EXHIBIT 1.1
1,760,000 Preferred Securities
IBC Capital Finance II
____% Cumulative Trust Preferred Securities
(Liquidation Amount of $25 per Preferred Security)
UNDERWRITING AGREEMENT
________, 2003
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & COMPANY, INCORPORATED
▇▇▇▇▇▇▇▇▇▇ & CO. INC.
▇▇▇▇ ▇▇▇▇▇▇ INVESTMENTS, INC.
RBC ▇▇▇▇ ▇▇▇▇▇▇▇▇ INC.
as representatives of the Several Underwriters
named in Schedule I hereto
c/o ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Independent Bank Corporation, a Michigan corporation (the "Company"),
and its financing subsidiary, IBC Capital Finance II, a Delaware business trust
(the "Trust," and hereinafter together with the Company, the "Offerors"),
propose that the Trust issue and sell to the several underwriters listed on
Schedule I hereto (the "Underwriters"), pursuant to the terms of this Agreement,
1,760,000 of the Trust's ____% Cumulative Trust Preferred Securities, with a
liquidation amount of $25 per preferred security (the "Preferred Securities"),
to be issued under the Trust Agreement (as hereinafter defined), the terms of
which are more fully described in the Prospectus (as hereinafter defined). The
aforementioned 1,760,000 Preferred Securities to be sold to the Underwriters are
herein called the "Firm Preferred Securities." Solely for the purpose of
covering over-allotments in the sale of the Firm Preferred Securities, the
Offerors further propose that the Trust issue and sell to the Underwriters, at
their option, up to an additional 264,000 Preferred Securities (the "Option
Preferred Securities") upon exercise of the over-allotment option granted in
Section 1 hereof. The Firm Preferred Securities and any Option Preferred
Securities are herein collectively referred to as the "Designated Preferred
Securities." ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated, ▇▇▇▇▇▇▇▇▇▇ & Co. Inc.,
▇▇▇▇ ▇▇▇▇▇▇ Investments, Inc. and RBC ▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc. are acting as
representatives of the Underwriters and in such capacity is sometimes herein
referred to as the "Representatives."
The Offerors hereby confirm as follows their agreement with each of the
Underwriters in connection with the proposed purchase of the Designated
Preferred Securities.
1. SALE, PURCHASE AND DELIVERY OF DESIGNATED PREFERRED SECURITIES,
DESCRIPTION OF DESIGNATED PREFERRED SECURITIES.
(a) On the basis of the representations, warranties and agreements
herein contained, and subject to the terms and conditions herein set forth, the
Offerors hereby agree that the Trust shall issue and sell to each of the
Underwriters and each of the Underwriters agrees, severally and not jointly, to
purchase from the Trust, at a purchase price of $25 per Preferred Security (the
"Purchase Price"), the
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respective number of Firm Preferred Securities set forth opposite the name of
such Underwriter in Schedule I hereto. Because the proceeds from the sale of the
Firm Preferred Securities will be used to purchase from the Company its
Debentures (as hereinafter defined and as described in the Prospectus), the
Company shall pay to each Underwriter a commission of $_____ per Firm Preferred
Security purchased (the "Firm Preferred Securities Commission"). In accordance
with Section 9 hereof, the Representatives may by notice to the Company amend
Schedule I to add, eliminate or substitute names set forth therein (other than
to eliminate the name of any of the Representatives) and to amend the number of
Firm Preferred Securities to be purchased by any firm or corporation listed
thereon, provided that the total number of Firm Preferred Securities listed on
Schedule I shall equal 1,760,000.
In addition, on the basis of the representations, warranties and
agreements herein contained and subject to the terms and conditions herein set
forth, the Trust hereby grants to the Underwriters, severally and not jointly,
an option to purchase all or any portion of the 264,000 Option Preferred
Securities, and upon the exercise of such option in accordance with this Section
1, the Offerors hereby agree that the Trust shall issue and sell to the
Underwriters, severally and not jointly, all or any portion of the Option
Preferred Securities at the same Purchase Price per share paid for the Firm
Preferred Securities. If any Option Preferred Securities are to be purchased,
each Underwriter, severally and not jointly, agrees to purchase from the Trust
that proportion (subject to adjustment as you may determine to avoid fractional
securities) of the number of Option Preferred Securities to be purchased that
the number of Firm Preferred Securities set forth opposite the name of such
Underwriter in Schedule I hereto (or such number increased as set forth in
Section 9 hereof) bears to 1,760,000. Because the proceeds from the sale of the
Option Preferred Securities will be used to purchase from the Company its
Debentures, the Company shall pay to the Underwriters a commission of $______
per Option Preferred Security for each Option Preferred Security purchased (the
"Option Preferred Securities Commission"). The option hereby granted (the
"Option") must be exercised, if at all, within 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 Preferred Securities.
The Option may be exercised in whole or in part at any time (but not more than
once) by you giving notice (confirmed in writing) to the Trust setting forth the
number of Option Preferred Securities as to which the Underwriters are
exercising the Option and the time, date and place for payment and delivery of
the Global Securities (as hereafter defined) for such Option Preferred
Securities. Such time and date of payment and delivery for the Option Preferred
Securities (the "Option Closing Date") shall be determined by you, but shall not
be earlier than two nor later than five full business days after the exercise of
such Option, nor in any event prior to the Closing Date (as hereinafter
defined). The Option Closing Date may be the same as the Closing Date.
Payment of the Purchase Price and the Firm Preferred Securities
Commission and delivery of the Global Securities (as hereinafter defined) for
the Firm Preferred Securities shall be made at the offices of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ &
Company, Incorporated, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
or such other place as shall be agreed to by you and the Offerors, at 10:00
a.m., St. Louis time, on the third (or, if permitted by Rule 15c6-1(c) of the
Securities Exchange Act of 1934, as amended (the "1934 Act"), not later than
12:00 p.m. on the fourth full business day following the date of this Agreement
(the "Closing Date"), or unless postponed in accordance with the provisions of
Section 9. The Trust shall deliver or cause to be delivered to you for the
account of the Underwriters against payment to or upon the order of the Trust of
the Purchase Price in federal or other immediately available funds, the Firm
Preferred Securities in the form of one or more permanent global securities in
definitive form (the "Global Securities") deposited with the Property Trustee
(as identified below) as custodian for the Depository Trust Company ("DTC") and
registered in the name of Cede & Co., as nominee for DTC. Interests in any
permanent Global Securities will be held only in book-entry form. If the
Underwriters exercise the option to purchase any or all of the Option Preferred
Securities, payment of the Purchase Price and Option Preferred Securities
Commission for such Option Preferred Securities shall be made on the Option
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Closing Date at ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated's offices, or at such
other place as the Offerors and you shall determine. Upon delivery, the Option
Preferred Securities shall be in the form of one or more Global Securities
registered in the name of Cede & Co., as nominee of DTC and the Global
Securities for such Option Securities shall be delivered to the Property Trustee
as custodian for DTC. Such payments shall be made to an account designated by
the Trust by wire transfer in same day funds, in the amount of the aggregate
Purchase Price therefor, against delivery by or on behalf of the Trust to you
for the respective accounts of the several Underwriters of one or more Global
Certificates for the Designated Preferred Securities to be purchased by the
Underwriters.
Time shall be of the essence, and delivery of the Global Securities for
the Designated Preferred Securities at the time and place specified pursuant to
this Agreement is a further condition of the obligations of each Underwriter
hereunder.
(b) The Offerors propose that the Trust issue the Designated
Preferred Securities pursuant to an Amended and Restated Trust Agreement among
U.S. Bank Trust National Association, as Delaware Trustee and Property Trustee,
the Administrative Trustees named therein (collectively, the "Trustees"), and
the Company, in substantially the form heretofore delivered to the Underwriters,
said Agreement being hereinafter referred to as the "Trust Agreement." In
connection with the issuance of the Designated Preferred Securities, the Company
proposes (i) to issue its ______% Junior Subordinated Debentures due 2033 (the
"Debentures") pursuant to an Indenture, to be dated as of ________, 2003,
between the Company and U.S. Bank National Association, as indenture trustee
(the "Indenture"), and (ii) to guarantee certain payments on the Designated
Preferred Securities pursuant to a Preferred Securities Guarantee Agreement to
be dated as of ____________, 2003 between the Company and U.S. Bank National
Association, as guarantee trustee (the "Guarantee"), to the extent described
therein.
(c) As used herein, the following terms shall have the following
meanings:
"Effective Date" shall mean the date and time that the Registration
Statement, any post-effective amendment or amendments thereto, and any
registration statement filed pursuant to Rule 462(b) became or becomes
effective.
"Preliminary Prospectus" shall mean the prospectus subject to
completion included in the Registration Statement or any amendment to such
prospectus and any prospectus filed pursuant to Rule 424(a).
"Prospectus" shall mean the final prospectus filed with the Securities
and Exchange Commission (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.
"Registration Statement" shall mean the registration statement referred
to in Section 2(ii) hereof, including exhibits and financial statements, as
amended at the date hereof (or, if not effective at the date hereof, in the form
in which it shall become effective) and, in the event any post-effective
amendment thereto becomes effective prior to the Closing Date, shall thereafter
mean such registration statement as so amended. Such term shall include (i) any
Rule 430A Information deemed to be included therein at the Effective Date as
provided by Rule 430A and (ii) any registration statement filed pursuant to Rule
462(b).
"Rule 424", "Rule 430A" and "Rule 462" refer to such rules under the
Securities Act of 1933, as amended (the "1933 Act").
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"Rule 430A Information" shall mean information with respect to the
Designated Preferred Securities and the offering thereof permitted to be omitted
from the Registration Statement when it becomes effective pursuant to Rule 430A.
Any reference herein to the Registration Statement, the Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein which were filed under the 1934 Act
or the 1934 Act Regulations (as hereafter defined) on or before the Effective
Date of the Registration Statement or the issue date of the Preliminary
Prospectus or the Prospectus, as the case may be; and any reference herein to
the terms "amend", "amendment" or "supplement" with respect to the Registration
Statement, the Preliminary Prospectus or the Prospectus shall be deemed to refer
to and include the filing of any document under the 1934 Act or the 1934 Act
Regulations after the Effective Date of the Registration Statement or the issue
date of the Preliminary Prospectus or the Prospectus, as the case may be, then
deemed to be incorporated therein by reference; provided, however, that any
references to the "Registration Statement", "Preliminary Prospectus" or
"Prospectus" shall not be deemed to include any statements made in any
previously filed documents that are superseded or modified by statements made in
such documents or in a later filed document incorporated therein by reference,
but only to the extent that, pursuant to the 1933 Act and the 1933 Act
Regulations, such statements are not deemed to be part of the Registration
Statement, Preliminary Prospectus or Prospectus.
2. REPRESENTATIONS AND WARRANTIES.
The Offerors jointly and severally represent and warrant to, and agree
with, each of the Underwriters that:
(i) The reports filed with the Commission by the
Company under the 1934 Act and the rules and regulations thereunder
(the "1934 Act Regulations") at the time they were filed with the
Commission complied as to form in all material respects with the
requirements of the 1934 Act and the 1934 Act Regulations and did not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances in which they
were made, not misleading. All such reports were timely filed as
required by the 1934 Act Regulations.
(ii) The Offerors meet the requirements for the use
of Form S-3 under the 1933 Act and have prepared and filed with the
Commission a registration statement on Form S-3 (File Numbers
333-__________ and 333-________-01), for registration under the 1933
Act of the offering and sale of the Designated Preferred Securities,
the Guarantee and up to $50,600,000 aggregate principal amount of
Debentures under the 1933 Act. The Offerors may have filed one or more
amendments to such registration statement, including the Preliminary
Prospectus, 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. After the execution of this Agreement, the
Offerors will file with the Commission (A) if the 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 the Registration Statement
(or, if no such amendment shall have been filed, in the Registration
Statement), with such changes or insertions as are required by Rule
430A or permitted by Rule 424(b) and as have been provided to and not
objected to by the Representatives prior to (or as are agreed to by the
Representatives subsequent to) the execution of this Agreement, or (B)
if the 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 the Registration Statement, including a form of final
prospectus, necessary to permit the Registration Statement to become
effective, a copy of
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which amendment has been furnished to and not objected to by the
Representatives prior to (or is agreed to by the Representatives
subsequent to) the execution of this Agreement. The Offerors have
included in such registration statement, as amended at the Effective
Date, all information (other than Rule 430A Information) required by
the 1933 Act and the 1933 Act Regulations to be included in such
registration statement and the Prospectus. As filed, the final
Prospectus shall contain all Rule 430A Information, together with all
other such required information, and, except to the extent the
Representatives shall agree in writing to a modification, shall be in
all substantive respects in the form furnished to you prior to the
date hereof or, to the extent not completed at the date hereof, shall
contain only such specific additional information and other changes
(beyond that contained in the Prospectus and the Preliminary
Prospectus) as the Company has advised you, prior to the date hereof,
shall be included or made therein. Copies of such registration
statement, including any amendments thereto and any documents
incorporated by reference therein and the Preliminary Prospectus
contained therein and the exhibits, financial statements and schedules
to such registration statement, as finally amended and revised, have
heretofore been delivered by the Offerors to the Representatives. Such
copies are identical to the electronically transmitted copies thereof
filed with the Commission pursuant to its Electronic Data Gathering
Analysis and Retrieval ("▇▇▇▇▇") system, except to the extent
permitted by Regulation S-T.
(iii) The documents incorporated by reference in the
Registration Statement, the Preliminary Prospectus or the Prospectus or
from which information is so incorporated by reference, when they were
filed with the Commission, 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 the 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 the light of the circumstances under which they
were made, not misleading.
(iv) No order preventing or suspending the use of the
Prospectus (or, if the Prospectus is not in existence, the Preliminary
Prospectus) has been issued by the Commission, nor has the Commission,
any state or other jurisdiction or regulatory body, to the knowledge of
the Offerors, threatened to issue such an order or instituted
proceedings for that purpose. The 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 the light of the circumstances under which they
were 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 any of the Underwriters expressly for inclusion in the
Prospectus beneath the heading "Underwriting" (such information
referred to herein as the "Underwriters' Information"). Since the date
that the Preliminary Prospectus was filed with the Commission or as of
the date that the Prospectus and any amendment or supplement thereto
was filed with the Commission (or, if not filed, on the date provided
by the Offerors to the Underwriters in connection with the offering and
sale of the Designated Preferred Securities), as the case may be, no
event has occurred which should have been set forth in an amendment or
supplement to the Preliminary Prospectus or the Prospectus which has
not been set forth in the Preliminary Prospectus, the Prospectus or
such an amendment or supplement. The Preliminary Prospectus and the
Prospectus will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to its ▇▇▇▇▇ system, except
to the extent permitted by Regulation S-T.
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(v) The Registration Statement has been declared
effective under the 1933 Act, and no post-effective amendment to the
Registration Statement has been filed with the Commission as of the
date of this Agreement. No stop order suspending the effectiveness of
the Registration Statement has been issued and no proceeding for that
purpose has been instituted or, to the Company's knowledge, threatened
by the Commission, any state or other jurisdiction or other regulatory
body. 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; provided, however, that
this representation and warranty does not apply to Underwriters'
Information. At the Effective Date, if the Prospectus is not required
to be filed pursuant to Rule 424(b) or at the date of filing the
Prospectus pursuant to Rule 424(b), whichever is applicable, and at all
times when the Prospectus is required to be delivered in connection
with offers and sales of Designated Preferred Securities, including,
without limitation, the Closing Date and, if applicable, the Option
Closing Date, the Prospectus, as amended or supplemented, (A) complied
and will comply in all material respects with the requirements of the
1933 Act and the 1933 Act Regulations and the Trust Indenture Act (and
the rules and regulations thereunder) and (B) did not contain and will
not contain an untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that this representation
and warranty does not apply to Underwriters' Information. Since the
date that the Registration Statement was filed with the Commission, no
event has or will have occurred which should have been set forth in an
amendment or supplement to the Registration Statement which has not
then been set forth in such an amendment or supplement. The
Registration Statement will be identical to the electronically
transmitted copy thereof filed with the Commission pursuant to its
▇▇▇▇▇ system, except to the extent permitted by Regulation S-T. As of
the date hereof and at all times when the Prospectus is required to be
delivered in connection with offers and sales of Designated Preferred
Securities, including, without limitation, the Closing Date and, if
applicable, the Option Closing Date, the Trust Agreement, the Indenture
and the Guarantee did or will comply in all material respects with the
applicable requirements of the Trust Indenture Act and the rules
thereunder.
(vi) The Company is duly organized and validly
existing 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, in the 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").
(A) The Trust has been duly created and is
validly existing as a statutory trust in good standing under the
Delaware Statutory 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 the Prospectus (or, if
the Prospectus is not in existence, in the Preliminary
Prospectus), to issue and sell its common securities (the "Common
Securities") to the Company pursuant to the Trust Agreement, to
issue and sell the Designated Preferred Securities, to enter into
and perform its obligations under this Agreement and to consummate
the transactions herein contemplated; the Trust has no
subsidiaries and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its
business or the ownership of its property requires
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such qualification, except to the extent that the failure to
be so qualified or be in good standing would not have, either
individually or in the aggregate, 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 (or, if the
Prospectus is not in existence, in the Preliminary
Prospectus); the Trust is not a party to or bound by any
agreement or instrument other than this Agreement, the Trust
Agreement among the Administrative Trustees, the Company and
U.S. Bank Trust National Association, dated February 26, 2003
(the "Original Trust Agreement") and the agreements and
instruments contemplated by the Trust Agreement and described
in the Prospectus (or, if the Prospectus is not in existence,
in the Preliminary 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 (or, if the
Prospectus is not in existence, in the Preliminary
Prospectus); the Trust is not a party to or subject to any
action, suit or proceeding of any nature; the Trust is, and at
the Closing Date or any Option Closing Date will be,
classified as a grantor trust for United States federal income
tax purposes; the Trust is not, and at the Closing Date or any
Option Closing Date will not be, 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 currently has only the subsidiaries
identified on Exhibit A attached hereto and incorporated herein (the
"Subsidiaries"). 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 Subsidiaries.
Each Subsidiary is a corporation, Delaware statutory trust or bank duly
organized or incorporated, as the case may be, validly existing and in
good standing under the laws of its respective jurisdiction of
organization. Each such Subsidiary has full corporate and other power
and authority to own, lease and operate its properties and to conduct
its business as described in and contemplated by the Registration
Statement and the Prospectus (or, if the Prospectus is not in
existence, in the Preliminary Prospectus) and as currently being
conducted. The deposit accounts of Independent Bank, Independent Bank
West Michigan, Independent Bank South Michigan and Independent Bank
East Michigan (each, a "Bank," and collectively, the "Banks") are
insured by the Bank Insurance Fund administered by the Federal Deposit
Insurance Corporation (the "FDIC") up to the maximum amount provided by
law; and no proceedings for the modification, termination or revocation
of any such insurance are pending or, to the knowledge of the Offerors,
threatened.
(viii) The Company and each of the Subsidiaries is
duly qualified to transact business as a foreign corporation, bank or
Delaware statutory trust, as the case may be, 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, affairs, business, prospects or results of operations of the
Company and the Subsidiaries on a consolidated basis. All of the issued
and outstanding shares of capital stock, equity securities or
membership interests of the Subsidiaries (A) have been duly authorized
and are validly issued, (B) are fully paid and nonassessable except to
the extent such shares may be deemed assessable under 12 U.S.C. Section
1831 or under Section 201 of the Michigan Banking Code of 1969, as
amended (M.C.L.A. Section 487.501), and (C) are wholly owned, directly
or indirectly, by the Company free and clear of any security interest,
mortgage, pledge, lien, encumbrance, restriction upon voting or
transfer, preemptive rights, claim or equity or other defect.
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(ix) The capital stock of the Company and the equity
securities of the Trust conform to the description thereof contained in
the Prospectus (or, if the Prospectus is not in existence, in the
Preliminary Prospectus). The outstanding shares of capital stock and
equity securities of each Offeror have been duly authorized and validly
issued and are fully paid and nonassessable, and no such shares were
issued in violation of the preemptive or similar rights of any security
holder of an Offeror. No person has any preemptive or similar right to
purchase any shares of capital stock or equity securities of the
Offerors. Except as disclosed in the Prospectus (or, if the Prospectus
is not in existence, in the Preliminary Prospectus) or issuable
pursuant to compensatory plans or other programs disclosed in the
Prospectus and the Preliminary Prospectus, and except for stock options
granted to non-employee directors and officers of the Company, there
are no outstanding rights, options or warrants to acquire any
securities of the Offerors or the Subsidiaries, and there are no
outstanding securities convertible into or exchangeable for any
securities of the Offerors or the Subsidiaries and no restrictions upon
the voting or transfer of any capital stock of the Company or equity
securities of the Trust pursuant to the Company's charter or bylaws,
the Trust Agreement or any agreement or other instrument to which an
Offeror is a party or by which an Offeror is bound. As of the date set
forth therein, the Company had an authorized and outstanding
capitalization as set forth in the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, in the
Preliminary Prospectus) and the capitalization of the Company
immediately following the Effective Time will be as set forth in the
Prospectus.
(x) The Trust has all requisite trust power and
authority to issue, sell and deliver the Designated Preferred
Securities in accordance with and upon the terms and conditions set
forth in this Agreement, the Trust Agreement, the Registration
Statement and the Prospectus (or, if the Prospectus is not in
existence, in the Preliminary Prospectus). All corporate and trust
action required to be taken by the Offerors for the authorization,
issuance, sale and delivery of the Designated Preferred Securities in
accordance with such terms and conditions has been validly and duly
taken. The Designated Preferred Securities, when delivered and paid for
in accordance with this Agreement, will be duly and validly issued and
outstanding, will represent valid fully paid and nonassessable
undivided beneficial interests in the assets of the Trust, will be
entitled to the benefits of the Trust Agreement pertaining to holders
of Preferred Securities, 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, in the Preliminary
Prospectus) and the Trust Agreement. None of the Designated Preferred
Securities, immediately prior to delivery, will be subject to any
security interest, lien, mortgage, pledge, encumbrance, restriction
upon voting or transfer, preemptive rights, claim, equity or other
defect.
(A) The Debentures have been duly and validly
authorized, and, when duly and validly executed, authenticated and
issued as provided in the Indenture and delivered to the Trust
pursuant to the Trust Agreement, will constitute valid and legally
binding obligations of the Company, enforceable against the
Company in accordance with their terms, except to the extent that
enforcement thereof may be limited by and/or subject to
bankruptcy, insolvency, reorganization or similar laws affecting
the rights of creditors generally and subject to general
principles of equity, will be in the form contemplated by, and
entitled to the benefits pertaining to holders of Debentures under
the Indenture, will conform to the description thereof contained
in the Prospectus (or, if the Prospectus is not in existence, in
the Preliminary Prospectus) and will be owned by the Trust free
and clear of any security interest, mortgage, pledge, lien,
encumbrance, restriction upon transfer, preemptive rights, claim,
equity or other defect.
8
(B) The Guarantee has been duly and validly
authorized, and, when duly and validly executed and delivered to
the guarantee trustee for the benefit of the Trust, will
constitute a valid and legally binding obligation of the Company,
enforceable against the Company in accordance with its terms
except to the extent that enforcement thereof may be limited by
bankruptcy, insolvency, reorganization or similar laws affecting
the rights of creditors generally and subject to general
principles of equity, and will conform to the description thereof
contained in the Prospectus (or, if the Prospectus is not in
existence, in the most recent preliminary prospectus).
(C) The Agreement as to Expenses and
Liabilities between the Company and the Trust (the "Expense
Agreement") has been duly and validly authorized, and, when duly
and validly executed and delivered by the Company, will constitute
a valid and legally binding obligation of the Company, enforceable
against the Company in accordance with its terms, except to the
extent that enforcement thereof may be limited by bankruptcy,
insolvency, reorganization or similar laws affecting the rights of
creditors generally and subject to general principles of equity,
and will conform to the description thereof contained in the
Prospectus (or, if the Prospectus is not in existence, in the most
recent preliminary prospectus).
(xi) The Offerors and the Subsidiaries have complied
with all federal, state and local statutes, regulations, ordinances and
rules as now in effect and 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, in the Preliminary Prospectus) and
as currently being conducted, except in each case for any such
noncompliance which would not, individually or in the aggregate, have a
material adverse effect on the condition (financial or otherwise),
business, prospects, or results of operations of the Company and the
Subsidiaries on a consolidated basis. Neither the Company nor any
non-banking Subsidiary engages directly or indirectly in any activity
prohibited by the Board of Governors of the Federal Reserve System (the
"FRB") or the BHC Act or the regulations promulgated thereunder.
(xii) The Offerors and the Subsidiaries have all
permits, easements, consents, licenses, franchises and other
governmental and regulatory authorizations from all appropriate
foreign, 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, in the Preliminary Prospectus) and as currently being
conducted, except where the failure to obtain or possess any Permit
would not, individually or in the aggregate, have a material adverse
effect on the condition (financial or otherwise), business, prospects,
or results of operations of the Company and the Subsidiaries on a
consolidated basis. All such Permits are in full force and effect and
each of the Offerors and the Subsidiaries are in all material respects
complying therewith, and no event has occurred that allows, or after
notice or lapse of time would allow, revocation or termination thereof
or will result in any other impairment of the rights of the holder of
any such Permit, except where such revocation, termination or
impairment would not, individually or in the aggregate, have a material
adverse effect on the condition (financial or otherwise), business,
prospects, or results of operations of the Company and the Subsidiaries
on a consolidated basis. Such Permits contain no restrictions that
would impair the ability of the Company or the Subsidiaries to conduct
their businesses in the manner consistent with their past practices.
Neither the Offerors nor any of the Subsidiaries have received notice
or otherwise have knowledge of any proceeding or action relating to the
revocation or modification of any such Permit.
9
(xiii) Neither of the Offerors nor any of the
Subsidiaries are in breach or violation of their corporate charter,
by-laws or other governing documents (including without limitation, the
Original Trust Agreement) in any material respect. Neither of the
Offerors nor any of the Subsidiaries is, and to the knowledge of the
Offerors no other party is, in violation, breach or default (with or
without notice or lapse of time or both) in the performance or
observance of any term, covenant, agreement, obligation,
representation, warranty or condition contained in (A) any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note,
lease, franchise, license, 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 would, individually or
in the aggregate with other breaches, violations or defaults, have a
material adverse effect on the condition (financial or otherwise),
earnings, affairs, business, prospects or results of operations of the
Company and the Subsidiaries on a consolidated basis, and to the
knowledge of the Offerors, no other party has asserted that the
Offerors or any of the Subsidiaries is in such violation, breach or
default, or (B) except as disclosed in the Prospectus (or if the
Prospectus is not in existence, the 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 any of the Offerors or the
Subsidiaries or any of their respective properties, the breach,
violation or default of which would, individually or in the aggregate
with other breaches, violations or defaults, have a material adverse
effect on the condition (financial or otherwise), earnings, affairs,
business, prospects or results of operations of the Company and the
Subsidiaries on a consolidated basis.
(xiv) The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated by this
Agreement, the Trust Agreement, the Guarantee, the Indenture, the
Expense Agreement, the Registration Statement and the Prospectus (or,
if the Prospectus is not in existence, in the Preliminary Prospectus)
(including, without limitation, the issuance and sale of the Designated
Preferred Securities and the use of proceeds from the sale of the
Designated Preferred Securities as described in the Prospectus under
the caption "Use of Proceeds") do not and will not conflict with,
result in the creation or imposition of any material lien, claim,
charge, encumbrance or restriction upon any property or assets of the
Offerors or the Subsidiaries or the Designated Preferred Securities
pursuant to, constitute a breach or violation of, or constitute a
default under, with or without notice or lapse of time or both, any of
the terms, provisions or conditions of (A) the charter or by-laws of
the Company or the Subsidiaries, (B) any contract, indenture, mortgage,
deed of trust, loan or credit agreement, note, lease, franchise,
license, Permit or any other agreement or instrument to which any of
the Offerors or the Subsidiaries is a party or by which any of them or
any of their respective properties may be bound, or (C) any order,
decree, judgment, rule or regulation of any court, arbitrator,
government, or governmental agency or instrumentality, domestic or
foreign, having jurisdiction over any of the Offerors or the
Subsidiaries or any of their respective properties, which conflict,
creation, imposition, breach, violation or default would have, either
individually or in the aggregate, a material adverse effect on the
condition (financial or otherwise), business, prospects or results of
operations of the Offerors and the Subsidiaries on a consolidated
basis. No authorization, approval, consent or order of or filing,
registration or qualification with, any person (including, without
limitation, any court, governmental body or authority) is required in
connection with the transactions contemplated by this Agreement, the
Trust Agreement, the Indenture, the Guarantee, the Expense Agreement,
the Registration Statement and the Prospectus (or the Preliminary
Prospectus), except such as have been obtained under the 1933 Act and
the Trust Indenture Act and from the Nasdaq National Market relating to
the listing of the Designated Preferred Securities, and such as may be
required under state securities laws or Interpretations or Rules of the
National Association of Securities Dealers, Inc. ("NASD") in connection
with the purchase and distribution of the Designated Preferred
Securities by the Underwriters.
10
(xv) The Company has all requisite corporate power
and authority and the Trust has all requisite trust power and authority
to enter into this Agreement and this Agreement has been duly and
validly authorized, executed and delivered by the Offerors and
constitutes the legal, valid and binding agreement of the Offerors,
enforceable against the Offerors in accordance with its terms, except
as the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting the rights of creditors
generally and subject to general principles of equity and except as any
indemnification or contribution provisions thereof may be limited under
applicable securities laws. The Company has all requisite corporate
power and authority to enter into the Indenture, the Trust Agreement,
the Guarantee and the Expense Agreement and each of the Indenture, the
Trust Agreement, the Guarantee and the Expense Agreement has been duly
and validly authorized by the Company, and, when executed and delivered
by the Company on the Closing Date, each of said agreements will
constitute a valid and legally binding obligation of the Company and
will be enforceable against the Company in accordance with its terms,
except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization or similar laws affecting the rights of
creditors generally and subject to general principles of equity and
except as any indemnification or contribution provisions thereof may be
limited under applicable securities laws. Each of the Indenture, the
Trust Agreement and the Guarantee has been duly qualified under the
Trust Indenture Act and will conform to the description thereof
contained in the Prospectus.
(xvi) The Company and the Subsidiaries have good and
marketable title in fee simple to all real property and good title to
all personal property owned by them and material to their business, in
each case free and clear of all security interests, liens, mortgages,
pledges, encumbrances, restrictions, claims, equities and other
defects, except such as are referred to in the Prospectus (or, if the
Prospectus is not in existence, in the Preliminary Prospectus) or such
as do not materially affect the value of such property in the aggregate
and do not materially interfere with the use made or proposed to be
made of such property; and all of the leases under which the Company or
the Subsidiaries hold real or personal property are valid and existing
leases, enforceable against the parties thereto, and in full force and
effect with such exceptions as are not material and do not materially
interfere with the use made or proposed to be made of such real or
personal property, and neither the Company nor any of the Subsidiaries
is in default of any of the terms or provisions of any leases, except,
in each case, where the existence of such default would not,
individually or in the aggregate, have a material adverse effect on the
condition (financial or otherwise), business, prospects, or results of
operations of the Company and the Subsidiaries on a consolidated basis.
(xvii) KPMG LLP, who have certified certain of the
consolidated financial statements of the Company and the Subsidiaries
including the notes thereto, included or incorporated by reference in
the Registration Statement and Prospectus, are independent public
accountants with respect to the Company and the Subsidiaries, as
required by the 1933 Act and the 1933 Act Regulations.
(xviii) The consolidated financial statements,
including the notes thereto, incorporated by reference in the
Registration Statement and the Prospectus (or, if the Prospectus is not
in existence, in the Preliminary Prospectus) with respect to the
Company and the Subsidiaries comply with all applicable requirements of
the 1933 Act and the 1933 Act Regulations and present fairly the
consolidated financial position of the Company and the Subsidiaries as
of the dates indicated and the consolidated statements of financial
condition, operations, cash flows and shareholders' equity of the
Company and the Subsidiaries for the periods specified and have been
prepared in conformity with generally accepted accounting principles
applied on a consistent basis. The selected consolidated financial data
concerning the
Company and the Subsidiaries included in the Registration Statement and
the Prospectus (or, if the Prospectus is not in existence, in the
Preliminary Prospectus) comply with all applicable requirements of the
1933 Act and the 1933 Act Regulations, present fairly the information
set forth therein, have been derived from the financial statements or
operating records of the Company and have been compiled on a basis
consistent with that of the consolidated financial statements of the
Company and the Subsidiaries in the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, in the
Preliminary Prospectus). The other financial, statistical and numerical
information included in the Registration Statement and the Prospectus
(or the Preliminary Prospectus) is accurate in all material respects,
complies with all applicable requirements of the 1933 Act and the 1933
Act Regulations, presents fairly the information shown therein, and to
the extent applicable has been compiled on a basis consistent with the
consolidated financial statements of the Company and the Subsidiaries
included in the Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, in the 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, in the Preliminary
Prospectus), except as otherwise stated therein:
(A) neither of the Offerors nor any of the
Subsidiaries has sustained any loss or interference with its
business from fire, explosion, flood or other calamity, whether or
not covered by insurance, or from any labor dispute or court or
governmental action, order or decree which is material,
individually or in the aggregate, to the condition (financial or
otherwise), earnings, affairs, business, prospects or results of
operations of the Company and the Subsidiaries 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, affairs, business, prospects or results of
operations of the Company and the Subsidiaries on a consolidated
basis, whether or not arising in the ordinary course of business;
(C) neither of the Offerors nor any of the
Subsidiaries has incurred any liabilities or obligations, direct
or contingent, or entered into any material transactions, other
than in the ordinary course of business, which are material,
individually or in the aggregate, to the condition (financial or
otherwise), earnings, affairs, business, prospects or results of
operations of the Company and the Subsidiaries on a consolidated
basis;
(D) neither of the Offerors has declared or
paid any dividend other than the Company's regular dividends on
its common stock, and neither of the Offerors nor any of the
Subsidiaries has become delinquent in the payment of principal or
interest on any outstanding borrowings;
(E) there has not been any change in the
capital stock, equity securities, long-term debt, obligations
under capital leases or, other than in the ordinary course of
business, short-term borrowings of the Offerors or the
Subsidiaries; and
(F) there has not occurred any other event and
there has arisen no set of circumstances required by the 1933 Act
or the 1933 Act Regulations to be disclosed in the Registration
Statement or Prospectus which has not been so set forth in the
Registration Statement.
12
(xx) No charge, investigation, action, suit or
proceeding is pending or, to the knowledge of the Offerors, threatened,
against or affecting the Offerors or the Subsidiaries or any of their
respective properties before or by any court or any regulatory,
administrative or governmental official, commission, board, agency or
other authority or body, or any arbitrator, wherein an unfavorable
decision, ruling or finding could reasonably be expected to 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 Subsidiaries on a consolidated basis
or which is required to be disclosed in the Registration Statement or
the Prospectus (or, if the Prospectus is not in existence, in the
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
or incorporated by reference into the Registration Statement, or that
are required to be summarized in the Prospectus (or, if the Prospectus
is not in existence, in the Preliminary Prospectus) that are not so
summarized.
(xxii) Neither of the Offerors has 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 Designated Preferred
Securities in violation of the Commission's rules and regulations,
including, but not limited to, Regulation M, and neither of the
Offerors is aware of any such action taken or to be taken by any
affiliate of the Offerors.
(xxiii) The Offerors and the Subsidiaries own, or
possess adequate rights to use, all patents, copyrights, trademarks,
service marks, trade names and other rights necessary to conduct the
businesses now conducted by them in all material respects or as
described in the Prospectus (or, if the Prospectus is not in existence,
in the Preliminary Prospectus) and neither the Company nor the
Subsidiaries 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 Company and the Subsidiaries
on a consolidated basis, and the Offerors do not know of any basis for
any such infringement or conflict 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 Company and the Subsidiaries on a
consolidated basis.
(xxiv) No labor dispute involving the Company or the
Subsidiaries exists or, to the knowledge of the Offerors, is imminent
which would, individually or in the aggregate with other disputes, have
a material adverse effect on the condition (financial or otherwise),
earnings, affairs, business, prospects or results of operations of the
Company and the Subsidiaries on a consolidated basis or which is
required to be disclosed in the Prospectus (or, if the Prospectus is
not in existence, in the Preliminary Prospectus). Neither the Company
nor any of the Subsidiaries has received notice of any existing or
threatened labor dispute by the employees of any of its principal
suppliers, customers or contractors which would, individually or in the
aggregate with other disputes, have a material adverse effect on the
condition (financial or otherwise), earnings, affairs, business,
prospects or results of operations of the Company and the Subsidiaries
on a consolidated basis.
13
(xxv) The Offerors and the Subsidiaries 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, individually or in the
aggregate, have a material adverse effect on the condition (financial
or otherwise), earnings, affairs, business, prospects or results of
operations of the Company and the Subsidiaries on a consolidated basis.
The Offerors have no knowledge of any tax deficiency which has been or
might be assessed against the Offerors or the Subsidiaries which, if
the subject of an unfavorable decision, ruling or finding, would,
individually or in the aggregate, have a material adverse effect on the
condition (financial or otherwise), earnings, affairs, business,
prospects or results of operations of the Company and the Subsidiaries
on a consolidated basis.
(xxvi) Each of the material contracts, agreements and
instruments referred to in the Registration Statement or the Prospectus
(or, if the Prospectus is not in existence, the Preliminary
Prospectus), and each contract, agreement and instrument filed as an
exhibit to the Registration Statement or to the Annual Report on Form
10-K for the year ended December 31, 2002 as filed with the Commission
is in full force and effect and is the legal, valid and binding
agreement of the Company or the Subsidiaries, enforceable in accordance
with its terms, except as the enforcement thereof may be limited by
general principles of equity, regardless of whether considered in a
proceeding at law or in equity and by bankruptcy or other laws relating
to or affecting creditors' rights generally, except where the
cancellation, termination or unenforceability could not, individually
or in the aggregate with other cancellations, terminations or
unenforceable contracts, have a material adverse effect on the
condition (financial or otherwise), earnings, affairs, business,
prospects or results of operations of the Company and the Subsidiaries
on a consolidated basis. Neither the Company nor any Subsidiary is
(with or without notice or lapse of time or both) in breach or default
under any such contracts, agreements or instruments described above (or
upon consummation of the transactions contemplated by this agreement
will be in breach or default thereunder) and, to the knowledge of the
Offerors, no other party to any such agreement is (with or without
notice or lapse of time or both) in breach or default thereunder,
except, in any case, where the default or breach could not,
individually or in the aggregate with other defaults or breaches, have
a material adverse effect on the condition (financial or otherwise),
business, prospects, or results of operations of the Company and the
Subsidiaries on a consolidated basis.
(xxvii) No relationship, direct or indirect, exists
between or among the Company or the Subsidiaries, on the one hand, and
the directors, officers, trustees, shareholders, customers or suppliers
of the Company or the Subsidiaries, on the other hand, which is
required to be described in the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, in the
Preliminary Prospectus) which is not adequately described therein to
satisfy the requirements of the 1933 Act and the 1933 Act Regulations.
(xxviii) No person has the right to request or
require the Offerors or the Subsidiaries to register any securities for
offering and sale under the 1933 Act by reason of the filing of the
Registration Statement with the Commission or the issuance and sale of
the Designated Preferred Securities.
(xxix) Neither the Company nor any officer or
director of the Company has (A) made any sale of the Designated
Securities except pursuant to the Prospectus, or (B) made any offer of
the Designated Securities in violation of the 1933 Act or the 1933 Act
Regulations.
14
(xxx) The Designated Preferred Securities have been
approved for quotation on the Nasdaq National Market subject to
official notice of issuance.
(xxxi) Except as described in the Prospectus (or, if
the Prospectus is not in existence, in the Preliminary Prospectus),
there are no contractual encumbrances or restrictions or material legal
restrictions required to be described therein, on the ability of the
Subsidiaries (A) to pay dividends or make any other distributions on
its capital stock or to pay any indebtedness owed to the Company, (B)
to make any loans or advances to, or investments in, the Company or (C)
to transfer any of their property or assets to the Company.
(xxxii) Neither of the Offerors is, or intends to
conduct business in a manner which would cause it to become, an
"investment company," an entity "controlled" by an "investment company"
or an "investment adviser" within the meaning of the Investment Company
Act of 1940, as amended (the "Investment Company Act") or the
Investment Advisers Act of 1940, as amended (the "Investment Advisers
Act").
(xxxiii) The Offerors have not distributed and will
not distribute prior to the Closing Date or, if applicable, the Option
Closing Date, any prospectus in connection with the Offering, other
than the Preliminary Prospectus, the Prospectus, the Registration
Statement and the other materials permitted by the 1933 Act and the
1933 Act Regulations and reviewed by or on behalf of the
Representatives.
(xxxiv) The activities of the Company and the
Subsidiaries are permitted under applicable federal and state banking
laws and regulations. The Company has all necessary approvals,
including the approval of the FDIC, the FRB and the Michigan Office of
Financial and Insurance Services, Division of Financial Services
("OFIS") as applicable, to own the capital stock of the Subsidiaries.
Neither the Company nor any of the Subsidiaries is a party or subject
to any agreement or memorandum with, or directive or other order issued
by, the FDIC, the FRB, the OFIS or other regulatory authority having
jurisdiction over it (each, a "Regulator," and collectively, the
"Regulators"), which imposes any restrictions or requirements not
generally applicable to entities of the same type as the Company and
the Subsidiaries. Neither the Company nor any Subsidiary is subject to
any directive from any Regulator to make any material change in the
method of conducting their respective businesses, and no such directive
is pending or threatened by such Regulators.
(xxxv) Other than as contemplated by this Agreement
and as disclosed in the Registration Statement, the Company has not
incurred any liability for any finder's or broker's fee or agent's
commission in connection with the execution and delivery of this
Agreement or the consummation of the transactions contemplated thereby.
(xxxvi) No report or application filed by the Company
or any of its Subsidiaries with the FDIC, the FRB, the OFIS or any
other Regulator, as of the date it was filed or amended, contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading when made or failed to comply in all material
respects with the applicable requirements of the FDIC, the FRB, the
OFIS or such other Regulator, as the case may be.
(xxxvii) Based upon current guidelines of the FRB,
proceeds from the sale of the Debentures will constitute "Tier 1"
capital (as defined in 12 C.F.R. Part 225), subject to applicable
regulatory restrictions on the amount thereof that can be included in
Tier 1 capital.
15
(xxxviii) None of the Offerors, the Subsidiaries or,
to the knowledge of the Offerors, any other person associated with or
acting on behalf of the Offerors or any of the Subsidiaries, including,
without limitation, any director, officer, agent, or employee of any of
the Subsidiaries or the Company has, directly or indirectly, while
acting on behalf of such Offeror or Subsidiary (i) used any corporate
funds for unlawful contributions, gifts, entertainment, or other
unlawful expenses relating to political activity; (ii) made any
unlawful contribution to any candidate for foreign or domestic office,
or to any foreign or domestic government officials or employees or
other person charged with similar public or quasi-public duties, other
than payments required or permitted by the laws of the United States or
any jurisdiction thereof or to foreign or domestic political parties or
campaigns from corporate funds, or failed to disclose fully any
contribution in violation of law; (iii) violated any provision of the
Foreign Corrupt Practices Act of 1977, as amended; or (iv) made any
other payment of funds for either or both of the Offerors or a
Subsidiary or retained any funds which constitute a violation of any
law, rule or regulation or which was or is required to be disclosed in
the Registration Statement or the Prospectus pursuant to the
requirements of the 1933 Act or the 1933 Act Regulations.
(xxxix) Neither the Company nor any Subsidiary has
any liability under any "pension plan", as defined in the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"). The
employee benefit plans, including employee welfare benefit plans, of
the Company and each of the Subsidiaries (the "Employee Plans") have
been operated in material compliance with the applicable provisions of
ERISA, the Internal Revenue Code of 1986, as amended (the "Code"), all
regulations, rulings and announcements promulgated or issued thereunder
and all other applicable governmental laws and regulations (except to
the extent such noncompliance could not have a material adverse effect
upon the condition (financial or otherwise) earnings, affairs,
business, prospects or results of operations of the Offerors or the
Subsidiaries). No reportable event under Section 4043(c) of ERISA has
occurred with respect to any Employee Plan of the Company or any of the
Subsidiaries for which the reporting requirements have not been waived
by the Pension Benefit Guaranty Corporation (except to the extent that
the occurrence of such unwaived reportable event could 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 Subsidiaries on a consolidated basis). No prohibited
transaction under Section 406 of ERISA, for which an exemption does not
apply, has occurred with respect to any Employee Plan of the Company or
any of the Subsidiaries (except to the extent that the occurrence of
such non-exempt prohibited transaction could not have a material
adverse effect upon the condition (financial or otherwise) earnings,
affairs, business, prospects or results of operations of the Offerors
or the Subsidiaries). There are no pending or, to the knowledge of the
Offerors, threatened, claims by or on behalf of any Employee Plan, by
any employee or beneficiary covered under any such Employee Plan or by
any governmental authority or otherwise involving such Employee Plans
or any of their respective fiduciaries (other than for routine claims
for benefits). All Employee Plans that are group health plans have been
operated in material compliance with the group health plan continuation
coverage requirements of Section 4980B of the Code.
(xl) The Company and each of the Subsidiaries maintains a system of
internal accounting controls sufficient to provide reasonable assurance
that (A) transactions are executed in accordance with management's
general or specific authorizations, (B) transactions are recorded as
necessary to permit preparation of financial statements in conformity
with generally accepted accounting principles and to maintain
accountability for assets, (C) access to assets is permitted only in
accordance with management's general or specific authorization, and (D)
the recorded accounts for assets is compared with the existing assets
at reasonable intervals and appropriate action is taken with respect
thereto. The books, records and accounts and systems of internal
16
accounting controls of the Company and its Subsidiaries comply in all
material respects with the requirements of Section 13(b)(2) of the 1934
Act.
(xli) Neither the Company nor any Subsidiary has any
agreement or understanding with any person (A) concerning the future
acquisition by the Company or the Banks of a controlling interest in
any entity or (B) concerning the future acquisition by any person of a
controlling interest in the Company or any Subsidiary, in either case
that is required by the 1933 Act or the 1933 Act Regulations to be
disclosed by the Company that is not disclosed in the Prospectus.
3. OFFERING BY THE UNDERWRITERS.
After the Effective Date or, if the Registration Statement is already
effective, after this Agreement becomes effective, the Underwriters propose to
offer the Firm Preferred Securities for sale to the public upon the terms and
conditions set forth in the Prospectus. The Underwriters may from time to time
thereafter reduce the public offering price and change the other selling terms;
provided, the proceeds to the Trust shall not be reduced as a result of such
reduction or change. Because the NASD is expected to view the Preferred
Securities as interests in a direct participation program, the offering of the
Preferred Securities is being made in compliance with the applicable provisions
of Rule 2810 of the NASD's conduct rules.
The Underwriters may reserve and sell such of the Designated Preferred
Securities purchased by the Underwriters as the Underwriters may elect to
dealers chosen by them (the "Selected Dealers") at the public offering price set
forth in the Prospectus less the applicable Selected Dealers' concessions set
forth therein, for re-offering by Selected Dealers to the public at the public
offering price. The Underwriters may allow, and Selected Dealers may re-allow, a
concession set forth in the Prospectus to certain other brokers and dealers.
4. CERTAIN COVENANTS OF THE OFFERORS.
The Offerors jointly and severally covenant with the Underwriters as
follows:
(a) The Offerors shall use their best efforts to cause the
Registration Statement and any amendments thereto, if not effective at the time
of execution of this Agreement, to become effective as promptly as possible. If
the Registration Statement has become or becomes effective pursuant to Rule 430A
and information has been omitted therefrom in reliance on Rule 430A, then, the
Offerors will prepare and file in accordance with Rule 430A and Rule 424(b)
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
Representatives 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, the Preliminary Prospectus
or the Prospectus or for additional information; and
17
(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 the Preliminary Prospectus or the
Prospectus, or suspending the qualification of any of the
Designated Preferred Securities for offering or sale in any
jurisdiction or the institution or threat of institution of any
proceedings for any of such purposes. The Offerors shall use their
best efforts to prevent the issuance of any such stop order or of
any other such order and if any such order is issued, to cause
such order to be withdrawn or lifted as soon as possible.
(c) The Offerors shall furnish to the Underwriters, from time
to time without charge, as soon as available, as many copies as the Underwriters
may reasonably request of (i) the registration statement as originally filed and
of all amendments thereto, in executed form, including exhibits, whether filed
before or after the 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) the 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 with the 1933 Act and
the 1933 Act Regulations and the 1934 Act and the 1934 Act Regulations so as to
permit the completion of the distribution of the Designated Preferred Securities
as contemplated herein and in the Trust Agreement and the Prospectus. The
Offerors shall not file any amendment to the registration statement as
originally filed or to the Registration Statement and shall not file any
amendment thereto or make any amendment or supplement to the 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 or counsel for the Underwriters shall reasonably
object. If it is necessary, in the Company's reasonable opinion or in the
reasonable opinion of the Company's counsel, to amend or supplement the
Registration Statement or the Prospectus in connection with the distribution of
the Designated Preferred Securities, the Offerors shall forthwith at their cost
and expense amend or supplement the Registration Statement or the Prospectus, as
the case may be, by preparing and filing with the Commission (provided the
Underwriters or counsel for the Underwriters does not reasonably object), and
furnishing to you such number of copies as you may reasonably request of an
amendment or amendments of, or a supplement or supplements to, the Registration
Statement or the Prospectus, as the case may be (in form and substance
reasonably satisfactory to you and counsel for the Underwriters). If any event
shall occur as a result of which it is necessary to amend or supplement the
Prospectus to correct an untrue statement of a material fact or to include a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if for any reason
it is necessary at any time to amend or supplement the Prospectus to comply with
the 1933 Act and the 1933 Act Regulations, the Offerors shall, subject to the
second sentence of this subsection (d), forthwith at their cost and expense
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 counsel for the Underwriters) so
that, as so amended or supplemented, the Prospectus shall not contain an untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading.
(e) The Offerors shall cooperate with you and counsel for the
Underwriters in order to qualify the Designated Preferred Securities 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 Designated Preferred
Securities; provided, however, that the Offerors shall not be required to
qualify to do business as a foreign corporation or file a general consent to
18
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 Designated Preferred Securities have been
qualified as above. The Offerors will notify you immediately of, and confirm in
writing, the suspension of qualification of the Designated Preferred Securities
or threat thereof in any jurisdiction.
(f) The Offerors shall file the DTC Letter of Representations and
any other documents required to be filed by the Offerors in connection therewith
in order to permit the Preferred Securities to be eligible for clearance and
settlement through the facilities of DTC.
(g) The Offerors shall make generally available to their security
holders in the manner contemplated by Rule 158 of the 1933 Act Regulations and
furnish to you as soon as practicable, but in any event not later than 16 months
after the Effective Date, a consolidated earnings statement of the Offerors in
reasonable detail, covering a period of at least 12 consecutive months beginning
after the Effective Date, conforming with the requirements of Section 11(a) of
the 1933 Act and Rule 158.
(h) The Offerors shall use the net proceeds from the sale of the
Designated Preferred Securities to be sold by the Trust hereunder in the manner
specified in the Prospectus under the caption "Use of Proceeds."
(i) For five years from the Effective Date, the Offerors shall
furnish to the Representatives copies of all reports and communications
(financial or otherwise) furnished by the Offerors to the holders of the
Designated Preferred Securities as a class, copies of all reports and financial
statements filed with or furnished to the Commission (other than portions for
which confidential treatment has been obtained from the Commission) or with any
national securities exchange or the Nasdaq National Market or other
self-regulatory organization and such other documents, reports and information
concerning the business and financial conditions of the Offerors as the
Representatives may reasonably request, other than such documents, reports and
information for which the Offerors has the legal obligation not to reveal to the
Representatives.
(j) For a period of 90 days from the Effective Date, the
Offerors shall not, without the Representatives' prior written consent, directly
or indirectly, offer for sale, sell or agree to sell or otherwise dispose of any
Designated Preferred Securities, any other beneficial interests in the assets of
the Trust or any securities of the Trust or the Company or any other financing
subsidiary organized by the Company that are substantially similar to the
Designated Preferred Securities (other than the Common Securities of the Trust
to be issued to the Company), including any guarantee of such beneficial
interests or substantially similar securities, or securities convertible into or
exchangeable for or that represent the right to receive any such beneficial
interest or substantially similar securities, except for the registration of the
Designated Preferred Securities and the sales to the Underwriters pursuant to
this Agreement.
(k) The Offerors shall use their best efforts to cause the
Designated Preferred Securities to become quoted on the Nasdaq National Market,
or in lieu thereof on a national securities exchange, and to remain so quoted,
provided this shall not prevent the Company from redeeming the Designated
Preferred Securities pursuant to the terms of the Trust Agreement. If the
Designated Preferred Securities are exchanged for Debentures, the Company shall
use its best efforts to have the Debentures promptly listed on a national
securities exchange or include them in a comparable quotation system on which
the Designated Preferred Securities are then listed or included, and to have the
Debentures promptly registered under the 1934 Act.
(l) The Offerors will provide you with copies of any
correspondence to and from, and all documents issued to and by, the Commission
in connection with the registration of the Designated Preferred Securities under
the 1933 Act.
(m) 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 Underwriters'
option to purchase the Option Preferred Securities shall expire or (ii) the day
following the Option Closing Date with respect to any Option Preferred
Securities that the Underwriters shall elect to purchase, except as described in
or contemplated by the Prospectus, neither the Offerors nor any of the
Subsidiaries shall take any action (or refrain from taking any action) which
will result in the Offerors or the Subsidiaries incurring any material liability
or obligation, direct or contingent, or enter into any material transaction,
except in the ordinary course of business, or take or refrain from taking any
action which will cause or result in any material adverse 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 Subsidiaries on a consolidated basis.
(n) Except as described in the Prospectus, the Offerors shall not,
for a period of 180 days after the date hereof, without the prior written
consent of the Representatives, purchase, redeem or call for redemption, or
prepay or give notice of prepayment (or announce any redemption or call for
redemption, or any repayment or notice of prepayment) of the Offerors'
securities; provided, however, that this shall not apply to repurchases by the
Company of its common stock.
(o) The Offerors shall not take, directly or indirectly, any
action designed to result in or which constitutes or which might reasonably be
expected to cause or result in stabilization or manipulation of the price of any
security of the Offerors in connection with the sale or resale of the Designated
Preferred Securities in violation of the Commission's rules and regulations,
including, but not limited to, Regulation M, and the Offerors are not aware of
any such action taken or to be taken by any affiliate of the Offerors.
(p) Prior to the Closing Date (and, if applicable, the Option
Closing Date), the Offerors will not issue any press release or other
communication directly or indirectly or hold any press conference with respect
to the Offerors, the Subsidiaries or the offering of the Designated Preferred
Securities which you shall not previously have been provided a copy a reasonable
time prior to the release thereof or provided reasonable notice thereof and you
shall not have reasonably objected thereof.
(q) The Offerors shall comply in all material respects with
all registration, filing and reporting requirements of the 1934 Act for so long
as the Preferred Securities or the Debentures shall remain outstanding.
5. PAYMENT OF EXPENSES.
Whether or not this Agreement is terminated or the sale of the
Designated Preferred Securities to the Underwriters is consummated, the Company
covenants and agrees that it will pay or cause to be paid (directly or by
reimbursement) all costs and expenses incident to the performance of the
obligations of the Offerors under this Agreement, including:
(a) the preparation, printing, filing, delivery and shipping
of the initial registration statement, the Preliminary Prospectus, 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);
(b) all fees, expenses and disbursements of the Offerors'
counsel and accountants;
(c) all fees and expenses incurred in connection with the
qualification of the Designated Preferred Securities, Debentures and the
Guarantee 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
Underwriters in connection therewith;
(d) all fees and expenses incurred in connection with filings
made with the NASD and DTC;
(e) any applicable fees and other expenses incurred in
connection with the listing of the Designated Preferred Securities and, if
applicable, the Guarantee and the Debentures on the Nasdaq National Market;
(f) the cost of furnishing to you copies of the initial
registration statements, the Preliminary Prospectus, the Registration Statement
and the Prospectus and all amendments or supplements thereto;
(g) all costs and charges of any transfer agent or registrar
and the fees and disbursements of counsel for any transfer agent or registrar;
(h) the costs and expenses (including stock transfer taxes)
incurred in connection with the printing, issuance and delivery of the
Designated Preferred Securities to the Underwriters;
(i) all expenses incident to the preparation, execution and
delivery of the Trust Agreement, the Indenture, the Guarantee and the Expense
Agreement; and
(j) all other costs and expenses incident to the performance of
the obligations of the Company hereunder, under the Trust Agreement and under
the Indenture that are not otherwise specifically provided for in this Section
5.
If the sale of Designated Preferred Securities contemplated by this
Agreement is not completed due to termination pursuant to the terms hereof
(other than pursuant to Section 9 hereof), 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 Subsidiaries, or any preparation for the marketing, purchase,
sale or delivery of the Designated Preferred Securities, in each case following
presentation of reasonably detailed invoices therefor.
If the sale of Designated Preferred Securities contemplated by this
Agreement is completed, the Company shall not be responsible for payment of fees
or disbursements of counsel for the Underwriters other than in accordance with
paragraph (c) above, or for the reimbursement of any expenses of the
Underwriters.
6. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS.
The obligations of the Underwriters to purchase and pay for the Firm
Preferred Securities and, following exercise of the option granted by the
Offerors in Section 1 of this Agreement, the Option Preferred Securities, are
subject, in your sole discretion, to the accuracy of and compliance with the
representations and warranties and compliance with the agreements of the
Offerors herein as of the date hereof and as of the Closing Date (or in the case
of the Option Preferred Securities, if any, as of the Option Closing Date), to
the accuracy of the written statements of the Offerors made pursuant to the
provisions hereof, to the performance by the Offerors of their covenants and
obligations hereunder and to the following additional conditions:
(a) If the Registration Statement or any amendment thereto
filed prior to the Closing Date has not been declared effective prior to the
time of execution hereof, the Registration Statement shall
21
become effective not later than 10:00 a.m., St. Louis time, on the first
business day following the time of execution of this Agreement, or at such later
time and date as you may agree to in writing. If required, the Prospectus and
any amendment or supplement thereto shall have been timely filed in accordance
with Rule 424(b) and Rule 430A under the 1933 Act and Section 4(a) hereof. No
stop order suspending the effectiveness of the Registration Statement or any
amendment or supplement thereto shall have been issued under the 1933 Act or any
applicable state securities laws and no proceedings for that purpose shall have
been instituted or shall be pending, or, to the knowledge of the Offerors or the
Representatives, shall be contemplated by the Commission or any state authority.
Any request on the part of the Commission or any state authority for additional
information (to be included in the Registration Statement or Prospectus or
otherwise) shall have been disclosed to you and complied with to your
satisfaction and to the satisfaction of counsel for the Underwriters.
(b) No Underwriter shall 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 the light of the circumstances under which they were
made) not misleading.
(c) All corporate proceedings and other legal matters incident
to the authorization, form and validity of this Agreement, the Trust Agreement,
the Indenture, the Debentures and the Designated Preferred Securities, and the
authorization and form of the Registration Statement and the 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
Trust Agreement or the Indenture shall be reasonably satisfactory in all
material respects to counsel for the Underwriters, and the Offerors and the
Subsidiaries shall have furnished to such counsel all documents and information
relating thereto that they may reasonably request to enable them to pass upon
such matters.
(d) ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the
Offerors, shall have furnished to you their signed opinion, dated the Closing
Date or the Option Closing Date, as the case may be, in form and substance
satisfactory to counsel for the Underwriters, to the effect that:
(i) The Company has been duly incorporated 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. The entities listed on Exhibit A are the only subsidiaries of
the Company. Each of the Subsidiaries is duly organized, validly
existing and in good standing under the laws of its jurisdiction of
incorporation or organization. Each of the Company and the Subsidiaries
has full power (corporate or otherwise) and authority to own or lease
its properties and to conduct its business as such business is
described in the Prospectus. To the best of such counsel's knowledge,
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 1831 or under Section 201 of the Michigan Banking Code
of 1969, as amended (M.C.L.A. Section 487.501), and 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, Debentures and Guarantee of
the Company and the equity securities of the Trust conform to the
description thereof contained in the Prospectus in all material
respects. The capital stock of the Company authorized and issued as of
December 31, 2002, is as set forth under the caption "Capitalization"
in the Prospectus, has been duly
22
authorized and validly issued, and is fully paid and nonassessable
except to the extent such shares may be deemed assessable under 12
U.S.C. Section 1831o or under Section 201 of the Michigan Banking Code
of 1969, as amended (M.C.L.A. Section 487.501). The form of
certificates to evidence the Designated Preferred Securities has been
approved by the Trust and is in due and proper form and complies with
all applicable requirements. All of the issued and outstanding Common
Securities of the Trust are owned by the Company and are held free and
clear of any security interest, mortgage, pledge, lien, encumbrance,
claim or equitable right. 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 or the equity securities of the Trust, except as
described in the Prospectus and this Agreement, other than stock
options granted to non-employee directors and officers of the Company;
(iii) The issuance, sale and delivery of the
Designated Preferred Securities and the Debentures in accordance with
the terms and conditions of this Agreement and the Indenture have been
duly authorized by all necessary actions of the Offerors. All of the
Designated Preferred Securities have been duly and validly authorized
and, when delivered in accordance with this Agreement and the Trust
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 Trust Agreement. The
Designated Preferred Securities 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 or equity securities
of the Company or the Subsidiaries pursuant to the corporate charter,
by-laws or other governing documents (including without limitation, the
Trust Agreement) of the Company or the Subsidiaries, or, to the best of
such counsel's knowledge, any agreement or other instrument to which
the Company or the Subsidiaries is a party or by which the Company or
the Subsidiaries may be bound;
(iv) The Offerors have all requisite corporate and
trust power to enter into and perform their obligations under this
Agreement, and this Agreement has been duly and validly authorized,
executed and delivered by the Offerors and constitutes the legal, valid
and binding obligations of the Offerors enforceable in accordance with
its terms, except as the enforcement hereof or thereof may be limited
by general principles of equity, regardless of whether considered in a
proceeding at law or in 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 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, authenticated and delivered by the Company, 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, regardless of whether
23
considered in a proceeding at law or in equity; and the holders of the
Debentures are entitled to the benefits of the Indenture pertaining to
holders of the Debentures;
(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 of such counsel's knowledge,
neither the Offerors nor any of the Subsidiaries is in breach or
violation of, or default under, with or without notice or lapse of time
or both, its corporate charter, by-laws or governing document
(including, without limitation, the Trust Agreement). The execution,
delivery and performance of this Agreement and the Trust Agreement and
the consummation of the transactions contemplated thereby do not and
will not conflict with, result in the creation or imposition of any
material lien, claim, charge, encumbrance or restriction upon any
property or assets of the Offerors or the Subsidiaries or the
Designated Preferred Securities pursuant to, or 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, by-laws or governing document (including, without
limitation, the Trust Agreement) of the Offerors or the Subsidiaries,
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 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 Offerors or any of the Subsidiaries is a party or by which
any of them or any of their respective properties may be bound or any
order, decree, judgment, franchise, license, 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 Offerors or the Subsidiaries or any of their
respective properties which, in each case, is material to the Offerors
and the Subsidiaries on a consolidated basis. No authorization,
approval, consent or order of, or filing, registration or qualification
with, any person (including, without limitation, any court,
governmental body or authority) is required under Michigan law in
connection with the transactions contemplated by this Agreement or in
connection with the purchase and distribution of the Designated
Preferred Securities by the Underwriters;
(ix) To the best of such counsel's knowledge, holders
of securities of the Offerors either do not have any right that, if
exercised, would require the Offerors to cause such securities to be
included in the Registration Statement or have waived such right. To
the best of such counsel's knowledge, neither the Company nor any of
the Subsidiaries is a party to any agreement or other instrument which
grants rights for or relating to the registration of any securities of
the Offerors;
(x) To the best of such counsel's knowledge, (i) no
action, suit or proceeding at law or in equity is pending or threatened
in writing to which the Offerors or the Subsidiaries is or may be a
party, and (ii) no action, suit or proceeding is pending or threatened
in writing against or affecting the Offerors or the Subsidiaries or any
of their properties, before or by any court or governmental official,
commission, board or other administrative agency, authority or body, or
any arbitrator, wherein an unfavorable decision, ruling or finding
could reasonably be expected to have a material adverse effect on the
consummation of this Agreement or the issuance and sale of the
Designated Preferred Securities as contemplated herein or the condition
(financial or otherwise), earnings, affairs, business, prospects or
results of operations of the Offerors and the
24
Subsidiaries 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 Trust Agreement, the Registration Statement and the
Prospectus, except such as have been obtained under the 1933 Act and
the Trust Indenture Act, the Nasdaq National Market with respect to
listing matters, the 1934 Act, and except 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 Designated
Preferred Securities by the Underwriters, as to which such counsel
expresses no opinion;
(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 Underwriters' Information, as to which such counsel need
express no opinion) comply as to form in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations as of their
respective dates of effectiveness. The documents incorporated by
reference in 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, as to
which such counsel need express no opinion) comply as to form in all
material respects with the requirements of the 1934 Act and the 1934
Act Regulations as of the respective dates of effectiveness or filing;
(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 "Risk
Factors," "Description of the Trust," "Description of the Preferred
Securities," "Description of the Debentures," "Description of the
Guarantee," "Relationship Among the Preferred Securities, the
Debentures and the Guarantee," "Federal Income Tax Consequences," and
"ERISA Considerations" in the Prospectus, and the statements under the
caption "Supervision and Regulation," "Legal Proceedings," and
"Business" in the Company's Annual Report on Form 10-K for the year
ended December 31, 2002, incorporated by reference into the Prospectus,
insofar as such statements constitute a summary of legal and regulatory
matters, documents or instruments referred to therein are accurate
descriptions of the matters summarized therein in all material respects
and fairly present the information called for with respect to such
legal matters, documents and instruments;
(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 described in the Prospectus, to the
best of such counsel's knowledge, there are no contractual encumbrances
or restrictions, or material legal restrictions required to be
described therein on the ability of the Subsidiaries (A) to pay
dividends or make any other distributions on its capital stock or to
pay indebtedness owed to the Offerors, (B) to
25
make any loans or advances to, or investments in, the Offerors or (C)
to transfer any of its property or assets to the Offerors. Except as
described in the Prospectus (or, if the Prospectus is not in existence,
in the most recent Preliminary Prospectus) and in the Company's charter
or bylaws, to the knowledge of such counsel, there are no restrictions,
encumbrances or requirements affecting the payment of dividends or the
making of any other distributions on any of the capital stock of the
Company required to be described in the Prospectus (or, if the
Prospectus is not in existence, in the most recent Preliminary
Prospectus);
(xvii) To the best of such counsel's knowledge, (A)
the Company and the Subsidiaries possess and are operating in
compliance with the terms, provisions and conditions of all Permits
that are required to conduct their businesses as described in the
Prospectus and that are material to the Company and the Subsidiaries on
a consolidated basis; (B) all Permits referred to in clause (A) 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
noncompliance therewith would not materially impair the ability of the
Company and the Subsidiaries to conduct their businesses and would not
have a material adverse effect on the condition (financial or
otherwise), business, prospects or results of operations of the Company
and the Subsidiaries on a consolidated basis.
(xviii) Neither the Company nor the Trust is and,
after giving effect to the offering and sale of the Designated
Preferred Securities and the application of the proceeds thereof as
described in the Prospectus, neither the Company nor the Trust will be
an "investment company" or an entity "controlled" by an "investment
company" as defined in the Investment Company Act.
In giving the above opinion, such counsel may state that, insofar as
such opinion involves factual matters, they have relied upon certificates of
officers of the Offerors, including, without limitation, 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 (viii) and (xii) hereof and certificates of public officials. In
giving such opinion, such counsel may rely as to matters of Delaware law upon
the opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ and ▇▇▇▇▇▇, P.A. described herein.
Such counsel shall also confirm that, in connection with the
preparation of the Registration Statement and Prospectus, such counsel has
participated in conferences with officers and representatives of the Offerors
and with their independent public accountants and with you and your counsel, at
which conferences such counsel made inquiries of such officers, representatives
and accountants and discussed in detail the contents of the Registration
Statement and Prospectus and the documents incorporated therein by reference and
such counsel has no reason to believe (A) that the Registration Statement or any
amendment thereto (except for the financial statements and related schedules and
statistical data included therein or omitted therefrom or Underwriters'
Information, as to which such counsel need express no opinion), at the time the
Registration Statement or any such amendment became effective, contained any
untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading or (B)
that the Prospectus or any amendment or supplement thereto or the documents
incorporated therein by reference (except for the financial statements and
related schedules and statistical data included therein or omitted therefrom or
Underwriters' 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
26
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, in the light of the circumstances under which they
were made, not misleading or (C) that there is any amendment to the Registration
Statement required to be filed that has not already been filed.
(e) ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, special Delaware counsel to the
Offerors, shall have furnished to you their signed opinion, dated as of Closing
Date or the Option Closing Date, as the case may be, in form and substance
satisfactory to such counsel, to the effect that:
(i) The Trust has been duly created and is validly
existing in good standing as a statutory trust under the Delaware
Statutory Trust Act and, under the Trust Agreement and the Delaware
Statutory Trust Act, has the trust power and authority to conduct its
business as described in the Prospectus.
(ii) The Trust has all requisite trust power to enter
into and perform its obligations under this Agreement. The Trust
Agreement is a legal, valid and binding agreement of the Company, as
sponsor, and the Trustees, and is enforceable against the Company, as
sponsor, and the Trustees, in accordance with its terms.
(iii) Under the Trust Agreement and the Delaware
Statutory Trust Act, this Agreement and its execution and delivery 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 issuance, sale and delivery of the
Designated Preferred Securities in accordance with the Trust Agreement
have been duly authorized by all necessary action of the Trust. The
Designated Preferred Securities have been duly and validly authorized
by the Trust Agreement, and when issued and sold in accordance with the
Trust Agreement, the Designated Preferred Securities 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. The form of
certificate to evidence the Designated Preferred Securities has been
approved by the Trust and complies with all applicable requirements of
the Delaware Statutory Trust Act.
(v) Holders of Designated Preferred Securities, as
beneficial owners of the Trust, will be entitled to the same limitation
of personal liability extended to shareholders of private, for-profit
corporations organized under the General Corporation Law of the State
of Delaware. Such opinion may note that the holders of Designated
Preferred Securities may be obligated to make payments as set forth in
the Trust Agreement.
(vi) Under the Delaware Statutory Trust Act and the
Trust Agreement, the issuance of the Designated Preferred Securities is
not subject to preemptive rights or other similar rights.
(vii) The issuance and sale by the Trust of the
Designated Preferred Securities and the Common Securities, 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,
27
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.
(f) Vedder, Price, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the
Underwriters, shall have furnished you their signed opinion, dated the Closing
Date or the Option Closing Date, as the case may be, with respect to the
sufficiency of all corporate procedures and other legal matters relating to this
Agreement, the validity of the Designated Preferred Securities, the Registration
Statement, the Prospectus and such other related matters as you may reasonably
request and there shall have been furnished to such counsel such documents and
other information as they may request to enable them to pass on such matters. In
giving such opinion, ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ may rely as to matters of
fact upon statements and certifications of officers of the Offerors and of other
appropriate persons and may rely as to matters of law, other than law of the
United States and the State of Illinois, upon the opinions of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ described herein.
(g) On the date of this Agreement and on the Closing Date
(and, if applicable, any Option Closing Date), the Representatives shall have
received from KPMG LLP letters dated the date of this Agreement and the Closing
Date (and, if applicable, the Option Closing Date), respectively, in form and
substance satisfactory to the Representatives, confirming that they are
independent public accountants with respect to the Company within the meaning of
the 1933 Act and the 1933 Act Regulations and stating in effect that:
(i) In their opinion, the consolidated financial
statements of the Company audited by them and included or incorporated
by reference 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 and other regulations adopted by
the Commission.
(ii) 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 consolidated financial statements of the
Company, inspection of the minute books of the Company since the date
of the latest audited financial statements of the Company incorporated
by reference in the Registration Statement, inquiries of officials of
the Company responsible for financial and accounting matters and such
other inquiries and procedures as may be specified in such letter,
nothing came to their attention that caused them to believe that:
(A) as of a specified date not more than
five days prior to the date of such letter, there have been
any changes in the consolidated capital stock of the Company,
any increase in the consolidated debt of the Company or
decreases in consolidated shareholders' equity of the Company
or any changes, decreases or increases in other items
specified by the Representatives, in each case as compared
with amounts shown in the latest consolidated statement of
financial condition of the Company incorporated by reference
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 consolidated financial statements of the Company
incorporated by reference in the Registration Statement to the
specified date referred to in clause (iii)(A), there were any
decreases in the consolidated
28
net income of the Company or in the per share amount of net
income of the Company or any changes, decreases or increases
in other items specified by the Representatives as compared
with the comparable period of the preceding year and with any
other period of corresponding length specified by the
Representatives, except in each case for increases or
decreases which the Registration Statement discloses have
occurred or may occur, or which are described in such letter.
(iii) For purposes of such letter, they have also
read the following sections of the registration statement: (a) "Summary
Consolidated Financial Data", and (b) "Capitalization", and they have
performed the following additional procedures:
(A) They have compared the information
included under the heading "Summary Consolidated Financial
Data" with the requirements of items 301 and 503(d) of
Regulation S-K and also have inquired of certain officials of
the Company who have responsibility for financial and
accounting matters whether this information conforms in all
material respects with the disclosure requirements of items
301 and 503(d) of Regulation S-K. Based upon the foregoing
procedures, nothing has come to their attention that has
caused them to believe that this information does not conform
in all material respects with the disclosure requirements of
items 301 and 503(d) of Regulation S-K provided that they are
not obligated to make any comment as to the appropriateness of
the assumptions used in determining the amount of rental
expense included in fixed charges.
(B) Under the heading "Capitalization," they
have compared the amounts and numbers of shares listed under
the caption "Actual" with the balances in the accounting
records of the Company as of December 31, 2002, and have found
them to be in agreement. They have compared the amounts and
numbers of shares listed under the caption "Actual" adjusted
for the issuance of the debentures to be offered by means of
the Registration Statement and for the proposed use of the
proceeds thereof as described under "Use of Proceeds" (without
making any comment regarding the reasonableness of the "Use of
Proceeds" or whether such use will actually take place) with
the amounts and numbers of shares shown under the caption "As
Adjusted" and have found such amounts and numbers of shares to
be in agreement. They have compared the description of the
securities and the information included in the notes to the
table headed "Capitalization" with the corresponding
descriptions and information in the Company's consolidated
financial statements, including the notes thereto included in
the Registration Statement, and have found such descriptions
and information to be in agreement.
(iv) In addition to the audit referred to in their
report incorporated by reference in the Registration Statement and the
limited procedures, inspection of minute books, inquiries and other
procedures referred to in paragraphs (ii) and (iii) above, they have
carried out certain specified procedures, not constituting an audit in
accordance with U.S. generally accepted auditing standards, with
respect to certain amounts, percentages and financial information
specified by the Representatives which are derived from the general
accounting records and consolidated financial statements of the Company
which appear in the Registration Statement and the documents
incorporated by reference therein specified by the Representatives, and
have compared such amounts, percentages and financial information with
the accounting records and the material derived from such records and
consolidated financial statements of the Company have found them to be
in agreement.
29
In the event that the letters to be delivered on the date hereof, on
the Closing Date (and, if applicable, any Option Closing Date) referred to above
set forth any such changes, decreases or increases as specified in clauses
(iii)(A) or (iii)(B) above, or any exceptions from such agreement specified in
clause (iv) above, it shall be a further condition to the obligations of the
Underwriters that the Representatives shall have determined, after discussions
with officers of the Company responsible for financial and accounting matters,
that such changes, decreases, increases or exceptions as are set forth in such
letters do not (x) reflect a material adverse change in the items specified in
clause (iii)(A) above as compared with the amounts shown in the latest
consolidated statement of financial condition of the Company included or
incorporated by reference in the Registration Statement, (y) reflect a material
adverse change in the items specified in clause (iii)(B) above as compared with
the corresponding periods of the prior year or other period specified by the
Representatives, or (z) reflect a material adverse change in items specified in
clause (iv) above from the amounts shown in the Preliminary Prospectus
distributed by the Underwriters in connection with the offering contemplated
hereby or from the amounts shown in the Prospectus.
(h) 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 hereof are accurate as of the
Closing Date and, if applicable, the Option Closing Date, and that each of the
Offerors has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied at or prior to such Closing Date and, if
applicable, the Option 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 Company
and the Subsidiaries on a consolidated basis; (iii) since such dates there has
not been any material transaction entered into by the Offerors or the
Subsidiaries other than transactions in the ordinary course of business; (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 officers' certificate of the
Company shall further state that no stop order affecting the Registration
Statement is in effect or, to their knowledge, threatened.
(i) At the Closing Date and, if applicable, the Option Closing
Date, you shall have received a certificate of an authorized representative of
the Trust to the effect that to the best of his or her knowledge based upon a
reasonable investigation, the representations and warranties of the Trust in
this Agreement are true and correct as though made on and as of the Closing Date
(and, if applicable, the Option Closing Date); the Trust has complied with all
the agreements and satisfied all the conditions required by this Agreement to be
performed or satisfied by the Trust on or prior to the Closing Date, and since
the most recent date as of which information is given in the Prospectus, except
as described in the Prospectus, the Trust has not incurred any material
liabilities or obligations, direct or contingent, or 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.
30
(j) On the Closing Date, all conditions precedent under each
of the Trust Agreement, the Guarantee, the Indenture and the Expense Agreement
shall have been satisfied or duly waived, and you shall have received copies of
all documentation required to evidence same.
(k) The NASD, upon review of the terms of the public offering
of the Designated Preferred Securities, shall not have objected to the
Underwriters' participation in such offering.
(l) Prior to the Closing Date and, if applicable, the Option
Closing Date, the Offerors shall have furnished to you and counsel for the
Underwriters all such other documents, certificates and opinions as they have
reasonably requested.
All opinions, certificates, letters and other documents shall be in
compliance with the provisions hereof only if they are reasonably satisfactory
in form and substance to you. The Offerors shall furnish you with conformed
copies of such opinions, certificates, letters and other documents as you shall
reasonably request.
If any of the conditions referred to in this Section 6 shall not have
been fulfilled when and as required by this Agreement, this Agreement and all of
the Underwriters' obligations hereunder may be terminated by you on notice to
the Company at, or at any time before, the Closing Date or the Option Closing
Date, as applicable. Any such termination shall be without liability of the
Underwriters to the Offerors.
7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Offerors jointly and severally agree to indemnify and
hold harmless each Underwriter, each of its directors, officers and agents, and
each person, if any, who controls any Underwriter within the meaning of the 1933
Act, against any and all losses, claims, damages, liabilities and expenses
(including reasonable costs of investigation and reasonable attorney fees and
expenses), joint or several, arising out of or based upon (i) any untrue
statement or alleged untrue statement of a material fact made by the Company or
the Trust contained in Section 2 of this Agreement (or any certificate delivered
by or on behalf of the Company or the Trust pursuant to Sections 6(h), 6(i) and
6(l) hereto) or in the registration statement as originally filed or the
Registration Statement, any Preliminary Prospectus, the Prospectus or in any
amendment or supplement thereto, (ii) any omission or alleged omission to state
a material fact in the registration statement as originally filed or the
Registration Statement, the Preliminary Prospectus, the Prospectus or in any
amendment or supplement thereto, required to be stated therein or necessary to
make the statements therein not misleading, and against any and all losses,
claims, damages, liabilities and expenses (including reasonable costs of
investigation and attorney fees), joint or several, arising out of or based upon
any untrue statement or alleged untrue statement of a material fact contained in
the Preliminary Prospectus or the Prospectus, or in any amendment or supplement
thereto, or arising out of or based upon any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading; or (iii) the enforcement of this indemnification provision
or the contribution provisions of Section 7(d); and shall reimburse each such
indemnified party for any 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
31
with the Underwriters' Information; provided further, however, that the
indemnification contained in this Section 7(d) with respect to the Preliminary
Prospectus shall not inure to the benefit of any Underwriter (or of any person
controlling any Underwriter) to the extent any such losses, claims, damages,
liabilities or expenses directly result from the fact that such Underwriter sold
Designated Preferred Securities to a person to whom there was not sent or given,
at or prior to the written confirmation of such sale, a copy of the Prospectus
(as amended or supplemented, if any, provided such Prospectus shall have been
furnished to you in sufficient time to distribute same with or prior to the
written confirmation of the sale involved), if required by law, and if such
loss, claim, damage, liability or expense would not have arisen but for the
failure to give or send such person such document. The foregoing indemnity
agreement is in addition to any liability the Company or the Trust may otherwise
have to any such indemnified party, but it is not intended that any such
indemnified party shall be entitled to duplicate recovery hereunder.
(b) Each Underwriter, severally and not jointly, agrees to
indemnify and hold harmless each Offeror, each of the Company's directors, each
of the Company's officers who sign the Registration Statement, each of the
Administrative Trustees of the Trust and each person, if any, who controls an
Offeror within the meaning of the 1933 Act, to the same extent as required by
the foregoing indemnity from the Company to each Underwriter, but only with
respect to the Underwriters' Information. The foregoing indemnity agreement is
in addition to any liability which any Underwriter may otherwise have to any
such indemnified party, but it is not intended that any such indemnified party
shall be entitled to duplicate recovery hereunder.
(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 this Section 7, and
further, shall only relieve it from liability under this Section 7 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(ies) and controlling persons, which firm shall be
designated in writing by the indemnified party(ies) (and, if such indemnified
parties are Underwriters, by you, as the Representatives). Each indemnified
party and each controlling person, as a condition of such indemnity, shall use
reasonable efforts to cooperate with the indemnifying party in the defense of
any such action or claim. The indemnifying party shall not be liable for any
settlement of any such action effected without its written consent, but if there
shall be a final judgment for the plaintiff in any such action, the indemnifying
party agrees to indemnify and hold harmless any indemnified party and
32
any such controlling person from and against any loss, claim, damage, liability
or expense by reason of such settlement or judgment.
An indemnifying party shall not, without the prior written consent of
each indemnified party, settle, compromise or consent to the entry of any
judgment in any pending or threatened claim, action, suit or proceeding in
respect of which indemnity may be sought hereunder (whether or not such
indemnified party or any person who controls such indemnified party within the
meaning of the 1933 Act is a party to such claim, action, suit or proceeding),
unless such settlement, compromise or consent includes a release of each such
indemnified party reasonably satisfactory to each such indemnified party and
each such controlling person from all liability arising out of such claim,
action, suit or proceeding or unless the indemnifying party shall confirm in a
written agreement with each indemnified party, that notwithstanding any federal,
state or common law, such settlement, compromise or consent shall not alter the
right of any indemnified party or controlling person to indemnification or
contribution as provided in this Agreement.
(d) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under
paragraphs (a), (b) or (c) hereof in respect of any losses, claims, damages,
liabilities or expenses referred to therein, then each indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount paid
or payable by such indemnified party as a result of such losses, claims,
damages, liabilities or expenses (i) in such proportion as is appropriate to
reflect the relative benefits received by the Offerors on the one hand and the
Underwriters on the other from the offering of the Designated Preferred
Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Offerors on the one hand and the Underwriters on the other in
connection with the statements or omissions that resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Offerors on the
one hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Designated
Preferred Securities (before deducting expenses) received by the Offerors bear
to the total underwriting discounts, commissions and compensation received by
the Underwriters, in each case as set forth in the table on the cover page of
the Prospectus. The relative fault of the Offerors on the one hand and of the
Underwriters on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Offerors or by the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The Offerors and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this Section 7(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 Section 7(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 Section 7(d), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Designated Preferred Securities underwritten by such
Underwriter and distributed to the public were offered to the public exceeds the
amount of any damages that such Underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the 1933 Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
33
For purposes of this Section 7(d), each person who controls an
Underwriter within the meaning of the 1933 Act shall have the same rights to
contribution as such Underwriter, and each person who controls an Offeror within
the meaning of the 1933 Act, each officer and trustee of an Offeror who shall
have signed the Registration Statement and each director of the Company 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 Section 7(d)
shall be in addition to any liability which the Offerors may otherwise have and
the obligations of the Underwriters under this Section 7(d) shall be in addition
to any liability that the Underwriters may otherwise have.
(e) The indemnity and contribution agreements contained in
this Section 7 shall remain operative and in full force and effect, regardless
of (i) any investigation made by or on behalf of any Underwriter or any person
controlling an Underwriter or by or on behalf of the Offerors, or such
directors, trustees or officers (or any person controlling an Offeror), (ii)
acceptance of any Designated Preferred Securities and payment therefor hereunder
and (iii) any termination of this Agreement. A successor of any Underwriter or
of an Offeror, such directors, trustees or officers (or of any person
controlling an Underwriter or an Offeror) shall be entitled to the benefits of
the indemnity, contribution and reimbursement agreements contained in this
Section 7.
(f) The Company agrees to indemnify the Trust against any and
all losses, claims, damages or liabilities that may become due from the Trust
under this Section 7.
8. TERMINATION.
You shall have the right to terminate this Agreement at any time at or
prior to the Closing Date or, with respect to the Underwriters' obligation to
purchase the Option Preferred Securities, at any time at or prior to the Option
Closing Date, without liability on the part of the Underwriters to the Offerors,
if:
(a) Either Offeror shall have failed, refused, or been unable
to perform any agreement on its part to be performed under this Agreement, or
any of the conditions referred to in Section 6 shall not have been fulfilled,
when and as required by this Agreement;
(b) The Offerors or any of the Subsidiaries shall have
sustained any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or decree which in the
judgment of the Representatives materially impairs the investment quality of the
Designated Preferred Securities;
(c) There has been since the respective dates as of which
information is given in the Registration Statement or the Prospectus, any
materially adverse change in, or any development which in your reasonable
judgment 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 Offerors and the Subsidiaries on a consolidated
basis, whether or not arising in the ordinary course of business;
(d) There has occurred any outbreak or escalation of
hostilities or other calamity or crisis (including, without limitation, an act
of terrorism) or material change in general economic, political or financial
conditions, or internal conditions, the effect of which on the financial markets
of the United States is such as to make it, in your reasonable judgment,
impracticable to market the Designated Preferred Securities or enforce contracts
for the sale of the Designated Preferred Securities;
(e) Trading generally on the New York Stock Exchange, the
American Stock Exchange or the Nasdaq National Market shall have been suspended,
or minimum or maximum prices for
34
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; or
(f) A banking moratorium shall have been declared by either
federal, New York 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 so as to make
it, in your reasonable judgment, impracticable to market the Designated
Preferred Securities or to enforce contracts for the sale of the Designated
Preferred Securities.
If this Agreement shall be terminated pursuant to this Section 8, the
Offerors shall not then be under any liability to the Underwriters except as
provided in Sections 5 and 7 hereof.
9. DEFAULT OF UNDERWRITERS.
If any Underwriter or Underwriters shall default in its or their
obligations to purchase Designated Preferred Securities hereunder, the other
Underwriters shall be obligated severally, in proportion to their respective
commitments hereunder, to purchase the Designated Preferred Securities which
such defaulting Underwriter or Underwriters agreed but failed to purchase;
provided, however, that the non-defaulting Underwriters shall be under no
obligation to purchase such Designated Preferred Securities if the aggregate
number of Designated Preferred Securities to be purchased by such non-defaulting
Underwriters shall exceed 110% of the aggregate underwriting commitments set
forth in Schedule I hereto, and provided further, that no non-defaulting
Underwriter shall be obligated to purchase Designated Preferred Securities to
the extent that the number of such Designated Preferred Securities is more than
110% of such Underwriter's underwriting commitment set forth in Schedule I
hereto.
In the event that the non-defaulting Underwriters are not obligated
under the above paragraph to purchase the Designated Preferred Securities which
the defaulting Underwriter or Underwriters agreed but failed to purchase, the
Representatives may in their discretion arrange for one or more of the
Underwriters or for another party or parties to purchase such Designated
Preferred Securities on the terms contained herein. If within one business day
after such default the Representatives do not arrange for the purchase of such
Designated Preferred Securities, then the Company shall be entitled to a further
period of one business day within which to procure another party or parties
satisfactory to the Representatives to purchase such Designated Preferred
Securities on such terms.
In the event that the Representatives or the Company do not arrange for
the purchase of any Designated Preferred Securities to which a default relates
as provided above, this Agreement shall be terminated.
If the remaining Underwriters or substituted underwriters are required
hereby or agree to take up all or a part of the Designated Preferred Securities
of a defaulting Underwriter or Underwriters as provided in this Section 9, (i)
you shall have the right to postpone the Closing Date for a period of not more
than five full business days, in order to effect any changes that, in the
opinion of counsel for the Underwriters or the Company, may thereby be made
necessary in the Registration Statement or the Prospectus, or in any other
documents or agreements, and the Company agrees promptly to file any amendments
to the Registration Statement or supplements to the Prospectus which, in its
opinion, may thereby be made necessary and (ii) the respective numbers of
Designated Preferred Securities to be purchased by the remaining Underwriters or
substituted underwriters shall be taken as the basis of their underwriting
obligation for all purposes of this Agreement. Nothing herein contained shall
relieve any defaulting Underwriter of any liability it may have for damages
occasioned by its default hereunder. Any
35
termination of this Agreement pursuant to this Section 9 shall be without
liability on the part of any non-defaulting Underwriter or the Company, except
for expenses to be paid or reimbursed pursuant to Section 5 and except for the
provisions of Section 7.
10. EFFECTIVE DATE OF AGREEMENT.
If the Registration Statement is not effective at the time of execution
of this Agreement, this Agreement shall become effective on the Effective Date
at the time the Commission declares the Registration Statement effective. The
Company shall immediately notify the Underwriters when the Registration
Statement becomes effective.
If the Registration Statement is effective at the time of execution of
this Agreement, this Agreement shall become effective at the earlier of 11:00
a.m. St. Louis time, on the first full business day following the day on which
this Agreement is executed, or at such earlier time as the Representatives shall
release the Designated Preferred Securities for initial public offering. The
Representatives shall notify the Offerors immediately after they have taken any
action which causes this Agreement to become effective.
Until such time as this Agreement shall have become effective, it may
be terminated by the Offerors, by notifying you or by you, as the
Representatives of the several Underwriters, by notifying either Offeror, except
that the provisions of Sections 5 and 7 shall at all times be effective.
11. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY.
The representations, warranties, indemnities, agreements and other
statements of the Offerors and their officers and trustees set forth in or made
pursuant to this Agreement and the agreements of the Underwriters contained in
Section 7 hereof shall remain operative and in full force and effect regardless
of any investigation made by or on behalf of the Offerors or controlling persons
of either Offeror, or by or on behalf of the Underwriters or controlling persons
of the Underwriters and shall survive delivery of and payment for the Designated
Preferred Securities.
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 the Offerors shall be sent to Independent Bank
Corporation, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇
▇▇▇▇▇▇▇ (with a copy to Varnum, Riddering, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇) and
notices to the Underwriters shall be sent to ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company,
Incorporated, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇ (with a copy to ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇
▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇). In
all dealings with the Company under this Agreement, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company,
Incorporated shall act as representative of and on behalf of the several
Underwriters, and the Company shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of the Underwriters, made or
given by ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated on behalf of the Underwriters,
as if the same shall have been made or given in writing by the Underwriters.
13. PARTIES.
The Agreement herein set forth is made solely for the benefit of the
Underwriters and the Offerors and, to the extent expressed, directors, trustees
and officers of the Offerors, any person
36
controlling the Offerors or the Underwriters, and their respective successors
and assigns. No other person shall acquire or have any right under or by virtue
of this Agreement. The term "successors and assigns" shall not include any
purchaser, in his status as such purchaser, from the Underwriters of the
Designated Preferred Securities.
14. GOVERNING LAW.
This Agreement shall be governed by the laws of the State of Missouri,
without giving effect to the choice of law or conflicts of law principles
thereof.
15. AUTHORITY.
Any certificate signed by an authorized officer of the Company or the
Trust and delivered to either of the Representatives or to counsel for the
Underwriters pursuant to this Agreement shall be deemed a representation and
warranty by the Company and the Trust to the Underwriters as to the matters
covered thereby.
16. COUNTERPARTS.
This Agreement may be executed by facsimile and 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.
Signatures appear on the next page
37
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 among the Company, the Trust and you in
accordance with its terms.
Very truly yours,
INDEPENDENT BANK CORPORATION
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
IBC CAPITAL FINANCE II
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
38
CONFIRMED AND ACCEPTED,
as of the date first above written
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & COMPANY,
INCORPORATED
By: ______________________________________________
Name: ____________________________________________
Title: ___________________________________________
For itself and as co-representative of the several
Underwriters named in Schedule I hereto.
▇▇▇▇▇▇▇▇▇▇ & CO. INC.
By: ______________________________________________
Name: ____________________________________________
Title: ___________________________________________
For itself and as co-representative of the several
Underwriters named in Schedule I hereto.
▇▇▇▇ ▇▇▇▇▇▇ INVESTMENTS, INC.
By: ______________________________________________
Name: ____________________________________________
Title: ___________________________________________
For itself and as co-representative of the several
Underwriters named in Schedule I hereto.
RBC ▇▇▇▇ ▇▇▇▇▇▇▇▇ INC.
By: ______________________________________________
Name: ____________________________________________
Title: ___________________________________________
For itself and as co-representative of the several
Underwriters named in Schedule I hereto.
39
SCHEDULE I
UNDERWRITER NUMBER OF SECURITIES
-------------------------------------------------------------- --------------------
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated......................
▇▇▇▇▇▇▇▇▇▇ & Co. Inc..........................................
▇▇▇▇ ▇▇▇▇▇▇ Investments, Inc..................................
RBC ▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc.........................................
Total.........................................................
EXHIBIT A
LIST OF SUBSIDIARIES
IBC Capital Finance
IBC Capital Finance II
Independent Bank
IBC Financial Services, Inc.
First Home Financial
Independent Mortgage Company -- Central Michigan
Independent Bank West Michigan
IBC Financial Services West Michigan, Inc.
Independent Mortgage Company -- West Michigan
Independent Bank South Michigan
IBC Financial Services South Michigan, Inc.
Independent Mortgage Company -- South Michigan
Independent Bank East Michigan
IBC Financial Services East Michigan, Inc.
Independent Mortgage Company -- East Michigan
Independent Title Services, Inc. (a subsidiary of Independent Bank, Independent
Bank West Michigan, Independent Bank South Michigan and Independent Bank East
Michigan)