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United
States
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event
reported): May 13, 2024
Merchants Bancorp
(Exact Name of Registrant as Specified
in its Charter)
Indiana |
|
001-38258 |
|
20-5747400 |
(State or Other Jurisdiction
of Incorporation) |
|
(Commission
File Number) |
|
(IRS Employer
Identification No.) |
410 Monon Boulevard
Carmel, Indiana 46032
(Address of Principal Executive Offices) (Zip Code)
(317) 569-7420
(Registrant’s Telephone Number, Including
Area Code)
Not Applicable
(Former name or former address, if changed since last report)
Check the appropriate
box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the
following provisions:
¨ |
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
|
|
¨ |
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
|
|
¨ |
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
|
|
¨ |
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section
12(b) of the Act:
Title
of each class |
Trading
Symbol(s) |
Name
of each exchange on which
registered |
Common Stock, without par value |
MBIN |
NASDAQ |
Depositary Shares, each representing a 1/40th interest in a share of Series B Preferred Stock, without par value |
MBINO |
NASDAQ |
Depositary
Shares, each representing a 1/40th interest in a share of Series C Preferred Stock, without par value |
MBINN |
NASDAQ |
Depositary
Shares, each representing a 1/40th interest in a share of Series D Preferred Stock, without par value |
MBINM |
NASDAQ |
Indicate by check mark whether the registrant
is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2
of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
|
Emerging growth company |
¨ |
If an emerging growth company, indicate by
check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial
accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨
Item 1.01. Entry into a Material Definitive Agreement
On May 13, 2024, Merchants Bancorp (the “Company”),
entered into an underwriting agreement (the “Underwriting Agreement”) with Morgan Stanley & Co. LLC., as representative
of the several underwriters named in Schedule I thereto (collectively, the “Underwriters”), to issue and sell 2,400,000 shares
of the Company’s common stock, without par value (“Firm Stock”), at a public offering price of $43.00 per share in an
underwritten public offering (the “Offering”). The offer and sale of shares of Firm
Stock in the Offering was registered under the Securities Act of 1933, as amended (the “Act”), pursuant to the Company’s
shelf registration statement on Form S-3 (File No. 333-266672), which was declared effective by the Securities and Exchange
Commission on August 17, 2022, as supplemented by the prospectus supplement dated May 13, 2024.
As part of the Offering, the Company granted the Underwriters a 30-day right to purchase up to an additional 360,000 shares of the Company’s
common stock at the public offering price, less underwriting discounts and commissions.
After deducting underwriting discounts and commissions
and estimated offering expenses payable by the Company, the Company expects the net proceeds of the Offering to be approximately $97,615,000.
The Company intends to use the net proceeds from the Offering for general corporate purposes including to support balance sheet growth
of Merchants Bank of Indiana. The Offering closed on May 16, 2024.
The Underwriting Agreement contains customary
representations, warranties and agreements of the Company, customary conditions to closing, indemnification obligations of the parties,
including for liabilities under the Act, and termination provisions. The representations, warranties and covenants contained in the Underwriting
Agreement were made only for purposes of such agreement and as of specific dates, were solely for the benefit of the parties to such agreement,
and may be subject to limitations agreed upon by the contracting parties. Consequently, persons other than the parties to such agreement
may not rely upon the representations and warranties in the Underwriting Agreement as characterizations of actual facts or circumstances
as of the date of the Underwriting Agreement or as of any other date. The Underwriting Agreement is not intended to provide any other
factual information about the Company. The foregoing description is qualified in its entirety by reference to the Underwriting Agreement,
a copy of which is attached hereto as Exhibit 1.1 and incorporated herein by reference.
The legal opinion of Krieg DeVault LLP relating
to the validity of the Firm Stock is attached hereto as Exhibit 5.1.
Item 8.01 Other Events
On May 13, 2024, the Company
issued a press release announcing the launch of the Offering and the pricing of the Offering, and each is attached hereto as Exhibit 99.1
and Exhibit 99.2, respectively, and is incorporated herein by reference.
Forward-Looking Statements
This Current Report on Form 8-K contains
forward-looking statements which reflect management’s current views with respect to, among other things, future events and financial
performance. These statements are often, but not always, made through the use of words or phrases such as “may,” “might,”
“should,” “could,” “predict,” “potential,” “believe,” “expect,”
“continue,” “will,” “anticipate,” “seek,” “estimate,” “intend,”
“plan,” “projection,” “goal,” “target,” “aim,” “would,” “annualized”
and “outlook,” or the negative version of those words or other comparable words or phrases of a future or forward-looking
nature. These forward-looking statements are not historical facts, and are based on current expectations, estimates and projections about
the industry, management's beliefs and certain assumptions made by management, many of which, by their nature, are inherently uncertain
and beyond our control. Accordingly, management cautions that any such forward-looking statements are not guarantees of future performance
and are subject to risks, assumptions, estimates and uncertainties that are difficult to predict. Although the Company believes that the
expectations reflected in these forward-looking statements are reasonable as of the date made, actual results may prove to be materially
different from the results expressed or implied by the forward-looking statements. A number of important factors could cause actual results
to differ materially from those indicated in these forward-looking statements, including the impacts of factors identified in “Risk
Factors” or “Management's Discussion and Analysis of Financial Condition and Results of Operations” in the Company’s
Annual Report on Form 10-K and other periodic filings with the Securities and Exchange Commission. Any forward-looking statements
presented herein are made only as of the date of this press release, and the Company does not undertake any obligation to update or revise
any forward-looking statements to reflect changes in assumptions, the occurrence of unanticipated events, or otherwise.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
|
MERCHANTS BANCORP |
|
|
|
|
|
|
Date: May 16, 2024 |
By: |
/s/ Terry A.
Oznick |
|
Name: |
Terry A. Oznick |
|
Title: |
General Counsel and Secretary |
[Signature Page of Form 8-K]
Exhibit 1.1
May 13, 2024
Morgan Stanley & Co. LLC
| c/o | Morgan Stanley & Co. LLC
1585 Broadway
New York, New York 10036 |
As Representative of the several underwriters
named herein
Ladies and Gentlemen:
Merchants Bancorp, an Indiana corporation (the
“Company”), proposes to issue and sell to the several underwriters named in Schedule I hereto (the “Underwriters”)
2,400,000 shares of its common stock, without par value (the “Firm Shares”). The Company also proposes to issue and
sell to the several Underwriters not more than an additional 360,000 shares of its common stock, without par value (the “Additional
Shares”), if and to the extent that Morgan Stanley & Co. LLC (“Morgan Stanley”), as representative
of the offering, shall have determined to exercise, on behalf of the Underwriters, the right to purchase such shares of common stock granted
to the Underwriters in Section 3 hereof. The Firm Shares and the Additional Shares are hereinafter collectively referred to as the
“Shares.” The shares of common stock, without par value, of the Company to be outstanding after giving effect to the
sales contemplated hereby are hereinafter referred to as the “Common Stock.”
The Company has filed with the Securities and Exchange
Commission (the “Commission”) a registration statement on Form S-3 (File No. 333-266672) relating to the
securities (the “Shelf Securities”), including the Shares, to be issued from time to time by the Company. The registration
statement as amended to the date of this Agreement, including the information (if any) deemed to be part of the registration statement
at the time of effectiveness pursuant to Rule 430A or Rule 430B under the Securities Act of 1933, as amended (the “Securities
Act”), is hereinafter referred to as the “Registration Statement”, and the related prospectus covering the
Shelf Securities dated August 8, 2022, in the form first used to confirm sales of the Shares (or in the form first made available
to the Underwriters by the Company to meet requests of purchasers pursuant to Rule 173 under the Securities Act) is hereinafter referred
to as the “Basic Prospectus.” The Basic Prospectus, as supplemented by the prospectus supplement specifically relating
to the Shares in the form first used to confirm sales of the Shares (or in the form first made available to the Underwriters by the Company
to meet requests of purchasers pursuant to Rule 173 under the Securities Act) is hereinafter referred to as the “Prospectus,”
and the term “preliminary prospectus” means any preliminary form of the Prospectus.
For purposes of this Agreement, “free
writing prospectus” has the meaning set forth in Rule 405 under the Securities Act, “Time of Sale Prospectus”
means the documents and pricing information set forth in Schedule II hereto, and “broadly available road show”
means a “bona fide electronic road show” as defined in Rule 433(h) under the Securities Act. As used herein, the
terms “Registration Statement,” “Basic Prospectus,” “preliminary prospectus,” “Time of Sale
Prospectus” and “Prospectus” shall include the documents, if any, incorporated by reference therein as of the date hereof.
The terms “supplement,” “amendment” and “amend” as used herein with respect to
the Registration Statement, the Basic Prospectus, the Time of Sale Prospectus, any preliminary prospectus or the Prospectus shall include
all documents subsequently filed by the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), that are deemed to be incorporated by reference therein.
1. Representations
and Warranties of the Company. The Company represents and warrants to and agrees with each of the Underwriters that:
(a) The
Registration Statement has become effective; no stop order suspending the effectiveness of the Registration Statement is in effect, and
no proceedings for such purpose or pursuant to Section 8A under the Securities Act are pending before or threatened by the Commission.
(b) (i) Each
document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus or the
Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations
of the Commission thereunder, (ii) each part of the Registration Statement, when such part became effective, did not contain and,
each such part, as amended or supplemented, if applicable, will not contain any 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, (iii) the Registration Statement
as of the date hereof does not contain any 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, (iv) the Registration Statement and the Prospectus comply and,
as amended or supplemented, if applicable, will comply in all material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder, (v) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in
connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in
Section 5), the Time of Sale Prospectus, as then amended or
supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (vi) each
broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement
of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under
which they were made, not misleading and (vii) the Prospectus does not contain and, as amended or supplemented, if applicable, will
not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading, except that the representations and warranties set forth in this
paragraph do not apply to statements or omissions in the Registration Statement, the Time of Sale Prospectus or the Prospectus based upon
Underwriter Information (as defined in Section 9(c) herein).
(d) The
Company is not an “ineligible issuer” in connection with the offering pursuant to Rules 164, 405 and 433 under the Securities
Act. Any free writing prospectus that the Company is required to file pursuant to Rule 433(d) under the Securities Act has been,
or will be, filed with the Commission in accordance with the requirements of the Securities Act and the applicable rules and regulations
of the Commission thereunder. Each free writing prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) under
the Securities Act or that was prepared by or on behalf of or used or referred to by the Company complies or will comply in all material
respects with the requirements of the Securities Act and the applicable rules and regulations of the Commission thereunder. Except
for the free writing prospectuses, if any, identified in Schedule II hereto, and electronic road shows, if any, each furnished to
Morgan Stanley before first use, the Company has not prepared, used or referred to, and will not, without Morgan Stanley’s prior
consent, prepare, use or refer to, any free writing prospectus.
(e) Financial
Statements. The financial statements included in the Registration Statement, the Time of Sale Prospectus and the Prospectus, together
with the related schedules and notes, comply with the requirements of the Securities Act and present fairly the financial position of
the Company and its consolidated Subsidiaries (as defined below) at the dates indicated and the statement of operations, stockholders’
equity and cash flows of the Company and its consolidated Subsidiaries for the periods specified; said financial statements have been
prepared in conformity with generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the
periods involved. The supporting schedules, if any, included in the Registration Statement, any preliminary prospectus, the Time of Sale
Prospectus and the Prospectus present fairly in accordance with GAAP the information required to be stated therein. The selected financial
data and the summary financial information included in the Registration Statement, the Time of Sale Prospectus, any preliminary prospectus
and the Prospectus present fairly the information shown therein and have been compiled on a basis consistent with that of the audited
financial statements included in the Registration Statement, the Time of Sale Prospectus, any preliminary prospectus and the Prospectus
and the books and records of the Company. No other financial statements or schedules are required to be included in the Registration Statement,
the Time of Sale Prospectus or the Prospectus. To the extent applicable, all disclosures contained in the Registration Statement, the
Time of Sale Prospectus, any free writing prospectus, any preliminary prospectus or the Prospectus regarding “non-GAAP financial
measures” (as such term is defined by the rules and regulations of the Commission) comply with Regulation G of the Exchange
Act, the rules and regulations of the Commission thereunder and Item 10 of Regulation S-K under the Securities Act, as applicable.
The interactive data in eXtensible Business Reporting Language incorporated by reference in the Registration Statement, the Time of Sale
Prospectus, any preliminary prospectus and the Prospectus is updated as necessary to comply with the requirements of the Securities Act
and the Commission’s rules and guidelines applicable thereto and present fairly the consolidated financial position, results
of operations and changes in financial position of the Company and its Subsidiaries on the basis stated in the Registration Statement
at the respective dates or for the respective periods to which they apply.
(f) No
Material Adverse Change in Business. Since the respective dates as of which information is given in the Registration Statement, the
Time of Sale Prospectus and the Prospectus, (A) there has been no material adverse change in the condition, financial or otherwise,
or in the earnings, business affairs or business prospects of the Company and its Subsidiaries considered as one enterprise, whether or
not arising in the ordinary course of business (a “Material Adverse Effect”), (B) there have been no transactions entered
into by the Company or any of its Subsidiaries, other than those in the ordinary course of business, which are material with respect to
the Company and its Subsidiaries considered as one enterprise, and (C) there has been no dividend or distribution of any kind declared,
paid or made by the Company on any class of its capital stock.
(g) Company
Validly Existing. The Company has been duly organized and is validly existing as a corporation under the laws of the State of Indiana
and has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration
Statement, the Time of Sale Prospectus and the Prospectus and to enter into and perform its obligations under this Agreement; and the
Company is duly qualified as a foreign corporation to transact business and is in good standing in each other jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure
so to qualify or to be in good standing would not result in a Material Adverse Effect.
(h) Good
Standing of Subsidiaries. Each of the Company’s Subsidiaries (for purposes of this Agreement, “Subsidiaries” are
defined as the entities listed on Schedule III hereto) has been duly organized and is validly existing as a corporation, in good
standing to the extent recognized, under the laws of the jurisdiction of its incorporation, has corporate power and authority to own,
lease and operate its properties and to conduct its business as described in the Registration Statement, the Time of Sale Prospectus and
the Prospectus and is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which
such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the
failure so to qualify or to be in good standing would not result in a Material Adverse Effect. All of the issued and outstanding capital
stock of each such direct and indirect Subsidiary of the Company (including Merchants Bank of Indiana, an Indiana state chartered bank
(the “Bank”)) has been duly authorized and validly issued, is fully paid and non-assessable and is owned by the Company, directly
or through Subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity; none of the outstanding
shares of capital stock of any Subsidiary was issued in violation of the preemptive or similar rights of any securityholder of such Subsidiary.
(i) Capitalization.
The authorized, issued and outstanding capital stock of the Company is as set forth in the Registration Statement, the Time of Sale Prospectus
and the Prospectus in the column entitled “Total shareholders’ equity” under the caption “Capitalization”
(except for subsequent issuances, if any, pursuant to this Agreement, pursuant to reservations, agreements or employee benefit plans referred
to in the Registration Statement, the Time of Sale Prospectus and the Prospectus or pursuant to the exercise of convertible securities
or options disclosed in the Registration Statement, the Time of Sale Prospectus and the Prospectus). The shares of issued and outstanding
capital stock have been duly authorized and validly issued and are fully paid and non-assessable; none of the outstanding shares of capital
stock was issued in violation of the preemptive or other similar rights of any securityholder of the Company. All of the issued and outstanding
capital stock of each Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and is owned by the Company,
free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity; none of the outstanding shares of capital
stock of any Subsidiary was issued in violation of any preemptive or similar rights of any securityholder of such Subsidiary.
(j) Authorization
of Agreement. This Agreement has been duly authorized, executed and delivered by the Company.
(k) Authorization
and Description of Securities. The Securities to be purchased by the Underwriters from the Company have been duly authorized for issuance
and sale to the Underwriters pursuant to this Agreement and, when issued and delivered by the Company pursuant to this Agreement against
payment of the consideration set forth herein, will be validly issued, fully paid and non-assessable, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity, and will not have been issued in violation of or subject to any preemptive or similar
rights. The Securities conform to all statements relating thereto contained in the Registration Statement, the Time of Sale Prospectus
and the Prospectus and such description conforms to the rights set forth in the instruments defining the same; no holder of the Securities
will be subject to personal liability for the debts of the Company by reason of being such a holder.
(l) Absence
of Defaults and Conflicts. Neither the Company nor any of its Subsidiaries is (A) in violation of its charter or by-laws or (B) in
default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage,
deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company or any of its Subsidiaries
is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company or any Subsidiary is subject
(collectively, “Agreements and Instruments”) except for such defaults that would not result in a Material Adverse Effect;
and the execution, delivery and performance of this Agreement by the Company, the consummation of the transactions contemplated herein,
and in the Registration Statement, the Time of Sale Prospectus and the Prospectus (including the issuance and sale of the Securities and
the use of the proceeds from the sale of the Securities as described in the Registration Statement, the Time of Sale Prospectus and the
Prospectus under the caption “Use of Proceeds”) and compliance by the Company and the Bank with their obligations hereunder
have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage
of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation
or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary pursuant to, the Agreements
and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not result in a Material
Adverse Effect), nor will such action result in any violation of the provisions of the charter or by-laws of the Company or any Subsidiary
or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court,
domestic or foreign, having jurisdiction over the Company or any Subsidiary or any of their assets, properties or operations. As used
herein, a “Repayment Event” means any event or condition which gives the holder of any note, debenture or other evidence of
indebtedness or obligation of the Company or any of its Subsidiaries (or any person acting on such holder’s behalf) the right to
require the repurchase, redemption or repayment of all or a portion of such note, debenture or other evidence of indebtedness or obligation
by the Company or any Subsidiary.
(m) Absence
of Labor Dispute. No labor dispute with the employees of the Company or any Subsidiary exists or, to the knowledge of the Company,
is imminent, and the Company is not aware of any existing or imminent labor disturbance by the employees of any of its or any Subsidiary’s
principal suppliers, manufacturers, customers or contractors, which, in either case, may reasonably be expected to result in a Material
Adverse Effect.
(n) Absence
of Proceedings. There is no action, suit, proceeding, inquiry or investigation before or brought by any court or governmental agency
or body, domestic or foreign, now pending, or, to the knowledge of the Company, threatened, against or affecting the Company or any Subsidiary,
which is required to be disclosed in the Registration Statement, the Time of Sale Prospectus and the Prospectus (other than as disclosed
therein), or which might reasonably be expected to result in a Material Adverse Effect, or which might reasonably be expected to materially
and adversely affect the properties or assets thereof or the consummation of the transactions contemplated in this Agreement or the performance
by the Company of its obligations hereunder; the aggregate of all pending legal or governmental proceedings to which the Company or any
Subsidiary is a party or of which any of their respective property or assets is the subject which are not described in the Registration
Statement, the Time of Sale Prospectus and the Prospectus, including ordinary routine litigation incidental to the business, could not
reasonably be expected to result in a Material Adverse Effect.
(o) Accuracy
of Exhibits. There are no contracts or documents which are required to be described in the Registration Statement, the Time of Sale
Prospectus, the Prospectus or the documents incorporated by reference therein or to be filed as exhibits thereto which have not been so
described and filed as required.
(p) Possession
of Intellectual Property. The Company and its Subsidiaries own or possess, or can acquire on reasonable terms, adequate patents, patent
rights, licenses, inventions, copyrights, know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures and excluding generally commercially available “off the shelf” software programs licensed
pursuant to shrink wrap or “click and accept” licenses), trademarks, service marks, trade names or other intellectual property
(collectively, “Intellectual Property”) necessary to carry on the business now operated by each of them, and neither the Company
nor any of its Subsidiaries has received any notice or is otherwise aware of any infringement of or conflict with asserted rights of others
with respect to any Intellectual Property or of any facts or circumstances which would render any Intellectual Property invalid or inadequate
to protect the interest of the Company or any of its Subsidiaries therein, and which infringement or conflict (if the subject of any unfavorable
decision, ruling or finding) or invalidity or inadequacy, singly or in the aggregate, would result in a Material Adverse Effect.
(q) Absence
of Further Requirements. No filing with, or authorization, approval, consent, license, order, registration, qualification or decree
of, any court or governmental authority or agency is necessary or required for the performance by the Company of its obligations hereunder,
in connection with the offering, issuance or sale of the Securities hereunder or the consummation of the transactions contemplated by
this Agreement, except for an application to list the Securities on Nasdaq, or such as have been already obtained or as may be required
under the Securities Act or the rules and regulations of the Commission thereunder, the rules of the Nasdaq Capital Market (“Nasdaq”),
the securities laws of any state or non-U.S. jurisdiction or rules and regulations of FINRA.
(r) Possession
of Licenses and Permits. The Company and its Subsidiaries possess such permits, licenses, approvals, consents and other authorizations
(collectively, “Governmental Licenses”) issued by the appropriate federal, state, local or foreign regulatory agencies or
bodies necessary to conduct the business now operated by them; the Company and its Subsidiaries are in compliance with the terms and conditions
of all such Governmental Licenses, except where the absence of the permit, license, approval, consent or other authorization or the failure
so to comply would not, singly or in the aggregate, have a Material Adverse Effect; all of the Governmental Licenses are valid and in
full force and effect, except where the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in
full force and effect would not have a Material Adverse Effect; and neither the Company nor any of its Subsidiaries has received any notice
of proceedings relating to the revocation or modification of any such Governmental Licenses which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would result in a Material Adverse Effect. Neither the Company nor any of its Subsidiaries
has failed to file with applicable regulatory authorities any statement, report, information or form required by any applicable law, regulation
or order, except where the failure to be so in compliance would not, individually or in the aggregate, have a Material Adverse Effect,
all such filings were in material compliance with applicable laws when filed and no material deficiencies have been asserted by any regulatory
commission, agency or authority with respect to any such filings or submissions.
(s) Title
to Property. The Company and its Subsidiaries have good and marketable title to all real property owned by the Company and its Subsidiaries
and good title to all other properties owned by them, in each case, free and clear of all mortgages, pledges, liens, security interests,
claims, restrictions or encumbrances of any kind except such as do not, singly or in the aggregate, materially affect the value of such
property and do not interfere with the use made and proposed to be made of such property by the Company or any of its Subsidiaries; and
all of the leases and subleases material to the business of the Company and its Subsidiaries, considered as one enterprise, and under
which the Company or any of its Subsidiaries holds properties described in the Registration Statement, the Time of Sale Prospectus and
the Prospectus, are in full force and effect, and neither the Company nor any Subsidiary has any notice of any material claim of any sort
that has been asserted by anyone adverse to the rights of the Company or any Subsidiary under any of the leases or subleases mentioned
above, or affecting or questioning the rights of the Company or such Subsidiary to the continued possession of the leased or subleased
premises under any such lease or sublease.
(t) Investment
Company Act. The Company is not, and upon the issuance and sale of the Securities as herein contemplated and the application of the
net proceeds therefrom as described in the Registration Statement, the Time of Sale Prospectus and the Prospectus will not be, an “investment
company” or an entity “controlled” by an “investment company” as such terms are defined in the Investment
Company Act of 1940, as amended (the “1940 Act”).
(u) Environmental
Laws. Except as would not, singly or in the aggregate, result in a Material Adverse Effect, (A) neither the Company nor any of
its Subsidiaries is in violation of any federal, state, local or foreign statute, law, rule, regulation, ordinance, code, policy or rule of
common law or any judicial or administrative interpretation thereof, including any judicial or administrative order, consent, decree or
judgment, relating to pollution or protection of human health, the environment (including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife, including, without limitation, laws and regulations relating to the release
or threatened release of chemicals, pollutants, contaminants, wastes, toxic substances, hazardous substances, petroleum or petroleum products,
asbestos-containing materials or mold (collectively, “Hazardous Materials”) or to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of Hazardous Materials (collectively, “Environmental Laws”), (B) the
Company and its Subsidiaries have all permits, authorizations and approvals required under any applicable Environmental Laws and are each
in compliance with their requirements, (C) there are no pending or threatened administrative, regulatory or judicial actions, suits,
demands, demand letters, claims, liens, notices of noncompliance or violation, investigation or proceedings relating to any Environmental
Law against the Company or any of its Subsidiaries and (D) there are no events or circumstances that might reasonably be expected
to form the basis of an order for clean-up or remediation, or an action, suit or proceeding by any private party or governmental body
or agency, against or affecting the Company or any of its Subsidiaries relating to Hazardous Materials or any Environmental Laws.
(v) Taxes.
The Company and each of the Subsidiaries has (a) timely filed all material foreign, United States federal, state and local tax returns,
information returns, and similar reports that are required to be filed (taking into account valid extensions), and all tax returns are
true, correct and complete, (b) paid in full all taxes required to be paid by it and any other assessment, fine or penalty levied
against it, except for any such tax assessment, fine or penalty that is currently being contested in good faith or as would not have,
individually or in the aggregate, a Material Adverse Effect, and (c) established on the most recent balance sheet reserves that are
adequate for the payment of all taxes not yet due and payable.
(w) Insurance.
The Company and its Subsidiaries carry, or are covered by, insurance in such amounts and covering such risks as the Company reasonably
believes are adequate for the conduct of the business of the Company and its Subsidiaries and the value of their properties and as are
customary in the business in which the Company and its Subsidiaries are engaged; neither the Company nor any of its Subsidiaries has been
refused any insurance coverage sought or applied for; and the Company has no reason to believe that they will not be able to renew their
existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary
to continue its business at a cost that would not have a Material Adverse Effect.
(x) Statistical
and Market Data. The statistical and market related data contained or incorporated by reference in the Registration Statement, the
Time of Sale Prospectus and the Prospectus are based on or derived from sources which the Company believes, after reasonable inquiry,
are reliable and accurate and such data agree with the sources from which they are derived. To the extent required, the Company has obtained
written consent to the use of such data from the relevant third party sources.
(y) Relationship.
No relationship, direct or indirect, exists between or among the Company or any of its Subsidiaries, on the one hand, and the directors,
officers, shareholders, customers or suppliers of the Company or any of its Subsidiaries, on the other, that is required by the Securities
Act or the rules and regulations of the Commission thereunder to be described in the Registration Statement, the Time of Sale Prospectus
and the Prospectus and that is not so described.
(z) Internal
Control Over Financial Reporting. The Company and each of its Subsidiaries maintains a system of internal accounting controls sufficient
to provide reasonable assurance that (A) transactions are executed in accordance with management’s general or specific authorizations;
(B) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain
asset accountability; (C) access to assets is permitted only in accordance with management’s general or specific authorization;
(D) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is
taken with respect to any differences; and (E) the interactive data in eXtensible Business Reporting Language included or incorporated
by reference in the Registration Statement is accurate. Since the end of the Company’s most recent audited fiscal year, there has
been (I) no material weakness in the Company’s internal control over financial reporting (whether or not remediated) and (II) no
change in the Company’s internal control over financial reporting that has materially affected, or is reasonably likely to materially
affect, the Company’s internal control over financial reporting.
(aa) Disclosure
Controls and Procedures. The Company and its Subsidiaries employ disclosure controls and procedures (as such term is defined in Rule 13a-15
under the Exchange Act), which (A) are designed to ensure that information required to be disclosed by the Company in the reports
that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the
Commission’s rules and forms and that material information relating to the Company and its Subsidiaries is made known to the
Company’s principal executive officer and principal financial officer by others within the Company and its Subsidiaries to allow
timely decisions regarding disclosure, and (B) are effective in all material respects to perform the functions for which they were
established. Based on the evaluation of the Company’s and each Subsidiary’s disclosure controls and procedures described above,
the Company is not aware of (1) any significant deficiency in the design or operation of internal controls which could adversely
affect the Company’s ability to record, process, summarize and report financial data or any material weaknesses in internal controls
or (2) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s
internal controls. Since the most recent evaluation of the Company’s disclosure controls and procedures described above, there have
been no significant changes in internal controls or in other factors that could significantly affect internal controls.
(bb) Pending
Procedures and Examinations. The Registration Statement is not the subject of a pending proceeding or examination under Section 8(d) or
8(e) of the Securities Act, and the Company is not the subject of a pending proceeding under Section 8A of the Securities Act
in connection with the offering of the Securities.
(cc) Unlawful
Payments. None of the Company or any of its Subsidiaries or affiliates, or any director, officer, or employee thereof, or, to the
Company’s knowledge, any agent or representative of the Company or of any of its subsidiaries or affiliates has (A) used any
corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (B) made
any direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds; (C) violated
or is in violation of any provision of the Foreign Corrupt Practices Act of 1977, as amended, or any applicable non-U.S. anti-bribery
statute or regulation (the “Anti-Corruption Laws); or (D) made any bribe, rebate, payoff, influence payment, kickback or other
unlawful payment.
(dd) No
Registration Rights. No person has the right to require the Company or any of its Subsidiaries to register any securities for sale
under the Securities Act by reason of the filing of the Registration Statement with the Commission or the issuance and sale of the Securities
to be sold by the Company hereunder, except for such rights as have been duly waived in writing and are described in the Registration
Statement, Time of Sale Prospectus and Prospectus. All such waivers are in full force and effect on the date hereof.
(ee) No
Preemptive Rights. There are no authorized or outstanding preemptive rights, rights of first refusal or other similar rights to purchase,
or equity or debt securities convertible into or exchangeable or exercisable for, any capital stock of the Company or any of its Subsidiaries
except for such rights as have been duly waived and are described in the Registration Statement, Time of Sale Prospectus and Prospectus.
All such waivers are in full force and effect on the date hereof.
(ff) No
Stabilization or Manipulation. Neither the Company nor any of its Subsidiaries, nor any Affiliates of the Company or its Subsidiaries,
has taken, directly or indirectly, any action designed to or that could reasonably be expected to cause or result in any stabilization
or manipulation of the price of the Securities.
(gg) No
Unauthorized Use of Prospectus. The Company has not distributed and, prior to the later to occur of (i) the Closing Date and
(ii) completion of the distribution of the Securities, will not distribute any prospectus (as such term is defined in the Securities
Act and the rules and regulations of the Commission thereunder) in connection with the offering and sale of the Securities other
than the Registration Statement, any preliminary prospectus, the Prospectus or other materials, if any, permitted by the Securities Act
or the rules and regulations of the Commission thereunder and approved by Morgan Stanley.
(hh) Forward-Looking
Statements. No forward-looking statement (within the meaning of Section 27A of the Securities Act and Section 21E of the
Exchange Act) contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus has been made or reaffirmed without
a reasonable basis or has been disclosed other than in good faith.
(ii) Fees.
Other than as contemplated by this Agreement, there is no broker, finder or other party that is entitled to receive from the Company or
any Subsidiary any brokerage or finder’s fee or any other fee, commission or payment as a result of the transactions contemplated
by this Agreement.
(jj) ERISA.
The Company and each of the Subsidiaries or their “ERISA Affiliates” (as defined below) are in compliance in all material
respects with all presently applicable provisions of the Employee Retirement Income Security Act of 1974, as amended, including the regulations
and published interpretations thereunder (“ERISA”); no “reportable event” (as defined in ERISA) has occurred with
respect to any “employee benefit plan” (as defined in ERISA) for which the Company or any of the Subsidiaries or ERISA Affiliates
would have any liability; the Company and each of the Subsidiaries or their ERISA Affiliates have not incurred and do not expect to incur
liability under (i) Title IV of ERISA with respect to termination of, or withdrawal from, any “employee benefit plan”
or (ii) Sections 412, 4971, 4975 or 4980B of the United States Internal Revenue Code of 1986, as amended, and the regulations and
published interpretations thereunder (collectively the “Code”); and each “employee benefit plan” for which the
Company and each of its Subsidiaries or any of their ERISA Affiliates would have any liability that is intended to be qualified under
Section 401(a) of the Code is so qualified in all material respects and nothing has occurred, whether by action or by failure
to act, which would cause the loss of such qualification. “ERISA Affiliate” means, with respect to the Company or a Subsidiary,
any member of any group of organizations described in Sections 414(b), (c), (m) or (o) of the Code or Section 400(b) of
ERISA of which the Company or such Subsidiary is a member.
(kk) Bank
Holding Company Act; Banking Regulation. The Company is duly registered as a bank holding company under the Bank Holding Company Act
of 1956, as amended. The Bank holds the requisite authority to do business as a state chartered bank under the laws of the state of Indiana.
(ll) No
Regulatory Proceedings. Neither the Company nor any of its Subsidiaries is a party to or subject to any order, decree, agreement,
memorandum of understanding or similar agreement with, or a commitment letter, supervisory letter or similar submission to, the Board
of Governors of the Federal Reserve System, the Federal Deposit Insurance Corporation (the “FDIC”), the Indiana Department
of Financial Institutions (“IDFI”) and any federal, state or local court or governmental entity (each a “Governmental
Entity”) charged with the supervision or regulation of depository institutions, the supervision or regulation of the Company or
any of its Subsidiaries or engaged in the insurance of deposits, as applicable (collectively, the “Bank Regulatory Authorities”)
and neither the Company nor any of its Subsidiaries has been advised by any such Bank Regulatory Authority that such Bank Regulatory Authority
is contemplating issuing or requesting (or is considering the appropriateness of issuing or requesting) any such order, decree, agreement,
memorandum of understanding, commitment letter, supervisory letter or similar submission.
(mm) Cybersecurity.
(A) To the Company’s knowledge there has been no security breach or incident, unauthorized access or disclosure, or other compromise
of any of the Company’s or its Subsidiaries’ information technology and computer systems, networks, hardware, software, data
and databases (including the data and information of their respective customers, employees, suppliers, vendors and any third-party data
maintained, processed or stored by the Company and its Subsidiaries), and, to the knowledge of the Company, any such data processed or
stored by third parties on behalf of the Company and its Subsidiaries, equipment or technology (collectively, “IT Systems and Data”),
that would, singly or in the aggregate, reasonably be expected to have a Material Adverse Effect; (B) neither the Company nor its
Subsidiaries have been notified of, and each of them have no knowledge of any event or condition that could result in, any security breach
or incident, unauthorized access or disclosure or other compromise to their IT Systems and Data that would, singly or in the aggregate,
reasonably be expected to have a Material Adverse Effect; and (C) the Company and its Subsidiaries have implemented appropriate controls,
policies, procedures, and technological safeguards to maintain and protect the integrity, continuous operation, redundancy and security
of their IT Systems and Data reasonably consistent with industry standards and practices, or as required by applicable regulatory standards.
The Company and its Subsidiaries are presently in compliance with all applicable laws or statutes and all judgments, orders, rules and
regulations of any court or arbitrator or governmental or regulatory authority, internal policies and contractual obligations relating
to the privacy and security of IT Systems and Data and to the protection of such IT Systems and Data from unauthorized use, access, misappropriation
or modification, except as would not, singly or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(nn) Compliance
with Applicable Laws. Except where the failure to be in compliance would not result in a Material Adverse Effect, the Company and
its Subsidiaries conduct their respective businesses in compliance with all federal, state, local and foreign statutes, laws, rules, regulations,
decisions, directives and orders applicable to them (including, without limitation, all applicable regulations and orders of, or agreements
with, the Bank Regulatory Authorities), the Equal Credit Opportunity Act, the Fair Housing Act, the Community Reinvestment Act, the Home
Mortgage Disclosure Act, all other applicable fair lending laws or other laws relating to discrimination, the Bank Secrecy Act, Title
III of the USA Patriot Act, the Currency and Foreign Transaction Reporting Act of 1970, as amended, and any applicable money laundering
statutes of all jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines,
issued, administered or enforced by any Governmental Entity). Neither the Company nor its Subsidiaries has received any communication
from any Governmental Entity asserting that the Company or any Subsidiary is not in compliance with any statute, law, rule, regulation,
decision, directive or order, except where the asserted failure to comply would not result in a Material Adverse Effect. As of March 31,
2024, each of the Company and the Banks met or exceeded the standards necessary to be considered “well capitalized” under
the regulatory framework for prompt corrective action for each applicable Bank Regulatory Authority.
(oo) Deposit
Insurance. The deposit accounts of the Banks are insured by the FDIC up to the applicable legal maximum limits, the Banks have paid
all premiums and assessments required by the FDIC and the regulations thereunder and no proceeding for the termination or revocation of
such insurance is pending or, to the knowledge of the Company, threatened.
(pp) OFAC;
Anti-Money Laundering. None of the Company, any of its Subsidiaries or affiliates, or any director, officer or employee thereof, or,
to the Company’s knowledge, any agent or representative of the Company or of any of its Subsidiaries or affiliates is or has been
(A) engaged in any services (including financial services), transfers of goods, software, or technology, or any other business activity
related to (i) a country or territory that is the subject of Sanctions, as defined below (including, without limitation, Cuba, Iran,
North Korea, Syria, the Crimea region of Ukraine claimed by Russia, the so-called Donetsk People’s Republic or so-called Luhansk
People’s Republic or any other Covered Region of Ukraine identified pursuant to Executive Order 14065 (“Sanctioned Countries”)),
(ii) the government of any Sanctioned Country, (iii) any person, entity or organization located in, resident in, formed under
the laws of, or owned or controlled by the government of, any Sanctioned Country, or (iv) any person, entity or organization made
subject of any sanctions administered or enforced by the United States Government, including, without limitation, the list of Specially
Designated Nationals of the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”), or by the United Nations
Security Council, the European Union, His Majesty’s Treasury, or other relevant sanctions authority (collectively, “Sanctions”);
(B) engaged in any transfers of goods, technologies or services (including financial services) that may assist the governments of
Sanctioned Countries or facilitate money laundering or other activities proscribed by United States laws, rules or regulations; (C) is
a person, entity or organization currently the subject of any Sanctions; or (D) located, organized or resident in any Sanctioned
Country. The operations of the Company and its Subsidiaries are and have been conducted at all times in compliance with applicable financial
recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering
statutes of all applicable jurisdictions and the rules and regulations thereunder issued, administered or enforced by any Governmental
Entity (collectively, the “Anti-Money Laundering Laws”); and no action, suit or proceeding by or before any Governmental Entity
involving the Company or any of its Subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the best knowledge of
the Company, threatened. The Company will not directly or indirectly use the proceeds of this offering, or lend, contribute or otherwise
make available such proceeds to any Subsidiary, or any joint venture partner or other person or entity, for the purpose of financing the
activities of or business with any person, or in any country or territory, that currently is the subject to any Sanctions or in any other
manner that will result in a violation by any person (including any person participating in the transaction whether as underwriter, advisor,
investor or otherwise) of Sanctions; to fund or facilitate any money laundering or terrorist financing activities; or in any other manner
that would cause or result in a violation of the Anti-Money Laundering Laws.
(qq) Policies
and Procedures. The Company and each of its Subsidiaries and affiliates have instituted and maintained and will continue to maintain
policies and procedures reasonably designed to promote and achieve compliance with the Anti-Corruption Laws, the Anti-Money Laundering
Laws and Sanctions.
(rr) Investment
Securities. Each of the Company and its Subsidiaries has good and marketable title to all securities held by it (except securities
sold under repurchase agreements or held in any fiduciary or agency capacity) free and clear of any lien, claim, charge, option, encumbrance,
mortgage, pledge or security interest or other restriction of any kind, except to the extent such securities are pledged in the ordinary
course of business consistent with prudent business practices to secure obligations of the Company or any of its Subsidiaries and except
for such defects in title or liens, claims, charges, options, encumbrances, mortgages, pledges or security interests or other restrictions
of any kind that would not be material to the Company and its Subsidiaries. Such securities are valued on the books of the Company and
its Subsidiaries in accordance with GAAP.
(ss) Derivative
Securities. Except as has or would not reasonably be expected to result in a Material Adverse Effect, all material swaps, caps, floors,
futures, forward contracts, option agreements (other than employee stock options) and other derivative financial instruments, contracts
or arrangements, whether entered into for the account of the Company or one of its Subsidiaries or for the account of a customer of the
Company or one of its Subsidiaries, were entered into in the ordinary course of business and in accordance and in all material respects
with applicable laws, rules, regulations and policies of all applicable regulatory agencies and with counterparties believed to be financially
responsible at the time. The Company and each of its Subsidiaries have duly performed in all material respects all of their obligations
thereunder to the extent that such obligations to perform have accrued. Neither the Company nor any of its Subsidiaries, nor, to the knowledge
of the Company, any other party thereto, is in breach of its material obligations under any such agreement or arrangement.
(tt) Bank
Dividend Restrictions. Except as disclosed in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus,
no Subsidiary of the Company is currently prohibited, directly or indirectly, under any order of a Bank Regulatory Authority or any other
Governmental Entity, under any applicable law, or under any agreement or other instrument to which it is a party or is subject, from paying
any dividends to the Company, from making any other distribution on such Subsidiary’s capital stock, from repaying to the Company
any loans or advances to such Subsidiary from the Company or from transferring any of such Subsidiary’s properties or assets to
the Company or any other Subsidiary of the Company.
(uu) Forvis,
LLP, who have certified certain financial statements of the Company and its subsidiaries and delivered its report with respect to the
audited consolidated financial statements and schedules filed with the Commission as part of the Registration Statement and included or
incorporated by reference in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus, is an independent registered
public accounting firm with respect to the Company within the meaning of the Securities Act and the applicable rules and regulations
thereunder adopted by the Commission and the Public Company Accounting Oversight Board (United States).
2. [Reserved]
3. Agreements
to Sell and Purchase. The Company hereby agrees to sell to the several Underwriters, and each Underwriter, upon the basis of the representations
and warranties herein contained, but subject to the terms and conditions hereinafter stated, agrees, severally and not jointly, to purchase
from the Company the respective numbers of Firm Shares set forth in Schedule I hereto opposite its name at $40.85 per share (the
“Purchase Price”).
On
the basis of the representations and warranties contained in this Agreement, and subject to its terms and conditions, the Company agrees
to sell to the Underwriters the Additional Shares, and the Underwriters shall have the right to purchase, severally and not jointly, up
to the number of Additional Shares set forth in Schedule I hereto at the Purchase Price, provided, however, that the amount paid by the
Underwriters for any Additional Shares shall be reduced by an amount per share equal to any dividends declared by the Company and payable
on the Firm Shares but not payable on such Additional Shares. Morgan Stanley may exercise this right on behalf of the Underwriters in
whole or in part by giving written notice not later than 30 days after the date of the Prospectus. The exercise notice shall specify the
number of Additional Shares to be purchased by the Underwriters and the date on which such shares are to be purchased. The purchase date
must be at least one business day after the written notice is given and may not be earlier than the closing date for the Firm Shares or
later than ten business days after the date of such notice. Additional Shares may be purchased as provided in Section 5
hereof solely for the purpose of covering sales of shares in excess of the number of the Firm Shares. On the day, if any, that Additional
Shares are to be purchased (an “Option Closing Date”), each Underwriter agrees, severally and not jointly, to purchase
the number of Additional Shares (subject to such adjustments to eliminate fractional shares as Morgan Stanley may determine) that bears
the same proportion to the total number of Additional Shares to be purchased on such Option Closing Date as the number of Firm Shares
set forth in Schedule I hereto opposite the name of such Underwriter bears to the total number of Firm Shares.
4. Terms
of Public Offering. The Company is advised by Morgan Stanley that the Underwriters propose to make a public offering of their respective
portions of the Shares as soon after the Registration Statement and this Agreement have become effective as in Morgan Stanley’s
judgment is advisable. The Company is further advised by Morgan Stanley that the Shares are to be offered to the public upon the terms
set forth in the Prospectus.
5. Payment
and Delivery. Payment for the Firm Shares shall be made to the Company in Federal or other funds immediately available in New York
City against delivery of such Firm Shares for the respective accounts of the several Underwriters at 10:00 a.m., New York City time, on
May 16, 2024 or at such other time on the same or such other date, not later than the fifth business day thereafter, as may be designated
in writing by Morgan Stanley. The time and date of such payment are hereinafter referred to as the “Closing Date.”
Payment
for any Additional Shares shall be made to the Company in Federal or other funds immediately available in New York City against delivery
of such Additional Shares for the respective accounts of the several Underwriters at 10:00 a.m., New York City time, on the date specified
in the corresponding notice described in Section 2 or at such other time on the same or on such other date, in any event
not later than the tenth business day thereafter, as may be designated in writing by Morgan Stanley.
The Firm Shares and Additional Shares shall be
registered in such names and in such denominations as Morgan Stanley shall request not later than one full business day prior to the Closing
Date or the applicable Option Closing Date, as the case may be. The Firm Shares and Additional Shares shall be delivered to Morgan Stanley
on the Closing Date or an Option Closing Date, as the case may be, for the respective accounts of the several Underwriters, with any transfer
taxes payable in connection with the transfer of the Shares to the Underwriters duly paid, against payment of the Purchase Price therefor.
6. Conditions
to the Underwriters’ Obligations. The several obligations of the Underwriters are subject to the following conditions:
(a) Subsequent
to the execution and delivery of this Agreement and prior to the Closing Date:
(i) no
order suspending the effectiveness of the Registration Statement shall be in effect, and no proceeding for such purpose or pursuant to
Section 8A under the Securities Act shall be pending before or threatened by the Commission;
(ii) there
shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review
for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the
Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined
in Section 3(a)(62) of the Exchange Act; and
(iii) there
shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in
the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus
that, in Morgan Stanley’s judgment, is material and adverse and that makes it, in Morgan Stanley’s judgment, impracticable
to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The
Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company,
to the effect set forth in Sections 6(a)(i) and 6(a)(ii) above
and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing
Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied
hereunder on or before the Closing Date.
The officer signing and delivering such certificate
may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The
Underwriters shall have received on the Closing Date an opinion and negative assurance letter of Krieg DeVault LLP, outside counsel for
the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters.
(d) The
Underwriters shall have received on the Closing Date an opinion and negative assurance letter of Davis Polk & Wardwell LLP, counsel
for the Underwriters, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters.
With respect to the negative assurance letters
to be delivered pursuant to Section 5(c) and 5(d) above, Krieg DeVault LLP and Davis Polk & Wardwell LLP may state
that their opinions and beliefs are based upon their participation in the preparation of the Registration Statement, the Time of Sale
Prospectus, the Prospectus and any amendments or supplements thereto and review and discussion of the contents thereof, but are without
independent check or verification, except as specified.
The
opinion of Krieg DeVault LLP described in Section 6(c) above shall be rendered to the Underwriters at the request
of the Company and shall so state therein.
(e) The
Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date,
as the case may be, in form and substance satisfactory to the Underwriters, from Fortis, LLP, independent public accountants, containing
statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect
to the financial statements and certain financial information contained in the Registration Statement, the Time of Sale Prospectus and
the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than
the date hereof.
(f) The
“lock-up” agreements, each substantially in the form of Exhibit A hereto, between Morgan Stanley and certain shareholders,
officers and directors of the Company relating to restrictions on sales and certain other dispositions of shares of Common Stock or certain
other securities, delivered to Morgan Stanley on or before the date hereof, shall be in full force and effect on the Closing Date.
(g) The
several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to Morgan Stanley on the applicable
Option Closing Date of the following:
(i) a
certificate, dated the Option Closing Date and signed by an executive officer of the Company, confirming that the certificate delivered
on the Closing Date pursuant to Section 6(b) hereof remains true and correct as of such Option Closing Date;
(ii) an
opinion and negative assurance letter of Krieg DeVault LLP, outside counsel for the Company, dated the Option Closing Date, relating to
the Additional Shares to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(c) hereof;
(iii) an
opinion and negative assurance letter of Davis Polk & Wardwell LLP, counsel for the Underwriters, dated the Option Closing Date,
relating to the Additional Shares to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required
by Section 6(d) hereof;
(iv) a
letter dated the Option Closing Date, in form and substance satisfactory to the Underwriters, from Forvis, LLP, independent public accountants,
substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 6(e) hereof; provided
that the letter delivered on the Option Closing Date shall use a “cut-off date” not earlier than two business days prior to
such Option Closing Date;
(v) such
other documents as Morgan Stanley may reasonably request with respect to the good standing of the Company, the due authorization and issuance
of the Additional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Additional Shares.
7. Covenants
of the Company. The Company covenants with each Underwriter as follows:
(a) To
furnish to Morgan Stanley, without charge, a signed copy of the Registration Statement (including exhibits thereto and documents incorporated
by reference therein) and to deliver to each of the Underwriters during the period mentioned in Section 7(e) or
7(f) below, as many copies of the Time of Sale Prospectus, the
Prospectus, any documents incorporated by reference therein and any supplements and amendments thereto or to the Registration Statement
as Morgan Stanley may reasonably request.
(b) Before
amending or supplementing the Registration Statement, the Time of Sale Prospectus or the Prospectus, to furnish to Morgan Stanley a copy
of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which Morgan Stanley reasonably
objects, and to file with the Commission within the applicable period specified in Rule 424(b) under the Securities Act any
prospectus required to be filed pursuant to such Rule.
(c) To
furnish to Morgan Stanley a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by
the Company and not to use or refer to any proposed free writing prospectus to which Morgan Stanley reasonably objects.
(d) Not
to take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under
the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have
been required to file thereunder.
(e) If
the Time of Sale Prospectus is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective
purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus
in order to make the statements therein, in the light of the circumstances, not misleading, or if any event shall occur or condition exist
as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file,
or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with
applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to any dealer
upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as
so amended or supplemented will not, in the light of the circumstances when the Time of Sale Prospectus is delivered to a prospective
purchaser, be misleading or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration
Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(f) If,
during such period after the first date of the public offering of the Shares as in the opinion of counsel for the Underwriters the Prospectus
(or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is required by law to be delivered in connection
with sales by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement
the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the
notice referred to in Rule 173(a) of the Securities Act) is delivered to a purchaser, not misleading, or if, in the opinion
of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare,
file with the Commission and furnish, at its own expense, to the Underwriters and to the dealers (whose names and addresses Morgan Stanley
will furnish to the Company) to which Shares may have been sold by Morgan Stanley on behalf of the Underwriters and to any other dealers
upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented
will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of
the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with
applicable law.
(g) To
endeavor to qualify the Shares for offer and sale under the securities or Blue Sky laws of such jurisdictions as Morgan Stanley shall
reasonably request.
(h) To
make generally available to the Company’s security holders and to Morgan Stanley as soon as practicable an earnings statement covering
a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement which
shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder.
(i) Whether
or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all
expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses
of the Company’s counsel and the Company’s accountants in connection with the registration and delivery of the Shares under
the Securities Act and all other fees or expenses in connection with the preparation and filing of the Registration Statement, any preliminary
prospectus, the Time of Sale Prospectus, the Prospectus, any free writing prospectus prepared by or on behalf of, used by, or referred
to by the Company and amendments and supplements to any of the foregoing, including all printing costs associated therewith, and the mailing
and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses
related to the transfer and delivery of the Shares to the Underwriters, including any transfer or other taxes payable thereon, (iii) the
cost of printing or producing any Blue Sky or Legal Investment memorandum in connection with the offer and sale of the Shares under state
securities laws and all expenses in connection with the qualification of the Shares for offer and sale under state securities laws as
provided in Section 7(g) hereof, including filing fees
and the reasonable fees and disbursements of counsel for the Underwriters in connection with such qualification and in connection with
the Blue Sky or Legal Investment memorandum, (iv) all filing fees and the reasonable fees and disbursements of counsel to the Underwriters
incurred in connection with the review and qualification of the offering of the Shares by the Financial Industry Regulatory Authority,
(v) all costs and expenses incident to listing the Shares on the NASDAQ Capital Market, (vi) the cost of printing certificates
representing the Shares, (vii) the costs and charges of any transfer agent, registrar or depositary, (viii) the costs and expenses
of the Company relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering
of the Shares, including, without limitation, expenses associated with the preparation or dissemination of any electronic road show, expenses
associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road
show presentations with the prior approval of the Company, travel and lodging expenses of the representatives and officers of the Company
and any such consultants, and the cost of any aircraft chartered in connection with the road show, (ix) the document production charges
and expenses associated with printing this Agreement and (x) all other costs and expenses incident to the performance of the obligations
of the Company hereunder for which provision is not otherwise made in this Section. It is understood, however, that except as provided
in this Section, Section 9 entitled “Indemnity and Contribution”
and the last paragraph of Section 11 below, the Underwriters
will pay all of their costs and expenses, including fees and disbursements of their counsel, stock transfer taxes payable on resale of
any of the Shares by them and any advertising expenses connected with any offers they may make.
(j) The
Company will deliver to each Underwriter (or its agent), on the date of execution of this Agreement, a properly completed and executed
Certification Regarding Beneficial Owners of Legal Entity Customers, together with copies of identifying documentation, and the Company
undertakes to provide such additional supporting documentation as each Underwriter may reasonably request in connection with the verification
of the foregoing Certification.
The Company also covenants with each Underwriter
that, without the prior written consent of Morgan Stanley on behalf of the Underwriters, it will not, and will not publicly disclose an
intention to, during the period ending 90 days after the date of the Prospectus (the “Restricted Period”), (1) offer,
pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right
or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock, or (2) enter into any swap or other arrangement that transfers
to another, in whole or in part, any of the economic consequences of ownership of the Common Stock, whether any such transaction described
in clause (1) or (2) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise
or (3) file any registration statement with the Commission relating to the offering of any shares of Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock. The restrictions contained in the foregoing sentence shall not apply
to (A) the Shares to be sold hereunder, (B) the issuance by the Company of shares of Common Stock upon the exercise of an option
or warrant or the conversion of a security outstanding on the date hereof as described in each of the Time of Sale Prospectus and Prospectus,
(C) the issuance by the Company of grants of options, restricted shares, restricted share units or other equity-based awards to officers,
directors and employees of the Company in accordance with the terms of an equity incentive plan described in each of the Time of Sale
Prospectus and Prospectus, or (D) facilitating the establishment of a trading plan on behalf of a shareholder, officer or director
of the Company pursuant to Rule 10b5-1 under the Exchange Act, for the transfer of shares of Common Stock, provided that (i) such
plan does not provide for the transfer of Common Stock during the Restricted Period and (ii) to the extent a public announcement
or filing under the Exchange Act, if any, is required of or voluntarily made by the Company regarding the establishment of such plan,
such announcement or filing shall include a statement to the effect that no transfer of Common Stock may be made under such plan during
the Restricted Period.
8. Covenants
of the Underwriters. Each Underwriter, severally and not jointly, covenants with the Company not to take any action that would result
in the Company being required to file with the Commission under Rule 433(d) a free writing prospectus prepared by or on behalf
of such Underwriter that otherwise would not be required to be filed by the Company thereunder, but for the action of the Underwriter.
9. Indemnity
and Contribution.
(a) The
Company agrees to indemnify and hold harmless each Underwriter, each person, if any, who controls any Underwriter within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act and each affiliate of any Underwriter within the meaning
of Rule 405 under the Securities Act from and against any and all losses, claims, damages and liabilities (including, without limitation,
any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) that arise out
of, or are based upon, any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or
any amendment thereof, any preliminary prospectus, the Time of Sale Prospectus or any amendment or supplement thereto, any issuer free
writing prospectus as defined in Rule 433(h) under the Securities Act, any Company information that the Company has filed, or
is required to file, pursuant to Rule 433(d) under the Securities Act, any road show, the Prospectus or any amendment or supplement
thereto, or arise out of, or are based upon, any omission or alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities arise out of,
or are based upon, any such untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity
with any information relating to any Underwriter furnished to the Company in writing by such Underwriter through Morgan Stanley expressly
for use therein, it being understood and agreed that the only such information furnished by the Underwriters through Morgan Stanley consists
of the Underwriter Information as defined in paragraph (b) below).
(b) Each
Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, its directors, its officers who sign the Registration
Statement and each person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20
of the Exchange Act to the same extent as the foregoing indemnity from the Company to such Underwriter, but only with reference to information
relating to such Underwriter furnished to the Company in writing by such Underwriter through Morgan Stanley expressly for use in the Registration
Statement, any preliminary prospectus, the Time of Sale Prospectus, any issuer free writing prospectus, road show, or the Prospectus or
any amendment or supplement thereto (the “Underwriter Information”), it being understood and agreed that the only such information
furnished by any Underwriter through Morgan Stanley consists of the following information in the Prospectus: the concession figure in
the third paragraph under the caption “Underwriters” and the information contained in the eleventh paragraph concerning stabilization
under the caption “Underwriters”.
(c) In
case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity
may be sought pursuant to Section 9(a) or 9(b), such person
(the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying
party”) in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory
to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have
the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless
(i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and
representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them.
It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified parties and that all such fees and expenses shall be reimbursed as they are incurred. Such
firm shall be designated in writing by Morgan Stanley, in the case of parties indemnified pursuant to Section 9(a), and by the Company,
in the case of parties indemnified pursuant to Section 9(b). The indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by the second and third sentences of this paragraph, the indemnifying
party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement
is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party
shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying
party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding
in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject
matter of such proceeding.
(d) To
the extent the indemnification provided for in Section 9(a) or 9(b) is
unavailable to an indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then
each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (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 hand from the offering
of the Shares or (ii) if the allocation provided by clause 9(d)(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 9(d)(i) above
but also the relative fault of the Company on the one hand and of the Underwriters on the other hand in connection with the statements
or omissions that resulted in such losses, claims, damages or liabilities, 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 hand in connection with the offering of the
Shares shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Shares (before deducting
expenses) received by the Company and the total underwriting discounts and commissions received by the Underwriters, in each case as set
forth in the table on the cover of the Prospectus, bear to the aggregate public offering price of the Shares. The relative fault of the
Company on the one hand and the Underwriters on the other hand 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 statement or omission. The Underwriters’ respective obligations to contribute pursuant to this Section 9
are several in proportion to the respective number of Shares they have purchased hereunder, and not joint.
(e) The
Company and the Underwriters agree that it would not be just or equitable if contribution pursuant to this Section 9
were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method
of allocation that does not take account of the equitable considerations referred to in Section 9(d). The amount paid or payable
by an indemnified party as a result of the losses, claims, damages and liabilities referred to in Section 9(d) shall
be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 9, 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 it and distributed to the public were offered to the public exceeds the amount of any damages that such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. The remedies provided for in this Section 9
are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) The
indemnity and contribution provisions contained in this Section 9
and the representations, warranties and other statements of the Company contained in this Agreement shall remain operative and in full
force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Underwriter,
any person controlling any Underwriter or any affiliate of any Underwriter or by or on behalf of the Company, its officers or directors
or any person controlling the Company and (iii) acceptance of and payment for any of the Shares.
10. Termination.
The Underwriters may terminate this Agreement by notice given by Morgan Stanley to the Company, if after the execution and delivery of
this Agreement and prior to or on the Closing Date or any Option Closing Date, as the case may be, (i) trading generally shall have
been suspended or materially limited on, or by, as the case may be, any of the New York Stock Exchange or the NASDAQ Capital Market, (ii) trading
of any securities of the Company shall have been suspended on any exchange or in any over-the-counter market, (iii) a material disruption
in securities settlement, payment or clearance services in the United States shall have occurred, (iv) any moratorium on commercial
banking activities shall have been declared by Federal or New York State authorities or (v) there shall have occurred any outbreak
or escalation of hostilities, or any change in financial markets or any calamity or crisis that, in Morgan Stanley’s judgment, is
material and adverse and which, singly or together with any other event specified in this clause (v), makes it, in Morgan Stanley’s
judgment, impracticable or inadvisable to proceed with the offer, sale or delivery of the Shares on the terms and in the manner contemplated
in the Time of Sale Prospectus or the Prospectus.
11. Effectiveness;
Defaulting Underwriters. This Agreement shall become effective upon the execution and delivery hereof by the parties hereto.
If,
on the Closing Date or an Option Closing Date, as the case may be, any one or more of the Underwriters shall fail or refuse to purchase
Shares that it has or they have agreed to purchase hereunder on such date, and the aggregate number of Shares which such defaulting Underwriter
or Underwriters agreed but failed or refused to purchase is not more than one-tenth of the aggregate number of the Shares to be purchased
on such date, the other Underwriters shall be obligated severally in the proportions that the number of Firm Shares set forth opposite
their respective names in Schedule I bears to the aggregate number of Firm Shares set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as Morgan Stanley may specify, to purchase the Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided that in no event shall the number of Shares that any
Underwriter has agreed to purchase pursuant to this Agreement be increased pursuant to this Section 10 by an amount in
excess of one-ninth of such number of Shares without the written consent of such Underwriter. If, on the Closing Date, any Underwriter
or Underwriters shall fail or refuse to purchase Firm Shares and the aggregate number of Firm Shares with respect to which such default
occurs is more than one-tenth of the aggregate number of Firm Shares to be purchased on such date, and arrangements satisfactory to Morgan
Stanley and the Company for the purchase of such Firm Shares are not made within 36 hours after such default, this Agreement shall terminate
without liability on the part of any non-defaulting Underwriter or the Company. In any such case either Morgan Stanley or the Company
shall have the right to postpone the Closing Date, but in no event for longer than seven days, in order that the required changes, if
any, in the Registration Statement, in the Time of Sale Prospectus, in the Prospectus or in any other documents or arrangements may be
effected. If, on an Option Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase Additional Shares and the aggregate
number of Additional Shares with respect to which such default occurs is more than one-tenth of the aggregate number of Additional Shares
to be purchased on such Option Closing Date, the non-defaulting Underwriters shall have the option to (i) terminate their obligation
hereunder to purchase the Additional Shares to be sold on such Option Closing Date or (ii) purchase not less than the number of Additional
Shares that such non-defaulting Underwriters would have been obligated to purchase in the absence of such default. Any action taken under
this paragraph shall not relieve any defaulting Underwriter from liability in respect of any default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters,
or any of them, because of any failure or refusal on the part of the Company to comply with the terms or to fulfill any of the conditions
of this Agreement, or if for any reason the Company shall be unable to perform its obligations under this Agreement, the Company will
reimburse the Underwriters or such Underwriters as have so terminated this Agreement with respect to themselves, severally, for all out-of-pocket
expenses (including the fees and disbursements of their counsel) reasonably incurred by such Underwriters in connection with this Agreement
or the offering contemplated hereunder.
12. Entire
Agreement. (a) This Agreement, together with any contemporaneous written agreements and any prior written agreements (to the
extent not superseded by this Agreement) that relate to the offering of the Shares, represents the entire agreement between the Company
and the Underwriters with respect to the preparation of any preliminary prospectus, the Time of Sale Prospectus, the Prospectus, the conduct
of the offering, and the purchase and sale of the Shares.
(b) The
Company acknowledges that in connection with the offering of the Shares: (i) the Underwriters have acted at arm’s length, are
not agents of, and owe no fiduciary duties to, the Company or any other person, (ii) the Underwriters owe the Company only those
duties and obligations set forth in this Agreement, any contemporaneous written agreements and prior written agreements (to the extent
not superseded by this Agreement), if any, (iii) the Underwriters may have interests that differ from those of the Company, and (iv) none
of the activities of the Underwriters in connection with the transactions contemplated herein constitutes a recommendation, investment
advice, or solicitation of any action by the Underwriters with respect to any entity or natural person. The Company waives to the full
extent permitted by applicable law any claims it may have against the Underwriters arising from an alleged breach of fiduciary duty in
connection with the offering of the Shares.
13. Recognition
of the U.S. Special Resolution Regimes. (a) In the event that any Underwriter that is a Covered Entity becomes subject to a proceeding
under a U.S. Special Resolution Regime, the transfer from such Underwriter of this Agreement, and any interest and obligation in or under
this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this
Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.
(b) In
the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate of such Underwriter becomes subject to a proceeding under
a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Underwriter are permitted to
be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement
were governed by the laws of the United States or a state of the United States.
For purposes of this Section a “BHC
Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with,
12 U.S.C. § 1841(k). “Covered Entity” means any of the following: (i) a “covered entity” as that
term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term
is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is
defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b). “Default Right” has the meaning assigned
to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable. “U.S.
Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder
and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
14. Counterparts.
This Agreement may be signed in two or more counterparts, each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument. Counterparts may be delivered via facsimile, electronic mail (including any electronic
signature complying with the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act or other applicable law, e.g., www.docusign.com)
or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and
effective for all purposes.
15. Applicable
Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York.
16. Headings.
The headings of the sections of this Agreement have been inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
17. Notices.
All communications hereunder shall be in writing and effective only upon receipt and if to the Underwriters shall be delivered, mailed
or sent to Morgan Stanley at 1585 Broadway, New York, New York 10036, Attention: Equity Syndicate Desk, with a copy to the Legal
Department; and if to the Company shall be delivered, mailed or sent to 410 Monon Blvd. Carmel, Indiana, Attention: Terry A. Oznick, Esq.
|
Very truly yours, |
|
|
|
MERCHANTS BANCORP |
|
|
|
By: |
/s/ Michael J. Dunlap |
|
|
Name:
Michael J. Dunlap |
|
|
Title: President and COO |
Accepted as of the date hereof
Morgan Stanley & Co. LLC
Acting on behalf of itself and the several |
|
Underwriters named in Schedule I hereto. |
By: Morgan Stanley & Co. LLC
By: |
/s/ Jyri Wilska |
|
|
Name:Jyri Wilska |
|
|
Title: Managing Director |
|
Schedule I
Underwriter | |
Number of Firm Shares To Be Purchased | | |
Number of Additional Shares to be Purchased if Maximum Option Exercised | |
Morgan Stanley & Co. LLC | |
| 1,680,000 | | |
| 252,000 | |
Piper Sandler & Co. | |
| 360,000 | | |
| 54,000 | |
Raymond James & Associates, Inc. | |
| 360,000 | | |
| 54,000 | |
Total: | |
| 2,400,000 | | |
| 360,000 | |
Schedule II
Time of Sale Prospectus
Prospectus dated August 8, 2022
relating to the Shelf Securities
Preliminary Prospectus dated May 13,
2024
Orally communicated pricing information:
a. Price per Share to public: $43.00
b. Number of Firm Shares to be sold: 2,400,000
c. Number of Additional Shares to be sold at the option
of the Underwriters: 360,000
Schedule
III
List of Subsidiaries
| · | Merchants Asset Management, LLC (Delaware) |
| · | Merchants Bank of Indiana (also d/b/a Merchants Mortgage, Merchants Bank, and BCU Mortgage Services) (Indiana) |
| · | Merchants Capital Corp. (Indiana) |
| · | Merchants Capital Servicing, LLC (Delaware) |
| · | Merchants Capital Investments, LLC (Indiana) |
Form of Lock-Up Agreement
Morgan Stanley & Co. LLC
| c/o | Morgan Stanley & Co. LLC
1585 Broadway
New York, NY 10036 |
Ladies and Gentlemen:
The undersigned understands that Morgan Stanley &
Co. LLC (“Morgan Stanley”) proposes to enter into an Underwriting Agreement (the “Underwriting Agreement”)
with Merchants Bancorp, an Indiana corporation (the “Company”), providing for the public offering (the “Public
Offering”) by the several Underwriters, including Morgan Stanley (the “Underwriters”), up to 3,500,000 shares
(the “Shares”) of common stock, without par value, of the Company (the “Common Stock”).
To
induce the Underwriters that may participate in the Public Offering to continue their efforts in connection with the Public Offering,
the undersigned hereby agrees that, without the prior written consent of Morgan Stanley on behalf of the Underwriters, it will not, and
will not publicly disclose an intention to, during the period commencing on the date hereof and ending 90 days after the date of the final
prospectus (the “Restricted Period”) relating to the Public Offering (the “Prospectus”), (1) offer,
pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right
or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock beneficially owned
(as such term is used in Rule 13d-3 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)),
by the undersigned or any other securities so owned convertible into or exercisable or exchangeable for Common Stock or (2) enter
into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the
Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common
Stock or such other securities, in cash or otherwise. The foregoing sentence shall not apply to (a) transactions relating to shares
of Common Stock or other securities acquired in open market transactions after the completion of the Public Offering, provided
that no filing under Section 16(a) of the Exchange Act shall be required or shall be voluntarily made in connection with subsequent
sales of Common Stock or other securities acquired in such open market transactions, (b) transfers of shares of Common Stock or any
security convertible into Common Stock as a bona fide gift, or (c) distributions of shares of Common Stock or any security convertible
into Common Stock to trust beneficiaries, limited partners or stockholders of the undersigned; provided
that in the case of any transfer or distribution pursuant to clause (b) or (c), (i) each donee or distributee shall sign
and deliver a lock-up agreement substantially in the form of this agreement and (ii) no filing under Section 16(a) of the
Exchange Act reporting a reduction in beneficial ownership of shares of Common Stock shall be voluntarily made during the Restricted Period
and if any filing under Section 16(a) of the Exchange Act reporting a reduction in beneficial ownership of shares of Common
Stock shall be legally required during the Restricted Period, such filing, report or announcement shall clearly indicate in the footnotes
thereto, or otherwise, the nature and conditions of such transaction, or (d) facilitating the establishment of a trading plan on
behalf of a shareholder, officer or director of the Company pursuant to Rule 10b5-1 under the Exchange Act for the transfer of shares
of Common Stock, provided that (i) such plan does not provide for the transfer of Common Stock during the Restricted Period
and (ii) to the extent a public announcement or filing under the Exchange Act, if any, is required of or voluntarily made by or on
behalf of the undersigned or the Company regarding the establishment of such plan, such announcement or filing shall include a statement
to the effect that no transfer of Common Stock may be made under such plan during the Restricted Period. In addition, the undersigned
agrees that, without the prior written consent of Morgan Stanley on behalf of the Underwriters, it will not, during the Restricted Period,
make any demand for or exercise any right with respect to, the registration of any shares of Common Stock or any security convertible
into or exercisable or exchangeable for Common Stock. The undersigned also agrees and consents to the entry of stop transfer instructions
with the Company’s transfer agent and registrar against the transfer of the undersigned’s shares of Common Stock except in
compliance with the foregoing restrictions.
The undersigned acknowledges and agrees that the
foregoing precludes the undersigned from engaging in any hedging or other transaction designed or intended, or which could reasonably
be expected to lead to or result in, a sale or disposition of any shares of Common Stock, or any securities convertible into or exercisable
or exchangeable for Common Stock, even if any such sale or disposition transaction or transactions would be made or executed by or on
behalf of someone other than the undersigned.
The undersigned understands that the Company and
the Underwriters are relying upon this agreement in proceeding toward consummation of the Public Offering. The undersigned further understands
that this agreement is irrevocable and shall be binding upon the undersigned’s heirs, legal representatives, successors and assigns.
The undersigned acknowledges and agrees that the
Underwriters have not provided any recommendation or investment advice nor have the Underwriters solicited any action from the undersigned
with respect to the Public Offering of the Shares and the undersigned has consulted their own legal, accounting, financial, regulatory
and tax advisors to the extent deemed appropriate. The undersigned further acknowledges and agrees that, although the Underwriters may
provide certain Regulation Best Interest and Form CRS disclosures or other related documentation to you in connection with the Public
Offering, the Underwriters are not making a recommendation to you to participate in the Public Offering or sell any Shares at the
price determined in the Public Offering, and nothing set forth in such disclosures or documentation is intended to suggest that any Underwriter
is making such a recommendation.
Whether or not the Public Offering actually occurs
depends on a number of factors, including market conditions. Any Public Offering will only be made pursuant to an Underwriting Agreement,
the terms of which are subject to negotiation between the Company and the Underwriters.
This agreement shall automatically terminate upon
the earlier to occur, if any, of (1) the termination of the Underwriting Agreement before the sale of any shares of Common Stock
or (2) June 15, 2024, in the event that the Underwriting Agreement has not been executed by that date.
This agreement shall be governed by and construed
in accordance with the laws of the State of New York.
|
Very truly yours, |
|
|
|
|
|
(Name) |
|
|
|
|
|
(Address) |
EXHIBIT 5.1
May 16, 2024
Merchants Bancorp
410 Monon Boulevard
Carmel, Indiana 46032
Ladies and Gentlemen:
We have acted as counsel to Merchants Bancorp,
an Indiana corporation (the “Corporation”), in connection with the preparation and filing of a registration statement on Form S-3
(No. 333-266672) filed by the Corporation with the Securities and Exchange Commission (the “Commission”) on August 8,
2022 (the “Registration Statement”) under the Securities Act of 1933, as amended (the “Securities Act”). The Registration
Statement relates to the offer and sale by the Corporation of 2,400,000 shares (the “Shares”) of the Corporation’s common
stock, without par value (the “Common Stock”), pursuant to the Underwriting Agreement, dated May 13, 2024, by and between
the Corporation and Morgan Stanley & Co. LLC, as representative of the underwriters named therein (the “Underwriting Agreement”).
This opinion is being filed in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act.
We have examined: (1) the Registration Statement,
including the prospectus and prospectus supplement and the exhibits (including those incorporated by reference) constituting a part of
the Registration Statement; (2) the Corporation’s Second Amended and Restated Articles of Incorporation; (3) the Articles
of Amendment designating the 8.25% Fixed Rate Reset Series D Non-Cumulative Perpetual Preferred Stock; and (4) the Corporation’s
Second Amended and Restated By-laws. We have also reviewed: (1) corporate proceedings of the Corporation relating to the Registration
Statement and the transactions contemplated thereby; (2) the Underwriting Agreement; and (3) such other agreements, proceedings,
documents and records and such matters of law as we have deemed necessary or appropriate to enable us to render this opinion. As to certain
facts material to our opinion, we have relied, to the extent we deem such reliance proper, upon certificates of public officials and officers
of the Corporation. In rendering this opinion, we have assumed that (1) the parties to the documents (other than the Corporation)
have the necessary power and authority to execute, deliver and perform their obligations under the respective documents, such execution,
delivery and performance does not violate such parties’ organizational documents or relevant laws, and such parties have duly authorized,
executed and delivered the documents; (2) the genuineness of signatures, and the documents to which such parties are signatories
are valid and binding on the applicable parties; (3) the authenticity, accuracy and completeness of all documents, records and certificates
submitted to us as originals; (4) the conformity to the originals of all documents, records and certificates submitted to us as copies;
and (5) the authenticity, accuracy and completeness of the originals of all documents, records and certificates submitted to us as
copies.
Based on and subject to the foregoing, and subject
to the qualifications, assumptions and limitations stated herein, we are of the opinion that the Shares have been duly authorized and,
when issued and sold by the Corporation in accordance with the terms of the Underwriting Agreement and upon receipt by the Corporation
of full payment therefor in accordance with the Underwriting Agreement, will be validly issued, fully paid and non-assessable.
This opinion is limited to the federal securities
laws of the United States and the laws of the State of Indiana (excluding federal and state anti-fraud laws) including all applicable
Indiana statutory provisions and published and available judicial decisions interpreting these laws, as in effect on the date hereof.
We express no opinion as to the effect of the laws of any other jurisdiction.
In rendering the foregoing opinions, we are not
passing upon, and assume no responsibility for, any disclosure in the Registration Statement, the prospectus, any prospectus supplement
or other offering material regarding the Corporation or the Shares or their offer and sale.
We hereby consent to the filing of this opinion
as Exhibit 5.1 to the Corporation’s Current Report on Form 8-K filed on May 16, 2024 and incorporated by reference
into the Registration Statement, and to the reference made to us under the caption “Legal Matters” in the prospectus supplement
relating to the Common Stock included in the Registration Statement. In giving this consent, we do not thereby admit that we are “experts”
within the meaning of Section 11 of the Securities Act, or that we come within the category of persons whose consent is required
under Section 7 of the Securities Act, or the rules and regulations of the Commission promulgated thereunder.
|
Sincerely, |
|
|
|
/s/ Krieg DeVault LLP |
|
Krieg DeVault LLP |
Exhibit 99.1
PRESS RELEASE
Merchants Bancorp Announces Launch of Common
Stock Offering
CARMEL, IN (May 13, 2024) – Merchants
Bancorp (Nasdaq: MBIN) (“Merchants” or the “Company”), a holding company that operates through its wholly owned
banking subsidiary, Merchants Bank of Indiana (the “Bank”), announced today that it has launched an underwritten public offering
of 2,400,000 shares of its common stock, without par value. The Company intends to grant the underwriters a 30-day right to purchase additional
shares of its common stock.
Morgan Stanley is serving as the lead bookrunning
manager, and Piper Sandler and Raymond James are serving as joint bookrunning managers for the offering.
The Company intends to use the net proceeds of
this offering of common stock for general corporate purposes including to support balance sheet growth of the Bank.
Additional Information Regarding the Offering
The offering of common stock is being made pursuant
to a registration statement on Form S-3 (File No. 333-266672) that was declared effective by the Securities and Exchange Commission
(the “SEC”) on August 17, 2022. A preliminary prospectus supplement to which this communication relates has been filed
with the SEC. Prospective investors should read the preliminary prospectus supplement and the accompanying prospectus and other documents
the Company has filed with the SEC for more complete information about the Company and the offering. Copies of these documents are available
at no charge by visiting the SEC’s website at www.sec.gov. Alternatively, when available, copies of the preliminary prospectus
supplement, the prospectus supplement and accompanying prospectus related to the offering may be obtained by contacting Morgan Stanley &
Co. LLC, Attention: Prospectus Department, 180 Varick Street, 2nd Floor, New York, NY 10014; Piper Sandler & Co., Attention:
Prospectus Department, 800 Nicollet Mall, J12S03, Minneapolis, Minnesota, 55402, by telephone at 1-800-747-3924 or by email at prospectus@psc.com;
or Raymond James & Associates, Inc., Attention: Equity Syndicate, 880 Carillon Parkway, St. Petersburg, FL, 33716, or by
telephone at (800) 248-8863, or by e-mail at prospectus@raymondjames.com.
No Offer or Solicitation
This press release does not constitute an offer
to sell, a solicitation of an offer to sell, or the solicitation of an offer to buy any securities. There will be no sale of securities
in any jurisdiction in which such an offer, solicitation or sale would be unlawful prior to registration or qualification under the securities
laws of any such jurisdiction.
About Merchants Bancorp
Ranked as a top performing U.S. public bank by
S&P Global Market Intelligence, Merchants is a diversified bank holding company headquartered in Carmel, Indiana operating multiple
business segments, including Multi-family Mortgage Banking that offers multi-family housing and healthcare facility financing and servicing
(through this segment Merchants also serves as a syndicator of low-income housing tax credit and debt funds); Mortgage Warehouse Financing
that offers mortgage warehouse financing, commercial loans, and deposit services; and Banking that offers portfolio lending for multi-family
and healthcare facility loans, retail and correspondent residential mortgage banking, agricultural lending, Small Business Administration
lending, and traditional community banking. Merchants, with $17.8 billion in assets and $14.0 billion in deposits as of March 31,
2024, conducts its business primarily through its direct and indirect subsidiaries, Merchants Bank of Indiana, Merchants Capital Corp.,
Merchants Asset Management, LLC, Merchants Capital Investments, LLC, Merchants Capital Servicing, LLC, and Merchants Mortgage, a division
of Merchants Bank of Indiana.
Forward-Looking Statements
This press release contains forward-looking statements
which reflect management’s current views with respect to, among other things, future events and financial performance. These statements
are often, but not always, made through the use of words or phrases such as "may," "might," "should," "could,"
"predict," "potential," "believe," "expect," "continue," "will," "anticipate,"
"seek," "estimate," "intend," "plan," "projection," "goal," "target,"
"outlook," "aim," "would," "annualized" and "outlook," or the negative version of those
words or other comparable words or phrases of a future or forward-looking nature. Forward-looking statements in this press release include,
but are not limited to, statements regarding the offering. These forward-looking statements are not historical facts, and are based on
current expectations, estimates and projections about the industry, management's beliefs and certain assumptions made by management, many
of which, by their nature, are inherently uncertain and beyond our control. Accordingly, management cautions that any such forward-looking
statements are not guarantees of future performance and are subject to risks, assumptions, estimates and uncertainties that are difficult
to predict. Although the Company believes that the expectations reflected in these forward-looking statements are reasonable as of the
date made, actual results may prove to be materially different from the results expressed or implied by the forward-looking statements.
A number of important factors could cause actual results to differ materially from those indicated in these forward-looking statements,
including the impacts of factors identified in "Risk Factors" or "Management's Discussion and Analysis of Financial Condition
and Results of Operations" in the Company’s Annual Report on Form 10-K and other periodic filings with the Securities
and Exchange Commission. Any forward-looking statements presented herein are made only as of the date of this press release, and the Company
does not undertake any obligation to update or revise any forward-looking statements to reflect changes in assumptions, the occurrence
of unanticipated events, or otherwise.
Media Contact: Rebecca Marsh
Merchants Bancorp
Phone: (317) 805-4356
Email: rmarsh@merchantsbankofindiana.com
Investor Contact: John Macke
Merchants Bancorp
Phone: (317) 536-7421
Email: jmacke@merchantsbankofindiana.com
Exhibit 99.2
PRESS RELEASE
Merchants Bancorp Announces Pricing of Common
Stock Offering
CARMEL, IN (May 13, 2024) – Merchants
Bancorp (Nasdaq: MBIN) (“Merchants” or the “Company”), a holding company that operates through its wholly owned
banking subsidiary, Merchants Bank of Indiana (the “Bank”), announced today the pricing of the previously announced underwritten
public offering of 2,400,000 shares of its common stock, without par value, at a public offering price of $43.00 per share. The expected
proceeds to the Company, after deducting underwriting discounts and commissions but before deducting offering expenses payable by the
Company, are approximately $98,040,000. In addition, the Company has granted the underwriters a 30-day right to purchase up to an additional
360,000 shares of Company common stock at the public offering price, less underwriting discounts and commissions.
Morgan Stanley is serving as the lead bookrunning
manager, and Piper Sandler and Raymond James are serving as joint bookrunning managers for the offering.
The Company intends to use the net proceeds of
this offering of common stock for general corporate purposes including to support balance sheet growth of the Bank.
The Company expects to close the offering, subject
to customary conditions, on or about May 16, 2024.
Additional Information Regarding the Offering
The offering of common stock is being made pursuant
to a registration statement on Form S-3 (File No. 333-266672) that was declared effective by the Securities and Exchange Commission
(the “SEC”) on August 17, 2022. A preliminary prospectus supplement to which this communication relates has been filed
with the SEC. Prospective investors should read the preliminary prospectus supplement and the accompanying prospectus and other documents
the Company has filed with the SEC for more complete information about the Company and the offering. Copies of these documents are available
at no charge by visiting the SEC’s website at www.sec.gov. Alternatively, when available, copies of the preliminary prospectus
supplement, the prospectus supplement and accompanying prospectus related to the offering may be obtained by contacting Morgan Stanley &
Co. LLC, Attention: Prospectus Department, 180 Varick Street, 2nd Floor, New York, NY 10014; Piper Sandler & Co., Attention:
Prospectus Department, 800 Nicollet Mall, J12S03, Minneapolis, Minnesota, 55402, by telephone at 1-800-747-3924 or by email at prospectus@psc.com;
or Raymond James & Associates, Inc., Attention: Equity Syndicate, 880 Carillon Parkway, St. Petersburg, FL, 33716, or by
telephone at (800) 248-8863, or by e-mail at prospectus@raymondjames.com.
No Offer or Solicitation
This press release does not constitute an offer
to sell, a solicitation of an offer to sell, or the solicitation of an offer to buy any securities. There will be no sale of securities
in any jurisdiction in which such an offer, solicitation or sale would be unlawful prior to registration or qualification under the securities
laws of any such jurisdiction.
About Merchants Bancorp
Ranked as a top performing U.S. public bank by
S&P Global Market Intelligence, Merchants is a diversified bank holding company headquartered in Carmel, Indiana operating multiple
business segments, including Multi-family Mortgage Banking that offers multi-family housing and healthcare facility financing and servicing
(through this segment Merchants also serves as a syndicator of low-income housing tax credit and debt funds); Mortgage Warehouse Financing
that offers mortgage warehouse financing, commercial loans, and deposit services; and Banking that offers portfolio lending for multi-family
and healthcare facility loans, retail and correspondent residential mortgage banking, agricultural lending, Small Business Administration
lending, and traditional community banking. Merchants, with $17.8 billion in assets and $14.0 billion in deposits as of March 31,
2024, conducts its business primarily through its direct and indirect subsidiaries, Merchants Bank of Indiana, Merchants Capital Corp.,
Merchants Asset Management, LLC, Merchants Capital Investments, LLC, Merchants Capital Servicing, LLC, and Merchants Mortgage, a division
of Merchants Bank of Indiana.
Forward-Looking Statements
This press release contains forward-looking statements
which reflect management’s current views with respect to, among other things, future events and financial performance. These statements
are often, but not always, made through the use of words or phrases such as "may," "might," "should," "could,"
"predict," "potential," "believe," "expect," "continue," "will," "anticipate,"
"seek," "estimate," "intend," "plan," "projection," "goal," "target,"
"outlook," "aim," "would," "annualized" and "outlook," or the negative version of those
words or other comparable words or phrases of a future or forward-looking nature. Forward-looking statements in this press release include,
but are not limited to, statements regarding the offering, including the expected closing of the offering. These forward-looking statements
are not historical facts, and are based on current expectations, estimates and projections about the industry, management's beliefs and
certain assumptions made by management, many of which, by their nature, are inherently uncertain and beyond our control. Accordingly,
management cautions that any such forward-looking statements are not guarantees of future performance and are subject to risks, assumptions,
estimates and uncertainties that are difficult to predict. Although the Company believes that the expectations reflected in these forward-looking
statements are reasonable as of the date made, actual results may prove to be materially different from the results expressed or implied
by the forward-looking statements. A number of important factors could cause actual results to differ materially from those indicated
in these forward-looking statements, including the impacts of factors identified in "Risk Factors" or "Management's Discussion
and Analysis of Financial Condition and Results of Operations" in the Company’s Annual Report on Form 10-K and other periodic
filings with the Securities and Exchange Commission. Any forward-looking statements presented herein are made only as of the date of this
press release, and the Company does not undertake any obligation to update or revise any forward-looking statements to reflect changes
in assumptions, the occurrence of unanticipated events, or otherwise.
Media Contact: Rebecca Marsh
Merchants Bancorp
Phone: (317) 805-4356
Email: rmarsh@merchantsbankofindiana.com
Investor Contact: John Macke
Merchants Bancorp
Phone: (317) 536-7421
Email: jmacke@merchantsbankofindiana.com
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Merchants Bancorp (NASDAQ:MBINO)
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