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EXHIBIT 1.1
1,200,000 Shares(1)
MERCANTILE BANK CORPORATION
COMMON STOCK
(no par value)
UNDERWRITING AGREEMENT
July __, 2001
STIFEL, NICOLAUS & COMPANY, INCORPORATED
as Representative of the Several Underwriters
named in Schedule I hereto
501 North Broadway, 9th Floor
St. Louis, Missouri 63102
Ladies and Gentlemen:
Mercantile Bank Corporation, a Michigan corporation (the "Company"),
proposes to issue and sell to the several underwriters listed on Schedule I
hereto (the "Underwriters"), pursuant to the terms of this Agreement, 1,200,000
shares of the Company's Common Stock, no par value (the "Common Stock"), the
terms of which are more fully described in the Prospectus (as hereinafter
defined). The aforementioned 1,200,000 shares of Common Stock to be sold to the
Underwriters are herein called the "Firm Shares." Solely for the purpose of
covering over-allotments in the sale of the Firm Shares, the Company further
proposes to issue and sell to the Underwriters, at their option, up to an
additional 180,000 shares of Common Stock (the "Option Shares") upon exercise of
the over-allotment option granted in Section 1 hereof. The Firm Shares and any
Option Shares are herein collectively referred to as the "Shares." You are
acting as representative of the Underwriters and in such capacity are sometimes
herein referred to as the "Representative."
The Company hereby confirms as follows its agreement with each of the
Underwriters in connection with the proposed purchase of the Shares.
1. SALE, PURCHASE AND DELIVERY OF SHARES; DESCRIPTION OF SHARES.
(a) On the basis of the representations, warranties and agreements
herein contained, and subject to the terms and conditions herein set forth, the
Company hereby agrees to issue and sell to each of the Underwriters and each of
the Underwriters agrees, severally and not jointly, to purchase from the
Company, at a purchase price of $[______] per share (the "Purchase Price"), the
respective number of Firm Shares set forth opposite the name of such Underwriter
in Schedule I hereto. In accordance with Section 9 hereof, the Representative
may by notice to the
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(1) Plus an option to purchase 180,000 shares from Mercantile Bank
Corporation to cover over-allotments.
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Company amend Schedule I to add, eliminate or substitute names set forth therein
(other than to eliminate the name of the Representative) and to amend the number
of Firm Shares to be purchased by any firm or corporation listed thereon,
provided that the total number of Firm Shares listed on Schedule I shall equal
1,200,000.
In addition, on the basis of the representations, warranties
and agreements herein contained and subject to the terms and conditions herein
set forth, the Company hereby grants to the Underwriters, severally and not
jointly, an option to purchase all or any portion of the 180,000 Option Shares,
and upon the exercise of such option in accordance with this Section 1, the
Company hereby agrees to issue and sell to the Underwriters, severally and not
jointly, all or any portion of the Option Shares at the same Purchase Price per
share paid for the Firm Shares. If any Option Shares are to be purchased, each
Underwriter, severally and not jointly, agrees to purchase from the Company that
proportion (subject to adjustment as you may determine to avoid fractional
shares) of the number of Option Shares to be purchased that the number of Firm
Shares 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 1,200,000. The
option hereby granted (the "Option") shall expire 30 days after the date upon
which the Registration Statement (as hereinafter defined) becomes effective and
may be exercised only for the purpose of covering over-allotments which may be
made in connection with the offering and distribution of the Firm Shares. The
Option may be exercised in whole or in part at any time (but not more than once)
by you giving notice (confirmed in writing) to the Company setting forth the
number of Option Shares as to which the Underwriters are exercising the Option
and the time, date and place for payment and delivery of the certificates for
such Option Shares. Such time and date of payment and delivery for the Option
Shares (the "Option Closing Date") shall be determined by you, but shall not be
earlier than two nor later than five full business days after the exercise of
such Option, nor in any event prior to the Closing Date (as hereinafter
defined). The Option Closing Date may be the same as the Closing Date.
Payment of the Purchase Price and delivery of the certificates
for the Firm Shares shall be made at the offices of Vedder, Price, Kaufman &
Kammholz, 222 North LaSalle Street, Suite 2600, Chicago, Illinois 60601, or such
other place as shall be agreed to by you and the Company, at 10:00 a.m., St.
Louis time, on __________, 2001, or at such other time not more than five full
business days thereafter as the Company and you shall determine (the "Closing
Date"). The Company shall deliver or cause to be delivered to you for the
account of the Underwriters the certificates for the Firm Shares against payment
to or upon the order of the Company of the Purchase Price by wire transfer or
certified or bank cashier's check, in same day funds for the Firm Shares. If the
Underwriters exercise the option to purchase any or all of the Option Shares,
payment of the Purchase Price and delivery of certificates for such Option
Shares shall be made on the Option Closing Date at the Underwriters' counsel's
offices, or at such other place as the Company and you shall determine. Such
payments shall be made to an account designated by the Company by wire transfer
or certified or bank cashier's check, in same day funds in the amount of the
Purchase Price therefor, against delivery by or on behalf of the Company to you
for the respective accounts of the several Underwriters of the certificates for
the Option Shares to be purchased by the Underwriters.
Certificates for Shares to be purchased by the Underwriters
shall be delivered in fully registered form in such authorized denominations and
registered in such names as you shall
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request in writing not later than 12:00 noon, St. Louis time, two business days
prior to the Closing Date and, if applicable, the Option Closing Date.
Certificates for Shares to be purchased by the Underwriters shall be made
available to you for inspection, checking and packaging at such office as you
may designate in writing not later than 1:00 p.m., St. Louis time, on the last
business day prior to the Closing Date and, if applicable, on the last business
day prior to the Option Closing Date.
Time shall be of the essence, and delivery of the certificates
for the Shares at the time and place specified pursuant to this Agreement is a
further condition of the obligations of each Underwriter hereunder.
2. REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to, and agrees with, each of the Underwriters that:
(i) The reports filed with the Securities and
Exchange Commission (the "Commission") by the Company under the
Securities Exchange Act of 1934, as amended (the "1934 Act") and the
rules and regulations thereunder (the "1934 Act Regulations") at the
time they were filed with the Commission, complied as to form in all
material respects with the requirements of the 1934 Act and the 1934
Act Regulations and did not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
in which they were made, not misleading.
(ii) The Company has prepared and filed with the
Commission a registration statement on Form S-2 (File Number 333-_____)
for the registration of the Shares under the Securities Act of 1933, as
amended (the "1933 Act"), including the related prospectus subject to
completion, and one or more amendments to such registration statement
may have been so filed, in each case in conformity in all material
respects with the requirements of the 1933 Act, and the rules and
regulations promulgated thereunder (the "1933 Act Regulations"). Copies
of such registration statement, including any amendments thereto, each
Preliminary Prospectus (as defined herein) contained therein and the
exhibits, financial statements and schedules to such registration
statement, as finally amended and revised, have heretofore been
delivered by the Company to the Representative. After the execution of
this Agreement, the Company will file with the Commission (A) if such
registration statement, as it may have been amended, has been declared
by the Commission to be effective under the 1933 Act, a prospectus in
the form most recently included in an amendment to such registration
statement (or, if no such amendment shall have been filed, in such
registration statement), with such changes or insertions as are
required by Rule 430A of the 1933 Act Regulations ("Rule 430A") or
permitted by Rule 424(b) of the 1933 Act Regulations ("Rule 424(b)")
and as have been provided to and not objected to by the Representative
prior to (or as are agreed to by the Representative subsequent to) the
execution of this Agreement, or (B) if such registration statement, as
it may have been amended, has not been declared by the Commission to be
effective under the 1933 Act, an amendment to such registration
statement, including a form of final prospectus, necessary to permit
such registration statement to become effective, a copy of which
amendment has been furnished to and not objected to by the
Representative prior to (or is agreed to by the
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Representative subsequent to) the execution of this Agreement. The
Company will not file any amendment to the Registration Statement or
any amended Preliminary Prospectus or any amendment thereto, of which
you have not been previously furnished a copy or to which you or
counsel for the Underwriters shall reasonably object. As used in this
Agreement, the term "Registration Statement" means such registration
statement, as amended at the time when it was or is declared effective
under the 1933 Act, including (1) all financial schedules and exhibits
thereto, (2) all documents (or portions thereof) incorporated by
reference therein filed under the 1934 Act, and (3) any information
omitted therefrom pursuant to Rule 430A and included in the Prospectus
(as hereinafter defined); the term "Preliminary Prospectus" means each
prospectus subject to completion filed with such registration
statement or any amendment thereto, including the prospectus subject
to completion, if any, included in the Registration Statement and each
prospectus filed pursuant to Rule 424(a) under the 1933 Act; and the
term "Prospectus" means the prospectus first filed with the Commission
pursuant to Rule 424(b)(1) or (4) or, if no prospectus is required to
be filed pursuant to Rule 424(b)(1) or (4), the prospectus included in
the Registration Statement, in each case including the financial
schedules and all documents (or portions thereof) incorporated by
reference therein under the 1934 Act. The date on which the
Registration Statement becomes effective is hereinafter referred to as
the "Effective Date."
(iii) The documents incorporated by reference in the
Preliminary Prospectus or Prospectus or from which information is so
incorporated by reference, when they became effective or were filed
with the Commission, as the case may be, complied with the requirements
of the 1934 Act and the 1934 Act Regulations and any future documents
incorporated by reference so filed, when they are filed, will comply
with the requirements of the 1934 Act and the 1934 Act Regulations; no
such incorporated document contained or will contain any untrue
statement of fact or omit to state any fact required to be stated
therein or necessary to make the statements therein not misleading, and
when read together and with the other information in the Preliminary
Prospectus or Prospectus, as the case may be, at the time the
Registration Statement became or becomes effective and at the Closing
Date and any Option Closing Date, did not or will not, as the case may
be, contain an untrue statement of fact or omit to state any fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
(iv) No order preventing or suspending the use of
any Prospectus (or, if the Prospectus is not in existence, the
Preliminary Prospectus) has been issued by the Commission, any state or
other jurisdiction or other regulatory body, nor has the Commission,
any state or other jurisdiction or other regulatory body, to the
knowledge of the Company, threatened to issue such an order or
instituted proceedings for that purpose. Each Preliminary Prospectus,
at the time of filing thereof, (A) complied in all material respects
with the requirements of the 1933 Act and the 1933 Act Regulations and
(B) did not contain an untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which
they were 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 Company by any of
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the Underwriters expressly for inclusion in the Prospectus beneath the
heading "Underwriting" (such information referred to herein as the
"Underwriters' Information"). Each Preliminary Prospectus and the
Prospectus will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval ("EDGAR") system, except to the
extent permitted by Regulation S-T.
(v) 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, and the 1933 Act Regulations 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 and at all times when the Prospectus
is required to be delivered in connection with offers and sales of
Shares, including, without limitation, the Closing Date and, if
applicable, the Option Closing Date, the Prospectus, as amended or
supplemented, (A) complied and will comply in all material respects
with the requirements of the 1933 Act and the 1933 Act Regulations and
(B) did not contain and will not contain an untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided,
however, that this representation and warranty does not apply to
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 EDGAR system, except to the extent permitted
by Regulation S-T.
(vi) The Company is duly organized, validly existing
and in good standing under the laws of the State of Michigan, with full
corporate and other power and authority to own, lease and operate its
properties and conduct its business as described in and contemplated by
the Registration Statement and the Prospectus (or, if the Prospectus is
not in existence, the 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").
(vii) The Company has three direct and indirect
subsidiaries, Mercantile Bank of West Michigan (the "Bank"), Mercantile
Bank Mortgage Company (the "Mortgage Company") and MBWM Capital Trust I
(the "Trust") (collectively, 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. The Bank is a bank duly organized, validly
existing and in good
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standing under the laws of the State of Michigan. The Mortgage Company
is duly organized, validly existing and in good standing as a
corporation under the laws of the State of Michigan. The Trust is duly
organized, validly existing and in good standing as a business trust
under the laws of the State of Delaware. Each such Subsidiary has full
corporate and other power and authority to own, lease and operate its
properties and to conduct its business as described in and contemplated
by the Registration Statement and the Prospectus (or, if the Prospectus
is not in existence, the most recent Preliminary Prospectus) and as
currently being conducted. The deposit accounts of the Bank are insured
by the Bank Insurance Fund administered by the Federal Deposit
Insurance Corporation (the "FDIC") up to the maximum amount provided by
law; and no proceedings for the modification, termination or revocation
of any such insurance are pending or, to the knowledge of the Company,
threatened.
(viii) The Company and the Bank maintain insurance of
the types and in the amounts required by the rules and regulations of
the FRB and the Michigan bank regulators and, to the best knowledge of
the Company, consistent with insurance coverage maintained by similar
companies and businesses, all of which insurance is in full force and
effect.
(ix) The Company and each of the Subsidiaries is
duly qualified to transact business as a foreign corporation, bank or
business 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 except where the failure
to so qualify would, individually or in the aggregate, 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. All of the issued
and outstanding shares of capital stock or equity securities, as the
case may be, of the Subsidiaries (A) have been duly authorized and are
validly issued, (B) are fully paid and nonassessable except to the
extent such shares or interests may be deemed assessable under 12
U.S.C. Section 1831o or under applicable state banking laws, and (C)
except as disclosed in the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus), 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.
(x) The capital stock of the Company conforms to
the description thereof contained in the Prospectus (or, if the
Prospectus is not in existence, the Preliminary Prospectus). The
outstanding shares of capital stock of the Company have been duly
authorized and validly issued and are fully paid and nonassessable and
no such shares were issued in violation of the preemptive or similar
rights of any security holder of the Company. No person has any
preemptive or similar right to purchase any shares of capital stock of
the Company. Except in each case as disclosed in the Prospectus (or, if
the Prospectus is not in existence, the Preliminary Prospectus) or
issued or issuable pursuant to compensatory plans or other programs
disclosed in the Prospectus (or, if the Prospectus is not in existence,
the Preliminary Prospectus), there are no outstanding rights, options
or warrants to acquire any capital stock, equity securities or other
ownership interests of the Company or the Subsidiaries, and there are
no outstanding
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instruments or securities convertible into or exchangeable for any
capital stock, equity securities or other ownership interests of the
Company or the Subsidiaries and no restrictions upon the voting or
transfer of any capital stock of the Company pursuant to the Company's
Articles of Incorporation or bylaws or any agreement or other
instrument to which the Company is a party or by which the Company is
bound.
(xi) The Company has all requisite power and
authority to issue, sell and deliver the Shares in accordance with and
upon the terms and conditions set forth in this Agreement, the
Registration Statement and the Prospectus (or, if the Prospectus is not
in existence, the Preliminary Prospectus). All corporate action
required to be taken by the Company for the authorization, issuance,
sale and delivery of the Shares in accordance with such terms and
conditions has been validly and sufficiently taken. The Shares, when
delivered and paid for in accordance with this Agreement, will be duly
and validly issued and outstanding, fully paid and nonassessable, will
not be issued in violation of or subject to any preemptive or similar
rights, and will conform to the description thereof in the Registration
Statement and the Prospectus (or, if the Prospectus is not in
existence, the Preliminary Prospectus). None of the Shares, immediately
prior to delivery, will be subject to any security interest, lien,
mortgage, pledge, encumbrance, restriction upon voting or transfer,
preemptive rights, claim, equity or other defect.
(xii) The Company and the Subsidiaries have complied
in all material respects 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, the Preliminary Prospectus) and as currently being
conducted, except in each case where any such noncompliance would not
have a material adverse effect on the condition (financial or
otherwise), earnings, affairs, business, prospects, or results of
operations of the Company and the 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. Neither the Company nor any Subsidiary is
subject to a directive from the Commission, the FDIC, the FRB, Michigan
Bank Regulators or any other governmental authority to make any
material changes in the method of conducting its business and no such
directive is pending or threatened by such authorities. The Company
knows of no material spill, discharge, leak, emission, ejection,
escape, dumping or release of any kind onto the properties owned by the
Company or into the environment surrounding those properties, of any
toxic or hazardous substances as defined under any federal, state or
local regulations, laws or statutes, except for those releases
permissible under such regulations, laws or statutes or otherwise
allowable under applicable permits and except for such releases which
would not have a material adverse effect on the condition (financial or
otherwise), earnings, affairs, business, prospects or results of
operations of the Company and the Subsidiaries on a consolidated basis.
(xiii) The Company and the Subsidiaries have all
material permits, easements, consents, licenses, franchises and other
governmental and regulatory authorizations from all appropriate
federal, state, local or other public authorities
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("Permits") as are necessary to own and lease their properties and
conduct their businesses in the manner described in and contemplated by
the Registration Statement and the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus) and as
currently being conducted in all material respects. All such Permits
are in full force and effect and each of the Company and the
Subsidiaries are in all material respects complying therewith, and no
event has occurred that allows, or after notice or lapse of time would
allow, revocation or termination thereof or will result in any other
material impairment of the rights of the holder of any such Permit,
subject in each case to such qualification as may be adequately
disclosed in the Prospectus (or, if the Prospectus is not in existence,
the Preliminary Prospectus). Such Permits contain no restrictions that
would materially impair the ability of the Company or the Subsidiaries
to conduct their businesses in the manner consistent with their past
practices. Neither the Company nor the Subsidiaries has received notice
or otherwise has knowledge of any proceeding or action relating to the
revocation or modification of any such Permit.
(xiv) Neither the Company nor any of the Subsidiaries
is in breach or violation of their corporate charter, by-laws or other
governing documents in any material respect. Neither the Company, nor
any of the Subsidiaries, and to the knowledge of the Company no other
party is, in violation, breach or default (with or without notice or
lapse of time or both) in the performance or observance of any term,
covenant, agreement, obligation, representation, warranty or condition
contained in (A) any contract, indenture, mortgage, deed of trust, loan
or credit agreement, note, lease, franchise, license, Permit or any
other agreement or instrument to which it is a party or by which it or
any of its properties may be bound, which such breach, violation or
default could have 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 Company, no other party
has asserted that the Company or any of the Subsidiaries is in such
violation, breach or default (provided that the foregoing shall not
apply to defaults by borrowers from the Bank), or (B) except as
disclosed in the Prospectus (or, if the Prospectus is not in existence,
the Preliminary Prospectus), any order, decree, judgment, rule or
regulation of any court, arbitrator, government, or governmental agency
or instrumentality, domestic or foreign, having jurisdiction over the
Company or the Subsidiaries or any of their respective properties the
breach, violation or default of which could have a material adverse
effect on the condition (financial or otherwise), earnings, affairs,
business, prospects, or results of operations of the Company and the
Subsidiaries on a consolidated basis.
(xv) The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated herein
and in the Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, the Preliminary Prospectus) do not and
will not conflict with, result in the creation or imposition of any
material lien, claim, charge, encumbrance or restriction upon any
property or assets of the Company or the Subsidiaries or the Shares
pursuant to, constitute a breach or violation of, or constitute a
default under, with or without notice or lapse of time or both, any of
the terms, provisions or conditions of the charter or by-laws of the
Company or the Subsidiaries, any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, lease, franchise, license,
Permit or any other agreement or instrument to which the
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Company or the Subsidiaries is a party or by which any of them or any
of their respective properties may be bound or any order, decree,
judgment, rule or regulation of any court, arbitrator, government, or
governmental agency or instrumentality, domestic or foreign, having
jurisdiction over the Company or the Subsidiaries or any of their
respective properties which conflict, creation, imposition, breach,
violation or default would have either singly or in the aggregate a
material adverse effect on the condition (financial or otherwise),
earnings, affairs, business, prospects, or results of operations of the
Company 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 Registration Statement
and the Prospectus (or the Preliminary Prospectus), except such as have
been obtained under the 1933 Act and from The Nasdaq Stock Market
relating to the listing of the Shares, and such as may be required
under state securities laws or Interpretations or Rules of the National
Association of Securities Dealers, Inc. ("NASD") in connection with the
purchase and distribution of the Shares by the Underwriters.
(xvi) The Company has all requisite corporate power
and authority to enter into this Agreement and this Agreement has been
duly and validly authorized, executed and delivered by the Company and
constitutes the legal, valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, except as
the enforcement thereof may be limited by general principles of equity
and by bankruptcy or other laws relating to or affecting creditors'
rights generally and except as any indemnification or contribution
provisions thereof may be limited under applicable securities laws.
(xvii) The Company and the Subsidiaries have good
and marketable title in fee simple to all real property and good title
to all personal property owned by them and material to their business,
in each case free and clear of all security interests, liens,
mortgages, pledges, encumbrances, restrictions, claims, equities and
other defects except such as are referred to in the Prospectus (or, if
the Prospectus is not in existence, the 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
and the Subsidiaries hold real or personal property are valid, existing
and enforceable leases and in full force and effect with such
exceptions as are not material and do not materially interfere with the
use made or proposed to be made of such real or personal property, and
neither the Company nor any of the Subsidiaries is in default in any
material respect of any of the material terms or provisions of any such
leases.
(xviii) Crowe, Chizek and Company LLP, who have
certified certain of the consolidated financial statements of the
Company and the Subsidiaries including the notes thereto, included in
the Registration Statement and Prospectus, are independent certified
public accountants within the meaning of the Code of Professional
Conduct of the American Institute of Certified Public Accountants and
are independent public accountants with respect to the Company and the
Subsidiaries, as required by the 1933 Act and the 1933 Act Regulations.
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(xix) The consolidated financial statements
including the notes thereto, included in the Registration Statement and
the Prospectus (or, if the Prospectus is not in existence, the
Preliminary Prospectus) with respect to the Company and the
Subsidiaries comply in all material respects with the 1933 Act and the
1933 Act Regulations and present fairly the consolidated financial
position of the Company and the Subsidiaries as of the dates indicated
and the consolidated results of 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 such Preliminary Prospectus) comply in all material respects with
the 1933 Act and the 1933 Act Regulations, present fairly the
information set forth therein, and have been compiled on a basis
consistent with that of the consolidated financial statements of the
Company and the Subsidiaries in the Registration Statement and the
Prospectus (or such Preliminary Prospectus). The other financial,
statistical and numerical information included in the Registration
Statement and the Prospectus (or such Preliminary Prospectus) are
accurate in all material respects, comply in all material respects with
the 1933 Act and the 1933 Act Regulations, present fairly the
information shown therein, and to the extent applicable have been
compiled on a basis consistent with the consolidated financial
statements of the Company and the Subsidiaries included in the
Registration Statement and the Prospectus (or such Preliminary
Prospectus).
(xx) The Company and the Bank make and keep
accurate books and records reflecting their respective assets and
maintain internal accounting controls which provide reasonable
assurance that (i) transactions are executed with management's
authorization; (ii) transactions are recorded as necessary to permit
preparation of the Company's consolidated financial statements and to
maintain accountability for the assets of the Company and the
Subsidiaries; (iii) access to the assets of the Company and the
Subsidiaries is permitted only in accordance with management's
authorization; and (iv) the reported accountability of the assets of
the Company and the Subsidiaries is compared with existing assets at
reasonable intervals.
(xxi) The Company and the Bank maintain insurance of
the types and in the amounts required by rules and regulations of FRB
and the Michigan Bank Regulators and, to the best knowledge of the
Company, consistent with insurance coverage maintained by similar
companies and businesses, all of which insurance is in full force and
effect.
(xxii) Since the respective dates as of which
information is given in the Registration Statement and the Prospectus
(or, if the Prospectus is not in existence, the Preliminary
Prospectus), except as otherwise stated therein:
(A) neither the Company nor the Subsidiaries has
sustained any loss or interference with its business from
fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or
governmental action, order or decree which is material to the
condition (financial
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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 the Company nor 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 is material 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) the Company has not declared or paid any
cash dividend, and neither the Company nor 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 Company 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 or such Prospectus as
fairly and accurately summarized therein.
(xxiii) Except as set forth in the Registration
Statement and the Prospectus (or, if the Prospectus is not in
existence, the Preliminary Prospectus), no charge, investigation,
action, suit or proceeding is pending or, to the knowledge of the
Company, threatened, against or affecting the Company 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 Company and the Subsidiaries
on a consolidated basis or which is required to be disclosed in the
Registration Statement or the Prospectus (or such Preliminary
Prospectus) and is not so disclosed.
(xxiv) 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 which have not been filed as
exhibits or incorporated by reference to the Registration Statement,
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or that are required to be summarized in the Prospectus (or, if the
Prospectus is not in existence, the Preliminary Prospectus) that are
not so summarized.
(xxv) The Company has not taken, directly or
indirectly, any action designed to result in or which has constituted
or which might reasonably be expected to cause or result in
stabilization or manipulation of the price of any security of the
Company in connection with the sale or resale of the Shares in
violation of the Commission's rules and regulations, including, but not
limited to, Regulation M, and the Company is not aware of any such
action taken or to be taken by any affiliate of the Company.
(xxvi) The Company and the Subsidiaries own, or
possess adequate rights to use, all patents, copyrights, trademarks,
service marks, trade names and other rights necessary to conduct the
businesses now conducted by them in all material respects or as
described in the Prospectus (or, if the Prospectus is not in existence,
the Preliminary Prospectus) and neither the Company nor any of the
Subsidiaries has received any notice of infringement or conflict with
asserted rights of others with respect to any patents, copyrights,
trademarks, service marks, trade names or other rights which,
individually or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would have a material adverse effect on
the condition (financial or otherwise), earnings, affairs, business,
prospects, or results of operations of the Company and the Subsidiaries
on a consolidated basis, and the Company does not know of any basis for
any such infringement or conflict.
(xxvii) Except as adequately disclosed in the
Prospectus (or, if the Prospectus is not in existence, the Preliminary
Prospectus), no labor dispute involving the Company or the Subsidiaries
exists or, to the knowledge of the Company, is imminent which might be
expected to have a material adverse effect on the condition (financial
or otherwise), earnings, affairs, business, prospects, or results of
operations of the 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, 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 might be expected
to have a material adverse effect on the condition (financial or
otherwise), earnings, affairs, business, prospects, or results of
operations of the Company and the Subsidiaries on a consolidated basis.
(xxviii) The Company 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 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 Company has no knowledge of
any tax deficiency which has been or might be assessed against the
Company or the Subsidiaries which, if the subject of an unfavorable
decision, ruling or finding, would have a material
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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.
(xxix) Each of the material contracts, agreements
and instruments listed, described, or 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 is in full force and
effect and is the legal, valid and binding agreement of the Company or
the Subsidiaries, enforceable against the Company or the respective
Subsidiary, as the case may be, 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/or subject to bankruptcy, insolvency, reorganization or other
similar laws relating to or affecting the rights of creditors' rights
generally and, in the case of the Bank, by the provisions of the
Federal Deposit Insurance Act ("FDIA") affecting the rights of
creditors of depository institutions the deposits of which are insured
by the FDIC. Except as disclosed in the Prospectus (or such Preliminary
Prospectus), to the knowledge of the Company, no other party to any
such agreement is (with or without notice or lapse of time or both) in
breach or default in any material respect thereunder.
(xxx) 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, the Preliminary
Prospectus) which is not adequately described therein.
(xxxi) No person has the right to request or
require the Company 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 Shares, except as adequately disclosed in the Registration
Statement and the Prospectus (or, if the Prospectus is not in
existence, the Preliminary Prospectus).
(xxxii) The Shares have been approved for quotation
on The Nasdaq National Market subject to official notice of issuance.
(xxxiii) Except as described in or contemplated by
the Prospectus (or, if the Prospectus is not in existence, 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 its property
or assets to the Company.
(xxxiv) The Company is not an "investment company,"
or an entity "controlled" by an "investment company" within the meaning
of the Investment Company Act of 1940, as amended (the "Investment
Company Act").
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(xxxv) The Company has not distributed and will
not distribute prior to the Closing Date any prospectus in connection
with the offering of the Shares, other than a Preliminary Prospectus,
the Prospectus, the Registration Statement and the other materials
permitted by the 1933 Act and the 1933 Act Regulations and reviewed by
or on behalf of the Representative.
(xxxvi) 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, if any (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 would not, in the
aggregate, have a material adverse effect upon the condition (financial
or otherwise), earnings, affairs, business, prospects, or results of
operations of the Company and the Subsidiaries on a consolidated
basis). No reportable event under Section 4043(c) of ERISA has occurred
with respect to any Employee Plan of the Company or the Subsidiaries
for which the reporting requirements have not been waived by the
Pension Benefit Guaranty Corporation. 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. There are no pending or, to the knowledge of the Company,
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.
(xxxvii) 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
herein.
(xxxviii) No report or application filed by the
Company or any of the Subsidiaries with the Commission, the FRB,
Michigan Bank Regulators or any other state or federal regulatory
authority, as of the date it was filed or amended, contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading when made or failed to comply in all material
respects with the applicable requirements of the FRB, the Commission or
any other state or federal regulatory authority, as the case may be.
(xxxix) None of the Company, the Subsidiaries or,
to the best knowledge of the Company, any other person associated with
or acting on behalf of the Company or 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 Company or Subsidiary (i) used any corporate
funds for unlawful
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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 persons charged
with similar public or quasi-public duties, other than payments
required or permitted by the laws of the United States or any
jurisdiction thereof or to foreign or domestic political parties or
campaigns from corporate funds, or failed to disclose fully any
contribution in violation of law; (iii) violated any provision of the
Foreign Corrupt Practices Act of 1977, as amended; or (iv) made any
other payment of funds of the Company 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.
(xl) Except as described in the Registration
Statement and the Prospectus (or, if the Prospectus is not in
existence, the Preliminary Prospectus), there is no factual basis for
any action, suit or other proceeding involving the Company nor the
Subsidiaries or any of their material assets for any failure of the
Company or any of the Subsidiaries, or any predecessor thereof, to
comply with any requirements of federal, state or local regulation
relating to air, water, solid waste management, hazardous or toxic
substances, or the protection of health or the environment; except
where such action, suit or other proceeding would not have a material
adverse effect on the condition (financial or otherwise), earnings,
affairs, business, prospects, or results of operations of the Company
and the Subsidiaries on a consolidated basis. Except as described in
the Registration Statement and the Prospectus (or, if the Prospectus is
not in existence, the Preliminary Prospectus) or as would not have a
material adverse effect on the condition (financial or otherwise),
earnings, affairs, business, prospects, or results of operations of the
Company and the Subsidiaries on a consolidated basis, none of the
property owned or leased by the Company, any of the Subsidiaries or the
Partnership is contaminated with any waste or hazardous substances, and
neither the Company nor any of the Subsidiaries may be deemed an "owner
or operator" of a "facility" or "vessel" which owns, possesses,
transports, generates or disposes of a "hazardous substance" as those
terms are defined in ss.9601 of the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, 42 U.S.C. ss.9601 et
seq.
(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 Bank of a controlling interest in
either 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 (or if
the Prospectus is not in existence, the Preliminary Prospectus).
3. OFFERING BY THE UNDERWRITERS. After the Registration Statement
becomes effective or, if the Registration Statement is already effective, after
this Agreement becomes effective, the Underwriters propose to offer the Firm
Shares for sale to the public upon the terms and conditions set forth in the
Prospectus. The Underwriters may from time to time thereafter
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16
reduce the public offering price and change the other selling terms, provided
the proceeds to the Company shall not be reduced as a result of such reduction
or change.
The Underwriters may reserve and sell such of the Shares 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 COMPANY. The Company covenants with the
Underwriters as follows:
(a) The Company shall use its 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
Company 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
Representative of such timely filing.
(b) The Company 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 relating in any way to the Registration Statement, any
Preliminary Prospectus and the Prospectus;
(iii) of any request of the Commission to amend or supplement
the Registration Statement, any Preliminary Prospectus or the
Prospectus or for additional information; and
(iv) of the issuance by the Commission or any state or other
regulatory body of any stop order or other order suspending the
effectiveness of the Registration Statement, preventing or suspending
the use of any Preliminary Prospectus or the Prospectus, or suspending
the qualification of any of the Shares for offering or sale in any
jurisdiction or the institution or threat of institution of any
proceedings for any of such purposes. The Company shall use its 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 Company 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
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(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 Company shall comply to the best of its ability with the 1933
Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act Regulations
so as to permit the completion of the distribution of the Shares as contemplated
herein and in the Prospectus. The Company shall not file any amendment to the
Registration Statement and shall not 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 Shares, the Company shall forthwith amend or supplement the Registration
Statement or the Prospectus, as the case may be, by preparing and filing with
the Commission (provided the Underwriters or counsel for the Underwriters 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
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 Company 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 light of the circumstances under
which they were made, not misleading.
(e) The Company shall cooperate with you and counsel for the
Underwriters in order to qualify the Shares for offering and sale under the
securities or blue sky laws, if required, of such jurisdictions as you may
reasonably request and shall continue such qualifications in effect so long as
may be advisable for distribution of the Shares; provided, however, that the
Company shall not be required to qualify to do business as a foreign corporation
or file a general consent to service of process in any jurisdiction in
connection with the foregoing. The Company shall file such statements and
reports as may be required by the laws of each jurisdiction in which the Shares
have been qualified as above. The Company will notify you immediately of, and
confirm in writing, the suspension of qualification of the Shares or threat
thereof in any jurisdiction.
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(f) The Company 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 Company in
reasonable detail, covering a period of at least 12 consecutive months beginning
after the effective date of the Registration Statement, conforming with the
requirements of Section 11(a) of the 1933 Act and Rule 158.
(g) The Company shall use the net proceeds from the sale of the Shares
to be sold by the Company hereunder in the manner specified in the Prospectus
under the caption "Use of Proceeds."
(h) For five years from the Effective Date, the Company shall furnish
to the Representative copies of all reports and communications (financial or
otherwise) furnished by the Company to the holders of the Shares as a class,
copies of all reports and financial statements filed with or furnished to the
Commission (other than portions for which confidential treatment has been
obtained from the Commission) or with any national securities exchange or The
Nasdaq Stock Market or other self-regulatory organization and such other
documents, reports and information concerning the business and financial
conditions of the Company as the Representative may reasonably request, other
than such documents, reports and information for which the Company has the legal
obligation not to reveal to the Representative.
(i) For a period of 90 days from the Effective Date, the Company shall
not, directly or indirectly, offer for sale, sell or agree to sell or otherwise
dispose of any Shares (other than pursuant to this Agreement) or any securities
of the Company that are substantially similar to the Shares, including any
guarantee of such beneficial interests or substantially similar securities, or
securities convertible into, exercisable or exchangeable for, or are the voting
equivalent of, the Shares or that represent the right to receive any such
beneficial interest or substantially similar securities, without your prior
written consent.
(j) The Company shall use its best efforts to obtain approval for the
inclusion of the Shares on The Nasdaq National Market, or in lieu thereof on a
national securities exchange, and to remain so quoted for at least five years
from the Effective Date or for such shorter period as may be specified in a
written consent of the Representative.
(k) The Company will promptly provide you with copies of all
correspondence to and from, and all documents issued to and by, the Commission
in connection with the registration of the Shares under the 1933 Act or relating
to any documents incorporated by reference into the Registration Statement or
the Prospectus.
(l) Subsequent to the date of this Agreement and through the date which
is the later of (i) the day following the date on which the Underwriters' option
to purchase the Option Shares shall expire or (ii) the day following the Option
Closing Date with respect to any Option Shares that the Underwriters shall elect
to purchase, except as described in or contemplated by the Prospectus, neither
the Company nor any of the Subsidiaries shall take any action (or refrain from
taking any action) which will result in the Company 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
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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 Company and the
Subsidiaries on a consolidated basis.
(m) The Company shall not, for a period of 180 days after the date
hereof, without the prior written consent of the Representative, 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 Company's securities.
(n) The Company shall not take, directly or indirectly, any action
designed to result in or which constitutes or which might reasonably be expected
to (i) cause or result in stabilization or manipulation of the price of any
security of the Company in connection with the sale or resale of the Shares or
(ii) otherwise violate the Commission's Regulation M, and the Company is not
aware of any such action taken or to be taken by any affiliate of the Company.
(o) Prior to the Closing Date (and, if applicable, the Option Closing
Date), the Company will not issue any press release or other communication
directly or indirectly or hold any press conference with respect to the Company,
the Subsidiaries or the offering of the Shares without your prior written
consent.
(p) The Company and the Subsidiaries shall conduct their businesses in
compliance with all applicable federal and state laws, rules, regulations,
decisions, directives and orders (including, without limitation, the applicable
provisions of the 1933 Act, the 1933 Act Regulations, the 1934 Act, the 1934 Act
Regulations, the BHC Act, the Federal Deposit Insurance Corporation Improvement
Act, the FRB and the corporate and banking laws of the State of Michigan, as
applicable).
(q) The Company and the Subsidiaries will maintain and keep accurate
books and records reflecting their assets and maintain internal accounting
controls which provide reasonable assurance that (1) transactions are executed
in accordance with management's authorization, (2) transactions are recorded as
necessary to permit the preparation of the Company's consolidated financial
statements and to maintain accountability for the assets of the Company and its
Subsidiaries, and (3) access to the assets of the Company and its Subsidiaries
is permitted.
5. PAYMENT OF EXPENSES. Whether or not this Agreement is terminated or
the sale of the Shares 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 its obligations under this
Agreement, including:
(a) the preparation, printing, filing, delivery and shipping of the
initial registration statement, the Preliminary Prospectus or Prospectuses, the
Registration Statement and the Prospectus and any amendments or supplements
thereto, and the printing, delivery and shipping of this Agreement and any other
underwriting documents (including, without limitation, underwriters'
questionnaires, underwriters' powers of attorney, agreements among underwriters
and selected dealers agreements);
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(b) all fees, expenses and disbursements of the Company's counsel and
accountants;
(c) all fees and expenses incurred in connection with the qualification
of the Shares under the securities or blue sky laws of such jurisdictions as you
may request, including all filing fees, if any, and fees and disbursements of
counsel for the Underwriters in connection therewith, including, without
limitation, in connection with the preparation of the Preliminary and Final Blue
Sky Memoranda and any legal investment surveys and any supplements thereto;
(d) all fees and expenses incurred in connection with filings made with
the NASD;
(e) any applicable fees and other expenses incurred in connection with
the inclusion of the Shares in The Nasdaq National Market;
(f) the cost of furnishing to you copies of the initial registration
statements, any Preliminary Prospectus, the Registration Statement and the
Prospectus and all amendments or supplements thereto;
(g) the costs and charges of any transfer agent or registrar and the
fees and disbursements of counsel for any transfer agent or registrar;
(h) all costs and expenses (including stock transfer taxes) incurred in
connection with the printing, issuance and delivery of the Shares to the
Underwriters;
(i) all other costs and expenses incident to the performance of the
obligations of the Company hereunder that are not otherwise specifically
provided for in this Section 5.
If the sale of Shares 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 of the Shares or the
contents of the Registration Statement, any investigation of the Company and the
Subsidiaries or any preparation for the marketing, purchase, sale or delivery of
the Shares, in each case following presentation of reasonably detailed invoices
therefor.
If the sale of Shares contemplated by this Agreement is completed, the
Company shall not be responsible for payment of fees or disbursements of counsel
for the 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 Shares and, following exercise of
the option granted by the Company in Section 1 of this Agreement, the Option
Shares, are subject, in your sole discretion, to the accuracy of and compliance
with the representations and warranties and agreements of the Company herein as
of the date hereof and as of the Closing Date (or in the
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case of the Option Shares, if any, as of the Option Closing Date), to the
accuracy of the written statements of the Company made pursuant to the
provisions hereof, to the performance by the Company of its covenants and
obligations hereunder and to the following additional conditions:
(a) If the Registration Statement or any amendment thereto filed prior
to the Closing Date has not been declared effective prior to the time of
execution hereof, the Registration Statement shall become effective not later
than 10:00 a.m., St. Louis time, on the first business day following the time of
execution of this Agreement, or at such later time and date as you may agree to
in writing. If required, the Prospectus and any amendment or supplement thereto
shall have been timely filed in accordance with Rule 424(b) and Rule 430A under
the 1933 Act and Section 4(a) hereof. No stop order suspending the effectiveness
of the Registration Statement or any amendment or supplement thereto shall have
been issued under the 1933 Act or any applicable state securities laws and no
proceedings for that purpose shall have been instituted or shall be pending, or,
to the knowledge of the Company or the Underwriters, 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 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 and the Shares, and the
authorization and form of the Registration Statement and Prospectus, other than
financial statements and other financial data, and all other legal matters
relating to this Agreement and the transactions contemplated hereby shall be
satisfactory in all material respects to counsel for the Underwriters, and the
Company 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) Dickinson Wright PLLC, counsel for the Company, shall have
furnished to you their signed opinion, dated the Closing Date or the Option
Closing Date, as the case may be, in form and substance satisfactory to 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. Each of the
Subsidiaries is validly existing and in good standing under the laws of its
jurisdiction of incorporation or organization. To the best of such
counsel's knowledge and information after due inquiry, the Subsidiaries are
not required to be authorized to do business in any other jurisdiction.
Each of the Company and the Subsidiaries has full corporate power and
authority to own or lease its properties and to conduct its business as
such business is described in the
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Prospectus. To the best of such counsel's knowledge, all outstanding shares
of capital stock of the Bank and the Mortgage Company 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
1831o or Sections 77 and 201 of the Michigan Banking Code, and, to the best
of such counsel's knowledge, except as disclosed in the Prospectus, there
are no outstanding rights, options or warrants to purchase any such shares
or securities convertible into or exchangeable for any such shares.
(ii) The capital stock of the Company conforms to the
description thereof contained in the Prospectus in all material respects.
To the best of such counsel's knowledge, the equity capitalization of the
Company as of June 30, 2001 is as set forth under the caption
"Capitalization" in the Prospectus, and the outstanding capital stock of
the Company has been duly authorized and validly issued, and is fully paid
and nonassessable and is not in violation of or subject to any other rights
to subscribe for or purchase any securities. The form of certificates to
evidence the Shares has been approved by the Company and is in due and
proper form and complies with all applicable requirements. To the best of
such counsel's knowledge, there are no outstanding rights, options or
warrants to purchase, no other outstanding securities convertible into or
exchangeable for, and no commitments, plans or arrangements to issue, any
shares of capital stock of the Company except as described in the
Prospectus.
(iii) All necessary corporate action required to be taken by
the Company for the authorization, issuance, sale and delivery of the
Shares in accordance with the terms and conditions set forth in this
Agreement have been duly authorized, validly and sufficiently taken. The
Shares have been duly and validly authorized, and when issued and sold in
accordance with this Agreement, the Shares will be fully paid and
nonassessable. The Shares have been approved for quotation on The Nasdaq
National Market subject to official notice of issuance. There are no
preemptive or other rights to subscribe for or to purchase, and other than
as disclosed in the Prospectus no restrictions upon the voting or transfer
of, any shares of capital stock or equity securities of the Company or the
Subsidiaries pursuant to the corporate charter, by-laws or other governing
documents of the Company or the Subsidiaries, or, to the best of such
counsel's knowledge, any agreement or other instrument to which either
Company or any of the Subsidiaries is a party or by which either Company or
any of the Subsidiaries may be bound.
(iv) The Company has all requisite corporate power to enter
into and perform its obligations under this Agreement, and this Agreement
has been duly and validly authorized, executed and delivered by the Company
and constitutes the legal, valid and binding obligation of the Company
enforceable against the Company 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 of 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.
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(v) To the best of such counsel's knowledge, neither the
Company 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 to the extent, in each
case, that any violation, conflict or default would reasonable be expected
to have a material adverse effect on the Company and the Subsidiaries taken
as a whole. The execution, delivery and performance by the Company of this
Agreement and the consummation of the transactions contemplated by this
Agreement, (A) do not violate or conflict with their respective organic
documents, and (B) to the best of such counsel's knowledge, do not conflict
with, or constitute a material default or result in the imposition of any
material lien, charge, encumbrance or restriction upon any property or
assets of the Company 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 material contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease, or other
agreement to which the Company or any Subsidiary is a party or by which any
of them or any of their respective properties may be bound, or, to the best
of such counsel's knowledge, any order, decree, judgment, rule or
regulation of any court, arbitrator, government, or governmental agency or
instrumentality, domestic or foreign, known to such counsel having
jurisdiction over the Company or the Subsidiaries or any of their
respective properties, to the extent, in each case, that any such
violation, conflict, default or lien would reasonably be expected to have a
material adverse effect on the Company and the Subsidiaries taken as a
whole.
(vi) To the best of such counsel's knowledge, holders of
securities of the Company either do not have any right that, if exercised,
would require the Company to cause such securities to be included in the
Registration Statement or have waived such right. To the best of such
counsel's knowledge, neither the Company nor any of the Subsidiaries is a
party to any agreement or other instrument which grants rights for or
relating to the registration of any securities of the Company.
(vii) Except as set forth in the Registration Statement and
the Prospectus, to the best of such counsel's knowledge, (i) no action,
suit or proceeding at law or in equity is pending or threatened in writing
to which the Company or the Subsidiaries is or is threatened to be made a
party, and (ii) no action, suit or proceeding is pending or threatened in
writing against or affecting the Company 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 Shares as
contemplated herein or 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 Registration Statement or the Prospectus and is not so
disclosed.
(viii) No authorization, approval, consent or order of or
filing, registration or qualification with, any person, court, governmental
body or authority is required in connection with the transactions
contemplated by this Agreement, the Registration Statement and the
Prospectus, except such as have been obtained under the
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1933 Act, the Securities Exchange Act of 1934, state securities laws, and
except such as may be required under Interpretations or Rules of the NASD,
in connection with the purchase and distribution of the Shares by the
Underwriters and from the Nasdaq National Market relating to the listing of
the Shares.
(ix) 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 or issuance; the conditions for use of Form S-2 have been
satisfied and, as of the date they were filed with the Commission, the
documents incorporated by reference into the Prospectus complied as to form
in all material respects with the requirements of the 1934 Act and the 1934
Act Regulations.
(x) 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.
(xi) The statements under the captions "Capitalization,"
"Business -- Regulation and Supervision" and "Description of Capital Stock"
in 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 purported to be summarized therein in
all material respects and fairly present the information called for with
respect to such legal matters, documents and instruments.
(xii) 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.
(xiii) Except as described in or contemplated by 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 (A) the Company or the
Bank to pay dividends or make any other distributions on its capital stock
or to pay indebtedness owed to the Company, (B) the Subsidiaries to make
any loans or advances to, or investments in, the Company or (C) the
Subsidiaries to transfer any of their property or assets to the Company.
(xiv) The Company is not and, after giving effect to the
offering and sale of the Shares and the application of the proceeds thereof
as described in the Prospectus, the Company will not be, an "investment
company," or an entity "controlled" by an "investment company" as defined
in the Investment Company Act.
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(xv) To the best of such counsel's knowledge, (A) the
respective businesses and operations of the Company and the
Subsidiaries as described in the Prospectus comply in all material
respects with the requirements of the BHC Act, the Federal Deposit
Insurance Act, and the Michigan Banking Code, and all rules and
regulations respectively promulgated under each such statute
(collectively "Banking Laws"), except in those instances where
non-compliance would not reasonably be expected to materially impair
the ability of the Company and the Subsidiaries to conduct their
businesses; and (B) the Company and the Subsidiaries possess and are
operating in all material respects in compliance with the terms,
provisions and conditions of all Permits (as defined herein) that are
required under Banking Laws to conduct their businesses as described in
the Prospectus and which are material to the Company and the
Subsidiaries on a consolidated basis, except in those instances where
the loss thereof or non-compliance therewith would not reasonably be
expected to have a material adverse effect on the financial condition,
earnings, affairs, business or results of operations of the Company and
the Subsidiaries on a consolidated basis; (C) all Permits referred to
in clause (B) are valid and in full force and effect; (D) no action,
suit or proceeding is pending or overtly threatened which may lead to
the revocation, termination, suspension or non-renewal of any Permit
referred to in clause (B), except in those instances where the loss
thereof or non-compliance therewith would not materially impair the
ability of the Company or the Subsidiaries to conduct their respective
businesses.
In giving the above opinion, such counsel may state that, insofar as
such opinion involves factual matters, they have relied upon certificates of
officers of the Company including, without limitation, certificates as to the
identity of any and all material contracts, indentures, mortgages, deeds of
trust, loans or credit agreements, notes, leases, franchises, licenses or other
agreements or instruments, and all material permits, easements, consents,
licenses, franchises and government regulatory authorizations, for purposes of
paragraphs (viii), (x), (xii), (xiii), and (xvi) hereof, and certificates of
public officials.
Such counsel shall also confirm that, in connection with the
preparation of the Registration Statement and Prospectus, such counsel has
participated in conferences (including telephone conferences) with officers and
representatives of the Company and with their independent public accountants and
with you and your counsel, at which conferences such counsel made inquiries of
such officers, representatives and accountants and discussed in detail the
contents of the Registration Statement and Prospectus and the documents
incorporated therein by reference (without taking further action to verify
independently the statements made in the Registration Statement and the
Prospectus, and without assuming responsibility for the accuracy or completeness
of such statements, except to the extent expressly provided in paragraphs (ii)
and (xi) above), and nothing has come to the attention of such counsel that
would lead such counsel 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
light of the circumstances under which they were made, not misleading or (B)
that the Prospectus or any amendment or supplement thereto and the documents
incorporated therein by reference (except for the financial
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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 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 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) Vedder, Price, Kaufman & Kammholz, 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 Shares, the Registration Statement, the
Prospectus and such other related matters as you may reasonably request and
there shall have been furnished to such counsel such documents and other
information as they may request to enable them to pass on such matters. In
giving such opinion, Vedder, Price, Kaufman & Kammholz may rely as to matters of
fact upon statements and certifications of officers of the Company and of other
appropriate persons and may rely as to matters of law, other than the law of the
United States and the State of Illinois, and upon the opinions of Dickinson
Wright PLLC herein.
(f) On the date of this Agreement and on the Closing Date
(and, if applicable, any Option Closing Date), the Underwriters shall have
received from Crowe, Chizek and Company LLP a letter, dated the date of this
Agreement and the Closing Date (and, if applicable, the Option Closing Date),
respectively, in form and substance satisfactory to the Underwriters, confirming
that they are independent public accountants with respect to the Company and the
Subsidiaries, within the meaning of the 1933 Act and the 1933 Act Regulations,
and stating in effect that:
(i) In their opinion, the consolidated financial
statements of the Company audited by them and included in the
Registration Statement comply as to form in all material respects with
the applicable accounting requirements of the 1933 Act and the 1933 Act
Regulations.
(ii) On the basis of the procedures specified by the
American Institute of Certified Public Accountants as described in SAS
No. 71, "Interim Financial Information," inquiries of officials of the
Company responsible for financial and accounting matters, and such
other inquiries and procedures as may be specified in such letter,
which procedures do not constitute an audit in accordance with U.S.
generally accepted auditing standards, nothing came to their attention
that caused them to believe that, if applicable, the unaudited interim
consolidated financial statements of the Company included in the
Registration Statement do not comply as to form in all material
respects with the applicable accounting requirements of the 1933 Act
and the 1933 Act Regulations or are not in conformity with U.S.
generally accepted accounting principles applied on a basis
substantially consistent, except as noted in the Registration
Statement,
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with the basis for the audited consolidated financial statements of the
Company included in the Registration Statement.
(iii) On the basis of limited procedures, not constituting an
audit in accordance with U.S. generally accepted auditing standards,
consisting of a reading of the unaudited interim financial statements
and other information referred to below, a reading of the latest
available unaudited condensed consolidated financial statements of the
Company, inspection of the minute books of the Company since the date
of the latest audited financial statements of the Company included or
incorporated by reference in the Registration Statement, inquiries of
officials of the Company responsible for financial and accounting
matters and such other inquiries and procedures as may be specified in
such letter, nothing came to their attention that caused them to
believe that:
(A) as of a specified date not more than five days prior
to the date of such letter, there have been any changes in the
capital stock of the Company, any increase in the consolidated debt
of the Company or any decrease in the consolidated total assets or
shareholders equity of the Company or any changes, decreases or
increases in other items specified by the Underwriters, in each
case as compared with amounts shown in the latest unaudited interim
consolidated statement of financial condition of the Company
included or 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 unaudited
interim consolidated financial statements included or incorporated
by reference in the Registration Statement to the specified date
referred to in Clause (iii)(A), there were any decreases in the
consolidated interest income, net interest income or net income of
the Company or in the per share amount of net income of the Company
or any changes, decreases or increases in any other items specified
by the Underwriters, in each case as compared with the comparable
period of the preceding year and with any other period of
corresponding length specified by the Underwriters, except in each
case for increases or decreases which the Registration Statement
discloses have occurred or may occur or which are described in such
letter.
(iv) In addition to the audit referred to in their
report included or 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 Underwriters
which are derived from the general accounting records and
consolidated financial statements of the Company which appear in
the Registration Statement, and have compared such amounts,
percentages and financial information with the accounting records
and the material derived from such records and consolidated
financial statements of the Company and have found them to be in
agreement.
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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 Representative 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 unaudited
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
Representative, 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.
(g) At the Closing Date and, if applicable, the Option Closing Date,
you shall have received certificates of the chief executive officer and the
chief financial and accounting officer of the Company, which certificates shall
be deemed to be made on behalf of the Company dated as of the Closing Date and,
if applicable, the Option Closing Date, evidencing satisfaction of the
conditions of Section 6(a) and stating that (i) the representations and
warranties of the Company set forth in Section 2(a) hereof are accurate as of
the Closing Date and, if applicable, the Option Closing Date, and that the
Company has complied with all agreements and satisfied all conditions on their
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 Company or the
Subsidiaries other than transactions in the ordinary course of business; and
(iv) they have carefully examined the Registration Statement and the Prospectus
as amended or supplemented and nothing has come to their attention that would
lead them to believe that either the Registration Statement or the Prospectus,
or any amendment or supplement thereto as of their respective effective or issue
dates, contained, and the Prospectus as amended or supplemented at such Closing
Date (and, if applicable, the Option Closing Date), contains any untrue
statement of a material fact, or omits to state a material fact required to be
stated therein or necessary in 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.
(h) The NASD, upon review of the terms of the public offering of the
Shares, shall not have objected to the Underwriters' participation in such
offering.
(i) Prior to the Closing Date and, if applicable, the Option Closing
Date, the Company shall have furnished to you and counsel for the Underwriters
all such other documents, certificates and opinions as they have reasonably
requested.
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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. Any certificate signed by any officer of the
Company and delivered to you pursuant hereto shall also be deemed to be a
representation and warranty of the Company to the Underwriters as to the
statements made therein. The Company 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 Company.
7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to jointly and severally 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
contained in Section 2 of this Agreement (or any certificate delivered by the
Company pursuant to Sections 6(h), 6(i) and 6(l) hereof) or the registration
statement as originally filed or the Registration Statement, any Preliminary
Prospectus or the Prospectus, or in any amendment or supplement thereto, (ii)
any blue sky application or other document executed by the Company specifically
for that purpose or based upon written information furnished by the Company
filed in any state or other jurisdiction in order to qualify any of the Shares
under the securities laws thereof (any such application, document or information
being hereinafter referred to as a "Blue Sky Application"), (iii) any omission
or alleged omission to state a material fact in the registration statement as
originally filed or the Registration Statement, the Preliminary Prospectus or
the Prospectus, or in any amendment or supplement thereto, or in any Blue Sky
Application required to be stated therein or necessary to make the statements
therein not misleading, and against any and all losses, claims, damages,
liabilities and expenses (including reasonable costs of investigation and
attorney fees), joint or several, arising out of or based upon any untrue
statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus or the Prospectus, or in any amendment 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 (iv) 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 Company 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
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statement or omission or allegation thereof that has been made therein or
omitted therefrom in reliance upon and in conformity with the Underwriters'
Information; and provided further, that the indemnification contained in this
paragraph with respect to any Preliminary Prospectus shall not inure to the
benefit of any Underwriter (or of any person controlling any Underwriter) to the
extent any such losses, claims, damages, liabilities or expenses directly
results from the fact that such Underwriter sold Shares to a person to whom
there was not sent or given, at or prior to the written confirmation of such
sale, a copy of the Prospectus (as amended or supplemented if any amendments or
supplements thereto shall have been furnished to 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
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 the Company, each of its directors, each of its
officers and each person, if any, who controls the Company 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 such paragraph, and
further, shall only relieve it from liability under such paragraph to the extent
prejudiced thereby. Any indemnified party or any such controlling person shall
have the right to employ separate counsel in any such action and to participate
in the defense thereof, but the fees and expenses of such counsel shall be at
the expense of such indemnified party or such controlling person unless (i) the
employment thereof has been specifically authorized by the indemnifying party in
writing, (ii) the indemnifying party has failed to assume the defense or to
employ counsel reasonably satisfactory to the indemnified party or (iii) the
named parties to any such action (including any impleaded parties) include both
such indemnified party or such controlling person and the indemnifying party and
such indemnified party or such controlling person shall have been advised by
such counsel that there may be one or more legal defenses available to it that
are different from or in addition to those available to the indemnifying party
(in which case, if such indemnified party or controlling person notifies the
indemnifying party in writing that it elects to employ separate counsel at the
expense of the indemnifying party, the indemnifying party shall not have the
right to assume the defense of such action on behalf of such indemnified party
or such controlling person) it being understood, however, that the indemnifying
party shall not, in connection with any one such action or separate but
substantially similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances, be liable for the reasonable fees
and expenses
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of more than one separate firm of attorneys at any time and for all such
indemnified party and controlling persons, which firm shall be designated in
writing by the indemnified party (and, if such indemnified parties are
Underwriters, by you, as Representative). 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 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 Company on the one hand and the
Underwriters on the other from the offering of the Shares or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company 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 Company 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 Shares (before deducting expenses) received by the
Company 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 Company 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 Company 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 Company and the Underwriters
agree that it would not be just and equitable if contribution pursuant to this
paragraph (d) were
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determined by pro rata allocation or by any other method of allocation that does
not take into account the equitable considerations referred to herein. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities and expenses referred to in the first sentence of
this paragraph (d) shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this paragraph (d), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Shares underwritten by such Underwriter and distributed to
the public were offered to the public exceeds the amount of any damages that
such Underwriters 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.
For purposes of this paragraph (d), each person who controls an
Underwriter within the meaning of the 1933 Act shall have the same rights to
contribution as such Underwriter, and each person who controls the Company
within the meaning of the 1933 Act, each officer of the Company and each
director of the Company shall have the same rights to contribution as the
Company subject in each case to the preceding sentence. The obligations of the
Company under this paragraph (d) shall be in addition to any liability which the
Company may otherwise have and the obligations of the Underwriters under this
paragraph (d) shall be in addition to any liability that the Underwriters may
otherwise have, but it is not intended that any such indemnified party shall be
entitled to duplicate recovery hereunder.
(e) The indemnity and contribution agreements contained in
this Section 7 and the representations and warranties of the Company set forth
in this Agreement shall remain operative and in full force and effect,
regardless of (i) any investigation made by or on behalf of any Underwriter or
any person controlling an Underwriter or by or on behalf of the Company, or such
directors or officers (or any person controlling the Company), (ii) acceptance
of any Shares and payment therefor hereunder and (iii) any termination of this
Agreement. A successor of any Underwriter or of the Company, such directors or
officers (or of any person controlling an Underwriter or the Company) shall be
entitled to the benefits of the indemnity, contribution and reimbursement
agreements contained in 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 Shares, at any time at or prior
to the Option Closing Date, without liability on the part of the Underwriters to
the Company, if:
(a) The Company 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 Company 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
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which in the judgment of the Representative materially impairs the investment
quality of the Shares;
(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 the reasonable
judgment of the Representative, 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;
(d) There has occurred any outbreak or escalation of
hostilities or other calamity or crisis or material change in general economic,
political or financial conditions, or internal conditions, the effect of which
on the financial markets of the United States is such as to make it, in the
reasonable judgment of the Representative, impracticable to market the Shares or
enforce contracts for the sale of the Shares;
(e) Trading generally on the New York Stock Exchange, the
American Stock Exchange or The Nasdaq Stock Market shall have been suspended, or
minimum or maximum prices for trading shall have been fixed, or maximum ranges
for prices for securities shall have been required, by any of said exchanges or
market system or by the Commission or any other governmental authority;
(f) A banking moratorium shall have been declared by either
federal or Michigan authorities; or
(g) Any action shall have been taken by any government in
respect of its monetary affairs which, in the reasonable judgment of the
Representative, has a material adverse effect on the United States securities
markets so as to make it, in the reasonable judgment of the Representative,
impracticable to market the Shares or enforce contracts for the sale of the
Shares.
If this Agreement shall be terminated pursuant to this Section 8, the
Company 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 Shares hereunder, the
other Underwriters shall be obligated severally, in proportion to their
respective commitments hereunder, to purchase the Shares 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
Shares to the extent that the number of such Shares is more than 110% of such
non-defaulting 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 Shares which the defaulting
Underwriter or Underwriters agreed but failed to purchase, the Representative
may in its discretion arrange for one or more of the Underwriters or for another
party or parties to purchase such Shares on the terms contained herein. If
within one business day after such default the Representative does not arrange
for the purchase of such Shares, then the Company shall be entitled to a further
period of one business
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day within which to procure another party or parties satisfactory to the
Representative to purchase such Shares on such terms.
In the event that the Representative or the Company do not arrange for
the purchase of any Shares 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 Shares 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 Shares to be
purchased by the remaining Underwriters or substituted underwriters shall be
taken as the basis of their underwriting obligation for all purposes of this
Agreement. Nothing herein contained shall relieve any defaulting Underwriter of
any liability it may have for damages occasioned by its default hereunder. Any
termination of this Agreement pursuant to this Section 9 shall be without
liability on the part of any non-defaulting Underwriter or the Company, except
for expenses to be paid or reimbursed pursuant to Section 5 and except for the
provisions of Section 7.
10. EFFECTIVE DATE OF AGREEMENT. If the Registration Statement is
not effective at the time of execution of this Agreement, this Agreement shall
become effective on the Effective Date at the time the Commission declares the
Registration Statement effective. The Company shall immediately notify the
Underwriters when the Registration Statement becomes effective.
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 Representative shall
release the Shares for initial public offering. The Representative shall notify
the Company immediately after it has taken any action which causes this
Agreement to become effective.
Until such time as this Agreement shall have become effective, it may
be terminated by the Company, by notifying you or by you, as Representative of
the several Underwriters, by notifying the Company, 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 Company and their officers 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 Company or controlling persons of the
Company, or by or on behalf of the Underwriters or controlling persons of the
Underwriters or any termination or cancellation of this Agreement and shall
survive delivery of and payment for the Shares.
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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 Company shall be sent to 216
North Division Avenue, Grand Rapids, Michigan 49503, Attention: Gerald R.
Johnson, Jr. (with a copy to Dickinson Wright PLLC, 500 Woodward Avenue, Suite
4000, Detroit, Michigan 48226, Attention: Jerome M. Schwartz, Esq.) and notices
to the Underwriters shall be sent to Stifel, Nicolaus & Company, Incorporated,
501 North Broadway, 9th Floor, St. Louis, Missouri 63102, Attention: Patrick R.
Koster (with a copy to Vedder, Price, Kaufman & Kammholz, 222 North LaSalle
Street, Chicago, Illinois 60601, Attention: Jennifer R. Evans, Esq.). In all
dealings with the Company under this Agreement, Stifel, Nicolaus & 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 Stifel, Nicolaus & 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 Company and, to the extent expressed,
directors, trustees and officers of the Company, any person controlling the
Company 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 Shares.
14. GOVERNING LAW. This Agreement shall be governed by the laws
of the State of Missouri, without giving effect to the choice of law or
conflicts of law principles thereof.
15. AUTHORITY. Any certificate signed by an authorized officer of
the Company and delivered to the Representative or to counsel for the
Underwriters pursuant to this Agreement shall be deemed a representation and
warranty by the Company 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 following page
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If the foregoing is in accordance with the your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
shall become a binding agreement between the Company and you in accordance with
its terms.
Very truly yours,
MERCANTILE BANK CORPORATION
By:_______________________________
Gerald R. Johnson, Jr.
Chairman and Chief Executive
Officer
CONFIRMED AND ACCEPTED,
as of _____________, 2001.
STIFEL, NICOLAUS & COMPANY,
INCORPORATED
By:__________________________
Patrick R. Koster
First Vice President
For itself and as Representative of the several
Underwriters named in Schedule I hereto.
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SCHEDULE I
UNDERWRITERS
Number of
Firm Shares
-----------
Stifel, Nicolaus & Company, Incorporated.......................
Howe Barnes Investments, Inc...................................
Tucker Anthony Sutro Capital Markets...........................
---------
Total....................................................... 1,200,000
=========
I-1
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EXHIBIT A
LIST OF SUBSIDIARIES
Mercantile Bank of West Michigan
Mercantile Bank Mortgage Company
MBWM Capital Trust I
A-1