement shall become effective on the Effective Date at the time the
Commission declares the Registration Statement effective. The Company shall
immediately notify the Underwriter when the Registration Statement becomes
effective.
If the Registration Statement is effective at the time of
execution of this Agreement, this Agreement shall become effective at the
earlier of 11:00 a.m. St. Louis time, on the first full business day following
the day on which this Agreement is executed, or at such earlier time as the
Underwriter shall release the Shares for initial public offering. The
Underwriter shall notify the Company
43
44
immediately after it has taken any action which causes this Agreement to become
effective.
Until such time as this Agreement shall have become effective,
it may be terminated by the Offerors, by notifying you, or by you by notifying
either Offerors, except that the provisions of Sections 5 and 7 shall at all
times be effective.
11. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY. The representations, warranties, indemnities, agreements and other
statements of the Offerors and their officers set forth in or made pursuant to
this Agreement and the agreements of the Underwriter contained in Section 7
hereof shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of the Officers or controlling persons of
either Offeror, or by or on behalf of the Underwriter or controlling persons of
the Underwriter or any termination or cancellation of this Agreement and shall
survive delivery of and payment for the Shares.
12. NOTICES. Except as otherwise provided in this
Agreement, all notices and other communications hereunder shall be in writing
and shall be deemed to have been duly given if delivered by hand, mailed by
registered or certified mail, return receipt requested, or transmitted by any
standard form of telecommunication and confirmed. Notices to either Offeror
shall be sent to 000 Xxxx Xxxx Xxxxxx, X.X. Xxx 000, Xxxxx, Xxxxxxxx 00000,
Attention: Xxxxxxx X. Xxxxx (with a copy to Varnum, Riddering, Xxxxxxx &
Xxxxxxx LLP, 000 Xxxxxx Xxxxxx, X.X., X.X. Xxx 000, Xxxxx Xxxxxx, Xxxxxxxx
00000-0000, Attention: Xxxxxxx X. Xxxxxxxxxx, Esq.); and notices to the
Underwriter shall be sent to Xxxxxx, Xxxxxxxx & Company, Incorporated, 000
Xxxxx Xxxxxxxx, Xxxxx 0000, Xx. Xxxxx, Xxxxxxxx 00000, Attention: Xxxx X.
Xxxxxx (with a copy to Xxxxx Xxxx LLP, 000 Xxxxx Xxxxxxxx, Xxxxx 0000, Xx.
Xxxxx, Xxxxxxxx 00000, Attention: Xxxxx X. Xxxxx, Xx., Esq.).
13. PARTIES. The Agreement herein set forth is made
solely for the benefit of the Underwriter and the Offerors and, to the extent
expressed, directors and officers of the Offerors, any person controlling the
Offerors or the Underwriter, and their respective successors and assigns. No
other person shall acquire or have any right under or by virtue of this
Agreement. The term "successors and assigns" shall not include any purchaser,
in his status as such purchaser, from the Underwriter of the Shares.
14. GOVERNING LAW. This Agreement shall be governed by
the laws of the State of Missouri, without giving effect to the choice of law
or conflicts of law principles thereof.
44
45
15. COUNTERPARTS. This Agreement may be executed in one
or more counterparts, and when a counterpart has been executed by each party
hereto all such counterparts taken together shall constitute one and the same
Agreement.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us a counterpart hereof, whereupon
this shall become a binding agreement between the Company, the Trust and you in
accordance with its terms.
Very truly yours,
INDEPENDENT BANK CORPORATION
By: ___________________________
Name:
Title:
IBC CAPITAL FINANCE
By: __________________________
Name:
Title:
CONFIRMED AND ACCEPTED,
as of November __, 1996.
XXXXXX, XXXXXXXX & COMPANY, INCORPORATED
By: _______________________________
Name:
Title:
45
46
Schedule 1
Securities
Designation: % Cumulative Trust Preferred Securities
Date of maturity:
Liquidation preference amount per unit: $25
Number of units:
Distribution rate per unit:
Purchase price per unit:
Public offering price per unit:
Underwriting Commission:
46
